da Silva v. de Aredes

United States Court of Appeals
For the First Circuit

Nos. 19-2100
19-2217
NELIO NELSON GOMES DA SILVA,

Petitioner, Appellee,

v.

MARCELENE DE AREDES,

Respondent, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.

Alexandre Edde Diniz de Oliveira, with whom Donna Saadati-
Soto, Stephanie E. Goldenhersh, and Harvard Legal Aid Bureau were
on brief, for appellant.
Susan E. Stenger, with whom Elizabeth Griffin Crowley, Katie
Menard Dalton, and Burns & Levinson LLP were on brief, for
appellee.

March 13, 2020
 LYNCH, Circuit Judge. Marcelene de Aredes "wrongfully

removed" her daughter A.C.A. from Brazil, as that term is used in

the Hague Convention on the Civil Aspects of International Child

Abduction, see T.I.A.S. No. 11,670 (incorporated at 22 U.S.C.

§ 9001 et seq.), and the child's father petitioned for her return.

De Aredes appeals from a district court order rejecting

her defenses to return and ordering the return of A.C.A. to Brazil

with A.C.A.'s father, Nelio Nelson Gomes da Silva. De Aredes

argues that the district court erred in finding that two

affirmative defenses to return under the Hague Convention did not

apply. She also argues the district court abused its discretion

in denying her motion for a new trial.

We affirm the district court's decisions, with this

technical caveat: we direct the district court modify the language

of the injunctive decree that directs A.C.A.'s return to Brazil.

Modification is necessary to prevent the injunction from being

read to have made an inappropriate custody determination.

I.

We briefly address the factual background of A.C.A.'s

removal from Brazil and then turn to the procedural history of the

case.

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A. Factual Background

De Aredes and da Silva, both Brazilian citizens, met in

1998 and soon after began dating in Muriaé, Brazil.1 The two lived

together from 2007 to 2016. They were never married. In 2010, de

Aredes gave birth to A.C.A., who is the natural child of da Silva.

In February 2016, de Aredes and da Silva separated, and da Silva

moved out of their home, to a house next door to de Aredes. M.A.

and A.C.A. continued to reside with de Aredes in her home. The

district court found that de Aredes had suffered some degree of

abuse by da Silva. In September 2016, de Aredes took M.A. and

A.C.A. to de Aredes's parents' house in Cuparaque, Brazil. De

Aredes, M.A., and A.C.A. stayed in Cuparaque for a few months.

During this time, da Silva did not travel to Cuparaque or visit

A.C.A. In December 2016, and without da Silva's consent or

knowledge, de Aredes took the children to the United States. The

Brazilian courts were never asked to determine custody or whether

de Aredes had been abused.

De Aredes, M.A., and A.C.A. arrived in the United States

on or around December 17, 2016, without a visa or other permission

to enter. De Aredes did not formally apply for asylum at that

time. Immigration authorities released the three on recognizance

1 In 2001, de Aredes moved to Boston, Massachusetts, but
moved back to Brazil in 2007 to live with da Silva. Soon after,
in November 2007, she gave birth to M.A., who is not the biological
child of da Silva.

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and ordered de Aredes to attend an immigration hearing in Boston,

Massachusetts. The three moved to East Boston immediately

afterwards and the two children enrolled in public school.

B. Procedural History

On November 9, 2018, da Silva filed a Hague Convention

petition in the United States District Court for the District of

Massachusetts seeking the return of A.C.A. to Brazil. He explained

he needed time to engage the proper Brazilian authorities under

the Convention and then to obtain United States counsel in order

to bring the petition.

De Aredes raised five affirmative defenses to the

petition, only two of which are at issue here: (1) that returning

A.C.A. to Brazil would subject A.C.A. to grave risk of physical or

psychological harm, see 22 U.S.C. § 9003(e)(2)(A) (implementing

article 13b); and (2) that da Silva did not file his petition

within twelve months of A.C.A.'s wrongful removal, and A.C.A. was

"now settled" in the United States, see id. § 9003(e)(2)(B)

(implementing article 12). On appeal, de Aredes does not challenge

the holding that da Silva made a prima facie case of wrongful

removal.

