Silva v. Dos Santos, --- F.4th ----, 2023 WL 3674357 (Eleventh Circuit.2023) - [Brazil] [Grave Risk of Harm] [Clear and Convincing Evidence][Corroberation]

  

        In Silva v. Dos Santos, --- F.4th ----, 2023 WL 3674357 (Eleventh Circuit,2023) in 2021, Respondent-Appellant Adriene Ferreira dos Santos left Brazil with her daughter, Y.F.G., and eventually entered the United States. The child’s father, Petitioner-Appellee Wellekson Gonçalves Silva, shared custody of Y.F.G., and he petitioned for the child’s return to Brazil under the Convention and ICARA. Following a bench trial at which both parents testified, the district court ordered that Y.F.G. be returned to Brazil. The district court expressly found Silva not to be credible, but because the district court concluded that dos Santos did not provide independent corroboration to support her own testimony, the district court found she had not established by clear and convincing evidence a “grave risk” of harm to Y.F.G. in Brazil. The Eleventh Circuit concluded that the district court applied an erroneous legal standard in weighing the conflicting testimony. It vacated the district court’s order and remand for further consideration.

 

Dos Santos and Silva met in 2011 in Brazil. They have one child together, their daughter Y.F.G., who was born in 2012 in Guanhães, Brazil. The three lived together in Guanhães until April 2020, when dos Santos and Silva separated. Dos Santos submitted that her relationship with Silva was plagued by frequent abusive incidents, which caused her to fear for her own safety and her daughter’s well-being. She testified about several of these incidents. On dos Santos’s telling, the abuse began during her pregnancy when Silva beat her, dragged her around the house, held her by her neck until she couldn’t breathe, and told her that he would remove the baby from her belly with his own hands. She testified that the beatings continued after Y.F.G. was born, including an incident where Silva tied dos Santos up with an electrical cord and told her to say goodbye to the world because it would be her last day—all of which occurred in front of a crying Y.F.G. Dos Santos also recounted several times when Silva pointed a gun at her, which she said happened so often that she “lost [her] count,” as well as an incident in which Silva dragged dos Santos by her hair in front of Y.F.G., who yelled at Silva to let dos Santos go. Dos Santos estimated that she was abused almost every day. Silva described burning the family’s kitten to Y.F.G. Silva also allegedly inflicted purely psychological harm on dos Santos, including an instance in which he used social networks to share intimate photos of dos Santos that he had taken when they lived together. After dos Santos and Silva separated in 2020, Y.F.G. initially lived with dos Santos. Later that year, dos Santos obtained a restraining order against Silva, Brazilian records indicate that Silva repeatedly violated the restraining order and that he was arrested and imprisoned under the “decree of preventative imprisonment.”¹ Following his release, Silva filed a lawsuit to confirm his custodial rights, and in June 2021, a Brazilian judge ordered that dos Santos and Silva share custody of Y.F.G. In August 2021, Dos Santos left Brazil with Y.F.G. and traveled to the United States without Silva’s consent. In August 2022, in federal district court, Silva filed a Petition under the Convention seeking Y.F.G.’s return to Brazil.

 

The district court conducted a bench trial in February 2023., Silva largely denied dos Santos’s allegations of abuse. After Silva testified and before dos Santos took the stand, the district judge said, “I want to know whether anyone actually witnessed these so-called incidents on which [dos Santos] is relying to establish an affirmative defense. That’s really all I’m interested in.” Dos Santos then testified and recounted the many instances of alleged abuse and violence, as we’ve mentioned. Besides discussing these incidents, dos Santos’s testimony also included a description of an altercation between Silva and dos Santos’s subsequent boyfriend and an incident in which Silva damaged dos Santos’s car. According to dos Santos, a neighbor captured the car damage incident on video. But neither the boyfriend nor the neighbor testified during the bench trial, nor did dos Santos offer the video recording into evidence.  Dos Santos’s counsel called two other witnesses to testify at trial. The district court then presented its factual findings. It began by expressly discrediting Silva’s testimony. Despite expressly discrediting Silva’s testimony, the district court found that dos Santos had not met her burden to prove by clear and convincing evidence that Y.F.G. was at grave risk. While dos Santos testified about several distinct incidents, “on many of the points,” the district court explained, dos Santos “was the only one who testified to these points.” The court found that it was “curious” that she presented no documents to corroborate allegations of broken ribs nor were there police reports that supported any of these incidents. And the district court noted that many of the alleged incidents occurred several years before dos Santos and Y.F.G. came to the United States. The district court granted Silva’s petition for return of the child under the Convention and ICARA. It also denied dos Santos’s motion to stay its order pending appeal. This Court then granted dos Santos’s emergency motion to stay the district court’s order pending appeal.

