                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                      September 19, 2006
                             FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                         Clerk of Court



    FARRAH L. DIDUR,

              Plaintiff-Appellant,

     v.                                                   No. 05-3440
                                                   (D.C. No. 05-CV -2188-JW L)
    THOM AS VIGER,                                          (D . Kan.)

              Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges.


          Farrah L. Didur appeals from the district court’s decision denying her

Petition for Return of Child to the Petitioner. M s. Didur filed the petition seeking

the return of her child, J.D., to Canada pursuant to the Hague Convention on the

Civil Aspects of International Remedies Act (the Hague Convention), which was

implemented in the United States through the International Child Abduction



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Remedies Act (ICARA), 42 U.S.C. §§ 11601-11611. W e have jurisdiction under

28 U.S.C. § 1291. W e reverse and remand for further proceedings.

      The district court denied the petition on the basis that the respondent,

Thomas Viger, met his burden of establishing by clear and convincing evidence a

grave risk of harm to J.D. if the child were returned to M s. Didur’s custody in

Canada. Normally, we would review this factual finding for clear error. See

Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir. 2002). W e need not resolve this

factual determination, however, because a procedural error occurred that requires

remand. Cf. Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006)

(remanding for further proceedings on factual issue after district court acted sua

sponte and without notice in deciding the issue).

                                    Background

      M s. Didur and M r. V iger both acknowledge that M r. V iger is J.D.’s father.

The parties were never married and M s. Didur has had full custody of J.D. since

his birth in 1999. In February 2005, J.D. came to Kansas to live with his father

for a few months. In M arch of that same year, M r. Viger refused to return J.D. to

M s. Didur’s custody.

                          Proceedings in the District Court

      On M ay 10, 2005, M s. Didur filed a petition in district court seeking J.D.’s

return to her custody in Canada. In M r. Viger’s answer, he asserted as an

affirmative defense that returning J.D. to Canada would expose the child to a

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grave risk of harm. M r. Viger was permitted to take M s. Didur’s deposition and

obtain some other discovery. In June, the magistrate judge held several status

conferences. After the June 30 conference, a hearing was set for July 18.

Regarding the hearing, the minute sheet from the June 30 conference states:

      On the [grave risk] issue, petitioner is willing to proceed on a proffer
      from respondent of the facts respondent believes he can prove
      regarding that issue. W ithout petitioner agreeing that respondent can
      prove those facts, the parties may present oral argument and written
      briefs at the hearing regarding the question of whether under the
      proffered facts the child is in “grave risk” if returned to Canada.

Aplt. App. at 25.

      At the hearing, M r. Viger sought to present evidence on the grave risk issue

in the form of an exhibit. The court asked if there was any objection to the

exhibit and then the following exchange occurred between counsel and the court:

      M r. Nelson: Your Honor, my understanding from the court’s
      previous order was that M r. Sw all was going to present a statement
      of proffered facts on which he believed that there was a grave risk. I
      believe that’s included in what M r. Sw all has given me and is stated
      as his statement of facts. Again, I am not admitting anything. I’m
      willing for the court to consider all of it.

      The Court: Okay. W ell, let’s just be clear on the record w hat’s
      being submitted to the court for review so we have got some record.

      [M r. Sw all]: I assembled these in an exhibit folder form for both the
      court’s use and for M r. Nelson’s use here today. If I may go through
      those.

      The Court: Yeah. I mean, I think M r. Nelson is correct. I forgot to
      restate the reference in the minute sheet, since we moved then to the
      question of grave risk, and that was that on the second issue
      petitioner was willing to proceed on a proffer from respondent of the

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      facts respondent believes he can prove regarding the issue, and then
      they will present argument and briefs if necessary. So w ith that
      foundation, tell me what these documents are that you’re proffering
      so we have got it in the record what they are.

Id. at 157-58.

      The court then accepted the proffered exhibit and stated: “Okay. Under the

structure we have already described, Respondent’s Exhibit C will be admitted for

the purpose stated.” Id. at 159-60. M r. V iger then proceeded to offer testimony.

At one point, M s. Didur’s counsel attempted to object to some of M r. Viger’s

testimony, stating: “I guess, your Honor, I’ll have to object to this witness

testifying about what some other witness may or may not [inaudible].” Id. at 170.

The court responded:

      W ell, I understand all that, but it seems to me that what we’re
      proceeding on is the court’s order of June 30, which said petitioner is
      willing to proceed on a proffer from respondent and the facts
      respondent believes he can prove, so I don’t think it goes to the
      question of admissibility; it goes to the question of, are these part of
      the proffer? So I think it needs to be allowed under the
      circumstances we set up. So the objection is overruled on that basis.

Id. at 170-71. After M r. Viger’s testimony, the following exchange took place:

      The Court: . . . Does petitioner have any proffer she wants to make
      on the question of grave risk?

      M r. N elson: No, your honor. W e’re going to deny the allegations.

      The Court: Right. That was clear from the structure we set up. The
      question then becomes, it would seem to me, since I’ve not had an
      opportunity to review this, it doesn’t make sense to have oral
      argument; it would make more sense to have expedited briefing on
      what– I mean, there are two questions I want briefed: One, what is a

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      grave risk under the statute and the treaty; and second whether this
      proffer constitutes that.

