Eidem v. Eidem ( 2019 )

19-1417
Eidem v. Eidem
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 10th day of December, two thousand nineteen.
PRESENT:
DENNIS JACOBS,
SUSAN L. CARNEY,
MICHAEL H. PARK,
Circuit Judges.
_________________________________________
PER MAGNE EIDEM,
Petitioner-Appellee,
v. No. 19-1417
DANA MARIE EIDEM,
Respondent-Appellant.
_________________________________________
FOR PETITIONER-APPELLEE: ARI H. GOURVITZ, (Elliot H. Gourvitz, on
the brief), Gourvitz & Gourvitz, LLC,
Springfield, NJ.
FOR RESPONDENT-APPELLANT: CHARLES D. COLE, JR., Newman Myers
Kreines Gross Harris, P.C., New York,
NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Sullivan, J.).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on April 29, 2019, is
AFFIRMED.
Respondent-Appellant Dana Marie Eidem (“Dana Marie”) appeals from a judgment
of the United States District Court for the Southern District of New York (Sullivan, J.),
granting the application of Petitioner-Appellee Per Magne Eidem (“Per Magne”) for an
order directing the return of his two sons to Norway. Per Magne makes this request under
the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980,
T.I.A.S. No. 11670, (the “Hague Convention” or “Convention”); see 22 U.S.C. §§ 9001 et seq.
(domestic implementing legislation). The children currently reside with Dana Marie, their
mother, in New York.
Dana Marie does not appeal the District Court’s ruling that Norway is the “habitual
residence” of the children under applicable case law from this Circuit. See Gitter v. Gitter, 396
F.3d 124, 130-31 (2d Cir. 2005). Rather, she appeals only the District Court’s ruling with
respect to her “grave risk” defense, which prevents signatory States from ordering the return
of a child when “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)
(“grave risk” defense). We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal, to which we refer only as necessary
to explain our decision to affirm the District Court’s ruling.
The parties do not contest the basic underlying facts. In 2008, Dana Marie and Per
Magne, then married, had their first child, T.E., in Norway. Shortly after T.E.’s birth, he was
diagnosed with Hirschsprung’s disease, a condition in which nerves in parts of the intestine
are missing. As a result of his disease, when very young, T.E. underwent a “pull-through”
surgery at a hospital in Trondheim to remove part of his colon. In 2010, the parties had their
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second child, N.E., who has struggled academically from a very young age. Both children
require psychological care.
In June 2013, Dana Marie sought legal separation from Per Magne in Norway courts.
The parties agreed to share custody of the children. Three years later, during the summer of
2016, Per Magne consented to Dana Marie traveling with the children to the United States
for a one-year period, and Dana Marie and the children came to New York City. In January
2017, Per Magne began making arrangements with Dana Marie for the children’s eventual
return to Norway. Dana Marie informed Per Magne that she would return with the children
to Norway on August 8, 2017. On that day, Per Magne went to meet them at the airport
where they were expected, but they did not appear. Still in New York City, Dana Marie
proceeded to cut off all communication with Per Magne. On July 6, 2018, Per Magne
petitioned in the United States District Court for the Southern District of New York for the
children’s return.
On April 29, 2019, after an evidentiary hearing, the District Court granted Per
Magne’s petition and ordered that the children be returned to Norway by June 29, 2019. The
District Court determined that Per Magne had established a prima facie case for return, and
that Norway was the children’s habitual residence. It rejected Dana Marie’s “grave risk”
defense, concluding that she did not sustain her burden of proof and that she lacked
credibility.1 The District Court found further that Dana Marie failed to establish that medical
care in Norway “is so lacking” as to pose a grave risk to T.E.’s health or that the children
would be deprived of adequate psychological care upon their return to Norway. Eidem v.
Eidem, 382 F. Supp. 3d 285, 293-94 (S.D.N.Y. 2019).
1 The District Court declined to credit Dana Marie’s testimony in light of her admission to making a false
statement to the court: Dana Marie admitted that she testified falsely when she insisted to the court that she
brought the children to a hearing because the babysitter cancelled the engagement, but in fact, she had never
talked with a babysitter about watching the children while she was in court. See Eidem, 382 F. Supp. at 288-89.
