14-4734-cv
Tann v. Bennett
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 12th day of May, two thousand sixteen.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
----------------------------------------------------------------------
LISA TANN,
                                 Petitioner-Appellant,

                        v.                                               No. 14-4734-cv

GEORGE ALAN BENNETT, AKA Alan Bennett, AKA
Alan Dorris, MIRANDA BENNETT,
                                 Respondents-Appellees.*
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                                  SHARON LYNN NOSENCHUCK
                                                          (Diana M. Straube, on the brief)
                                                          Neighborhood Legal Services, Inc.,
                                                          Buffalo, New York.

FOR APPELLEE:                                             Noemi Fernandez,    Esq.,   Buffalo,
                                                          New York.



*
    The Clerk of Court is directed to amend the caption as set forth above.


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      Appeal from a judgment of the United States District Court for the Western

District of New York (Jeremiah J. McCarthy, Magistrate Judge).1

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on November 25, 2014, is AFFIRMED.

      Petitioner Lisa Tann, a citizen of the United Kingdom who resides in Northern

Ireland and is the mother of now 14-year-old J.D., appeals from a judgment of the district

court dismissing her petition for J.D.’s repatriation under the Hague Convention on the

Civil Aspects of International Child Abduction (“Hague Convention” or “Convention”),

Oct. 25, 1980, T.I.A.S, No. 11,670, 1343 U.N.T.S. 89, and its implementing legislation,

the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001 et seq.,

and allowing J.D. to remain in the United States with respondents George Alan Bennett

and Miranda Bennett, J.D.’s father and stepmother, pending a custody determination by

New York State.2 Tann argues that the district court erred in relying on J.D.’s objection

to returning to Northern Ireland in denying her petition because J.D. was not sufficiently


1
  Magistrate Judge McCarthy was, with the consent of the parties pursuant to 28 U.S.C.
§ 636(c) and Local Rule 73 of the United States District Court for the Western District of
New York, designated to conduct all proceedings in this matter, including the entry of
final judgment.
2
  While this appeal was pending, the Family Court of Orleans County, State of New
York, granted George Alan Bennett sole custody of J.D. See Family Court Order, Tann
v. Bennett, No. 14-4734-cv (2d Cir.), ECF No. 69, Ex. C; see also Tann v. Bennett, 807
F.3d 51 (2d Cir. 2015). Because Tann had the opportunity to raise a jurisdictional
challenge in that forum, we do not review her challenge to Magistrate Judge McCarthy’s
conclusion that, once repatriation was denied, New York had jurisdiction to determine
J.D.’s custody on the merits. See Decision & Order at 13–14, Tann v. Bennett, No. 1:13-
cv-00823 (JJM) (W.D.N.Y. Nov. 24, 2014), ECF No. 55.


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mature to make such a decision and respondents unduly influenced his testimony. While

we review de novo the district court’s interpretation of the Hague Convention and its

application to the facts it has found, we review the court’s underlying factual

determinations only for clear error. See Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir.

2001). In so doing, we assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

       The Hague Convention aims to protect children “from the harmful effects of their

wrongful removal or retention” and to restore the “status quo, by means of the prompt

return of children wrongfully removed to or retained in any Contracting State.” Gitter v.

Gitter, 396 F.3d 124, 129–30 (2d Cir. 2005) (internal quotation marks omitted). Thus,

the Convention demands the return of a wrongfully removed child to the child’s habitual

residence unless respondent establishes that an exception applies.          See 22 U.S.C.

§ 9003(e)(2).

       Article 13 of the Hague Convention “permits a court to refuse to order the return

of [a wrongfully retained] 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.” Blondin v. Dubois, 238 F.3d at 166 (internal quotation marks omitted). Whether

a child is “old enough and mature enough” for his “views to be considered” is a question

of fact, as is the determination that a child actually objects to returning to his country of

habitual residence. Id. at 158.

       We identify no clear error in the district court’s conclusion that J.D. had “attained

an age and degree of maturity at which it [wa]s appropriate to take account of [his]

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views.” Hague Convention, art. 13. “The Convention does not establish a minimum age

at which a child is old enough and mature enough to trigger this provision.” Blondin v.

Dubois, 238 F.3d at 166.

       After observing then nearly thirteen-year old J.D.’s responses and demeanor

during an in camera interview, the district court found the child “to be a very intelligent

and decent young man,” and concluded that “J.D.’s desire to remain in New York should

be respected” pending resolution of the state custody proceedings. Decision & Order at

12, Tann v. Bennett, No. 1:13-cv-00823 (JJM) (W.D.N.Y. Nov. 24, 2014), ECF No. 55

(“Decision & Order”). In so ruling, the court implicitly found J.D. sufficiently mature for

the exception to apply. “This finding, relying as it (in part) did on the Court’s personal

observations of [J.D.], is of the sort peculiarly within the province of the trier of fact and

is entitled to considerable deference.” Blondin v. Dubois, 238 F.3d at 167 (internal

quotation marks omitted); see United States v. Cuevas, 496 F.3d 256, 267 (2d Cir. 2007)

(explaining that “finding is clearly erroneous when although there is evidence to support

it, the reviewing court on the entire evidence is left with the definite and firm conviction

that a mistake has been committed,” but noting that “[f]actual findings based on the

testimony and observation of witnesses are entitled to particular deference” (internal

quotation marks omitted)).      Nothing in the transcript of J.D.’s in camera interview

suggests that the court’s maturity finding was clearly erroneous. Accordingly, because

Magistrate Judge McCarthy was in the best position to gauge J.D.’s maturity level, we

will not disturb his finding.



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       Insofar as Tann claims that J.D. expressed only a “preference” to stay in the

United States, as opposed to a specific objection to returning to Northern Ireland, the

record shows otherwise. J.D. testified that (1) he did not always feel safe in Northern

Ireland, (2) he “would really feel bad” if he were returned, and (3) he might hurt himself

or others if he was forced to return. Decision & Order at 6–7 (internal quotation marks

omitted). On this record, we cannot conclude that the district court clearly erred in

finding that J.D. objected to returning to Northern Ireland.3

       Nor do we identify error in the district court’s refusal to consider that respondents’

wrongful retention of J.D. contributed to J.D.’s preference for living in the United States.

Nothing in our precedent requires such consideration. Rather, our precedent instructs,

without qualification, that “a court may refuse repatriation solely on the basis of a

considered objection to returning by a sufficiently mature child.” Blondin v. Dubois, 238

F.3d at 166 (emphasis in original).

       As for Tann’s contention that respondents unduly influenced J.D.’s testimony, the

district court specifically found the child’s testimony was “not the product of undue

influence” by respondents “but instead reflect[ed] the realities of his current situation.”

Decision & Order at 12.         During his in camera interview, J.D. expressed his

3
  Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259 (3d Cir. 2007), cited by Tann, warrants
no different conclusion. There, the Third Circuit held that a district court did not clearly
err in concluding that a ten-year old’s reasons for wanting to stay in the United States did
not invoke the exception because they indicated only “a more generalized desire” to
remain in the United States, rather than “particularized objections to returning to
Canada.” Id. at 279. Unlike the child in Tsai-Yi Yang, J.D. expressed not only a
preference for remaining in the United States, but also particularized complaints about
both his prior time in Northern Ireland and the prospect of returning there.


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understanding of the oath he had taken to tell the truth, see id. at 6, and stated that his

parents and stepmother “did not try to influence him to testify in any particular manner”

and counseled him “just to be honest,” id. (internal quotation marks omitted). On this

record, we cannot conclude that the district court clearly erred in finding no undue

influence.

       We have considered Tann’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.


                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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