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finding a twelve year old sufficiently mature to have his views taken into account
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Case No. 2:20-cv-14035-KMM
2020-07-02
Cesar Leonel Gil COLON, Petitioner, v. Salinda Emperatriz MEJIA MONTUFAR, Respondent.
Anna Marie Gamez, Holland & Knight, Miami, FL, Josh A. Rubin, Edward John O'Sheehan, Shutts & Bowen LLP, Fort Lauderdale, FL, for Petitioner. Brett Alan Barfield, Anna Marie Gamez, Holland & Knight, Miami, FL, Suzanne Marie Aldahan, Holland and Knight, Boca Raton, FL, for Respondent.
Anna Marie Gamez, Holland & Knight, Miami, FL, Josh A. Rubin, Edward John O'Sheehan, Shutts & Bowen LLP, Fort Lauderdale, FL, for Petitioner.
Brett Alan Barfield, Anna Marie Gamez, Holland & Knight, Miami, FL, Suzanne Marie Aldahan, Holland and Knight, Boca Raton, FL, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court following a bench trial held on April 13, 2020 and April 14, 2020. (ECF Nos. 58, 59); Transcripts of Bench Trial. (ECF Nos. 61, 62) On January 30, 2020, Petitioner filed a Verified Petition for the Return of the Parties’ Minor Child to Guatemala ("Pet.") (ECF No. 1). Therein, Petitioner seeks the return of his minor child, V.M.C.M. to Guatemala pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (Oct. 25, 1980) (the "Hague Convention" or "Convention"). In the Petition, Petitioner contends that V.M.C.M.’s mother, Salinda Emperatriz Mejia Montufar ("Respondent"), has retained the Parties’ minor child in the United States without his consent since approximately March 2019. Pet. ¶¶ 3–4.
References to the Bench Trial Transcripts shall be referred to as "Day ___ Trial Tr."
Pursuant to Federal Rule of Civil Procedure 5.2(a), the minor child's initials are used in lieu of his full name and only his year of birth is stated. See Fed. R. Civ. P. 5.2(a)
On March 13, 2020, Respondent, pro se , filed four documents which, collectively, the Clerk of Court docketed as Respondent's Answer. (ECF No. 29). On March 20, 2020, Respondent, pro se , filed a written response addressing certain of Petitioner's allegations in the Petition. (ECF No. 31). On March 27, 2020, through counsel, Respondent filed her Supplemental Response to the Petition. ("Supp. Ans.") (ECF No. 36). The Parties submitted pre-trial proposed findings of fact and conclusions of law (ECF Nos. 50, 56) and post-trial proposed findings of fact and conclusions of law. See Respondent's Proposed Findings of Fact and Conclusions of Law ("Resp.’s Proposed Findings") (ECF No. 63); Petitioner's Proposed Findings of Fact and Conclusions of Law ("Pet.’s Proposed Findings") (ECF No. 64).
Having reviewed the pleadings, examined the evidence, observed the witnesses, and considered the arguments of counsel as well as the remainder of the record, the Court now enters its Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a). For the reasons set forth below, the Petition is DENIED.
To the extent that any finding of fact is more aptly characterized as a conclusion of law, or any conclusion of law is more aptly characterized as a finding of fact, the Court adopts it as such.
I. FINDINGS OF FACT
At trial, the Parties painted a greatly differing picture of their relationship and the events which transpired. However, a vast majority of what the Parties dispute is immaterial to the narrow determinations under the Hague Convention. To the extent that the disputed testimony is relevant to the Court's inquiry under the Hague Convention, the Court resolves the credibility issues between Petitioner and Respondent as to each specific issue.
Petitioner testified on his own behalf and offered the testimony of Ana Lucia Colon ("Ana Lucia") and Alan Turcios ("Alan"). Ana Luca is Petitioner's daughter from a previous relationship and V.M.C.M.’s half-sister. Day Two Trial Tr. 17:20–25, 51:17. She lives in Petitioner's home with Petitioner and her daughter. Id. 50:4–5. Alan is a family friend who has a child with Maria Colon, Petitioner's daughter from a previous relationship and V.M.C.M.’s half-sister. Id. 38:8–14, 23–39:3.
Respondent testified on her own behalf and offered the testimony of Yenifer Mejia ("Yenifer") and Julio Perez ("Julio"). Yenifer is Respondent's niece who lives in Guatemala. Day One Trial Tr. 14:4–5, 11–12. Julio is Respondent's husband who lives with Respondent and V.M.C.M. in Florida. Id. 81:9–12.
