Opinion
Civil Action No. 22-cv-1910-WJM-MDB
2023-04-13
Duane JOHNSON, and Antonia Glenda Johnson, Petitioners, v. Garfield JOHNSON, and Jelena Johnson, Respondents, And Concerning S.M.L.J., Minor Child.
Christelle C. Beck, Frost & Beck, PC, Centennial, CO, Courtney Jennifer Leathers Allen, Epstein Patierno, LLP, Denver, CO, for Plaintiffs Duane Johnson, Antonia Glenda Johnson. Matthew Lee Schneider, Matthew L. Schneider Law Firm, Colorado Springs, CO, for S.M.L.J. John J. Kappel, Fox Rothschild LLP, Dallas, TX, Stephen B. Baumgartner, Baumgartner Law, LLC, Englewood, CO, for Respondents.
Christelle C. Beck, Frost & Beck, PC, Centennial, CO, Courtney Jennifer Leathers Allen, Epstein Patierno, LLP, Denver, CO, for Plaintiffs Duane Johnson, Antonia Glenda Johnson. Matthew Lee Schneider, Matthew L. Schneider Law Firm, Colorado Springs, CO, for S.M.L.J. John J. Kappel, Fox Rothschild LLP, Dallas, TX, Stephen B. Baumgartner, Baumgartner Law, LLC, Englewood, CO, for Respondents.
RESTRICTED LEVEL 1
ORDER DENYING VERIFIED PETITION FOR THE IMMEDIATE RETURN OF THE MINOR CHILD TO PETITIONERS IN THE BAHAMAS
William J. Martínez, Senior United States District Judge
Before the Court is Petitioners Duane Johnson and Antonia Glenda Johnson's (jointly, "Petitioners") Verified Petition for the Immediate Return of the Minor Child to Petitioners in the Bahamas Pursuant to the International Child Abduction Remedies Act, 22 U.S.C. § 9001, et seq., and the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ("Petition"). (ECF No. 1.) Respondents Garfield Johnson and Jelena Johnson (jointly, "Respondents") filed an Answer to the Petition. (ECF No. 15.)
On February 27, 2023, the Court received testimony from a number of witnesses during a full-day evidentiary hearing ("Hearing"). (ECF No. 56.) On March 3, 2023, the Court conducted an in camera interview of S.M.L.J. ("S.J."), the minor child at issue in this case. After the evidentiary hearing, on March 24, 2023, Petitioners and Respondents filed post-hearing briefs. (ECF Nos. 59, 60.) Additionally, Petitioners filed a supplement to their post-hearing brief. (ECF No. 61-1.) Respondents filed a response to Petitioners' supplement. (ECF No. 63.)
The Court cites the transcript of the evidentiary hearing as "Evid. Hr'g Tr. at [page number]." As of the date of this Order, no party has requested the transcript of the evidentiary hearing.
The Court cites the transcript of the in camera interview as "Interview Tr. at [page number]."
For the following reasons, the Petition is denied.
I. BACKGROUND
Petitioners are the Bahamian-citizen biological parents of S.J., a fifteen-year old Bahamian citizen. (ECF No. 1 at 2; Evid. Hr'g Tr. at 22.) S.J. was born in October 2007 in the District of Nassau, on the Island of New Providence, the Bahamas. (ECF No. 1 at 3.) Petitioners seek the immediate return of S.J., who they allege is wrongfully retained in Colorado by Respondents, in violation of Petitioners' custody rights. (ECF No. 1 at 3; Evid. Hr'g Tr. at 27.) Respondents, who live in Colorado Springs, Colorado, are married and are S.J.'s aunt and uncle; Garfield Johnson is Duane Johnson's brother. (ECF No. 1 at 4; Evid. Hr'g Tr. at 24.)
A. Evidentiary Hearing
1. Petitioners' Evidence
Until she came to Colorado, S.J. lived her entire life in the Bahamas. (ECF No. 1 at 5.) She has two siblings, Allair Johnson and Duane Johnson II, who both live in the Bahamas. (Evid. Hr'g Tr. at 22.) Antonia Johnson testified that before moving to Colorado, S.J. attended Aquinas College in the Bahamas and was on the principal's list, indicating high academic achievement. (Evid. Hr'g Tr. at 29.) S.J. was also involved in numerous sports, including basketball, soccer, volleyball, and track and field. (Evid. Hr'g Tr. at 30-31.) Antonia Johnson described S.J. as very disciplined, focused, and efficient—a leader with a great deal of untapped potential and great confidence. (Evid. Hr'g Tr. at 32.) The Johnsons' family life was centered around home, school, and church activities; they also had family night, watched movies, and played games. (Evid. Hr'g Tr. at 37.) According to Antonia Johnson, S.J. was a "daddy's baby," called "peachy" by her father. (Evid. Hr'g Tr. at 38.) Antonia Johnson described her own relationship with her daughter as "close," and she would take S.J. everywhere with her. (Evid. Hr'g Tr. at 38.)
With respect to how the topic of S.J. moving to Colorado initially arose, Antonia Johnson testified that Garfield Johnson called her repeatedly and asked that she send S.J. to Colorado, as it would be a good opportunity for S.J., and she would be good company for his daughter. (Evid. Hr'g Tr. at 32.) Antonia Johnson said that at first, she thought S.J. would benefit from living in another country, which would give S.J. exposure to an American education. (Evid. Hr'g Tr. at 33.)
Accordingly, on July 15, 2021, Petitioners executed a notarized affidavit ("Affidavit"), in which they agreed to allow S.J. to travel to Colorado Springs to "achieve her educational goals in the United States of America." (Pet'rs' Ex. 3.) To facilitate S.J.'s move to Colorado, Petitioners agreed in the Affidavit to "give full custody care and control along with all necessary rights of guardianship over [S.J.] to [Respondents]." (Pet'rs' Ex. 3.) However, Antonia Johnson testified that the Affidavit was consent for "educational opportunities only" and was never filed with any court. (Evid. Hr'g Tr. at 77, 102-03.) She also testified that Garfield Johnson "pressured" Petitioners to allow S.J. to come to Colorado. (Evid. Hr'g Tr. at 78.) Nonetheless, on August 8, 2021, Antonia Johnson and S.J. arrived in Colorado, and Antonia Johnson returned to the Bahamas on August 19, 2021 after S.J. was enrolled in Colorado Early College in Colorado Springs. (ECF No. 1 at 7.)
