Below is my draft writ - I urge constructive comments before I file on Friday:
No.
In The
SUPREME COURT OF THE UNITED STATES
KARL ERNEST HINDLE,
Petitioner,
Vs.
SHEILA KAY FUITH,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
Karl E. Hindle,
Pro Se Petitioner,
8654 Scottingham Drive,
Richmond,
Virginia 23236
Questions Presented
1. Whether the conduct of the courts of the State of Florida hearing this issue have so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power in that a child ordered by the British Supreme Court under an international treaty binding on the United States, to receive medical treatment for an eye condition, has been ignored by the Floridian courts resulting in permanent blindness for the child;
2. Whether upon accepting a child has been internationally abducted to the U.S., can the courts of the State of Florida seize jurisdiction over the matter on the basis no other state in the United States has jurisdiction, despite the constant and continuous objection of the petitioner that England is the proper forum, and does this seizure of jurisdiction constitute a violation of the father and/or child’s rights to due process; and
3. Whether a fraudulent application filed under the Hague Convention on the Civil Aspects of International Child Abduction (1980) filed by the mother and a U.S. Department of State official, with the British Government, falsely claiming jurisdiction under that Convention lay in Florida, was an international child abduction under color of law and/or a violation of the U.N. Convention on the Rights of the Child regarding “illicit removals”.
Opinions Below
The order denying hearing by the Supreme Court of the State of Florida is reproduced in the index.
The opinion and judgment of the Fifth District Court of Appeals of the State of Florida is reproduced in the index.
The final order of the Volusia County Court, 7th Judicial Circuit of the State of Florida is reproduced in the index.
The order of the British Supreme Court sending the child to the State of Florida, including an order for medical treatment for the child’s eye condition is reproduced in the appendix.
Basis for Jurisdiction
The orders of the Florida State courts, entered July 12, 2010 by the Supreme Court of Florida denying review of the Fifth District Court of Appeal’s judgment of April 23, 2010 (claiming jurisdiction on the basis of no other state of the United States holding jurisdiction) and the court of first instance, entered on October 6th, 2008 (claiming jurisdiction based upon residency).
The petitioner seeks review of the judgment of these courts, including the judgment by the highest State court in which a decision could be had and invokes this Honorable Court’s jurisdiction under 28 U.S.C. 1257(a).
Constitutional Provisions Involved
The Fourteenth Amendment to the United States Constitution provides: “All person born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws..”
International Treaties Involved
Statement of Case
A. Procedural History
After the child was unilaterally removed from the U.K. to the U.S. by the mother in February 2003, the father attempted to seek relief in the Minnesota courts in March 2003, but was denied due to lack of jurisdiction in the United States.
Subsequently, he sought relief before the Wisconsin courts in April 2003 but was denied due to lack of jurisdiction in the United States.
On June 6th 2003, the father petitioned Chelmsford County Court, Essex, England (where the child had been born and lived until unilateral removal to the United States). That court seized jurisdiction and issued the father with parental responsibility order on August 14, 2003.
The child was voluntarily returned to the U.K. on September 19, 2003 and placed into the father’s care by British police. The father returned to the English court for a permanent residency order on September 24, 2003, however these proceedings were stayed by the British Supreme Court (the “High Court”).
The British Supreme Court received an application under the Hague Convention filed by Barbara J. Greig, a U.S. Department of State official, on behalf of the mother claiming the State of Florida held jurisdiction on the basis of her six month’s residency in that state.
On October 3, 2003 the British Supreme Court “returned” the child to the State of Florida on the basis of that application, and also vacated the father’s English orders based on lack of jurisdiction as Florida held it. The Hague Convention order includes a series of orders, known as “undertakings”, which included that the child was to receive medical treatment “forthwith” for her eye condition, upon arrival and that proceedings were to be filed in the State of Florida to determine the child’s future.
On November 10, 2003 the father filed in Volusia County Court, 7th Judicial Circuit, Florida for primary residency and other issues.
On April 20, 2004 the court accepted a certified copy of the foreign order of the British Supreme Court and both mother and father’s attorneys argued there was no jurisdiction in the State of Florida based on mother’s lack of residency in the state. The court ignored the lack of jurisdiction and continued proceedings which were substantially delayed by the arrest and deportation of the father at the request of Barbara Greig of the U.S. Department of State, his subsequent life-time ban from travel to the U.S. and when overcome, the further abduction of the child out of state and further concealment by the mother and Ms. Greig.
The child was located and returned to Florida in December 2006; however the father had to depart the country due to visa restrictions placed upon him by the U.S. Department of State. He was subsequently denied entry to the U.S. until May 2008.
