United States Court of Appeals For the First Circuit
No. 21-1522
DANILO DE PAULA VIEIRA,
Appellee, Petitioner,
v.
DJAIANE AQUINO DE SOUZA,
Appellant, Respondent.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Chief Judge, Lipez and Gelpí, Circuit Judges.
Shamis N. Beckley, with whom Annabel Rodríguez was on brief, for appellant. Wendy O. Hickey, with whom Valerie E. Cooney was on brief, for appellee.
January 7, 2022 GELPÍ, Circuit Judge. In this Hague Convention case,
Danilo De Paula Vieira ("Vieira") seeks the return of his seven-
year-old child from Massachusetts to Brazil, pursuant to the Hague
Convention on the Civil Aspects of International Child Abduction,
Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 ("Hague
Convention") and the International Child Abduction Remedies Act
("ICARA"), 22 U.S.C. §§ 9001–11, which implements the Hague
Convention. We hereinafter will refer to the child as "Minor
S.V.".
On April 27, 2021, Vieira filed a petition pursuant to
the Hague Convention seeking the return of Minor S.V. to Brazil
and alleging that Djaiane Aquino De Souza ("De Souza") removed
Minor S.V. from Brazil to Massachusetts without his authorization.
The district court determined that De Souza wrongfully removed
Minor S.V. and that she failed to establish that Minor S.V. would
be subject to a grave risk of harm in Brazil. Consequently, the
district court granted Vieira's petition and ordered that Minor
S.V. be returned to Brazil within thirty days of July 1, 2021.
Minor S.V.'s mother, De Souza, appeals the district court's
decision, which has been stayed during the pendency of review by
this Court.
Appellant—Respondent De Souza contends the district
court erred (1) in concluding that ICARA's grave risk exception
- 2 - did not apply; and (2) in failing to consider whether the mature
child exception of the Act applied. We affirm.
I. RELEVANT FACTUAL BACKGROUND
Vieira and De Souza's relationship
Vieira is a Brazilian national who began a romantic
relationship with De Souza around 2008–2009 in Minas Gerais,
Brazil. De Souza is a citizen of the United States. The parties
lived together in Brazil until December 2018, when De Souza
relocated to Massachusetts.
In January 2014, Vieira and De Souza had their only child
together, Minor S.V., in Contagem, Brazil. Minor S.V. is a dual
citizen of Brazil and the United States. Throughout the years,
Vieira and De Souza had an off-and-on consensual relationship, in
which they would periodically end and resume the relationship in
short succession. During one of the breakups, Vieira had another
child. Minor S.V. and the half-sibling were raised together.
Vieira and De Souza's relationship lasted eleven years and was
characterized by multiple incidents of domestic verbal abuse.
Vieira verbally threatened De Souza several times and once broke
De Souza's telephone during an argument.
During an argument between the parties in 2017, Vieira
grabbed and placed Minor S.V. in his car, proceeding to drive
recklessly while threating De Souza. As a result, De Souza sought
and received a restraining order against Vieira. De Souza
- 3 - separately sought psychiatric treatment to deal with the ongoing
abuse. The district court found that De Souza revoked the
restraining order upon reconciling with Vieira, although De Souza
disputed this fact at trial. De Souza left Brazil and moved to
Massachusetts in December 2018, leaving Minor S.V. with Vieira in
Brazil. Vieira and De Souza's relationship ended in April 2020.
Minor S.V.'s removal from Brazil
Minor S.V. remained with Vieira in Brazil for almost two
years until Minor S.V. was taken to Massachusetts without Vieira's
consent. No formal custody order was issued during this time. On
November 22, 2020, Minor S.V.'s maternal aunt offered to take the
child to a follow-up appointment for Minor S.V.'s recent
adenoidectomy and tonsillectomy. Vieira had no qualms with the
proposal. The maternal aunt, however, instead took Minor S.V. to
the airport and put the child on a flight to Massachusetts.1
Vieira reached out to Minor S.V.'s maternal aunt that night but
received no response. On November 23, 2020, De Souza called Vieira
to let him know that Minor S.V. was with her in Massachusetts and
would not be returning to Brazil. On May 21, 2021, De Souza sought
and obtained a restraining order against Vieira from the Chelsea
1 Minor S.V.'s passport had an authorization signed by Vieira for Minor S.V. to travel. It is unclear if the authorization covered domestic or international travel.
