Danaipour v. McLarey

United States Court of Appeals
For the First Circuit

No. 03-2439

IRAJ DANAIPOUR,
Petitioner, Appellant,

v.

KRISTINA MCLAREY,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]

Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
Schwarzer*, Senior District Judge.

Stephen J. Cullen, with whom Miles & Stockbridge P.C. and Mary
A. Azzarito were on brief, for petitioner-appellant.
Rheba Rutkowski, with whom Beth I.Z. Boland, Jenny K. Cooper,
Bingham McCutchen LLP, Elizabeth B. Burnett, Paul D. Abbott, and
Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C. were on brief,
for respondent-appellee.
Pauline Quirion and Greater Boston Legal Services on brief for
Greater Boston Legal Services, Massachusetts Citizens for Children,
Community Legal Services and Counseling Center, Emerge, Inc., and
Gloucester Men Against Domestic Abuse, amici curiae.

October 12, 2004

*
Of the Northern District of California, sitting by
designation.
 LYNCH, Circuit Judge. Kristina McLarey, estranged from

her then-husband, Iraj Danaipour, in June 2001 removed her two

young daughters, A.D. and C.D., from Sweden, the country of

habitual residence, and brought them to the United States in

violation of a Swedish Court order. A.D. was then seven and C.D.

was almost three years old.

Danaipour filed suit in the United States in state court;

the case was removed to federal court, and he sought to have the

children returned pursuant to the International Child Abduction

Remedies Act, 42 U.S.C. § 11601, and the Hague Convention on the

Civil Aspects of International Child Abduction, opened for

signature Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89.

McLarey had filed her own Hague Convention action earlier to

prevent return; she responded to Danaipour's action by claiming the

extremely narrow protection available under Article 13(b) of the

Convention. Article 13(b) permits the court to decline to return

children to the country of habitual residence where return would

cause grave risk of physical or psychological harm to them or

otherwise place them in an intolerable situation. Specifically,

the mother asserted that the father had sexually abused both

children and returning the two children to Sweden would cause them

grave risk of harm.

The federal district court declined to resolve the

question of whether either of the girls had been sexually abused,

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preferring that the children be returned so the courts of Sweden

could resolve that issue. See Danaipour v. McLarey, 183 F. Supp.

2d 311, 314 (D. Mass. 2002). This court reversed. See Danaipour

v. McLarey, 286 F.3d 1, 5 (1st Cir. 2002) ("Danaipour I"). We

remanded the case with instructions that the sexual abuse question

must be decided (as part of the court's obligation to consider the

grave risk issue), and then that the question of grave risk be

addressed in light of this finding.

On remand, the district court found, after trial, by

clear and convincing evidence that the younger child, C.D., had

been sexually abused by her father but that the older daughter,

A.D., had not been. The court also found that there would be a

grave risk of harm to and an intolerable situation for both

children if the court ordered them returned to Sweden, where their

father continues to live. The father now appeals from that

decision.

The father's appeal argues that the judgment is based on

the following errors. Danaipour first contends the sexual abuse

determination falters for evidentiary insufficiency, based in part

on inadmissibility of certain evidence. He argues that the finding

of sexual abuse was clearly erroneous because the court-appointed

expert, Dr. Pierre, made no such finding and the district court

relied on the testimony of expert witnesses who had never met the

child. This argument is supplemented by the argument that the

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court abused its discretion in admitting multiple hearsay evidence

under Rules 803(4) and 807. Recognizing the dangers inherent in

partisan reports of a child's statements to an examining or

consulting expert (for example, by a mother accusing a father of

sexual abuse of a child), we hold there was no abuse of discretion

in admission of such evidence here, which was, inter alia, also

introduced through direct testimony and corroborated by statements

made directly to the doctors by the children.

As to the grave risk finding, Danaipour argues the court

erred in considering one item about the father's behavior, and that

it failed to comply with this court's mandate and committed

reversible error, as a matter of law, in failing to determine

whether the courts of Sweden could properly address any issue of

grave risk. Danaipour mischaracterizes the district court's

findings. The district court complied with this court's mandate

and, having answered the question of whether sexual abuse occurred,

separately addressed the issue of grave risk of harm to the

physical or psychological health of the children. The court's

findings that the return of the children to Sweden would cause

grave harm to the psychological health of the children was

supported by the record. That finding renders immaterial

Danaipour's arguments that the courts of Sweden could take

ameliorative actions to prevent further harm once the children had

been returned. In such circumstances, Article 13(b) does not

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require separate consideration either of undertakings or of steps

which might be taken by the courts of the country of habitual

residence.

The district court handled this difficult matter on

remand in an admirable and sensitive way. We affirm.

I.

