IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Inthe Matter ofthe Application of MARIE-CATHERINE SMITH, a/k/a MARIE-CATHERINE KOHEN, No. 71130-0-1 DIVISION ONE UNPUBLISHED OPINION o
Respondent, ro and ELIKA KOHEN, Appellant. FILED: January 12, 2015 LP

Trickey, J. — A trial court does not err in granting a petition to return minor children to their "habitual residence" pursuant to the Hague Convention on the Civil 

### Aspects of International Child Abduction when the petitioner has demonstrated by a 

### preponderance ofthe evidencethatthe childrenwerewrongfully removed. Accordingly,
we affirm the trial court's ordergranting Marie-Catherine Smith's petition to return the children to Canada and denying Elika Kohen's motion to dismiss.
FACTS 

### Thefollowing facts arenot in dispute. Kohen, a United Statescitizen, and Smith,
a Canadian citizen, were married on February 1, 2010 in New York. At the time of the 

### marriage, Kohen and Smith lived in Canada with Kohen's seven-year-old son from a former relationship, H.K. In August 2010, Kohen, Smith, and H.K. moved to Seattle where Kohen had ajob opportunity. Kohen and Smith's daughter, A.M.K., wasborn on 

### September 12, 2010 in Seattle. The couple struggled financially because Kohen soon or"rj

cS~b-No. 71130-0-1/2 lost his job and Smith did not have authorization to work in the United States. Consequently, on February 5, 2012, Smith returned to Canada with H.K. and A.M.K. in order to live with her parents, while Kohen remained in the UnitedStates. On March 15, 2012, Smith gave birth to the couple's second daughter, L.M.K., in Canada. After Kohen rejoined the family in Canada in July 2012, Smith supported the family with her job managing a Starbucks because Kohen did not have authorization to work in Canada. At some point, Kohen and Smith discussed moving back to the United States. With Smith's consent, Kohen purchased round-trip airline tickets from Montreal to Seattle forhimself, H.K., A.M.K., and L.M.K., departing on July 2, 2013, and scheduled to return on October 2, 2013. On August 12, 2013, Smith notarized a documentstating the following: I. Marie-Catherine H.A. Kohen. residing at 1800 Rue CrevierAPT 4. SaintLaurent. Quebec. H4L 2X5. Canada, hereby appoint Elika S. Kohen, residing at 3324 Wetmore Ave.. Everett. WA. 98201. United States, as my 

### as my [sic] Attorney-in-Fact ("Agent") to actin my capacity toany and all ofthe following: 

### 1. Due to my temporary absence, (pending immigration to the United 

### States), Iam hereby affirming Elika S. Kohen's authoritywith thefollowing extents, concerning thechildren: [H.K.]. . . [A.M.K.]... and [L.M.K.]: a. To make and maintain applicable life, health, and dental insurance policies. b. To make doctor's appointments and to make decisions for medical treatment. c. To file and make requests for United States and Canadian birthcertificates, visas, and passports for our children. d. To file for and request Social Security Numbers within the United States, and Social Identification Numbers inCanada. e. To provide enrollment into school and childcare. f. To make travel arrangements when necessary.No. 71130-0-1/3 The rights, powers, and authority, as myAttorney-in-Fact and "Agent," to exercise any and all of the rights and powers herein granted shall commence and be in fullforce and effectfrom July 3rd. 2013.[1' Shortly thereafter the couple's relationship began to deteriorate and Smith told Kohen she no longer desired to move to the United States and wanted the children to remain with her in Canada. On September 27, 2013, Kohen filed a petition for dissolution in Snohomish County SuperiorCourt.2 Kohen did notreturn to Canada with 

### the children using the return airline tickets on October 2, 2013. The following day, 

### Smithfiled anapplication for return ofthechildren with theUnited StatesDepartmentof

State. On November 1,2013, Smith filed a petition in Snohomish County SuperiorCourt 