- 4 - District Court in Massachusetts. To this day, Minor S.V. remains
with De Souza in Massachusetts.
Vieira’s Petition and the district court's decision
On April 27, 2021, Vieira filed a petition in the United
States District Court for the District of Massachusetts for the
return of Minor S.V. to Brazil pursuant to the Hague Convention
and ICARA. Vieira also filed an emergency ex parte motion, seeking
an order directing De Souza not to remove Minor S.V. from
Massachusetts. The district court scheduled a hearing for June
17, 2021. Present at the hearing were Vieira's counsel and
interpreter as well as De Souza, appearing pro se without an
interpreter. In lieu of a preliminary injunction hearing, the
district court consolidated the hearing with the trial scheduled
for July 1, 2021, pursuant to Federal Rule of Civil Procedure
65(a).
During the one-day bench trial, Vieira was present by
way of video teleconference and was represented by counsel assigned
pro bono. De Souza appeared pro se.2 Both parties testified
through an interpreter.
Vieira stated that Minor S.V. has never lived outside of
Brazil and only speaks, reads, and writes Brazilian Portuguese.
2De Souza was not represented by counsel in the district court proceedings. This court appointed pro bono counsel for her appeal.
- 5 - Additionally, Vieira testified that although he tries to stay in
frequent contact with Minor S.V., there are times when he has been
unable to speak with the child for weeks. Vieira was not cross-
examined by De Souza. For her part, De Souza raised the
affirmative defense of grave risk, alleging that Minor S.V. would
be exposed to physical or psychological harm if returned to Brazil.
De Souza testified that Minor S.V. has witnessed Vieira
engage in violent acts directed against De Souza and Vieira's own
mother. When cross-examined by Vieira's counsel, De Souza stated
that she lived with Vieira in Brazil because he threatened to take
Minor S.V away from her if she left. During closing arguments, De
Souza added that she fears for Minor S.V.'s safety if the child
was sent back to Brazil. De Souza also affirmed that Minor S.V.
is currently attending school in Massachusetts and stated that "if
you ask [Minor S.V.], [the child] will tell you [of wanting] to
stay here."
The district court issued its ruling from the bench and
granted Vieira's petition for the return of Minor S.V. to Brazil.
We subsequently ordered the district court to issue findings of
fact and conclusions of law. In its written findings, the district
court concluded that "De Souza failed to demonstrate that there
existed 'a grave risk that [the child's] return would expose [Minor
S.V.] to physical or psychological harm' because she proffered no
evidence that Vieira ever threatened or abused the Minor." The
- 6 - district court did not identify the mature child defense as a
distinct issue that had been raised at the bench trial but
nevertheless observed that there was no evidence that Minor S.V.
had attained an age and degree of maturity sufficient to take the
child's preference into account.
On July 22, 2021, we granted a stay of the district
court's ruling pending appeal. On July 28, 2021, we appointed pro
bono counsel to represent De Souza and set an expedited briefing
schedule.
II. Discussion
The Hague Convention is a multilateral treaty designed to
address "the problem of international child abductions during
domestic disputes. It . . . provid[es] for the prompt return of
children wrongfully removed to or retained in any Contracting
State." Neergaard-Colón v. Neergaard, 752 F.3d 526, 529–30 (1st
Cir. 2014) (quoting Abbott v. Abbott, 560 U.S. 1, 8 (2010))
(citation omitted) (internal quotation marks omitted). "Notably,
an order of return pursuant to the Hague Convention is not a final
determination of custody rights. It simply ensures that custodial
decisions will be made by the courts of the children's country of
habitual residence." Id. (citing Abbott, 560 U.S. at 9). Under
ICARA, De Souza, as the party opposing return of the child, bears
the burden of establishing the grave risk exception by clear and
convincing evidence and the mature child exception by a
- 7 - preponderance of the evidence. See 22 U.S.C. § 9003(e)(2). We
review legal issues, including the interpretation of the Hague
Convention, de novo. Da Silva v. de Aredes, 953 F.3d 67, 73 (1st
Cir. 2020). We review for clear error the district court's
determination concerning any defenses. Id. at 72.
a. The Grave Risk Exception
The District Court Did Not Err in Finding that Returning Minor S.V. to Brazil Would Not Expose the Child to a Grave Risk of Harm.