B. Factual Findings
i. V.M.C.M.’s Family Background
V.M.C.M. was born in 2007 in Guatemala. Pet.’s Ex. 2 (ECF No. 51–2). Petitioner and Respondent are the biological parents of V.M.C.M. See id. Additionally, Petitioner and Respondent both have children from prior relationships. See Day One Trial Tr. 45:1–2; Day Two Trial Tr. 7:9–11. Specifically, in addition to V.M.C.M., Petitioner has five children, including Ana Lucia, and Respondent has one son, Leo Mejia ("Leo"). See Day One Trial Tr. 45:1–2; Day Two Trial Tr. 7:9–11.
References to exhibits propounded by Petitioner at trial shall be in the following format: "Pet.’s Ex. ___." References to exhibits propounded by Respondent at trial shall be in the following format: "Resp.’s Ex. ___."
Petitioner and Respondent were never married but were in an intimate relationship from approximately 2006 to 2016. Day One Trial Tr. 45:9–10. V.M.C.M. lived with Respondent and Petitioner at Petitioner's house for the first nine years of his life. Id. 60:22–24; Day Two Trial Tr. 8:24–25. Sometime in 2016, Petitioner and Responded ended their relationship and Respondent and V.M.C.M. moved out of Petitioner's house. Day One Trial Tr. 62:4–9, 63:4–5. Respondent had primary custody and V.M.C.M. would visit Petitioner on the weekends. Id. 19:11–13; Day Two Trial Tr. 51:5–6. At some point during the fall of 2018, V.M.C.M. moved in with Petitioner full-time but moved back in with Respondent prior to March of 2019. Day One Trial Tr. 45:17–25, 63:11–18; Day Two Trial Tr. 9:9–13, 30:4–10.
The Parties dispute the reason why V.M.C.M. requested to live with Petitioner and the length of time that V.M.C.M. lived with Petitioner. Day One Trial Tr. 41:21–25, 63:8–24; Day Two Trial Tr. 42: 8–12, 51:12–52:3. However, the reason why V.M.C.M. requested to live with Petitioner is immaterial to the instant matter. Moreover, record is clear that V.M.C.M. was living primarily with Respondent prior to March of 2019. Day Two Trial Tr. 30:4–13, 42: 8–12.
ii. Gang Members Threaten V.M.C.M. and Respondent Absconds with V.M.C.M.
In March of 2019, on two separate occasions, a group of unknown men threatened V.M.C.M. outside of his school. Specifically, these men attempted to recruit him into a gang, and threatened to harm him if he did not join their gang. Expert Report of Dr. Firpi ("Expert Report"), Resp.’s Ex. 24, (ECF No. 54) at 5–6; Day One Trial Tr. 46:20–22. The first time these men threatened V.M.C.M. was on Friday, March 15, 2018. Day One Trial Tr. 46:21–24. V.M.C.M., who was alone, was approached by men wearing face coverings, who told him that they were going to recruit him and teach him to sell drugs and kill. Id. 47:13–17; Expert Report at 5. Further, they told him that if he told anyone, then they would kill him and his family. Expert Report at 5.
The second time that these men threatened V.M.C.M. was on Monday, March 18, 2019. Day One Trial Tr. 48:2–4. On that day, Respondent accompanied V.M.C.M. to school, and a group of men approached and threatened Respondent and V.M.C.M. Id. 48:7–20. Specifically, these men told Respondent and V.M.C.M. that V.M.C.M. will join them and sell drugs, or they will kill Respondent and V.M.C.M. Id. V.M.C.M. was disturbed by these two incidents. Id. 47:21–24, 70:14–17. On March 20, 2019, Respondent reported the incident to the police, who informed her that there was nothing that they can do because Respondent cannot identify the men. See generally Resp.’s Ex. 3 (ECF No. 53–3); see also Day One Trial Tr. 50:8–13.
