Ermini v. Vittori

• Decision Date: 08 July 2014
• Docket Number: Docket Nos. 13–2025–cv(L),13–2199 (XAP).
• Citation: 758 F.3d 153
• Parties: Emiliano ERMINI, Petitioner–Appellant–Cross–Appellee, v. Viviana VITTORI, Respondent–Appellee–Cross–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

758 F.3d 153

Emiliano ERMINI, Petitioner–Appellant–Cross–Appellee,

v.Viviana VITTORI, Respondent–Appellee–Cross–Appellant.¹

Docket Nos. 13–2025–cv(L),13–2199 (XAP).

United States Court of Appeals, Second Circuit.

Argued: April 9, 2014.

Decided: July 8, 2014.

Rocco Lamura, Tosolini Lamura Rasile & Toniutti LLP, New York, NY, for Petitioner–Appellant–Cross–Appellee.

Sanket J. Bulsara (Jacob Press, Tamar Kaplan–Marans, Maria Banda, Jing–Li Yu, Musetta Durkee, on the brief), Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Respondent–Appellee–Cross–Appellant.

Gary S. Mayerson, Tracey S. Walsh, Maria C. McGinley, Mayerson & Associates, New York, NY, for Amicus Curiae Autism Speaks.

Jeremy T. Adler, Davis Polk & Wardwell LLP, New York, NY, for Amicus Curiae Travis Thompson, Ph.D. and Paolo Moderato, Ph.D.

Anthony S. Barkow, Elizabeth A. Edmondson, Eddie A. Jauregui, Jenner & Block LLP, New York, NY, for Amicus Curiae Jacqueline Sands.

Gregory J. Wallance, W. Stewart Wallace, Susanna Y. Chu, Kaye Scholer LLP, New York, NY, for Amicus Curiae Professor Elizabeth Lightfoot, Sanctuary for Families, and Child Justice, Inc.

Robert H. Smit, Simpson Thacher & Bartlett LLP, New York, NY, for Amicus Curiae Domestic Violence Legal Empowerment and Appeals Project, The Family Violence Appellate Project, and Professors Shani M. King and Lisa V. Martin.

Before: CALABRESI, CABRANES, and LIVINGSTON, Circuit Judges.

CALABRESI, Circuit Judge:

This case presents us with novel, and significant, issues under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25,1980, T.I.A.S. No. 11, 670,1343 U.N.T.S. 89, reprintedin51 Fed.Reg. 10494 (Mar. 26, 1986) (the “Hague Convention” or the “Convention”), as implemented in the United States by the International Child Abduction Remedies Act, 42 U.S.C. § 11601–10. While the Convention is designed, in part, to ensure the prompt return of children wrongfully removed or retained from their country of habitual residence by one parent, it also protects children who, though so removed or retained, face a real and grave risk of harm upon return. Here, we are confronted with forms of psychological and physical harm arising from separating a child from autism therapy. The question of whether the risk of such harms is sufficiently grave to trigger the Convention's exceptions has not been previously considered by our Court. We today hold that such risk can be sufficiently grave, and, on the facts found by the district court, that in this case it is. For this reason, and another, we affirm the district court's denial of the appellant's petition.

We also face, as a matter of first impression, the district court's decision to deny the petition without prejudice to renewal. We hold that this was error, and amend the judgment to deny the petition with prejudice.²

I.

Emiliano Ermini and Viviana Vittori are Italian citizens. They began living together in Italy in 2001, and were married in 2011. The couple had two children: Emanuele, who is 10, and Daniele, who is 9. Daniele is autistic. In the midst of a custody dispute, Ermini petitioned the district court pursuant to the Hague Convention, a multilateral treaty to which the United States and Italy are signatories, seeking the return to Italy of his two sons, who were then, and today remain, in the United States.

Ermini filed his petition in August of 2012, and the district court conducted a bench trial in January of 2013. Under Federal Rule of Civil Procedure 52(a), on April 19, 2013, the district court produced an opinion, which contained its findings of fact and conclusions of law, and issued its judgment. Ermini v. Vittori, No. 12 Civ. 6100, 2013 WL 1703590 (S.D.N.Y. Apr. 19, 2013).

A.

The district court found several facts that are relevant to the matter before us. First, the court found that the family had moved to the United States in August of 2011 in connection with its longstanding efforts to find appropriate treatment for Daniele. Id. at *4. Daniele had been diagnosed with autism in March of 2008, and the couple sought unsuccessfully to find adequate Applied Behavioral Analysis (“ABA”) therapy for Daniele in Italy.³Id.at *2. Indeed, while there, Vittori herself provided the bulk of Daniele's therapy. Id.

