Avendano v. Balza ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1251
VERONICA LUZ MALAVER AVENDANO,
Plaintiff, Appellant,
v.
LEONARDO ALFONZO BLANCO BALZA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Howard, Chief Judge,
Barron, Circuit Judge,
and Katzmann, Judge.
Matthew P. Barach, with whom Barach Law Group LLC was on
brief, for appellant.
Shamis N. Beckley, with whom Dana M. McSherry, Annabel
Rodriguez, and McDermott Will & Emery LLP were on brief, for
appellees.
January 11, 2021

Of the United States Court of International Trade, sitting
by designation.
KATZMANN, Judge. This wrenching case involves the
application of the Hague Convention on the Civil Aspects of
International Child Abduction (Hague Convention) and its
implementing statute to a father's wrongful retention of a child,
herein "G*" to protect his privacy. See Oct. 25, 1980, T.I.A.S.
No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494-01
(Mar. 26, 1986); International Child Abduction Remedies Act
(ICARA), 22 U.S.C. § 9001 et seq. G*'s 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* is 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 appeals that decision. We
affirm.
I. BACKGROUND
A. Hague Convention Framework
The Hague Convention "aims to deter parents from
abducting their children to a country whose courts might side with
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them in a custody battle." Díaz-Alarcón v. Flández-Marcel, 944
F.3d 303, 305 (1st Cir. 2019) (citing Darín v. Olivero-Huffman,
746 F.3d 1, 7 (1st Cir. 2014)). Relevant here, the United States
and Venezuela are contracting parties to the Hague Convention.
See Status Table, Hague Conf. on Priv. Int'l L.,
https://www.hcch.net/en/instruments/conventions/status-
table/?cid=24 (last visited Dec. 21, 2020). In the United States,
ICARA implements the Hague Convention and permits a parent to
petition a federal or state court to return an abducted child under
the age of sixteen to the country of the child's habitual
residence. See 22 U.S.C. §§ 9001, 9003(b). The Hague Convention
applies only to determine whether a child should be returned, see
Hague Convention, art. 1, and does not empower the court to make
any determinations regarding child custody. The court simply asks
whether a custody decision should be made in the United States or
in the country of the child's habitual residence. Díaz-Alarcón,
944 F.3d at 305–06; Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir.
2000).
"The removal or retention of a child is to be considered
wrongful where a) it is in breach of rights of custody . . . under
the law of the State in which the child was habitually resident
immediately before the removal or retention; and b) . . . those
rights were actually exercised . . . ." Hague Convention, art. 3.
The Hague Convention favors custody decisions be made by the courts
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of the country of habitual residence, Mendez v. May, 778 F.3d 337,
343 (1st Cir. 2015), and the "re-establishment of the status quo
disturbed by the actions of the abductor," see Elisa Pérez-Vera,
Explanatory Report: 1980 Hague Conference on Private International
Law, in 3 Acts and Documents of the Fourteenth Session 426, 430
(1982) (Pérez-Vera Report).1 The Convention carves out few
exceptions to this strong presumption of return of the child to
his or her country of habitual residence. See Hague Convention,
art. 13. Furthermore, "courts construe these exceptions
narrowly." Díaz-Alarcón, 944 F.3d at 306 (citing Nicolson v.
Pappalardo, 605 F.3d 100, 105 (1st Cir. 2010)). The exception
relevant here permits the court to decline to order the child
returned "if [the court] finds that the child objects to being
returned and has attained an age and degree of maturity at which
it is appropriate to take account of [the child's] views" (herein
"the mature child exception"). Hague Convention, art. 13. The
wrongful abductor must prove that the child is mature enough for
the court to consider his or her stated desire by a preponderance
of the evidence. 22 U.S.C. § 9003(e)(2)(B).
1
The Pérez–Vera Report refers to the travaux préparatoires
of the Hague Convention, which provides the official history and
commentary of the text of the treaty as prepared by "the official
Hague Conference reporter" for the Hague Convention. Hague
International Child Abduction Convention; Text and Legal Analysis,
51 Fed. Reg. 10,494, 10,503–06 (Mar. 26, 1986); see also Abbott v.
Abbott, 560 U.S. 1, 19 (2010).
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B. History of G*'s Presence in the United States
Unlike many cases involving child custody that implicate
the Hague Convention, the parties agree on many of the facts and
threshold issues. We summarize their account below.
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. As the
district court found, 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.
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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 continues 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.
The political, social, and economic conditions in
Venezuela provide the backdrop to G*'s childhood there. As the
district court noted, "Venezuela is currently experiencing a
period of economic instability and political unrest." The district
court made related findings on food insecurity, lack of access to
medical care, high levels of violent crime, and human rights
violations in Venezuela. However, the district court also noted
that Avendano's evidence indicated that the island of G*'s habitual
residence in Venezuela "is largely insulated from the larger issues
in Venezuela."
C. District Court's decision to allow G* to remain in the
United States
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,
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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.2
After hearing evidence from Avendano, Balza, G*'s
Guardian Ad Litem, three expert witnesses, and witnesses from G*'s
community in Venezuela, as well as conducting an in-person
interview with G*, the district court issued Findings of Fact and
Conclusions of Law. 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, however, ruled that it did not need to determine whether G*
would face a grave risk of harm if returned to Venezuela. In light
2 Not at issue in this appeal, the Hague Convention also
provides an exception for return where "there is a grave risk that
. . . return would expose the child to physical or psychological
harm or otherwise place the child in an intolerable situation."