In the Petition, Petitioners state that S.J. was supposed to return to the Bahamas with her mother on December 18, 2021 to renew her travel documentation. (ECF No. 1. at 8; Evid. Hr'g Tr. at 46.) Antonia Johnson testified that S.J. did not return on that date. (Evid. Hr'g Tr. at 47.)
On December 23, 2021, Petitioners executed a document revoking their consent of guardianship of S.J. to Respondents, which Antonia Johnson testified she delivered to Respondents on January 8, 2022. (Pet'rs' Ex. 10; Evid. Hr'g Tr. at 94.) On January 7, 2022, Antonia Johnson traveled to Colorado to bring her daughter home. (Evid. Hr'g Tr. at 51.) Antonia Johnson testified that when she arrived, Garfield Johnson refused to allow her into his home and called the police to have her arrested for coming to pick up S.J. (Evid. Hr'g Tr. at 53.)
Antonia Johnson testified that she and her husband returned to Colorado in April 2022, and when they arrived, they called the Colorado Springs Police. (Evid. Hr'g Tr. at 55.) Petitioners arranged to see S.J. at the Stetson Hills police station. (Evid. Hr'g Tr. at 56.) Antonia Johnson testified that S.J. did not look well, was unkempt, and needed to see a dentist and dermatologist. (Evid. Hr'g Tr. at 57.) She testified that Jelena Johnson was a poor mother to her daughter and was too busy to properly care for S.J. (Evid. Hr'g Tr. at 44.) Further, S.J. had begun to wet the bed and was talking to her mother on the phone from inside a closet. (Evid. Hr'g Tr. at 67.)
Once Petitioners returned to the Bahamas, they initiated this action to return their child to the Bahamas. (Evid. Hr'g Tr. at 58.) Antonia Johnson testified that she does not believe the allegations of sexual abuse of S.J. by Duane Johnson are true and that Respondents concocted the allegations to keep S.J. in Colorado. (Evid. Hr'g Tr. at 58.) Nonetheless, she testified that she "asked [her] husband to move out of [their] marital home until all investigations are done." (Evid. Hr'g Tr. at 61.) Further, she testified that Duane Johnson went to the assistant commissioner of police in the Bahamas to look into S.J.'s allegations of abuse and take appropriate action. (Evid. Hr'g Tr. at 61; Pet'rs' Ex. 42.) However, because S.J. is in Colorado, there is nothing to investigate at this time. (Evid. Hr'g Tr. at 63, 99.)
At the Hearing, Respondents' counsel played a video of a May 25, 2022 Facetime conversation between Antonia Johnson and S.J., in which Antonia Johnson asked S.J. whether she was happy and safe. When S.J. responded in the affirmative, Antonia Johnson told S.J. that she could stay in Colorado. (Evid. Hr'g Tr. at 81.) However, Antonia Johnson testified that Petitioners' decision to promise that S.J. could stay in Colorado was merely "a strategy to ease [S.J.'s] mind until [Antonia Johnson] made plans to get her out of the house." (Evid. Hr'g Tr. at 85.)
The video was played to refresh Antonia Johnson's recollection of the conversation but was not admitted as an exhibit at the evidentiary hearing. (Evid. Hr'g Tr. at 84.)
S.J.'s twenty-two year old sister, Allair Johnson, testified via video at the Hearing that the Johnsons' family life in the Bahamas was peaceful, without conflict, and without any physical altercations (including between her parents). (Evid. Hr'g Tr. at 111, 117-18.) Additionally, Allair Johnson testified that when she asked S.J. if their father had ever molested her, S.J. answered "no." (Evid. Hr'g Tr. at 112.) Allair Johnson testified that she believes S.J. would have shared the allegations of abuse with her. (Evid. Hr'g Tr. at 113.) Despite her testimony that no physical altercations had occurred in her family's home, Allair Johnson described a physical altercation between her and her father in which she charged at Duane Johnson, who pushed her away and broke her phone. (Evid. Hr'g Tr. at 114.) She testified that the incident occurred because she was upset at her father for the way he was handling the situation with her sister and Respondents, which was causing her family conflict and stress. (Evid. Hr'g Tr. at 115.)
Glenda Roker, counsel and attorney of the Supreme Court of the Bahamas, as well as in the Republic in the Bahamas, testified via video at the evidentiary hearing that the Affidavit "simply gave the one Garfield and Jelena Johnson the authority to have control over the minor child while in the United States for a specific purpose being educational activities." (Evid. Hr'g Tr. at 128.) Further, she testified that based on the laws of the Bahamas, the affidavit would not have conferred any custody rights to Respondents and that it could be revoked at any time. (Evid. Hr'g Tr. at 129.) According to Roker, there was no termination of any parental rights or responsibilities by Petitioners, and the Affidavit was never filed with any court. (Evid. Hr'g Tr. at 129.)
Duane Johnson, though present in the courtroom throughout the Hearing, chose not to testify.
2. Respondents' Evidence
Jelena Johnson testified—contrary to Antonia Johnson's testimony—that Antonia Johnson requested that Respondents allow S.J. to live with them to obtain educational opportunities in Colorado. (Evid. Hr'g Tr. at 139-41.) Because Respondents purportedly felt bad for Petitioners, who lost their home during Hurricane Dorian and did not have funds to send S.J. to college, Jelena Johnson testified that Respondents agreed to take S.J. into their home. (Evid. Hr'g Tr. at 140.) Jelena Johnson testified that her understanding of the arrangement with S.J. was that she was to treat S.J. like her own child and take the same care of her the way that she would take care of her own daughter. (Evid. Hr'g Tr. at 143.) To that end, she testified that S.J. had the same rules, chores, and schedule as Respondents' daughter. (Evid. Hr'g Tr. at 144.) Respondents paid for and provided S.J. with food, shelter, clothing, and medical care. (Evid. Hr'g Tr. at 144-45.) Jelena described S.J.'s educational life at Colorado Early College, where S.J. was engaged in her classes; had relationships with teachers and classmates; participated in hiking, walking dogs, and assembling model planes and helicopters; and played basketball. (Evid. Hr'g Tr. at 147-48.)
Jelena Johnson testified that Respondents had to remind S.J. to call her parents, which Jelena Johnson found odd, and noticed that S.J. was wetting the bed. (Evid. Hr'g Tr. at 145, 167.) In connection with an affidavit signed on September 9, 2022, Jelena Johnson stated that Respondents had become aware of physical violence in Duane Johnson's home and that S.J. had told Respondents that her father beat her with an extension cord. (Resp'ts' Ex. C; Evid. Hr'g Tr. at 154.)
