DUNCAN, Circuit Judge:
Petitioner-Appellant Xochitl Jazmin Velasco Padilla ("Petitioner") appeals the district court's denial of her petition for the return of her now five-year-old child J.V. ("Child"), after Respondent-Appellee Joe Richard Troxell ("Respondent") took Child to the United States. Petitioner filed her petition under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"), Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501, as implemented by the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001 et seq. The district court denied the petition, finding that Petitioner had established that Child was wrongfully removed but that Respondent had adequately shown at least one defense under the Hague Convention — that is, that Petitioner had consented to Child's removal from Mexico. For the reasons that follow, we affirm.
Petitioner gave birth to Child on May 27, 2011 in the state of Oaxaca, Mexico.
For the first two years of Child's life, although Respondent had little to no physical contact with Child, he did provide financial support. On December 17, 2014, Petitioner and Respondent traveled to Oaxaca to obtain a Mexican passport for Child. After they obtained Child's passport together, Respondent took Child to his home in Acapulco until Child entered the United States.
The parties' descriptions of the circumstances under which Child entered the United States vary dramatically. Although the district court was to find Petitioner's version of events not credible, we nevertheless set out both versions for the sake of comprehensiveness.
According to Respondent, Child spent his first two years not with Petitioner, but primarily in Petitioner's mother's care. In early 2014, Petitioner's mother called Respondent and stated that Child wanted to see Respondent. Respondent and his then-fiancée, now-wife Blanca Leyva ("Ms. Leyva") picked up Petitioner's mother and Child from the bus station, and they stayed at Respondent's home in Acapulco for several days. During the visit, Petitioner's mother said she wanted help bringing Child to the United States and that Child would require a passport and visa to enter the country. Respondent was planning to move to the United States, both to marry Ms. Leyva and to undergo surgery. He obtained a "fiancée visa" authorizing Ms. Leyva to enter the country to get married, and he told Petitioner's mother that he would also apply for a passport for Child. After this visit, Respondent began preparing for the move. When Respondent informed Petitioner's mother that Child's passport would require Petitioner's signature, she confessed, "I don't know where [Petitioner] is." App. 578. Eventually, a friend helped Petitioner's mother locate Petitioner in Zaachila, a town six hours north near the city of Oaxaca. In early December, Respondent and Ms. Leyva traveled to Rio Grande to pick up Child from Petitioner's mother, then to Zaachila to pick up Petitioner, and finally to the passport office in the city of Oaxaca.
On December 17, 2014, Petitioner, Respondent, and Child — as well as Petitioner's half-sister, Maria Luisa Banos Castillo ("Ms. Banos"), and her children — went to the passport office. Petitioner and Respondent jointly signed for Child's passport, which they received later that day. The entire group stayed the night at the house where Petitioner was living. The next day, December 18, the group celebrated Ms. Leyva's birthday. On the morning of December 19, Respondent and Ms. Leyva returned with Child to Respondent's home in Acapulco, where they resided until leaving for the United States.
Respondent testified that Petitioner never told him that she wanted him to bring
For her part, Petitioner contended that during Child's first two years she had only been separated from Child for six weeks. Petitioner stated that she went to get a passport for Child because Respondent offered to "get papers for me and my child," so that "perhaps I could have a vacation" in the United States with Child.
The parties' stories converge again on February 17, 2015, when Border Patrol agents found Child near McAllen, Texas, along with several other undocumented individuals who had crossed the border illegally. The agents contacted Respondent, who had entered the United States with Ms. Leyva. Respondent acknowledged he had paid $1,200 to smuggle Child into the United States. Respondent testified that, because Ms. Leyva's "fiancée visa" would expire before he could obtain Child's visa, he "had no other choice." App. 599. After determining that Respondent was Child's father, that Respondent did not have a criminal history, and that Child was not the subject of missing child alerts, the agents released Child to Respondent's custody.
Since living with Child in the United States, Respondent and Ms. Leyva maintained regular contact with Petitioner. As evidenced by text messages from September 2015 until January 2016, the tone of the initial correspondence was amicable and reflected Petitioner's recognition that Child was better off with Respondent in the United States as long as she was allowed to see him. As late as January 13, 2016, nearly a year after Child entered the United States, Respondent asked, "what [do] you think is best for the life of [Child] and where is best for him to live[?]" Petitioner responded, "I know with you." App. 477; see also App. 479.
