17-466-cv
Davies v. Davies


                             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 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 28th day of December, two thousand seventeen.
PRESENT: BARRINGTON D. PARKER,
                 GERARD E. LYNCH,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
----------------------------------------------------------------------
CHRISTOPHER E. DAVIES,
                                 Petitioner-Appellant,

                   v.                                                                  No. 17-466-cv

SALLY K. DAVIES,
                                 Respondent-Appellee.*
----------------------------------------------------------------------

    FOR PETITIONER-APPELLANT:                               RICHARD MIN, Camhi & Min LLC, New
                                                            York, NY.

    FOR RESPONDENT-APPELLEE:                                VALENTINA SHAKNES (Linda Rosenthal,
                                                            Justine A. Stringer, & Jordan Messeri, of
                                                            counsel), McLaughlin & Stern LLP, New
                                                            York, NY.



*
    The Clerk of Court is directed to amend the official caption as set forth above.


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FOR AMICUS CURIAE:       Lewis J. Liman (Rahul Mukhi, on the
                         brief), Cleary Gottlieb Steen & Hamilton
                         LLP, New York, NY, for Dean Jeffrey L.
                         Edleson, Professor Steven Marans,
                         Professor Evan Stark, Professor Alicia
                         Lieberman, Dr. Luz Towns-Miranda, Dr.
                         Leonard L. Glass, Dr. Marie G. Rudden,
                         The National Association of Social
                         Workers, The Leadership Council on Child
                         Abuse and Interpersonal Violence, The
                         American Psychoanalytic Association, The
                         Confederation         of      Independent
                         Psychoanalytic Societies, and The
                         American Association for Psychoanalysis
                         in Clinical Social Work as amicus curiae in
                         support of Respondent-Appellee.

FOR AMICUS CURIAE:       William C. Silverman, Proskauer Rose
                         LLP, New York, NY; William D. Dalsen
                         (James R. Anderson, on the brief),
                         Proskauer Rose LLP, Boston, MA, for
                         Sanctuary for Families, Legal Momentum,
                         Dr. Jacquelyn Campbell, Domestic
                         Violence Legal Empowerment and Appeals
                         Project, My Sister’s Place, University of
                         Oregon School of Law Domestic Violence
                         Clinic, Her Justice, New York Legal
                         Assistance Group, National Network to
                         End Domestic Violence, Battered Mother’s
                         Custody Conference, Americans Overseas
                         Domestic Violence Crisis Center, and
                         Lawyers Committee Against Domestic
                         Violence as amicus curiae in support of
                         Respondent-Appellee.

FOR AMICUS CURIAE:       Lea Haber Kuck (Emma S. Gardner,
                         Christina A. Pryor, & Eva Y. Chan, on the
                         brief), New York, NY, for Child Justice,
                         Inc., Professor Jennifer Baum, and Safe
                         Horizon, Inc. as amicus curiae in support of
                         Respondent-Appellee.

                     2
      Appeal from a January 26, 2017 judgment of the United States District Court for the
Southern District of New York (Briccetti, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

       Petitioner-Appellant Christopher E. Davies appeals the denial of his petition for
repatriation of his five-year-old son K.D. to French St. Martin1 pursuant to the Hague
Convention on the Civil Aspects of International Child Abduction (“Convention”), as
implemented by the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001–
9011. In July 2016, K.D.’s mother, Respondent-Appellee Sally K. Davies, removed K.D.
from French St. Martin to New York after suffering years of psychological abuse and
increasingly violent behavior from Mr. Davies, much of which occurred in the presence of
K.D. Indeed, Mr. Davies’s uncontrollable anger and abusive behavior was often directed
at K.D.

