Rodrigo Andres Alvarez Romero v. Maria Eugenia Gajardo Bahamonde

       USCA11 Case: 20-14557     Date Filed: 05/25/2021   Page: 1 of 27



                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                       Nos. 20-14557; 21-10378
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:20-cv-00104-LAG



RODRIGO ANDRES ALVAREZ ROMERO,

                                                           Plaintiff - Appellant,

                                  versus

MARIA EUGENIA GAJARDO BAHAMONDE,

                                                          Defendant - Appellee.

                      ________________________

               Appeals from the United States District Court
                   for the Middle District of Georgia
                      ________________________

                               (May 25, 2021)

Before WILSON, MARTIN, and BRASHER, Circuit Judges.

PER CURIAM:
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      Rodrigo Andres Alvarez Romero appeals the district court’s denial of his

petition for return of his minor children pursuant to the International Child

Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001–9010, the implementing

legislation of the Hague Convention on Civil Aspects of International Child

Abduction (“Hague Convention”), Oct. 25, 1980, T.I.A.S. No. 11,670. This

consolidated case also includes his separate appeal of the district court’s order

denying his request to obtain transcripts from an ex parte hearing. Alvarez

Romero argues that the district court’s factual findings are clearly erroneous and

objects to the district court’s determinations: that his children are well-settled in

the United States; that returning them to Chile would present a grave risk to their

well-being; and that his eldest child was mature enough to object to returning to

Chile. After careful review, we affirm the district court’s denial of his petition.

                                          I.

   A. Factual Background

      Because Alvarez Romero disputes the district court’s factual findings, we

review the factual background in some detail. ABB and PDCB are Alvarez

Romero and Maria Eugenia Gajardo Bahamonde’s minor daughters. ABB was

born in 2006 and PDCB was born in 2013. Alvarez Romero and Gajardo

Bahamonde are citizens of Chile and have never been married. Their children

were born in Chile and lived there until December 2017, when Alvarez Romero


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took them to the United States. The parties stipulated that they had no formal

custody or visitation schedule established by a court.

      Gajardo Bahamonde, ABB, and Mauricio Loyola (Gajardo Bahamonde’s

son from a prior relationship) testified that Alvarez Romero frequently abused

Gajardo Bahamonde emotionally and physically, including beating her so severely

she had a miscarriage. Because ABB and PDCB witnessed the abuse, the Chilean

Family Court ordered them to undergo mental health treatment. In the treatment

program, both children were diagnosed with “mild psycho-affective damage” due

to the abuse they saw their father inflict on their mother. This abuse included an

incident when Alvarez Romero broke her nose and another when he knocked her

unconscious while the children were lying beside her in bed. Loyola testified that

Alvarez Romero was often verbally and physically abusive to Gajardo Bahamonde

in front of the children. He said that Alvarez Romero would hit his mother, call

her “a whore,” and say she was worth less than him because “he was an engineer

and she was nothing.” Loyola witnessed one occasion when Alvarez Romero beat

Gajardo Bahamonde so severely that he broke her ribs. Loyola recounted at least

one incident where ABB witnessed Alvarez Romero severely beat their mother.

And both daughters often heard their father verbally abuse their mother. Alvarez

Romero would beat Loyola as well, including by hitting him with a belt.




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      ABB witnessed several other incidents, including one when Alvarez Romero

almost ran into ABB while trying to hit her mother. ABB also described Alvarez

Romero’s disturbing behavior toward ABB and PDCB. For example, he forced

ABB to stay up for hours past her bedtime as punishment for doing poorly on a

school assignment; he locked PDCB in the car while shopping when she wouldn’t

stop crying that she wanted her mother; and he took the children with him to buy

drugs (which he used in their presence) and drove with the children while under

the influence.

      Alvarez Romero denied all allegations of abuse. He pointed out that

Gajardo Bahamonde filed a petition for a restraining order in Chile but then

recanted it, which he said shows she has a history of making false allegations. But

Gajardo Bahamonde testified that she recanted the petition because Alvarez

Romero threatened her. And her testimony was corroborated by the recantation

report which noted that a third party also reported concerns about Gajardo

Bahamonde’s safety and recommended that the Family Court be informed about

the possible threat to the children’s safety. In light of this evidence, the district

court found Alvarez Romero’s claims that he never abused the mother of his

children and that she falsified the allegations of abuse not to be credible.

