Wednesday, December 7, 2011
Court of Appeal Orders Mother to Return Abducted Child to Italy
By SHERRI M. OKAMOTO, Staff Writer
A mother who abducted her young son must return the child to Italy, where her estranged husband lives, even though doing so could potentially poise a grave risk to the boy’s psychological health, the court of appeal for this district has ruled.
Div. One on Monday acknowledged the child’s fragile emotional state, but said his mother—an American citizen identified in the decision as L.C.—should not be rewarded for her misconduct in bringing her child to Los Angeles and that Italian authorities are capable of addressing the needs of the troubled six-year old boy.
The child, identified as Leonardo R., was born and raised in Parma, Italy. Last February, L.C. brought the child with her to America without the knowledge or consent of her husband, identified as Maurizio R.
After her arrival, L.C. filed for legal separation in the Los Angeles Superior Court seeking custody of Leonardo and monitored visitation for Maurizio. He, in turn, filed a petition for return of minor child under the Hague Convention.
Back in Italy, Maurizio also filed a charge which led to the initiation of a criminal prosecution against L.C. for child abduction.
An eight-day evidentiary hearing on the Hague Convention petition was conducted last summer before Los Angeles Superior Court Judge Marjorie Steinberg, and the only disputed issue was whether L.C. could establish, by clear and convincing evidence, that returning Leonardo to Italy would pose a grave risk of physical or psychological harm.
L.C. testified that Maurizio was emotionally abusive to her and Leonardo, and physically abusive to her. She also claimed Maurizio had engaged in sexually inappropriate behavior with the child.
A court-appointed evaluator said she feared Leonardo would suffer a “breakdown” if he were returned to his father. Her concerns would be lessened, she said, if Leonardo’s “mother would be available” to him.
Leonardo’s therapist, who had diagnosed him with childhood post traumatic stress disorder, opined that the boy had suffered from ongoing exposure to interpersonal trauma which was “verbally…linked…to his father.” The therapist said “suicidality would be a big concern” if Leonardo were returned to his father, in light of the child’s expressions of self-loathing and worthlessness, and his unequivocal statements that he would “never go back to Italy.
Maurizio denied all of L.C.’s allegations, but at the conclusion of the evidentiary hearing on the petition, Steinberg found it was “plain that this child has undergone, or suffered, or had experiences that have created in him a great deal of fear and anxiety about his father.”
Finding of Injury
Based primarily on the testimony and report of the court-appointed evaluator and the therapist, Steinberg concluded Leonardo would be “very, very injured if he were turned over to his father’s custody at this point—or if he were taken away from his mother’s custody, let me put it that way.”
She said, however, that the existing risk could be mitigated if L.C. was able to care for and retain custody of Leonardo “for a sufficient period of time for the Italian court to proceed to make whatever evaluation it deemed appropriate.” In order to allow this to happen, Steinberg directed Maurizio to ensure the criminal charges against L.C. in Italy “have been withdrawn or dismissed and [L.C.] will not be under threat of being arrested or prosecuted if she returns to Italy.”
Writing for the appellate court, Justice Jeffrey W. Johnson said sufficient evidence supported Steinberg’s finding that returning Leonardo to Italy posed a grave risk of psychological harm to the child, given the uncontroverted testimony of the mental health professionals who examined him.
But, he explained, the “safe return of an abducted child to his or her country of habitual residence is always the overriding goal in an action under the Hague Convention” and so Leonardo had to return to Italy if any enforceable conditions could be fashioned to mitigate the risk of harm occasioned by the child’s repatriation.
The justice said the trial court “made a laudable effort to resolve the difficult dilemma with which it was faced” however “the undertakings upon which it conditioned Leo’s return pose two insurmountable problems” since “their implementation is dependent on Mother’s cooperation, thereby allowing her to thwart them should she choose to do so, and…they require Father to deliver something beyond his control.”
Joined by Presiding Justice Robert M. Mallano and Justice Victoria G. Chaney, Johnson directed Steinberg, on remand, to craft a different set of conditions in order to protect Leonardo’s mental health pending the outcome of custody proceedings in Italy.
Father was represented by Christopher C. Melcher and Jennifer L. Musika of Walzer & Melcher, while mother’s counsel was Peter A. Lauzon and Sharon Stark of Phillips, Lerner & Lauzon.
The case is Maurizio R. v. L.C., 11 S.O.S. 6520.
Copyright 2011, Metropolitan News Company