After a four-day bench trial in July 2019, the district

court concluded that de Aredes had wrongfully removed A.C.A. from

Brazil and had not met her burdens of proof on the affirmative

defenses. It forewarned the parties it intended to issue a return

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order. The parties filed a stipulation outlining a plan for da

Silva's communication with, and the education of, A.C.A. until her

return, as well as the logistics of the return itself.

On October 28, 2019, the district court read its factual

findings and legal conclusions into the record, and entered an

injunction ordering that A.C.A. be returned to Brazil on January

2, 2020. The district court's reasoning is described below. De

Aredes appealed the order on October 29, 2019.

On October 30, 2019, de Aredes, M.A., and A.C.A. had an

immigration hearing in Boston. There, de Aredes filed a formal

asylum application for herself, A.C.A., and M.A. claiming that da

Silva would kill de Aredes and sexually abuse M.A. if they returned

to Brazil.

The immigration court later assigned a February 16, 2023

date for the asylum hearing. On November 6, 2019, de Aredes moved

for a new trial, arguing that the formal asylum application and

date for a hearing were sufficient to give de Aredes, M.A., and

A.C.A. lawful immigration status for the next three years,

eliminated their risk of imminent deportation, and so provided new

evidence that was material to the analysis of the "now settled"

defense. The district court denied this motion on November 18,

2019. On November 22, 2019, de Aredes amended her appeal to

challenge the denial of her motion for a new trial.

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 We issued a stay of the removal to give us time to

consider the matter and expedited the appeal.

II.

We address de Aredes's challenges to the district

court's rulings on her affirmative defenses and motion for a new

trial. We then turn to the language and scope of the injunction.

A. Standard of Review for Hague Convention Rulings and for Denial
of the New Trial Motion

As presented to us, the question of whether the district

court erred in concluding de Aredes had not met her burden of proof

as to any of her defenses is a mixed question of law and fact.

Under the reasoning of the Supreme Court in Monasky v. Taglieri,

140 S. Ct. 719, 730 (2020), we review the question for clear error.

"[T]he appropriate standard of appellate review for a mixed

question 'depends . . . on whether answering it entails primarily

legal or factual work.'" Id. (quoting U.S. Bank N.A. v. Vill. at

Lakeridge, LLC, 138 S. Ct. 960, 967 (2018)). Like the "habitual

residence" determination at issue in Monasky, the "grave risk" and

"now settled" defenses require the court to identify a broad

standard and then answer the factual questions of whether return

would expose the abducted child to grave risk of harm or whether

the abducted child is "now settled."2 See, e.g., Yaman v. Yaman,

2 "[A] long history of appellate practice" can also inform
the correct standard of review. Monasky, 140 S. Ct. at 730
(quoting Pierce v. Underwood, 487 U.S. 552, 558 (1988)). Whether

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730 F.3d 1, 9 (1st Cir. 2013) (stating the district court applied

a "totality of the circumstances test" to find a child "now

settled");3 Alcala v. Hernandez, 826 F.3d 161, 170-71 (4th Cir.

2016) (holding that the totality of the circumstances test applies

to the now settled analysis).

Review for clear error also accords with the goals of

the Convention. As Monasky holds, "[t]o avoid delaying the custody

proceeding, the Convention instructs contracting states to 'use

the most expeditious procedures available' to return the child to

her habitual residence." 140 S. Ct. at 724 (quoting Art. 2,

T.I.A.S. No. 11,670). Review for clear error "speeds up appeals

and thus serves the Convention's premium on expedition." Id. at

730. Under clear error review, any plausible finding as to a

witness's credibility "can virtually never be clear error." Díaz-

Alarcón v. Flández-Marcel, 944 F.3d 303, 312 (1st Cir. 2019)

(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 575

the burdens of proof of the grave risk and now settled defenses
are met has a "factual foundation" sufficiently "evident" such
that, although some Federal Courts of Appeals have explicitly
reviewed these mixed questions de novo, see, e.g., Baran v. Beaty,
526 F.3d 1340, 1345 (11th Cir. 2008), as in Monasky, "there is
scant cause to default to historical practice." 140 S. Ct. at
730.