Final judgment was issued on October 6, 2008 after a hearing on May 28th, 2008. The Lower Court claimed jurisdiction on basis of mother’s six month residency in the State prior to filing of the action and stated, “In this County, we’re provincials. We don’t do the Hague Convention.”
No enforcement of the British Supreme Court order for medical treatment for the child’s blindness is provided at any time during proceedings or in the final judgment of the Lower Court.
Father appeals to Fifth District Court of Appeal on a timely basis on November 7, 2008. In his briefs filed with that Court, the father argued lack of jurisdiction of the Florida court based on six month residency not being satisfied and the fraudulent claim of the mother and U.S. Government before the British Supreme Court that Florida held jurisdiction.
The father further argued that his and/or the child’s 14th Amendment rights had been violated by the arbitrary seizure of jurisdiction by the Lower Court and that the removal of the child from the U.K. on both occasions constituted an “illicit removal” for the purposes of the U.N. Convention on the Rights of the Child and such seizure of jurisdiction was also not in conformity with the U.C.C.J.A. or U.C.C.J.E.A. as subsequently enacted, i.e. to prevent forum shopping and the wrongful removal and retention of children across jurisdictional borders.
The father also argued that the lower court had not held fair hearings, nor had it acted in a timely fashion as required under Florida judicial standards nor the Hague Convention for speedy resolution of issues, having taken almost 5 years to issue a final judgment.
In addition, the father argued that comity should have been granted for the British Supreme Court order for the child to receive medical treatment for her blindness and that the mother allowing the child to go blind precluded an award of custody based on T.B. v. Department of Children & Families 718 So.2d 397. Other matters were argued including child support and visitation costs.
The Appellate court issued a judgment and opinion on April 23, 2010 reversing in part and affirming in part. The Appellate court agreed that the child had been abducted from the U.K. by the mother (referring to the mother’s “unilateral removal” from the U.K., this being the language of the U.C.C.J.E.A. for ‘child abduction’), but then proceeded to claim jurisdiction on the basis no other state in the United States held it, whilst ignoring the fraud on the British Supreme Court which resulted in the child physical presence in Florida. The father also claimed that his and/or the child’s due process rights had been violated as a consequence.
The Appellate court agreed to review the child support and visitation cost issues and reversed, but refused to review any other matter, including the failure to enforce the British Supreme Court order for medical treatment for the child’s blindness.
The father issued a timely appeal to the Supreme Court of the State of Florida on May 25, 2010 based on the conflict of the Lower Court’s decision with the British Supreme Court order for medical treatment for the child’s blindness, and lack of jurisdiction.
On June 24, 2010 that Honorable Court struck the British Supreme Court order from the record.
Subsequently, that Honorable Court refused review on July 12, 2010.
The father/petitioner subsequently files a timely application for writ of certiorari with the Supreme Court of the United States.
B. Facts Presented at Trial
Abduction from the United Kingdom
The petitioner reproduces the opinion issued by the Fifth District Court of Appeal, “The child was born in the United Kingdom where
the father resides and removed to Florida by the mother’s unilateral decision.” (p.5, para.2, line 3).
“Unilateral removal” is the language of the U.C.C.J.A. for child abduction (see sec. 1(a)(5)).
Blindness
The father presented on April 20th, 2003 and at final hearing on May 28th, 2008, the British Supreme Court order issued October 3rd, 2003 for the child’s medical treatment “forthwith” in Florida.
The father presented a British eye hospital medical report (a report of Broomfield Eye Clinic, Broomfield Hospital, Chelmsford, UK) and American medical eye doctor (Dr. Robert Cordero of DeLand, Florida), on the child’s medical condition and need for medical treatment, including what that treatment consisted of and the prognosis for continued lack of treatment, i.e. blindness. This was presented at trial, however the Lower Court refused to accept any evidence from the father during the protracted proceedings despite ordering an independent medical examination on January 13, 2006 which further concluded the child was treatable (this was performed by Dr. Robert Cordero above).
The father presented 2 depositions of the mother, the child’s prospective “adoptive” mother, Shannon Merriam together with the child’s prospective “adoptive” grandfather, Leslie Merriam, on the need for medical treatment for the child at final trial.
The Lower Court excluded all the above evidence from the record after trial and prior to judgment.
The Appellate Court granted the father’s motion to supplement the record with this evidence on April 13, 2009 then refused to review it.
The Supreme Court of Florida refused review as stated above.
