Tucker v. Ellenby, et al.
Filing
44
ORDER denying 39 Respondent Adena Ellenby a/k/a Adena Tucker's Motion for Abstention. Signed by Magistrate Judge Edwin G. Torres on 11/4/2011. (aed)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-22857-CIV-UNGARO/TORRES
SOL TUCKER,
Petitioner,
v.
ADENA ELLENBY, et al,
Respondents.
___________________________________/
ORDER ON RESPONDENT’S MOTION FOR ABSTENTION
This matter is before the Court on Respondent Adena Ellenby a/k/a Adena
Tucker’s (“Respondent”) Motion for Abstention [D.E. 39] and Petitioner Sol Tucker’s
(“Petitioner”) Response in opposition thereto [D.E. 40]. On October 4, 2011, we held
an evidentiary hearing on Petitioner’s Verified Petition for Return of Child to
Petitioner (“Petition”). [D.E. 1].1 At the conclusion of the day-long hearing (during
which Petitioner completed the presentation of his case), we sua sponte raised the issue
of the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), and the
appropriateness of our abstaining from adjudicating the merits of the Petition in light
of the ongoing divorce and custody proceeding between Petitioner and Respondent in
the state trial court.
1
This matter was referred to the undersigned Magistrate Judge by the
Honorable Ursula Ungaro. [D.E. 16].
With the Court’s permission, Respondent formally moved for abstention under
Younger as well as Colorado River Water Conservation Dist. v. United States, 424 U.S.
800 (1976). Petitioner argues that abstention is not warranted under either Younger
or Colorado River.
We have considered the parties’ arguments on the abstention issue in light of the
evidence in the record before us. We conclude that abstention is not warranted for the
reasons discussed below. Accordingly, we Deny Respondent’s motion for abstention
and will set this matter for hearing in order to conclude the evidentiary portion of the
case and to hear argument from counsel on the merits of the Petition.
I. BACKGROUND
A.
Petition Filed in This Court Pursuant to the Hague Convention
and ICARA
This case involves Petitioner’s claim that Respondent wrongfully removed their
two-year old son, Mateo Robinson Tucker (“the child”), from his habitual residence of
Belize and is, with the assistance of her parents, Respondents Marc J. Ellenby and
Kiki Ellenby (“the Ellenbys”), wrongfully retaining the child in the United States,
without his consent and in violation of his custody rights over the child. Through the
Petition filed in this court on August 8, 2011 pursuant to the Hague Convention on the
Civil Aspects of International Child Abduction, Oct. 25, 1980 (“Hague Convention”),
T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, and its implementing legislation, the
International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. § 11601, et seq.,
Petitioner seeks the return of the child to Belize.
Respondent and the Ellenbys dispute the allegations of wrongful removal and
retention. They also raise two affirmative defenses to the Petition, alleging that (1)
Petitioner consented to or subsequently acquiesced in the removal or retention of the
child and (2) there is a grave risk that returning the child to Belize would expose him
to physical or psychological harm or otherwise place him in an intolerable situation.
[D.E. 18, 21, 24]. Accordingly, they urge us to deny the Petition.
B.
Divorce and Custody Proceeding in State Court
Prior to the filing of the Petition in this court, on March 29, 2011, Respondent
filed a petition for dissolution of marriage in the Circuit Court of the 11th Judicial
Circuit in Miami-Dade County, Florida, seeking in part sole parental custody of the
child. See Ellenby v. Tucker, No. 2011-009819-FC-04 (Fla. Cir. Ct.). The case was
pending until very recently.2
Parental time-sharing was ordered but final
determinations on dissolution and custody have not yet been made. It is undisputed
that Petitioner did not ask the state court to order that the child be returned to Belize
based on allegations of wrongful removal and retention pursuant to the Hague
Convention and ICARA or on any other basis.
