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Thursday, July 25, 2019

Vasquez v Acevedo, 2019 WL 3310334 (6th Circuit, 2019) [Colombia] [ Habitual Residence] [Petition denied]

In Vasquez v Acevedo, 2019 WL 3310334 (6th Circuit, 2019) the Sixth Circuit affirmed an order of the district court which denied the petition of Colombian father Edison Alberto Carvajal Vasquez (“Carvajal”) for the return of his one-year-old son, TCG, to Colombia.

Carvajal and Gamba were the unmarried parents of minor child TCG. All three were Colombian citizens. TCG was born in MedellĂ­n, Colombia, on October 6, 2014. Until the summer of 2016, TCG lived with Gamba in an apartment in Colombia owned by Gamba’s parents. Carvajal lived with his own parents, at least during the week. By the summer of 2016, Carvajal and Gamba had developed a plan for the family to travel to the United States. Carvajal and TCG were able to obtain tourist visas, but Gamba’s multiple visa applications were unsuccessful. Gamba then changed tactics, traveling to Mexico in July 2016 and hiring “coyotes” to smuggle her across the United States border. On August 7, she was discovered and detained by immigration authorities. Gamba claimed that Carvajal planned and funded the scheme, including wiring money to the coyotes in Mexico. Carvajal dissembled when asked about the wire transfers to Mexico and whether he knew about Gamba’s plan to cross the border, but he admitted that he at least had “suspicions” about her intentions. When Gamba was detained, Carvajal wired about $3,000 to Gamba’s sister, Kelly Chambers, to hire an immigration attorney for Gamba and to help her post bond. While Gamba was in immigration custody, on August 26, 2016, Carvajal continued on with the plan and flew with TCG to the home of Gamba’s sister and brother-in-law, Kelly and David Chambers, in Tennessee. He then returned to Colombia two days later, leaving TCG in their care. Gamba was released on bond about a month later, on September 30, and flew to Tennessee on October 13. She and TCG lived at the Chambers’ home for the next several months.  Carvajal came to Tennessee again on December 19, 2016, and stayed with Gamba and TCG at the Chambers’ home for a few weeks. On December 11, shortly before Carvajal arrived, Gamba claimed she received a call from a married Colombian woman named Luz Elena stating that Elena and Carvajal were in a relationship. In contrast, Elena testified that she had never been in a relationship with Carvajal and claimed that romantic emails between the two were planted by Gamba. When Carvajal arrived in December, he and Gamba reconciled, and Carvajal proposed marriage, which Gamba accepted. Carvajal left Tennessee on January 9, 2017, and, when he arrived in Colombia, he gave away Gamba and TCG’s possessions, according to Gamba and her mother. Carvajal claimed that TCG’s toys are still stored at his house.  After several months in Tennessee, Gamba traveled with TCG to Houston, Texas, for a February 2 immigration hearing. They stayed in Houston for about five months. TCG’s tourist visa expired sometime in February. Also, during February, Gamba broke off her engagement with Carvajal, apparently because she was again contacted by Luz Elena. On February 24, 2017, Carvajal filed a criminal complaint in Colombia against Gamba for the crime of arbitrary exercise of custody of an underage child. Gamba and TCG returned to Tennessee at the beginning of July, where they rejoined the Chambers’ household. Gamba filed an application for asylum for herself and TCG in the spring of 2018. Carvajal filed a petition under the Hague Convention in Tennessee on February 9, 2018, almost a year after Gamba broke off their engagement, alleging that Gamba had wrongfully retained TCG in the United States. 

The district court denied Carvajal’s petition, finding that TCG had not been wrongfully retained in the United States in February 2017. The court determined that the United States was TCG’s habitual residence on that date because the last shared intent of Carvajal and Gamba was that TCG live in the United States. In the alternative, the court concluded that the United States was TCG’s habitual residence because TCG had acclimatized to the country.

The Sixth Circuit affirmed. It found that the district court determined that the date of retention was February 24, 2017, which was when Carvajal filed a criminal complaint with Colombian authorities. Neither party challenged this date on appeal, so it adopted it as well.

