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Wertz v. Wertz

United States District Court, W.D. Virginia, Roanoke Division

March 30, 2018

TAMMY MAE WERTZ, Petitioner,
v.
LEWIS EDWARD WERTZ, III Respondent.

          MEMORANDUM OPINION

          Michael F. Urbanski, Chief United States District Judge.

         From Canada, Tammy Mae Wertz petitions the court for return of the parties' minor child to that country, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), and the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. §§ 9001 et seq. The child, L.E.W., age 8, was removed from Canada on December 20, 2017, without Petitioner's consent, by Respondent Lewis Edward Wertz, HI, and has remained in Virginia since that time. Respondent asks the court to deny the petition, arguing L.E.W.'s habitual residence was the United States at the time of removal, Petitioner acquiesced in the removal, and returning LE.W. to Canada would expose him to grave risk of physical or psychological harm or otherwise place him in an intolerable situation.

         The issues presented here are difficult ones, as is true with many Hague Convention cases. This case involves two parents who both deeply care for their child, but who disagree about what is in his best interest. As a result, this family has been embroiled in custody proceedings in the courts of Canada for many years.

         Federal courts are courts of limited jurisdiction, which does not extend to child custody disputes. The Hague Convention and its enacting statutes empower the court to determine the parties' rights under the Convention-not the merits of the underlying child custody claims. 22 U.S.C. § 9001(b)(4). To that end, the court's role is limited to determining whether there has been a wrongful removal, the existence and exercise of custody rights at the time of the removal, and the applicability of any Hague Convention defenses.

         These issues have been thoroughly briefed, and the court held a bench trial on March 15-16, 2018, at which the parties appeared in person. The court has carefully considered the evidence presented and the arguments advanced by counsel.

         Plainly, Petitioner has met her burden of proving by a preponderance of the evidence that Respondent's removal of L.E.W. to the United States was wrongful within the meaning of the Hague Convention. In defiance of a Canadian court order and Petitioner's custody rights, Respondent wrongfully removed the child from Canada on December 20, 2017. Respondent's unlawful exercise of self-help in removing the child from Canada on the evening before the Canadian court was scheduled to hold a custody hearing compels the court to order return of the child to Canada, where he has habitually resided his entire life.

         At the same time, however, the court heard clear and convincing evidence that the child would be subject to a grave risk of harm were he to be returned to Canada without the implementation of certain safeguards, called undertakings, which are necessary to assure the child's safety. Subject to the undertakings, the court will CONDITIONALLY GRANT the Verified Petition.

         I. PROCEDURAL HISTORY

         On February 5, 2018, Petitioner filed the instant Verified Petition against Respondent and his father, Lewis Edward Wertz II, [1] along with a request to expedite proceedings and issue a show cause order. The court issued a show cause order on February 9, 2018, requiring the two respondents and the minor child to appear in court on February 15, 2018. At that hearing, Petitioner appeared through counsel; the two respondents appeared pro se and brought L.E.W. with them. Respondents invoked the grave risk exception to the Hague Convention and submitted documentation in support thereof.

         Because the well-being of the child was called into question, the court appointed a guardian ad litem for L.E.W., and directed him to conduct an independent investigation into the facts relevant to the Verified Petition and the defenses raised by the respondents. Additionally, given the complexity of this area of the law, the nature of the defenses raised, and the gravity of what is at stake, the court sua sponte appointed counsel for Respondent.[2]

         Respondent Lewis Edward Wertz, III, filed a Verified Answer to the Petition. The parties each submitted an affidavit of Canadian law as well as a pretrial brief setting forth in detail the applicable law and their respective positions.

         The guardian ad litem conducted in-person interviews with Respondent, L.E.W., and the child's paternal grandparents. He also interviewed Petitioner via videoconference and Petitioner's 16-year-old daughter J.W. (L.E.W.'s half-sister)-at J.W.'s request and with Petitioner's permission-via telephone. The guardian ad litem interviewed a witness, Wayne Corby, and reviewed court records and orders from Canadian custody proceedings, as well as relevant medical records, school records, and various journal entries. Upon completion of his investigation, the guardian ad litem filed a report and recommendation setting forth his findings.[3] The report was provided to the parties and has been filed on the docket under seal, at the court's direction. The court received it into evidence at the March 15 bench trial.

         At trial, the court heard testimony from Petitioner, Petitioner's daughter J.W., Respondent, witness Wayne Corby, and Respondents' two expert witnesses, Apostolos Dallas, M.D., and Jeannie Berger, Ph.D. Based on the testimony elicited at trial, the documentary evidence provided to the court, and the guardian ad litem's report, the court makes the following findings of fact.