The district court found that Brazil was Minor S.V.'s
country of habitual residence, that Vieira was exercising custody
over Minor S.V. at the time of the child's removal, and that De
Souza's removal and retention of Minor S.V. in the United States
was therefore wrongful. See Hague Convention art. 3. Neither
party disputes that portion of the district court's findings. The
district court then found that De Souza failed to show that there
was a grave risk that Minor S.V.'s return would expose the child
to physical or psychological harm. See Hague Convention art.
13(b).
At the outset, we acknowledge that De Souza's burden of
proof for the grave risk defense is quite high: ICARA provides
that the respondent opposing the child's return has the burden of
establishing the grave risk defense by clear and convincing
evidence. See 22 U.S.C. § 9003(e)(2)(A); Danaipour v. McLarey,
286 F.3d 1, 13 (1st Cir. 2002). Additionally, exceptions to the
- 8 - Hague Convention should be construed narrowly by courts.
Danaipour, 286 F.3d at 14. This serves the Hague Convention's
strong presumption in favor of the child's return. Id. at 13; 22
U.S.C. § 9001(a)(4) (requiring a child's prompt return unless one
of the "narrow exceptions" applies). The grave risk defense may
not be used "as a vehicle to litigate (or relitigate) the child's
best interests." Danaipour, 286 F.3d at 14 (quoting Hague
International Child Abduction Convention; Text and Legal Analysis,
51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986)).
The district court found that De Souza failed to meet
her required evidentiary burden. The court heard De Souza's
testimony that Vieira verbally abused and threatened her, broke
her phone, and forced her to have an abortion. It also considered
the incident where, following a verbal altercation, Vieira put
Minor S.V. in the car and drove in a dangerous manner while
continuing to threaten De Souza, leading to the issuance of a
restraining order against Vieira. However, the district court
found that none of the abuse was directed at Minor S.V.
De Souza argues on appeal that domestic abuse of a parent
alone is sufficient to establish grave risk to the child, and that
the district court erred as a matter of law in concluding that
Vieira's abuse needed to be directed at Minor S.V. De Souza relies
on authority from this Circuit, namely Walsh v. Walsh, 221 F.3d
204 (1st Cir. 2000), and the Sixth circuit in Simcox v. Simcox,
- 9 - 511 F.3d 594 (6th Cir. 2007), for the proposition that abuse does
not need to be directed at the child for it to implicate the grave
risk exception. The district court's reasoning, however, is not
in tension with these precedents. To the contrary, the district
court recognized the "credible social science literature" which
establishes that spousal abusers are also likely to be child
abusers. But the district court nonetheless found that De Souza
failed in this case to meet her burden of proof that the abuse was
of a nature sufficient to trigger the grave risk exception.
The district court further considered the precedent
cited by De Souza and distinguished it from the case at bar. It
determined that the abuse did not rise to the level of the abuse
in Walsh, where the petitioner exhibited a "more generalized
pattern of violence, including violence directed at his own
children." Walsh, 331 F.3d at 219. Moreover, the district court
determined that De Souza had not established a grave risk to Minor
S.V., and, under our precedent, "'grave' means more than a serious
risk." Danaipour, 286 F.3d at 14 (citing Hague International Child
Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. at
10,510).
De Souza further argues that the district court failed
to make the necessary factual findings regarding the impact that
Vieira's abuse of her may have had on Minor S.V., and specifically
failed to make any factual findings about the risk of future
- 10 - psychological harm to Minor S.V. De Souza posits that the district
court was required to make factual findings regarding the
likelihood that Vieira's abusive conduct put Minor S.V. at a grave
risk of psychological harm.