Hague Convention, art. 13(b).
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of these conclusions, 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." Avendano appeals that decision.
II. STANDARD OF REVIEW
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)
(alteration in original)(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 (emphasis omitted). To the extent
that the district court interpreted and applied the Hague
Convention, we review de novo. Id.
III. ANALYSIS
Avendano challenges two aspects of the district court's
decision: (1) the district court's conclusion that G* met the
mature child exception to the Hague Convention's return mandate
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and (2) the district court's finding that Balza did not unduly
influence G*'s viewpoint.
A. The Mature Child Exception to the Hague Convention
Avendano claims 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.
She points to various pieces of evidence in the record that she
argues support a conclusion that G* was not sufficiently mature to
have his views considered. Further, Avendano contends that the
district court improperly considered G*'s age at the time of the
court proceedings rather than "at the time he was wrongfully
retained in the United States."
The Hague Convention applies only to children under the
age of sixteen. Hague Convention, art. 4. However, it 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. See Pérez–Vera Report at 433 ("[A]ll efforts to agree on
a minimum age at which the views of the child could be taken into
account failed, since all the ages suggested seemed artificial,
even arbitrary."). The Hague Convention purposefully leaves these
determinations "to the discretion of the competent authorities."
Id.; see also id. at 460 ("[T]he very nature of [Article 13]
exceptions gives judges a discretion – and does not impose upon
them a duty – to refuse to return a child in certain
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circumstances."). Other Circuits have upheld analyses by district
courts requiring both that the child wishes to stay in the United
States and objects to being returned. See, e.g., Tann v. Bennett,
648 F. App'x 146, 149 n.3 (2d Cir. 2016); Tsai-Yi Yang v. Fu-
Chiang Tsui, 499 F.3d 259, 279 (3d Cir. 2007).
The district court examined "whether G*, who will be
twelve years old in March 2020, is 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. On appeal, Avendano argues that the district court
ignored testimony of G*'s Guardian Ad Litem and Avendano's
witnesses. Contrary to Avendano's claims, however, the district
court considered the testimony of the Guardian Ad Litem at length,
and weighed the credibility of the various experts based on the
amount of time they spent with G*. 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
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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 is no support in the Hague Convention or our
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. On the contrary, 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. Hague Convention, art. 4. We agree
with Balza that "[i]t defies logic that a court would be required
to return a child it currently viewed as sufficiently mature over
their earnest objections simply because the child may have been
less mature a few months earlier."
We conclude that the district court did not clearly err
in declining to return G* to Venezuela. As we have noted, the
Hague Convention leaves the mature child determination to the
discretion of courts.3 See Hague Convention, art. 13; Pérez–Vera
Report at 433. 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.
3 For this reason, we also reject Avendano's proposal that we
adopt objective criteria by which a court should evaluate a child's
maturity.
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We afford 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 before us, we will not disturb the district
court's finding that G* was sufficiently mature.
B. Undue Influence
Avendano also claims that the district court erred in
considering G*'s wishes prior to analyzing whether Balza exerted
undue influence over G*. Specifically, Avendano contends that the
district court "failed to weigh all of the available evidence
regarding [Balza's] influence and brainwashing of the child prior
to considering his wishes." Avendano discusses in detail eight
pieces of evidence that ostensibly indicate that Balza had undue
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influence over G*, including Balza's testimony, allegations of
conversations between Balza and G*, and Avendano's testimony.
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
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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 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.4 The district court did in fact consider
4 We note that, for purposes of appellate review, it is useful
for a district court to separately analyze any claims of undue
influence apart from analyzing the child's age and maturity. For
example, identifying the specific allegations of undue influence,
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the evidence cited by Avendano on this issue. The district court
acknowledged Balza's wrongful conduct and concluded that Avendano
made out a prima facie case of wrongful retention. A fundamental
purpose of the Hague Convention is to protect children from
wrongful international removals or retentions by persons
determined to obtain their physical or legal custody. Pérez–Vera
Report at 430. However, the Pérez–Vera Report also makes clear
that a child's objection outweighs this general objective. Id. at
433. 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
what level of influence may be present, and what influence, if
any, was proven would clarify findings relevant to influence over
the child. Because the district court analyzed all relevant
evidence of undue influence and rejected such a conclusion, we
discern no error in the district court's decision.
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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.
IV. CONCLUSION
As the district court observed, "G* loves both of his
parents" and both parents "love him very much."5 We conclude that
in its analysis of a wrenching set of circumstances, the district
court did not clearly err in rejecting a claim that Balza unduly
influenced G* and in determining that G* was of the age and
maturity to state his viewpoint that he should remain in the United
States and not return to Venezuela. The district court properly
exercised its discretion in refusing Avendano's petition for
return of G* to Venezuela. Therefore, the district court's
decision is Affirmed.
5 As the district court elaborated:
Nothing in the [c]ourt's decision should be taken as
commentary about which parent has a better relationship
with their son, loves him more, or would be the better
parent. G* is lucky enough to have two caring and
devoted parents. The [c]ourt's decision is limited to
the determination that G* is a mature child, who has
decided that he wants to stay in the United States.
Although he loves Venezuela and his mother, G*
recognizes the unrest in his home country and does not
want to live there. This is not an irrational decision.
It is therefore up to the courts of this country to
determine how best to navigate any custody decisions.
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