USA – OH – COFFIELD – 1994 (1994) (Return Ordered on Appeal) KEEN v COFFIELD. Lower court ordered the child returned to Australia with the mother. Father appealed, lower court order was affirmed, the child was ordered returned.
In re Petition for Coffield (Ohio App. 11 Dist 1994)644 N.E.2d 662 03 Jun 1994
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This appeal has been taken from a final judgment of the Juvenile
Division of the Portage County Court of Common Pleas. Following
the filing of the notice of appeal, the parties to this appeal
expressly agreed to waive the time requirements under the Ohio
Rules of Appellate Procedure governing the filing of the record
and the appellate briefs. This waiver was made in recognition of
the unique nature of the appeal’s subject matter and the need for
a speedy resolution of the underlying dispute between the parties.
Consistent with this waiver, our discussion of the appeal’s merits
will follow this court’s accelerated opinion format, pursuant to
Loc.App.R. IV.
On March 31, 1994, appellee, Yvonne Keen, initiated the instant
action by filing a petition for a writ of habeas corpus with the
trial court. In this petition, appellee sought an order requiring
appellant, John Coffield, to return possession and control of
their minor child, Ryan Russell Keen Coffield, to her. As grounds
for this request, appellee alleged that appellant had “wrongfully”
taken Ryan from the country of her (sic) resudency, Australia, and
had brought him to the United States, in violation of a temporary
custody order of an Australian court. Appellee’s petition was
brought under the International Child Abduction Remedies Act,
Section 11601 et seq., Title 42, U.S.Code, and the Hague
Convention on the Civil Aspects of International Child Abduction.
After appellant had received proper notice of the petition, an
abbreviated bench trial was held on April 20, 1994. Based upon
evidence presented by the parties, the trial court made the
following findings in its judgment: (1) that Australia had been
Ryan’s habitual residence prior to his removal; (2) that appellant
had violated appellee’s custody rights under Australian law by
taking Ryan from Australia without her consent; (3) that Ryan had
not become “settled” in his new “environment” in Portage County,
Ohio; and (4) that Ryan would not be subject to a grave risk of
physical or psychological harm, or otherwise be placed in an
intolerable situation, by returning to Australia with appellee.
Based upon these findings, the court concluded that appellee was
entitled to; take custody of Ryan and then take him back to
Australia; accordingly, the court ordered the Portage County
Department of Human Services to release Ryan to appellee.
In appealing from this judgment, appellant has raised four
assignments of error for review. Under the first assignment,
appellant contends that the trial court erred in denying his
pretrial motion for psychological testing of himself, appellee,
and Ryan. Appellant argues that the results of this testing should
have been admissible because they would have been relevant to the
factual issue of whether Ryan will suffer psychological harm by
returning to Australia and living with appellee.
As was noted above, appellee’s petition was brought under the
International Child Abduction Remedies Act and the Hague
Convention on the Civil Aspects of International Child Abduction.
Section 4(b) of the former statute provides that in seeking the
return of an abducted child who is being “wrongfully” held in the
United States, any person can initiate a judicial proceeding in
any court of competent jurisdiction. Section 4(d) then states that
the issues raised in this proceeding shall be determined in
accordance with the standards set forth in the Hague Convention.
Section 11603, Title 42, U.S.Code.
Article 3 of the latter document states that a child has been
wrongfully removed from the country of his habitual residence if
the removal violated the custody rights of a person under the laws
of that country. Article 12 then provides that upon determining
that a wrongful removal has occurred, a court of competent
jurisdiction must immediately order the return of the child if a
period of less than one year has elapsed since the abduction. This
article further provides that if a period of more than one year
has elapsed, the court must order the return of the child, unless
the abductor shows that the child has become “settled” in his new
environment.
In essence, Article 12 of the Hague Convention establishes a
presumption that a child should always be returned to the country
of his habitual residence once the custodial rights of the
petitioner have been demonstrated. However, in addition to the
“settled environment” exception, Article 13 provides that the
abductor can rebut this presumption by showing, inter alia, that
“there is a grave risk that [the child’s] return would expose the
child to physical or psychological harm or otherwise place the
child in an intolerable situation.” Article 13(b).
Before the trial court, appellant did not attempt to refute
appellee’s evidence indicating that his removal of Ryan from
Australia had been wrongful under the Hague Convention. Instead,
he argued that both the settled environment exception and the
grave risk exception were applicable in this case. In moving for
psychological testing, appellant asserted that the results of such
testing would be relevant to the latter exception because they
would show that he was the better parent.
However, in interpreting Article 13, the courts in this country
have expressly held that the scope of a trial court’s inquiry
under the grave risk exception is extremely narrow.
In Tahan v Duquette (App. 1992) 259 N.J.Super. 328 [613 A.2d 486]
the court held that proposed testimony concerning the nature of
the child’s life in this country was irrelevant to the
determination under Article 13(b):
“We agree with the trial judge that the Article 13b inquiry was
not intended to deal with issues or factual questions which are
appropriate for consideration in a plenary custody proceeding.
Psychological profiles, detailed evaluations of parental fitness,
evidence concerning lifestyle and the nature and quality of
relationships all bear upon the ultimate issue. The Convention
reserves these considerations to the appropriate tribunal in the
place of habitual residence * * *.” Id at 333, 613 A.2d at 489.
Although ultimately concluding that the inquiry under Article
13(b) involves more than a “cursory” review of the civil stability
in the country of habitual residence, the Tahan court determined
that any proposed evidence on this issue must pertain to the
environment in which the child will reside upon returning to the
home country.
In moving for psychological testing in the instant case, appellant
did not assert that the results of the testing would produce
evidence as to the basic environment in Australia and the type of
individuals, besides appellee, with whom Ryan would have to live.