Pedophile/Adoption
At trial, the father submitted the depositions of Leslie Merriam, a convicted pedophile who testified to the proposed “adoption” of the child in March/April 2003 by the mother to his son and daughter-in-law, Shannon Merriam. A deposition from Shannon Merriam affirming the efforts to adopt the child and her physical placement with herself and her husband was also submitted.
The entry of Leslie Merriam in the Wisconsin Sex Offenders Registry was also submitted.
The Lower Court excluded all this evidence after trial and before judgment.
The Appellate Court granted the father’s motion to supplement the record with this evidence on April 13, 2009, while the Supreme Court of Florida refused review as stated above.
Abduction from Florida and Subsequent Concealment of the Child by the Mother and Barbara Greig of the U.S. Department of State
The depositions of Terri Jacobson (owner of the home where the mother and child hid in Kansas), together with that of Robert Ozier (the mother’s cohabitating boyfriend in Kansas) were submitted at trial on May 28, 2010.
Both witnesses testified to the mother’s contact with the U.S. Department of State, and efforts involving that agency to change her and the child’s identity to evade detection. Ms Jacobson specifically testified to speaking with Barbara Greig at least once, wherein Ms Jacobson was advised by Ms Greig that everything “was on the up and up”, that no laws were being broken and that the allegations against the petitioner of sexual abuse of his children, domestic violence and so forth, were true.
At this time, the petitioner had legal custody of the child, who was classified as Missing & Endangered by the authorities.
These depositions were submitted at trial on May 28, 2010, but excluded by the Lower Court after trial and before judgment.
The Appellate Court granted the petitioner’s motion to supplement the record with them on April 13, 2009, but then subsequently refused to review, while the Florida Supreme Court refused review as stated above.
Father’s arrest and barring from the United States by mother and Barbara J Greig to conceal fraud abduction of child under color of law
Letters from the mother’s attorney of record to Ms. Greig and the U.S. Department of Homeland Security, requesting variously denial of visas to travel to the U.S.; refusal of entry to the U.S.; claiming he was a threat to the mother and his child (after the mother had lost a domestic violence injunction application and was admonished by the Lower Court for her behavior) were submitted at trial on May 28, 2010.
A fax from Ms. Greig to the arresting agents of the U.S. Department of Homeland Security on the day of the petitioner’s arrest was also submitted.
Reasons for Granting the Writ
National & International Importance
The U.S. Department of State and the Congressional Tom Lantos Commission on Human Rights have both stated that there are several thousand American children abducted and retained overseas. Equally, similar numbers are abducted to the United States. Additionally, significant numbers of children are returned to the United States by Hague Convention partners complying with the Convention.
At the Tom Lantos Commission on Human Rights, Ernie Allen, President of the National Center for Missing and Exploited Children testified on December 2, 2009 regarding serious improvement steps he felt should be taken to encourage returns of abducted children to the United States:
“Fourth, we should educate all judges – both in the U.S. and internationally - about their responsibilities under the Hague Convention. This training should focus on how swift resolution of these cases best serves the child victims.”
And
“Fifth, we can play an important role in encouraging other countries to return abducted American children by reciprocating when their children are abducted into the United States. As we seek to find the best ways to resolve abductions involving American children who are taken abroad, we must be equally vigilant in resolving cases in which children are abducted from another country and brought into the United States. To better fulfill this responsibility, we should educate U.S. state and local law enforcement about the issue of international child abduction and the obligations of the United States under the Hague Convention.”
The Hague Convention relies on trust between signatory partners. Trust that the Convention aims will be respected and met by participants and most of all, that the children subjected to it will be protected.
U.S. Government officials must not involve themselves in assisting in the abduction and concealment of children to the United States, nor in partisan activities designed not to protect the children, but to thwart the aims of international and domestic law and then to protect themselves from discovery.
The British Supreme Court justice, Sir Justice Johnson stated, “It is inconceivable to me that an American court will not enforce the order for medical treatment.”
The inconceivable has been conceived in the Floridian courts and while the petitioner is justifiably angry at the inordinate delay in proceedings such is not the sole fault of the Florida legal process, but also that of the arbitrary, unlawful and prejudicial involvement of Barbara Greig of the U.S. Department of State.
Such has been the impact of the unfolding evidence of this matter that questions were tabled in the British Parliament and the British Foreign & Commonwealth Office was compelled to dispatch a senior diplomat to Washington D.C. to seek assurances from the U.S. Department of State Assistant Secretary of State Maura Harty.
