TIMOTHY S. HILLMAN, District Judge.
Marina De Aguiar Dias ("Petitioner") has filed a Verified Emergency Petition for Return of Child and Warrant of Arrest in Lieu of Writ of Habeus Corpus (Docket No. 1) ("Petition"). She seeks the return of her thirteen-year-old daughter, H.D., to Brazil pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, T.I.A.S. No. 11670 ("Convention"), as implemented by the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. §9001 et. seq. (formerly 42 U.S.C. §11601). Petitioner claims that H.D.'s father, Leonardo Emmanuel Leonocio De Souza ("Respondent"), wrongfully retained H.D. in the United States. Petitioner has also requested an order pursuant to 22 U.S.C §9007(b)(3) requiring Respondent to pay necessary expenses incurred by her during the course of these proceedings and transportation costs related to H.D.'s return to Brazil.
Respondent opposes the Petition on the grounds that: (1) Petitioner did not establish that H.D. was wrongfully retained within the meaning of Article 3 of the Convention; (2) Under Article 13(b) of the Convention, there is a grave risk that H.D.'s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation; (3) Under Article 13 of the Convention, H.D. objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views; and (4) Under Article 12 of the Convention, H.D. is "well-settled" in the United States. For the reasons set forth below, the Petition is granted.
The Petition was filed on May 4, 2016. See Docket No. 1. Petitioner concurrently filed an Emergency Motion for Ex Parte Relief (Docket No. 3), requesting an order prohibiting the removal of H.D. from the jurisdiction of this Court, an order requiring immediate surrender of H.D.'s travel documents, an order directing Respondent to immediately provide Petitioner with access to H.D., and an order commanding Respondent to appear before the Court forthwith to show cause why H.D. should not be returned to her habitual residence, i.e. Brazil. That motion was granted following an ex parte hearing held on May 6, 2016.
On May 13, 2016, the Court held a Show Cause Hearing. Respondent, who appeared pro se, requested additional time to retain counsel. That request was granted, and the Show Cause Hearing was continued until June 13, 2016. On June 10, 2016, Respondent, through counsel, filed an Answer to Petitioner's Emergency Petition (Docket No. 12) ("Answer").
H.D. is a thirteen-year-old native of Brazil. See Petition, at Ex. C; Answer, at Ex. A. Petitioner is H.D's biological mother, and Respondent her biological father. See id. At the time of H.D.'s birth, Petitioner and Respondent lived together in Brazil as an unmarried couple. They separated approximately three years after H.D.'s birth, and have not lived together since. Following the separation, Petitioner and H.D. lived together in a house located in the Caixa D'Agua ("Water Box") neighborhood of Salvador, Bahia, Brazil, which they shared with Petitioner's parents and grandmother.
On June 13, 2015, accompanied by Respondent's mother and with Petitioner's permission, H.D. left Brazil to temporarily visit Respondent in Worcester, Massachusetts. H.D. traveled to the United States using a round-trip plane ticket that included a return flight to Salvador, Brazil on July 7, 2015. See Petition, at Ex. A. Respondent testified that upon H.D.'s arrival, his mother told him that H.D.'s home in Brazil was unsanitary due to Petitioner's father and grandmother's compulsive hoarding. According to Respondent, he then approached H.D., who confirmed that the mother's report was true and clearly expressed to Respondent that she wanted to stay with him in the United States. Respondent also stated in his affidavit, but did not testify, that H.D. told him she was "afraid to return to Brazil," and that she "said repeatedly that she is afraid in Salvador."
Respondent represented in his Answer that he is lawfully present in the United States as an F-1 nonimmigrant student.
Petitioner currently resides in Brazil. She works both morning and night shifts on weekdays as a physical education teacher, and her husband works "regular commercial hours" as a systems analyst. Petitioner and her husband have been together as a couple for about seven years, and married in May 2016. In or around March 2016, Petitioner moved from the house she shared with her parents and grandmother (and previously shared with H.D.) in the Water Box neighborhood of Salvador to a house which she now shares with her husband and his mother in Salvador's Rio Vermelho ("Red River") neighborhood. Both Petitioner and her husband testified that if H.D. returns to Brazil, she will stay at their current house in the Red River neighborhood, not at her former home in the Water Box neighborhood.