The facts of this case are set out both in the original

district court's opinion, Danaipour v. McLarey, 183 F. Supp. 2d at

316-23, and in the original case before this court, Danaipour I,

286 F.3d at 5-13. We summarize those facts briefly here. Kristina

McLarey, a dual citizen of the United States and Sweden, lived with

Iraj Danaipour, a Swedish citizen and Iranian national, in Sweden.

The two met in Sweden and had their first child, A.D., there in

1994, shortly after which they were married in Massachusetts. They

returned to Sweden and had a second child, C.D., in 1998. The

family lived in Sweden, with frequent visits to the United States,

where Ms. McLarey's family resides.

The couple's marriage deteriorated, and they jointly

filed for divorce in February of 2000. They were eventually

awarded joint custody of the children, with McLarey residing at the

couple's condominium and Danaipour at his girlfriend's apartment.

The two girls alternated between them on a weekly basis. During

this time, McLarey noticed vaginal redness and soreness by her

younger daughter, C.D., as well as symptoms of anxiety by both

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girls, such as nightmares, headaches, and stomachaches when they

returned from being with their father. McLarey testified that she

questioned C.D. about her vaginal soreness, and the child responded

"Baba [the child's name for her father] do like this," after which

C.D. made a masturbatory motion. McLarey reported this information

to a child psychologist, who issued a report of suspected child

abuse and referred the case to Swedish social services, who then

contacted the police to investigate. In November 2000, the police

briefly interviewed the girls (A.D. was questioned for less than an

hour, and C.D. was questioned for five minutes), who were

nonresponsive to their inquiries. The Swedish police terminated

their investigation in January 2001.

In early 2001, McLarey requested a separate sexual abuse

evaluation by the Swedish child and youth psychiatric unit. The

unit would not conduct such an investigation absent Danaipour's

consent, which he refused to give. During this time, C.D. made

additional disclosures to Ms. McLarey, her grandmother, and to Ms.

McLarey's boyfriend that raised further concerns that the child had

been sexually abused by her father. After videotaping one such

disclosure by C.D., in March 2001 McLarey sought a Swedish court

order for a full sexual abuse investigation. The court denied the

order because Danaipour opposed it.

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 McLarey left Sweden with her children and came to

Massachusetts. She did so without Danaipour's knowledge or consent

and in violation of a Swedish court custody order.

Shortly after arriving in Massachusetts, McLarey brought

both her children to a child psychologist, Dr. Toni Luxenberg, for

treatment for symptoms which McLarey thought resulted from sexual

abuse. Dr. Luxenberg's role was not to make an evaluation of

whether sexual abuse had taken place, but to treat the children.

McLarey informed Dr. Luxenberg of the disclosures C.D. had made to

her and other family members, and Dr. Luxenberg in addition spoke

to the children's grandmother. Thereupon, Dr. Luxenberg began

treating the girls, meeting them once a week together or separately

for approximately one hour. After C.D. developed a comfort level

with Dr. Luxenberg, the child began to make significant disclosures

to Dr. Luxenberg, above and beyond any she had made to her family

members. Such disclosures led Dr. Luxenberg to conclude that C.D.

had in fact been sexually abused by Danaipour. Dr. Luxenberg has

continued to treat C.D. and A.D. throughout this litigation.

II.

A. Sexual Abuse Finding

The original district court found that a forensic

examination would be needed to determine the sexual abuse question

and that the Swedish courts, acting under conditions set for return

of the children, could determine what to do after a forensic

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examination was done in Sweden. We disagreed. In Danaipour I,

286 F.3d at 26, we noted that on remand, if necessary, the district

court should order further evaluations, but we did not mandate any

particular method by which the district court should address the

two questions of whether there had been sexual abuse and whether

there was grave risk.

On remand, the district court decided that a new trial

should be held to determine whether sexual abuse occurred. The

court also decided that an independent expert evaluation should be

attempted as to whether either girl had been sexually abused,

mindful that this belated evaluation might prove to be inconclusive

and of the potential trauma to the children. The court appointed

an independent child psychologist, Dr. Claudette Pierre, to perform

a sexual abuse evaluation of the girls. Dr. Pierre spoke with both

girls, the parents, reviewed the file, and filed a report. Dr.

Pierre concluded that A.D. had not been abused. Dr. Pierre also

found that C.D. had in fact been traumatized by some events, most

likely sexual in nature, but that Dr. Pierre could not conclusively

determine whether C.D.'s father had in fact sexually abused her.

The parties agreed that the children should not testify.

In conducting the trial, the court elected to have the parties

submit affidavits for each of their witnesses as direct testimony,

and cross examination was done of these witnesses on the stand.

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The parties had the opportunity to object to evidence in the

affidavits.

Danaipour made a general unspecified objection to hearsay

evidence in the affidavits of McLarey's witnesses. The court then

asked for the objection to be stated more specifically in writing.

