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.