Jelena Johnson testified that S.J. told her that Duane Johnson sexually molested her, came into the shower with her when she was naked, and masturbated in front of her. (Evid. Hr'g Tr. at 155.) According to what S.J. told Jelena Johnson, the abuse began at the age of 11 around August 2020, when her father would penetrate her with his fingers, and then around December 2020, Duane Johnson came into S.J.'s room, held her mouth shut, and raped S.J. (Evid. Hr'g Tr. 156-57.) Jelena Johnson testified that Duane Johnson raped S.J. at least six times. (Evid. Hr'g Tr. at 157.) According to Jelena Johnson, although S.J. apparently disclosed the unwanted touching during a forensic interview with the Colorado Springs Police Department, she did not disclose the rape to them because she was ashamed. (Evid. Hr'g Tr. at 157.) Jelena Johnson also testified that S.J. disclosed the sexual abuse to Cheryl Bowe-Moss, a relative of Garfield Johnson. (Evid. Hr'g Tr. 163-64.) Finally, Jelena Johnson testified that although Petitioners said in January 2022 that they did not want S.J. to stay in Colorado, in May 2022, they acquiesced to S.J. staying with Respondents. (Evid. Hr'g Tr. at 164-65.)
In her affidavit, Jelena Johnson stated that Duane Johnson began sexually abusing S.J. in 2019, when S.J. was 11 years old. (Resp'ts' Ex. C ¶ 24.) Duane Johnson would come into S.J.'s room at night multiple times a week and touch S.J. everywhere and masturbate. During the same year, the touching escalated to Duane Johnson inserting his fingers into S.J.'s vagina. He would tell her she was beautiful, and sometimes he would pray while abusing S.J. (Id. ¶ 25.) In August 2020, Duane Johnson raped S.J. for the first time. (Id. ¶ 26.) According to Jelena Johnson's affidavit, S.J. told Jelena Johnson that Duane Johnson raped her approximately six times over the course of 2020 to 2021. (Id. ¶ 26.)
Although there are slight differences in the details and timeframe described by Jelena Johnson in her affidavit and at the evidentiary hearing, the Court finds her testimony highly credible and generally consistent with her affidavit.
Nichole Patton of the Colorado Springs Police Department conducted the February 11, 2022 forensic interview of S.J. and testified that S.J. was reluctant or hesitant to make disclosures but did disclose the sexual abuse. (Evid. Hr'g Tr. at 181, 188.) She also testified that S.J. disclosed that her father beat her with a belt, beat her brother with a hanger, and beat her mother and sister. (Evid. Hr'g Tr. at 188, 189.) Patton testified that it is a "concern" and a "possibility" that if a child is returned to her abuser that the abuse may continue and that she would never recommend doing so. (Evid. Hr'g Tr. at 189-90.)
Garfield Johnson testified that Antonia Johnson asked if Respondents would take S.J. to live with them in Colorado. (Evid. Hr'g Tr. at 196.) In connection with the Affidavit, Garfield Johnson testified that his impression was that S.J. was "not going back" and that Respondents had been given full care, custody, and control of S.J. (Evid. Hr'g Tr. at 199.) Like Jelena Johnson, Garfield Johnson testified that Respondents provided S.J. with food, clothing, shelter, medical care, and an education, which he described in some detail, accompanied by photos. (Evid. Hr'g Tr. at 199-202, 211-16.) Additionally, he testified that when S.J. hears that she may have to go back to the Bahamas, she "flips out" because she "doesn't think she's going to be safe." (Evid. Hr'g Tr. at 210.) He testified that he believes Duane Johnson is prone to violence; he also testified about conversations he had with his brother which included violent threats, as well as Antonia Johnson's purported statement that her husband would kill her. (Evid. Hr'g Tr. at 220, 223.) Finally, he testified that in a May 2022 text message, Duane Johnson stated that S.J. could stay in Colorado, and after that, Petitioners did not demand that S.J. be returned to the Bahamas until they filed this lawsuit in August 2022. (Evid. Hr'g Tr. at 225-26; Resp'ts' Exs. C, Y.)
B. In Camera Interview
On March 3, 2023, the Court conducted an in camera interview of S.J. S.J. explained that when she lived in the Bahamas, she went to Aquinas College. (Interview Tr. at 5.) She stated that she had approximately four friends and played sports until eighth grade. (Interview Tr. at 5.) She stated that she participated in two clubs, Key Club and the World Scholar Club. (Interview Tr. at 5.) S.J. told the Court that she was not close with her mom because her father was possessive and controlling toward all of her family members. (Interview Tr. at 6.) S.J. contradicted her mother and Allair Johnson's testimony that she was always close with her mother and instead attributed it to her siblings not wanting to spend time with her, a much younger sibling. (Interview Tr. at 16, 17.) With respect to her home life, S.J. explained that she used her parents' bathroom or her sister's bathroom, neither of which had working locks, and she had her own room without a working lock. (Interview Tr. at 8.)
S.J. testified that it was her mother's idea for her to live with Respondents in Colorado, and it was her understanding that while she would return to the Bahamas at Christmas for a visit, she would finish high school and college here. (Interview Tr. at 10, 15.) S.J. thought that it was a good opportunity for her to live with Respondents. (Interview Tr. at 10.)
When asked about her academic and extracurricular life in Colorado, S.J. explained that she goes to Colorado College in Colorado Springs, where she is completing an associate's degree in science while in high school. (Interview Tr. at 17.) She participates in a security program, goes on field trips, plays basketball, and socializes with her friends outside of school. (Interview Tr. at 19.)
When asked about her home life with Respondents, S.J. said she has a good relationship with her cousin and Respondents. (Interview Tr. at 20.) S.J. explained that although Jelena Johnson works a lot, she always makes time to plan family events, dinner, and movie nights, among other things. (Interview Tr. at 20-21.) When confronted with Antonia Johnson's observation that Jelena Johnson did not make time for S.J., S.J. disagreed, stating that her aunt always makes time for her and the family. (Interview Tr. at 22.) S.J. described her bond with Jelena Johnson as parental. (Interview Tr. at 26.) With respect to Garfield Johnson, S. J. said her uncle gives good advice, is eccentric and funny, and is always there. (Interview Tr. at 21.)