II. ANALYSIS
Respondent argues that we should abstain from deciding the Petition and allow
the issues raised therein to be decided in the state custody proceeding pursuant to the
Younger and Colorado River abstention doctrines. The parties recognize that federal
2
We have been advised that the state court judge has entered or will be
entering a stay in the case based on communications with this Court and the
anticipated denial of the motion to abstain.
and state courts have concurrent original jurisdiction over international child
abduction cases such as this one. 42 U.S.C. § 11603(a). But Respondent contends that
the Hague Convention issues should have been raised in the state court action, for the
financial benefit of the parties, the convenience of state witnesses, and in the interest
of judicial economy.
Moreover, she asserts that there are no extraordinary
circumstances here such that deference to the state court would present a significant
and immediate potential for irreparable harm to the federal interests asserted.
A.
Younger Abstention
Federal courts have a “virtually unflagging obligation . . . to exercise the
jurisdiction given them.” 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir.
2003) (citing Colorado River, 424 U.S. at 817)).
“Virtually” is not “absolutely,”
however, and in exceptional cases federal courts may and should withhold equitable
relief to avoid interference in state proceedings. Id. “The Younger doctrine, which
counsels federal-court abstention when there is a pending state proceeding, reflects a
strong policy against federal intervention in state judicial processes in the absence of
great and immediate irreparable injury to the federal plaintiff.” Moore v. Sims, 442
U.S. 415, 423 (1979).3 This doctrine is an exception to the general rule of nonabstention and derives from “the vital consideration of comity between the state and
national governments.” 31 Foster Children, 329 F.3d at 1274 (internal citation
omitted). Under Younger, abstention is warranted when (1) there is an ongoing state
3
The Younger case concerned state criminal proceedings but its principles
have been applied to civil proceedings in which important state interests are involved.
Moore, 442 U.S. at 423.
judicial proceeding with which the federal proceeding would interfere; (2) the state
court proceeding implicates important state court interests; and (3) the state court
proceeding provides the petitioner with an adequate opportunity to raise his claims.
Id.; Yang v. Tsui, 416 F.3d 199, 202 (3d Cir. 2005).
We conclude that Respondent has failed to demonstrate that our adjudication
of the Hague Convention claim would interfere with the ongoing state custody
proceeding, an essential showing under the first Younger factor. 31 Foster Children,
329 F.3d at 1276. In deciding this issue, we look to the relief requested and the effect
it would have on the state proceeding. Id.
Petitioner seeks the return of his child to Belize, the country alleged to be the
child’s habitual residence and from which he allegedly was wrongfully removed. The
goals of the Hague Convention are “to secure the prompt return of children wrongfully
removed to or retained in any Contracting State” and “to ensure that rights of custody
and of access under the law of one Contracting State are effectively respected in other
Contracting States.” Lops v. Lops, 140 F.3d 927, 935 (11th Cir. 1998) (quoting the
Hague Convention, art. 1).4 A court deciding a petition for relief under ICARA and the
Hague Convention “has jurisdiction to decide the merits only of the wrongful removal
claim, not of any underlying custody dispute.” Id. at 936; see also 42 U.S.C. §
11601(b)(4); Hague Convention, art. 16. The Hague Convention is thus designed to
restore the pre-abduction status quo and to deter parents from crossing international
borders in search of a more sympathetic forum. Lops, 140 F.3d at 936.
4
Convention.
Both the United States and Belize are signatories to the Hague
Our adjudication of the issues raised in the Petition – whether the child’s
removal from Belize and his retention in this country were wrongful and, if so, whether
he should be returned to Belize – would not affect the custody determination that
would be made in state court pursuant to state family law. The Third Circuit in Yang
succinctly summarized the differences between Hague Convention petitions and
custody disputes for purposes of the abstention question:
The difference in subject matter between a custody determination and an
adjudication of a Hague Convention Petition is the reason for finding no
interference if the Hague Convention issues have not been presented in
state court. Custody litigation in state court revolves around findings
regarding the best interest of the child, relying on the domestic relations
law of the state court. An adjudication of a Hague Convention Petition
focuses on findings of where the child was habitually located and whether
one parent wrongfully removed or retained the child. Hague Convention,
art. 3, 19 I.L.M. at 1501. These are distinct determinations and the
statutory language of the Hague Convention and ICARA explicitly
provides that these determinations do not need to be made by the same
court[:] “[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.” 42 U.S.C. § 11601(b)(4).