In its findings of fact, the district court accepted De
Souza's testimony regarding the incident where Vieira drove
dangerously with Minor S.V. in the car while threatening De Souza.
The district court also noted that both state and federal law have
recognized an increased risk of psychological injury to children
when they are in contact with a spousal abuser. Nevertheless, the
district court found that "De Souza failed to demonstrate that
there existed 'a grave risk that [Minor S.V.'s] return would expose
[Minor S.V.] to physical or psychological harm.'" The district
court found that the evidence De Souza presented did not rise to
the level needed for an article 13(b) defense. See, e.g., Whallon
v. Lynn, 230 F.3d 450, 460 (1st Cir. 2000) (holding that verbal
and physical abuse of a mother, when not directed at the child,
did not give rise to the type of psychological harm contemplated
by the Hague Convention).
The role of the district court in Hague Convention cases
is one of factfinder. See Díaz-Alarcón v. Flández-Marcel, 944
F.3d 303, 311 (1st Cir. 2019); Taglieri v. Monasky, 907 F.3d 404,
408 (6th Cir. 2018) ("[W]e must let district courts do what
district courts do best -- make factual findings . . . ."), aff'd,
- 11 - 140 S. Ct. 719 (2020). The grave risk finding requires that the
court identify the legal standard and then answer the fact-based
question of whether the respondent has shown that the child would
be exposed to a grave risk if returned. Da Silva, 953 F.3d at 72.
The district court determined that the return of Minor
S.V. will not expose the child to physical or psychological harm.
The record reflects that De Souza did not allege that any harm
befell Minor S.V. during the two-year period between 2018 and 2020
following De Souza's relocation from Brazil to the United States,
in which Minor S.V. resided in Vieira's care. Nor was De Souza so
concerned for Minor S.V.'s safety under Vieira's care that she
refused to leave Minor S.V. in Vieira's custody. On the record
before us, the district court committed no clear error in its
finding.
b. Mature child Defense
THE DISTRICT COURT DID NOT ERR IN DECLINING TO CONSIDER MINOR S.V.'s VIEWS
Article 13 of the Hague Convention includes an
unnumbered provision that carves out a defense for the party
opposing return. This defense, grounded in a mature child's
objection to repatriation, permits a court to "refuse to order the
return of the child if it finds that [the minor] 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." Blondin
- 12 - v. Dubois, 238 F.3d 153, 166 (2d. Cir. 2001) (quoting Hague
Convention art. 13).
De Souza contends that the district court erred in
failing to conduct any analysis of Minor S.V.'s maturity after she
alluded to the child's preferences at trial. Namely, she posits
that the district court failed to speak to Minor S.V., appoint a
guardian ad litem or child psychologist to represent the child's
interests, or assess any of the other factors relevant to
determining the child's maturity and thus whether Minor S.V.'s
views should be heard. Further, De Souza argues that "while there
is no one way for a district court to assess a child's maturity,
here there are no factual findings as to [Minor S.V.'s] maturity
at all." De Souza finally asserts that, because she appeared pro
se and through a translator at the bench trial, the district court
had a duty to be solicitous of any arguments she established, even
if she raised the latter only incompletely or obliquely. In light
of the important interests at stake, De Souza petitions that we
remand to the district court to allow for further factual
development on the mature child exception.
As a threshold matter, it is not clear the district court
recognized that De Souza had invoked the mature child defense at
all. De Souza posits that the defense was raised at the bench
trial and that the district court, in its factual findings and
rulings of law, acknowledged that. To wit, De Souza contends that
- 13 - "[t]here is no indication that the [d]istrict [c]ourt considered
the exception waived. Nor did the [d]istrict [c]ourt indicate
that it was unable or unwilling to consider De Souza's statement
that [the child] wanted to stay with [the child's] mother and would
tell the [d]istrict [c]ourt that if asked." De Souza thus argues
that the district court erred when it "simply decided that it did
not have to consider the issue because the child was only seven
and no other evidence of [the child's] maturity was elicited during
[the] mother's pro se testimony."
