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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13436 Non-Argument Calendar ________________________
D.C. Docket No. 1:19-cv-22689-MGC
KAREN BERENGUELA-ALVARADO,
Plaintiff - Appellant,
versus
ERIC CASTANOS,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(February 25, 2020)
Before WILLIAM PRYOR, JORDAN and NEWSOM, Circuit Judges.
NEWSOM, Circuit Judge: Case: 19-13436 Date Filed: 02/25/2020 Page: 2 of 20
In this appeal, Karen Berenguela-Alvarado seeks the return of her
daughter—whom we’ll call EICB—to Chile from Florida, where she is currently
living with her father, Eric Castanos. Berenguela-Alvarado had permitted EICB to
visit Castanos in the United States from December 2018 to March 2019. Castanos
never returned her to Chile. Berenguela-Alvarado consequently initiated Hague
Convention proceedings in federal district court to get her daughter back. The
district court found that although Berenguela-Alvarado had made out a prima facie
case that Castanos had wrongfully retained EICB, Berenguela-Alvarado had
consented to that retention and therefore wasn’t entitled to EICB’s return. Because
we conclude that the district court made critical errors of fact and law in its order,
we vacate and remand this case for further proceedings.
I
A
Berenguela-Alvarado, a Chilean citizen, and Castanos, a naturalized U.S.
citizen, are the parents of EICB. Castanos met Berenguela-Alvarado during a trip
to Chile, and EICB was subsequently born in Chile in September 2012. EICB is a
dual citizen of Chile and the United States, but since her birth she has consistently
lived in Chile with her mother. Castanos has acknowledged EICB as his daughter
since she was three months old, and he has reliably provided child support and had
regular contact with her since then, making several visits a year to Chile.
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EICB visited Castanos in the United States for the first time in February
2018; she stayed with him for two months and then returned to Chile.
Berenguela-Alvarado later gave EICB permission to travel to the United States a
second time. Castanos bought EICB a round-trip airline ticket for the trip, with a
departure date of December 30, 2018, and a return date of February 28, 2019.
Berenguela-Alvarado gave permission for EICB to stay in the United States until
the end of March in the event Castanos kept her longer than originally planned, as
he had on her previous visit.
In early February 2019, during EICB’s second visit to the United States,
Castanos “proposed” to Berenguela-Alvarado that EICB stay with him in the
United States permanently, as he felt he could provide a better life for her here.
Berenguela-Alvarado resisted, telling Castanos that she didn’t want EICB to “think
that [she] had abandoned her.” Berenguela-Alvarado testified that in response to
her resistance, Castanos “started pressuring” her to let EICB stay with him. As a
result, she asserted that she “tentatively agreed” to Castanos’s proposal, to ensure
that she would see EICB in July 2019, at a minimum—the terms of Castanos’s deal
being that EICB would stay with him in the United States, that the two would go to
Chile in July to visit Berenguela-Alvarado, that Berenguela-Alvarado could visit
EICB once a year in Miami, and that she wouldn’t have to pay any child support.
Berenguela-Alvarado said that she “agreed only because she just wanted her
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daughter to come back in July,” and that when she began to “express[] hesitation
and s[eek] clarification [as] to what was going on,” Castanos—this is important—
“threatened to hold [EICB] for good and told [Berenguela-Alvarado] she would
never see her [daughter] again.”
To effectuate his plan, Castanos enlisted the help of his friend Doris
Baquero, who worked at the Florida Department of Juvenile Justice. Baquero sent
Berenguela-Alvarado a letter to sign that purported to give consent for EICB to
stay in the United States with Castanos. The consent letter, dated February 10,
2019, stated as follows:
Effective May 5, 2019, I, Karen Edith Berenguela Alvarado, is giving consent to my daughter, [EICB], . . . to reside with her father, Eric Castanos, in the United States. [EICB] will be residing in the United States for the purpose of improving her quality of life, education, physical health and nutrition. Eric Castanos will fully be responsible for [EICB’s] housing, nutrition, clothing, education, personal hygiene and physical health.