3 As to the now settled inquiry, Yaman addressed entirely
different issues concerning the legal interpretation of the Hague
Convention and the district court's equitable discretion. 730
F.3d at 12. It did not address the merits of the now settled
analysis, and so does not affect the disposition of this appeal.
Id.

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(1985)). The Hague Convention "establishes a strong presumption

favoring return of a wrongfully removed child." Danaipour v.

McLarey, 286 F.3d 1, 13 (1st Cir. 2002). The affirmative defenses

to this presumption are construed narrowly. Id. at 14. While we

review de novo legal issues, which include "the district court's

interpretation of the Hague Convention," Yaman 730 F.3d at 10, we

see no legal issues here.

As to the denial of the motion for a new trial, our

review is for abuse of discretion. Id.; Cantellops v. Alvaro-

Chapel, 234 F.3d 741, 744 (1st Cir. 2000).

B. The District Court Did Not Err in Finding that Returning
A.C.A. to Brazil Would Not Expose Her to a Grave Risk of Harm

The district court rejected de Aredes's claim that

returning A.C.A. to Brazil would expose A.C.A. to a grave risk of

physical, sexual, and psychological harm.

The district court found that da Silva had "rights of

custody over" A.C.A., the removal was wrongful, and da Silva did

not sit on his rights.

The court found the relationship between the parents was

"tumultuous" and "on occasion [da Silva] engaged in some degree of

physical assault or abuse of [de Aredes]." It found the parental

relationship "falls regrettably in the category of dysfunctional

relationships that are known generally in all nations." And it

found the evidence of abuse of de Aredes was "not so pervasive" as

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to attribute that to da Silva's other interactions with the family.

Correctly stating that the grave risk of harm analysis was

concerned with harm or potential harm to A.C.A., rather than de

Aredes, the district court concluded that de Aredes failed to show

by clear and convincing evidence the possible risk of harm to

A.C.A.

The grave risk defense requires de Aredes to show, by

clear and convincing evidence, "there is a grave risk that . . .

return would expose the child to physical or psychological harm."

Danaipour, 286 F.3d at 13 (quoting Hague Convention, art. 13,

T.I.A.S. No. 11,670, at 8). This standard requires the factfinder

to have "an abiding conviction that the truth of its factual

contentions are 'highly probable.'" Colorado v. New Mexico, 467

U.S. 310, 316 (1984) (quoting Charles McCormick, Laws of Evidence

§ 320, at 679 (1954)). De Aredes must prove subsidiary facts by

a preponderance of the evidence. Yaman, 730 F.3d at 11.

Further, the "harm must be 'something greater than would

normally be expected on taking a child away from one parent and

passing [the child] to another.'" Walsh v. Walsh, 221 F.3d 204,

218 (1st Cir. 2000) (quoting Re A. (a Minor) (Abduction) [1988] 1

F.L.R. 365, 372 (Eng.C.A.)). This defense is not "a vehicle to

litigate (or relitigate) the child's best interests." Danaipour,

286 F.3d at 14 (quoting Hague International Child Abduction

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Convention: Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510

(Mar. 26, 1986)).

De Aredes first argues that the finding of "some degree"

of abuse of de Aredes requires a finding that A.C.A. would be

exposed to grave risk. Not so. There is no claim that A.C.A. was

ever herself abused. The claims here are largely that A.C.A. would

be at grave risk from seeing the instances of conflict between her

parents, or that the conflict between her parents demonstrates

that A.C.A. would be at grave risk of da Silva abusing her in the

future. But that degree of conflict does not come close to the

witnessed abuse in Walsh v. Walsh.4 See 221 F.3d at 219-22.