S.J. stated that she was not happy at home in the Bahamas because of her father's actions. Beginning when she was in the eighth grade, she testified that she and Duane Johnson were in a "sexual relationship", and she did not like it; her father sexually assaulted her in the bedroom and the bathroom in their home. (Interview Tr. at 28.) S.J. informed the Court that during the spring semester, she told one of her teachers in the Bahamas about the abuse, but it did not go well, as the teacher told her father what S.J. had said. (Interview Tr. at 30.) After she told her teacher, the abuse became rougher, according to S.J. (Interview Tr. at 31.) She claims that the abuse stopped in May 2021. (Interview Tr. at 28.)
When asked why she did not tell her mother, S.J. stated that she believed her mother already knew about the abuse. (Interview Tr. at 31.) She said that her mother was always away and not there when she needed her. (Interview Tr. at 31.) S.J. explained that she disclosed the abuse to Bowes-Moss because she felt more numbness, and Bowes-Moss was not as close as her family members. (Interview Tr. at 34.) S.J. said she asked Bowes-Moss not to tell anyone. (Interview Tr. at 34.) Further, S.J. testified that she did not tell her siblings about the abuse, as her father controlled them, and she did not think disclosing to them would do any good. (Interview Tr. at 35-36.)
S.J. stated that she disclosed the abuse to Jelena Johnson around October or November 2022, after this lawsuit was filed. (Interview Tr. at 37.) She said she thought if she told Jelena Johnson, then she might not be sent back to the Bahamas. (Interview Tr. at 38.)
When asked whether her father was well-connected in the Bahamas, S.J. explained that her father knows numerous people in the police department, military, and the government, which caused her to believe that he would not suffer any adverse consequences were he to resume his abuse of her in the event she returned to the Bahamas. (Interview Tr. at 42.) She also said she did not think her mother would intervene on her behalf. (Interview Tr. at 42.) Moreover, she said that if she were sent home, she believes her family would try to put her in an institute or hospital, because they felt she was ruining their reputation. (Interview Tr. at 43.)
S.J. recalled the May 2022 telephone conversation with Antonia Johnson, where her mother told her she could stay in Colorado. (Interview Tr. at 45.) Additionally, the Court told her about the text message from her father to her uncle stating that he was done with her and Respondents could keep her. (Interview Tr. at 45.) S.J. agreed that between the time of the May 2022 conversation with her mother and the filing of the lawsuit, neither she nor Respondents knew that Petitioners would file the lawsuit and attempt to have S.J. return to the Bahamas. (Interview Tr. at 46-47.)
S.J. testified that she feels safe at home and at school in Colorado, considers Colorado—not the Bahamas—her home, and wishes to reside with Respondents in Colorado permanently. (Interview Tr. at 21, 49-50.)
II. FINDINGS OF FACT
The Court makes the following findings of fact:
1. Petitioners are the biological parents of S.J. and reside in the Bahamas.
2. Respondents are the aunt and uncle of S.J. and reside in Colorado.
3. Petitioners voluntarily sent S.J. to reside with Respondents in Colorado in August 2021.
4. Prior to August 2021, S.J. resided in the Bahamas.
5. Since August 2021, S.J. has resided in Colorado with Respondents.
6. While residing with Respondents, Respondents have provided all emotional, physical, and financial care for S.J. and met all of her other needs.
7. After moving to Colorado in August 2021, S.J. has been continuously enrolled in school in Colorado.
8. S.J. is enrolled in advanced classes, including dual credit college courses.
9. S.J. is involved in multiple extracurricular activities in Colorado.
10. S.J. has received medical treatment while residing in Colorado.
11. S.J. has made friends in Colorado.
12. S.J. has plans to and is currently progressing toward graduating from high school in Colorado.
13. S.J. has plans to attend college in the United States after graduating from high school.
14. S.J. was scheduled to travel to the Bahamas in December 2021 but did not travel as planned.
15. As of November 2021, S.J. had enrolled in classes for the spring semester beginning in January 2022 at her school in Colorado.
16. Prior to S.J. moving to Colorado, Petitioners executed an Affidavit on July 14, 2021 that purports to grant Respondents "full custody care and control along with all necessary rights of guardianship" of S.J. for an indefinite duration.
17. Petitioners signed a revocation of the Affidavit on December 23, 2021.
18. Petitioners acknowledged in the revocation that they had sent S.J. to reside in Colorado in August 2021.
19. Petitioners agreed that S.J. could stay with Respondents in Colorado at least until she came home for a visit at Christmas in December 2021.
20. The first time Petitioners alleged S.J. was wrongfully retained in the United States was December 18, 2021, which was prior the date Petitioners executed the revocation of the Affidavit.
21. Duane Johnson acquiesced to S.J. staying in the United States with Respondents in May 2022 in a text message conversation with Garfield Johnson.
22. Antonia Johnson acquiesced to S.J. staying in the United States with Respondents during a May 25, 2022 telephone conversation with S.J.
23. After both Petitioners acquiesced to S.J. staying in the United States with Respondents in May 2022, Petitioners did not request the return of S.J. until they filed this lawsuit.
24. S.J. is presently fifteen years and six months of age.
25. S.J. is academically and emotionally advanced for her age.
26. S.J. understands the purpose of this proceeding and the possible repercussions of being and not being returned to the Bahamas.
27. S.J. has clearly expressed that she does not want to return to the Bahamas and that she objects to being involuntarily returned.
28. While S.J. lived in the Bahamas with Petitioners, her father, Duane Johnson sexually assaulted her on multiple occasions.
29. Duane Johnson has not been charged with sexual assault in the Bahamas.
30. According to S.J., due to his personal connections with individuals in various institutions in the Bahamas, such as the government, police, and the military, Duane Johnson is very likely unconcerned about any legal consequences as a result of his sexual abuse of S.J. because he knows no action will be taken against him.
31. No legal protections have been implemented in the Bahamas to protect S.J. from Duane Johnson or prevent Duane Johnson from having access to her.
32. There is a reasonable risk that Duane Johnson would sexually assault S.J. again if she is returned to the Bahamas.
III. APPLICABLE LAW
The United States is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention"), Oct. 25, 1980, T.I.A.S. No. 11,670, which Congress implemented through the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001, et seq. See Watts v. Watts, 935 F.3d 1138, 1140-41 (10th Cir. 2019). The Convention's purpose is to facilitate custody disputes "promptly and exclusively, in the place where the child habitually resides." Id. (quoting Chafin v. Chafin, 568 U.S. 165, 180, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (Ginsburg, J., concurring)).
