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Thursday, March 4, 2021

Avendano v. Balza, 2021 WL 82378 (1st Cir.,2021)[Venezuela] [age and maturity defense -the mature child exception] [Petition denied]


In Avendano v. Balza, 2021 WL 82378 (1st Cir.,2021) the mother, plaintiff-appellant Veronica Luz Malaver Avendano (Avendano), sought G*’s return to Venezuela, alleging that G*’s father, defendant-appellee Leonardo Alfonzo Blanco Balza (Balza), abducted G* in contravention of a Venezuelan child custody order and the Hague Convention. The district court determined that Balza admitted to unlawfully retaining G* in contravention of the Hague Convention and the implementing statute. However, after determining that Balza had established that G* was a mature child such that the court should consider G*’s stated desire to remain with his father in the United States, the district court denied Avendano’s petition for return of her son to Venezuela. Avendano appealed that decision. The First Circuit affirmed.


Prior to the events leading to this litigation, G* lived with his mother in Venezuela, the country where he was born and is a citizen. Balza, a joint citizen of the United States and Venezuela with residence in Massachusetts, had joint custody over G* pursuant to a custody order by a Venezuelan court. Balza visited G* in Venezuela often while he resided there and provided financial support to G*. However, as the relationship between Avendano and Balza deteriorated, the parties sought a custody arrangement through the Venezuelan courts. That order provided for G* to visit Balza in the United States every August and every other December. Because of the poor relationship between Avendano and Balza, the Venezuelan courts had to intervene to enforce the order so that G* could travel to the United States in both 2016 and 2018. While G* was visiting Balza in the United States for his second yearly visit that began in August 2018, Balza secured U.S. citizenship on behalf of G* that resulted in the forfeiture of G*’s green card. Subsequently, Avendano refused to grant the necessary permission for issuance of G*’s U.S. passport, and a Venezuelan court refused to extend the period of visitation. Therefore, Balza declined to return G* to Venezuela at the end of his court-mandated visit, claiming that he would not return G* to Venezuela without the proper documents through which he could return to the United States. G* thus continued to live with Balza and has begun attending school in Massachusetts. The district court noted that G* speaks with his mother weekly and stays in contact with his friends in Venezuela.


After Balza’s retention of G* in the United States beyond the date of the Venezuelan court order, Avendano sought G*’s return by filing suit in federal district court. The parties agreed that Avendano had lawful custody of G* pursuant to a valid Venezuelan court order, that G*’s country of habitual residence was Venezuela, and that Balza wrongfully retained G* in the United States. Having conceded that he wrongfully retained G*, Balza argued that G* should nevertheless remain in the United States because G* is a mature child who objects to being returned to Venezuela and because G* would face grave conditions if returned to Venezuela. The district court determined that G* was a child of sufficient age and maturity to have his wishes taken into consideration. While finding that “[t]here is no question in the mind of the [c]ourt that Avendano is a loving and committed parent,” the district court then determined that G* genuinely objected to being returned to Venezuela because of ongoing political and societal tumult. Finally, the district court found that G*’s desire to remain in the United States was reached independently, free of undue influence by Balza. The district court “exercise[d] its discretion granted by Article 13 of the [Hague] Convention and refuse[d] Avendano’s petition for return of the child to Venezuela.”


The First Circuit observed that questions of fact, such as whether a child is of sufficient age and maturity to have his views considered and whether the child is subject to undue influence, are reviewed for clear error. Mendez, 778 F.3d at 344; Díaz-Alarcón, 944 F.3d at 311. “Clear-error review is demanding: this standard will be satisfied only if, ‘upon whole-record-review, an inquiring court “form[s] a strong, unyielding belief that a mistake has been made.” ’ ” United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 2017)(quoting United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)). “It is not enough that a finding strikes us as possibly or even probably wrong.” Díaz-Alarcón, 944 F.3d at 312. To the extent that the district court interpreted and applied the Hague Convention, the review is de novo.


