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Diaz-Alarcon v. Flandez-Marcel

United States Court of Appeals, First Circuit

November 27, 2019

ALEJANDRO A. DÍAZ-ALARCÓN, Petitioner, Appellant,
v.
MICHELLE S. FLÁNDEZ-MARCEL, Respondent, Appellee.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

          Maricarmen Carrillo-Justiniano for appellant.

          Steven P. Lausell Recurt, with whom Rafael E. Rodríguez Rivera and Legal Aid Clinic, Community Law Office, Inc., Inter-American University of Puerto Rico were on brief, for appellee.

          Before Thompson, Kayatta, and Barron, Circuit Judges.

          THOMPSON, CIRCUIT JUDGE.

         It is not every day that a child-custody fight ends up in federal court. But here we are. Invoking the Hague Convention on the Civil Aspects of International Child Abduction ("Convention"), see Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10494-01 (Mar. 26, 1986), and its implementing statute, the International Child Abduction Remedies Act ("ICARA"), see 22 U.S.C. §§ 9001-11, Alejandro Díaz-Alarcón seeks return of his daughter from the United States to Chile. To protect her privacy, we will call the daughter "ADF." Opposing Díaz-Alarcón is ADF's mother, Michelle Flández-Marcel. A federal district judge denied Díaz-Alarcón's petition. He appeals. We affirm.

         Setting the Stage

         Legal Basics

         Over one hundred countries - including the United States and Chile - are contracting parties to the Convention. See Status Table, HCCH, https://www.hcch.net/en/instruments/conventions/status-table/?cid=24 (last visited Nov. 26, 2019). Broadly speaking, the Convention aims to deter parents from abducting their children to a country whose courts might side with them in a custody battle. See Darín v. Olivero-Huffman, 746 F.3d 1, 7 (1st Cir. 2014); see generally Mozes v. Mozes, 239 F.3d 1067, 1069 (9th Cir. 2001) (noting that "[d]espite the image conjured by words like 'abduction' and 'force,' the Convention was not drafted in response to any concern about violent kidnappings by strangers" - instead, "[i]t was aimed . . . at the unilateral removal or retention of children by parents, guardians or close family members" (some quotation marks omitted)).[1] A federal statute - ICARA - implements the Convention by (among other things) allowing a parent to petition a federal or state court to return an abducted child to the child's country of habitual residence. See 22 U.S.C. § 9003(b). To prevail, the party seeking relief must establish by a preponderance of the evidence that the abductor "wrongfully removed or retained [the child] within the meaning of the Convention."[2] Id. § 9003(e)(1).

         A petition-receiving court may not decide who should have custody, however. See Darín, 746 F.3d at 8; see also Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000) (noting that because "[c]ourts are not to engage in a custody determination," it matters not "who is the better parent in the long run") (second quotation quoting Núñez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995)). And with narrow exceptions, the court must return the child to her country of habitual residence so that the courts of that country can decide. See Darín, 746 F.3d at 8 (recognizing that "the Convention establishes a strong presumption in favor of returning a wrongfully removed or retained child").

         As for the exceptions, we mention only two. The first is that a petition-receiving court need not order a return if "there is a grave risk that . . . return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation," see Convention, art. 13(b)[3] - and it's important to keep in mind (for reasons that will become clear later on) that when the alleged type of risk is "sexual abuse of a young child," the "policy of this country in enforcing the . . . Convention . . . is to view sexual abuse as an intolerable situation." See Danaipour v. McLarey, 286 F.3d 1, 14-15 (1st Cir. 2002) (from now on, Danaipour I).[4] The second is that a petition-receiving court need not order a return if "the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [his or her] views." See Convention, art. 13.

         So as not to diminish the Convention's policy against unsavory forum shopping, courts construe these exceptions narrowly, see Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir. 2010) - plus all facts supporting the grave-risk exception must be proved "by clear and convincing evidence, "[5] and all facts supporting the child-objection exception must be proved "by a preponderance of the evidence." See 22 U.S.C. § 9003(e)(2)(A), (B).

         The Abduction[6]

         Díaz-Alarcón and Flández-Marcel are Chilean nationals. Flández-Marcel gave birth to their daughter, ADF, in 2008, in Santiago, Chile. Díaz-Alarcón and Flández-Marcel married in 2009, separated in 2011, and divorced in 2014. They agreed that Flández-Marcel would have patria potestad (meaning "parental power") over ADF, but that Díaz-Alarcón would have a "direct and regular relationship" with ADF through scheduled visits.

