APPEAL from an order of the Superior Court of Los Angeles County, Marjorie Steinberg, Judge. Reversed and remanded with directions. (Los Angeles County Super. Ct. No. BH006827)
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
In this action brought under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), as implemented by the International Child Abduction Remedies Act, title 42 United States Code section 11601 et seq., a father appeals from a decision denying his petition for return of his young son, who was abducted by his estranged wife from Italy and brought to the United States. The trial court found that absent the satisfaction of certain conditions or "undertakings," return of the child to Italy unaccompanied by his mother would pose a grave risk to his psychological health. The father's petition for return was denied after he failed fully to satisfy each condition.
We conclude the evidentiary record is sufficient to support the trial court's factual findings as to the existence of a grave psychological risk. But the undertakings imposed by the court in an effort to ameliorate that risk to the child upon return are problematic. They impermissibly hinge on the abducting parent's cooperation, and require the father to fulfill a requirement that is beyond his control. We therefore reverse with instructions to grant father's petition and to fashion conditions of return to mitigate the risk of harm occasioned by the child's repatriation.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent L.C. (herein Mother) is a United States citizen. Her husband, petitioner and appellant, Maurizio R. (herein Father), is an Italian citizen who has always lived in Italy. The couple married in 2003 and settled in Parma, Italy. In August 2005, their son, Leonardo R. (Leo), was born in Italy. Apart from an extended family stay in Los Angeles in 2008 and 2009, Leo, who is a citizen of the United States and Italy, has always lived in Italy with both of his parents.
On February 16, 2010,*fn1 Mother took Leo and left Italy without Father's knowledge or consent. Mother told Father about their departure after the fact, sending him an email from the airport stating that she and Leo would be staying with her mother in Los Angeles and would return to Parma in early March. Mother did not return to Italy. Instead, she filed for legal separation in the Los Angeles Superior Court seeking custody of Leo and monitored visitation for Father. In that action, Mother also requested and received a temporary restraining order against Father, and permission to take Leo to psychotherapy.
Back in Italy, Father filed or precipitated the filing of three legal proceedings. He filed a charge ("lawsuit") which precipitated the Italian prosecutor's filing of a child abduction action against Mother under the Italian Criminal Code (art. 574), a crime carrying a potential sentence of up to three years in prison. Father also filed a petition to terminate Mother's parental rights, and a family law action seeking legal separation and custody of the couple's child.
In the United States, Father filed the instant petition for return of minor child under the Hague Convention (petition). The trial court appointed Terri Asonovich, L.C.S.W., an independent child custody evaluator, to "[d]etermine if alleged abuse of [Leo] or [Mother] by [Father] occurred and if so, whether return of [Leo] to Italy would pose a grave risk of physical or psychological harm to [Leo]."
An eight-day evidentiary hearing on the petition was conducted between July 27 and August 9. At the outset of the hearing, the parties stipulated that Italy was Leo's "habitual residence" at the time of his wrongful removal in February.*fn2 The action proceeded on the only matter at issue: whether Mother could establish, by clear and convincing evidence, that returning Leo to Italy would pose a grave risk of physical or psychological harm, or otherwise place the child in an intolerable situation. (Hague Convention, art. 13(b); 42 U.S.C. § 11603(e)(2)(A); Witherspoon, supra, 155 Cal.App.4th at p. 974.)
Mother's presentation of evidence
Mother was the first witness. She testified that Father was very controlling. He required that Mother "obey him," demanded that she perform tasks the way he required, refused to permit her to work outside the home or to ask him for money, refused to let her get a driver's license for years or to use his car, and forbade her from sharing information about their personal life with friends or family. The family's apartment in Parma was cold and dark because Father imposed strict limits on the use of heat and lighting. He removed all interior doors in the apartment (except in the bathroom) in order to keep an eye on Mother. Father slept late into the day and insisted that Mother and Leo remain quiet while he did so.
Father was very critical of Mother and Leo. He criticized Mother's appearance and her sexual proficiency. He told her she was "damaged goods" and did not know how to love or deserve to be loved. Father regularly "would yell . . . for hours, until the point that [Mother] was crying and unable" to talk. Father's outbursts and criticisms of Mother often took place in front of Leo. Father frequently criticized Leo, calling him a "monello" (Italian for a "bad/naughty" boy). He made fun of his son for crying and told him he was fat. Once in front of their son, Father told Mother she could be Leo's "owner." Father sometimes remained silent and ignored Mother and Leo for days at a time.