### asserting that Kohen had wrongfully removed A.M.K. and L.M.K. from their habitual residence in Canada and requesting their return under the Hague Convention on the 

### CivilAspects ofInternational ChildAbduction. In supportofherpetition, Smith attached herown sworn declaration in which she stated thatduring Augustand September2013, afterKohen leftfor the United States with the children, he told her she would nolonger be able to see the children, refused to allow her to speak to A.M.K. on the telephone, 

### and informed her hewould not bring thechildren backtoCanada. Smith stated, "Had I 

### known [Kohen] would do this, Iwould have never consented to his departure from Canada with our children."3

1Clerk's Papers (CP) at 39. 

### 2The parties stipulated to a stay ofthe dissolution proceedings pending the outcome ofthe Hague Convention petition. 3 CP at 149.No. 71130-0-1/4
Kohen filed a response to the petition, consisting of an unsigned, unsworn declaration and several unauthenticated attachments, including nearly 50 pages of emails between the couple. Kohen also filed a motion to dismiss the petition, consisting of his own unsworn declaration and several unauthenticated attachments, some of which are the same as in his response to the petition.4 Ahearing on Smith's petition was held on November 13, 2013.5 Thetrial court granted Smith's petition and ordered A.M.K. and L.M.K. be returned to Canada. The
trial court found: 1. The children were wrongfully removed from their habitual residence of Canada by the respondent father on or about October 3,2013. 2. The petitioner mother had rights ofcustody, and was exercising those rights at thetime ofthewrongful removal ofthe children. 3. The application for return of the children was brought within one year of their removal. 

### 4. The petitioner mother did not acquiesce orconsent to theremoval ofthe children. 

### 5. The respondent father's claim of abuse is unsubstantiated, and even if substantiated, does not rise to the level of "grave harm" as contemplated bythe Convention. 6. Therespondentfather's claim ofsignificantdangerin Canada isnot substantiated. 7. The father shall turn over the children's passports to the mother's 

### attorney by 5 pm on November 13, 2013. The children shall return tothe 4Though the grounds upon which Kohen moved to dismiss the petition are not entirely clear from therecord, Kohen's opening briefcharacterizes it as a CR 12(b)(6) motion todismiss for failure to state a claim. 

### 5Although it appears the trial court heard testimony, the record contains only declarations and documents submitted by the parties.No. 71130-0-1/5
habitual residence of Canada within 72 hours, without interference. The mother's designee shall travel to the U.S. to retrieve the children. 8. Neither party shall discuss the case with the children, otherthan to let them knowthat theywill be returning to Canada with their mother. 9. The costs and expenses of the mother's designee for her airfare, hotel, car rental, children's expenses, and similar expenses, shall be reserved for the Canadian court. 10. Attorney's fees incurred bypetitioner are reserved for the trial court in Canada.161 

### On the same day, the trial court denied Kohen's motion to dismiss the petition, and ordered Kohen to pay Smith $1,000 in attorney fees. Kohen appeals thetrial court's 

### orders granting Smith's petition, denying his motion todismiss, and ordering attorney
fees. ANALYSIS This courtreviews a trial court's findings of factfor substantial evidence. In re Marriage of Schweitzer, 132 Wn.2d 318, 329, 937 P.2d 1062 (1997). "Substantial 

### evidence is thatwhich issufficientto persuade a fair-minded person ofthetruth ofthe matter asserted." Katare v. Katare. 175Wn.2d 23, 35, 283 P.3d 546(2012). "The party 

### challenging a finding of fact bears the burden of demonstrating the finding is not 

### supported by substantial evidence." Nordstrom Credit. Inc. v. Dep't of Revenue, 120 Wn.2d 935, 939-40, 845 P.2d 1331 (1993). Ifsubstantial evidence supports thefinding, it does not matter that other evidence may contradict it, because credibility determinations are left to the trier of fact and are not subject to review. State v.

