Filed 4 / 29 / 21 Marriage of Emilie D.L. M. and Carlos C. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of EMILIE D.L.M. and CARLOS C

. 2d Civ. No. B304344 (Super. Ct. No. 19FL

- 0484) (San Luis Obispo County)

EMILIE D.L.M

,
Respondent,

v.

CARLOS C.

,
Appellant.

Carlos C. appeals an order of the family law court denying
his petition filed pursuant to the Hague Convention on the Civi l Aspects of International Child Abduction (the Hague Convention). (22 U.S.C. § 9001 et seq.) 1 W e conclude that Carlos

1 All further statutory references are to Title 22 of the United States Code.2

C. did not bear his burden of establishing the existence of ameliorative measures to ensure his children’s safety and affirm. This app eal concerns an international custody dispute involving the two minor children of an American mother and a Chilean father. In 2016, the parties relocated to Chile from
Califo rnia. There, the mother, Emilie D.L.M. , was subjected to
acts of domestic violen ce and emotional abuse by her husband
Carlos C. , sometimes committed in the presence of the children. Frequently, the violence was occasioned by Carlos C. ’s excessive alcohol consumption . Following an unsuccessful family vacation to California in 2019, E milie D.L.M. and the children refused to return to Chile. She then filed a petition t o dissolve the marriage
and requested a domestic violence restraining order. In response,
Carlos C. filed a petition for the return of the children to Chile
pursuant to the Hague Convention. Following a lengthy evidentiary hearing, the family law court concluded, among other things, that Emilie D.L.M. established by clear and convincing evidence that returning the children to Chile would subject them to a grave risk of h arm.

FACTUAL AND PROCEDURAL HISTORY
Carlos C. and Emilie D.L.M. met while students at the University of California Davis Law School. Carlos C. , a Chilean native, held a law degree in Chile, and was pursuing an advanced
law degree at Davis . Following la w school, Emilie D.L.M. passed the California state bar exam and accepted a litigation position with a Bay Area law firm. Carlos C. , a permanent resident of the United States, established a legal translation service in the Bay
Area

. In 2006, the couple w ed and

, within seven years, had two
children. Emilie D.L.M. soon realized that Carlos C. frequently3

drank alcohol and became verbally abusive to her when he was
intoxicated . In 2006, and again in 2011, he was arrested and subsequently convicted of drivin g under the influence of alcohol. In Septe mber 2016, the parties and children relocated to
Carlos C. ’s hometown of La Serena, Chile. Carlos C. ’ s mother
and his large extended family lived nearby. In Chile, Carlos C. established a law practice and also

w orked as a law professor. Emilie D.L.M. worked remotely as an independent contractor for a California law firm. The couple paid
income taxes in the United States and Chile. Their children were bilingual and held dual American

- Chilean citizenships. Th e children enrolled in schools, played with paternal cousins, and participated in music, sports

, and social activities in La Sere na. In 2019, the family took a vacation to Hawaii and then to Lake Tahoe, California. During the vacation, Carlos C. consumed excessive alcohol and became verbally and physically abusive to
Emilie D.L.M. Following the 2019 California vacation, Carlos C. sent a

text to Emilie D.L.M. stating, “There is nothing left for us after the past two weeks. Don’t bother coming back to Chil e. We’ll make arrangements later on regarding your belongings.”
Alt hough Emilie D.L.M. and the children had return airline tickets to Chile, they remained in California. Several weeks later, Emilie D.L.M. filed a petition to dissolve her marriage to
Car los C. and later requested a temporary restraining order against him

. Carlos C. , who had returned to Chile in the meantime,
returned to California. He visited unsupervised with the children for three days. Emilie D.L.M. ’s mother required Carlos C. to si gn an agreement that promised he would not consume alcohol while4

visiting the children. Carlos C. testified that he signed the agreement without reading it and under pressure from his
mother

- in

- law. He violated the agreement by consuming alcohol during t he three days of visitation with his children

. Carlos C. then returned to Chile where he filed a family law action and a Hague Convention petition seeking repatriation
of the children

. In December 2019, the San Luis Obispo County family law court heard t he petition and Emilie D.L.M. ’s request for a temporary restraining order.

Family Law Evidentiary Hearing At the contested family law hearing, Emilie D.L.M.
testified that Carlos C. ’s drinking “suddenly increased after the birth of [their] children and in creased drast ically” after moving to
Chile. She described several occasions when she conceal ed the keys to Carlos C. ’s vehicle to prevent him from driving while
intoxicated.
Emilie D.L.M. also described incidents of domestic violence
and emotional abuse

, including sexual insults, some of which occurred in the children’s presence. On one occasion, Carlos C.
threw her to the bathroom floor, causing her to bruise her face against the bathtub. On another, he kicked h er i n her side and legs, causing h er to f

all from bed. In August 2018, Carlos C. became angry and threw the family televisio n out the door as Emilie D.L.M. and the children were watching it. On Chilean Independence Day, Carlos C. became intoxicated at the home of
his uncle. As Emilie D.L.M. dr ove everyone h ome, Carlos C. kicked the windshield and insisted on driving. He pushed Emilie
D.L.M. from the vehicle as the children screamed. The couple’s
minor daughter physically struggled with Carlos C. to prevent him from driving. Carlos C. overwhe lmed his daughter and drove5

away until his uncle blocked the road. In the spring of 2019,
Carlos C. threatened to kill the family dog to “teach [ Emilie
D.L.M. ] a lesson.” One evening, Carlos C. locked Emilie D.L.M. out of the bedroom, only to shove her t o the floor three times after
he relented and opened the door. Carlos C. also demanded money
from her and threatened her with harm if she did not pay him

. Emilie D.L.M. ’s legal earnings were a critical sourc e of the
household funding.
Carlos C. also rid iculed his daughter’s intellect and compared her unfavorably to himself and her brother. During the Hawaiian vacation, Carlos C. kicked Emilie D.L.M. from the bed where she slept with her son. The child awoke and began to

cry. Carlos C. then spit on Emi lie D.L.M. and the child.
Carlos C. testified and denied that he consumed alcohol excessively or that he committed any acts of domestic violence.