The court said it would allow the testimony and cross examination,

but would consider the written objection and whether to credit the

evidence when deciding the merits of the case.

Danaipour then filed a motion objecting only to any

"double hearsay," specifically referring to statements in the

psychologists' reports by family members recounting to the doctors

what the children had said to them. Petitioner conceded that

statements made by the children to the psychologists were

admissible under Fed. R. Evid. § 803(4), and conceded that

statements made by the children to family members were "arguably"

admissible under Fed. R. Evid. § 807 (and in any event did not

challenge these statements, and does not do so here).

After the trial, the district court found:

by clear and convincing evidence that sexual
abuse of C.D., who was slightly younger than
two and one-half years old at the time,
involving more than one occasion of
masturbation by and of Danaipour in the
presence of and involving C.D. took place
during this period of alternating supervision
in the fall of 2000. I find further that this
abuse stopped once a police investigation
began at the end of November 2000. At least
one act of abuse involved C.D. touching her
father's erect penis and led to her touching

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 his ejaculant. At least one other such act
involved digital masturbation of C.D. by
Danaipour.

The judge found the disclosures of the children to

McLarey, her then-boyfriend Morin, and the children's grandmother

to be credible. In doing so, however, the court noted that it

found pertinent Danaipour's expert's cautionary observations that

a custodial parent in the context of a divorce may misinterpret

behavior and symptoms of the child upon returning from a visit with

the non-custodial parent. The court noted that it was "especially

concerned that the reports of commentary by the children may have

been overstated or manipulated." With this concern in mind, the

court found these statements, given by the witnesses through their

affidavits and subject to cross examination, to be credible. The

court also used the indicia of credibility for statements by

sexually abused children submitted to the court by McLarey's

expert, Dr. Carole Jenny.

The court also found "highly persuasive" the disclosures

made by C.D. to Dr. Luxenberg and Dr. Pierre. The court found that

C.D.'s multiple disclosures to Dr. Luxenberg unambiguously

demonstrated that C.D. associated the word "hammer" with

masturbation, and that these references demonstrate that there were

multiple occasions of her participating in masturbation of

Danaipour and his masturbation of her. The court expressly

considered the concern of Danaipour's expert that these disclosures

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were tainted by inquiries by McLarey or Dr. Luxenberg, and found

that C.D.'s recollection was not "materially tainted or otherwise

the product of suggestion." The district court found that the

characters and themes developed by C.D. through her play therapy

with Dr. Luxenberg were used by her "as a means to express and

disclose the abusive circumstances to which she has been exposed,

and her reaction to those circumstances." We note only that our

discussion does not repeat all the evidence on which the conclusion

was based. Further, despite the fact that Dr. Pierre's ultimate

conclusion was inconclusive as to whether C.D. had been sexually

abused by her father, the court found that the corroborative

disclosure from C.D. obtained by Dr. Pierre supported its finding,

based on all the evidence, that C.D. had been abused by her father.

B. Grave Risk Finding

Having found by clear and convincing evidence that C.D.

was sexually abused by her father, the court then went on to

conclude, also by clear and convincing evidence, that returning the

children to Sweden would create a grave risk of psychological harm

and an intolerable situation for them. The court credited the

observations of both Dr. van der Kolk and Dr. Luxenberg that

returning C.D., who has been sexually abused, to the place of

trauma and location of her victimization can have profoundly

disturbing effects on the child. The court also credited the

conclusions of Dr. van der Kolk, one of McLarey's expert witnesses,

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that "it is important to the psychological well being of C.D. that

what she has disclosed be believed and not appear to lead as a

consequence to her return to the place of trauma." Thus, the court

found that her return would create a grave risk of "fractur[ing]

irremediably her sense of safety, justice and the value of truth

telling," a situation the court found would be intolerable for her.

The court found a similar, though derivative, effect would occur to

A.D. This, coupled with the fact that "[t]he parties have

proceeded on the assumption that the children should not be

separated and that any order under the Hague Convention would apply

to both," led the court to deny Danaipour's request to have the

children sent back to Sweden.

III.

A. Challenge to the Finding of Sexual Abuse of C.D.

The party opposing return of the children, here, the

mother, has the burden of proving the ultimate Article 13(b)

exception issue by clear and convincing evidence. Danaipour I, 286

F.3d at 13. Subsidiary facts need be proven only by a

preponderance of the evidence. We review factual determination

under the Hague Convention for clear error. Whallon v. Lynn, 230

F.3d 450, 454 (1st Cir. 2000). We review questions of

admissibility of evidence under an abuse of discretion standard.

See Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203, 212-13

(1st Cir. 1996).

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 The district court concluded that under Fed. R. Evid.