Respondent asserts that H.D.'s former home in the Water Box neighborhood was unsanitary due to the hoarding of Petitioner's father and grandmother. Respondent submitted photographs of three rooms in that house depicting clutter.
Respondent asserts that Petitioner's father, who formerly lived with Petitioner and H.D. in the Water Box house, suffers from mental illness.
Respondent asserts that Petitioner did not properly care for H.D. in a number of ways. He testified that H.D.'s hygiene was poor when she lived with Petitioner in Brazil. When he would visit H.D., he would often notice that her clothing was dirty and stained. According to Respondent, H.D. would be so unclean that he often felt compelled to bring her to his house, bathe her, and change her clothes. He testified that when H.D. came to the United States, he and his wife had to "always" remind her to bathe herself, and also had to teach her to brush her hair and teeth on a regular basis. Petitioner did not testify on the subject of H.D.'s hygiene.
Respondent also claims that H.D. did not have an adequate social life when she lived in Brazil. When H.D. was not in school, she would usually stay home, watch TV, and play video games. He testified that when he would call H.D. on weekends, she would often be at her house by herself, while Petitioner and her husband (then-fiancee) would be out "traveling" together. Petitioner's husband testified, to the contrary, that he and Petitioner would spend time with H.D. on weekends. According to Respondent, H.D. is now a member of a church youth group, recently started attending jiu-jitsu classes, and generally has a more active social life than she had in Brazil.
Petitioner and Respondent agree that H.D.'s grades, particularly in math, were poor when she lived in Brazil.
Respondent offered evidence concerning crime and violence in Salvador. He cited a statistic in his affidavit indicating that "with approximately 60 homicides for every 100,000 people, Salvador's murder rate is more than double that of Rio De Janeiro which has 21.5 murders per 100,000 people," Resp.'s. Aff., at ¶ 15, and testified that Salvador is located in a particularly dangerous region of Brazil. When asked during direct examination whether there was "any reason, if any, why [he] came to the United States," Respondent answered that he came to the United States because of violence in Brazil, including in Salvador.
Respondent asserts that both the Water Box and Red River neighborhoods in Salvador are dangerous.
I summarize the evidence in the record pertaining to Respondent's Article 13 mature child defense, which is scarce due to Respondent's counsel's failure to pursue the defense at the Show Cause Hearing. Respondent testified that, at some point between June 14, 2015, and June 18, 2015, H.D. expressed a desire to remain with him in the United States. Petitioner testified that, after H.D.'s departure from Brazil, she "found out through [H.D.'s] colleagues that she had plans of staying" in the United States. However, there is no evidence in the record of H.D.'s present objection to return. Neither Respondent nor Petitioner offered any testimony concerning whether H.D. presently objects to return, and Respondent did not even claim that H.D. presently objected to return in his affidavit submitted with his Answer. In support of H.D.'s maturity, Respondent submitted a letter from H.D's jiu-jitsu instructor, dated May 26, 2016, which states that H.D. "possesses a maturity we don't usually see in young ladies her age."
Facts relating to the parties' respective custody rights are relevant to a wrongful retention analysis. In August 2015, Petitioner filed for custody of H.D. in the 5
"Under the Hague Convention, children who have been wrongfully removed or retained must be returned to their country of habitual residence unless the abductor can prove one of the defenses or exceptions to return allowed by the Convention." Danaipour v. McLarey, 286 F.3d 1, 13 (1
It is undisputed that Petitioner seeks to return H.D. to Brazil, her country of habitual residence, and also undisputed that Petitioner had custody rights immediately prior to H.D.'s retention. Respondent nonetheless argues that his retention of H.D. was not wrongful because Petitioner was not exercising her custody rights at the time of the retention. Respondent contends that, because he shared custody rights with Petitioner (a fact which Petitioner disputes), and because H.D. was in his care immediately before she was retained, he was the parent exercising custody rights over H.D. at the time of retention, not Petitioner. See Docket No. 20, at ¶ 15-17. I find that, even assuming that Respondent shared custody rights with Petitioner at the time of retention, his retention of H.D. was wrongful within the meaning of the Convention.
