Blondin v. Dubois

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-6066
• Citation: 238 F.3d 153
• Parties: (2nd Cir. 2001) FELIX BLONDIN, Petitioner-Appellant, v. MARTHE DUBOIS, Respondent-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 153

238 F.3d 153 (2nd Cir. 2001)

FELIX BLONDIN, Petitioner-Appellant, v. MARTHE DUBOIS, Respondent-Appellee.

Docket No. 00-6066

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: September 12, 2000

Decided: January 04, 2001

Appeal from a judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge), following a remand by the Court of Appeals, see 189 F.3d 240 (2d Cir. 1999), denying petitioner-appellant's request for the return of his children to France, based on the finding that repatriation under any circumstances would subject the children to post-traumatic stress disorder and, therefore, would create a "grave risk of psychological harm" under Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction.

Affirmed.

[Copyrighted Material Omitted] SANFORD HAUSLER (Valerie S. Wolfman, Robert Arenstein, Linda Silberman, of counsel), New York, NY, for Petitioner-Appellant.

BARRY D. LEIWANT, Legal Aid Society, Federal Defender Division, New York, NY, for Respondent-Appellee.

WENDY H. SCHWARTZ, Assistant United States Attorney (Mary Jo White, United States Attorney, Gideon A. Schor, Assistant United States Attorney, of counsel), Southern District of New York, New York, NY, for Amicus Curiae United States of America.

Clifton S. Elgarten (Bridget K. Allison, of counsel), New York, NY, for Amicus Curiae National Organization for Women Legal Defense and Education Fund.

Before: FEINBERG, CABRANES, and PARKER, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

The question presented is whether the United States District Court for the Southern District of New York (Denny Chin, Judge) properly found that repatriation to France under any circumstances would subject two children who were abducted by their mother to post-traumatic stress disorder and, therefore, whether the Court correctly refused to repatriate them-as would ordinarily be required under the Hague Convention on the Civil Aspects of International Child Abduction-by applying the "grave risk of psychological harm" exception to the general rule of repatriation set forth in that treaty. See Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 13(b) ("grave risk" exception), T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10498 (the "Hague Convention" or "Convention"); 42 U.S.C. §§11601 et seq. (domestic implementing legislation).

I

This is the second appeal in this case. The facts of this dispute are set forth fully in the District Court's first opinion, see Blondin v. Dubois, 19 F. Supp. 2d 123, 124-26 (S.D.N.Y. 1998) ("Blondin I"), and in our opinion in the first appeal, see Blondin v. Dubois, 189 F.3d 240, 242-44 (2d Cir. 1999) ("Blondin II"). We assume familiarity with those opinions and now describe only the facts necessary to the disposition of the instant appeal.

Marthe Dubois and Felix Blondin lived together between 1990 and 1997 and had two children, Marie-Eline and Francois. Dubois also had a son from a previous relationship, Crispin, who lived with her and Blondin during some portion of this seven-year period. Dubois claims that Blondin abused her and their children throughout the time they lived together. Before Francois's birth, Dubois allegedly left the house twice as a result of Blondin's physical and emotional abuse, taking Marie-Eline and Crispin with her. On one of those occasions, Dubois and her daughter spent eight or nine months in a battered women's shelter, while Crispin lived in a youth shelter. Both times, Dubois and Blondin reconciled, but both times, Blondin assertedly resumed his violent abuse.

In August 1997, when Marie-Eline was six years old and Francois two, Dubois abducted the children and came to the United States. In doing so, Dubois forged Blondin's signature on a passport application. When Blondin learned that Dubois and the children were living in the United States with Dubois's brother and his family, he instituted proceedings in the District Court seeking the return of the children to France under the Hague Convention.

The Convention requires the repatriation of an abducted child to its country of "habitual residence" in all but four exceptional circumstances. See Hague Convention, preamble; 42U.S.C. § 11601(a)(4) ("Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies."); see also Blondin II, 189 F.3d at 245 (describing the four exceptions). In response to Blondin's petition, Dubois successfully invoked the Article 13(b) exception, which permits a judicial or administrative authority to refuse to order the repatriation of a child if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, art. 13(b); see also Blondin I, 19 F. Supp. at 127.