Family Law Court Decision Following the hearing, the family law court issued a comprehensive written decisio n. The court found many of Emilie
D.L.M. ’s accounts of incidents of domestic violence and emotional abuse credible, but others not. The court also found that Carlos
C. consumed alcohol excessively and frequently and that Emilie
D.L.M. consumed alcohol ex cessively as well. The court expressly
found that Carlos C. was not credible regarding the extent of his alcohol consumption, his denial of the domestic violence incidents, and his denial of his emotional abuse of Emilie D.L.M. in the children’s presence.
The family law court then concluded that Emilie D.L.M. established by clear and convincing evid e nce that return of the
children to Carlos C. ’s custody in Chile present s a grave risk to their physical and psychological well

- being. Citing the Chilean6

Inde pendence Day incident, the court concluded that Carlos C.
“did not seem to be able to control his behavior in front of the
children , particularly when drinking.” The court also pointed out
that Carlos C. denied that he drank alcohol excessively and it
inf erred that he would continue to drink excessively and expose the children to a grave risk of harm : “If the children are returned to [ Carlos C. ] at this time, there is no effective way to monitor [his] actions with the children or enforce the orders. For all of these reasons, the court cannot find that ameliorative measures
will eliminate th e grave risk to the children.”
Carlos C. appeals and contends that the family law court erred by not adequately considering ameliorative measures that might allow for the children’s return to Chile.
DISCUSSION
Carlos C. argues that the family law court did not consider “the full panoply of arrangements” that would safeguard the children in his care in Chile. ( Blondin v. Dubois (1999) 189 F.3d 240, 242 [trial court sho uld consider options under foreign law that would protect the repatriated child].) The Hague Convention provides a legal mechanism for the prompt return of a child taken by one parent across international
borders in violation of the other parent’s cus todi al right s

. (§ 9001; Abbott v. Abbott (2010) 560 U.S. 1, 9.) A petitioner under the Hague Convention bears the burden of proving the child’s wrongful removal or retention by a pre ponderance of the evidence. (§ 9003(e)(1).) If the petitioner succeeds in showing a wrongful removal, the Hague Convention requires repatriation of the child to its county of habitual residence unless an except ion to repatriation exists. (§ 9003 (e )( 2 ) (A).) One exception is that the child’s repatriation presents a grave risk of physical or7

psychological harm to the child. ( Monasky v. Taglieri (2020) 589
U.S.

- . - [ 206 L.Ed.2d 9, 22] .) This exception must be established by cle ar and convincing evidence. (§ 9003(e)(2)(A).)
There exists a judicial exception , however, to the “gr ave risk of harm” exception . The trial court may order the return of a child despite a finding of grave risk of harm if ameliorative measures by the parents or authorities can reduce the grave risk of harm. ( Saada v. Golan (2d Cir. 2019) 930 F.3d 533, 53 9.) The court exercises its discretion in determining the existence of and effectiveness of ameliorative measures. ( Acosta v. Acosta (8th Cir. 2013) 725 F. 3d 868, 877.) The determination whether enforceable ameliorative measures exist in a particular ca se is “’inherently fact

- bound’” and the petitioner urging the measures bears the burden of proof. ( Simcox v Simcox (6 th Cir. 2007) 511 F.3d 594, 606 [ameliorative measures viewed skeptically in cases involving abusive spouse] ; Maurizio R. v. L.C. (2011) 2 01 Cal.App.4th 616, 639 .) As ameliorative measures, Carlos C. provided evidence at trial that Chilean laws punish acts of domestic violence and that Chilean courts protect domestic violence victims through protective orders. The family law court proper ly found, however,
that these ameliorative measures would be ineffective here
because Carlos C. refuses to acknowledge his excessive drinking or domestic violence. In the context of a dependency action, the
court in In re Gabriel K. (2012) 203 Cal.App.4th 188, 197, observed that “[o]ne cannot correct a problem one fails to acknowledge.” Even following his written promise to forbear from alcohol consumption during visitation with his children,
Carlos C. could not keep his promise. Given Carlos C. ’s failur e to acknowledge his excessive drinking and acts of domestic violence,8

as well as his repeated acts of driving while intoxicated, there are no ameliorative measures that will mitigate the grave risk of harm to his children. ( Simcox v. Simcox

, supra , 511 F .3d 594, 606 [collecting decisions where courts have been skeptical of ameliorative measures in cases involving spousal abuse].) It is a
reasonable inference from the evidence that Carlos C. will continue to drink to excess and drive while intoxicated, th us exposing his children to a grave risk of harm. Carlos C. has not borne his burden of establishing other ameliorative measures that would protect the children from his excessive drinking and
abusive behavior.
The order is affirmed.
NOT TO BE PUBLI SHED.

GILBERT, P. J.
We concur:

YEGAN , J.

PERREN , J.9 Gayle L. Peron, Judge

Superior Court County of San Luis Obispo

______________________________

Comstock & Wagner, Stephen A. Wagner for Appellant.

J ames Alex Karagianides for Respon dent.