Id. at 186-87.

      After reviewing the briefs submitted by the parties, the magistrate judge

issued its report and recommendation. In the report, the magistrate judge made

the following statement: “Even though the parties agreed to proceed on a proffer,

the M agistrate Judge determines that the information contained in Respondent’s

proffers is admissible in this case for the purpose of making a determination on

the Petition for Return of Child under the Hague Convention.” Id. at 55. The

magistrate judge then recommended denying the petition concluding that

M r. Viger had established by clear and convincing evidence that returning J.D. to

M s. Didur in Canada would expose him to physical or psychological harm.

      M s. Didur filed objections to the magistrate judge’s report and

recommendation. She argued that the magistrate judge erred in finding that the

facts proffered by M r. Viger constituted grave risk because “she has not yet had

the opportunity to challenge the truthfulness of those allegations . . .” Id. at 81.

She explained that “Petitioner did not admit the allegations were true and did not

waive her right to present full testimony or evidence if it was determined that the

bare allegations rose to a level believed to be ‘grave risk.’” Id. at 89. She

therefore asserted that “there is now insufficient information before the Court on




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which it can deny Petitioner’s request since the case is now only at a preliminary

stage.” Id.

      The district court overruled M s. Didur’s objections and adopted the

magistrate judge’s report and recommendation. In response to M s. Didur’s

allegation that she has not had the opportunity to challenge the truthfulness of the

accusations, the district court stated “[t]his is incorrect, as the adversarial hearing

conducted by the M agistrate Judge presented this very opportunity.” Id. at 98.

                                      Discussion

      As stated in the June 30 minute sheet, the parties had agreed to proceed on

a proffer of evidence of the facts that respondent believed he could prove. See

Aplt. App. at 25. By agreeing to proceed on a proffer, petitioner was not agreeing

that the respondent could actually prove those facts. Id. The agreement to

proceed by proffer w as restated by the magistrate judge at the July 18 hearing.

Id. at 157-58. Consistent with this process, the magistrate judge refused to allow

petitioner’s counsel to object to the admissibility of evidence because respondent

was proceeding solely on the basis of facts he believed he could prove so the only

relevant question was whether the evidence was within the scope of the proffer.

Id. at 170-71. Petitioner did not offer any evidence on the grave risk issue; she

simply denied all of the allegations. The magistrate judge acknowledged that he

expected that the petitioner would not offer any evidence, stating: “Right. That

was clear from the structure we set up.” Id. at 186-87.

                                           -6-
      It is evident from the record that the parties and the magistrate judge

believed that the July 18 hearing was a preliminary hearing to determine whether

the respondent’s proffered evidence, if proven to be true, could establish a grave

risk of harm to J.D. if he was returned to M s. Didur’s custody in Canada. The

hearing was not set up to test the admissibility or credibility of the evidence, as

recognized by the magistrate judge’s reaction to petitioner’s objection to

admissibility. In the post-hearing briefs, the parties continued to act as though

this was a preliminary hearing. The respondent recited his facts as “proffered

facts,” id. at 31, characterized the proffered facts as “[e]xamples of how the

natural mother exposes the child to grave risk of harm,” id. at 32 (emphasis

added), and did not give any record citations for the proffered evidence, id. at 32-

37.

      W hen it came time for the magistrate judge to issue his report and

recommendation, however, he sua sponte decided to disregard the parties’

agreement and stated: “Even though the parties agreed to proceed on a proffer,

the M agistrate Judge determines that the information contained in Respondent’s

proffers is admissible in this case for the purpose of making a determination on

the Petition for Return of Child under the Hague Convention.” Id. at 55. W ithout

giving any notice to the M s. Didur or giving her an opportunity to respond to the

evidence or challenge its admissibility, he then made a merits determination,

concluding that M r. Viger had established by clear and convincing evidence that

                                          -7-
there is a grave risk of harm to J.D. if he is returned to M s. Didur’s custody in

Canada.

      The district court mischaracterized the July 18 hearing as an adversarial

hearing where M s. Didur had the opportunity to challenge the truthfulness of

M r. Viger’s accusations. The record reflects otherwise. The district court also

determined that M s. Didur had waived her right to challenge the admissibility of

M r. Viger’s evidence because she had not specifically objected to the district

court’s decision to admit the evidence under the relaxed standards of the Hague

Convention. W e disagree. M s. Didur was objecting to the entire process

employed by the magistrate judge in disregarding the parties’ agreement and

treating the proffered evidence as fact without giving her the opportunity to

challenge it. Necessarily included in this objection is an objection to the

magistrate judge’s decision that all of the evidence was properly admissible for a

merits determination.

      The magistrate judge’s merits decision, as adopted by the district court,

constitutes a procedural error that requires us to reverse the denial of M s. Didur’s

petition and remand for further proceedings to allow M s. Didur to present rebuttal

evidence and/or to challenge the admissibility of the proffered evidence presented

by M r. V iger. Cf. Sm ith, 445 F.3d at 1261 (remanding for further proceedings on

factual issue after district court acted sua sponte and without notice in deciding

the issue).

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      The judgment of the district court is REVERSED and REM ANDED for

further proceedings. The mandate shall issue forthwith.



                                                  Entered for the Court



                                                  Bobby R. Baldock
                                                  Circuit Judge




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