The district court found that, while da Silva "on

occasion . . . engaged in some degree of physical assault or

abuse," the abuse was not so severe as in Walsh. The court found

that da Silva never abused A.C.A. Unlike in Walsh, the "physical

4 In Walsh, the record showed that John, the petitioner,
had an "uncontrollably violent temper" and committed "bloody and
severe" assaults on his wife Jacqueline (the abducting parent) and
his son from a previous relationship. 221 F.3d at 209, 220–21.
The district court found that Jacqueline was the "victim of random
beatings," the severity of which medical records confirmed. Id.
at 209. The abducted children often witnessed these severe
assaults, and John forced one of them to see a room and victim
bloodied by John's abuse. Id. at 210. John also disregarded
protective orders and fled the United States after being criminally
indicted for threatening to kill his neighbor. Id. at 215, 220.
The court reasoned that this disregard demonstrated that John would
violate protective orders in the abducted children's habitual
residence. Id. at 218, 220-21.

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assault or abuse" here never resulted in any hospital visits by de

Aredes, police complaints, or arrests. And de Aredes's own

testimony about the abuse was often conflicting or inconsistent.

Further, the details of the abuse alleged were insufficient to

support a finding of grave risk as to A.C.A.5 The district court

committed no clear error in concluding that the "showings of

physical abuse" were not "so pervasive" as to support a

determination of grave risk of harm as to A.C.A.

Nor did the district court err in finding that de Aredes

failed to show returning A.C.A. to Brazil would expose A.C.A. to

grave risk of sexual harm. That assertion is primarily based on

the testimony of M.A.'s therapist, Dana Bonanno, about the alleged

sexual abuse of M.A. and de Aredes's characterization of da Silva's

testimony as failing to explicitly deny abusing M.A., this being

an admission of child abuse.

Bonanno testified that she held therapy sessions with

M.A. and, at one session, M.A. stated that "she used to sit on

[her] stepfather's lap and move her hips around and that was a way

5 For instance, de Aredes testified the she once
brandished a knife in self-defense when she and da Silva were in
a fight, and A.C.A. grabbed the knife. De Aredes cited this fight
and A.C.A.'s intervention as an example demonstrating that A.C.A.
would be exposed to a grave risk of harm if A.C.A. were returned
to Brazil. But the district court seemed to credit M.A.'s
testimony that it was a butter knife, which, the court noted,
"doesn't take on the range of wandering around with a knife all
the time."

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to massage him." De Aredes testified that she heard the same story

from her aunt. Bonanno stated that M.A. became withdrawn and

avoided eye contact when speaking of da Silva. Bonanno opined

that such behavior was "consistent with childhood sexual abuse."

Bonanno also stated later, however, that this behavior could have

resulted from M.A.'s recent immigration to the United States.

Bonanno also testified that her assumptions regarding M.A.'s

behavior, demeanor, and condition were made to advance therapeutic

treatment. They were not conclusions made with a "reasonable

degree of medical certainty." The district court found this

distinction important in its conclusions that these assumptions

did not carry the weight of "evidentiary inferences."

The district court observed the testimony and demeanor

of da Silva by video conference and reasonably found his testimony

not to evidence that he had committed sexual abuse of M.A. See

Díaz-Alarcón, 944 F.3d at 312. The facts of this case are much

weaker than in Danaipour v. McClarey.6 286 F.3d 1. In Danaipour,

"an expert in the field of child trauma" concluded the younger

6 In Danaipour, the mother alleged that she witnessed the
father inappropriately touching the children, the children
exhibited signs of sexual abuse after returning from visits with
the father, and one child "complain[ed] of pain in her vaginal
area [and] express[ed] general fear of her father." 286 F.3d at
7. Later, the younger child "made various statements [to her
therapist] that could be taken as indicating" her father had
sexually abused her. Id. at 7. The older child stated to the
therapist that the younger sister had also told her of the abuse
by the father. Id. at 7-8.

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child suffered from post-traumatic stress disorder. Id. at 10.