The scope of the Court's inquiry in Hague Convention cases such as this is "limited to the merits of the abduction claim." Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir. 2002) (quoting Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001)). It is not directed to the underlying merits of child custody claims. See de Silva v. Pitts, 481 F.3d 1279, 1282 (10th Cir. 2007); see also 22 U.S.C. § 9001(b)(4) (providing "[t]he Convention and this chapter empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims.").
Article 11 of the Convention provides this court shall act "expeditiously in proceedings for the return of children," and Article 18 adds that that the Convention does "not limit the power of a judicial authority to order the return of the child at any time." ICARA provides that children "who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the convention applies." 22 U.S.C. § 9001(a)(4).
A petitioner seeking the return of a child bears the "initial burden of establishing by a preponderance of the evidence that a respondent wrongfully" took or retained the child. West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013) (citations omitted). This initial prima facie case consists of three elements: (1) the children habitually resided in a signatory state at the time they were wrongfully removed or retained; (2) such removal or retention breached the petitioner's custody rights under the law of that state; and (3) the petitioner was exercising those rights at the time of the wrongful removal or retention. Id. (citing Shealy, 295 F.3d at 1122.)
If a petitioner establishes a prima facie case for the return of children under Article 3 of the Convention, the burden shifts to the respondent to establish one of the Convention's affirmative defenses, or "exceptions," which are "narrowly construed." 22 U.S.C. § 9001(a)(4); de Silva, 481 F.3d at 1285. The relevant exceptions in this case are: "1) the person requesting return was not at the time of the retention or removal, actually exercising custody rights or had consented to or subsequently acquiesced in the removal or retention . . . [which must be proved by a preponderance of the evidence]; [and] 2) the return of the child would result in grave risk of physical or psychological harm to the child . . . [which must be proved by clear and convincing evidence][.]" Lieberman v. Tabachnik, 625 F. Supp. 2d 1109, 1116 (D. Colo. 2008) (quoting Ohlander v. Larson, 114 F.3d 1531, 1534 (10th Cir. 1997) and 42 U.S.C. § 11603(e)(2)) (brackets in original) (statutory provision has been supplanted by the identically worded 22 U.S.C. § 9003(e)). Another "consideration, left to the discretion of the [court] . . . allows for the refusal to order the return of a child where 'the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.' " de Silva, 481 F.3d at 1285 (quoting the Convention, art. 13).
And because "[c]ourts in signatory nations take violations of the Convention very seriously," even if an exception to a wrongful removal claim is established, the Court retains "discretion to order the return of the child if it would further the aim of the Convention, which is to provide for the return of a wrongfully removed child." Id. But "[o]n the other hand, 'the very nature of these exceptions gives judges discretion—and does not impose on them a duty—to refuse to return a child in certain circumstances.' " Id. (quoting 1980 Conférence de La Haye de droit international privé, Enlèvement d'enfants, E. Pérez-Vera, Explanatory Report in 3 Actes et documents de la Quatorzième Session, p. 460, ¶ 113 (1982) ("Pérez-Vera Report")).
IV. ANALYSIS
A. Prima Facie Case
The Court first addresses the question of S.J.'s habitual residence prior to the alleged wrongful retention. Petitioners assert that S.J. was a habitual resident of the Bahamas prior to the alleged wrongful retention (ECF No. 60 at 2), while Respondents contend that she was a habitual resident of the United States prior to the alleged wrongful retention (ECF No. 59 at 7-8). Respondents' argument is premised on the assertion that Petitioners executed the Affidavit on July 14, 2021 that purports to grant Respondents "full custody care and control along with all necessary rights of guardianship" of S.J. with an indefinite duration; therefore, any alleged retention of S.J. did not occur until December 18, 2021, at which time S.J. was habitually resident in the United States.
The term "habitual resident" is not defined in the Convention or ICARA. See Dumitrascu on behalf of A.M.B.D. v. Dumitrascu, 2022 WL 1529624, at *3 (10th Cir. May 16, 2022). However, in Monasky v. Taglieri, — U.S. —, 140 S. Ct. 719, 206 L.Ed.2d 9 (2020), the Supreme Court provided guidance for courts to determine a child's habitual residence.
A child "resides" where she lives. See Black's Law Dictionary 1176 (5th ed. 1979). Her residence in a particular country can be deemed "habitual," however, only when her residence there is more than transitory. "Habitual" implies "[c]ustomary, usual, of the nature of a habit." Id. at 640. The Hague Convention's text alone does not definitively tell us what makes a child's residence sufficiently enduring to be deemed "habitual." It surely does not say that habitual residence depends on an actual agreement between a child's parents. But the term "habitual" does suggest a fact-sensitive inquiry, not a categorical one.Id. at 726. Further, the Supreme Court relied on the Convention's explanatory report, stating that the report informs that habitual residence is a concept well-established in the Hague Conference. Id. (Pérez-Vera Report at 445 ¶ 66). The Supreme Court noted that the report "refers to a child's habitual residence in fact-focused terms: 'the family and social environment in which [the child's] life has developed.' " Id. (citation omitted). Therefore, "what makes a child's residence habitual is some degree of integration by the child in a social and family environment." Id. (internal quotation marks, quotations, and additional citations omitted). Accordingly, the Supreme Court observed that "while Federal Courts of Appeals have diverged, if only in emphasis, in the standards they use to locate a child's habitual residence . . . they share a 'common' understanding: The place where a child is at home, at the time of removal or retention, ranks as the child's habitual residence." Id. (quoting Karkkainen v. Kovalchuk, 445 F.3d 280, 291 (3d Cir. 2006)).
With respect to older children, the Supreme Court again acknowledged that locating a child's home is a "fact-driven inquiry" and that "facts indicating acclimatization will be highly relevant." Id. at 727. Such facts courts have considered include a change in geography combined with the passage of an appreciable period of time, age of the child, immigration status of child and parent, academic activities, social engagements, participation in sports programs and excursions, meaningful connections with the people and places in the child's new country, language proficiency, and location of personal belongings. Id. at 727 n.3 (citing Federal Judicial Center, J. Garbolino, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 67-68 (2d ed. 2015)). "No single fact, however, is dispositive across all cases." Id. at 727.
For the following reasons, the Court finds that Petitioners have failed to satisfy the first element of their prima facie case that the Bahamas was S.J.'s habitual residence at the time of the alleged wrongful retention, which the Court has found to be December 18, 2021. (ECF No. 59 at 3; ECF No. 1-1 at 3.) Instead, the Court agrees with Respondents that since S.J. moved to Colorado in August 2021, her habitual residence has been and continues to be Colorado. After moving to Colorado, S.J. immediately began making a life for herself in Colorado and engaged in all of the normal activities of a child of her age including attending school, participating in extracurricular activities, receiving medical treatment, engaging socially with a friend group, making plans for her future, and otherwise engaging in the routines of daily life while living with Respondents in Colorado.