      The couple separated sometime after PDCB was born. Alvarez Romero says

he maintained contact with the children following the separation and saw them


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every weekend, including during his eight-month stay in a drug rehabilitation

center. In contrast, Gajardo Bahamonde and Loyola say the children did not have

regular contact with their father. In fact, the children’s therapy notes indicate that

they attempted to contact him during his stay in rehabilitation but that he did not

respond. And, as Alvarez Romero acknowledged, in 2016 and 2017, he was

subject to at least three protective orders that prohibited him from seeing the

children. When asked how he saw the children every weekend when those orders

were in place, Alvarez Romero did not provide a clear answer. Loyola also

testified that Alvarez Romero “[h]ardly ever” saw the girls during that time. In

light of these inconsistencies, the district court did not find Alvarez Romero’s

testimony about his constant contact with his children to be credible.

      Following the separation, Gajardo Bahamonde lived with the children in

abject poverty. Gajardo Bahamonde and ABB testified that they had to sell baked

goods and their clothes to afford food, even though Alvarez Romero had a job.

The children’s mental health reports corroborated that testimony. Alvarez Romero

did, though, keep the children on his health insurance and paid for their school.

      In December 2017, Alvarez Romero told Gajardo Bahamonde he wanted to

take the children to visit his mother in the United States, during which time they

would also have the opportunity to visit Disney World. Gajardo Bahamonde

consented to the trip, based on her belief that the children would be under the care


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of their grandmother. She signed a travel authorization form allowing the children

to travel to the United States from December 2017 to March 2018.

       Gajardo Bahamonde testified that in January 2018, Alvarez Romero told her

he would not be returning the children to Chile and that if she ever wanted to see

them again, she would have to come join them in the United States. Alvarez

Romero denies ever saying this. But that month, he got a full-time job in the

United States, bought a car, and enrolled ABB in school and PDCB in daycare. He

says this was all just part of their visit to the United States.

       After she learned that Alvarez Romero enrolled the daughters in school and

daycare in the United States, Gajardo Bahamonde left her job in Chile and sold

possessions in order to pay for a ticket to travel to Alvarez Romero’s mother’s

home in Florida in February 2018 to be with the children. Two months later,

Gajardo Bahamonde moved out and took PDCB with her because, she says,

Alvarez Romero began sexually harassing her and verbally and physically abusing

her in front of the children. ABB testified that she saw Alvarez Romero abuse

Gajardo Bahamonde while she was living with them in Florida. Gajardo

Bahamonde also described an incident when Alvarez Romero pushed her while she

was at work, prompting a co-worker to call the police. Gajardo Bahamonde’s

testimony about that incident is supported by a police report. Gajardo Bahamonde

filed for a domestic violence protection order in Florida after that incident.


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      Initially, ABB stayed with her grandmother and father. But after her

grandmother went back to Chile, ABB’s living situation worsened. ABB testified

that she started missing a lot of school, there was almost no furniture in the home

they stayed in, she was alone in the home for most of the day, and was left without

food or a phone. Her mother came and took ABB to live with her after ABB called

upset that she was stuck alone in the house with no food while Alvarez Romero

was at work.

      The Florida court scheduled two hearings about Gajardo Bahamonde’s

petition for a protective order. Alvarez Romero did not appear and instead

returned to Chile. After Alvarez Romero failed to appear at the first hearing and

returned to Chile, Gajardo Bahamonde moved to Georgia. The petition was

dismissed for failure to appear. Gajardo Bahamonde did not further pursue the

protective order after Alvarez Romero left the United States because she knew he

could not return.

      When Alvarez Romero returned to Chile, he took the children’s passports

with him. Initially, he remained in contact with ABB. They spoke about planning

a trip for the children to return to Chile. Gajardo Bahamonde repeatedly asked

Alvarez Romero to return the passports but he never did.