 

The Court said it reviews a district court’s factual findings for clear error and its legal conclusions de novo. Whether a grave risk of harm to a child exists under the terms of the Hague Convention is a mixed question of law and fact, which we review de novo.” Baran v. Beaty, 526 F.3d 1340, 1345 (11th Cir. 2008). It pointed out that this case turned solely on the application of the Convention’s “grave risk” exception. And on that point, as the party opposing return, dos Santos bears the burden to establish “by clear and convincing evidence” that the exception applies and that Y.F.G. should therefore not be returned. Id. § 9003(e)(2).

 

Here, the district court expressed “concerns about the child being returned to Brazil and being with her father” because, in the court’s view, “there are some issues with the father,” including “possible anger management issues” and “making threats to people.” But the district court felt its “hands [were] tied” because the only evidence of the incidents dos Santos described was dos Santos’s testimony. Indeed, even before dos Santos testified and the court could evaluate her credibility on the stand, the district court emphasized that “really all [it was] interested in” was “whether anyone actually witnessed these so-called incidents on which [dos Santos] is relying to establish an affirmative defense.” So even though the district court expressly found that Silva’s testimony was not credible and did not make a similar finding as to dos Santos, it concluded that dos Santos did not meet her burden to establish the harm Y.F.G. faced in Brazil.

 

This reasoning reflected two legal errors. First, given that Silva testified about the alleged abuse and the district court expressly did not believe him, under its precedent, it was not necessarily the case that dos Santos’s testimony was uncorroborated. And second, even without independent corroboration, a factfinder’s belief in a single witness’s testimony alone can be sufficient to satisfy a party’s burden to prove a fact by clear and convincing evidence. Either error alone required it to vacate and remand for further consideration under the correct standard. And both together provide all the more reason that it must remand.

 

A factfinder can use a witness’s noncredible testimony as corroborating substantive evidence against the witness’s interests, regardless of whether the case arises in the civil or criminal context. Here, that means the district court could consider its lack of faith in Silva’s testimony as corroborating substantive evidence that dos Santos’s allegations are true. In invoking the “grave risk” exception, dos Santos accused Silva of engaging in physical violence and emotional and physical abuse. Silva testified and, for the most part, denied that the alleged instances of abuse happened. But the district court expressly found that Silva was “not very credible at all.” It said that it didn’t find him to be “believable” and expressed concerns about his “issues,” including “possible anger management issues” and “making threats to people.” In other words, the district court observed Silva’s testimony and determined that he was not trustworthy. By testifying, Silva risked that the district court would not believe him or find him to be a credible witness. And because the district court did not believe him, it could have chosen to consider Silva’s testimony as corroborating substantive evidence that the alleged abusive incidents did, in fact, occur. In this way, the district court had the option of considering Silva’s testimony as corroborative of dos Santos’s testimony. In other words, dos Santos’s testimony was not necessarily uncorroborated on this record because the district court could have found that Silva’s noncredible denials and non-denial denials corroborated dos Santos’s assertions about the physical violence and physical and emotional abuse. The district court did not know that it could consider testimony it found noncredible as corroborating substantive evidence because the district court expressly said so. Because the district court did not know that it could consider Silva’s noncredible testimony as corroborating substantive evidence, it had no reason to consider—and certainly did not announce—how that information might have affected its decision.

 

The district court’s second error was concluding that a single witness’s testimony is necessarily insufficient to satisfy the clear-and-convincing-evidence standard. Neither the Convention, ICARA, nor governing precedent requires a respondent to provide independent corroboration to establish that a child would face a “grave risk” of harm if they were returned to their resident country. Instead, ICARA requires that the respondent provide “clear and convincing evidence” that the exception applies. 22 U.S.C. § 9003(e)(2). And that standard does not necessarily mandate that a witness’s testimony be corroborated to be credited by the fact finder. Dos Santos could have satisfied her burden to establish “clear and convincing evidence” based on only her own testimony. Unlike with Silva’s testimony, the district court did not discredit dos Santos’s testimony. If the district court credited her testimony and believed that Silva was, in fact, responsible for the various abusive incidents, the district court could have reasonably concluded that dos Santos established that Y.F.G.’s return to Brazil risked physical or psychological harm to the child. The district court did not know that it could rely solely on dos Santos’s testimony to find clear and convincing evidence if it was so moved. The district court erroneously believed that dos Santos’s testimony alone was insufficient to meet the clear-and-convincing standard.

The Court summarized its holding as follows:” In sum, when a factfinder does not believe an interested witness’s testimony, it may—but is not required to—consider that witness’s discredited testimony as corroborating substantive evidence that the opposite of the testimony is true. And when a single witness provides the only evidence on some point, that testimony, without corroboration, can still meet the standard of clear and convincing evidence if the factfinder concludes that it is credible. Because the district court’s reasoning did not account for these principles, it vacated the district court’s order and remanded for further consideration in light of this opinion.