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Thursday, December 19, 2019

Díaz-Alarcón, V. Flández-Marcel, 2019 WL 6836785 (First Circuit, 2019)[Chile] [Standard of review] [Grave risk of harm] [Petition denied]

  In Díaz-Alarcón v. Flández-Marcel, 2019 WL 6836785 (First Circuit, 2019) the district court denied Alejandro Díaz-Alarcón petition for return of his daughter from the United States to Chile. The First Circuit affirmed. 

         Díaz-Alarcón and Flández-Marcel were Chilean nationals. Flández-Marcel gave birth to their daughter, ADF, in 2008, in Santiago, Chile. Díaz-Alarcón and Flández-Marcel married in 2009, separated in 2011, and divorced in 2014. They agreed that Flández-Marcel would have patria potestad (meaning “parental power”) over ADF, but that Díaz-Alarcón would have a “direct and regular relationship” with ADF through scheduled visits. In 2011, after Díaz-Alarcón and Flández-Marcel had separated. Flández-Marcel met and began dating Héctor Pérez-Babilonia, a Puerto Rico resident. ADF eventually started spending time with Pérez-Babilonia. And in 2013 Díaz-Alarcón overheard ADF call Pérez-Babilonia “dad.” Díaz-Alarcón, in his own words, “told [ADF] off,” explaining that Pérez-Babilonia “wasn’t her dad.” A few months later, Flández-Marcel had ADF evaluated by a child psychologist. And ADF got diagnosed with a possible “[a]djustment [d]isorder.” The staff there also interviewed Díaz-Alarcón, Flández-Marcel, and Pérez-Babilonia. Díaz-Alarcón said that both he and Flández-Marcel had verbally and psychologically abused each other. Flández-Marcel, for her part, accused Díaz-Alarcón of psychologically abusing her. After the interviews, a social worker concluded that ADF had [a]lienation [s]yndrome, which describes the change that occurs when there are conflictive marital break ups, in which the children censure, criticize or reject one of their parents in an unjustified and/or exaggerated manner. This implies that one parent systematically and consciously programmes the children to denigrate the other. Another social worker said that “it was demonstrated” that Díaz-Alarcón had not “mistreat[ed]” ADF, though adding that “it was demonstrated that the parents handled the family dynamic badly, often being prone to including the girl in conflicts between [them].”

           In 2014, a couple of weeks after Díaz-Alarcón and Flández-Marcel got divorced. Flández-Marcel asked the authorities in Santiago to issue a protective order for ADF and her against Díaz-Alarcón, accusing him of having committed the crime of “threatening with no aggravating circumstances against persons”. The authorities issued the protective order, telling the police to give “priority status” to calls from Flández-Marcel and to “periodic[ally] patrol []” her neighborhood. But they eventually closed the matter after the investigation unearthed no “information required to continue the case.” A few months later, in 2015, just before she married Pérez-Babilonia, Flández-Marcel asked a Chilean family court for permission to move to Puerto Rico for one year with ADF. In her petition, Flández-Marcel claimed that Díaz-Alarcón could not “be located.” After somehow learning about the petition, Díaz-Alarcón formally opposed Flández-Marcel’s request in papers filed with the court, saying she knew where he was and accusing her of being an unfit mother. The Chilean court then ordered Flández-Marcel to undergo a psycho-social evaluation, focusing on her parenting skills. A social worker interviewed ADF as part of the process. And ADF told her that Díaz-Alarcón “is a fighter [;] he always hits with a closed fist. I’ve seen it. If I say something to him, he hits me. If I ask him a question, he hits me. If I ask him if we can go to the park, he hits me. That’s how he was taught; violently. His mum and dad told me. Some other days he does not hit. Asked by the social worker “to think of some positive aspects of her dad,” ADF said that Díaz-Alarcón is “a happy and loving person” who “gives kisses” and “affection.” But she added that he “doesn’t listen” when she tells him “he shouldn’t hit [her] anymore.”

          After reviewing the evaluation, the Chilean court pushed Díaz-Alarcón and Flández-Marcel to reach an agreement. And they eventually did, agreeing, for example, that Flández-Marcel could take ADF to Puerto Rico from December 26, 2015 to March 26, 2016 and that Díaz-Alarcón would have “constant communication” with ADF as well as “additional days of visits” when she returned to Chile. The Chilean court entered the agreement as a final and enforceable judgment. Flández-Marcel and ADF flew out on December 27.