"[A]n expert in sexual abuse evaluations . . . testified that, in

[the expert's] opinion, to a reasonable degree of medical

certainty, the younger [child] had been sexually abused." Id. No

such facts are present here. Here, the alleged sexual abuse is

not of A.C.A. De Aredes did not witness any sexual abuse as to

A.C.A.'s sister. The testimony evidence of abuse is far thinner

here, and there is no expert testimony as to the certainty of

sexual abuse.

C. The District Court Did Not Clearly Err in Finding that A.C.A.
Was Not "Now Settled" in the United States

When the petition for return has been filed one year or

more after the wrongful removal, as here, a district court may

decline to order return if the child is now settled in the new

country. Hague Convention, art. 12, T.I.A.S. No. 11,670. Courts

also refer to the defense as the "well settled" defense. E.g.,

Yaman, 730 F.3d at 22 n.18. De Aredes must show by a preponderance

of the evidence that, as of the petition date, A.C.A. was now

settled.7 22 U.S.C. § 9003(e)(2)(B). This defense "protect[s] a

child's interest in remaining in a place she is settled." Yaman,

730 F.3d at 15-16 (citing Lozano v. Alvarez, 697 F.3d 41, 54 (2d

7 It appears the district court used the date of the
petition as the relevant time. At oral argument, counsel for de
Aredes agreed that this date was proper.

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Cir. 2012), aff'd sub nom. Lozano v. Montoya Alvarez, 572 U.S. 1

(2014)).

Courts look to the totality of the circumstances in

determining whether a child is now settled. See, e.g., Yaman, 730

F.3d at 9; Alcala, 826 F.3d at 170-71. A court may consider any

relevant fact, including immigration status. See, e.g., Lozano,

697 F.3d at 56 (stating that an abducted child's immigration status

should be only one of many relevant factors in determining whether

the child is now settled, and its weight "will necessarily vary");

Alcala, 826 F.3d at 171, 173–74 (similar); Hernandez v. Garcia

Pena, 820 F.3d 782, 789 (5th Cir. 2016) (requiring an analysis of

the child's immigration status).

The district court considered the relevant facts and

found that A.C.A. was not now settled. Although it found that the

evidence supported A.C.A.'s having "developed meaningful

relationships and lasting emotional bonds with a community in East

Boston," the district court found that A.C.A.'s resiliency and

ability to form bonds in Brazil would not make her return to Brazil

an event that "wrench[ed] [her] out of a well-settled position."

In support, the district court properly considered the "unsettled

character [of] the immigration status" of de Aredes, A.C.A., and

M.A.

De Aredes argues that the district court erred in finding

A.C.A. was not now settled and that the district court erroneously

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gave dispositive weight to A.C.A.'s immigration status. Both

arguments lack merit.

The district court plainly did not give immigration

status any such dispositive weight, and so that legal issue is not

present in this case. The district court stated that it paid

"careful attention . . . to all of the various factors" and,

considering A.C.A.'s ties to the community and resiliency, found

that she was not now settled. The district court subsequently

commented on A.C.A.'s immigration status in support of its finding

A.C.A. was not now settled, but nothing in the court's reasoning

suggests that A.C.A.'s immigration status controlled the finding.

But the evidence before the district court supported its

finding that A.C.A. was not now settled, and that finding was not

clearly erroneous. Although A.C.A. was engaged in school, she was

repeatedly tardy and absent. During the 2017-2018 school year,

A.C.A. was tardy on 40 days and absent 8 days, out of 167 days.

In the first half of the 2018-2019 school year, she was tardy 41

out of 113 days. The district court could credit this

administrative record as weighing against a finding that A.C.A.

was now settled. See Lozano, 697 F.3d at 57 (noting that courts

generally should consider as a now settled factor "whether the

child attends school or day care consistently" (quoting Duarte v.

Bardales, 526 F.3d 563, 576 (9th Cir. 2008) (Bea, J., dissenting)).

