Eduardo Vasconcelos v. Michelly Batista

Filing

UNPUBLISHED OPINION FILED. [11-41204 Affirmed ] Judge: TMR , Judge: ECP , Judge: JWE Mandate pull date is 03/08/2013 [11-41204]

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Date Filed: 02/15/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
February 15, 2013

No. 11-41204

Lyle W. Cayce
Clerk

EDUARDO HENRIQUE VASCONCELOS, also known as Eduardo Henrique
Medeiros Pinto De Vasconcelos,
Plaintiff-Appellant
v.
MICHELLY DE PAULA BATISTA,
Defendant-Appellee

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CV-628

Before REAVLEY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
Appellant Eduardo Henrique Vasconcelos petitioned for the return of his
child, B.V., to Brazil under the Hague Convention on the Civil Aspects of
International Child Abduction (“Hague Convention” or “Convention”), Oct. 25,
1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501, which was implemented in the United
States by the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C.

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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§§ 11601–11611. The district court denied Mr. Vasconcelos’s petition for return.
For the reasons that follow, we AFFIRM.
This case involves a child named B.V., who was 13 years old at the start
of district court proceedings in January 2011 and who is now 15 years old.1 In
2005, B.V. was removed from her former place of residence, the State of Alagoas
in Brazil, by her mother, Appellee Michelly De Paula Batista. Ms. Batista had
primary custody over B.V. pursuant to a joint custody agreement with Mr.
Vasconcelos. Ms. Batista and Mr. Vasconcelos were never married. Ms. Batista
removed B.V. from Brazil without Mr. Vasconcelos’s consent. After leaving
Brazil, Ms. Batista moved with B.V. to Denton, Texas, where she married Rod
Richards, who has been B.V.’s stepfather since.
With the assistance of Brazil’s Central Authority,2 Mr. Vasconcelos filed
a Petition for Return of the Child under the Convention. Pursuant to the
jurisdictional provisions of the Convention and ICARA, § 11603(a)–(b), and
because B.V. resided in Denton, the petition was brought before the District
Court for the Eastern District of Texas. The hearing included an in camera
interview between a magistrate judge and B.V., in which B.V. was represented
by a guardian ad litem and in which she apparently stated her desire to remain
in the U.S. and not to meet Mr. Vasconcelos.
On appeal, Mr. Vasconcelos argues inter alia that the district court erred
in concluding that he had not established a prima facie case under the Hague
Convention, namely because he had not shown that he had custody rights under
1

B.V. will turn 16 this September, at which point the Convention would no longer apply
to her. Hague Convention art. 4.
2

The Hague Convention provides that each signatory country “shall designate a
Central Authority to discharge the duties which are imposed by the Convention upon such
authorities.” Hague Convention art. 6. Brazil’s Central Authority is the Office of the
Secretaria Especial dos Direitos Humanos da Presidência da República (“the Special
Secretariat for Human Rights of the Presidency of the Republic”). The United States’s Central
Authority is the Office of Children’s Issues in the Department of State.

2

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Brazilian law; and that the district court erred in applying the Convention’s age
and maturity exception, which permits the court to deny the child’s return where
the child is of sufficient age and maturity for her wishes to be taken into account
and she has objected to her return.3
I.
As explained below, we conclude that this appeal may be resolved under
the Hague Convention’s age and maturity exception. Therefore, we deem it
unnecessary to discuss the threshold issue of whether Mr. Vasconcelos has
established a prima facie case under the Convention. Like the district court, we
assume arguendo that Mr. Vasconcelos had custody rights under Brazilian law,
and thus that he successfully established a prima facie case.
II.
The Hague Convention provides that “[t]he judicial or administrative
authority [considering a petition] may also refuse to order the return of the child
if it finds that the child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of its views.”
Hague Convention art. 13. This age and maturity exception is to be narrowly
construed and must be shown by a preponderance of the evidence. England v.
England, 234 F.3d 268, 272 (5th Cir. 2000) (citing §§ 11601(a)(4), 11603(e)(2)(A)).
We conclude that the district court’s findings with respect to this exception were
not clearly erroneous.
1. B.V.’s age and maturity

3

Mr. Vasconcelos has also raised a third point of error, namely that the district court
erred in finding that Ms. Batista had shown the well-settled exception to the Hague
Convention. The Convention provides that where, as here, a parent has filed a petition for
return of a child one year or more after the alleged wrongful removal, the judicial or
administrative authority overseeing the case is required to order the child’s return, “unless
it is demonstrated that the child is now settled in its new environment.” Hague Convention
art. 12. The well-settled exception has never been considered by this Court. Because we
resolve Mr. Vasconcelos’s appeal on another ground, we decline to discuss this exception.