Once there, Flández-Marcel enrolled ADF in school for the semester starting in January 2016. Early in January, ADF had a Skype call with Díaz-Alarcón. Flández-Marcel was present too. ADF told Díaz-Alarcón that she never wanted to speak with him again. He asked her why. And she, according to Flández-Marcel, just screamed, “Cut, cut, cut.” So Flández-Marcel cut the call short. Flández-Marcel repeatedly asked ADF what was going on. According to Flández-Marcel, at first ADF would not say. But one day — after learning that Flández-Marcel was pregnant — ADF started hitting her and then screamed, “Don’t bathe me, don’t bathe me, don’t bathe me.” “Who is going to bathe you?” Pérez-Babilonia asked. “Don’t ask me,” ADF said.  At some point (apparently in January or February 2016), ADF told Flández-Marcel and Pérez-Babilonia the following — at least according to Flández-Marcel’s expert witness, Dr. Carol Romey: During a visit to his home when she was 5, Díaz-Alarcón had her take off her clothes to take a bath. He took off his clothes too, got into the tub, touched her “private parts,” and (per Pérez-Babilonia) had her touch his. She then saw a “white-yellow liquid come out of his penis.” After, he beat her “with a slipper [] many times all over,” walked “to the kitchen,” and made her “something to eat.” The deadline for ADF’s return to Chile — March 26, 2016 — came and went without her showing up. And she remained in Puerto Rico 

Díaz-Alarcón petitioned Puerto Rico’s federal district court, seeking ADF’s return. Flández-Marcel raised the grave-risk and child-objection defenses. The district judge referred the matter to a magistrate judge for an evidentiary hearing and a recommendation. Following the close of evidence, the magistrate judge issued a report and recommendation. On the grave-risk issue, the “critical question” being whether Díaz-Alarcón “sexually abused” ADF, the magistrate judge said that Dr. Romey (Flández-Marcel’s expert) testified “convincingly ... that [ADF] had suffered serious trauma and now suffers PTSD and anxiety.” Dr. Romey, the magistrate judge added, also found that ADF’s relationship with Díaz-Alarcón is the only “trigger” for her “PTSD and anxiety” and that “she would be at grave risk of a psychotic break if she were to be placed under [his] care ... until she can process her experiences.” But in the magistrate judge’s telling, Dr. Romey’s “purpose ... was to ... assess [] ... [ADF’s] maturity” and current “psychological state,” and so did “not speak directly to whether [Díaz-Alarcón] sexually abused [ADF].” Dr. Mercado-Colón (Díaz-Alarcón’s expert) did “speak directly to that issue,” the magistrate judge wrote. And having assessed ADF, Dr. Mercado-Colón “concluded that there was a suspicion of sexual abuse, just not by [Díaz-Alarcón],” given some incongruences” in ADF’s statements about the incident. Ultimately, the magistrate judge said that while ADF “may be a victim of sexual abuse, a preponderance of the evidence does not show that [Díaz-Alarcón] abused her. “On the child-objection issue, the magistrate judge said that ADF “clearly objected to returning to Chile.” Summarizing his in-chambers interview with ADF, the magistrate judge said that she knows the difference between telling the truth and telling a lie; is “intelligent and mature,” having “a good understanding of the decision facing her and specific reasons for her ... opinion”; and had not been “coached when she conveyed that she wanted to stay in Puerto Rico” — “she did not appear to be unduly influenced by the wishes of others such that her answers did not change even after [the magistrate judge] impressed upon her the importance of telling the truth.” And, the magistrate judge found, Dr. Romey’s report and testimony — e.g., that she has a “level of maturity clinically sufficient to be able to express her concerns and wishes in a reasoned and coherent manner” — supported these conclusions.

Based on his findings, the magistrate judge recommended that the district judge deny Díaz-Alarcón’s petition because (in his opinion), while Flández-Marcel cannot show “by clear and convincing evidence that [ADF] would be at grave risk if returned to Chile,” she can show “by a preponderance of the evidence that [ADF] is sufficiently mature to object to returning to Chile” and that she did so object.

Both sides objected to the magistrate judge’s report and recommendation. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). Giving the issues fresh-eyed “de novo review,” see Mercy Hosp., Inc. v. Mass. Nurses Ass’n, 429 F.3d 338, 343 (1st Cir. 2005), the district judge adopted the magistrate judge’s recommendation that Flández-Marcel proved by a preponderance of the evidence that ADF “is sufficiently mature to object to returning to Chile and that [she] does object to returning.”  On the grave-risk issue, the district judge highlighted how the magistrate judge never asked ADF to go into the details of the sexual abuse. Yet the district judge found that every time Dr. Mercado-Colón “revisited the subject of the sexual abuse, [ADF] would provide the same details” — including “that her father touched her private parts, that she was in the bathtub, and he went into the bathtub naked, that a liquid came out of his penis that was yellow and sticky.” And the district judge emphasized that “[t]hroughout the several interview sessions and the repeated questioning by Dr. Mercado[-Colón], [ADF] remained steadfast that it was [Díaz-Alarcón] who sexually abused her at his home.” So, the judge ruled, clear and convincing evidence established that ADF faces a grave risk of harm if sent back to Chile. And with that, the district judge dismissed Díaz-Alarcón’s petition, precipitating this appeal. 