e CP at 13-14.No. 71130-0-1/6
Camarillo. 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We review conclusions of law de

novo. Sunnvside Vallev Irr. Dist. v. Dickie. 149 Wn.2d 873, 880, 73 P.3d 369 (2003). A trial court's decision "is presumed to be correct and should be sustained absent an affirmative showing of error." State v. Wade. 138 Wn.2d 460, 464, 979 P.2d 850 (1999). The party presenting an issue for review has the burden ofproviding a record adequate to establish the errors claimed. Wade, 138 Wn.2d at 464; see also RAP 9.2, 9.9, 9.10. An "insufficient record on appeal precludes review of the alleged errors." Bulzomi v. Deo't of Labor & Indus.. 72 Wn. App. 522, 525, 864 P.2d 996 

### (1994). Pro se litigants are held to the same standard as attorneys and must comply with all procedural rules onappeal. In reMarriage ofOlson. 69Wn. App. 621, 626, 850 P.2d 527 (1993).
Return ofthe Children 

### The United States is a party to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 49 

### (hereinafter Hague Convention). In 1988, Congress implemented the provisions ofthe Hague Convention in the International Child Abduction Remedies Act (ICARA), former 42 U.S.C. sections 11601-11610 (reclassified as 22 U.S.C. sections 9001-9011, 

### effective Dec. 16, 2014). Aprimary goal of the Hague Convention is to secure the 

### prompt return ofchildren wrongfully removed to orretained in any contracting country. 

### Hague Convention, art. 1; 22 U.S.C. § 9001. The Hague Convention's focus is notthe underlying merits ofacustody dispute butinstead whetherachild should be returned toNo. 71130-0-1/7 a country forcustody proceedings under that country's laws. Holder v. Holder. 392 F.3d 1009, 1013 (9th Cir. 2004). To establish that a child has been wrongfully removed or retained, a petitioner must establish, by a preponderance ofevidence, that (a) it is in breach of rights of custody attributed to a person, an institution or any other body, eitherjointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time ofremoval orretention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. 

### Hague Convention, art. 3; 22 U.S.C. § 9003(e)(1)(A). Ifthe removal orretention was 

### wrongful, thenthe courtmustorderthe child returned to his orherhabitual residencefor
a custody determination, unless the respondent can establish one of the following exceptions: (1) more than one year haspassed since the wrongful removal orretention and the child is settled in his or her new environment; (2) the petitioning parentwas not 

### actually exercising custody rights at the time of the removal or retention; (3) the petitioning parent had consented to or subsequently acquiesced in the removal or retention; (4) thechild objects tobeing returned and is ofan ageand maturity level at which it is appropriate totake accountofhis orherviews; (5) there is a "grave risk" that thechild's return "would expose thechild tophysical orpsychological harm orotherwise 

### place the child in an intolerable situation;" or (6) the return of the child would be inconsistent with "fundamental principles

. . . relating to the protection ofhuman rights and fundamental freedoms". Hague Convention, arts. 12, 13, 20. The respondentNo. 71130-0-1/8 bears the burden of proving the first four exceptions by a preponderance of the evidence and the last two exceptions by clear and convincing evidence. 22 U.S.C. § 9003(e)(2). Kohen challenges the trial court's finding that Canada was A.M.K. and L.M.K.'s "habitual residence." He argues that Canada was not the children's habitual residence because Smith clearly intended to move from Canada to the United States. He further claims that the trial courtmisapplied the law whenit determined the children's habitual residence based on the "home state" concept of the Uniform Child Custody Jurisdiction 

### and Enforcement Act (UCCJEA), chapter 26.27 RCW, rather than the Hague
Convention. 

### Neitherthe Hague Convention nor ICARA defines the term "habitual residence." 

### In determining whether achild has acquired a new habitual residence, there mustfirst be a "'settled intention to abandon the one left behind.'" Holder, 392 F.3d at 1015 

### (quoting Mozes v. Mozes. 239 F.3d 1067, 1075-6 (9th Cir. 2001)). There mustalso be (1) an actual change in geography, and (2) the passage of an appreciable period of time, onesufficientfor acclimatization. Mozes, 239F.3d at 1078. 