1101(b) "the summary character of Hague Convention proceedings does

not require application of the Federal Rules of Evidence regarding

hearsay. . . ." It nonetheless attempted "to parallel the

procedures for notice and the concern for guarantees of

trustworthiness which are found in Fed. R. Evid. 807, the residual

hearsay exception frequently used when courts receive out of court

statements by children in [a] child abuse case outside the Hague

Convention context." While summary proceedings certainly may occur

in cases under the Convention, this was not one. Indeed, this was

a full trial. Whatever our doubts, nonetheless, Danaipour has not

directly raised on appeal the point of the applicability of the

Federal Rules of Evidence; at most he argues that the mother's

family's recounting of the children's statements to physicians

constituted inadmissible double hearsay and was inherently

unreliable.

1. Objections to Portions of Doctor's Reports
Admitted Under Fed. R. Evid. 803(4).

Danaipour objects to the admission of those portions of

Dr. Luxenberg's reports containing statements by McLarey and her

family about what the two children said.

Fed. R. Evid. 803(4) provides an exception to the hearsay

rule for:

(4) Statements for purposes of medical
diagnosis or treatment. Statements made for
purposes of medical diagnosis or treatment and

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 describing medical history, or past or present
symptoms, pain, or sensations, or the
inception or general character of the cause or
external source thereof insofar as reasonably
pertinent to diagnosis or treatment.

Under the rule, there are three preconditions for

admission of such statements: (1) the statements must be made for

purposes of diagnosis or treatment1 (2) about (i) medical history

(ii) or past or present symptoms, pain, or sensations or (iii)

about the inception or general character of the cause or external

source thereof (3) insofar as they are reasonably pertinent to

diagnosis or treatment. Child therapists routinely, as part of

their diagnosis or treatment, obtain the type of statements made by

the patients here, A.D. and C.D., about the identity of the

perpetrator of the abuse. Morgan v. Foretich, 846 F.2d 941, 948-50

(4th Cir. 1988). Statements by young children amounting to

disclosure to treating therapists that they have been abused by a

1
We reject the notion, adopted by at least one circuit,
that identifications by children who are abuse victims to doctors
are only admissible "where the physician makes clear to the victim
that the inquiry into the identity of the abuser is important to
diagnosis and treatment, and the victim manifests such an
understanding." See Olesen v. Class, 164 F.3d 1096, 1098 (8th Cir.
1999) (quoting United States v. Renville, 779 F.2d 430, 438 (8th
Cir. 1985)). There are many ways in which a party wishing to enter
into evidence a statement under Rule 803(4) can demonstrate that
the statement was made for the purpose of diagnosis or treatment;
a per se rule requiring a doctor to explain to the victim why a
statement naming an abuser is important to diagnosis and treatment
is unnecessarily inflexible. See also United States v. Edward J.,
224 F.3d 1216, 1219-20 (10th Cir. 2000) (rejecting 8th Circuit's
approach and admitting victim's statements to doctor despite the
fact that physician did not explain that information was important
for treatment).

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member of their family are usually reasonably pertinent to

treatment of the child. United States v. Yazzie, 59 F.3d 807, 812-

13 (9th Cir. 1995)("[S]exual abuse involves more than physical

injury; the physician must be attentive to treating the victim's

emotional and psychological injuries, the exact nature and identity

of which depend upon the identity of the abuser.") (quoting United

States v. George, 960 F.2d 97, 99 (9th Cir. 1992)); Morgan, 846

F.2d at 949; United States v. Renville, 779 F.2d 430, 436 (8th Cir.

1985). Danaipour agrees that statements made directly by A.D. and

C.D. to Dr. Pierre and Dr. Luxenberg are admissible under Rule

803(4).

The problem presented here concerns statements by a

parent or family member, not the child, to a doctor of what C.D.

and A.D. said. The plain language of the rule does not require the

statements to be made by the patients, or even to a physician.

Yazzie, 59 F.3d at 813; Davignon v. Clemmey, 322 F.3d 1, 8 & n.3

(1st Cir. 2003) (permitting, under 803(4), testimony about

statements by parents to a social worker concerning emotional

distress of children). In situations in which there are no

incentives for parental bias, parental reports to doctors of

statements by their children are routinely admitted under Rule

803(4). See 4 Christopher B. Mueller and Laird C. Kirkpatrick,

Federal Evidence 465 (2d ed. 1994) ("[The 803(4)] exception does

not require that the speaker be the patient or that the listener be

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the doctor. Clearly it reaches statements by family members

(parent, sibling, or spouse) who bring a patient to a hospital or

doctor's office."); 4 Stephen A. Saltzburg et al., Federal Rules of

Evidence Manual § 803.02[5][d] (8th ed. 2002) ("[S]tatements by

bystanders, family members, and others, made for the purposes of

treating an injured person and pertinent to that treatment, have

often been admitted under Rule 803(4)."). One example would be a

parental report of a five year old's statement explaining where and

how she scraped her knee badly. In such situations, the incentives

are strong for the parent to recount the child's statement

accurately and honestly. The Rule recognizes the reality of the

situation. The Advisory Committee's Notes contemplate that

statements made to members of the family may be within the

exception. Fed. R. Evid. 803(4) advisory committee's notes.