[EICB] will visit her maternal family in Chile the months of summer break from school in the United States.
Karen Edith Berenguela Alvarado is in full agreement with this letter and her signature confirms her knowledge and consent.
Berenguela-Alvarado testified that she felt that she “was under pressure” and
that she “said yes” to Castanos’s proposal “because otherwise he wouldn’t bring
[EICB] back.” She further testified that Castanos “was going to request custody if
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[she] didn’t sign the document.” So, she says, although she signed the letter, she
didn’t intend to consent to EICB staying in the United States permanently.
As part of their plan, Castanos and Baquero asked Berenguela-Alvarado to
renew EICB’s U.S. passport and have the consent letter notarized. Berenguela-
Alvarado renewed EICB’s U.S. passport in February 2019, but she ultimately
skipped two appointments that she had scheduled at the local U.S. embassy to get
the letter notarized. Instead, she texted Baquero a picture of the signed letter—she
never sent the hard copy—which Baquero then notarized outside of Berenguela-
Alvarado’s presence.
Later in February, Berenguela-Alvarado sent Baquero the following e-mail:
Doris, good afternoon, I appreciate everything, but I changed my mind. I have everything ready for [EICB] to return. Her uniform and school supplies, she starts classes on March 4th at Primary school. It is very important that she starts when it’s appropriate so she won’t fall behind.
Thanks for everything.
Despite Berenguela-Alvarado’s request that EICB be back in Chile before
school started, Castanos kept her in the United States after her travel-authorization
period ended. This litigation ensued.
B
In April 2019, Berenguela-Alvarado filed “a petition for immediate
delivery” in a Chilean family court, seeking EICB’s return. That same month, she
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filed a second petition in Chile under the Hague Convention, followed, in June, by
a third petition (which underlies this appeal) under the Hague Convention and the
International Child Abduction Remedies Act in the Southern District of Florida. In
her U.S.-based case, Berenguela-Alvarado alleged that Castanos had been
unlawfully retaining EICB since her travel authorization expired in March 2019,
and she insisted that she had never consented to EICB staying in the United States.
Unsurprisingly, Castanos presented a different picture of events. In his
response to Berenguela-Alvarado’s petition, he raised three affirmative defenses to
her claim that he had wrongfully retained EICB: (1) that “there is grave risk of
physical and psychological harm” to EICB if she “is returned to Chile”; (2) that
EICB “objects to being retu[r]ned and is of sufficient age and maturity” to voice
that objection; and (3) that “there was no removal or wrongful detention of [EICB]
and no custody rights were breached,” because Berenguela-Alvarado “consented to
[EICB] going with [Castanos] and at one point even consented to [EICB] staying
with [Castanos] permanently.” Castanos also alleged that Berenguela-Alvarado
had been abusing and neglecting EICB, who he claimed was “malnourished” and
suffering from assorted health problems.
The district court held an evidentiary hearing to determine whether Castanos
had wrongfully retained EICB. The vast majority of the evidence that Castanos
presented bore on his first affirmative defense—namely, that EICB would face a
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grave risk of harm if returned to Chile—and he and other witnesses testified about
EICB’s mental and physical health and asserted that she would enjoy a better
quality of life in the United States than Chile. Importantly for our purposes,
Castano didn’t present any evidence pertaining to Berenguela-Alvarado’s
purported consent. Rather, the sole evidence about consent came from
Berenguela-Alvarado—she testified that she signed the consent letter because
Castanos “said he was not going to bring [EICB] back, and he was going to request
custody if [she] didn’t sign the document.” She further testified that in signing the
letter, she did not intend to consent to EICB remaining in the United States
permanently.
After the hearing, the district court ordered supplemental briefing on the
consent issue. In her supplemental brief, Berenguela-Alvarado reiterated her
testimony from the hearing that “she only signed the sham . . . consent form
because [Castanos] said she would never see her daughter again if she did not
sign.” Her brief began this way:
This is not a case where [Berenguela-Alvarado] flip flopped, was on the fence, or changed her mind. She never consented—period. Her testimony that Castanos told her that she would never see her daughter again unless she signed was uncontroverted. This is not much different than putting a gun to her head and telling her to sign.