The parties agree that prior to Petitioners' decision to send S.J. to Colorado in August 2021, she was a habitual resident of the Bahamas. (ECF No. 59 at 8.) However, these circumstances changed and S.J. became a habitual resident of Colorado after moving there in August 2021.
With respect to the acclimatization factors the Supreme Court has opined should be considered in connection with a child's habitual residence, the Court finds that they strongly weigh in favor of the Court finding that Colorado is S.J.'s habitual residence. Specifically, as of the date of this Order, S.J. has been in Colorado for approximately a year and a half, which is an appreciable period of time; and even if the Court only considers the five months S.J. lived in Colorado until Petitioners deemed the retention wrongful, the Court still finds that amount of time to be appreciable. Today, she is nearly 16 and certainly old enough to express her opinion about where she wishes to live, which she states is Colorado. While S.J. is not a United States citizen, Respondents have engaged immigration counsel to assist with any legal issues she may encounter in connection with her immigration status. (Evid. Hr'g Tr. at 270.)
As described in more detail below, S.J. is thoroughly engaged in her academic career in Colorado; she participates in basketball and extracurricular activities related to information technology. She stated at the in camera interview that she has made meaningful connections with Respondents and their daughter. S.J. is fluent in English. Finally, with respect to her personal belongings, Jelena Johnson testified that Respondents have taken S.J. shopping for clothes and other things she needs, and Garfield Johnson testified that Respondents purchased a laptop for S.J. and got her a dog.
In addition, the Court takes into consideration the statements S.J. made during her in camera interview. The Court found S.J. to be calm, mature, thoughtful, and highly credible. S.J. stated that she anticipates finishing high school in Colorado and attending college in the United States. She is completing an associate's degree in science while she is in high school at Colorado College. She is part of a security program, where students take field trips to the national cyber security center and the cyber space program. She explained that she participates in basketball, and that the team is forming a cyber club where they do cryptography and discuss technology.
When describing her life at home with Respondents, S.J. agreed that she has a friendly, nice relationship with her cousin. (Interview Tr. at 20.) Respondents, their daughter, and S.J. have dinner and watch movies together. Based on both Respondents' and S.J.'s testimony, it is clear to the Court that S.J. has become enmeshed in the fabric of Respondents' family. S.J. testified that she considers Colorado her home, not the Bahamas. All of these facts, viewed in totality, indicate that Colorado is her habitual residence.
Accordingly, the Court finds that Petitioners have failed to establish the first element of their prima facie case. Therefore, because the three elements of the prima facie case are set forth in the applicable case law in the conjunctive, and not disjunctive, the Court also concludes that it need not address the second and third elements of Petitioners' prima facie case.
B. Statutory Exceptions
Because the Court has found that Petitioners have failed to establish their prima facie case, the Court's analysis could end there. However, because the three affirmative defenses asserted by Respondents militate so strongly in favor of denying the Petition, the Court discusses all three in this Order.
To the extent Petitioners argue in their supplemental brief that their due process rights were violated because they did not receive notice that the in camera interview of S.J. took place via a minute entry or otherwise, the Court finds their argument is without merit. (See ECF No. 61.) Respondents thoroughly address these points in their Response to Petitioners' Supplemental Post-Trial Brief. (See ECF No. 63.) The Court notified the parties at the evidentiary hearing on February 27, 2023 that the undersigned would conduct an in camera interview of the child at some point soon after the hearing with no counsel or parties present. (Evid. Hr'g Tr. at 6.) As Respondents point out, Petitioners have not cited any authority supporting why they would be entitled to more or different notice than the Court provided. (ECF No. 63 at 3.)
Further, while Respondents were almost certainly aware of the date on which the in camera interview took place because S.J. lives with them, the Court did not prohibit S.J. from speaking about the in camera interview if she wished to do so. To the extent S.J. did not affirmatively contact Petitioners and inform them that the interview occurred or what she said, that was her prerogative. And to the extent Petitioners argue that the purported lack of notice deprived them of the ability to take reasonable follow-up measures that might be available upon learning that an attempt at notice has failed (ECF No. 61 at 3), the Court has permitted them to file their Supplement to Post-Hearing Brief (ECF No. 61-1), which cures any perceived due process violation suffered by Petitioners. Finally, the Court has distributed no recording or transcript of the in camera interview, so Respondents achieved no advantage over Petitioners in that regard either.
The Tenth Circuit has stated that "a meaningful opportunity to be heard" is "all due process requires in the context of a Hague Convention petition." West, 735 F.3d at 932. Petitioners have had a meaningful opportunity to be heard in this proceeding, both by way of multiple filings and a full-day evidentiary hearing in court. On this record the Court easily finds no due process violation in this case.
Further, the Court finds that Petitioners' argument that Respondents must have a right of custody to have standing to assert any affirmative defenses is unsupported by any citation to authority and is therefore without merit. (ECF No. 61-1 at 2.) "A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority or in the face of contrary authority, forfeits the point.' " Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992) (quoting Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir. 1990)). Additionally, Respondents address this argument in their Response to Petitioners' Supplemental Post-Trial Brief. (See ECF No. 63.) They correctly highlight that Article 13 of the Convention states: "Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes . . . [affirmative defenses]." Hague Convention, art. 13 (emphasis added). The Convention does not require that the "person, institution, or other body" also have custody rights over the child. Therefore, Petitioners' argument on this point fails.
1. Grave Risk
Even if Petitioners had proved all three elements of their claim, the Court may choose to deny a return of the child based on a finding that returning the child would place the child at grave risk of physical or psychological harm. Hague Convention, art. 13; Golan v. Saada, 596 U.S. 666, 142 S. Ct. 1880, 1892, 213 L.Ed.2d 203 (2022). Once the Court determines that a grave risk exists, the Court may deny a return solely on the basis of that risk. Golan, 142 S. Ct. at 1892. Under the Convention and ICARA, a district court's discretion to determine whether to return a child where doing so would pose a grave risk to the child includes the discretion whether to consider ameliorative measures that could ensure the child's safe return. Id. at 1893. The Supreme Court teaches that "[t]he fact that a court may consider ameliorative measures concurrent with the grave-risk determination, however, does not mean that the Convention imposes a categorical requirement on a court to consider any or all ameliorative measures before denying return once it finds that a grave risk exists." Id. "The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate." Id. at 1895.