      After October 2018, there was no further direct communication between

Alvarez Romero and the children. Alvarez Romero says this is because Gajardo


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Bahamonde prevented the children from talking to him and blocked his family on

social media. Gajardo Bahamonde denies this and says she blocked Alvarez

Romero from her own social media pages but never prevented him from

communicating with the children.

      Alvarez Romero’s mother testified that she and all her family were blocked

from speaking with the children on WhatsApp, the messaging platform they used,

and other platforms after Alvarez Romero returned to Chile. ABB and Gajardo

Bahamonde testified, to the contrary, that ABB continued to communicate with her

father’s family in Chile. ABB says her mother never prevented her from speaking

with any of her family members, including her father. ABB received a copy of her

grandfather’s obituary from Alvarez Romero’s family after Alvarez Romero

returned to Chile.

      Gajardo Bahamonde and the children moved to Georgia in November 2018.

Since then, the children have lived in one home and attended the appropriate

schools. The children’s teachers testified that both children are excelling at school

and, prior to the Covid-19 pandemic, participated in a number of extracurricular

activities. The children get along with each other and have close friends at school

and in their neighborhood. They are also close with Loyola, their half-brother,

who visits from Alabama every few weeks.




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      Gajardo Bahamonde and the children’s visas are expired. An immigration

attorney, who presented expert testimony as to immigration law matters, advised

that Gajardo Bahamonde is not under any threat of removal and that she has three

options for regularizing her status.

   B. Procedural Background

      In June 2020, Alvarez Romero filed an ICARA petition, claiming that, as of

November 2018, Gajardo Bahamonde wrongfully retained the couple’s two minor

children, ABB and PDCB, in the United States, at the time 14 and 7 years old,

respectively. In August 2020, the parties presented five issues for the district court

to determine, three of which are relevant to this appeal: (1) whether the children

will face a grave risk of harm if returned to Alvarez Romero in Chile; (2) whether

the elder child, ABB, is mature enough to object to her return to Chile and whether

she has sufficiently done so; and (3) whether the children are well-settled in the

United States. The district court held a two-day evidentiary hearing on these

issues.

      Because Gajardo Bahamonde sought to rely on the mature child exception as

to ABB, the district court interviewed ABB in chambers. The district court first

spoke to ABB alone and provided a summary to the parties. During that interview,

ABB explained that she felt more safe, secure, and stable with her mother in the

United States because, while here, she does not fear that Alvarez Romero, her


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father, will attack her mother. Next, the district court asked ABB questions the

parties submitted in advance. The parties could not directly cross-examine ABB,

but they listened to the district court interview her over the phone and were

permitted to submit follow-up questions. Neither party submitted any follow-up

questions.

      During that hearing, ABB objected to returning to Chile. At the time of the

hearing, ABB was 14 years old. She was doing well at school and the record does

not indicate that she had any kind of difficulties adjusting to life in the United

States. She stated that she wanted to stay in the United States because her life in

Chile was unstable. In Chile, she lived in poverty, frequently moved, and was

constantly in fear that Alvarez Romero would find them and hurt her mother.

Without prompting, ABB described a number of instances where she saw her

father beat her mother, including some incidents her mother did not know ABB

witnessed. For example, she described an incident when her father threw boiling

water on her mother while she was cooking, at which point ABB called the police.

ABB, her mother, her sister, and her half-brother then had to live in a hotel to stay

safe from her father. She recalled watching her father purchase and consume drugs

in her presence. She also recalled several interactions with the police in Chile

when they responded to Alvarez Romero’s violent outbursts. ABB also testified

that she witnessed her father hit her half-brother, giving him a black eye.


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                                          II.

      When considering an appeal from an order denying a petition for return of a

child under the Hague Convention, we review de novo the district court’s

interpretation and application of the Hague Convention and review its factual

findings for clear error. Berenguela-Alvarado v. Castanos, 950 F.3d 1352, 1357–

58 (11th Cir. 2020).