The First Circuit reviewed the factfinding for “clear error,” see Darín, 746 F.3d at 8. But showing clear error is no easy task. See, e.g., United States v. Cates, 897 F.3d 349, 352 (1st Cir. 2018) (calling clear error’s “heights ... difficult to scale”). It is not enough that a finding strikes the court as possibly or even probably wrong. See Toye v. O’Donnell (In re O’Donnell), 728 F.3d 41, 45 (1st Cir. 2013). Rather, the finding must be “wrong with the force of a 5-week-old, unrefrigerated, dead fish.” It must be left “with the definite and firm conviction” that the finding is “a mistake.” (United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). While it reviews the judge’s factual findings for clear error, it determines de novo whether she interpreted and applied the Convention correctly. See, e.g., Neergaard-Colón v. Neergaard, 752 F.3d 526, 530 (1st Cir. 2014).

Díaz-Alarcón challenged the district judge’s grave-risk and child-objection conclusions. The Court began and ended with his grave-risk contentions, aware (to echo a point voiced by Danaipour I) that [t]he policy under the Convention of ... the United States government ... is weighted towards protection of the child when there is credible evidence of sexual abuse, particularly when the child is so young and when the allegations involve abuse by a parent. This policy informs the grave risk analysis. 286 F.3d at 16.

The Court found that Díaz-Alarcón’s first set of arguments which was directed at the district judge’s handling of the magistrate judge’s recommendations was to no avail.  Moving on, Díaz-Alarcón wrote that the district judge could have ordered ADF back to Chile without putting her in harm’s way by imposing “undertakings” — i.e., enforceable conditions on her return designed to keep her safe. See Danaipour I, 286 F.3d at 21-23; see also Danaipour v. McLarey, 386 F.3d 289, 302-03 (1st Cir. 2004) (hereinafter, Danaipour II). Separating permissible undertakings from impermissible ones is complicated stuff, however. See Danaipour I, 286 F.3d at 21-23. There are concerns for “international comity” — an American court, for example, should do nothing that “would smack of coercion of the foreign court.” And there are concerns about “the appropriateness of undertakings when the abducting parent claims to be protecting the child from abuse,” — some “authority,” for instance, “indicat[es] that undertakings should be used more sparingly when there is evidence that the abducting parent is attempting to protect the child from abuse,” Danaipour II, 386 F.3d at 293 (holding that a district court’s supportable finding that a child’s return “would cause grave harm” makes “immaterial” petitioner’s claim that the courts in the child’s country of habitual residence “could take ameliorative actions to prevent further harm,” adding that “[i]n such circumstances, [the Convention] does not require separate consideration either of undertakings or of steps which might be taken by the courts of the country of habitual residence”). Díaz-Alarcón had the burden of proof on the undertakings issue. See Danaipour I, 286 F.3d at 21, 26. But he dealt with none of these complexities. Which is not the way to turn the tide in his favor, since failing to give “serious treatment [to] a complex issue ... is not adequate to preserve the claim on appeal.” See Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 792 (1st Cir. 2011).

Díaz-Alarcón hinged his last set of arguments on caselaw indicating that a district judge “has discretion to order return even where such return poses a grave risk of harm or threatens to place the child in an intolerable situation.” See Lozano v. Montoya Alvarez, 572 U.S. 1, 21, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014) (Alito, J., concurring) As he sees it, the district judge “abused [her] discretion by not giving sufficient weight[,] if any,” to Flández-Marcel’s “inequitable conduct” (e.g., “conceal[ing]” ADF from him and “undu[ly] influenc[ing]” her), to ADF’s “interests” (e.g., Flández-Marcel “disrupt[ed] the strong and stable relationships [ADF] had in Chile”), and to the Convention’s “aims and objectives.” The First Circuit saw no reason to reverse.

It rejected Díaz-Alarcón’s contention that the district judge had no “awareness of [her] responsibility to weigh [] the relevant factors.” He played up these factors below, however. And the district judge said that she considered the “evidence presented.” “While a fuller explanation might have been helpful,” “the absence of a more detailed explanation does not amount to an abuse of discretion.” See Yaman v. Yaman, 730 F.3d 1, 22 (1st Cir. 2013).

The Court concluded that an appellant’s odds of winning a clear-error challenge are not very good. See, e.g., Cates, 897 F.3d at 352. This is especially so here, given how the district judge was uniquely situated to gauge ADF’s credibility. See, e.g., United States v. McGregor, 650 F.3d 813, 820 (1st Cir. 2011). Sure, maybe the district judge could have made different credibility findings or weighed the evidence differently. But that did not make her at-issue findings clearly erroneous. Ultimately, because none of Díaz-Alarcón’s arguments left it  with a “definite or firm conviction” that the district judge made “a mistake” or, more odoriferously, convinces us that she was “wrong with the force of a 5 week old, unrefrigerated, dead fish,” see Toye, 728 F.3d at 46, it could not  reverse her on the grave-risk issue — even if it would have reached a different a conclusion,. And given this ruling, it had no need to decide the child-objection issue.

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