De Costa v. De Lima, 2024 WL 834750 (First Circuit, 2024) [Brazil] [Petition denied] [Now-settled defense]

 In De Costa  v. De Lima, 2024 WL 834750 (First Circuit, 2024) after their marriage ended in Brazil, petitioner-appellant Heitor Ferreira da Costa (da Costa) accused respondent-appellee Jessica Camila Albefaro de Lima (de Lima) of absconding with their minor child to the United States where unbeknownst to da Costa for about a year, the mother and child settled into a new life on Martha’s Vineyard. The district court denied the petition. The First Circuit affirmed.

De Costa and de Lima, both of whom were Brazilian nationals, married, had a child, and subsequently made their home in São Sebastião do Anta, Brazil. The marriage ended in December 2019 after a Brazilian court entered a divorce judgment, which incorporated an agreement that explained how each parent could spend time with the child. De Lima was granted “definitive custody” of the child, while da Costa retained general visitation rights, subject to de Lima’s approval, and was allotted parenting responsibilities for one weekend each month (an interval later expanded to two weekends each month). Da Costa twice availed himself of this expanded parenting window before de Lima and the child surreptitiously decamped for São Paulo, Brazil — a journey that eventually took them to Martha’s Vineyard, Massachusetts. After first being removed by immigration officials, de Lima and the child successfully reentered the United States even though they lacked proper documentation. The mother and child made their home in Martha’s Vineyard, where they lived near several family members. The child enrolled in elementary school participated in extracurricular activities (like swim lessons), and attended mass and bible study at a local church. De Lima had pending before United States Citizenship and Immigration Services an asylum application (which includes the child). Da Costa remained in Brazil. For some time, he believed that de Lima and the child had traveled only as far as São Paulo. He was thus unaware — until about a year later — that his ex-wife and their child were residing in the United States. Unable to locate his child in Brazil, he lodged a report with the Brazilian civil police in São Sebastião do Anta. When he learned the true state of affairs, he applied for the return of the child with the Brazilian Ministry of Justice. Both of these initiatives proved fruitless, and da Costa then turned his attention to the American courts: he filed a petition under the Convention in the United States District Court for the District of Massachusetts. See Ferreira da Costa v. Albefaro de Lima, No. 22-10543, 2023 WL 4049378, at *1 (D. Mass. June 6, 2023).  The district court conducted a bench trial over three days, hearing testimony from the parties, family members, and teachers. See id. The court denied da Costa’s petition. Even assuming that da Costa had proven his prima facie case, he still would not prevail: de Lima had shown that the “now settled” defense applied. Based on the totality of the circumstances, the court determined “that the child [was] now settled in [his] new environment” of Martha’s Vineyard. Lozano v. Montoya Alvarez, 572 U.S. 1, 5, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014)). After all, the child had spent over half his life in Martha’s Vineyard; his age (six years old) permitted him to form meaningful connections with his new environment; he had developed strong relationships with family in the United States; he had bonded with teachers and classmates; he was making substantial progress in learning English; and he regularly attended mass and a bible study course with other children in the community. Finally, the court declined to exercise its discretion to order the return of the child.

The court recognized that de Lima and the child, along with other family members, remained uncertain about their immigration status. The court also recognized that de Lima and the child had moved several times and that the child’s nascent English ability hindered communication. Even so, the court did not think that any of these facts, individually or collectively, were weighty enough to tip the scales against de Lima. De Lima was authorized to work, worked full time, and applied for asylum. The family’s moves were within Martha’s Vineyard, kept them close to family members, occurred before the child had commenced school, and were carried out in conjunction with the family. And the child could speak Portuguese to family members and some classmates, while his English skills continued to improve. The court then declined to exercise its discretion to order the child’s return even though he was firmly settled because “the considerations related to [his] well-being outweigh[ed] the policy considerations related to deterring misconduct” by the removing parent. Although de Lima had engaged in misconduct by concealing the child’s location from da Costa, the court held that the interests of the child were paramount and “that requiring [the child] to return to Brazil would be disruptive, particularly given how much of his life he ha[d] spent in the United States, his strong family connections here, and his limited connections to his family in Brazil, other than to [da Costa].”