         II. FINDINGS OF FACT

         Petitioner is a Canadian citizen who currently residents in Niagara Falls, Ontario. She has two daughters from previous relationships. The older was raised by her biological father and lives in Calgary, Alberta. Her younger daughter, J.W., is 16-years-old and lives with a friend's family near her mother's home in Ontario. This living arrangement was created through an informal agreement, rather than by court order, although J.W. had previously been placed in foster care for brief periods of time. J.W. testified that she sees her mother frequently but the family she lives with is better able to meet her educational and basic needs.

         Respondent is a dual citizen of Canada and the United States. Respondent attended high school in Roanoke, Virginia and, after college, spent four and a half years in the military, receiving an honorable discharge. Thereafter, he pursued work as an engineer, [4] and in 2007, his work took him to the Niagara Falls area, where he met Petitioner online.

         Petitioner and Respondent were married in Canada on November 3, 2007, but did not live together until June 2008 when they purchased a home in Niagara Falls, Ontario. The parties had one child, L.E.W., born April 3, 2009, who is a dual citizen of Canada and the United States. The family lived together in Ontario while Respondent worked as an engineering professor. Respondent testified this teaching job was conducive to having a young family and allowed him to take an active role in L.E.W.'s life. Over summer vacation, Respondent would take L.E.W. to Virginia for extended visits with family.

         But the marriage was troubled, and the parties separated in late 2009. Petitioner left the family home and moved to public housing, where she continues to reside, with J.W. and the infant L.E.W. Respondent remained in the family home. The parties eventually divorced but continued to maintain a sporadic sexual relationship long after their initial separation. This relationship was tumultuous.

         Both parents developed a close bond with L.E.W. and sought custody of him. Over the span of die ensuing eight years, the Canadian court was asked to resolve custody issues. As early as January, 2010, while the child was still an infant, Family and Children's Services Niagara ("FACS") became involved. The Ontario Office of the Children's Lawyer ("Children's Lawyer") was appointed to represent L.E.W.'s interests in the custody proceedings. Two reports from the Children's Lawyer dated August 9, 2010 and August 15, 2011 have been made part of the record in this case, manifesting the lengthy involvement of Canadian authorities with the parties' domestic and custody issues.

         Those reports provide a glimpse into the substance abuse issues that permeate this case. But it was Petitioner's trial testimony that gave the court a full view of Petitioner's prolific use of illegal substances over the course of two decades. Petitioner admitted to using cocaine, crack cocaine, heroin, crystal meth, and marijuana, [5] as well as abusing a staggering list of prescription drugs-Dilaudid, Ritalin, Percocet, OxyContin, Ativan, Adderall, morphine, methadone, diazepam, suboxone, and ketamine-by various means. Petitioner testified she has used drugs while L.E.W. was at school, used cocaine, crystal meth and opiates while L.E.W. was asleep in her home, and smoked marijuana in L.E.W.'s presence.[6]The court is not aware of any Hague Convention cases involving this level of substance abuse, and the enormity of Petitioner's drug abuse, while the child was in the home, overshadows this case.

         Petitioner testified that she completed a 35-day treatment program in 2014 but has relapsed several times over the past two years. As recently as 2017, she admitted to using both cocaine and crystal meth and had numerous positive drug screens. Her trial testimony on this point stands in sharp contrast to the representations she made in her Verified Petition, filed in this court on February 5, 2018, in which she attested she "has been completely free of illicit substances for approximately two years." Verified Pet., ECF No. 1, at ¶ 32; see also Id. at ¶ 33. The testimony also is at odds with the account she gave the guardian ad litem, where she stated that she had been drug-free since last summer.

         Other aspects of Petitioner's life closely associated with her pervasive drug abuse compound the risk to the child. Arguably the most troubling is Petitioner's relationship with John, a man she knew had been charged with sexual abuse of a child and had a history of domestic abuse of women. Petitioner testified that although she was aware that John had been ordered to have no contact with his own child, she nevertheless began an abusive relationship with him in May 2017, to which her child was exposed. Testimony at trial established that Petitioner appeared at Respondent's house drunk in the middle of the night complaining that John had abused her.[7] Another time, Petitioner testified John threw a cup at her and cut her face. John was arrested, charged, and served 75 days in jail for this abuse. The court is not convinced that the threat posed by the child's exposure to men such as John has passed. Indeed, although Petitioner claims to be done with him, John is no longer in prison and was seen by her on the street.