Instead, the testing would only produce evidence which would
normally be considered in a custody proceeding. Pursuant to the
Tahan holding, such evidence is irrelevant to the issues raised
under the grave risk exception. Thus, as the trial court did not
err in denying appellant’s motion, his first assignment is without
merit.
During the course of the trial, appellant attempted to present
evidence concerning appellee’s lifestyle and the manner in which
she had provided for Ryan prior to the date of the abduction in
1991. In ruling upon appellee’s multiple objections, the trial
court ruled that this proposed evidence was inadmissible. Under
his second assignment, appellant maintains that the court’s ruling
was erroneous because this evidence was relevant to the issue of
whether Ryan would be subjected to a grave risk of physical or
psychological harm upon returning to Australia.
Near the conclusion of his case before the trial court, appellant
made a proffer of the proposed evidence. A review of the proffer
indicates that none of this evidence would have pertained to the
basic environment which presently exists in Australia and the
basic nature of the individuals with whom Ryan would live.
Instead, the evidence pertained only to appellee and her prior
life style.
Although this type of evidence would certainly be relevant in a
plenary custody proceeding, this court concludes that it is
irrelevant to the question of whether the grave risk exception is
applicable. In relation to this point, we would note that Article
13 states that in determining whether a grave risk of harm exists,
a trial court must consider the social background of the child in
the home country. This language supports the conclusion that this
exception is applicable only when the general environment of the
home country poses a risk, not the specific environment in which
the child will live.
As appellant’s proposed evidence did not pertain to the general
environment in Australia, it was irrelevant to the issues before
the trial court. Thus, as the court did not err in excluding the
testimony, appellant’s second assignment is likewise without
merit.
Under his next assignment, appellant challenges the trial court’s
conclusion that Ryan has not become “settled” in his new
environment in Ohio. In support of this particular argument,
appellant emphasizes that during the trial, he introduced
evidence indicating that Ryan had not only developed relationships
with members of appellant’s family, but had also made new friends.
Based upon this, appellant contends that the trial court erred in
holding that the settled environment exception did not apply.
Evidence presented by both parties at trial clearly established
that approximately three years had elapsed between Ryan’s
abduction and the filing of appellee’s petition. Accordingly,
pursuant to Article 12 of the Hague Convention, a petition for the
return of a child can be denied if the abductor demonstrates that
the child has become settled in the new environment.
In concluding that appellant had not carried his burden of proof
as to this exception, the trial court found that appellant had
exposed Ryan only to a limited group of friends and relatives. Our
review of the record supports this conclusion. While Ryan may have
made new friends, the record shows that these friends were limited
to the children of appellant’s prior acquaintances, i.e., people
whom appellant could trust. Moreover, appellant failed to present
any evidence that Ryan had made any friends in the community in
which they lived. In addition, the evidence at trial clearly
established that appellant and Ryan had been living in Ohio only
for approximately ten months prior to the filing off the petition.
In support of its conclusion, the trial court also emphasized that
appellant had not presented any evidence indicating that he had
enrolled Ryan in school or any other activities. Given that Ryan
is only five years old, the fact that he has not been enrolled in
any organized activities would not indicate, in and of itself,
that appellant was attempting to hide Ryan’s identity.
However, as to this point, we would note that under Section
4(e)(2)(B) of the International Child Abduction Remedies Act,
appellant had the burden of showing by a preponderance of the
evidence that Ryan was now “settled” in the new environment in
this country. At trial, appellant did not show that Ryan had
developed the connections to the community which a normal child of
his age would, i.e., appellant did not show tha Ryan had developed
relationships with other individuals besides those which appellant
specifically chose. Under these circumstances, appellant failed
to carry his burden of proof.
Given the lack of evidence, the trial court did not err in holding
that Ryan had no become “settled” in the new environment. Thus,
appellant’s third assignment is without merit.
Under his final assignment, appellant contends that the trial
court erred in finding that Ryan would not be subjected to a grave
risk of physical or psychological harm by returning to Australia.
Although the court did not allow appellant to introduce the
majority of the evidence which he sought to present, he still
contends that the evidence he presented was sufficient to carry
his burden of proof as to this particular exception. In support of
this argument, he maintains that the testimony he was allowed to
introduce indicated that Ryan would be psychologically harmed by
being separated from him.
As to this point, this court would again note that in order to
establish a grave risk under Article 13(b), the abductor must
present evidence concerning the nature of the general environment
in the home country. Although evidence concerning the possible
harm caused by the separation would be relevant in a plenary
custody proceeding, it is not relevant to the issue raised in the
grave risk exception. To hold otherwise would alter the nature of
the proceeding under the Hague Convention.
In support of its judgment as to the grave risk exception, the
trial court held that the relevant evidence had supported the
conclusion that the return of Ryan to Australia did not pose a
grave risk to his physical or psychological well being. Our review
of the record supports the trial court’s holding. As part of his
case, appellant presented the testimony of a psychologist who had
met with Ryan on a number of occasions. During cross examination,
this witness stated that in his opinion, Ryan’s proposed return to
Australia, in and of itself, did not present a risk of
psychological harm. This same conclusion was also reached by a
social worker who had had contact with Ryan.
Section 4(e)(2)(A) of the International Child Abduction Remedies
Act states that the grave risk exception under Article 13(b) must
be demonstrated by clear and convincing evidence. Section. 11603,
Title 42, U.S. Code. Since the record before us indicates that
appellant failed to carry this burden, the trial court did not err
in concluding that appellant had not demonstrated a grave risk of
psychological harm. Thus, appellant’s final assignment is without
merit.
The judgment of the trial court is affirmed.
Judgment affirmed.
FORD, P.J., and CHRISTLEY and NADER, JJ., concur.