Father became extremely angry with Mother on several occasions. It happened once after Mother checked into the cost of a train ticket to visit her sister in Vienna without telling him. Father cornered her in the bathroom, threatening to "become like a beast." Mother was afraid and tried to leave the apartment, but Father physically prevented her from leaving. Another time, Father punched a cupboard next to Mother as he screamed at her in front of Leo. On another occasion, Father cornered Mother in the bathroom and threatened to "beat [her] because violence is the only thing that [she] underst[ood]." More than once, Father taunted Mother, trying to provoke her into hitting him. On one occasion, Father shoved Mother in the back after she went to bed during an argument. Father also pushed Mother on other unspecified occasions. Mother was afraid for her physical safety and for Leo's.*fn3 She also feared Father would follow through on threats to throw Mother and Leo out. In early February Mother went to an anti-violence center in Parma. The staff told her the situation at her home was "dangerous" for her and "particularly dangerous for Leo," and she "should get out . . . as soon as [she] could." Mother did not report Father's abuse to the police in Parma because Father said he had friends on the police force (some of whom she had met), and it was common knowledge the Italian police could be "bought."
Mother observed Father engage in sexually inappropriate behavior with Leo. When Leo was about one year old, Father allowed Leo to place his mouth on Father's penis. Father often stood naked in the bathroom, and Mother saw Leo touch Father's penis many times. She saw Leo put the vacuum cleaner on Father's uncovered penis several times. Father laughed, as though Leo's behavior was funny and cute, or otherwise shrugged off the behavior. Between June and November 2009, about once or twice each week, Mother observed Leo approach Father from behind. Leo spread the cheeks of his father's naked buttocks and tried to lick inside Father's buttocks. Father never told Leo to stop. Mother stopped Leo and pulled him out of the room. Father was sexually aroused by these incidents. Mother told Leo the touching was unacceptable and unsafe and asked Father to cover himself or to talk to Leo; he never did.
When Mother, Leo and Father were staying in Los Angeles in 2008 and 2009, Father insisted that Leo sleep in his own room in the dark with the door closed. Prior to this time, Leo, who was afraid of being alone in the dark, had used a night light and had never slept behind a closed door. Six nights in a row, Father put Leo to bed, turned out the light, closed the door, and held the door closed for over an hour while Leo banged on and kicked at the door, crying and begging to be let out. Father refused to allow Mother to intercede.
After the family returned to Italy in summer 2009, Leo began expressing negative sentiments about himself and engaging in self-injurious behavior. He said things such as "put me in the trash," "I belong in the street," and "I don't like myself." He punched himself "really hard" in the head and stomach, and banged his head on the floor and wall. Once, after Father awoke one afternoon, Leo hid from Father behind Mother in the bathroom. He said he was hiding "because [he] want[ed] to live." Leo tried to protect his mother from his father. In November 2009, Leo grabbed his father's screwdriver and moved toward Father carrying the tool like a knife, repeatedly saying "stay away from mommy," and blocking Father from entering the room Mother was in. Leo often told his mother not to worry and that he would protect her.
Leo's self-injurious behavior escalated after Father began visiting him in Los Angeles in April. After one visit, Leo told Mother he wanted "to die" and said he was "going to kill [him]self." He told Mother he had a "bad heart" and it was "because Daddy has a bad heart." He asked her to "push [him] out of the window," or "put [his] head in the garbage disposal and turn it on," and told his mother he was going downstairs to "get a knife" to "cut [him]self in two." Mother took Leo to the emergency room after that incident.
Father told Mother he had been severely depressed before they met and unable to leave the house or even get out of bed for a year. He suffered from depression, anxiety and sleep deprivation throughout their relationship, but refused to seek counseling. He did see psychiatrists to obtain medication and also took medicine prescribed for Leo's paternal grandmother, who has significant mental health issues of her own.*fn4 Father threatened to commit suicide in Leo's presence on more than one occasion. In addition to his mental health problems, Father suffers from numerous debilitating physical ailments.
Father was arrested and incarcerated for possession and trafficking of cocaine in 1990. He sold hashish and cocaine in Parma during 2009 and 2010 to make money. Mother saw Father use hashish during 2009. He told Mother he used cocaine too that year, but she did not see him do so. Mother used to drink about a bottle of wine per day in Italy, but did not drink in front of Leo, and also used marijuana. She had not used either substance since at least December 28, 2009 and was currently attending Alcoholics Anonymous.
The mental health experts
Asonovich, the court appointed evaluator, testified about the results of her evaluation and expanded on her written report. She reviewed various documents, including emails between Mother and Father, medical records, communications from attorneys and a file prepared by the Department of Children and Family Services (DCFS) regarding its investigation of allegations of sexual and emotional abuse of Leo. She interviewed Leo, his parents, family friends, Leo's therapist and teachers, and Mother's therapist. As a result of her evaluation, Asonovich concluded "there is a grave risk to [Leo] if he were to be returned to Italy."