Dissatisfied with Daniele's development, the family sought other avenues of relief. Id. In Spring of 2010, in Italy, they met Dr. Giuseppina Feingold, an Italian-speaking doctor with a practice in Suffern, New York. Id. at *3. In August of 2010, they traveled to New York so that Dr. Feingold could more fully assess and begin treating Daniele. Id. The parents were impressed with the treatment options presented by Dr. Feingold, and began to plan a move to Suffern, at first for a period of two-three years, but with the potential of a permanent relocation in mind, depending on the success of Daniele's treatment. Id.

Things moved speedily thereafter. The family returned to New York in August of 2011, and promptly signed a one-year lease on a house. Id. at *4. The children were enrolled in public schools, and Daniele's therapy began soon after. Id. at *8–9. The parents put their home in Italy on the market, prepared to open a business in the United States, and made arrangements to send their belongings here. Id. at *4.

In the meantime, Ermini, who had remained employed in Italy, traveled back and forth between the United States and Italy. Id. During a December of 2011 return to America, an apparently already contentious relationship between Ermini and Vittori came to a head when a “violent altercation” occurred, with Ermini physically abusing Vittori in the kitchen of their Suffern, New York home. Id. at *5. In its findings of fact, the district court found credible testimony that during this altercation Ermini had, among other acts, hit Vittori's head against a kitchen cabinet, and attempted to “suffocate” and “strangle” her. Id.

The district court determined this incident was part of a history of physical violence by Ermini. Id. The court found that Ermini “expresses anger verbally and physically,” had hit Vittori at least ten times during the course of their relationship, and was “in the habit of striking the children.” Id.

In response to the December of 2011 incident, Vittori obtained a temporary order of protection from the Suffern Court of Justice for herself and the children. The order, among other things, granted her temporary custody of the children through May 9, 2012. Id. at *6.

Ermini returned to Italy and instituted divorce proceedings. Id. Vittori went back to Italy for those proceedings in April of 2012, by which time the children's American visas had expired. Id.

Meanwhile, in July of 2012, Ermini resolved criminal charges that had been brought against him as a result of the December of 2011 domestic abuse incident by pleading guilty in New York State court to harassment in the second degree. Id. at *7. As a part of that plea, he consented to a one year order of protection, which, among other things, required him to refrain from contacting the children. Id.

In September of 2012, Ermini petitioned an Italian court in Velletri for an order directing Vittori to return with the children to Italy. Id. The court in Velletri granted Ermini's petition, ordering Vittori to return with the children, and making various rulings granting shared parental authority between Ermini and Vittori and assigning visitation rights. Id.

In April of 2013, however, the Court of Appeals in Rome issued an order (the “Rome Order”) vacating several provisions of the Velletri court's order. Id. The Court of Appeals granted Vittori exclusive custody of the children, did not require her to return to Italy with the children, and explicitly fashioned its order to comport with the orders of protection issued in the United States arising from the December of 2011 domestic abuse incident. Id.

With this background in mind, the district court made several further findings of fact about the children and their experiences. Emanuele, who had testified before the court in camera, was found to have displayed “candor” and “maturity,” as well as a strong command of the English language. Id. at *8. He was happy in America, and preferred living here, both because of the “fear” he had of his father and because he preferred the schooling he was receiving here. Id.

Moreover, the district court found that Daniele had “significantly progressed” with his therapy in the United States. Id. He was engaged in a Comprehensive Application of Behavioral Analysis to Schooling (“CABAS”) program in Stony Point, New York, which, according to Vittori's expert, Dr. Carole Fiorile, offered the best ABA curriculum then available to autistic children. Id. at *9. The program involved one-on-one instruction with an educational team, including a special educational teacher, an occupational therapist, a speech and language therapist, several classroom assistants, and a full-time one-on-one teaching assistant. Id.

The district court noted that Dr. Fiorile had stated that Daniele required such a program to continue to make meaningful progress in, among other things, cognition, language, and social and emotional skills. Id. Dr. Fiorile had also testified that while the United States has over 4,000 board certified ABA practitioners, there were, to her knowledge, fewer than twenty in Italy. Id.

The district court, weighing Dr. Fiorile's opinion about the CABAS program, made the following additional factual findings:

[Daniele] has benefitted immensely from the superior resources of the school program in which he has been enrolled while residing in the United States. The CABAS program, with its structured, intensive curriculum and extensive classroom support, provided by professionals, has resulted in marked improvement of [Daniele's] self-care, communication, vocabulary in English and Italian and his general cognition.... The unrebutted testimony of Dr. Fiorile at trial...