      Alvarez Romero first argues that ABB should not have been allowed to

testify on substantive issues, such as Alvarez Romero’s treatment of Gajardo

Bahamonde, other than her particular objections to returning to Chile. Next, he

argues that the district court erred in considering the well settled defense because,

he says, Gajardo Bahamonde concealed the location of the children. Finally, he

says that the district court’s factual findings in support of its conclusions that the

mature child exception applied, that the children were well-settled in the United

States, and that the children faced a grave risk of harm if returned to Chile were

clearly erroneous. Separately, Alvarez Romero says the district court abused its

discretion when it denied his request for a transcript from an ex parte hearing

regarding Gajardo Bahamonde’s request to permit her counsel to withdraw from

the case. We address each argument in turn.




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   A. The District Court Was Entitled to Consider ABB’s Testimony on Issues
      Besides the Mature Child Exception

      Alvarez Romero argues that ABB could only testify about her objections to

returning to Chile because “the Hague Convention does not authorize the Court to

interview a child or any other witness in chambers, without the opportunity for

cross-examination, on substantive issues in the case.” Instead, he says a court may

only interview a child to determine whether the mature child exception applies.

Alvarez Romero is mistaken about both the record and the law in this regard.

      First, Alvarez Romero’s complaint that he did not have an opportunity to

cross-examine ABB is misplaced. Alvarez Romero insisted that ABB not appear

in court and instead be interviewed in chambers. And he submitted numerous

questions for the district court to ask ABB, which it did. Alvarez Romero listened

as the district court posed his questions as well as those submitted by Gajardo

Bahamonde. He was then afforded the opportunity to submit any follow up

questions to the district court to pose to ABB in chambers. He chose not to.

Alvarez Romero was also afforded the opportunity to submit evidence to rebut

ABB’s testimony; he did so, and the district court admitted it into evidence.

Alvarez Romero offers no argument as to what precisely he was denied the

opportunity to ask or introduce through a process designed to protect his daughter

from being directly questioned by her parents about her relationships with her

parents.
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      Second, contrary to Alvarez Romero’s contentions, courts regularly rely on

the child’s testimony in Hague Convention cases for issues besides the mature

child exception, including when determining whether the child would face a grave

risk of harm if returned. See Blondin v. Dubois, 238 F.3d 153, 166 (2d Cir. 2001)

(“[I]f a child’s testimony is germane to the question of whether a grave risk of

harm exists upon repatriation, a court may take it into account.”); see also

Karkkainen v. Kovalchuk, 445 F.3d 280, 286–87 (3d Cir. 2006) (relying on child’s

testimony to help determine her habitual residence). There is no prohibition on

looking to a child’s testimony for issues besides the mature child exception, nor is

there any need for an affirmative authorization from the Hague Convention to do

so.

      The only support Alvarez Romero points to for the legal proposition that

children can testify only about their objections to returning to their country of

habitual residence are three unpublished district court decisions. The text of

ICARA and the Hague Convention contain no such limitation. See 22 U.S.C. §§

9001–9010; Hague Convention, Oct. 25, 1980, T.I.A.S. No. 11,670. And none of

the cases Alvarez Romero cited indicate that there is any need for affirmative

authorization by the Convention to consider a child’s testimony about other matters

relevant to a Hague Convention case. Instead, the district courts in those cases did




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not indicate whether the child’s testimony was limited to the mature child

exception.1

       Here, the district court determined that ABB’s testimony about witnessing

many instances of Alvarez Romero beating and abusing her mother, as well as

Alvarez Romero’s disturbing behavior toward ABB and her sister, was relevant to

whether the children faced a grave risk of harm if returned to Chile. The district

court did not abuse its discretion in considering this relevant evidence.

    B. The District Court Did Not Err in Crediting ABB’s Testimony

       Alvarez Romero next argues that the district court made an erroneous factual

finding when it credited ABB’s testimony. This argument fails as well.

       “In an action tried without a jury, findings of fact, whether based on oral or

other evidence, must not be set aside unless clearly erroneous, and the reviewing

court must give due regard to the trial court’s opportunity to judge the witnesses’

credibility.” Direct Niche, LLC v. Via Varejo S/A, 898 F.3d 1144, 1149 (11th Cir.