The Court noted that the crux of the case was determining TCG’s habitual residence immediately prior to February 24, 2017. It pointed out that it used two standards to determine habitual residence. “The primary approach looks to the place in which the child has become ‘acclimatized.’” Taglieri v. Monasky, 907 F.3d 404, 407 (6th Cir. 2018). Under the acclimatization standard, “the court must focus on the child, not the parents, and examine past experience, not future intentions.” Friedrich v. Friedrich (“Friedrich I”), 983 F.2d 1396, 1401 (6th Cir. 1995). This approach is “generally preferred” because it preserves the child’s access to “her family and social environment.” Ahmed v. Ahmed, 867 F.3d 682, 688 (6th Cir. 2017). But it had also recently acknowledged the difficulty of applying the acclimatization standard to “especially young children who lack the cognizance to acclimate to any residence. In such cases, it looks to the parental-intent standard, that is, “the parents’ last ‘settled mutual intent’ for where their child would live.” Ahmed, 867 F.3d at 687 (quoting Gitter v. Gitter, 396 F.3d 124, 133, 135 (2d Cir. 2005)). The petitioner bears the burden to show habitual residence by a preponderance of the evidence under both the parental-intent and acclimatization standards. Id. at 692.

In this case, the district court determined that the parental-intent standard was more appropriate for TCG’s case, because TCG was only two years and four months old on the date of the allegedly wrongful retention. The court then concluded that TCG’s habitual residence was the United States, based on Carvajal and Gamba’s last shared intent.

The Court noted that the standard of review to apply to the district court’s choice of habitual-residence standard appeared to be unsettled under its precedent. It held that it did not need not resolve the issue because it found that the district court’s reliance on the parental-intent standard was not erroneous under either de novo review or a more deferential standard.

Under Ahmed, “it is appropriate to consider the shared parental intent of the parties in cases involving especially young children who lack the cognizance to acclimate to any residence.” 867 F.3d at 690. How can a district court tell when a child lacks the necessary cognizance? In some cases, a child is so young or so old that no analysis of the child’s cognizance is necessary, by dint of common sense. The oldest age at which a court in this circuit had categorically rejected the acclimatization standard appeared to be fourteen months. On the other side of the equation, the Third Circuit has held that a child who is four years old “certainly has [the] ability” to “form meaningful connections with the people and places he encounters each day.” Whiting v. Krassner, 391 F.3d 540, 550–51 (3d Cir. 2004). Between those ages, however, lies the gray area of a child’s toddler years, during which time a child at some point develops sufficient cognizance to acclimatize to a country. Faced with such a case, a court must determine whether the evidence shows that a child is cognizant enough to acclimatize, which is most naturally proved by evidence that a child was actually acclimatizing, whether to the child’s current residence or to any past residences. Under its precedent, factors that tend to show acclimatization to a country include participation in academic activities, social engagements, and sports programs; appropriate fluency in the local language; and the formation of “meaningful connections with the people and places” of the country. See Robert, 507 F.3d at 996 (citing Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006)). Therefore, children who are cognizant enough to acclimatize to a country will be able to participate in a variety of acclimatizing activities, to form a sense of routine and environmental normalcy in a country, and to form relationships with people and places in that country. C.f. Whiting, 391 F.3d at 550.

In making its decision that the acclimatization standard was “of limited utility” in TCG’s case, the district court considered both TCG’s age and evidence of TCG’s actual acclimatization. TCG was two years and four months old on the date of wrongful retention. The record supported the district court’s determination that the parental-intent standard was more appropriate in TCG’s case. Gamba’s brother-in-law David testified that TCG would not be old enough to attend the “head start program” in their local Tennessee school district until the fall of 2018, about a year and a half after the date of the allegedly wrongful retention. Gamba’s sister Kelly Chambers testified that TCG did not begin to say words until December 2016, just two months before the date of retention. Facts like these show that it was not unreasonable to find that TCG’s youth and corresponding cognitive limitations would prevent him from systematically forming “ ‘meaningful connections with the people and places’ in a country.” Ahmed, 867 F.3d at 689 (quoting Robert, 507 F.3d at 996).  In sum, while TCG’s attendance in school or day care and in infant swim classes may be relevant to TCG’s ability to acclimatize, such attendance alone, without evidence that TCG was actively acclimatizing, did not persuade the Court that the district court was incorrect. Thus, under either de novo review or a more deferential standard, it found the district court correctly determined that the parental-intent standard was more appropriate for TCG’s case.