         Although Petitioner admitted that John was present in the home with L.E.W., she insists she never left her son alone with him. Nonetheless, his presence so troubled both a neighbor of Petitioner and a former student of Respondent, that each contacted Respondent to make him aware of the situation. Respondent testified that Petitioner's neighbor, Patty, called him to tell him that John was spending time at Petitioner's house with L.E.W. This was the one and only phone call Respondent ever received from Patty. Patty told Respondent she intended to call FACS to report this information as well. Separately, but around the same time, Respondent's former student Wayne Corby learned that John was dating Petitioner and spending time with L.E.W. Corby used social media to track down Respondent, eventually reaching him through Respondent's aunt. FACS, after being notified of John's contact with L.E.W., wrote a letter to Petitioner dated June 8, 2017, stating:

Upon review of [John's] contacts with the Society and the potential risk that he poses to yourself and your son, the Society would have grave concerns about your son's safety and wellbeing if [John] was to have any contact with him.
As per our discussion today, on June 8, 2017, this letter is to confirm that you agree that [John] will not have any contact with you if your son is present. If the Society should learn that your son is having contact with [John], we will be required to [take] more intrusive action.. ..

         Resp't Ex. 38, Letter from Patty Krawec to Tammy Wertz.Qune 8, 2017).

         The court's concern that Petitioner's drug-influenced lifestyle poses a risk to L.E.W. was confirmed by her on-and-off romantic relationship with another man, Shawn. Petitioner described Shawn as the "main friend" with whom she used drugs. She testified Shawn has given her crystal meth, heroin, and Dilaudid, and that she has given Shawn her prescription Percocet. Petitioner and Shawn used drugs together in her home while L.E.W. slept. At trial, Petitioner referenced by name a host of others she bought drugs from, sold drugs to, and/or used drugs with-neighbors, friends, and a prostitute she met through Shawn.

         In 2011, Petitioner overdosed on Ritalin and suffered a psychotic episode in which she hallucinated and wandered around the common area of her housing complex with a baseball bat, believing there were homeless people in the bushes and dead babies on the ground. Petitioner was hospitalized for two days following this episode, which her daughter J.W. witnessed. L.E.W., who was then just shy of 2, was asleep at the time.

         Petitioner has not engaged in legitimate employment in more than a decade.[8] She survives on social assistance and has resorted to illegal means of earning income, such as selling drugs and prostituting herself through an escort agency called Niagara Dolls. Petitioner testified she last worked as a prostitute in 2013. This testimony contradicts a statement she made to the court-appointed guardian ad litem that she had only ever exchanged sex for money with Respondent. Petitioner admitted on direct examination that she was not truthful about this fact in her interview with the guardian ad litem.[9]

         Petitioner frequently asked Respondent for money, long after the parties divorced. At times, money was given in exchange for sexual favors. Other times, Petitioner requested, and Respondent paid, money so that she could afford bus fare to the suboxone clinic or to buy L.E.W. lunch at school. As recently as December 2017, Petitioner emailed Respondent stating she needed $100 that day, or she would be forced to pawn her cell phone or sell her belongings online. Respondent gave her $100. At trial, Petitioner testified that it was possible that she used that money to buy drugs.

         Other incidents of Petitioner's addiction adversely impacted the child. Importantly, school records from 2016-17 reveal L.E.W. was absent 21 and a half days and tardy 56 days while he was in Petitioner's care. Petitioner admitted leaving L.E.W. alone, unsupervised, with men who lived in her housing complex-one of which is known to Petitioner only by first name. Further, in 2016, she assaulted Respondent in front of L.E.W. While in the car on the way to her suboxone treatment, she punched Respondent and split his lip open.

         Petitioner claims to have "changed drastically" since then. To her credit, she has sought counseling and has been undergoing suboxone treatment in an effort to get her substance abuse under control and make better choices. She has had multiple "restarts" at the clinic after missing her treatment, and has testified to a number of recent relapses, which Dr. Dallas testified is to be expected given the nature of this insidious disease. Drug screens from the past few months of 2018 have been clean, and she claims to be resolute in her desire to live a drug-free life. Yet her self-described support system includes a friend with whom Petitioner currently smokes marijuana and from whom she has illegally purchased suboxone. Also of concern is Petitioner's testimony that she is confident in her ability to stay clean because the "main friend" she did drugs with-Shawn-is currently incarcerated. All of this, along with her admitted false statements and long history of drug abuse, leads the court to find Petitioner's claim that she is capable of assuring the safety of the child utterly incredible.

         The parties' domestic issues are not all one-sided. Although Respondent denies ever physically abusing Petitioner, he admitted to confining her in a room on one occasion when L.E.W. was approximately six months old. This incident allegedly arose out of Petitioner's use of marijuana in the child's presence. Petitioner called the police and subsequently, without warning, moved out of Respondent's house and into government housing, taking J.W. and L.E.W. with her. Respondent testified that for over a year, no one would tell him where Petitioner and his son were living. This marked the beginning of a long, hotly contested custody dispute between the parties in the Canadian courts.

