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.