Despite De Souza's contentions, however, the district
court in its written findings declined to isolate the mature child
exception from the other questions at issue, simply observing that
there was no evidence that Minor S.V. was sufficiently mature to
be consulted. Insofar as the district court's written findings
reflect a view that the mature child issue had never been raised,
such a determination is eminently supportable from the record.
Indeed, De Souza only mentioned in passing that Minor S.V. had
acclimated to Massachusetts and did not want to return to Brazil,
and she did so only one time in her closing argument. Further, De
Souza did not mention the child's maturity at all in her testimony.
While De Souza is surely correct that courts must be mindful of
the challenges faced by pro se litigants and construe their
arguments liberally, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), "[o]ur duty to be 'less stringent' with pro se complaints
- 14 - does not require us to conjure up unpled allegations." McDonald
v. Hall, 610 F.2d 16 (1st Cir. 1979) (quoting Hurney v. Carver,
602 F.2d 993 (1st Cir. 1979)). As such, the district court did
not abuse its discretion in declining to raise the mature child
issue sua sponte or assist De Souza in developing the defense.
See also Barnett v. Hargett, 174 F.3d 1128, 1132 (10th Cir. 1999)
("[A] district court should not 'assume the role of advocate for
the pro se litigant,' and may 'not rewrite a petition to include
claims that were never presented.'") (first quoting Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); and then quoting
Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), cert.
denied, 525 U.S. 1151 (1999)).
As to the merits of the defense, we review the district
court's determination whether a child is of sufficient age and
maturity to have their views considered for clear error. Avendano
v. Balza, 985 F.3d 8, 13 (1st Cir. 2021). "The Hague Convention
applies only to children under the age of sixteen. 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." Id. (citation omitted). To the extent that
the district court recognized the mature child defense as having
been raised, it found that De Souza failed to meet her burden of
proof that Minor S.V. was of a sufficient age and maturity to have
her views considered.
- 15 - De Souza bore the burden of proof yet provided no
evidence as to Minor S.V.'s maturity. Despite De Souza's claims
to the contrary, nothing in the district court's decision suggests
that a seven-year-old may never be mature enough to express an
opinion. Rather, the district court determined that the mother
had not proffered sufficient evidence to support a finding that
the child in this case was mature enough to have his or her views
considered. Given that De Souza presented no evidence as to the
child's maturity, this determination was not clearly erroneous.
Finally, the district court's factual findings were sufficiently
detailed given the lack of evidence presented on the mature child
defense.
III. Conclusion
We stress that this case does not involve a determination
of custody. Indeed, the Hague Convention is explicit that "[a]
decision under this Convention concerning the return of the child
shall not be taken to be a determination on the merits of any
custody issue." Hague Convention art. 19; see also Yaman, 730
F.3d at 22–23; Mauvais v. Herisse, 772 F.3d 6, 21 (1st Cir. 2014).
Instead, implementation of the return remedy here means that the
courts of Brazil -- Minor S.V.'s country of habitual residence --
will make the appropriate custodial and family law determinations.
See Neergaard–Colón, 752 F.3d at 530 (citing Abbott, 560 U.S. at
9); Charalambous v. Charalambous, 627 F.3d 462, 469–70 (1st Cir.
- 16 - 2010) (per curiam) ("We point out that [the mother] is free, in
the courts of [the children's country of habitual residence], to
seek custody of the children and such other orders as may become
necessary as to the children.").
For all the foregoing reasons, we find no clear error in
the district court's findings of fact that, as regards the narrow
grave risk exception, returning Minor S.V. to Brazil would not
expose the child to physical or psychological harm or otherwise
place Minor S.V. in an intolerable situation. We further find (1)
that the district court did not err by not sua sponte developing
the mature child defense for De Souza, and (2) the court did not
err in rejecting application of the defense on the merits.
Therefore, the decision of the district court is
Affirmed.
- 17 -