416 F.3d at 203 (emphasis supplied). In Yang, because the Hague Convention had not
been raised in the state custody proceeding, the court concluded that the federal court’s
adjudication of a Hague Convention petition would not interfere with the state action.
Id. at 203-204.
As in Yang, in our case the Hague Convention was not raised in the state
proceeding. This fact is not in dispute.5 Because there is no Hague Convention claim
5
Any suggestion that Hague Convention issues were injected into the state
proceeding is not well-taken. Petitioner’s actions in making the state judge aware that
he had applied to the State Department and later filed a Petition in federal court
seeking the return of his child under the Hague Convention and ICARA, do not equate
to his initiating a judicial proceeding in state court for the return of his child. 42
pending in the state proceeding, our adjudication of the Petition will not interfere with
the state proceeding. See Yang, 416 F.3d at 203 (“It is clear that if the state proceeding
is one in which the petitioner has raised, litigated and been given a ruling on the
Hague Convention claims, any subsequent ruling by the federal court on these same
issues would constitute interference. It seems equally clear that, if the state court in a
custody proceeding does not have a Hague Convention claim before it, an adjudication
of such a claim by the federal court would not constitute interference.” (emphasis
supplied)); Barzilay v. Barzilay, 536 F.3d 844, 852 (8th Cir. 2008) (finding district court
abused its discretion in abstaining from adjudication of Hague petition where neither
parent filed a Hague petition in the pending state custody proceeding and thus the
Hague Convention issues were not properly or fully raised in that proceeding).
The second Younger factor, whether the state proceeding implicates important
state court interests, likewise does not support abstention. It cannot be disputed that
the State of Florida has a strong interest in domestic relations and custody matters,
but they are not issues in our case. The Petition seeks the return of the child “under
the Hague Convention and ICARA, which is a federal statutory matter.” Yang, 416
U.S.C. § 11603(b) (“Any person seeking to initiate judicial proceedings for the return
of a child . . . may do so by commencing a civil action by filing a petition for the relief
sought in any court which has jurisdiction of such action and which is authorized to
exercise its jurisdiction in the place where the child is located at the time the petition
is filed.”). Similarly, requesting that the state judge address parenting time with the
child (or grant “access” under Article 21 of the Hague Convention) is not a request for
the return of the child pursuant to the Hague Convention and ICARA. Determining
the best interests of the child under state law for custody purposes does not resolve the
merits of Respondent’s contention that returning the child to Belize presents a grave
risk of physical or psychological harm to him. It is clear there is no overlap in the
issues that will be adjudicated in the different cases.
F.3d at 204 (citing Hazbun Escaf v. Rodriquez, 191 F. Supp. 2d 685, 693 (E.D. Va.
2002) (custody is not at issue in a Hague Convention petition, which addresses only the
propriety of the removal or retention of a child across national boundaries and thus
implicates important federal interests in foreign relations and the enforcement of U.S.
treaty obligations)); see also Barzilay, 536 F.3d at 850 (a state has an important
interest in child custody matters but “that interest has not been considered to be a
significant factor in terms of abstention where ICARA is involved.”); Grieve v. Tamerin,
269 F.3d 149, 153 (2d Cir. 2001) (concluding that the state’s interest in the resolution
of a child custody dispute litigated in its court did not appear “to raise the sort of
substantial comity concerns requiring Younger abstention”).6 The state’s interest here,
while important, does not support Younger abstention.
Moreover, we agree with the Yang court that if a federal court abstained from
adjudicating a Hague Convention petition simply because child custody was being
disputed in state court, the Hague Convention and ICARA would be rendered
meaningless. 416 F.3d at 204. The purpose of the Hague Convention “is to provide a
reasoned determination of where jurisdiction over a custody dispute is properly placed.”