3

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Whether the child has reached an appropriate age and degree of maturity
is a factual determination and thus subject to clear error review. See Dietz v.
Dietz, 349 F. App’x 930, 934 (5th Cir. 2009) (citing England, 234 F.3d at 272).
“[G]iven the reliance on live oral testimony, ‘the clearly erroneous standard is
particularly strong because the judge had the opportunity to observe the
demeanor of the witness[es].’” Id. (quoting United States v. Santiago, 410 F.3d
193, 197 (5th Cir. 2005)).
“The Convention does not set an age at which a child is automatically
considered to be sufficiently mature, rather the determination is to be made on
a case-by-case basis.” Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3d
Cir. 2007). B.V.’s age of 13 at the start of district court proceedings is consonant
with that of other children whom courts have found to be of sufficient age and
maturity for the purposes of this exception.4
Mr. Vasconcelos’s only cogent argument regarding B.V.’s age and maturity
is that Ms. Batista unduly influenced B.V.’s opinion and tainted B.V.’s judgment.
In particular, Mr. Vasconcelos contends that “over the approximately 5 years
since the abduction, [Ms. Batista] has told B.V. that Mr. Vasconcelos was violent
towards her and that he hit her, ‘gradually’ adding more detail to the story as
B.V. became ‘able to absorb and process according to her age.’” Mr. Vasconcelos
cites the Third Circuit, which stated that “[i]n making its determination, a court

4

See, e.g., deSilva v. Pitts, 481 F.3d 1279, 1286–87 & n.7 (10th Cir. 2007) (exception
applied where child was 13); Man v. Cummings, No. CV 08-15-PA, 2008 WL 803005, at *2, *4
(D. Or. Mar. 21, 2008) (exception applied where child was 13 and had objected to her return
during an in camera interview); McManus v. McManus, 354 F. Supp. 2d 62, 71 (D. Mass. 2005)
(exception applied where children were 14-year-old twins); Diaz Arboleda v. Arenas, 311 F.
Supp. 2d 336, 343 (E.D.N.Y. 2004) (exception applied where children were 12 and 14 and had
objected to their return during an in camera interview); but see England, 234 F.3d at 269, 272
(holding that district court erred in determining that a child, who was 13 years old, was of
sufficient age and maturity, where the district court’s finding of sufficient age and maturity
was based entirely on the child’s wishes to remain in the United States, which constituted a
“non sequitur”).

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should also consider whether a child’s desire to remain or return to a place is ‘the
product of undue influence,’ in which case the ‘child’s wishes’ should not be
considered.” Tsai-Yi Yang, 499 F.3d at 279 (quoting de Silva, 481 F.3d at 1286,
and citing Hague Int’l Child Abduction Convention: Text and Legal Analysis, 51
Fed. Reg. 10,494, 10,509 (Mar. 26, 1986)).
Mr. Vasconcelos’s argument cannot prevail under a clear error standard.
First, even if we accept that there is some evidence that B.V. had a skewed
perception of Mr. Vasconcelos, we are not convinced that that evidence rose to
the level of undue influence such that the district court clearly erred in its age
and maturity findings. Notably, there is no evidence that Ms. Batista coerced
B.V. into objecting to return. See Tsai-Yi Yang, 499 F.3d at 279 (“At the [in
camera] hearing, Dr. Bernstein testified that he did not think that [the child]
demonstrated any signs of coercion, although he admitted that her time and
experiences with her father had a major impact on her desire to remain in
Pittsburgh.”). On the contrary, Ms. Batista’s testimony reflects that she was
sensitive to B.V.’s youth and did not want to influence B.V.’s opinions too soon.5
Further, even if B.V.’s perception of her biological father was one-sided, that onesidedness stemmed in great part from the fact that Mr. Vasconcelos never
reached out to B.V. from the time she was taken from Brazil up until the start
of these proceedings, although he knew B.V.’s whereabouts, knew how to contact
her, and had authorization to travel outside Brazil.