Castanos, by contrast, argued that he had established that Berenguela-
Alvarado had consented to EICB’s retention, as she had signed the consent letter,
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subsequently sent an e-mail saying she had “changed [her] mind,” and had not
presented any evidence of duress. He said that he, on the other hand—and this,
too, is important—had “provided testimony that he never threatened or pressured
[Berenguela-Alvarado] to sign the consent” letter. He further argued that “[t]he
Hague Convention does not provide a mechanism for the revocation of consent
once given.”
Although the district court agreed with Berenguela-Alvarado that she had
established a prima facie case of wrongful retention under the Hague Convention,
it held that she was not entitled to EICB’s return because it found that she had
consented to that retention. The court held that by “sign[ing] a [consent]
document, t[aking] a picture of it, and sen[ding] that picture to Baquero,”
Berenguela-Alvarado had demonstrated “her subjective intent to allow EICB to
remain in the U.S.” Importantly, the court acknowledged that if Castanos had
threatened Berenguela-Alvarado as she alleged, that “statement would amount to
duress.” But—again, importantly—the Court held that “Castanos denies making
this statement and there is no documentary support for Berenguela-Alvarado’s
assertion.” The court then separately found “both Berenguela-Alvarado and
Castanos credible” and accordingly “decline[d] to give greater weight to either’s
testimony.”
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The district court found that Berenguela-Alvarado’s evidence concerning her
communications with Castanos demonstrated “a contentious relationship” but did
“not rise to the level of ‘improper and coercive’” behavior so as to satisfy the
standard for duress. The court further rejected Berenguela-Alvarado’s argument
that the consent letter should be discounted due to its legal deficiencies—it held
that although “many questions exist[ed] as to the legal efficacy of the Consent
Letter,” those questions were irrelevant because a parent’s consent doesn’t have to
be formal under the Hague Convention. Finally, the court rejected the argument—
which it erroneously attributed to Berenguela-Alvarado, for she hadn’t made it—
that “even if she did [consent], she revoked that consent.” The court concluded
“that consent, once given, cannot be withdrawn.” Because the court held that “the
consent affirmative defense [was] dispositive,” it “explicitly decline[d] to consider
[the other] affirmative defenses” Castanos raised.
Berenguela-Alvarado appealed the district court’s order. The sole issue on
appeal is whether the district court erred in ruling that Berenguela-Alvarado
consented to Castanos’s retention of EICB.
II
In an appeal from an order dismissing a petition for return of a child, “[w]e
review the district court’s findings of fact for clear error and review de novo its
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legal determinations and application of the law to the facts.” Pfeiffer v. Bachotet,
913 F.3d 1018, 1022 (11th Cir. 2019). A factual finding is clearly erroneous when
a review of the entire record leaves us “with the definite and firm conviction that a
mistake has been committed.” Seaman v. Peterson, 766 F.3d 1252, 1261 (11th Cir.
2014) (internal quotation marks and citation omitted). We “give even ‘greater
deference’ to factfindings of the district court that are based on determinations of
the credibility of witnesses.” Stano v. Butterworth, 51 F.3d 942, 944 (11th Cir.
1995) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985)).
“Among other functions, the Hague Convention on the Civil Aspects of
International Child Abduction”—which the United States has implemented
through the International Child Abduction Remedies Act (ICARA)—“establishes
legal rights and procedures for the prompt return of children who have been
wrongfully removed or retained.” Pfeiffer, 913 F.3d at 1023 (quoting 22 U.S.C.
§ 9001(a)(4)). The Hague Convention’s aim is to return children to the country “of
their habitual residence” and to “ensure that rights of custody and of access under
the law of one . . . [s]tate are effectively respected in the other . . . [s]tates.” Chafin
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v. Chafin, 742 F.3d 934, 936 (11th Cir. 2013) (internal quotation marks and
citations omitted).