2018) (quotation marks omitted and alteration adopted). “We give even greater

deference to factfindings of the district court that are based on determinations of


1
  See Tomynets v. Koulik, 2017 WL 9401110, at *8–9 (M.D. Fla. May 26, 2017) (unpublished)
(noting that child testified as to her experiences at school, with extracurriculars, and with her
mother); Dalsgaard v. Montoya, 2011 WL 5037223, at *7 (M.D. Fla. Oct. 24, 2011)
(unpublished) (describing in camera interview of child in chambers about her desire to remain in
the United States); Leites v. Mendiburu, 2008 WL 114954, at *6 (M.D. Fla. Jan. 9, 2008)
(unpublished) (same).



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the credibility of witnesses.” Berenguela-Alvarado, 950 F.3d at 1357–58

(quotation marks omitted). We will not displace the district court’s factual

findings when its account of the evidence is plausible in light of the entire record,

even if we would have weighed the evidence differently and even where there may

be inconsistencies in the record. Seaman v. Peterson, 766 F.3d 1252, 1261 (11th

Cir. 2014).

         Alvarez Romero has not shown that the district court’s determination that

ABB was credible was clearly erroneous. Substantial evidence supports the

district court’s credibility finding. ABB’s testimony about Alvarez Romero’s

abuse was consistent with that of Gajardo Bahamonde’s as well as that of Loyola’s

testimony. ABB’s testimony about her strained relationship with her father was

also corroborated by records evidencing Alvarez Romero’s extended stay in a drug

rehabilitation facility and the therapy notes from ABB’s court-mandated mental

health treatment. And her testimony that she stayed in touch with Alvarez

Romero’s family after he returned to Chile is corroborated by Gajardo

Bahamonde’s testimony and the fact that ABB received a copy of her grandfather’s

obituary from Alvarez Romero’s family following Alvarez Romero’s return to

Chile.

         The purported inconsistencies Alvarez Romero points to are either not, in

fact, inconsistencies, or are so minor that they cannot serve as the basis for


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overturning the district court’s findings of fact. First, Alvarez Romero claims that

ABB’s testimony that she was hungry and homeless in Chile after her parents

separated is contrary to evidence he submitted that he kept the children on his

health insurance and paid for their schooling. However, there is nothing

inconsistent in saying that the children and their mother did not have money for

housing or food even while the children attended school and had health insurance.

Next, Alvarez Romero says that ABB could not have witnessed him physically

abusing Gajardo Bahamonde in Florida as that incident occurred at work, where

she could not have been present. But it is not clear from the record whether ABB

was describing the incident that occurred at work or a different incident that also

occurred in Florida. Indeed, ABB testified that because they were in public,

Alvarez Romero only “yell[ed]” at Gajardo Bahamonde and did not strike her,

suggesting that ABB was testifying to a different instance of abuse. The fact that

ABB says she witnessed a separate incident of abuse is hardly an indication that

her testimony is not credible.

      Finally, Alvarez Romero points out that ABB’s testimony that she did not

recall communicating with her father after he returned to Chile is not consistent

with audio recordings he produced of conversations they had over WhatsApp. But

the fact that ABB may have forgotten a couple of conversations over WhatsApp is

an inconsistency that does not dispel the notion that she and her father were not


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communicating frequently after he left the United States. And this discrepancy,

alone, is certainly not sufficient for Alvarez Romero to show that the district court

clearly erred in crediting her testimony.

   C. The District Court Did Not Err in Finding the Mature Child Exception
      Applied to ABB

      Alvarez Romero contends that the district court improperly applied the

mature child exception to ABB. The mature child exception is one of several

affirmative defenses a parent can assert to prevent return of the child under the

Hague Convention. Hague Convention Art. 13 (“The judicial or administrative

authority may also refuse to order the return of the child if it 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 its views.”). The burden is on the retaining parent

to establish by a preponderance of the evidence that this exception applies. 22

U.S.C. § 9003(e)(2)(B).