Id. at 203. Until that issue is resolved, the custody dispute in state court cannot be
6
Although the Second Circuit determined in Grieve that the state’s interest
in custody issues was not sufficiently significant within the meaning of Younger to
support abstention, the court nevertheless affirmed the district court’s order abstaining
on that ground. 269 F.3d at 152-55. The affirmance was based solely on collateral
estoppel grounds: when the father failed to appeal a different district court’s ruling
that abstention was required under Younger, that ruling became final and, by
operation of collateral estoppel, conclusive between the parties, so that the father was
precluded from raising Hague Convention claims in another proceeding in a different
district court. Id. 153-54.
determined with finality. Hague Convention, art. 16; see also Hazbun, 191 F. Supp.
2d at 690 (a state court may proceed to determine legal custody only where the court
in which the Hague Convention claims were raised first finds that the petitioner
cannot prove wrongful removal or retention or where the respondent establishes one
of the available affirmative defenses). As a result, a federal court’s “[d]eference to a
state court’s interest in the outcome of a child custody dispute would be particularly
problematic.” Grieve, 269 F.3d at 153; see also Hazbun, 191 F. Supp. 2d at 693 (the
state court’s interest in a custody matter did not arise until after the Hague
Convention and ICARA issues were resolved).
Finally, Respondent has failed to establish the third Younger factor for
abstention. Although the state court has jurisdiction to entertain a Hague Convention
petition, Petitioner did not raise such a claim in the state proceeding. He chose instead
to file the Petition in federal court. It is unlikely, therefore, that Petitioner will have
an adequate opportunity to raise his Hague Convention claims in the state forum. See
Yang, 416 F.3d at 204; Hazbun, 191 F. Supp. 2d at 692.
Because Respondent failed to meet the Younger requirements for abstention, we
deny her motion on that ground.
B.
Colorado River Abstention
Respondent also asks us to abstain from adjudicating the merits of the Petition
under the Colorado River abstention doctrine. This doctrine allows abstention by a
federal court in favor of a parallel state proceeding based on “considerations of ‘(w)ise
judicial administration, giving regard to conservation of judicial resources and
comprehensive disposition of litigation.’” Colorado River, 424 U.S. at 817 (internal
citation omitted). Abstention from federal jurisdiction is the exception, however, not
the rule. Lops, 140 F.3d at 942 (citing Colorado River, 424 U.S. at 813 (the doctrine
of abstention “is an extraordinary and narrow exception to the duty of a District Court
to adjudicate a controversy properly before it.”)).
When a parallel state court proceeding exists, the Supreme Court has outlined
six factors to consider in determining whether to abstain and dismiss a federal action:
(1) whether one of the courts has assumed jurisdiction over any property
in issue; (2) the inconvenience of the federal forum; (3) the potential for
piecemeal litigation; (4) the order in which the forums obtained
jurisdiction; (5) whether federal or state law will be applied; and (6) the
adequacy of each forum to protect the parties’ rights.
Id. at 942-43 (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
15-16 (1983)). No one factor is per se determinative; how each factor is weighed
depends on the facts of each case. Id. at 943. When on balance the factors weigh
against abstention, the federal court should proceed notwithstanding the existence of
the a parallel state proceeding.
We first must determine whether the concurrent state and federal cases are in
fact parallel proceedings. The cases need not involve identical parties, issues, and
requests for relief. Ambrosia Coal & Constr. Co. v. Pagés Morales, 368 F.3d 1320,
1329-30 (11th Cir. 2004). Rather, they must “involve substantially the same parties
and substantially the same issues.” Id. at 1330. If the cases are not parallel, the
Colorado River doctrine does not apply.
We find this threshold test has not been met. Arguably the parties are not
substantially the same. Petitioner is asserting a wrongful retention claim against the
Ellenbys in federal court whereas neither of the Ellenbys is a party to the divorce and
custody proceeding in state court. Although the relief requested in federal court is the
return of the child to Belize, which based on the facts of the case is directed more
toward Respondent than her parents who allegedly are assisting in the wrongful
retention of the child, the Ellenbys are nevertheless subject to this Court’s jurisdiction,
once properly invoked, under the Hague Convention.