Avendano claimed that the district court erred in determining that G* was of sufficient age and maturity for the court to consider his wishes regarding his return to Venezuela.  The First Circuit noted that the Hague Convention does not set an age at which a child is considered to be sufficiently mature; rather, the determination is to be made on a case by case basis. The district court examined “whether G*, who would be twelve years old in March 2020, was sufficiently mature to have his views taken into account and if so, whether his views should carry the day.” The district court heard testimony from experts and witnesses familiar with G* and both his current and former living conditions. Finally, the district court personally interviewed G* in the offices of G*’s Guardian Ad Litem. Upon examination of this evidence, the district court determined that Balza “established by a preponderance of the evidence that G* is a mature child, whose desire to stay with his father in the United States should at least be considered.” The district court further concluded that “G* not only prefers to live in the United States, but also objects to being returned to Venezuela.” The district court noted that, while G* had positive and negative things to say about living in Venezuela and now living in the United States, G*’s desire to remain was “very clear, consistent, and rational.” There was no support in the Hague Convention or caselaw to support Avendano’s claim that the district court should have considered G*’s age retrospectively to the time he was retained in the United States. The Hague Convention ceases to apply once the child reaches the age of sixteen regardless of whether the child was wrongfully removed or retained prior to that date. It concluded that the district court did not clearly err in declining to return G* to Venezuela. The district court thoughtfully considered the age and maturity of G* and concluded that G* was of the age and maturity to have his views regarding his return to Venezuela considered. It afforded deference to the district court’s decision, in part based on its personal interview with G*, that G* was of sufficient age and maturity to have his views considered. See Díaz-Alarcón, 944 F.3d at 315 (affirming lower court decision pursuant to the Hague Convention primarily on the basis of the deference to district court’s discretion and expertise as the finder of fact); see also United States v. Young, 105 F.3d 1, 5 (1st Cir. 1997) (“Deference to the district court’s findings of fact reflects our awareness that the trial judge, who hears the testimony, observes the witnesses’ demeanor and evaluates the facts first hand, sits in the best position to determine what actually happened.”). Thus, based on the record it did not disturb the district court’s finding that G* was sufficiently mature.


Avendano also claimed that the district court erred in considering G*’s wishes prior to analyzing whether Balza exerted undue influence over G*. The Hague Convention is silent on undue influence and instead emphasizes the discretion of the deciding authority in applying the mature child exception. See Pérez–Vera Report at 433. The State Department’s analysis of the Hague Convention notes that the court’s discretion in applying the age and maturity exception is important in light of the “potential for brainwashing of the child by the alleged abductor.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986) (Legal Analysis). Specifically, “[a] child’s objection to being returned may be accorded little if any weight if the court believes that the child’s preference is the product of the abductor parent’s undue influence over the child.” Id. In short, the possibility of undue influence over the child is one consideration in the competent authority’s assessment of whether a child is of the age and maturity to have their views considered. The district court noted that it was undisputed that G* wanted to stay with Balza in the United States and that “he has seemingly not waivered [sic] in his decision.” The district court then concluded that “G*’s desire to stay in the United States does not appear to be the result of undue influence or coaching by Balza.” In so determining, it pointed to testimony from the Guardian Ad Litem, testimony from Balza, and the court’s own interview with G*. The district court rejected Avendano’s claims that Balza unduly influenced G* both by questioning the truth of Avendano’s testimony and by concluding that, even if Avendano’s allegations were true, they would not rise to the level of undue influence. In determining that there was no undue influence, the district court noted that “G* feels like he is free to choose for himself whether he wants to stay in the United States or return to Venezuela,” regardless of the truth of that belief in light of conditions in Venezuela and the strained relationship between Avendano and Balza. Finally, in concluding that G* wished to remain in the United States, the court noted “that current living conditions in Venezuela” were relevant to G*’s desire to remain in the United States even though the district court ultimately did not find it necessary to decide Balza’s claim that G* would face grave conditions if returned to Venezuela.


 The First Circuit found that the district court did not clearly err in determining that Balza did not unduly influence G*’s desire to remain in the United States and his objection to returning to Venezuela. The analysis provided by the district court shows that it considered all the relevant evidence. Thus, the court’s conclusion that G* met the mature child exception after the court met with G* and rejected Avendano’s allegations of Balza’s undue influence should be afforded deference. See Díaz-Alarcón, 944 F.3d at 315; Young, 105 F.3d at 5.


Furthermore, the district court did not rely solely upon G*’s expressed desire to remain in the United States and objection to being returned to Venezuela. The district court’s ruling was also supported by socio-political conditions in Venezuela and G*’s continued access to and communication with Avendano in deciding to retain G* in the United States. In sum, the district court’s age and maturity decision properly considered Balza’s influence over G* and, based on the totality of the circumstances, the court did not clearly err or abuse its discretion in declining to order G*’s return to Venezuela. Therefore, the district court’s decision was  affirmed.

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