       Based on documentary evidence and testimony from Ms. Davies, Mr. Davies, nine
other fact witnesses, and five expert witnesses during a nine-day bench trial, the United
States District Court for the Southern District of New York (Briccetti, J.) issued its
findings of facts and conclusions of law denying Mr. Davies’s petition for repatriation of
K.D. See Davies v. Davies, No. 16-cv-6542, 

, at *1–17 (S.D.N.Y. Jan.
25, 2017). There is no dispute that Mr. Davies has set forth a prima facie case for
repatriation of K.D. under the Convention.             See 22 U.S.C. § 9003(e)(1)(A).
Accordingly, the principal issue on appeal is whether Ms. Davies satisfied her burden of
proving, by clear and convincing evidence, that one of the four narrow exceptions to the
Convention’s repatriation provision applies: that the return of K.D. to French St. Martin
would expose him to a “grave risk” of “physical or psychological harm or otherwise place
[him] in an intolerable situation” under Article 13(b) of the Convention. See 

Hague Convention, art. 13(b); Blondin v. Dubois, 

, 156–57
(2d Cir. 2001) (noting that Convention requires repatriation in all but four “exceptional
circumstances” and discussing grave-risk exception).

1
  For the first time on appeal, Mr. Davies argues that the district court should have considered the
possibility of returning K.D. to continental France, where none of the parties have ever lived, rather than to
French St. Martin. Because Mr. Davies’s petition for return specifically requested that the court return
K.D. “to his Habitual Residence of Saint Martin,” J.A. 21, and Mr. Davies did not suggest this possibility to
the district court, we decline to consider this argument in the first instance. See Anderson Grp., LLC v.
City of Saratoga Springs, 

, 50 (2d Cir. 2015) (“It is well settled that arguments not presented to
the district court are considered waived [or forfeited] and generally will not be considered for the first time
on appeal.”).


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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, 

, 418 (2d Cir. 2017).
Additionally, “[t]he district court’s application of the Convention to the facts is subject to
de novo review.” 

the parties’ familiarity with the remaining facts, the
procedural history of the case, and the issues on appeal, which we reference only as
necessary to explain our decision to affirm.

I.     Findings of Fact

        On appeal, Mr. Davies challenges several of the district court’s factual findings,
which “[w]e must accept . . . unless we have a definite and firm conviction that a mistake
has been committed.” Souratgar v. Lee, 

, 103 (2d Cir. 2013) (internal
quotation marks omitted). We also “owe[] particularly strong deference where the district
court premises its findings on credibility determinations.” Mathie v. Fries, 

,
812 (2d Cir. 1997). Therefore, “when 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.” Anderson v. Bessemer City,

, 575 (1985). Having carefully examined the record, we conclude that the
district court’s factual findings challenged by Mr. Davies are not erroneous, much less
clearly erroneous.

       For example, Mr. Davies contends that the district court’s findings concerning a
violent incident on April 15, 2016 are clearly erroneous. Upon review of the testimony of
both Mr. and Ms. Davies, as well as the post-incident photographs and video, which
corroborate Ms. Davies’s testimony, we are not left with “a definite and firm conviction”
that the district court’s findings are mistaken. See 

. The
record amply supports the district court’s findings that Mr. Davies, during an argument
with Ms. Davies, threw a full wine glass at her, shattered a glass door by kicking it in anger
(severely injuring himself in doing so), and subsequently walked around the kitchen while
bleeding profusely to further berate Ms. Davies––as the toddler K.D., awakened by Mr.
Davies’s violent outburst, stood by crying. We also accord “particularly strong
deference,” 

, to the district court’s decision to discredit Mr.
Davies’s version of the events, which it found not “remotely plausible” for reasons that are
apparent from his testimony. Special App. 15; see J.A. 1523–33, 1582–90.