      Courts have relied primarily on three considerations in determining when

this exception applies: (1) whether the child is sufficiently mature; (2) whether the

child has a particularized objection to being repatriated; and (3) whether the

objection is the product of undue influence. See Colon v. Mejia Montufar, 470 F.

Supp. 3d 1280, 1295 (S.D. Fla. 2020) (citing Tsai-Yi Yang v. Fu-Chiang Tsui, 499

F.3d 259, 279 (3d Cir. 2007)).



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      As to the first factor, courts have looked to the child’s age, ability to express

mixed feelings, and to plan past obstacles as indications of maturity. Id. at 1296.

Alvarez Romero says the district court relied solely on ABB’s age in finding that

she was sufficiently mature, but that assertion is not supported by the record. The

district court considered ABB’s age (she was fourteen years old at the time), the

fact that she was able to express some positive feelings about life in Chile, her

ability to provide detailed answers demonstrating an understanding of her situation,

and the testimony of her teacher in finding that she was sufficiently mature.

      In determining whether a child has particular objections to repatriation,

courts consider whether the child is expressing merely a preference against return

or is “affirmatively objecting to returning to one country—when living in that

country would be unacceptable.” Rodriguez v. Yanez, 817 F.3d 466, 477 (5th Cir.

2016). Alvarez Romero claims that ABB expressed a mere preference to stay in

the United States, but he does not support this claim with references to the record.

An actual review of the record shows that ABB provided lengthy and detailed

particularized objections to being repatriated to Chile based on her father’s

constant verbal and physical abuse of her mother.

      Alvarez Romero also insists that ABB’s testimony could only be the product

of Gajardo Bahamonde’s undue influence. When considering whether a child’s

objection is the product of undue influence, courts place great weight on whether


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the objection is based on the child’s firsthand experiences. Colon, 470 F. Supp. 3d

at 1298 (collecting cases). Unquestionably, ABB’s objections were based on her

firsthand experiences. She described witnessing numerous incidents of Alvarez

Romero physically and verbally abusing her mother, going hungry and homeless

when Alvarez Romero cut off her mother financially, observing Alvarez Romero

take drugs, and being subject to his harsh discipline.

      Alvarez Romero places great weight on the fact that ABB referred to him by

his first name during her testimony. But there is no evidence in the record that

Gajardo Bahamonde ever instructed ABB to refer to him that way. In contrast, the

record is replete with evidence of his domestic abuse, drug use, and negligent

parenting, all of which would reasonably lead a child to have a distant relationship

with a parent. The district court did not err in applying the mature child exception

to ABB.

   D. The Children Are Well-Settled in the United States

          i. The District Court Properly Considered the Well-Settled Defense

      When a Hague Convention petition is filed more than a year after a child is

retained, the retaining parent can assert the well-settled defense. Hague

Convention Art. 12 (noting that the child must still be returned if the petition is

filed after one year “unless it is demonstrated that the child is now settled in its




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new environment.”) The retaining parent must establish that the child is well-

settled by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B).

      It is undisputed that Alvarez Romero filed the instant petition more than one

year after Gajardo Bahamonde and the children remained in the United States. But

Alvarez Romero complains that the district court should not have considered the

well-settled defense because he says Gajardo Bahamonde concealed the children’s

location from him. Alvarez Romero’s argument fails on both the facts and the law.

      As a factual matter, the district court determined that Gajardo Bahamonde

did not conceal the children’s whereabouts from Alvarez Romero. She moved

only once (from Florida to Georgia), and since moving to Georgia the children

have attended the same school, lived in the same house, and maintained contact

with Alvarez Romero’s family. Absent from the record is any indication that

Alvarez Romero attempted to contact his children and determine their

whereabouts. There is no evidence that Gajardo Bahamonde ever lied about the

children’s whereabouts or refused to answer Alvarez Romero’s inquiries. While

she does not appear to have affirmatively informed Alvarez Romero of their

whereabouts, that is different from active concealment. There is no clear error in




