Padilla v. Troxell, 2017 WL 922061 (4th Cir.,2017) [Mexico][Consent][Petition denied]

In Padilla v. Troxell, 2017 WL 922061 (4th Cir.,2017) Petitioner-Appellant Xochitl Jazmin Velasco Padilla (“Petitioner”) appealed the district court’s denial of her petition for the return of her now five-year-old child J.V. (“Child”), after Respondent Joe Richard Troxell (“Respondent”) took Child to the United States. The district court denied the petition, finding that Petitioner had consented to Child’s removal from Mexico. The Fourth Circuit affirmed.

The petitioner gave birth to Child on May 27, 2011 in the state of Oaxaca, Mexico. Respondent--a U.S. citizen residing in Mexico at the time--offered to provide support for Child. In January 2012, when Child was about eight months old, Petitioner and Respondent agreed that Respondent would serve as Child’s legal father. Respondent registered himself as Child’s father, and his name appeared on the birth certificate. As stipulated by the parties, Respondent was the legal father and had parental rights under Mexican law. 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.


During the trial, several inconsistencies in Petitioner’s version of events became apparent. As for the alleged abduction, Petitioner testified that Respondent took Child while she was going to the bathroom, which conflicted with her prior account that Respondent disappeared with Child while she was buying ice cream. Although Petitioner’s sister, Maria Candelaria Velasco Padilla, testified that Petitioner “was always with her baby” before the birth of her third child in 2013, she said nothing to support Petitioner’s narrative of the day of the alleged abduction in December 2014.
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 Petitioner argued that the document was not self-authenticating as required under Federal Rule of Evidence 902(3). Petitioner stated that the “basis” for the objection was Federal Rule of Evidence 902(3)- but did not argue hearsay.

In its opinion, the district court found Petitioner had established, that [Child] was wrongfully removed.” 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. 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.”. Accordingly, the district court found that there was “only one credible version of events: Respondent’s.” 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).”

The Fourth Circuit observed that consent and acquiescence are two separate and “analytically distinct” affirmative defenses. 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. A petitioner’s statements or conduct-formal or informal--can manifest consent. For both the consent and acquiescence defenses, the inquiry turns on the petitioner’s subjective intent. “To establish consent, we focus on the parties’ conduct prior to the removal or retention. However, a petitioner’s conduct after removal can further inform whether she consented at the time of removal.” Determining whether the preponderance of the evidence supports a petitioner’s subjective intent to consent to removal is naturally “fact-intensive.” Accordingly, this inquiry depends to a considerable extent on the district court’s factual and credibility determinations.


The Fourth Circuit found that  Petitioner’s conflicting testimony about basic personal information led the district court to question “all of her factual testimony.”The district court ultimately concluded Respondent’s version of events was the only credible one. It owed this express credibility determination substantial deference. Bolstered by the credibility determination, it agreed with the district court’s legal conclusion that a preponderance of the evidence demonstrates Petitioner consented to Child’s removal to the United States. The district court found that Petitioner willingly accompanied Respondent to obtain Child’s passport and agreed to surrender custody to Respondent so that Child could have a better life. Ms. Leyva’s testimony and the sworn affidavit of Petitioner’s half-sister, Ms. Banos, corroborated Respondent’s story. The text messages-- exchanged between September 2015 (a little more than six months after Child’s removal) and January 2016--reinforced the conclusion that Petitioner consented to removal of Child to the United States. Respondent acknowledged that Petitioner never told him she wanted him to bring Child into the United States illegally, and how a Child is removed is one factor to consider in assessing the scope of consent. Still, Petitioner repeatedly said that Child was better off with Respondent in the United States, thus suggesting that she did not view Respondent as an abductor. In the context of Respondent’s impending move to the United States, the combination of Petitioner’s conduct in signing for Child’s passport and her statements during the passport visit to Respondent that Child would be better off with him--as well as her subsequent text messages expressing same--all supported the conclusion that she consented to Child’s relocation.