Petitioner unsuccessfully attempts to impeach Respondent's evidence that V.M.C.M. was disturbed by the threats. Namely, Petitioner, Alan, and Ana Lucia testified that they did not see any unusual behavior from V.M.C.M. and that he was a "generally happy kid." Day Two Trial Tr. 16:13–19, 42:21–23; 52:8–15. However, the Court does not find this testimony credible. Specifically, none of these witnesses testified as to V.M.C.M.’s demeanor after Friday, March 18, 2019, when the men threatened him. Id. 52:8–15. Rather, Petitioner and Ana Lucia only provided vague assurances that they did not see any unusual behavior from V.M.C.M. See id. 16:13–19, 42:21–23; 52:8–15. Notably, when asked when she last saw V.M.C.M., Ana Lucia vaguely responded that the last time she saw V.M.C.M. "was probably in [the] same month" that V.M.C.M. left Guatemala. Id. 52:4–10. Moreover, Alan testified that he had not seen V.M.C.M. since December of 2019. Id. 47:15–17 ("Q: So, you did not see [V.M.C.M.] at all in the year 2019? A: 2019, no, I wasn't able to because I do have a job, and, yeah, I didn't have the time to see him in 2019."). Therefore, the Court does not credit Petitioner, Ana Lucia and Alan's testimony that there was no change in V.M.C.M.’s demeanor after the men threatened V.M.C.M.
Thereafter, on March 22, 2019, with Petitioner's permission, Respondent took V.M.C.M. to visit her half-sister in Zacapa, Guatemala. Day One Trial Tr. 53:12–17. While in Zacapa, Leo, who lived with Respondent and V.M.C.M., called Respondent and told her that a group of men came to their house looking for V.M.C.M. Id. 54:3–6. Leo told Respondent that the men had "taken him" and that Respondent should take V.M.C.M. away because V.M.C.M. was in danger from these men. Id. 54:8–9, 18–25. Because Respondent was concerned for the safety of V.M.C.M., she decided to flee Guatemala for the United States with V.M.C.M. See id. 55:20–23.
The next day, from Zacapa, Respondent and V.M.C.M. began the journey from Guatemala to the United States. Id. 55:8–13. Sometime thereafter, Respondent and V.M.C.M. entered the United States, eventually ending up in Florida. Id. 15:7, 44:17–18, 78:13–15. Petitioner did not give Respondent permission to bring V.M.C.M. to the United States and only learned that V.M.C.M. had left Guatemala after Respondent and V.M.C.M.’s arrival in the United States. Day Two Trial Tr. 12:24–13:14.
iii. Leo's Subsequent Involvement with MS-13
Respondent presented evidence that Leo became involved with MS-13 after Respondent and V.M.C.M. fled Guatemala. See, e.g. , Resp.’s Ex. 10 (ECF No 53–10), Resp.’s Ex. 12 (ECF No. 53–12). As noted above, Respondent testified that Leo told her that the men who came to the house looking for V.M.C.M. had taken Leo and he could not run away. Day One Trial Tr. 54:8–25. Further, Respondent presented evidence that Leo was arrested for crimes involving MS-13 in August of 2019 and February of 2020. See, e.g. , Resp.’s Exs. 10, 12.
As set forth more fully below, whether Leo was forced to join MS-13 in place of V.M.C.M. does not affect the Court's analysis or conclusion. Therefore, the Court makes no finding as to whether Leo was forced to join MS-13 in place of V.M.C.M.
iv. V.M.C.M.’s Communication with Petitioner Since Arriving in the United States
The Parties do not dispute that there has been limited communication between V.M.C.M. and Petitioner since V.M.C.M.’s arrival in the United States. However, the Parties dispute the cause of the limited communication between V.M.C.M. and Petitioner. The Court will first set forth its credibility determinations of the witnesses who testified as to the limited communication between V.M.C.M. and Petitioner and then set forth its factual findings as to the communication between V.M.C.M. and Petitioner.
As set forth more fully below, the cause of the lack of communication is relevant for the Court's determination of whether V.M.C.M.’s objection is the product of any undue influence on the part of Respondent. As such, the Court's findings are narrowly limited to whether the lack of communication is attributable to Respondent.
1. Credibility Determinations of Witnesses Who Testified as to Limited Communication Between V.M.C.M. and Petitioner
The Parties dispute the reason why there has been a lack of communication between V.M.C.M. and Petitioner. Namely, Petitioner testified that the lack of communication between V.M.C.M. is the result of Respondent's interference. Day Two Trial Tr. 24:25–15; see also Pet.’s Proposed Findings ¶¶ 15–16. In contrast, Respondent testified that she did not prevent Petitioner from communicating with V.M.C.M. and the lack of communication is the result of Petitioner's refusal to speak to V.M.C.M. Day One Trial Tr. 31:4–7. As set forth more fully below, the Court does not find that Respondent, Petitioner and Ana Lucia's testimony on this issue to be credible. However, considering the evidence as a whole, the record evidence establishes that the lack of communication was not the result of Respondent's actions.
