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Dias v. De Souza

United States District Court, D. Massachusetts

July 28, 2016





         Marina De Aguiar Dias (“Petitioner”) has filed a Verified Emergency Petition for Return of Child and Warrant of Arrest in Lieu of Writ of Habeus Corpus (Docket No. 1) (“Petition”). She seeks the return of her thirteen-year-old daughter, H.D., to Brazil pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, T.I.A.S. No. 11670 (“Convention”), as implemented by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §9001 et. seq. (formerly 42 U.S.C. §11601). Petitioner claims that H.D.’s father, Leonardo Emmanuel Leonocio De Souza (“Respondent”), wrongfully retained H.D. in the United States. Petitioner has also requested an order pursuant to 22 U.S.C §9007(b)(3) requiring Respondent to pay necessary expenses incurred by her during the course of these proceedings and transportation costs related to H.D.’s return to Brazil.

         Respondent opposes the Petition on the grounds that: (1) Petitioner did not establish that H.D. was wrongfully retained within the meaning of Article 3 of the Convention; (2) Under Article 13(b) of the Convention, there is a grave risk that H.D.’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation; (3) Under Article 13 of the Convention, H.D. objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views; and (4) Under Article 12 of the Convention, H.D. is “well-settled” in the United States. For the reasons set forth below, the Petition is granted.

         Procedural History

         The Petition was filed on May 4, 2016. See Docket No. 1. Petitioner concurrently filed an Emergency Motion for Ex Parte Relief (Docket No. 3), requesting an order prohibiting the removal of H.D. from the jurisdiction of this Court, an order requiring immediate surrender of H.D.’s travel documents, an order directing Respondent to immediately provide Petitioner with access to H.D., and an order commanding Respondent to appear before the Court forthwith to show cause why H.D. should not be returned to her habitual residence, i.e. Brazil. That motion was granted following an ex parte hearing held on May 6, 2016.

         On May 13, 2016, the Court held a Show Cause Hearing. Respondent, who appeared pro se, requested additional time to retain counsel. That request was granted, and the Show Cause Hearing was continued until June 13, 2016. On June 10, 2016, Respondent, through counsel, filed an Answer to Petitioner’s Emergency Petition (Docket No. 12) (“Answer”).[1] Respondent also filed a Demand for Trial by Jury (Docket No. 13). On June 13, 2016, the Show Cause Hearing was held and this Court heard testimony from Respondent, Petitioner, and Petitioner’s current husband, Marcio Faria Oliveira Martins.[2] The Court declined Respondent’s request to hear testimony from H.D. in connection with Respondent’s “grave risk” defense. See Kufner v. Kufner, 519 F.3d 33, 40 (1st Cir. 2008)(“No part of the Hague Convention requires a court to allow the child to testify or to credit the child’s views, so the decision rests within the sound discretion of the trial court”). Respondent’s counsel did not request that this Court interview H.D. in connection with the “mature child” defense under Article 13, which is separate and distinct from the “grave risk” defense under Article 13(b). Although counsel made a brief reference to the mature child defense when requesting that the Court interview H.D., he did not explicitly ask the Court to pursue this line of questioning with her.[3] Moreover, he did not argue or mention that defense in his opening statement, and there was no testimony proffered on the issue of whether H.D. presently objects to returning to Brazil. The Court thus finds that Respondent waived the mature child defense under Article 13. In any event, for reasons stated later in this opinion, I find that even if properly preserved, Respondent has also failed to establish that H.D. has attained an age and degree of maturity at which it is appropriate to consider her views.



         H.D. is a thirteen-year-old native of Brazil. See Petition, at Ex. C; Answer, at Ex. A. Petitioner is H.D’s biological mother, and Respondent her biological father. See id. At the time of H.D.’s birth, Petitioner and Respondent lived together in Brazil as an unmarried couple. They separated approximately three years after H.D.’s birth, and have not lived together since. Following the separation, Petitioner and H.D. lived together in a house located in the Caixa D’Agua (“Water Box”) neighborhood of Salvador, Bahia, Brazil, which they shared with Petitioner’s parents and grandmother.[5] Respondent lived apart from H.D. and Petitioner, but remained in Brazil until May 2013, when he moved to Massachusetts. Resp.’s Aff., at ¶ 4.

         On June 13, 2015, accompanied by Respondent’s mother and with Petitioner’s permission, H.D. left Brazil to temporarily visit Respondent in Worcester, Massachusetts. H.D. traveled to the United States using a round-trip plane ticket that included a return flight to Salvador, Brazil on July 7, 2015. See Petition, at Ex. A. Respondent testified that upon H.D.’s arrival, his mother told him that H.D.’s home in Brazil was unsanitary due to Petitioner’s father and grandmother’s compulsive hoarding. According to Respondent, he then approached H.D., who confirmed that the mother’s report was true and clearly expressed to Respondent that she wanted to stay with him in the United States. Respondent also stated in his affidavit, but did not testify, that H.D. told him she was “afraid to return to Brazil, ” and that she “said repeatedly that she is afraid in Salvador.”[6] Resp.’s Aff., at ¶¶ 10, 14. On June 18, 2016, Respondent and his mother called Petitioner and asked for her permission to keep H.D. in the United States. Petitioner declined to give her permission, but Respondent nevertheless kept H.D. in the United States over Petitioner’s objection. Since her entry into the United States on June 14, 2015, H.D. has lived in Worcester, Massachusetts with Respondent, Respondent’s wife, and Respondent’s four-year-old daughter in an apartment located in Worcester’s “Main South” neighborhood. See Petition, at Ex. A.