When one parent “wrongfully remove[s] or retain[s]” a child in the United
States, the other can file a petition in state or federal court to have the child
returned to her country of habitual residence. 22 U.S.C. § 9003(a)–(b), (e)(1)(A).
“The central feature of the Convention is the return remedy by which a wrongfully
removed child is to be repatriated to her home country for custody determinations.”
Gomez v. Fuenmayor, 812 F.3d 1005, 1011 (11th Cir. 2016). A court’s job when
reviewing a petition for the return of a child is limited to “determin[ing] only rights
under the Convention and not the merits of any underlying child custody claims.”
22 U.S.C. § 9001(b)(4).
A petitioning parent must prove “by a preponderance of the evidence, that
her child was wrongfully removed or retained within the meaning of the
Convention.” Chafin, 742 F.3d at 938 (internal quotation marks and citation
omitted). A removal or retention is “wrongful” if:
a) it is in breach of rights of custody attributed to a person, . . . either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
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Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25,
1980, art. 3.
So, here, Berenguela-Alvarado had to prove three elements to establish a
prima facie case of wrongful retention: (1) that EICB “was a habitual resident of
[Chile] immediately before [her] retention in the United States”; (2) that
Castanos’s retention breached Berenguela-Alvarado’s custody rights under Chilean
law; and (3) that Berenguela-Alvarado “had been exercising her custody rights at
the time of retention.” Chafin, 742 F.3d at 938. All agree that Berenguela-
Alvarado satisfied her prima facie burden regarding wrongful retention; the
parties’ dispute focuses exclusively on Castanos’s affirmative defense of consent.
C
If the petitioning parent proves by a preponderance of the evidence that a
wrongful removal or retention has occurred, she is entitled to have the child
returned unless the retaining/removing parent can establish one of several
enumerated affirmative defenses. See 22 U.S.C. § 9003(e)(1)–(2); Gomez, 812
F.3d at 1011. This Court has held that these affirmative defenses should be
“construed narrowly” so as “to prevent them from swallowing the rule and
rendering the Convention a dead letter.” Gomez, 812 F.3d at 1011 (internal
quotation marks and citation omitted).
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The sole affirmative defense at issue here is consent, which the district court
found to be “dispositive.” (Indeed, the district “[c]ourt explicitly decline[d] to
consider” Castanos’s other defenses.) The consent defense requires the
retaining/removing parent to prove by a preponderance of the evidence that the
petitioning parent “consented to . . . the removal or retention.” Hague Convention,
art. 13(a); 22 U.S.C. § 9003(e)(2). The petitioning parent’s consent needn’t be
formal, but “it is important to consider what the petitioner actually contemplated
and agreed to in allowing the child to travel outside its home country.” Baxter v.
Baxter, 423 F.3d 363, 371 (3d Cir. 2005). The focus of the court’s inquiry should
be on the petitioning parent’s “subjective intent,” and should take into account
“[t]he nature and scope of the petitioner’s consent, and any conditions or
limitations” on that consent. See id. (emphasis added).
III
In its analysis of Castanos’s consent defense, the district court made critical
factual and legal errors. We will address them in turn.
We begin with the factual error. The district court’s analysis of the consent
defense centered almost exclusively on the consent letter that Berenguela-Alvarado
signed. Ironically, it was Berenguela-Alvarado who introduced the letter—in fact,
Castanos objected to the letter’s admission, arguing that it was hearsay. In any
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event, with respect to the circumstances surrounding the letter’s signing, the
district court made a clearly erroneous finding of fact regarding Castanos’s
testimony.
Although the district court acknowledged that if Castanos had threatened
Berenguela-Alvarado as she claimed, it “would amount to duress”—and thus
presumably vitiated her consent—it held, as a matter of fact, that “Castanos
denie[d] making this statement.” That is incorrect. In fact, Castanos never
actually denied threatening Berenguela-Alvarado. The district court therefore
clearly erred in relying on non-existent testimony as a basis for holding that
Castanos had shown that Berenguela-Alvarado had consented to EICB’s retention
in the United States.