First, the Court does not credit Petitioner's testimony that he was unable to speak with V.M.C.M. because of Respondent's interference. Notably, Petitioner's testimony directly contradicts Petitioner's allegations in the Verified Petition, which he signed under oath, and Petitioner's argument in his Proposed Findings. Specifically, Petitioner testified, and the evidence indicates, that he did not attempt to contact V.M.C.M. after V.M.C.M. arrived in the United States. Day Two Trial Tr. 32:11–33:9. And, in the Verified Petition, Petitioner alleged that he made "exhaustive efforts" to contact V.M.C.M. and only gave up when he realized that his attempts were futile. Pet. ¶¶ 38–39. Further, even after testifying that he made no attempts to contact V.M.C.M., in his Proposed Findings, Petitioner continues to argue that he made exhaustive attempt to communicate with V.M.C.M. See Pet.’s Proposed Findings ¶¶ 15–16. At best, this contradiction is the result of an honest mistake, which makes the Court question Petitioner's reliability as a witness. At worst, Petitioner intentionally provided false information in the Verified Petition and Proposed Findings, which makes the Court question his credibility as a witness.
Second, the Court finds that Ana Lucia was misleading in her testimony about her communications with V.M.C.M. Specifically, Ana Lucia testified that she has been only able to speak with V.M.C.M. twice since he arrived in the United States because Respondent controlled who could speak with V.M.C.M. Day Two Trial Tr. 54:4–7, 55:16–56:13. However, as set forth more fully below, the record evidence indicates that V.M.C.M. made numerous attempts to call Ana Lucia, and Ana Lucia declined to answer V.M.C.M.’s calls. Resp.’s Ex. 8 (ECF No. 53–8) at 5–7. Thus, although it may be true that Ana Lucia only spoke with V.M.C.M. twice, it is misleading for her to testify that the lack of communication is the result of Respondent's control over who communicates with V.M.C.M. As such, the Court does not find the testimony of Ana Lucia to be credible.
Third, Respondent's testimony is inconsistent with record evidence. Specifically, Respondent testified that she never told Petitioner that he could not speak to V.M.C.M. until Petitioner sends his school records. Day One Trial Tr. 75:21–24. However, Petitioner proffered evidence of a text message conversation in which Respondent indicates that Petitioner cannot communicate with V.M.C.M. until he provides V.M.C.M.’s school records. Pet.’s Ex. 11 (ECF No. 51–11) at 6. As such, the Court does not find the Respondent's testimony to be credible on this issue.
2. Factual Findings as to Communications between V.M.C.M. and Petitioner
Petitioner and V.M.C.M. have had limited communication since V.M.C.M. arrived in the United States. Day Two Trial Tr. 24:20. Petitioner has not made any attempts to communicate with V.M.C.M. since V.M.C.M. has arrived in the United States. Id. 32:11–33:9. The first phone call between Petitioner and V.M.C.M. occurred in March of 2019, shortly after V.M.C.M.’s arrival in the United States, when Respondent informed Petitioner that Respondent and V.M.C.M. were in the United States and would not be returning to Guatemala. Id. 13:7–18. This phone call was short, lasting only ten or fifteen minutes. Expert Report at 3.
The record is not clear as to when, but at some point, Respondent told Petitioner that he was unable to contact V.M.C.M. until he sent Respondent V.M.C.M.’s school transcripts. Pet.’s Ex. 11 at 6. Moreover, the record shows that, despite Respondent's disapproval, V.M.C.M. was in communication with his sisters through Respondent's What's App, a mobile application that is a messaging service. See id. at 5 ("[D]on't reply because my mom is going to notice, I will write to you tomorrow at 10:30 in Guatemala[.]").
Thereafter, on October 22, 2019, Yenifer contacted Petitioner and asked him to contact V.M.C.M. Resp.’s Ex. 23 (ECF No. 53–23). Petitioner responded "[o]ne of these days I will contact [V.M.C.M.]" Id. In November of 2019, the next phone call between V.M.C.M. and Petitioner took place. Day Two Trial Tr. 24:23–24. The call was initiated by V.M.C.M. Id. 32:17–33:3. Although the second phone call lasted for about an hour, Petitioner only spoke to V.M.C.M. for about ten minutes, and the remainder of the call was between V.M.C.M. and one of his sisters. Id. 34:16–22.