### Though labeled as a finding of fact, the trial court's determination that the children's habitual residence is Canada is actually a conclusion oflaw. Holder, 392 F.3d at 1015. Butthetrial court's conclusion issupported bythe factsin therecord. On the date that Kohen took the children to Seattle, A.M.K. had lived in Canada for the past 17months and L.M.K. had lived in Canada her entirelife. Moreover, the evidence does 

### not support Kohen's claim that the United States has become the children's habitual

8No. 71130-0-1/9 residence. Though Smith and Kohen discussed moving to the United States with the children, because Smith ultimately told Kohen she wanted the children to live with herin Canada, their intentions regarding the move cannotpossibly be described as "settled." Similarly, there is no evidence in the record before us that the trial court 

### misapplied the law when determining the children's habitual residence. Smith's memorandum oflaw supporting her petition accurately summarizes the factors a trial court is to consider in determining a child's habitual residence under the Hague Convention. Kohen does notprovide a verbatim report ofproceedings for the hearing, 

### which may have provided more contextforthe trial court's decision-making process. In the absence of an affirmative showing oferror, we presume thetrial court's decision to
be correct. 

### Kohen argues thetrial courterred in orderingA.M.K. and L.M.K.'s return because Smith "was not actually exercising

. . . custody rights at the time of removal or retention," or had "consented to or subsequently acquiesced in the removal or 

### retention."7 In supportofthis claim, Kohen relies on the notarized document signed by 

### Smith giving him the power to enroll the children in daycare, make their medical 

### appointments, and apply for their Social Security numbers while she remained in
Canada. 

### The Hague Convention does not define the "exercise" ofrights ofcustody. The Sixth Circuit has stated that "in the absence of a ruling from a court in the country of

Br. ofAppellantat 5(emphasis omitted) (quoting Hague Convention, art. 13).No. 71130-0-1/10
habitual residence," the "only acceptable solution

... is to liberally find 'exercise' whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child." Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6thCir. 1996) (Friedrich II). The court went on to hold that "ifa person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Friedrich II. 78 F.3d at
1066. Neither party disputes that Smith, as A.M.K. and L.M.K.'s mother, possessed 

### custody rights with respect to the children. And the facts clearly indicate that Smith continued to exercise those rights during the time thatA.M.K. and L.M.K. were in the United States with Kohen. For example, Smith attempted to maintain telephone contact with the children, butKohen refused to allow her to do so. Moreover, Smith worked to ensure that the children's medical and educational needs would be met bygiving Kohen 

### thewritten authoritytodo things shecould notwhile in Canada. There is no evidence in the record that Smith intended a "clear and unequivocal abandonment" ofA.M.K. and 

### L.M.K. by remaining in Canada and permitting Kohen to take the children to the United

States.

### The Hague Convention is equally silent on the terms "consent" and 

### "acquiescence," but case law distinguishes the two defenses, providing that "[t]he consent defense involves the petitioner's conduct prior to the contested removal or 

### retention, while acquiescence addresseswhetherthepetitioner subsequently agreed to

10No. 71130-0-1/11 or accepted the removal or retention." Baxter v. Baxter. 423 F.3d 363, 371 (3rd Cir. 2005) (citing Gonzalez-Caballero v. Mena. 251 F.3d 789, 794 (9th Cir. 2001)). When examining a consent defense, a court considers what the petitioner actually agreed to when allowing the child to travel outside ofhis or her country ofresidence and the 

### scope of the petitioner's consent. Baxter. 423 F.3d at 371. Aparent may consent to removal of a child for a period oftime, undercertain conditions or circumstances, but that does not make retention of the child beyond those conditions or circumstances 