Under Rule 803(4), the declarant's motive to promote

treatment or diagnosis is the factor crucial to reliability. Jack

B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence

§ 803.06[01] (Joseph M. McLaughlin ed., 4th ed. 2004). In sexual

abuse cases, especially where one parent accuses the other of

abuse, the motives and incentives of the reporting parent may be

mixed or, indeed, may not be to tell the truth. Yazzie, 59 F.3d at

813. It may be clear from the circumstance or context that the

parental report of a child's statement of abuse to a doctor is made

for purposes other than for diagnosis or treatment. See United

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States v. Balfany, 965 F.2d 575 (8th Cir. 1992) (considering that

theory).

In a situation such as this where there are reasons to

look skeptically on the motives of the declarant, the context in

which the statements are made is relevant to whether they bear

adequate indicia of trustworthiness. Yazzie, 59 F.3d at 813.

McLarey brought her children to Dr. Luxenberg, not for the purposes

of determining whether the children had been sexually abused, but

for treating their symptoms as manifested by their disturbed

behavior. Thus, the statements made by McLarey to Dr. Luxenberg

were for the purposes of treatment.

Most of the cases cited by Danaipour in attempting to

challenge the district court's admission of the objected-to

statements are criminal cases, in which the evidence was subjected

to Confrontation Clause analysis. The Supreme Court has stated

that the Confrontation Clause creates a higher bar for the

admission of hearsay evidence than do the Federal Rules alone.

Idaho v. Wright 497 U.S. 804, 814 (1990) ("The Confrontation Clause

. . . bars the admission of some evidence that would otherwise be

admissible under an exception to the hearsay rule."). This is a

civil case.

In the end Danaipour's claim that the district court

committed error by admitting and considering for the truth of the

matter asserted the parental and family statements concerning C.D.

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and A.D.'s statements in the reports of Dr. Luxenberg fails, for

several reasons. First, the statements made by McLarey, her

mother, and Morin in the doctor's reports were tested when each

person took the witness stand, testified directly to the same

statements by A.D. and C.D., and was subjected to cross examination

about the hearsay to the doctors. There were no discrepancies.

Second, Dr. Luxenberg testified that the children made

the same statements (as reported by McLarey, her mother, and Morin)

directly to her during their therapy, corroborating the statements

reported to her by the mother and her family. This is true for

each of the statements to which objection was made. Indeed, C.D.

made statements to Dr. Luxenberg about her father's actions which

went beyond what she told her mother.

Danaipour's real objection is not that reports containing

McLarey's and others' recounting of the children's statements were

inadmissible double hearsay but rather that the children's

statements were inherently unreliable, being a product of the

mother's coaching of the children. The district court carefully

considered the fact that statements by a young child, even if

accurately recounted by an adult, may not reflect the truth. A

child may say something in order to get attention. Further, a

story once told may, for several reasons, be subject to repetition

and elaboration. The court also carefully considered the concern

expressed by the husband's expert that repeated inquiry on the

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topic would taint C.D.'s recollections; the court found this had

not happened. The court was very attentive to the possibility of

coaching and found that improbable, and that the statements did not

bear the indicia of a suggested script. In evaluating the

reliability of the reported statements by the two children, the

court utilized the indicia of credibility in sexual abuse cases

referenced both in the literature and by Dr. Carole Jenny, a

recognized expert.2 The court was well within its discretion in

considering the truth of the statements by C.D. and A.D. as

reported by McLarey and the others to Dr. Luxenberg.

2. Consistency with Dr. Pierre's findings.

Danaipour attacks the merits of the sexual abuse finding.

He argues that the finding was impermissibly contrary to the

conclusion of the one independent expert, Dr. Pierre, who

concluded: "[i]t is very possible that something has happened,

however, based on the contents of this disclosure evaluation it is

difficult to determine the exact nature of what that is. Therefore

the results of this evaluation [as to C.D.] would have to be

2
The indicia of credibility recounted by Dr. Jenny with
respect to children's disclosures of sexual abuse include, among
other things: "(1) free recall, without specific prompting or
questioning; (2) spontaneity; (3) agitation and distress upon
making disclosures; (4) age-inappropriate sexual knowledge; and (5)
use of developmentally appropriate words and sentence structure, as
well as drawings containing sexualized themes." This was supported
by a literary review by Kathleen Coulborn-Faller and David L.
Corwin, widely accepted in the field and published in the highly
regarded International Journal of Child Abuse and Neglect.