Having heard ample testimony from both parties and S.J., for the following reasons, the Court finds that Respondents have proved by clear and convincing evidence that returning S.J. to Petitioners in the Bahamas would place her at a grave risk of both physical and psychological harm.
As an initial matter, the Court finds that S.J.'s testimony at the in camera interview was highly credible, and the Court concludes that S.J. is intelligent, mature, and thoughtful. The Court inquired about Duane Johnson's sexual abuse. S.J. unequivocally stated that she was not happy in the Bahamas because of what her father did to her. (Interview Tr. at 8-9.) She explained that beginning in the eighth grade, she was subject to repeated sexual assaults by her father both while she showered and when she was in her bedroom. (Interview Tr. at 28.) According to S.J., when she told a teacher about the sexual abuse, the teacher told her father, and the abuse became rougher. (Interview Tr. at 31). She testified that the abuse mostly stopped in May 2021.
However, when the Court asked S.J. whether she is concerned or afraid that the sexual abuse might resume if she were forced to return to the Bahamas, she answered yes. She explained that her father knows a lot of people in important institutions in the Bahamas, such as the police, the government, and an institution that is like the military in the Bahamas. (Interview Tr. at 40-41.) Due to his connections, S.J. testified that her father would not be very concerned about any adverse consequences befalling him (such as going to prison) were he to resume his sexual assaults upon her, because she believed the individuals in those institutions would not take any punitive action against him.
The Court also discussed with S.J. the proposed ameliorative measures which Antonia Johnson suggested at the evidentiary hearing. First, when asked whether she thought her mother would intervene to stop the abuse, S.J. emphatically answered no. (Interview Tr. at 42.) Next, the Court questioned S.J. concerning her parents' second home and Antonia Johnson's testimony that Duane Johnson would move out of the family home and into their second home while the police conducted a complete investigation of the allegations of sexual assaults. (Interview Tr. at 43.) In response, S.J. testified that she does not believe it. Instead, she told the Court that if anything, she believes her parents would try to put her in an institution or a hospital because she was ruining their reputation and making them look bad. (Interview Tr. at 43-44.)
The Court has also considered the testimony of Respondents, particularly Jelena Johnson, S.J.'s aunt. The Court found Jelena Johnson to be very credible. Given her close relationship with S.J.—which S.J. confirmed at the in camera interview—it is highly believable that S.J. would have disclosed Duane Johnson's sexual abuse to Jelena Johnson. In her testimony and her affidavit, Jelena Johnson described the sexual abuse S.J. disclosed to her in detail, including the emotional and physical consequences the abuse has had on S.J., such as bed wetting, hiding in the closet, and not wanting to shower.
The Court also carefully considered the testimony of Antonia Johnson, S.J.'s mother, who was living in the family home during the time the abuse took place. Antonia Johnson stated that S.J. never said anything to her about sexual abuse. (Evid. Hr'g Tr. at 58.) Instead, Antonia Johnson testified that these allegations of abuse were made by Respondents so they could keep S.J. in the United States. (Evid. Hr'g Tr. at 58.) Having spoken at length with S.J. about the abuse allegations, and finding her disclosures to be highly credible, the Court on the contrary finds Antonia Johnson's testimony to not be credible. While the Court makes no specific factual findings on this point, there was testimony at the evidentiary hearing and the in camera interview, that the Court finds significant, that Duane Johnson can be a very controlling figure in his family and physically abusive to his wife and children. (Interview Tr. at 6.) It is of some significance to the Court that although he attended the entirety of the Hearing, Duane Johnson chose not to testify and deny the allegations that he had sexually assaulted his own daughter.
Given the foregoing evidence, the Court finds that there is a clear risk that Duane Johnson will sexually assault S.J. again if she is returned to the Bahamas. While the Court need not consider ameliorative measures, the undersigned has done so and finds that they are insufficient to protect the psychological and physical health of S.J. There is insufficient evidence for the Court to conclude that Duane Johnson will actually move out of the family home and into their second home, that Bahamian law enforcement will conduct a thorough and impartial investigation of the allegations of abuse, or that Petitioners will not place S.J. in a hospital or institution to silence her allegations against her father. Therefore, the Court denies the Petition on the basis that returning S.J. to the Bahamas will expose her to a grave risk of physical and psychological harm.
2. Age and Maturity
Next the Court considers the "wishes of the child" exception. Under this exception, the Court may refuse to order the return of the child "if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, art. 13. This defense must be proven by a preponderance of the evidence. 42 U.S.C. § 11603(e)(2). The Pérez-Vera Report offers the following commentary with respect to the views of the child exception:
[The Convention] provides that the child's views concerning the essential question of its return or retention may be conclusive, provided it has, according to the competent authorities, attained an age and degree of maturity sufficient for its views to be taken into account. In this way, the Convention gives children the possibility of interpreting their own interests. Of course[, t]his provision could prove dangerous if it were applied by means of the direct questioning of young people who may admittedly have a clear grasp of the situation but who may also suffer serious psychological harm if they think they are being forced to choose between two parents. However, such a provision is absolutely necessary given the fact that the Convention applies, ratione personae, to all children under the age of sixteen; the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.Pérez-Vera Report at 433, ¶ 30 (emphasis added).
Respondents must prove by a preponderance of the evidence through testimony or otherwise that the minor child is of an age and maturity level for her views to be taken into account. Andreopoulos v. Nickolaos Koutroulos, 2009 WL 1850928, at *8 (D. Colo. June 29, 2009) (citing England v. England, 234 F.3d 268, 272 n. 5 (5th Cir. 2000)). In assessing the maturity level of the minor child, the Court must consider the extent to which the "[child's] views have been influenced by an abductor, or if the objection is simply that the child wishes to remain with the abductor." Id. (quoting In Re Nicholson, 1997 WL 446432, *3 (D. Kan. July 7, 1997)). Application of the defense is within the court's discretion if the court believes that the child's preference is the product of undue influence over the child. See Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603, 615 (E.D. Va. 2002) ("[t]he discretionary aspect of this defense is important because of the potential for undue influence by the person who allegedly wrongfully retained the child").