       Mr. Davies also argues that “[t]here is no evidence in the record to support a finding
that K.D. was afraid of [him].” Pet’r Br. 17. We disagree. For example, on one
occasion when Mr. Davies threw laundry in the face of Ms. Davies while he yelled at her,
K.D. hid behind a chair, according to a non-party witness. In any event, although this
Court has considered whether a child fears a parent, among other factors, in repatriation

                                              4
actions under the Convention, “we d[id] not mean to suggest that only evidence of . . . the
child’s fear of a parent can establish a successful Article 13(b) defense.” See 

. Moreover, K.D.’s purported lack of fear of Mr. Davies does not
contradict the district court’s finding that Mr. Davies subjected K.D. to severe and frequent
psychological abuse. Indeed, K.D. demonstrated little fear of his father during one
nevertheless abusive incident just before Ms. Davies fled French St. Martin. Mr. Davies,
in a “shaking” rage, screamed at her and K.D., “corner[ed]” them in K.D.’s bedroom, and
followed them out of the house to the beach, where K.D. drew a (literal) line in the sand
and told Mr. Davies “don’t go over this line, daddy. Stay away from mummy.” J.A.
691–92. Additionally, a non-party witness testified that (i) it was “a pretty regular
occurrence” for Mr. Davies to berate Ms. Davies while “towering over her,” (ii) K.D. was
present during “a high proportion” of these outbursts, and (iii) K.D., when not crying and
becoming upset, would step in front of Ms. Davies and tell his father to “stop yelling at
mommy.” J.A. 1030–31.

       Finally, Mr. Davies emphasizes that the “record . . . clear[ly] demonstrates that
there was no physical violence from [Mr. Davies] against either [Ms. Davies] or K.D.”
Pet’r Br. 19. As an initial matter, this argument is not particularly relevant under these
circumstances because, as the district court found, the abuse here is primarily
psychological in nature, and the district court based its legal conclusions under the
Convention principally on the risk of psychological harm to K.D. We acknowledge, as
the district court did, that Mr. Davies’s “pervasive, manipulative violence . . . left few
physical scars” on K.D. Special App. 35. But the record belies the assertion that Mr.
Davies directed no physically violent behavior toward K.D. and toward Ms. Davies in
K.D.’s presence. Setting aside the disturbing incidents set forth above, Mr. Davies’s
sustained pattern of abusing Ms. Davies in K.D.’s presence included, among other things:
yelling at her and pushing her out of the way while K.D. stood by; ripping K.D. out of her
arms; and screaming in her face because K.D. wanted to sleep with her.2 Mr. Davies also
directed these violent outbursts at K.D., including: spanking K.D. so hard that he left a
hand-print; slamming on his car’s brakes to teach K.D. to put on his seatbelt; screaming
profanities at him; throwing K.D.’s toys and other objects in anger; and forcefully pushing
K.D. out of the room to berate Ms. Davies.3


2
  The district court also found that there was credible evidence that Mr. Davies sexually abused Ms. Davies,
including choking her during sex and engaging in coercive sex. The district court nevertheless accorded
this evidence “little weight” in its analysis because, unlike the remainder of Mr. Davies’s abusive behavior,
the sexual abuse did not directly affect K.D. and could not be corroborated by other fact witnesses.
3
  It is also notable that Mr. Davies, in K.D.’s presence, broke the leg of the family’s puppy by throwing it
across a room, because it urinated in the house.


                                                     5
       Accordingly, we conclude that the district court’s findings of fact are not clearly
erroneous, including its findings (i) that K.D. was subjected to severe and persistent
psychological abuse by Mr. Davies, and (ii) that this abuse would continue if K.D. returned
to French St. Martin.

II.    Conclusions of Law

       As the district court correctly noted, under Article 13(b)’s grave-risk-of-harm
exception to repatriation, “[t]he potential harm to the child must be severe, and the level of
risk and danger required to trigger this exception has consistently been held to be very
high.” 

(alterations and internal quotation marks omitted).
“This grave risk exception is to be interpreted narrowly,” 

marks
omitted)––a rule that the district court was “acutely aware of.” Special App. 32.

        “We have held that Article 13(b) relief could be granted if repatriation posed a grave
risk of causing unavoidable psychological harm to the child,” and “[e]vidence of prior
spousal abuse, though not directed at the child, can support the grave risk of harm defense,
as could a showing of the child’s exposure to such abuse.” 