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considered inconclusive." Expanding on this, at trial, Dr. Pierre

testified she was certain something happened to C.D. that was

"traumatic" and "sexual" but said she "did not know specifically

what that [was]."

Danaipour argues that it would require a very good reason

for the district court, nonetheless, to conclude there was sexual

abuse and that no such reason exists here. Danaipour argues that

of the five experts who testified, only one, Dr. Pierre, was truly

independent, and only two, Dr. Pierre and Dr. Luxenberg, actually

met with and interviewed the children.3

We reject Danaipour's first argument that once the court-

appointed expert said "the results of the evaluation as to C.D.

would have to be considered inconclusive" the court could not

plausibly conclude that C.D. had been sexually abused. First,

there was no inconsistency between Dr. Pierre's report and the

court's conclusions. We quote at greater length from Dr. Pierre's

report:

3
Danaipour argues that the district court "inexplicably"
gave great weight to the testimony of Dr. Carole Jenny, who never
saw the children and who, contrary to the district court finding,
concluded that the older child may have been abused as well as the
younger one. Contrary to Danaipour's argument on appeal, the court
did not rely for its sexual abuse findings on Dr. Jenny's
conclusions that C.D. had been sexually abused. This assertion is
flatly contradicted by the district court's opinion. While the
district court agreed with Dr. Jenny's ultimate conclusion that
C.D. had been sexually abused, it clearly stated that it only
relied on her testimony concerning the indicia of credibility with
respect to sexual abuse by children.

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With regard to C.D. the case is less clear.
The trail is cold for her collateral contacts
which are vital in making determinations in
cases with very young children. . . .

During this evaluation C. did speak. She
initially denied everything. Upon further
questioning she stated that maybe something
happened once but never again. She then
became very distressed stating that she was
worried that she would get her Baba into
trouble, her Momma into trouble and herself
into trouble. It is common for children to
fear hurting a parent with a disclosure. It
is also common for a child to state abuse and
then recant. This cannot be taken as a
nondisclosure, but one is careful to not to
consider it a full disclosure. C. was not
clear enough during this evaluation for this
examiner to feel completely comfortable that
the information given in this disclosure
interview was complete and solid enough to
constitute a full disclosure. It is very
possible that something has happened, however,
based on the contents of this disclosure
evaluation it is difficult to determine the
exact nature of what that is. Therefore the
results of this disclosure evaluation would
have to be considered inconclusive.

However, it is clear to this examiner that
something has happened to C. She stated that
her Baba had done bad things to her and she
wasn't going to tell me what they were. Based
on what C. has said to her therapist she has
had experiences with the father that the
therapist considers abusive. Dr. Luxenberg's
notes are compelling. C's memory of events is
clearly hampered by the fact that the
occurrences would have happened approximately
1 l/2 years ago which is almost half of her
life ago. Not to mention that she has been in
a therapeutic relationship focused on helping
her heal. Old memories naturally become
integrated into new ones. In addition, C's
memories are most assuredly state dependent at
such an early age and would naturally be more
likely accessed through a therapeutic

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 relationship than by direct questioning such
as was done in the disclosure evaluation.

My recommendation is that the evaluation end
of this be terminated at this time. I do not
believe another sexual abuse evaluation will
come any closer to the truth than this one
did. I would recommend that the therapeutic
relationship continue and that information
from that source continue to be given
credibility.

Dr. Pierre also testified that from her own observations

of C.D. it was clear something had happened to C.D. but she could

not say with any degree of certainty what happened. She thought it

not useful to do a further disclosure evaluation because the data

was old and that Dr. Luxenberg had better data. And when Dr.

Pierre considered Dr. Luxenberg's notes, she found the notes

suggest that "something more compelling has happened and more

worrisome," and that Dr. Luxenberg's data should be treated

credibly. Dr. Pierre's opinion to a reasonable degree of medical

certainty was that something had happened between C.D. and her

father, and that something bad and something sexual had happened.

The court relied on the disclosures made by C.D. to both

Dr. Luxenberg and Dr. Pierre, as well as the corroborative

disclosures made by C.D. to her family members and the play

activity of the child. The court stated: "The disclosures to Dr.

Luxenberg are relatively unambiguous in demonstrating that C.D.

associated the word 'hammer' with the arm movements involved in

masturbation. Her alternate references to 'hammering' and being

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herself 'hammered' satisfy me that there were multiple occasions

involving her participation in masturbation of Danaipour and his

masturbation of her." Further, the court found that the disclosure

made by C.D. to Dr. Pierre was corroborative of those made to Dr.