"The Hague Convention does not define what constitutes the `actual exercise' of custody rights." Mendez v. May, 85 F.Supp.3d 539, 555 (D.Mass. 2015), rev'd on other grounds, 778 F.3d 337 (1
I find that Petitioner would have exercised her custody rights but for Respondent's retention. There is no evidence that Petitioner clearly and unequivocally abandoned her child. She permitted H.D. to travel to the United States under the belief that H.D. would return within a month, and, when asked, declined to give Respondent permission to keep H.D. in the United States. In August 2015, she petitioned for custody of H.D., and was awarded temporary custody in September 2015. That Respondent may have been exercising his own custody rights at the time of retention does not make the retention any less wrongful. As the United States Department of State noted in its legal analysis of the Hague Convention:
Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed.Reg. 10,494, 10,506 (Mar. 26, 1986). The Department of State's analysis discusses removal, but it is clear that the same principle must also apply to retention. Respondent interfered with Petitioner's exercise of her custody rights when he unilaterally acted to keep H.D. out of Brazil, her country of habitual residence. Therefore, I find that Respondent's retention of H.D. was wrongful within the meaning of the Convention.
Respondent invokes three defenses to return: the "grave risk" defense under Article 13(b), the "mature child" defense under Article 13, and the "well-settled" defense under Article 12. See Docket No. 20, at ¶¶ 15-21. "The Convention establishes a strong presumption favoring return of a wrongfully removed child," and consequently, "exceptions to the general rule of expedient return . . . are to be construed narrowly." Danaipour, 286 F.3d at 13-14 (citations omitted). This Court may exercise its discretion to order removal even if it is found that one or more of these defenses apply. Convention, art. 18; see also Friedrich, 78 F.3d at 1067.
To succeed on a "grave risk" defense, the respondent must prove by clear and convincing evidence that "there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Convention, art. 13(b); 22 U.S.C. §9003(e)(2)(A). The risk must be "more than serious," though it need not be "immediate." Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000). The harm involved "must be a great deal more than minimal." Id.; see Moura, 67 F.Supp.3d at 500 ("[I]n the absence of clear abuse, courts are unlikely to block removal under [Article 13(b)]); Blondin v. Dubois 238 F.3d 153, 162 (2
Respondent has failed to establish by clear and convincing evidence that H.D.'s return would subject her to a grave risk of harm or otherwise place her in an intolerable situation. Respondent testified that areas "around" the Red River neighborhood where H.D. will presumably return are extremely dangerous and controlled by drug traffickers, but did not demonstrate by clear and convincing evidence that H.D. would face a grave risk of harm due to the violence in those areas. Cf. Velasquez v. Funes de Velasquez, 102 F.Supp.3d 796, 811-13 (E.D.Va. 2015)(finding return to El Salvador constituted grave risk of harm where evidence showed that El Salvador was "one of the most dangerous and violent countries in the world" and family of petitioned-for children were victims of multiple violent threats). On the contrary, Respondent testified that he believes H.D., while not in school, would spend the majority of her time inside her house if she were to return to Brazil, and Petitioner likewise testified that when H.D. previously lived in Brazil, she was not allowed to walk outside without adult supervision. Moreover, Petitioner's husband testified that the house to which H.D. will return is located in a calm, middle-class neighborhood, and this testimony was uncontroverted by Respondent's testimony, which focused on slum neighborhoods "around" the Red River area. Respondent's vague reference to "many other" dangerous areas, which were unnamed and not described, is not sufficient to carry his burden, particularly in light of the previously noted concerns regarding his credibility. See notes 13, 17, supra at pp. 7, 9.
Respondent has also failed to show by clear and convincing evidence that H.D.'s living conditions in Salvador would constitute a grave risk of physical or psychological harm or lead to an otherwise intolerable situation. Respondent claimed that H.D.'s former home was unsanitary due to the compulsive hoarding of Petitioner's father and grandmother. It is undisputed that if H.D. returns to Brazil, she will not live with Petitioner's father and grandmother. Respondent claimed that H.D. would be at risk due to exposure to her allegedly mentally ill grandfather. Even assuming the truth of Respondent's disputed allegations, it is undisputed that if H.D. returns, she will not be living with her grandfather. Respondent makes much of his laudable involvement in H.D.'s improved academic performance, stronger social network, and better personal hygiene. However, as the First Circuit has stated, it is not relevant who the better parent would be in the long run, and Article 13(b) may not be used as a "vehicle to litigate the child's best interests." Danaipour, 286 F.3d at 14. Respondent's claim that H.D.'s isolation in Brazil would result in a grave risk of harm or an otherwise intolerable situation due to isolation also fails. It is undisputed that H.D. will attend school outside of her house, and Petitioner testified that the school which H.D. would attend offers extracurricular activities, including athletics. Living in Salvador with Petitioner may reduce or even eliminate H.D.'s freedom to walk in the street unaccompanied by an adult, but an "intolerable situation was not meant to encompass return to a home where living conditions are less palatable," Avendano v. Smith, 806 F.Supp.2d 1149, 1176 (D.N.M. 2011)(citation omitted), and the situation envisioned by Respondent— where H.D. would spend most of her free time at home watching television and playing video games—does not approach a showing of "clear abuse." In sum, taking into account the evidence presented concerning H.D.'s potential living conditions and the general environment in the city to which she plans to return, I find that Respondent has failed to establish by clear and convincing evidence that H.D.'s return to Brazil would expose her to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation.