(alterations, citation, and internal quotation marks omitted). But spousal abuse is relevant
under Article 13(b) only if it “seriously endangers the child,” and the “inquiry is not
whether repatriation would place the respondent parent’s safety at grave risk, but whether
so doing would subject the child to a grave risk of physical or psychological harm.” 

The grave risk inquiry “involves not only the magnitude of the potential harm
but also the probability that the harm will materialize.” 

        As this Court has acknowledged, “these [are] fact-intensive cases,” 

and
“at one end of the spectrum are those situations where repatriation might cause
inconvenience or hardship . . . [and] at the other end of the spectrum are those situations in
which the child faces a real risk of being hurt, physically or psychologically, as a result of
repatriation,” 

. We conclude this appeal presents circumstances
that fall at the latter end of the spectrum.

       Reviewing de novo the district court’s application of Article 13(b) to its
well-supported factual determinations, we affirm its decision to deny the petition for
repatriation because returning K.D. to French St. Martin would, by clear and convincing
evidence, expose him to a grave risk of psychological harm. Based on Mr. Davies’s
psychological abuse of not only K.D., but also of Ms. Davies in K.D.’s presence, we find
no error in the district court’s conclusions as to the magnitude of the potential
psychological harm to K.D.––“severe”––and the probability of that harm materializing if
he returned to French St. Martin––“a near certainty.” Special App. 35; see 

. This conclusion is not based on “[s]poradic or isolated incidents,” or

                                              6
“conjecture and speculation” of abuse, 

–04; rather, as the
district court explained, it is premised on “overwhelming evidence of Mr. Davies’s extreme
violence and uncontrollable anger, as well as his psychological abuse of Ms. Davies over
many years, much of which was witnessed by K.D., and the fact that Mr. Davies frequently
screamed and yelled at K.D. for no legitimate reason.” 4 Special App. 34 (emphasis
added). Like the district court, we find alarming Mr. Davies’s escalation of violence
immediately prior to the departure of K.D. and his increasingly hostile threats since then.
If K.D. returned and Mr. Davies were to follow through on his threat “that there was no
amount of money that he would take to exact his revenge on [Ms. Davies],” J.A. 642––and
there is clear and convincing evidence that he would––there is no doubt K.D. would suffer
grave psychological harm.

        Finally, we identify no error in the district court’s conclusion that there are no
ameliorative measures that would protect K.D. from harm if he returned to French St.
Martin. See 

n.11 (“[B]efore a court may deny repatriation on the
ground that a grave risk of harm exists under Article 13(b), it must examine the full range
of options that might make possible the safe return of a child to the home country.”). The
district court heard testimony from four expert witnesses concerning the protections
afforded to victims of domestic violence (children and spouses) under French St. Martin’s
legal system. Moreover, the district court was in the best position to evaluate Mr.
Davies’s credibility about abiding by certain ameliorative measures (such as a stay-away
order), which was marred by (i) his deceit and manipulation of the legal system in French
St. Martin, (ii) his untruthfulness and unwillingness to accept responsibility for his actions
while testifying, and (iii) his escalating threats toward Ms. Davies even after their
separation. The day before Ms. Davies and K.D. left French St. Martin, Mr. Davies told
her that he would rather take all their money, burn it, and kill himself than resolve their
dispute “through the courts.” J.A. 694. We decline to disturb the district court’s careful
and thorough evaluation of the ameliorative measures.




4
  Accordingly, we need not decide whether Dr. Brandt’s testimony that K.D.’s return to French St. Martin
“would set off a tremendous traumatic reaction in” him, J.A. 538, but without a formal diagnosis of
post-traumatic stress disorder, suffices to demonstrate a grave risk of psychological harm standing alone.
See 

(holding, upon de novo review, that almost certain recurrence of
post-traumatic stress disorder in children satisfied Article 13(b)’s grave-risk requirement).


                                                    7
                                        ***

      We have considered Mr. Davies’s remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of the district court.

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk of Court




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