Petitioner also repeatedly blamed her mother for any efforts to have child returned to Mexico and disavowed interest in doing so. For example, she told Ms. Leyva that if Respondent would help her she would "do everything to stop" the dispute. App. 383; see also 357, 385, 391.
Petitioner conditioned her support for Respondent, however, on Respondent's
By February 2016, however, Petitioner's position had changed. She now stated that "I don't care about the money." App. 443. She cared about "getting my son back." App. 443.
On May 23, 2016, Petitioner filed the instant petition under the Hague Convention in federal district court, and a bench trial was held on July 25, 2016.
During the trial, several inconsistencies in Petitioner's version of events became apparent. Petitioner testified (1) that Child was her firstborn; (2) that she had only been separated from Child for six weeks; (3) that she had never asked Respondent for money; and (4) that in her communications with Respondent after his move to the United States she had only sought Child's return. On cross-examination, however, Petitioner admitted (1) that she had previously given birth to another child; (2) that she had lived at least four or five months apart from Child;
Respondent testified as to his version of events, and Ms. Leyva confirmed his account. Respondent also introduced a sworn affidavit from Ms. Banos, Petitioner's half-sister who was present during the visit to the passport office. In the affidavit, Ms. Banos stated that Respondent had not abducted Child. Respondent argued that the district court should admit the document as self-authenticating both because it was "lawfully executed by a notary public" under
On July 28, 2016, the district court denied the petition. In its opinion, the district court found Petitioner had established, "by a preponderance of the evidence, that [Child] was wrongfully removed (or retained) from [Child's] habitual residence in violation of [Petitioner's] custody rights." App. 651. Nevertheless, the district court found that Respondent had "adequately shown" that Petitioner consented to Child's removal from Mexico, a defense under the Hague Convention. App. 651. The court further noted the "evidence established that Petitioner ... had no objections to [Child] remaining in Respondent's care so long as Respondent supported her financially." App. 655.
In reaching these conclusions, the district court made an express credibility determination. The court stated that "Petitioner's testimony raised serious doubts about her credibility," and that the "ease with which she misl[e]d the court" on at least one issue — the number and birth order of her children — "calls into question all of her factual testimony." App. 655. Accordingly, the district court found that there was "only one credible version of events: Respondent's." App. 655.
As for the sworn statement of Ms. Banos, the district court admitted the affidavit into evidence as "self-authenticating under Federal Rule of Evidence 902(8)." App. 653 n.7. The court referenced it once in a footnote, observing that it "supported" Respondent's "version of events." App. 653 n.7.
Petitioner timely appealed. This court considered the case under an expedited schedule in accordance with Article 11 of the Hague Convention. Hague Convention art. 11, 19 I.L.M. at 1502; see also Chafin v. Chafin, ___ U.S. ___, 133 S.Ct. 1017, 1021, 185 L.Ed.2d 1 (2013).
On appeal, Petitioner argues that the district court erred in (1) finding that she consented to or acquiesced in Child's removal to and retention in the United States; (2) admitting into evidence the sworn affidavit of Ms. Banos, thereby prejudicing her case; and (3) not ordering the return of Child under its discretionary authority pursuant to Article 18 of the Convention. Respondent counters that the district court correctly determined that Petitioner consented to the removal, and that additional grounds also support denial of the petition.
"We review the district court's findings of fact for clear error and review its construction and application of the Hague Convention de novo." Alcala v. Hernandez, 826 F.3d 161, 168 (4th Cir. 2016) (citing Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009)). "Under the clearly erroneous standard, a district court's determination should be affirmed unless the Court is `left with the definite and firm conviction that a mistake has been committed.'" Andrews v. Am.'s Living Ctrs.,
The Hague Convention sets forth a detailed framework for addressing claims of international child abduction during domestic disputes between parties in signatory nations.
The district court concluded that Respondent had wrongfully removed Child from Mexico into the United States. The parties do not contest that determination on appeal. We therefore consider Petitioner's arguments about Respondent's applicable defenses.
