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Wednesday, May 22, 2013

Vasconcelos v. Batista, 2013 WL 600200 (C.A.5 (Tex.)) [Brazil] [Age and Maturity]

In Vasconcelos v. Batista, 2013 WL 600200 (C.A.5 (Tex.)) Appellant Eduardo Henrique Vasconcelos petitioned for the return of his child, B.V., to Brazil.

B.V. was 13 years old at the start of district court proceedings in January 2011 and was now 15 years old. 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.

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. The District Court denied the petition. The Fifth Circuit affirmed.

The Fifth Circuit in a per curium opinion held that this appeal could be resolved under the Hague Convention's age and maturity exception, and it was unnecessary to discuss the threshold issue of whether Mr. Vasconcelos had established a prima facie case under the Convention. Like the district court, it assumed arguendo that Mr. Vasconcelos had custody rights under Brazilian law, and thus that he successfully established a prima facie case.

The Fifth Circuit observed that 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)). It concluded that the district court's findings with respect to this exception were not clearly erroneous. 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). "[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. Mr. Vasconcelos's only cogent argument regarding B.V.'s age and maturity was that Ms. Batista unduly influenced B.V.'s opinion and tainted B.V.'s judgment. In particular, Mr. Vasconcelos contended that "over the approximately 5 years since the abduction, [Ms. Batista] 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 cited the Third Circuit, which stated that "[i]n making its determination, a court 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.

The Court held that Mr. Vasconcelos's argument could not prevail under a clear error standard. First, even if it accepted that there was some evidence that B.V. had a skewed perception of Mr. Vasconcelos, it was 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 was no evidence that Ms. Batista coerced B.V. into objecting to return. Ms. Batista's testimony reflected that she was sensitive to B.V.'s youth and did not want to influence B.V.'s opinions too soon. Even if B.V.'s perception of her biological father was one-sided, that one-sidedness 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.

The Fifth Circuit disagreed 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 was a good student, demonstrated clear cognitive abilities, and stated a desire to remain with her mother and stepfather. The Court found that her wishes were another basis to deny Petitioner's request for her return to Brazil." These findings were perfectly reasonable, and Mr. Vasconcelos had not argued that the interview was somehow defective under Texas law.

The question of whether B.V. was of sufficient age and maturity was a fact-intensive inquiry. Mr. Vasconcelos gave the Fifth Circuit no reason to second-guess the district court, which had a unique "opportunity to observe [the child] in person."

The Court pointed out that 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 was no case law directly on-point, it was logical to assume that the question of whether B.V. objected is fact-intensive, and thus the district court's finding that she objected was subject to clear error review. See de Silva, 481 F.3d at 1287. 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. Tsai–Yi Yang, 499 F.3d at 279.

Mr. Vasconcelos argued 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 cited 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." Inasmuch as Mr. Vasconcelos sought to argue that the Hague Convention requires an explicit objection from B.V., the Court found that the case law did not support him. If found that the Tenth Circuit's decision in de Silva undercut 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. At no point in de Silva did the child explicitly object to being 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 contradicted 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. 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 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 had particularized ties to the United States, whereas she had virtually no ties to Brazil and barely any knowledge of Mr. Vasconcelos, who had 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. It therefore concluded 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.

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