On appeal, we vacated the judgment of the District Court and remanded the cause for further proceedings. See Blondin II, 189 F.3d at 249. We did not question the Court's findings regarding Blondin's history of abuse, and we declined to disturb its decision not to repatriate the children under circumstances that, for lack of another alternative, might force them and Dubois to live with Blondin.¹ See id. at 247. However, because the aim of the Convention is to ensure the "prompt return" of abducted children, seeHague Convention, preamble, we held that further proceedings were required in order to determine whether any arrangements might be made that would mitigate the risk of harm to the children, thereby enabling them safely to return to France. See id. at 248. Specifically, we stated that "it is important that a court considering an exception under Article 13(b) take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child's repatriation." Id.

On remand, the District Court found that if Dubois and the children returned to France, they would be eligible for social services, and Dubois would receive free legal assistance in the pending custody proceedings; that Blondin would assist her and the children financially in moving back to France, and would agree not to attempt to make contact with them prior to the judicial determination of custodial rights; and that the French government would not prosecute Dubois for the abduction or the forgery. See Blondin v. Dubois, 78 F. Supp. 2d 283, 288-93 (S.D.N.Y. 2000) ("Blondin III"). However, the District Court found, on the basis of the evidence presented, that even these arrangements-indeed, that any arrangements at all-would fail to mitigate the grave risk of harm to the children, because returning to France under any circumstances would cause them psychological harm, as France was the scene of their trauma. See id. at 297. The Court based this determination on uncontested expert testimony that the children would suffer from post-traumatic stress disorder upon repatriation. See id.

Blondin timely filed this appeal on January 19, 2000.

II.

The aim of the Hague Convention is "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence." See Hague Convention, preamble; see also Blondin II, 189 F.3d at 244-45. As we explained in more detail in Blondin II, a "wrongful removal" under the Convention is one "in breach of rights of custody...under the law of the State in which the child was habitually resident." Hague Convention, art. 3; see also Blondin II, 189 F.3d at 245. If the removal was wrongful, "the child must be returned unless the defendant can establish one of four defenses." Blondin II, 189 F.3d at 245 (internal quotation marks omitted); see also 42 U.S.C. §11601(a)(4). No one disputes that Dubois's removal of the children was "wrongful" within the meaning of the Convention. Rather, the parties disagree as to whether Dubois has established a defense under the Convention.

Dubois originally sought to make out a defense only under Article 13(b), pursuant to which a court may decline to repatriate a child if the party opposing repatriation establishes by clear and convincing evidence that repatriation would create a grave risk of physical or psychological harm to the child.² See Hague Convention, art. 13(b); Blondin II, 189 F.3d at 245. It was this matter that the District Court considered in Blondin I, and that we reviewed in Blondin II. However, following our decision in Blondin II, Dubois asked the District Court to expand its inquiry specifically to take into account "whether Marie-Eline had become so deeply rooted in the United States that returning her to France would expose her to a grave risk of psychological harm, arguing that the Second Circuit had left this issue open to consideration on remand." Blondin III, 78 F. Supp. 2d at 287 (emphasis added). Ordinarily, the issue of whether a child is "settled" in a new environment arises under Article 12 of the Convention, which applies only if the petitioning parent commences proceedings more than one year after the abduction. See Hague Convention, art. 12.³ Because Blondin filed his petition within a year, Article 12 does not apply in this case. Expressly recognizing this, the District Court nevertheless granted Dubois's request and took into account whether both children were settled in their new environment as one factor in its "grave risk" analysis under Article 13(b). See Blondin III, 78 F. Supp. 2d at 287-88.

In addition, the District Court considered Marie-Eline's objections to returning to France. Like the "settled" exception of Article 12, the child's views on...