As of October 26, 2018, just two weeks before the petition date,

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de Aredes seemed to struggle "to find a regular and steady

employment [yet] at th[at] time however manage[d] to run the

household." A.C.A. was diagnosed with "adjustment disorder with

depression or anxiety." A.C.A. experienced a documented

difficulty adjusting to her move to the United States and the

absence of her father, grandparents, and friends in Brazil.

D. The District Court Did Not Abuse Its Discretion in Denying De
Aredes's Motion for a New Trial

The district court denied de Aredes's motion for a new

trial. A motion for new trial on the basis of newly discovered

evidence requires the movant to show that:

(1) The evidence has been discovered since the trial;
(2) The evidence could not by due diligence have been
discovered earlier by the movant; (3) The evidence is
not merely cumulative or impeaching; and (4) The
evidence is of such nature that it would probably change
the result if a new trial is granted.

Duffy v. Clippinger, 857 F.2d 877, 879 (1st Cir. 1988). De Aredes

argues that her October 30, 2019 immigration hearing led to such

new evidence. She argues that, by setting her asylum hearing date

for February 16, 2023, the immigration judge removed de Aredes and

A.C.A.'s risk of removal for three years, stabilized their

immigration status, and that now made A.C.A. now settled in the

United States.

The district court did not abuse its discretion in

finding that this showing did not comply with the rule. The

evidence was plainly cumulative and not "newly discovered." The

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district court was aware of de Aredes's application for political

asylum and its possible immigration consequences, and called her

October 30, 2019 hearing "neither unforeseen nor unforeseeable."

Significantly, the district court found that de Aredes could have

filed her application for asylum earlier, but did not.

We affirm the denial of relief from return.

E. The Injunction Should Be Modified To Be Clear It Did Not
Determine the Custody of A.C.A

The implementing statute of the Hague Convention

expressly forbids a court from determining "the merits of any

underlying child custody claims." 22 U.S.C. § 9001(b)(4); see

also Yaman, 730 F.3d at 22-23 (stressing that a Hague Convention

case did "not involve a determination of custody"). The "return

requirement is a 'provisional' remedy that fixes the forum for

custody proceedings. Upon the child's return, the custody

adjudication will proceed in that forum." Monasky, 140 S. Ct. at

723 (internal citation omitted) (quoting Linda Silberman,

Interpreting the Hague Convention: In Search of a Global

Jurisprudence, 38 U.C.D. L. Rev. 1049, 1054 (2005)).

As the district court explicitly recognized, it is the

job of the courts of Brazil, not the district court, to "make the

appropriate custodial and family law determinations." Mauvais v.

Herisse, 772 F.3d 6, 21 (1st Cir. 2014). This injunction, as

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worded, could be read to violate this rule. It reads, in the

relevant parts:

On January 2, 2020, A.C.A. shall travel to Brazil
to reside in the care and custody of the petitioner Nelio
Nelson Gomes da Silva. Prior to that date, Mr. da Silva
will travel to Massachusetts to facilitate A.C.A.'s
return to Brazil in his custody . . . .
. . . .
Any further proceedings regarding A.C.A's custodial
arrangements shall be conducted by the appropriate
Brazilian court under Brazilian law.

Injunctive Decree at 1-2, da Silva v. de Aredes, No. 1:18-cv-

12353-DPW (D. Mass. October 28, 2019), ECF No. 102 (emphasis

added). Perhaps the order meant no more than that the parent

returning the child to Brazil had the authority to do so. At oral

argument, we were told that de Aredes had not decided whether she

would return to Brazil on the removal of A.C.A. The order that

A.C.A. "reside in the care and custody" of da Silva and the

reference to "further" custodial proceedings could be read as

making a custody determination. The order should not be read to

mean that the proceedings carried out in the district court

determined custody.

In consequence, we direct the district court to address

and make the needed modifications to the injunction. At oral

argument, counsel for da Silva had no objection to the injunction

being made clear that it did not deprive de Aredes of her custody

rights as to A.C.A.

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 III.

The rulings of the district court are affirmed and the

district court shall modify the injunction consistent with this

opinion. Any interim conditions imposed by the district court

remain in place until A.C.A. is returned to Brazil.

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