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the district court’s factual finding that Gajardo Bahamonde did not conceal the

children from Alvarez Romero.2

       And even if the record indicated that Gajardo Bahamonde had concealed the

location of her children, that alone would not prevent her from asserting the well-

settled defense. As the Supreme Court held in Lozano v. Montoya Alvarez, 572

U.S. 1, 134 S. Ct. 1224 (2014), concealment does not equitably toll the one-year

deadline for a parent to file a petition and preclude the retaining parent from

asserting the well-settled defense. Id. at 4, 134 S. Ct. at 1228. While the Supreme

Court noted that, as a factual matter, “steps taken to promote concealment can also

prevent the stable attachments” that lead to a child being well-settled in a new

country, that does not prohibit the retaining parent from asserting the defense. Id.

at 17, 134 S. Ct. at 1236. Therefore, the district court properly considered the

well-settled defense here.

       ii. The Well-Settled Defense Applies to ABB and PDCB

       Alvarez Romero argues that the district court’s factual findings do not

support its ruling that the children are well-settled in the United States.3 In this


2
 Further, the record reflects that Alvarez Romero was delayed in filing his petition not because
of any alleged concealment, but because of a protracted dispute he had with the Chilean Central
Authority in starting the petition process.
3
  Alvarez Romero also says he is challenging the district court’s findings of fact, but he does not
appear to dispute the facts. He only states that the facts were insufficient to support a finding
that the children were well-settled. We construe this assertion as a challenge to the district
court’s applications of the law to the facts, not its findings of fact.
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circuit, a child is well settled for purposes of the Hague Convention “when a

preponderance of the evidence shows that the child has significant connections to

their new home that indicate that the child has developed a stable, permanent, and

nontransitory life in their new country to such a degree that return would be to the

child’s detriment.” Fernandez v. Bailey, 909 F.3d 353, 361 (11th Cir. 2018). We

review the district court’s application of the well-settled defense for abuse of

discretion. Id. at 363. Courts look to how frequently children move around within

their new country, whether they attend extracurricular and community activities,

and whether they regularly attend school when determining whether they are well-

settled. Lozano, 572 U.S. at 17, 134 S. Ct. at 1236 (collecting cases).

      The children have been living in the United States since December 2017,

when Alvarez Romero brought them here. They have been enrolled in school in

the United States since January 2018, when he first enrolled them. They have

changed school districts only once—when they moved to Georgia in November

2018. Both children are doing well in school, as evidenced by their teachers’

testimony and various awards they have received. Before the onset of the Covid-

19 pandemic, both children were involved in numerous extracurricular activities,

including music lessons, skating, swimming, and soccer. They have close

friendships at school and in their neighborhood. They also spend time with their

half-brother, who visits regularly from Alabama.


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      The district court noted that Gajardo Bahamonde is not a homeowner, does

not appear to have an independent source of income, and is currently unmarried.

But those factors alone are not dispositive in determining the stability of the

children’s lives in the United States. In addition, Gajardo Bahamonde is engaged

to be married, and she and the children live with her fiancé.

      We also note that Gajardo Bahamonde appears to have more support in the

United States than she did in Chile. Whereas Alvarez Romero left her and the

children to fend for themselves without housing or money for food, in the United

States the children have stable housing and can spend their time on schoolwork and

extracurricular activities rather than selling clothes and baked goods to get by.

      Alvarez Romero places great weight on the fact that Gajardo Bahamonde

and the children are currently not in lawful immigration status, a situation he

created by leaving the children in the United States without their passports. But

expert testimony indicated that Gajardo Bahamonde and the children are not under

immediate threat of removal. Notably, the threat of removal is even more remote

now, after Immigration and Customs Enforcement (“ICE”) revised its enforcement

priorities. See Memorandum from Tae D. Johnson, Acting Director ICE, Interim

Guidance: Civil Immigration Enforcement and Removal Priorities (2021),

https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-

enforcement_interim-guidance.pdf.


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   E. The Children Would Face a Grave Risk of Harm if Returned to Chile

      The Hague Convention states that a child does not have to be returned if

“there is a grave risk that his or her return would expose the child to physical or

psychological harm or otherwise place the child in an intolerable situation.” Hague

Convention Art. 13(b). The retaining parent must show that the child faces a grave

risk of harm by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A).