 

The Court of Appeals observed that under the Convention, “[c]ourts look to the totality of the circumstances in determining whether a child is now settled.” da Silva v. de Aredes, 953 F.3d 67, 75 (1st Cir. 2020). For this purpose, “[a] court may consider any relevant fact, including immigration status.” Id. In the last analysis, though, immigration status remains just one relevant data point, and its weight will vary based on the idiosyncratic circumstances of each particular case. See id. Other relevant factors include: (1) the child’s age; (2) the stability and duration of the child’s residence in the new environment; (3) whether the child attends school or daycare consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent’s employment and financial stability. In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009); see Alcala v. Hernandez, 826 F.3d 161, 171 (4th Cir. 2016) (listing these factors along with immigration status); Hernandez v. Garcia Peña, 820 F.3d 782, 787-88 (5th Cir. 2016) (similar); Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir. 2012) (similar).

In Convention cases, the “ ‘now settled’ defense[ ] require[s] the court to identify a broad standard and then answer the factual question[ ] of ... whether the abducted child is ‘now settled.’ ” da Silva, 953 F.3d at 72. As the Supreme Court has explained in the analogous context of determining a child’s country of habitual residence, “[t]he inquiry begins with a legal question: What is the appropriate standard” to ascertain whether a child is now settled? Monasky, 140 S. Ct. at 730; see da Silva, 953 F.3d at 72 (applying reasoning in Monasky to now settled defense in Convention case). The standard for the now-settled defense mirrors that of the country-of-habitual-residence determination — that is, a totality-of-the-circumstances approach. See da Silva, 953 F.3d at 72. “Once the [district] court correctly identifies the governing totality-of-the-circumstances standard, ... what remains for the court to do in applying that standard ... is to answer a factual question: [Has] the child” become settled in his new environment? Monasky, 140 S. Ct. at 730; see da Silva, 953 F.3d at 72. Thus, review of that question is for clear error. See da Silva, 953 F.3d at 72.

At the outset, da Costa asserted that relying solely on the evidence that postdates the petition’s filing — as the district court purportedly did here — did not align with the reasoning behind the now-settled defense. The now-settled defense’s requirement that one year must pass after the petition’s filing, he maintains, “is a recognition that one year gives a child the opportunity to form ties to a new community and is intended to ensure rapid attempts to recover a wrongfully removed child.”³ De Lima rejoins that this argument is waived and that, in all events, it defies the text of the Convention. Because the parties’ arguments were of a legal nature, review is de novo. De Lima argued da Costa waived this argument by failing to object to her introduction of post-petition evidence and remaining silent on the matter throughout briefing and closing argument. Thus, de Lima insists, da Costa waived any challenge to the court’s consideration of post-petition evidence.  This objection misconstrues da Costa’s position. He did not urge a categorical exclusion of post-petition evidence. Instead, he deemed it clearly erroneous to rely only on post-petition evidence or, at least, to weigh the post-petition evidence as heavily as did the court below. Even though de Lima’s alleged paucity of pre-petition evidence certainly could have been fodder for da Costa’s closing argument, it was not until the court rendered its decision that the alleged error was committed, affording da Costa something concrete to challenge. It rejected the suggestion of waiver. With respect to the merits, da Costa offered no case law in support of his theory. What is more, the Convention itself gives a strong indication that post-petition evidence remains important. In describing the now-settled defense, the Convention’s text reads in relevant part: “The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year [following the child’s wrongful removal], shall also order the return of the child, unless ... the child is now settled in [his] new environment.” Hague Convention, art. 12 (emphases supplied). Refined to bare essence, the text of the Convention explicitly contemplates a court considering the child’s circumstances after the petition has been filed without reference to his prior situation. The phrase “now settled” — the wording of which itself suggests an emphasis on the present — is introduced in the context of post-petition circumstances without reference to pre-petition circumstances. If the drafters of the Convention had intended to require that the removing parent include pre-petition evidence, one would expect them to have expressed that intent more explicitly in the text. Yet, da Costa has presented no probative evidence of such an intent.

Da Costa had a fallback position: he posited that the district court “erred in weighing the applicable considerations and facts” under the now-settled analysis by using the wrong geographic scope in defining the child’s “new environment,” mischaracterizing the stability of the child’s living situation, and ignoring de Lima’s misconduct in removing the child from Brazil. De Lima responds that this “kitchen-sink approach” attempts to jumble together “a variety of disparate arguments, none of which demonstrate[s] clear error.” The Court agreed. Separating da Costa’s fusillade into its component parts, it found no basis to second-guess the district court’s judgment.