The Court will address the merits of Respondent's mature child defense under Article 13 notwithstanding counsel's failure to pursue that defense at the Show Cause Hearing.
It is reasonable to believe that, based on Petitioner and Respondent's testimony, H.D. did not want to return to Brazil at the time of her entry into the United States in June 2015. However, the only evidence that H.D. currently objects to return consists of unsupported representations by Respondent. I find that Respondent has not proven by a preponderance of the evidence that H.D. objects to return, and decline to assume the child's objection based on Respondent's representations alone. Cf. Kufner v. Kufner, 480 F.Supp.2d 491, 502 (D.RI. 2007)(assuming that petitioned-for children, if asked, would object to return where children "stated consistently" their desire to remain in United States to court-appointed guardian ad litem), aff'd on other grounds, 519 F.3d 33 (1st Cir. 2008). Moreover, I find that Respondent has not proven by a preponderance of the evidence that H.D. is of a sufficient age and maturity for this Court to take her views into consideration. While H.D.'s exemplary grades and letter from her jiu-jitsu instructor may be probative of maturity, they are not sufficient to carry Respondent's burden. To hold that this defense applies would involve assuming both the child's present objection and the content of the child's views based solely upon representations by the party opposing return. To assume as much would be inconsistent with the "narrowness of the age and maturity exception to the Convention's rule of mandatory return." Gonzalez Locicero v. Nazor Lurashi, 321 F.Supp.2d 295, 298 (D.PR. 2004). I thus find that Respondent has failed to establish that relief is warranted under Article 13's mature child defense.
Respondent's well-settled defense under Article 12 is barred by the plain language of the Convention's text. "To succeed on a `well-settled' affirmative defense, a respondent must prove by a preponderance of the evidence that the Hague Convention proceeding was commenced more than one year after the child's wrongful removal (or retention) and that the child has become well-settled in his or her new environment." Falk, 692 F.Supp.2d at 158-59; see Convention, art. 12; 22 U.S.C. §9003(2)(B). Under the ICARA, proceedings are commenced when a petition for the return of a child is filed "in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." 22 U.S.C. §§9003(b); see also 22 U.S.C. 9003(f)(3). H.D. was retained by Respondent in June 2015. Petitioner filed her Petition with this Court on May 4, 2016. H.D. was at the time of filing, and still is, located in Worcester, Massachusetts, within the jurisdiction of this Court. Proceedings were therefore commenced less than one year after the child's wrongful retention. Accordingly, relief is not warranted under Article 12's well-settled defense.
As the prevailing party, Petitioner has established the prerequisite for an award of necessary expenses under the fee-shifting provision of the ICARA, which provides that:
22 U.S.C. §9007(b)(3). However, "two issues remain: first, whether the claimed expenses are `necessary,' and second, whether an order against respondent would be `clearly inappropriate.'" De Souza v. Negri, No. 14-13788-DJC; 2015 WL 727934, at *2 (D.Mass. February 19, 2015)(citation to quoted case and alterations omitted). "The burden of proof to establish necessity is upon the Petitioner." Id. (citation omitted). The burden to establish that a fee award would be "clearly inappropriate" is upon the Respondent. Id. Accordingly, Petitioner has until August 11, 2016 to file a motion enumerating what she alleges are "necessary" expenses, and Respondent in turn has until August 25, 2106 to respond to the motion and address whether any such award would be "clearly inappropriate."
Petitioner's Verified Emergency Petition for Return of Child is
SO ORDERED.