“[S]ufficiently serious threats and violence directed against a parent can . . . pose a

grave risk of harm to a child.” Gomez v. Fuenmayor, 812 F.3d 1005, 1010 (11th

Cir. 2016).

      The record clearly establishes that ABB and PDCB would face a grave risk

of harm if returned to Chile. For years, Alvarez Romero physically and verbally

abused Gajardo Bahamonde, including beating her so severely that she miscarried

and breaking her ribs and nose. The children witnessed numerous incidents of

abuse, to the extent that they underwent court-mandated mental health treatment.

And when Gajardo Bahamonde was finally able to leave this abusive relationship,

Alvarez Romero left her and their children homeless and hungry. Alvarez Romero

abused drugs while caring for his children, including in their presence.

      Alvarez Romero challenges the district court’s factual findings. He argues

that the district court should have credited his and his mother’s testimony denying

abuse instead of crediting Gajardo Bahamonde, ABB, and Loyola’s testimony


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describing his abuse and other disturbing behavior. But Alvarez Romero again

fails to show that the district court’s credibility determinations were clearly

erroneous. Alvarez Romero says that the district court did not give enough weight

to the fact that Gajardo Bahamonde’s domestic violence petition against him in the

United States was denied. That argument is patently misleading as the petition was

dismissed (not denied) after Alvarez Romero fled to Chile rather than appear

before the Florida court. He also says that her allegations that he sexually abused

her in the United States are not credible because they went to Disney World

together. That argument is a non sequitur.4

       Alvarez Romero also insists that because Gajardo Bahamonde recanted a

petition for a restraining order in Chile, this shows her allegations of abuse are all

false. But Gajardo Bahamonde testified that she only recanted the petition after

Alvarez Romero threatened her. And even in the report reflecting the recantation,

there is an indication that a third party expressed concerns for Gajardo Bahamonde

and the children’s safety and advised that the Family Court be informed of their

situation. We see no basis for displacing the district court’s findings that the

testimony that Alvarez Romero abused Gajardo Bahamonde for years was credible

and his denials were not credible.


4
 Alvarez Romero also repeats his contention that the children could not have been hungry and
homeless in Chile because he paid for their school and health insurance. Again, school and
health insurance do not provide shelter and food. There is no inconsistency there.
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      We also note that the record reflects other inconsistencies in Alvarez

Romero’s statements that support an adverse credibility finding against him. For

example, he gave conflicting testimony as to whether he owned the company that

he claims to have taken a leave of absence from when he took the children to the

United States. He also said that as of December 2019, he did not know where his

children were. But his own expert witness stated that Alvarez Romero knew their

address in Georgia as early as November 2019.

   F. The District Court Did Not Abuse Its Discretion When It Denied Alvarez
      Romero’s Request to Obtain Transcripts from the Ex Parte Hearing About
      Gajardo Bahamonde’s Attorney’s Motion to Withdraw

      Finally, we address Alvarez Romero’s challenge to the district court’s denial

of his request to obtain transcripts from the ex parte hearing where the district

court considered Gajardo Bahamonde’s motion to permit her counsel to withdraw.

      Alvarez Romero takes issue with a parenthetical observation the district

court included in a pretrial memorandum, noting that Gajardo Bahamonde’s fiancé

appeared to be supportive. The district court made this observation during the ex

parte hearing. But the district court also clarified that “will only be a factor if he

does, in fact, testify.” The district court did make a factual finding that Gajardo

Bahamonde’s relationship with her fiancé is stable and that the children “feel safe

and settled” with him, but that was based on evidence in the record, including

ABB’s testimony.


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      The ex parte hearing did not address any substantive issues regarding

Alvarez Romero’s petition. And even if Alvarez Romero were correct that it is

relevant to the well-settled defense (he is not), we affirm the district court’s denial

of his petition on the separate ground that both children would be subject to a grave

risk of harm if returned to Chile. Therefore, the transcripts would not help Alvarez

Romero even if they were relevant.

      AFFIRMED.




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