The district court found that the last shared intent of Carvajal and Gamba was that TCG live in the United States. The standard of review for the district court’s determination of habitual residence under either the parental-intent standard or the acclimatization standard is unambiguous: the court’s findings are reviewed for clear error. Taglieri, 907 F.3d at 405; Ahmed, 867 F.3d at 686; Robert, 507 F.3d at 995. Clear error review is “highly deferential,” and the district court must be affirmed “unless the fact findings ‘strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.’” In reviewing the district court’s conclusion, “[w]e must trust those with a ring-side seat at the trial to decide whose testimony is most credible and what evidence is most relevant.” Id. at 411. Credibility determinations were especially important in this case, where the bulk of the evidence took the form of testimony by Carvajal, Gamba, and their relatives and acquaintances. The district court’s opinion noted that weighing that evidence was “exceptionally difficult” because of “basic inconsistencies” in the testimony and because all but one witness testified by translator, and many by telephone. On the whole, the district court found Gamba’s story to be “inherently more consistent and plausible,” and her and her witnesses to be “more credible.” 

The Court observed that under the parental-intent standard, when the child is not cognizant enough to acclimatize in a particular country, the district court looks to “the parents’ last ‘settled mutual intent’ for where their child would live.” As the Ninth Circuit pointed out in Mozes [v. Mozes], 239 F.3d [1067] [ (9th Cir.2001) ], “[d]ifficulty arises, of course, when the persons entitled to fix the child’s residence no longer agree on where it has been fixed.” 239 F.3d at 1077. In such a case, if “the representations of the parties cannot be accepted at face value, ... courts must determine [habitual residence] from all available evidence.” Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009) (quoting Gitter, 396 F.3d at 135). In other words, the court must look to “external indicia” of the parents’ intent. Taglieri, 907 F.3d at 417 (Moore, J., dissenting). Under the parental-intent standard, Carvajal bore the burden of proving, by a preponderance of the evidence, that Carvajal and Gamba’s last shared intent was that TCG live in Colombia. The district court concluded that the parents’ last shared intent was that TCG live with Gamba in the United States: “Although it is unclear whether Carvajal ever really intended to move permanently to the United States, the court finds that he knew that Gamba intended to do so and that she intended to have her son with her.” The court based its conclusion on its factual findings that Carvajal voluntarily brought TCG to the United States to stay in the country with Gamba, that Gamba had always intended for TCG to live with her in the United States, and that Carvajal agreed with Gamba’s intentions until Gamba broke off their relationship in February 2017. Although Carvajal testified that he had always intended to bring TCG back to Colombia, the court found no evidence of any such plan. The Sixth Circuit held that the district court’s conclusions were not clearly erroneous. Gamba testified that she planned to stay in the United States permanently. Gamba’s desire to move to the United States, whether legally or illegally, was evidenced by her multiple unsuccessful visa applications and ultimate plan to cross the border covertly. Importantly, Carvajal knew about that desire when he brought TCG to the United Sates and left him in Tennessee. Carvajal almost certainly financed Gamba’s trip by paying “coyotes” to smuggle her across the Mexican border. Carvajal’s aunt, Diana Vasquez, testified that Gamba had long been “bedazzled” by the idea of living in the United States, so Gamba’s desire was clear to those around her. Even after Carvajal proposed marriage in December, he testified that Gamba told him she still wanted to remain in the country. Finally, when Carvajal testified that he thought TCG would be returning to Colombia in February 2017, he claimed that it was Gamba’s sister Kelly, and not Gamba herself, who would accompany TCG. Yet despite knowing Gamba intended to remain in the United States with TCG, Carvajal twice left TCG in the United States—first in August 2016 with Gamba’s sister, then in January 2017 with Gamba.

As for Carvajal’s alleged plans to bring TCG back to Colombia in January or for Kelly to bring TCG back in February before the expiration of his visa, the district court concluded that there was no evidence to support the existence of either plan. Viewing the record as a whole, it was clear from Carvajal’s actions that he acquiesced in Gamba’s plans for TCG to grow up in the United States. It did not find clear error in the district court’s determination that Carvajal and Gamba’s last shared intent was that TCG live in the United States with Gamba. Carvajal’s petition was therefore properly denied.

Because the parental-intent standard was the more appropriate standard for TCG’s case, and because the district court’s findings under that standard were not clearly erroneous, the Court did not not address the district court’s alternative findings under the acclimatization standard.