### necessarily permissible. Baxter, 423 F.3d at370-1. Apetitioner's conductfollowing the removal of a child is a key factor in ascertaining whether suchconsentwasprovided at the time ofremoval. Gonzalez-Caballero. 251 F.3d at 794. Acquiescence, on the other 

### hand, hasbeen held torequire "an act orstatementwith therequisite formality, such as 

### testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude ofacquiescence over a significant period oftime." Friedrich II, 78 F.3d at 1070 (footnotes omitted). Kohen fails to meet his burden to prove the defense of consent or acquiescence 

### by a preponderance of the evidence. Evidence in the record shows that Smith consented to the children's removal from Canada for a period oftime and on the 

### assumption that she would be able to stay in communication with them. But Kohen informed Smith that he would notreturn the children to Canada and cutoffher contact with them. Because the condition on which Smith consented to the children moving to the United States was not met, there is no basis to conclude that she consented to Kohen's retention ofthe children in the United States. Moreover, Smith's conduct after

11No. 71130-0-1/12
Kohen failed to return with the children is not consistent with that of a parent who has consented or acquiesced to her children remaining in the United States. The day after Kohen did not utilize the return airline tickets, Smith requested that the United States government intervene to secure the children's return. Because Kohen does not 

### establish anexceptionto thechildren's return, thetrial courtdid noterr.8 Kohen argues the trial court erred in refusing to continue the hearing on the 

### petition so that he could have more time to prepare. Because the record does not demonstrate that Kohen ever requested a continuance, we find no error. 

### Finally, Kohen contends that the proceedings violated his right to due process. BecauseKohen fails toidentify the basiccomponents of a due processclaim orsupport 

### this claimwith argumentorrelevantauthority, we declineto addressthis issue.
Kohen's Motion to Dismiss Kohen contends the trial court erred in denying his motion to dismiss the petition. We review a trial court's decision on a CR 12(b)(6) motion de novo. Cutler v. Phillips Petroleum Co.. 124 Wn.2d 749, 755, 881 P.2d 216 (1994). A CR 12(b)(6) motion 

### "questions only the legal sufficiency of the allegations in a pleading." Brown v. MacPherson's. Inc., 86 Wn.2d 293, 298 n.2, 545 P.2d 13 (1975). Dismissal is 

### appropriate only if "it appears beyond doubt that the plaintiffcannot prove any set of facts which wouldjustify recovery." Tenore v. AT&T Wireless Servs., 136Wn.2d 322, 8Kohen further argues that his retention ofthe children in the United States was "unavoidable," because atemporary orderentered in the dissolution action on September23, 2013 prevented him from removing the children from Snohomish County, and this should thereby constitute an 

### exception to their return. As Kohen was the party that initiated the dissolution action, this argument is unconvincing.

12No. 71130-0-1/13 330, 962 P.2d 104 (1998). In other words, the purpose of CR 12(b)(6) "is to weed out complaints where, even if that which the plaintiff alleges is true, the law does not provide a remedy." Alexanderv. Sanford, 181 Wn. App. 135, 142, 325P.3d 341 (2014). BecauseSmith stated a cognizable claimthat thechildren werewrongfully removed, the trial court did not errin refusing to dismiss the petition.9 Attorney Fees Kohen assigns error to the trial court's imposition ofattorney fees in relation to his motion to dismiss.10 However, in his brief Kohen fails to offer any argument or 

### authority supporting this assignment of error. Accordingly, we need not address the issue. RAP 10.3(a)(6).
Affirmed. 

# Tri&^o} t "J

WE CONCUR: 

# I^W V

sKohen argues that in the alternative, the trial court should have called for a more definite statement. This argument is meritless because Smith's petition is not legally insufficient, nor is 

### there any evidence in the limited record before us that Kohen requested a more definite statement. 10 Kohen also contends that the trial court awarded Smith attorney fees related to the Hague 

### Convention petition. However, the record is clearthat asidefrom the $1,000 imposed relatedto the motion to dismiss, thetrial court reserved the issue of attorney fees for thetrial court in Canada to determine.

13