Luxenberg, and supported the finding of sexual abuse. Moreover,

these statements were consistent with those testified to by

McLarey, Morin, and the children's grandmother.

In interpreting the play activity of C.D. the district

court also considered the interpretation of Dr. Munson, Danaipour's

expert, that the play be interpreted as only expressing themes from

an animation series. The court held that the play was more than a

simple re-enactment of the series. Rather, C.D. used the

characters and themes of the series to express and disclose the

abuse and her reactions to it. The court considered and rejected

the possibility of cultural distortion. The court found that while

C.D.'s statements and activities were arguably ambiguous, the most

logical interpretation was that C.D. had been sexually abused. In

fact, the court accepted Dr. Munson's methodology of testing of

contrary hypotheses and found "no other hypothesis as compelling as

that C.D. was sexually abused by her father." The finding that

C.D. was sexually abused by her father was supported by the

evidence.

B. Challenge to the Finding that Return of C.D. and A.D. to Sweden

Posed A Grave Risk of Psychological Harm

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 1. Role of Danaipour's Acknowledgment of Responsibility.

As a subsidiary finding in support of its grave risk

conclusion, the district court commented that an "additional

impediment to return" was the father's refusal to acknowledge that

C.D. had any difficulties.

The court's comment was itself based on Dr. Pierre's

report, which said that a first step in reducing harm would be

"[Danaipour] offering [C.D.] an apology during his first contact

with her. This apology does not have be one admitting guilt but

rather one that acknowledges there have been some things that have

happened that have caused her great worry and for that he is

sorry." The report was issued on July 31, 2002 to the court and

counsel. Danaipour testified on August 2, 2002. We have carefully

read his testimony and it contains no indication of any willingness

on his part to make the acknowledgment Dr. Pierre recommended.

Rather, Danaipour testified that he had not looked at the report.

He continued to insist, in the face of Dr. Pierre's report, that

C.D.'s statements were the result of C.D. being coached and

prompted by her mother. The district court also invited commentary

from the parties on Dr. Pierre's report and received none.

Danaipour's argument is that he was precluded by a

visitation order from speaking to C.D. and his motion for

visitation rights had not been resolved, so the court's criticism

is unfair. The argument mixes tenses. Dr. Pierre's report refers

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to what Danaipour should do at any future point of first contact

with C.D. On the witness stand he had the opportunity to express

a willingness to take that step, a step which the independent

expert characterized as a first step toward healing for his

daughter. He chose instead to insist his daughter's statements

were the result of programming by their mother. The court properly

considered this in its evaluation.

2. Article 13(b) Requirements.

The district court, consistent with the second aspect of

the mandate, made explicit findings that the return of C.D. and

A.D. to Sweden would cause each child a grave risk of psychological

harm and create an intolerable situation. Danaipour's argument

that the court did not make such findings is simply not supported

by the record.

Danaipour makes another argument that the evidence did

not support any finding of grave risk, particularly in light of the

ability of the Swedish courts to rule on custody and visitation

rights of children and Sweden's mechanisms to evaluate whether

sexual abuse has occurred. Danaipour criticizes the district court

for not directly addressing the issue of protections available in

Sweden.

The court credited and primarily relied on the testimony

of two experts, Dr. van der Kolk and Dr. Luxenberg, on the effects

of a return on the two children. The evidence from Dr. Luxenberg

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was particularly compelling; Dr. van der Kolk's conclusions were

consistent.

Two days after the initial district judge ordered the

return of the children to Sweden, Dr. Luxenberg met with C.D. At

that session, C.D. spontaneously raised the topic of return, saying

her mother had told them they had to go to Sweden. C.D. said she

did not want to go to Sweden and did not want to see her father.

Through her play she raised the issue that she had told the truth

and that her father had not told the truth and had done bad things

to her. C.D. became extremely anxious, screaming and shaking and

repeating, "No, no, no, no!" She later expressed fear that if she

saw her father again, "he'll just keep doing it, and I don't want

him to." She equated a return to Sweden with seeing her father.

In contrast to the ambivalent feelings C.D. expressed about her

father, C.D. expressed no ambivalence about her desire not to

return to him or to Sweden. C.D. made the point repeatedly.

Dr. Luxenberg also had therapeutic sessions with A.D. It

was striking to her that A.D. never expressed any desire to return

to Sweden or to see her father. A.D. told Dr. Luxenberg that she

thought her father really did "do it" [to C.D.] and she hoped he

would not do it again. She equated going back to Sweden with

something bad happening to her, and expressed anxiety that if she

were returned to Sweden she would be separated from her mother (as

had happened during their last return to Sweden) and that her

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father would "do those things that C.D. said that he did" again.