This court gives “strong deference where the district court premises its findings on credibility
determinations.” Mathie v. Fries, 121 F.3d 808, 812 (2d Cir. 1997) (citation omitted); see also Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985) (“[W]hen a trial judge’s finding is based on his decision to credit the testimony
of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not
contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear
error.”).
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“We review the district court’s interpretation of the Convention de novo and its factual
findings for clear error.” Marks v. Hochhauser, 876 F.3d 416, 418 (2d Cir. 2017). We also
review de novo “[t]he District Court’s application of the Convention to the facts,” including its
determination of whether a grave risk of harm has been shown. See Blondin v. Dubois, 238
F.3d 153, 158 (2d Cir. 2001) (“Blondin II”) (emphasis in original).
Because of the strong presumption that children should be returned to the place of
their “habitual residence,” we interpret the grave risk defense narrowly. Blondin v. Dubois, 189
F.3d 240, 245-46 (2d Cir. 1999) (“Blondin I”). As we have observed elsewhere, an overly
permissive acceptance of the affirmative defense “would lead to the collapse of the whole
structure of the Convention by depriving it of the spirit of mutual confidence which is its
inspiration.” Id. at 246 (citation omitted). The respondent bears the burden of establishing
the applicability of the “grave risk” defense by clear and convincing evidence. See 22 U.S.C. §
9003(e)(2)(A).
On appeal, Dana Marie argues that (1) the District Court incorrectly relied on post-
hearing submissions offered by Per Magne and medical experts to determine that the
children would not be at grave risk if returned to Norway; and (2) the record, absent the
post-hearing submissions, clearly establishes that an order directing the children’s return to
Norway would place them at grave risk. She maintains that, in Norway, the children would
have limited access to medical treatment and emergency services (for T.E.), and
psychological supports for both children, each of whom has unique mental health and
learning needs.
Setting aside the post-hearing submissions, we conclude that the record, as it existed
after the October 8, 2018 hearing, establishes that the children would not be at grave risk if
returned to Norway. Dana Marie failed to establish by clear and convincing evidence that in
Norway the children would receive inadequate medical and psychological care. Neither Dana
Marie nor the medical experts she relied upon took the position that in Norway, T.E. would
not have any treatment or care for his disease. In fact, one of Dana Marie’s experts noted
that there are “renowned and experienced pediatric surgeon[s]” in Norway, such as T.E.
might require. J.A. at 559-60. Rather, Dana Marie’s position seems to be that in Norway, the
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medical care available would be less than optimal, especially as compared to his treatment in
the United States. But, as the District Court noted, less than optimal medical care does not
equate to grave risk and is not the standard set for permitting a parent to remove a child
from his habitual residence. Eidem, 382 F. Supp. 3d at 293 (“[T]he narrow question before
the Court is not whether [the doctors in New York] are best suited to manage T.E.’s
condition, but whether access to medical care in Norway is so lacking as to pose a grave risk
to T.E.’s health.”). In Blondin II, we ruled that the “grave risk” defense does not apply to
“those situations where repatriation might [merely] cause inconvenience or hardship.” 238
F.3d at 162. We agree with the District Court, therefore, that Dana Marie did not establish
by clear and convincing evidence that T.E. would receive inadequate medical care in Norway
and would thus be subject to “grave risk.”
As to the children’s psychological care, the District Court reasonably credited the
conclusion of Dr. Rahtz, a psychiatric evaluator who testified on Dana Marie’s behalf. Dr.
Rahtz raised concerns about disrupting the children’s current support and care network in
New York. But the District Court put the calculus appropriately: While disrupting the
children’s current mental health treatment may not be desirable,
the children had to undergo a similar disruption when [Dana
Marie] first pulled them out of their mental health treatment
programs in Norway and took them to the United States.
Indeed, there is reason to believe that a return to Norway—
where the children lived for the first eight and six years of their
lives, and where the vast majority of their family resides—would
be less traumatic than the original trip to the United States.
Eidem, 382 F. Supp. 3d at 294.
We therefore conclude that the record demonstrates that Dana Marie did not carry
her burden of establishing her grave risk defense by clear and convincing evidence. Having
done so, we need not decide whether the District Court was correct to refer to post-hearing
submissions in its decision and order.
* * *
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We have considered Dana Marie’s remaining arguments and conclude that they are
without merit. Accordingly, the judgment of the District Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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