         Respondent represented in his Answer that he is lawfully present in the United States as an F-1 nonimmigrant student.[7] See Ex. B. He testified that he is currently in the process of changing his immigration status, and represented in his Proposed Findings of Fact and Conclusions of Law that he “has intentions to permanently reside in the United States.” He also testified that H.D. is currently lawfully present in the United States as an F-2 dependent of a nonimmigrant student. However, he has provided no documentation in support of that claim.[8] Respondent testified that he works as a web developer, and stated in his affidavit that his job is “steady and gainful.”[9]

         Petitioner and Petitioner’s Husband

         Petitioner currently resides in Brazil. She works both morning and night shifts on weekdays as a physical education teacher, and her husband works “regular commercial hours” as a systems analyst. Petitioner and her husband have been together as a couple for about seven years, and married in May 2016. In or around March 2016, Petitioner moved from the house she shared with her parents and grandmother (and previously shared with H.D.) in the Water Box neighborhood of Salvador to a house which she now shares with her husband and his mother in Salvador’s Rio Vermelho (“Red River”) neighborhood. Both Petitioner and her husband testified that if H.D. returns to Brazil, she will stay at their current house in the Red River neighborhood, not at her former home in the Water Box neighborhood.[10]

         H.D.’s Living Conditions in Brazil and the United States

         Respondent asserts that H.D.’s former home in the Water Box neighborhood was unsanitary due to the hoarding of Petitioner’s father and grandmother. Respondent submitted photographs of three rooms in that house depicting clutter.[11] Answer, at Ex. C, pp. 1-3. In comparison, Respondent submitted photographs of three rooms in his current apartment, all of which appear clean.[12] Hearing Ex. 3. It is undisputed that Petitioner no longer lives at the house in the Water Box neighborhood depicted in the photographs, and likewise undisputed that she no longer lives with her parents and grandmother. Petitioner submitted photographs of various rooms in her current home that she shares with her husband and mother-in-law in the Red River neighborhood. Hearing Ex. 1. The rooms appear clean and clutter-free.

         Respondent asserts that Petitioner’s father, who formerly lived with Petitioner and H.D. in the Water Box house, suffers from mental illness.[13] Respondent testified that when he would visit the Water Box house, he would often observe Petitioner’s father scream, swear, and use racist and homophobic language in front of H.D. Respondent testified that when Petitioner’s father would use this language, he was talking to himself or yelling at a nonexistent neighbor in an abandoned house. Respondent testified that this behavior occurred daily. Petitioner and her husband both testified that Petitioner’s father does not suffer from mental illness. It is undisputed that if H.D. returns to Brazil, she would not live with Petitioner’s father.

         Respondent asserts that Petitioner did not properly care for H.D. in a number of ways. He testified that H.D.’s hygiene was poor when she lived with Petitioner in Brazil. When he would visit H.D., he would often notice that her clothing was dirty and stained. According to Respondent, H.D. would be so unclean that he often felt compelled to bring her to his house, bathe her, and change her clothes. He testified that when H.D. came to the United States, he and his wife had to “always” remind her to bathe herself, and also had to teach her to brush her hair and teeth on a regular basis. Petitioner did not testify on the subject of H.D.’s hygiene.

         Respondent also claims that H.D. did not have an adequate social life when she lived in Brazil. When H.D. was not in school, she would usually stay home, watch TV, and play video games. He testified that when he would call H.D. on weekends, she would often be at her house by herself, while Petitioner and her husband (then-fiancee) would be out “traveling” together. Petitioner’s husband testified, to the contrary, that he and Petitioner would spend time with H.D. on weekends. According to Respondent, H.D. is now a member of a church youth group, recently started attending jiu-jitsu classes, and generally has a more active social life than she had in Brazil.

         Petitioner and Respondent agree that H.D.’s grades, particularly in math, were poor when she lived in Brazil.[14] During the 2015-2016 school year, H.D. attended Sullivan Middle School in Worcester, Massachusetts, where her grades generally improved; Respondent submitted a report card from Sullivan showing exemplary grades, except for an “F” in math in one quarter. Hearing Ex. 4, at p. 2. Respondent testified that after H.D. came to the United States, he bought her books to teach her a “home-based” math education program called “Kumon.” He observed that the Kumon program helped H.D. improve her skills in math.[15] Petitioner testified that H.D. had a math tutor and was receiving extra help in math before she left for the United States.

         Petitioner testified that if H.D. is returned to Brazil, she will attend a school called “Integral.” According to Petitioner, schooldays at Integral consist of academic classes in the morning and extracurricular activities in the afternoon, including swimming and martial arts.

         Respondent offered evidence concerning crime and violence in Salvador. He cited a statistic in his affidavit indicating that “with approximately 60 homicides for every 100, 000 people, Salvador’s murder rate is more than double that of Rio De Janeiro which has 21.5 murders per 100, 000 people, ” Resp.’s. Aff., at ¶ 15, and testified that Salvador is located in a particularly dangerous region of Brazil. When asked during direct examination whether there was “any reason, if any, why [he] ...

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