Here is what the record actually reflects: Although Castanos denied
threatening Berenguela-Alvarado in his answer and in his supplemental brief, he
never testified that he didn’t make the threat. In mistakenly assuming that he had,
the district court may well have relied on Castanos’s post-hearing brief, which
asserted—falsely and without citation—that he “provided testimony that he never
threatened or pressured [Berenguela-Alvarado] to sign the consent” letter.
(Notably, Castanos never makes that claim on appeal; rather, he says that he “never
admitted” to threatening Berenguela-Alvarado—which isn’t the same. Br. of
Appellee at 20).
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To be clear, none of the testimony that Castanos did give could be
interpreted as constituting a denial that he threatened Berenguela-Alvarado. He
testified, for instance, that when he picked up EICB from her home in Chile, he
“never” harassed Berenguela-Alvarado, but he also admitted that he had spoken to
Berenguela-Alvarado “in a slightly harsh tone” when discussing the way that he
thought she treated EICB. In our view, none of this testimony constitutes what the
district court claimed—a “deni[al]” that Castanos threatened Berenguela-Alvarado
to get her to sign the consent form.
So, in short, the district court clearly erred by relying on non-existent
testimony. Castanos never denied threatening Berenguela-Alvarado, as he falsely
claimed in his supplemental brief and as the district court found. Thus, we are left
“with [a] definite and firm conviction that a mistake has been committed.”
Seaman, 766 F.3d at 1261 (internal quotation marks and citation omitted).
In addition to this clear factual error, the district court also committed a
significant legal error. As already explained, once a petitioning parent has
established a prima facie case of wrongful retention/removal under the Hague
Convention, the burden shifts to the retaining/removing parent to prove one or
more affirmative defenses—without proof of one of those defenses, the child must
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be returned to the petitioning parent. See 22 U.S.C. § 9003(e)(1)–(2); Gomez, 812
F.3d at 1011.
Here, though, the district court improperly—but expressly—shifted the
burden back to Berenguela-Alvarado on the consent issue, erroneously treating her
allegation that she signed the consent letter as a result of Castanos’s threat as a
formal allegation of “duress” that she had to prove by a preponderance of the
evidence. The court’s opinion leaves no mistake; it expressly found that
“Berenguela-Alvarado ha[d] not shown by a preponderance of the evidence that
her consent was the product of duress.”
This was improper. When it came to the consent defense, Castanos—
alone—had the burden to prove by a preponderance of the evidence that
Berenguela-Alvarado had actually, subjectively intended to allow EICB to remain
in the United States. See 22 U.S.C. § 9003(e)(2)(B); Hague Convention, art. 13(a);
Baxter, 423 F.3d at 371. The Hague Convention does not list any “sur-defenses”
to its enumerated affirmative defenses, nor does it lay out any sort of framework
for shifting the burden back to the petitioning parent after she has made out her
prima facie case of wrongful retention/removal. See Hague Convention, art. 13(a).
Accordingly, Berenguela-Alvarado had no burden to prove anything related to
Castanos’s consent defense. Her “duress”-related testimony was simply aimed at
calling into question whether the consent letter was truly reflective of her
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subjective intent. By stating that she was effectively coerced into signing the
letter—an issue that bore directly on her consent—Berenguela-Alvarado didn’t
somehow conjure up a new affirmative sur-defense that she had to prove.
The district court therefore erred as a matter of law in shifting the burden of
proof to Berenguela-Alvarado.
IV
These factual and legal errors—namely, the court’s objectively incorrect
finding that Castanos testified that he didn’t threaten Berenguela-Alvarado and its
mistaken decision to shift to Berenguela-Alvarado the burden to prove “duress”—
tainted the rest of the district court’s analysis too severely to salvage its order.
First, the district court conducted the bulk of its analysis under the auspices
of its erroneous “duress” framework, which placed the burden on the wrong party.