5

Ms. Batista testified, “I told [B.V.] that when she is older and she can understand it
better, I would explain to her [why they left Brazil] and tell her about the details, but as for
now that this would be the best solution for her.”; “At -- at that time [when they arrived in
Denton] I didn’t tell her that I was running away from a -- an abusive man who was
threatening me -- threatening to kill me, and that I had found love in Rod [Richards].”;
“Gradually, as she’s gotten older, I have been able to provide her with pieces of information
that I felt that she would be able to absorb and process according to her age. When she was
eight, I told her, you know, your father wasn’t cool with your mom, you know.”

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Finally, we disagree with Mr. Vasconcelos’s suggestion that B.V.’s in
camera interview was an improper basis for the district court’s age and maturity
findings. The interview was conducted by the magistrate judge, during which
B.V. was represented by an attorney ad litem.

After the interview, the

magistrate judge found that
[I]t is appropriate to take into account BV’s views here. Although
softspoken and understandably shaken by the prospect of leaving
the United States, she demonstrated an understanding of the
proceedings and of her right to state her preferences. She is a good
student, demonstrated clear cognitive abilities, and stated a desire
to remain with her mother and stepfather. The Court finds that her
wishes are another basis to deny Petitioner’s request for her return
to Brazil.
These findings are perfectly reasonable, and Mr. Vasconcelos has not argued
that the interview was somehow defective under Texas law.6
The question of whether B.V. was of sufficient age and maturity is at heart
a fact-intensive inquiry. Mr. Vasconcelos has given us no reason to second-guess
the district court, which had a unique “opportunity to observe [the child] in
person.” de Silva, 481 F.3d at 1287. As such, this Court “accord[s] great
deference to the [district] court’s findings based on that experience.” Id. We
conclude that the district court did not clearly err in its findings with respect to
B.V.’s age and maturity.
B. Whether B.V. objected to being returned to Brazil
Even if B.V. was of sufficient age and maturity for her views to be taken
into account, the age and maturity exception is not satisfied unless B.V. also
objects to her return. Hague Convention art. 13. Although there is no case law
directly on-point, it is logical to assume that the question of whether B.V.
objected is fact-intensive, and thus the district court’s finding that she objected

6

Such interviews are otherwise entirely proper under Texas law. See TEX. FAM. CODE.
ANN. § 153.009 (“Interview of Child in Chambers”).