Dr. Luxenberg concluded:

It is imperative that C.D. and A.D. continue
in therapy at this time. Both have been able
to develop a very strong and trusting
therapeutic relationship, and are able to talk
about difficult issues in a way they were
unable to do at the beginning of therapy.
Without suggesting that the girls would be
unable to re-form a similar therapeutic
relationship elsewhere, disrupting their
therapy at this critical time in their
development may cause the girls to become
reluctant to discuss their experiences and
their emotional responses to them, which is
vital to their psychological recovery. Both
are still clearly worried about the potential
consequences of being honest and open about
their feelings and experiences, and to have
therapy prematurely terminated would reinforce
the sense that talking is, indeed, dangerous.

Dr. van der Kolk did not meet C.D. but did review the

record and observed some testimony at trial. Dr. van der Kolk drew

conclusions which were entirely consistent.4

4
We summarize the conclusions in his testimony:
1. For A.D. and C.D., being sent back to Sweden will mean that
they are not believed and that telling the truth as they see it
will have dire consequences. They will believe they are being
punished for their disclosures.
2. C.D.'s psychological health is at a critical juncture at this
particular point in time, and returning her to Sweden now will
likely have devastating and irreversible consequences. She needs
to feel safe.
3. If the girls perceive that they are not believed, or if actions
are taken that indicate that disclosing the truth of their
experiences will lead to retaliation or separation from the people
they feel safe with, the natural consequence would be that these
girls will grow up believing that telling people the truth has dire
ramifications, and that the rules that are applied to them do not
apply to others.
4. If returned, C.D. and A.D. were likely to have similar

-27-
 The district court concluded that psychological harm to

C.D. and A.D. would be a necessary consequence of a return to

Sweden, regardless of any possible conditions or undertakings

imposed. These harms were beyond the power of any court to prevent

or remedy if the children were returned. Danaipour's arguments

about the authority of the Swedish courts are, as a result, beside

the point. Nothing in Article 13(b) required further inquiry in

these circumstances, as this case involves "a situation in which

the [Swedish] authorities, through no fault of their own, may not

be able to give the children adequate protection." Blondin v.

Dubois, 238 F.3d 153, 163 n.11 (2d Cir. 2001).

Danaipour cites to our holding in Danaipour I stating the

standard for qualifying for the Article 13(b) exception, for the

proposition that a district court cannot properly find that an

Article 13(b) exception exists unless it examines the remedies

responses in Sweden and react with "fright or freeze" reactions to
the sound of the Swedish language, to familiar sights, sounds,
smells and temperatures.
5. Return would disrupt the relationship with Dr. Luxenberg. The
relationship A.D. and C.D. have developed with Dr. Luxenberg will
ultimately serve as a very significant stepping stone in the
children's healing process and likely impact each child's
individual ability to reestablish her personal integrity and self-
confidence.
6. Both C.D. and A.D. have expressed their opposition to returning
to Sweden and their anxiety regarding such a move. The girls'
experience in Sweden has taught them that if they are sent back
they will be reunited with their father - - in spite of their
memories of his abuse, their disclosures about the abuse, and their
opposition to such a move. The child will understand that the only
reason to go to Sweden is to be with their father.

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available in the country of habitual residence.5 Our holding in

Danaipour I does not stand for the proposition that every Article

13(b) analysis requires two such distinct prongs. In fact,

Danaipour I specifically identified the limited role undertakings

may play in certain situations. See Danaipour I, 286 F.3d at 21.

Danaipour I also noted the great weight afforded to the State

Department policy concerning undertakings in a situation involving

child abuse:

If the requested state court is presented with
unequivocal evidence that return would cause
the child a "grave risk" of physical or
psychological harm, however, then it would
seem less appropriate for the court to enter
extensive undertakings than to deny the return
request. The development of extensive
undertakings in such a context would embroil
the court in the merits of the underlying
custody issues and would tend to dilute the
force of the Article 13(b) exception.

Id. at 25 (quoting Department of State Comment on Undertakings).

The district court properly followed Danaipour I's mandate; its

finding of the existence of sexual abuse and that the return of the

children to Sweden would result in a grave risk of psychological

harm was adequate to satisfy the Article 13(b) exception, and no

5
Danaipour also relies heavily on a footnote in Blondin
for the proposition that assessing the capacity of the courts of
the country of habitual residence is a prerequisite to an Article
13(b) exception. 238 F.3d at 163 n.11. We do not read Blondin to
require the court to make findings about the institutional capacity
of the home country in all cases. To the extent that Blondin does
stand for such a proposition, we disagree that Article 13(b)
requires such findings in all cases.

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further inquiry into remedies available to the Swedish courts was

required.

IV.

For these reasons we affirm the judgment of the district

court.

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