Once a petitioner has shown a wrongful removal occurred, the burden shifts to the respondent to establish that one of the exceptions in the Convention "excuses return" of the child. Lozano, 134 S.Ct. at 1229. These exceptions are limited and narrow. Alcala, 826 F.3d at 169. Among them, the Convention provides that a court "is not bound to order the return of the child," if the petitioning parent either "consented to" or "subsequently acquiesced in the removal or retention" of the child. Hague Convention art. 13a, 19 I.L.M. at 1502. Respondent bears the burden of establishing consent or acquiescence by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(2)(B).
Neither the Hague Convention nor its implementing statute, ICARA, define consent or acquiescence. Although construing this defense presents an issue of first impression in this circuit, our sister circuits have experience distinguishing and applying the consent and acquiescence defenses.
Consent and acquiescence are two separate and "analytically distinct" affirmative defenses. Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005); see also Darin v. Olivero-Huffman, 746 F.3d 1, 14 (1st Cir. 2014). Whereas the consent defense concerns the petitioner's conduct before the contested removal or retention, the acquiescence defense concerns whether the petitioner subsequently agreed to or accepted the removal or retention. Darin, 746 F.3d at 14; accord Baxter, 423 F.3d at 371; Gonzalez-Caballero v. Mena, 251 F.3d 789, 794 (9th Cir. 2001). Courts have explained
We affirm on the dispositive basis of the consent defense. We therefore decline to consider whether the record also supports a finding that Petitioner acquiesced in the removal or retention of Child.
To establish consent, we focus on the parties' conduct prior to the removal or retention. See Darin, 746 F.3d at 15. However, a petitioner's conduct after removal can further inform whether she consented at the time of removal. See Mena, 251 F.3d at 794. Determining whether the preponderance of the evidence supports a petitioner's subjective intent to consent to removal is naturally "fact-intensive." James D. Garbolino, Federal Judicial Center, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 102 (2d ed. 2015). Accordingly, this inquiry depends to a considerable extent on the district court's factual and credibility determinations. See Nicolson v. Pappalardo, 605 F.3d 100, 105-06 (1st Cir. 2010). In these types of disputes, the district court often "face[s] ... a choice as to whom it [finds] more believable." Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996); cf. Smedley v. Smedley, 772 F.3d 184, 190-91 (4th Cir. 2014) (not elaborating on the consent defense, but finding that district court properly extended comity to German court's judgment, including its decision not to credit father's version of events).
Petitioner's conflicting testimony about basic personal information led the district court to question "all of her factual testimony." App. 655. The district court ultimately concluded Respondent's version of events was the only credible one. We owe this express credibility determination substantial deference, and Petitioner, tellingly, does not challenge it on appeal. See Friedrich, 78 F.3d at 1069; see also Andrews, 827 F.3d at 312; Ross, 743 F.3d at 894.
Bolstered by the credibility determination, we agree with the district court's legal conclusion that a preponderance of the evidence demonstrates Petitioner consented to Child's removal to the United States.
Next, Petitioner argues that the district court improperly admitted the affidavit from her half-sister, Ms. Banos, because (1) it was inadmissible hearsay not subject to any exception and (2) the document unduly prejudiced her case. Respondent counters that Petitioner failed to raise the issue below and therefore may not do so here. We agree.
At trial, Petitioner failed to raise a hearsay objection to the affidavit. Although Petitioner objected to the affidavit, she only objected to the authentication of the document, not to its inadmissibility as
Finally, Petitioner argues, also for the first time on appeal, that the district court erred in not exercising its discretion under Article 18 of the Convention to order the return of Child even though Respondent had established at least one valid defense. Petitioner did not raise this argument below, and we similarly consider it forfeited on appeal.
We recognize the unfortunate nature of this case for all involved, especially Child. However, the Hague Convention and ICARA do not empower us to address "the merits of any underlying child custody claims." 22 U.S.C. § 9001(b)(4); Smedley, 772 F.3d at 186. The district court did not clearly err in finding that Respondent was "more believable," Friedrich, 78 F.3d at 1069, and Petitioner does not challenge that determination. We agree with the district court that the preponderance of the evidence demonstrates that Petitioner consented to Respondent's removal of Child to the United States. Accordingly, the judgment of the district court is
AFFIRMED.