         L.E.W. resided primarily with Petitioner until her psychotic episode in January 2011, after which L.E.W. was placed in Respondent's care temporarily. Petitioner's access to her son was initially supervised in the months following her hospitalization but eventually included unsupervised visits at her home. An August 2011 report by the Children's Lawyer recommended Respondent have full custody of the child but found Petitioner should have unsupervised access. The report further recommended neither party shall relocate outside a 30 kilometer radius of Niagara Falls or take the child out of. Ontario for any reason without first obtaining court permission.

         On September 26, 2012, the Canadian court entered a final order giving both parties joint custody of L.E.W., but setting his primary residence with Respondent and secondary residence with Petitioner. The order provided Petitioner access to L.E.W. every Monday and Wednesday from 9:00 a.m. to 6:00 p.m. and every Friday from 9:00 a.m. to Saturday at 12:00 p.m. or Saturday at 10:00 a.m. until Sunday at 12:00 p.m. The order provided that Respondent shall make important decisions about the child's welfare after consulting with Petitioner, but placed ultimate decision-making authority with Respondent to the extent the parties could not agree.

         On June 20, 2017, after FACS became aware of Petitioner's relationship with John and directed that L.E.W. have no contact with him, FACS sent Respondent a letter, stating:

This is to advise you that Family and Children's Services Niagara has concluded the child protection matter referred to us on June 12, 2017. The allegations were verified; however, as [L.E.W.] is in the care of you, his custodial parent, there are no current protection concerns and the file will close. As we have discussed, please ensure that [L.E.W.] is not exposed to people who may pose a risk to him while visiting his mother.

         Resp't Ex. 38, Letter from Patty Krawec to Ted Wertz (June 20, 2017). For Respondent, who had witnessed what he described as Petitioner's "slow degradation" over the preceding two years, the exposure of L.E.W. to the danger posed by John was the final straw. Believing the Canadian court had vested in him final decision-making authority as the primary custodial parent, Respondent determined to move L.E.W. to Virginia and informed FACS of this fact at a meeting on June 9, 2017. Respondent read FACS's June 20 letter as vesting in him sole responsibility for the well-being of his son.

         The record documents Respondent's numerous unsuccessful attempts to contact Petitioner in June and inform her of his intentions to move to Virginia by end of summer 2017, so that L.E.W. could begin third grade in Roanoke in the fall. For her part, Petitioner claims to have first learned that Respondent took L.E.W. and relocated to Virginia by email from Respondent dated July 7, 2017. She filed a contempt petition against Respondent in the Canadian court in July, but Respondent was never served with this petition for reasons unclear to the court. L.E.W. began third grade in Virginia.

         Petitioner hatched a plan to get L.E.W. back up to Canada and convinced Respondent to bring him to Ontario in November for J.W.'s birthday party. During that visitation, Petitioner took L.E.W. to a women's shelter so she could maintain custody over him until a hearing could be scheduled in the Canadian court. The parties entered into a joint custody agreement on November 22, 2017, which was memorialized in a temporary order by the Canadian court bearing the same date but signed December 21, 2017. That order provides that L.E.W. shall reside with Petitioner from Sunday at 8:00 a.m. through Wednesday at 7:00 p.m. and shall reside with Respondent from Wednesday at 7:00 p.m. through Sunday at 8:00 a.m. each week. The court ordered Respondent to deliver L.E.W.'s birth certificate and passport to his attorney to be held pending further order of the court, and required Respondent to give Petitioner 15 days notice of any change of address from his Niagara Falls residence. The order further stated that L.E.W. was to be enrolled at Kate S. Durdan Public School, and that his place of residence was deemed the Niagara Region. The court ordered a FACS report to be prepared within 30 days. The balance of the September 26, 2012 final custody order remained in full force and effect. A final custody hearing was scheduled for December 21, 2017.

         On December 20, 2017, Canadian law enforcement informed Petitioner that Respondent had crossed the Canadian border into the United States with L.E.W., after picking the child up for court-ordered physical custody time that evening. Respondent did not appear at a scheduled custody hearing in the Canadian court the following day and sent Petitioner a text message saying simply: You lose. Petitioner worked with legal aid attorneys to secure American counsel. The instant Verified Petition followed.

         The court received reports and heard testimony from two expert witnesses at the March 15-16, 2018 trial of this matter. Apostolos Dallas, M.D., an internal medicine physician, testified as to the effects of drug abuse on individuals. In relevant part, he opined that Petitioner was likely to relapse again, based on her history of significant drug use and the insidious nature of this disease. Jeannie Berger, Ph.D., a clinical psychologist, described Petitioner's "phenomenal" substance abuse and noted records indicate a trajectory of increased drug use from 2014 to 2017, which poses a great risk to L.E.W.[10]

         III. ...


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