         Rewind to 2011, after Díaz-Alarcón and Flández-Marcel had separated. Flández-Marcel met and began dating Héctor Pérez-Babilonia, a Puerto Rico resident. ADF eventually started spending time with Pérez-Babilonia. And in 2013 Díaz-Alarcón overheard ADF call Pérez-Babilonia "dad." Díaz-Alarcón, in his own words, "told [ADF] off," explaining that Pérez-Babilonia "wasn't her dad."

         A few months later, Flández-Marcel had ADF evaluated by a child psychologist. And ADF got diagnosed with a possible "[a]djustment [d]isorder." The staff there also interviewed Díaz-Alarcón, Flández-Marcel, and Pérez-Babilonia. Díaz-Alarcón said that both he and Flández-Marcel had verbally and psychologically abused each other. Flández-Marcel, for her part, accused Díaz-Alarcón of psychologically abusing her. After the interviews, a social worker concluded that ADF had

[a]lienation [s]yndrome, which describes the change that occurs when there are conflictive marital break ups, in which the children censure, criticize or reject one of their parents in an unjustified and/or exaggerated manner. This implies that one parent systematically and consciously programmes the children to denigrate the other.

         Another social worker said that "it was demonstrated" that Díaz-Alarcón had not "mistreat[ed]" ADF, though adding that "it was demonstrated that the parents handled the family dynamic badly, often being prone to including the girl in conflicts between [them]."

         Fast forward to 2014, a couple of weeks after Díaz-Alarcón and Flández-Marcel got divorced. Flández-Marcel asked the authorities in Santiago to issue a protective order for ADF and her against Díaz-Alarcón, accusing him of having committed the crime of "threatening with no aggravating circumstances against persons" (excess capitalization omitted). The authorities issued the protective order, telling the police to give "priority status" to calls from Flández-Marcel and to "periodic[ally] patrol[]" her neighborhood. But they eventually closed the matter after the investigation unearthed no "information required to continue the case."

         A few months later, in 2015, just before she married Pérez-Babilonia, Flández-Marcel asked a Chilean family court for permission to move to Puerto Rico for one year with ADF. In her petition, Flández-Marcel claimed that Díaz-Alarcón could not "be located." After somehow learning about the petition, Díaz-Alarcón formally opposed Flández-Marcel's request in papers filed with the court, saying she knew where he was and accusing her of being an unfit mother. The Chilean court then ordered Flández-Marcel to undergo a psycho-social evaluation, focusing on her parenting skills. A social worker interviewed ADF as part of the process. And ADF told her that Díaz-Alarcón

is a fighter[;] he always hits with a closed fist. I've seen it. If I say something to him, he hits me. If I ask him a question, he hits me. If I ask him if we can go to the park, he hits me. That's how he was taught; violently. His mum and dad told me. Some other days he does not hit.

         Asked by the social worker "to think of some positive aspects of her dad," ADF said that Díaz-Alarcón is "a happy and loving person" who "gives kisses" and "affection." But she added that he "doesn't listen" when she tells him "he shouldn't hit [her] anymore."

         After reviewing the evaluation, the Chilean court pushed Díaz-Alarcón and Flández-Marcel to reach an agreement. And they eventually did, agreeing, for example, that Flández-Marcel could take ADF to Puerto Rico from December 26, 2015 to March 26, 2016 and that Díaz-Alarcón would have "constant communication" with ADF as well as "additional days of visits" when she returned to Chile. The Chilean court entered the agreement as a final and enforceable judgment.

         According to Díaz-Alarcón, Flández-Marcel and ADF were supposed to fly to Puerto Rico on December 26. But because the two did not have return tickets, they could not board the plane. So they flew out on December 27 instead.

         Once there, Flández-Marcel enrolled ADF in school for the semester starting in January 2016. Early in January, ADF had a Skype call with Díaz-Alarcón. Flández-Marcel was present too. ADF told Díaz-Alarcón that she never wanted to speak with him again. He asked her why. And she, according to Flández-Marcel, just screamed, "Cut, cut, cut." So Flández-Marcel cut the call short.

         Flández-Marcel repeatedly asked ADF what was going on. According to Flández-Marcel, at first ADF would not say. But one day - after learning that Flández-Marcel was pregnant - ADF started hitting her and then screamed, "Don't bathe me, don't bathe me, don't bathe me." "Who is going to bathe you?" Pérez-Babilonia asked. "Don't ask me," ADF said.

         At some point (apparently in January or February 2016), ADF told Flández-Marcel and Pérez-Babilonia the following - at least according to Flández-Marcel's expert witness, Dr. Carol Romey: During a visit to his home when she was 5, Díaz-Alarcón had her take off her clothes to take a bath. He took off his clothes too, got into the tub, touched her "private parts," and (per Pérez-Babilonia) had her touch his. She then saw a "white-yellow liquid come out of his penis." After, he beat her ...


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