It takes enormous amounts of political, legislative and diplomatic effort to encourage countries such as Japan to accede to the Convention. In Japan’s case, H.R.1326 condemning Japan for non-accession was recently passed by the House; however Japan and many other countries have still not signed the Convention.
Recently, the Sean Goldman case achieved national and international significance. Sean was abducted and retained in Brazil (a Hague Convention signatory) from his custodial father, David Goldman of New Jersey. A constant theme of the Brazilian family retaining Sean was that the child would be better protected in Brazil; that fairer court proceedings would take place in Brazil; that American courts would be biased against the Brazilian family and act only in favor of the American father’s interests and much more. After several years, the vigorous efforts of Congressman Christopher Smith and Congress, and the monumental effort of the father, David Goldman and thousands of supporters worldwide, did Sean finally come home for Christmas 2009.
Such xenophobic claims are commonplace for American parents traveling overseas in their efforts to recover their children and the example of this case reinforces those impressions. It is imperative that the United States demonstrates a continuous example of fairness towards foreign parents, and especially, that the children who are entrusted to its courts are protected in fact. Building on the reputation the U.S. has for disregarding the Hague Convention when it is “inconvenient” (whether true or not), does a great disservice to children abducted overseas, the children abducted to the U.S., or entrusted to it under the Hague Convention, not to mention all of the parents involved.
Many countries cite concerns over protection of the child, and fair treatment of their own citizen parent in the United States if the treaty is signed or if a child is sent to the United States.
This case demonstrates those concerns are justified, i.e. a U.S. government official assisting in the removal of a child from her proper home state and concealing her in the U.S.;letting a child become permanently blinded for the sake of simple, basic medical treatment; allowing the child to be endangered by being placed up for adoption and into the care and contact of a convicted pedophile, denying a relationship between the child and her foreign parent; undue delay in proceedings; orchestration of arrest and deportation of the foreign parent; obstructing access to the U.S. courts by manipulating visa issuance; misuse of the criminal justice, child protection and domestic violence systems to threaten and intimidate the foreign parent and obstruct the litigation in the child’s best interests.
As a foreigner in America, now married to an American wife and father to a British/American child with many links and ties to the United States, I know it is morally and lawfully wrong to allow a child to go blind, for US agencies to involve themselves in abducting and hiding children, to misuse their power to deny access to courts, to unlawfully take someone’s liberty or to thwart the law. This is un-American behavior.
Uniformity of Treatment by U.S. Courts hearing Cases Upon a Return Order
When a child is “returned” to the United States under the Hague Convention, this is not the end of the matter, but rather the beginning. The Hague Convention makes no distinction as to which of the two parents is more fit; a ruling under the Hague Convention is specifically not a determination of parental fitness.
Serious issues may remain, and indeed, the parent who successfully initiates a Hague Convention action may in fact be unfit as a parent.
When a child is returned to their country of habitual residence, proceedings should be allowed to take place speedily, without “artificial” interference, but with proper deference to the return order made under the Hague Convention and concerns for the protection of the children involved.
An order for medical treatment has been simply ignored resulting in a child’s blindness while presiding Judge John V. Doyle claimed, “In this County, we’re provincials. We don’t do the Hague Convention,” and then excluded all the medical evidence which subsequent state courts refused to review.
There are few cases on the subject of “undertakings” and those that are extant deal with undertakings when ordering a child to a foreign Hague Convention signatory.
There appear to be none on undertakings upon a return order to the United States being issued by a foreign court.
However, in Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir. 2005) where the Court stated, "the rendering court [can] satisfy itself that the children will in fact, and not just in legal theory, be protected if returned to their abuser's custody," the court should refuse to grant the Hague petition, leads to a conclusion that the child should not have been returned to the United States by the British Supreme Court because she has “in fact” been seriously and permanently harmed, i.e. blinded.
This is not a reputation the American courts and authorities should risk acquiring, for it will, if not already, adversely impact the successful return to America of hundreds of internationally abducted children.
I end this with the words of Mr Ernie Allen of the NCMEC in his December 2, 2009 testimony before the Congressional Tom Lantos Commission on Human Rights”
“It is critical that the United States continue to improve our response to international child abduction so that we are able to serve as a model for other countries. We are encouraged by the Department of State’s improvements to build capacity to handle these cases. The United States plays an important role in the world community. Once we ensure that our own house is in order – that our law enforcement officers and judges consistently apply the policies and best practices of the Hague Convention – we can stand on the world stage and bring others to the table for the benefit of all children.”
Conclusion
For the reasons stated above, the writ should be granted and the case set down for argument.
Respectfully submitted,
Karl Hindle
Pro se petitioner,