As already explained, Castanos submitted no evidence pertaining to consent, even
though he had the burden to prove the defense. Nevertheless, the district court
wrongly held against Berenguela-Alvarado that she submitted no evidence of the
explicit threat at issue. Accordingly, the court’s interpretation of the evidence
concerning Berenguela-Alvarado’s subjective intent is inextricably linked to the
faulty presumption that she had the underlying burden of proof, not to mention the
fact that the court was operating under the erroneous assumption that Castanos had
denied making the threat in the first place.
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Although the district court focused on the consent letter, it did—at least
briefly—advert to several other pieces of evidence that it thought were indicative
of Berenguela-Alvarado’s subjective intent. In particular, the court thought that
Berenguela-Alvarado subjectively intended to consent but then changed her mind.
It’s true that Berenguela-Alvarado got EICB’s U.S. passport renewed and that she
scheduled two appointments at the U.S. embassy to get the consent letter notarized.
But Berenguela-Alvarado contends that renewing EICB’s U.S. passport was
necessary in order to have her returned to Chile as planned in March. And
Castanos does not dispute that Berenguela-Alvarado never followed through on
either of the two appointments at the U.S. embassy—indeed, Berenguela-Alvarado
says that she skipped them to try to stall for time so she could get EICB back in
March, when EICB’s visit was due to expire. Accordingly, this evidence is at best
ambiguous with respect to Berenguela-Alvarado’s subjective intent, particularly
since the district court found her credible. Plus, the only testimony that directly
contradicted Berenguela-Alvarado’s version of these events was what the district
court assumed to be testimony that Castanos never threatened Berenguela-
Alvarado—testimony that, as we have explained, he never gave.
The district court also considered the e-mail that Berenguela-Alvarado sent
to Baquero stating that she had “changed [her] mind” about EICB staying in the
United States. Based on the email, the district court discussed at length whether
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the Hague Convention permits a party to revoke her consent, erroneously
attributing to Berenguela-Alvarado a revocation argument that she has never made
(either in the district court or on appeal). Of course, one might infer that if a
person changes her mind about consenting to something, then she must have
previously consented. But in the record as presented to us, Berenguela-Alvarado—
who, again, the district court found to be credible—expressly testified that she
signed the consent letter as a result of Castanos’s threat and that her signature was
not indicative of her subjective intent. Berenguela-Alvarado’s lone comment in an
e-mail to a third party about changing her mind can’t overcome her clear
testimony, particularly in light of Berenguela-Alvarado’s insistence that she was
effectively trying to string Castanos and Baquero along to stall for time.
Finally, and most tellingly, the district court’s own order shows that if it
hadn’t concluded—erroneously—that Castanos denied threatening Berenguela-
Alvarado, it may well have come out the other way. As already explained, the
district court stated that “[t]o be sure,” if Castanos had threatened Berenguela-
Alvarado, as she claimed, it would have “amount[ed] to duress” and thus arguably
vitiated her consent. But, the district court found, “Castanos denies making this
statement and there is no documentary support for Berenguela-Alvarado’s
assertion.” To the same effect, the district court distinguished—as “inapposite”—a
case cited by Berenguela-Alvarado, Lindmeier v. Lindmeier, 867 So. 2d 165 (La.
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Ct. App. 2004), on the ground that “in that case, the threat was undisputed,” which
the court found was “[n]ot true here.” So, from the face of the district court’s own
order, there is good reason to believe that if it had correctly concluded that
Castanos’s threat was likewise undisputed, it would have decided the case
differently.
V
In summary, we hold that the district court erred in the following respects:
1. As a matter of fact, the court erred by relying on non-existent testimony
that Castanos never threatened Berenguela-Alvarado as a means of securing her
consent to EICB staying in the United States.
2. As a matter of law, the court erred by shifting the burden on the consent
issue back to Berenguela-Alvarado, requiring her to prove by a preponderance of
the evidence that Castanos’s threat constituted “duress.”
We therefore vacate and remand the district court’s order for further
proceedings in accordance with this opinion.
VACATED AND REMANDED.