Thereafter, on January 24, 2020, Respondent and Ana Lucia communicated via Facebook Messenger. See generally Resp.’s Ex. 5 (ECF No. 53–5). Ana Lucia asked Respondent why she has not heard from V.M.C.M. and asked if she could speak with him. See generally id. Respondent indicated that V.M.C.M. will call in an hour. Id. at 6. Further, the Facebook messages indicate that V.M.C.M. called Ana Lucia numerous times and on different days, which she declined to answer. See id. at 7–8. For example, on January 25, 2020, V.M.C.M. called Ana Lucia and she did not answer. Id. at 7. Moreover, on the same day there is a Facebook message from V.M.C.M. to Ana Lucia at 11:54 a.m. stating "I called but I think you are busy. Ok, I'll call you later, Ana Lucia." Id. Then, on the same day, at 10:14 p.m., there is a message from V.M.C.M. to Ana Lucia which states "I've been calling but you're not picking up, good night." Id. Ana Lucia did not respond to either of these messages. See id.
In conclusion, upon consideration of the evidence as a whole, the Court finds that the lack of communication was not attributable to Respondent's actions. Although Respondent initially told Petitioner and his family not to contact V.M.C.M., at some point, she and V.M.C.M. began attempting to communicate with Petitioner and Petitioner's family. See Pet.’s Ex. 11 at 6; Resp.’s Ex. 23. And, Petitioner and Petitioner's family declined to answer any of V.M.C.M.’s calls. See Resp.’s Exs. 5, 23 at 7–8. Further, Petitioner does not dispute that he did not make any attempts to communicate with V.M.C.M. Day Two Trial Tr. 32:11–33:9.
Moreover, Petitioner provided a number of reasons for not communicating with V.M.C.M. that are unrelated to Respondent, indicating that the lack of communication was at least partially the result of factors unrelated to Respondent. See, e.g., Expert Report at 3; Day Two Trial Tr. 33:13–18. Although the Court does not make any findings as to why Petitioner did not attempt to communicate with V.M.C.M., the evidence establishes that the lack of communication was not the result of any interference by Respondent.
Petitioner stipulated to Respondent's Expert, Dr. Firpi, as an expert and the Court recognized him as such. Day One Trial Tr. 93:7–10.
Respondent retained clinical psychologist, Miguel Firpi, PhD ("Dr. Firpi") to assist the Court with its analysis of Respondent's defenses. See generally Expert Report. Namely, Dr. Firpi evaluated V.M.C.M. to opine on V.M.C.M.’s maturity and his objections to being repatriated. Day One Trial Tr. 98:5–11. On April 3, 2020, Dr. Firpi interviewed both the Petitioner and Respondent, met with and examined V.M.C.M., and issued a written report on April 10, 2020. Expert Report at 2–3. Further, Dr. Firpi testified at trial as to his findings.
Dr. Firpi concluded, both in his written report and at trial, that V.M.C.M. is quite mature for his age and that he has a strong and heart-felt objection to returning to Guatemala. Day One Trial Tr. 110:4–5 ("I think he's mature enough, and he verbally voiced an objection; a very emphatic objection."); Expert Report at 11 ("[The Child] is mature enough to independently form and state an opinion as to whether he objects to a return to Guatemala."). Moreover, Dr. Firpi opined that V.M.C.M.’s "opinion does not appear to have been the product of coercion, coaching or parental alienation." Expert Report at 12.
Moreover, Petitioner did not present any testimony or evidence impeaching or contradicting Dr. Firpi's opinion. First, during cross-examination, Petitioner questioned Dr. Firpi if, hypothetically, there would be an effect on a child's emotional well-being if a parent were to thwart communications between a child and the other parent. Day Two Trial Tr. 66:9–67:15. However, as noted above, the Court finds the lack of communication between V.M.C.M. was not the result of Respondent thwarting communications. Thus, Petitioner's hypothetical is inapplicable.
Second, Petitioner questioned Dr. Firpi if any of Dr. Firpi's concerns about V.M.C.M.’s mental health if he were to be returned to Guatemala would be alleviated if V.M.C.M. were to live with a child psychologist, or receive therapy. Day Two Trial Tr. 67:16–21. However, Dr. Firpi's response was consistent with his opinion in his report. Specifically, Dr. Firpi testified in response to this question that V.M.C.M.’s fear of being harmed by gang members may be alleviated with psychological therapy. See id. 68:3–20. Similarly, in Dr. Firpi's report he opined that "V.M.C.M. will need immediate support ... as he may experience significant emotional distress or even trauma by the return to Guatemala." Expert Report at 11. Thus, Petitioner did not present any evidence that impeaches or contradicts Dr. Firpi's findings. Further, the Court finds that Dr. Firpi's report was thorough and well-supported and his testimony was consistent with his report. As such, the Court finds the report and testimony Dr. Firpi to be credible and compelling.