More significant to our determination here is the fact that the issues are not
substantially similar. As we already discussed in connection with Younger abstention,
the subject matter of the two cases is decidedly different. This Court cannot decide
issues of custody, only which jurisdiction should properly determine custody. And the
state court cannot decide whether the child should be returned to Belize. It is true, as
Respondent points out, that some of the same evidence could be used to support both
her affirmative defense to the Hague claim (i.e., grave risk of harm if the child is
returned to Belize) and her allegation that awarding her sole parental custody is in the
best interests of the child. However, the fact that the same evidence could be used in
both proceedings does not mean the issues are necessarily substantially similar. See,
e.g., Hazbun, 191 F. Supp. 2d at 689 n.16 (although some of the defenses to the return
of a child under the Hague Convention may mirror those in a custody dispute, the
purpose of a Hague Convention proceeding is not to determine the best interests of the
child as is the case in a custody dispute).
Even assuming the existence of a parallel state proceeding, we find abstention
under Colorado River inappropriate. The first factor is inapplicable as neither the
state nor federal court has jurisdiction over any property at issue.
The second factor, which addresses the convenience of the federal forum, does
not favor abstention because all the parties are present within the district, making this
forum convenient.7
The third factor focuses on the potential for piecemeal litigation and does not
favor abstention. There is no potential for that as our adjudication of the Petition will
fully resolve all issues relating to the wrongful removal and retention of the child,
including which jurisdiction should decide the custody issues – issues that are not
before the state court judge. See, e.g., Small v. Clark, No. 5:06-CV-125-Oc-10GRJ, 2006
WL 1281415, at * 1 (M.D. Fla. May 9, 2006); Hazbun, 191 F. Supp. 2d at 694.
The fourth factor, the order in which the forums obtained jurisdiction, likewise
does not favor abstention. The dissolution/custody petition was filed in state court
about four and a half months before Petitioner filed his Petition in federal court.
However, proper application of this factor requires a comparison of the progression of
the respective cases. See Ambrosia, 368 F.3d at 1333 (this factor “should not be
measured exclusively by which complaint was filed first, but rather in terms of how
7
Respondent’s suggestion that the federal proceedings are inconvenient for
witnesses from Belize because only the state court has judicial administration rules
that specifically address the use of communication equipment during hearings [D.E.
39 at 9] is irrelevant when we can ensure that appropriate communication equipment
is available as necessary during court proceedings. Moreover, Respondent has not
proffered any witnesses in Belize who are indispensable in this proceeding.
much progress has been made in the two actions” (citing Moses H. Cone, 460 U.S. at
21)); Lops, 140 F.3d at 943.
There is no Hague Convention issue before the state court so, obviously, that
court could make no progress in that regard. Progress has been made in our case,
however. We attempted to expedite consideration of the Petition by scheduling a
hearing for September 9, 2011, one month after the Petition was filed on August 8,
2011. [D.E. 17]. We reset the hearing twice at various parties’ request [D.E. 19, 22,
23, 26, 29, 31], finally holding the hearing on October 4, 2011 [D.E. 35]. Petitioner
presented his case-in-chief during that day-long hearing. Having decided against
abstention, an Order setting a date on which to conclude the presentation of the
evidence will be forthcoming.
The fifth Colorado River factor counsels against abstention as it is federal, not
state, law that is applied in a Hague Convention/ICARA proceeding. See Lops, 140
F.3d at 943.
Finally, with regard to the sixth factor, the adequacy of each forum to protect
the rights of the parties, “ICARA is a federal statute enacted to implement a treaty
entered into by the federal government. Federal law provides the rule of decision in
this case, which counsels against abstention by the federal district court.” Id.
On balance, we find these factors strongly militate against abstention in this
case under the Colorado River doctrine. Accordingly, Respondent’s motion is denied
on this basis.
III.
CONCLUSION
Based on the foregoing, it is hereby ORDERED and ADJUDGED that
Respondent Adena Ellenby a/k/a Adena Tucker’s (“Respondent”) Motion for Abstention
[D.E. 39] is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 4th day of
November, 2011.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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