Here, the Court finds that Respondents have proved by a preponderance of the evidence that S.J. is of an age and maturity level for her views to be taken into account. The Court notes that S.J. is now fifteen years and six months of age. And despite Petitioners' protestations that Respondents have "brainwashed" S.J. (Evid. Hr'g Tr. at 42, 56), the Court finds no evidence that Respondents have unduly influenced S.J.'s views. In their supplemental brief, Petitioners argue that Garfield Johnson "controlled and prevented [S.J.'s] ability to speak freely to her parents in person" and that S.J. "appears to have become very dependent on Garfield and may be suffering from Stockholm Syndrome rendering her unable to separate out his influence on her decision to remain in Colorado." (ECF No. 61-1 at 4.)
The Court has considered all of Petitioners' arguments concerning the age and maturity exception and finds that they are without merit. First, the Court found Antonia Johnson to not be credible with respect to her testimony that Respondents are "brainwashing" S.J. or are otherwise unduly influencing her. On the witness stand, Antonia Johnson was very volatile and repeatedly had loud outbursts accusing Respondents of "kidnapping" her daughter, despite the fact that Petitioners signed the Affidavit permitting S.J. to live with them in Colorado, at least for a certain period of time. (Evid. Hr'g Tr. at 22, 23, 24, 34, 55, 57.)
Moreover, Petitioners' statement that S.J. is suffering from Stockholm Syndrome is pure speculation. (ECF No. 61-1 at 4.) They offered no testimony from a mental health professional on this subject at the evidentiary hearing, nor any other evidentiary support for this assertion. (Id.) The Court also finds that Antonia Johnson's testimony contradicts these assertions. At the hearing, Antonia Johnson described her daughter as having "great confidence," "a good sense of self," and being a "leader." (Evid. Hr'g Tr. at 32.) The Court concludes that S.J.'s possession of such character traits undermines Antonia Johnson's later assertions that S.J. is subject to Garfield Johnson's undue influence.
Based on the Court's independent interaction with and observations of S.J. during the in camera interview, the Court concludes that S.J. has most definitely attained an age and degree of maturity which make it appropriate to take account of her views. The Court spoke with S.J. for over an hour in chambers and concludes she is a highly credible and thoughtful young lady. She clearly expressed her objection to returning to the Bahamas, in contrast with her very strong desire to remain in the United States. She testified that she has become accustomed to school in Colorado and enjoys her academic career and extracurricular activities in Colorado. Additionally, S.J. explained that she has made friends at school and through basketball. She is passionate about cybersecurity and information technology, and at the evidentiary hearing, Garfield Johnson testified that her number one college of choice is Colorado School of Mines, and number two is Massachusetts Institute of Technology—both American universities. (Evid. Hr'g Tr. 209.)
As explained above, the Court questioned S.J. about Duane Johnson's sexual abuse. She unequivocally stated that she was not happy in the Bahamas because of the assaults her father had perpetrated upon her. (Interview Tr. at 8-9.) She testified that she feels happy and safe in Colorado, both at home and at school. (Interview Tr. at 21.)
With the foregoing factors in mind, the Court finds S.J.'s views to be dispositive of the issues before the Court. Because the Court finds that S.J. is of sufficient age and maturity that her views should be taken into account, and because S.J. clearly and unequivocally expressed her objection to returning to the Bahamas and her desire to remain in the United States, the Court refuses to return her to the Bahamas on that alternative basis. See de Silva, 481 F.3d at 1279 (affirming the district court's refusal to repatriate minor child to Canada solely on the basis of the minor child's desire to stay in the United States); Andreopoulos, 2009 WL 1850928, at *8-10 (finding by a preponderance of the evidence that fourteen-year old child was of sufficient age and maturity to express wish to not return to Greece and finding these wishes dispositive of the case); McManus v. McManus, 354 F. Supp. 2d 62 (D. Mass. 2005) (district court easily concluded that the objections of two minor children, both fourteen-years-old, should be honored and were dispositive of the issues before the court).
3. Acquiescence
Finally, the Court addresses Respondents' last affirmative defense: acquiescence. Under Article 13(a) of the Convention, the Court is not bound to order the return of the child if "the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention." Hague Convention, art. 13(a).
Petitioners allege that the wrongful retention of S.J. occurred on December 18, 2021. While Petitioners continued to object to S.J.'s retention on several occasions after this date, both Petitioners then separately acquiesced to S.J. remaining in the United States in May 2022. The Court finds the most compelling evidence of acquiescence to be the May 25, 2022 telephone conversation between Antonia Johnson and S.J., a recording of which was played at the evidentiary hearing. (Evid. Hr'g Tr. at 85.) Antonia Johnson testified that she told her daughter she could stay in the United States but "that was a strategy to ease her mind until [she] made plans to get [S.J.] out of the house." (Evid. Hr'g Tr. at 85.)
Having watched the recording of the May 25, 2022 conversation, the Court is unable to conclude that Antonia Johnson's explanation that her acquiescence was a ploy or a strategy has any credibility. Supporting the Court's determination is the fact that Petitioners did not object to S.J.'s retention or ask for her to be returned until this action was filed three months later.
A second piece of evidence supports the Court's conclusion concerning the affirmative defense of acquiescence. Duane Johnson also acquiesced to S.J. remaining in the United States in a text message conversation with his brother Garfield Johnson. (Resp'ts' Ex. Y.) Antonia Johnson testified that Duane Johnson's acquiescence was part of a "strategy" and that they "did that because [Petitioners] were trying to put [S.J.] at ease so that [Petitioners] could move into trying to get her out of the house." (Evid. Hr'g Tr. at 81.) Garfield Johnson testified that after he and his brother exchanged the text messages in which Duane Johnson told Garfield Johnson that S.J. could stay in the United States, Petitioners did not demand that he return S.J. until the "lawsuit popped up on [his] doorstep." (Evid. Hr'g Tr. at 225-26.)
Like the telephone conversation between Antonia Johnson and S.J., the text message conversation between Duane Johnson and Garfield Johnson occurred in May 2022—after Petitioners allege the wrongful retention took place on December 18, 2021. The Court finds that Respondents have proved Petitioners' acquiescence to S.J. staying in the United States by a preponderance of the evidence.
V. CONCLUSION
For all of the reasons stated above, the Court ORDERS:
1. The Petition (ECF No. 1) is DENIED; 2. If they wish to do so, Respondents may contact Ms. Guerra, the undersigned's Courtroom Deputy, to facilitate the return of the documents S.J. provided to the Court during the in camera interview; 3. This case is DISMISSED WITH PREJUDICE; and 1109 4. The Clerk is DIRECTED to terminate this action.