 

Because these arguments effectively challenged the court’s finding that the child was settled, review was for clear error. See da Silva, 953 F.3d at 72. Da Costa first complains that the court employed the wrong definition of “new environment” by considering only Martha’s Vineyard, instead of the entire United States. The record, however, flatly contradicted da Costa’s plaint: the district court explicitly found “that [the child] is settled in the United States.” Proceeding past the question of regionalization, da Costa reprises his own narrative questioning the district court’s findings. The key facts include that the child’s living situation was less than stable due to his repeated moves (one of which was outside of Martha’s Vineyard); that the immigration statuses of the affected parties remain uncertain; that the child is too young to have his opinion considered, especially given that younger children are less likely to form attachments to their environment; and that the child had only minimal adjustment to his environment, particularly at school, in part because of the language barrier. These facts, cherry-picked from the record, did not move the needle. The district court considered every fact that da Costa now brought to its attention but found each of them outweighed by other evidence. Specifically, the court noted that de Lima was authorized to work, worked full time, and had applied for asylum; that the family’s moves (mostly) remained within Martha’s Vineyard, were with or near other family members, and occurred before the child had started school; that the child still could speak Portuguese to family members and some classmates, while his English skills improved rapidly; and that the child appeared to be connecting with teachers and classmates inside and outside of the classroom. Nowhere did da Costa identify a factual finding that was unsupported by the record.

Da Costa suggested that the district court ignored de Lima’s misconduct in secretly fleeing with the child to the United States. But this suggestion was of little consequence: the court failed to see how concealing the child’s location or allegedly forging a signature on the child’s passport has anything to do with whether the child is settled in a new environment. To be sure, the Supreme Court has acknowledged that “steps taken to promote concealment can also prevent the stable attachments that make a child ‘settled.’ ” Lozano, 572 U.S. at 17, 134 S.Ct. 1224. But the cases to which the Court cites connect the misconduct to the child’s being settled. Here, however, the steps allegedly taken to conceal the child have no bearing on whether he was settled.

Da Costa’s final claim was that the district court’s analysis was “tainted” by inappropriate consideration of the child’s best interests, a concern not contemplated by the Convention. See Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir. 2000) (explaining that it is inappropriate to “risk substituting a best interest of the child analysis for the analysis the Convention requires”). This claim was wide of the mark. To a large extent, “[t]he Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.” Abbott v. Abbott, 560 U.S. 1, 20, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). Even so, “[t]he Convention also has as its ‘purpose ... deterring child abductions,’ thereby ‘prevent[ing] harms resulting’ therefrom.” In other words, once beyond the prima facie case, the Convention adopts “an additional ‘purpose’: the protection of a child’s ‘interest in remaining in a country in which [he] has lived for a substantial amount of time.’ ” Recognizing this other purpose of the Convention, the district court had the discretion to consider,  in its analysis of whether equitable factors supported the child’s return to Brazil even though he had become settled,  the effect that the return would have on the child’s wellbeing. What is more, da Costa did not point to anything in any other portion of the court’s opinion tending to indicate an improper consideration of the child’s best interests. Contrary to da Costa’s earlier importunings, de Lima’s misconduct was considered and weighed against the child’s interests. The court found that the child appeared to be doing well in the United States, while the extent of de Lima’s misconduct remained disputed (particularly the veracity of the allegation that she forged da Costa’s signature on the child’s passport). hus, it concluded that returning the child to Brazil,  where he has limited connections other than to da Costa, would be disruptive because he has spent most of his life in the United States and has developed many meaningful connections here. Put another way, equity could not be served by ordering the child’s departure from a supportive environment and the return to a less supportive one simply as punishment for the removing parent’s alleged malfeasance.

There was no clear error based on these factual findings. The court recognized that de Lima admitted to hiding the child’s location, and concerning the child’s passport, all that the record reflects is conflicting testimony about whether da Costa signed it. Nor could it detect an abuse of discretion in connection with the court’s decision. Da Costa primarily takes issue with the court lending credence to the child’s interests in remaining on Martha’s Vineyard while discounting his interests in returning to Brazil, but “[s]uch relative weighting of interests by the district court ... is not for this court to second-guess, and especially not on an abuse of discretion analysis.”etion analysis especially not on an abuse of discretion discretion analysis.”