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is subject to clear error review. See de Silva, 481 F.3d at 1287. We bear in mind
that a child’s “generalized desire” to remain in the United States is “not
necessarily sufficient to invoke the exception”; rather, the child must “include
particularized objections to returning to” the former country of residence. TsaiYi Yang, 499 F.3d at 279.
Mr. Vasconcelos argues that the Hague Convention requires B.V. to
“clear[ly] object” to her return to Brazil. To show that B.V. did not clearly object,
he cites the district court’s statements that B.V. only “expressed an interest to
remain here,” and that B.V. only “stated a desire to remain with her mother and
stepfather.” However, inasmuch as Mr. Vasconcelos seeks to argue that the
Hague Convention requires an explicit objection from B.V., case law does not
support him. Notably, the Tenth Circuit’s decision in de Silva undercuts his
argument. In de Silva, the Tenth Circuit affirmed the district court’s finding
that the age and maturity exception applied. The court quoted approvingly the
findings of the magistrate judge, who conducted an in camera interview with the
13-year-old child:
This Court has also considered the [sic] Jonathan’s expressed
opinions as to his status in accordance with Article 13(b) of the
Hague Convention. 42 U.S.C. § 11603(e)(2)(A). This Court observed
Jonathan to be a bright, expressive child with a well-developed
understanding of his situation and the positions of his parents. He
has attained an age and degree of maturity to so consider his views.
Unlike Petitioner [Ms. de Silva], this Court did not find Jonathan to
be particularly swayed by lavish gifts and wealth in forming an
opinion that the schools were better in Oklahoma, he enjoyed his
friends and activities and his home. He is well-settled in his
environment in Oklahoma and expressed his desire to remain in
Oklahoma with Pitts without apparent adult indoctrination.
Allowing him to remain with Pitts while an Oklahoma court
determines custodial issues between his parents is in his best
interests at this time.
481 F.3d at 1287; see also id. at 1286 n.7 (indicating the child’s age). What is
noteworthy is that at no point in de Silva does the child explicitly object to being
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returned to his country of former residence, namely Canada. Nevertheless, the
Tenth Circuit found it sufficient that the child was mature and had expressed
his preference for staying in the United States. Therefore, de Silva contradicts
Mr. Vasconcelos’s contention that the child’s objection need be explicit.
The facts in de Silva contrast with those in Tsai-Yi Yang, in which the
Third Circuit affirmed the district court’s decision to not apply the age and
maturity exception because of the child’s “generalized desire to remain in” the
United States. 499 F.3d at 279. As the court summarized,
[The child] informed Dr. Bernstein [a psychologist and expert
witness] that she wanted to stay in Pittsburgh. Her reasons for
wanting to stay included liking her school, her preference for living
in a house rather than a small apartment, and having friends and
brothers. She also explained that she missed her mother [the
petitioner] and knew that her mother was very sick, but she was
happy in Pittsburgh and had lived there for more than three years.
Id. Moreover, the court in Tsai-Yi Yang emphasized that the child’s preference
to stay in the United States was not derived from any particular reasons the
child had for staying in this country, but rather from a generalized affinity for
this country after having lived here for many years: “[I]t was the passage of time
during the years of wrongful retention and litigation of this case that created
[the child]’s desire to remain in Pittsburgh. If the District Court applied the
exception in this case, it would encourage parents to wrongfully retain a child
for as long as possible. A lengthy wrongful retention could enable the child to
become comfortable in his or her new surroundings, which may create a desire
to remain in his or her new home.” Id. at 280.
B.V.’s situation is more analogous to de Silva than to Tsai-Yi Yang. Here,
B.V. has not expressed a mere generalized desire or preference to stay in the
United States. During her in camera interview with the magistrate judge, in
which she was represented by an attorney ad litem, she specifically expressed
that she did not want to visit her father while he was in the United States. She
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also “demonstrated an understanding of the proceedings and of her right to state
her preferences” and she “stated a desire to remain with her mother and
stepfather.”

Further, B.V.’s express desire to stay with her mother and

stepfather in the United States does not derive merely from some generalized
affinity for this country after having lived here a long time. Rather, she has
particularized ties to the United States,7 whereas she has virtually no ties to
Brazil and barely any knowledge of Mr. Vasconcelos, who has done nothing to
communicate with her since she left Brazil. It was reasonable for the district
court to conclude from these facts that B.V. did not simply “like” being in the
United States, but specifically wished to stay here and to not be with Mr.
Vasconcelos. We therefore conclude that the district court did not err in finding
that B.V.’s statements constituted an objection within the meaning of the age
and maturity exception.
In summary, the district court did not clearly err in finding that B.V. was
of sufficient age and maturity for her wishes to be taken into account and that
she objected to being returned to Brazil. We therefore affirm the district court’s
judgment with respect to the age and maturity exception, meaning Mr.
Vasconcelos’s petition for return should be denied.
AFFIRMED.

7

Indeed, there is extensive evidence of B.V.’s ties to the United States, which Mr.
Vasconcelos does not dispute. To highlight a few facts considered by the district court, B.V.
does well in school and is involved with extracurricular activities; her life is stable in the
United States, with her recent move to Pennsylvania being the first time she has left Denton
since arriving in the United States more than five years ago; she has been diagnosed with
epilepsy and has the resources in the United States to treat it; and she and her mother are
now United States citizens.

9