Asonovich feared that Leo's emotional state was so fragile that he might have a "breakdown," if returned to Father in Italy. There are variety of causes of Leo's problems, which may stem from issues with both parents. For example, Father suffers from various physical and mental ailments, which negatively affect his ability to parent, and he is excessively critical of his wife and son. In addition, Mother admits to a history of alcohol abuse, a problem Asonovich believed Mother minimized. Asonovich had some concern about Mother's "enmeshment" with Leo, and the possibility she might be unable or unwilling to set boundaries for her son.
Asonovich met twice alone with Leo. He said he did not like or want to visit with Father. He said Father was only "pretending to be nice." He did not know why, but his father yelled at Mother and told Leo he was fat. When Asonovich asked Leo when he was going back to Italy, he said he wanted to stay in America forever. He also said, "I'm not going back to Italy. I don't want to. It's not safe there. My daddy is always yelling at my mom." Leo refused to identify even one good thing about Parma and, when asked what one thing he would change in Italy with his father, Leo told Asonovich he "didn't want [Father] to yell" at him. When asked what he would request if given three wishes, Leo said his first wish was "'that daddy was dead,'" and that his second wish would be "'that daddy--daddy is'--something "'a piece of garbage.'" He did not make a third wish. He told Asonovich "'it was always cold in Parma. Dad said don't turn on the heater. Too cold in the winter, too cold to go outside. In the summer it's too hot." Leo said that, if he could take just one person with him in a rocket ship to the moon or to a desert island, he'd choose his "mommy." Asonovich expressed concern that Mother or her family might be causing "alienation" between Leo and his father, or that they might be discussing the case with him.
Mother's and Leo's therapists told Asonovich they believed Father sexually abused Leo. Asonovich reviewed medical records from Leo's trip to the emergency room stating he exhibited signs of Post-Traumatic Stress Disorder (PTSD). The reports state that Leo told the E.R. doctor his father "'made me touch his penis,'" and that he "'licked [his] dad'" [on the] "'bottom.'" Leo told Asonovich there had been "inappropriate contact" between him and his father, but she did not specify the nature of the contact. Leo did not think his father was affectionate enough; i.e., "didn't give him cuddles."*fn5
It was clear to Asonovich that neither parent hit or physically abused Leo. But, when Asonovich met together with Leo and Father together, she observed that "there was something definitely wrong" with Leo's affect during that meeting: "He was agitated, his body was stiff. He was having a hard time sitting down and interacting." Leo's "entire demeanor was very rigid, . . . [and] he seemed stressed." She also testified that Father was "guilting" Leo during the meeting by telling the child that he (Father) cried and missed him (Leo). Father also tried to manipulate Leo into being affectionate with him by telling his son his paternal grandparents missed him and that Father wanted to give Leo a kiss from them.
Asonovich reviewed medical reports prepared by Father's Italian doctors in November 2007, and January and February 2009. Based on those reports, she opined that, "from a clinical standpoint," Father lived in "a chronic state of anxiety and depression . . . that . . . imping[ed] on his functioning as an adult, as a spouse, and also as a father. . . ." Presented at the hearing with a more recent medical report, Asonovich acknowledged there was evidence Father had gained more "autonomy" since February 2009. Asonovich also reviewed a letter from Mother's counsel in Parma, stating she had been told by an unidentified individual that Father had asked that individual to do something illegal, and the attorney feared that Mother's and/or Leo's physical safety or lives might be in danger.
Asonovich made the following recommendations:
"1. Due to the letter from the Italian attorneys, there is a grave risk to [Mother] by [Father].
"2. Due to [Leo's] behaviors, issues regarding emotional abuse by [Father] cannot be ruled out at this time, and returning him to Italy would pose a grave risk of psychological harm to the minor child."
The trial court questioned Asonovich regarding the bases for her
conclusions. Asonovich gave credence to the letter from Mother's
attorney in Italy based on her understanding that an attorney could be
disbarred for fabricating such a document. She also said that,
because there was no way to know if the threats were legitimate, it
was best to err on the side of caution. Asonovich told the trial
court she would be less concerned if Leo were returned to Italy in
Mother's custody, because "his mother would be available" to him.*fn6
She opined that, "right now [Leo] is so polarized
against [Father] that I think he might have a breakdown. Actually,
that's how he appeared when he was in the office." Asonovich was not
able definitively to state that Leo's condition was due to emotional
abuse, as opposed to alienation, and proposed that further
investigation be done.
Radulovic is Leo's therapist. She has diagnosed Leo with childhood PTSD, a disorder developed in response to chronic exposure to severe and significant trauma.*fn7 Leo suffered from ongoing exposure to interpersonal trauma, such as domestic conflict, regular criticism from his father, being forced to stay alone in the dark at night ...