Petitioner's daughter, Ana Lucia Colon, is a child psychologist and lives with Petitioner. Day Two Trial Tr. 55:14–15.
II. CONCLUSIONS OF LAW
A. The Hague Convention and ICARA
"To address ‘the problem of international child abductions during domestic disputes,’ in 1980 the Hague Conference on Private International Law adopted the [Hague Convention]." Lozano v. Montoya Alvarez , 572 U.S. 1, 4, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014) (quoting Abbott v. Abbott , 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) ). Subsequently, Congress "implemented the Convention's terms through International Child Abduction Remedies Act of 1988 [ ("ICARA"),] 22 U.S.C. §§ 9001 – 9011." Gomez v. Fuenmayor , 812 F.3d 1005, 1010 (11th Cir. 2016) (citation omitted). The Hague Convention is designed "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access." Hanley v. Roy , 485 F.3d 641, 644 (11th Cir. 2007) (quoting Hague Convention, pmbl.).
"Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies." 22 U.S.C. § 9001(a)(4) ; see also Abbott , 560 U.S. at 22, 130 S.Ct. 1983 ("Return is not required if the abducting parent can establish that a Convention exception applies."). However, "even if an exception is established, the Court has discretion to order the return of a child if return would further the aims of the Hague Convention." Marquez v. Castillo , 72 F. Supp. 3d 1280, 1284 (M.D. Fla. 2014) (citation omitted). Certainly, any affirmative defenses or "exceptions," are to be construed narrowly. See Ermini v. Vittori , 758 F.3d 153, 161 (2d Cir. 2014) (citation omitted); see also Gomez , 812 F.3d at 1011 ("As the Convention's official commentary has noted, narrow interpretations of the exceptions are necessary to prevent them from swallowing the rule and rendering the Convention ‘a dead letter.’ ") (citation omitted). Ultimately, ICARA's limited scope of inquiry mandates that courts must not "become mired in inquiries of who is the better parent or who occupies the nicer home." Pacheco Mendoza v. Moreno Pascual , No. CV 615-40, 2016 WL 320951, at *1 (S.D. Ga. Jan. 26, 2016) ; see also Ruiz v. Tenorio , 392 F.3d 1247, 1250 (11th Cir. 2004) ("The court's inquiry is limited to the merits of the abduction claim and not the merits of the underlying custody battle.") (citation omitted).
B. Discussion
As a threshold matter, the Parties stipulated on the record that Petitioner met his burden of presenting a prima facie case of wrongful removal or retention under the Convention. See Joint Notice of Stipulations for Final Evidentiary Hearing (ECF No. 49) ¶¶ 2–5. Accordingly, the Court now turns to whether Respondent has satisfied her burden of establishing an affirmative defense under the Convention.
In her Supplemental Answer and at trial, Respondent asserted the following affirmative defenses: (1) that the return of V.M.C.M. would expose him to a grave risk of physical or psychological harm or place him in an otherwise intolerable situation; and (2) that V.M.C.M. objects to returning to Guatemala and has reached an age and degree of maturity such that the Court should consider his views. See Supp. Ans. 4–7.
As discussed below in more detail below, the Court finds that: (1) Respondent has not established by, clear and convincing evidence, that returning V.M.C.M. to Guatemala would expose him to a grave risk of physical or psychological harm; and (2) Respondent has established, by a preponderance of the evidence, that V.M.C.M. is of a sufficient age and maturity that it is appropriate for the Court to consider his objections to repatriation.
1. Respondent Has Not Established, by Clear and Convincing Evidence, that Repatriating V.M.C.M. Would Expose Him to a Grave Risk of Physical or Psychological Harm
First, Respondent argues that the Court should deny the Petition because returning V.M.C.M. would put him in danger of being forcibly recruited or otherwise harmed by the gang members who threatened him. Supp. Ans. at 4–5. To succeed on a "grave risk" defense, a respondent must prove by clear and convincing evidence that "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); § 9003(e)(2)(A). "Clear and convincing evidence is a ‘demanding but not insatiable’ standard, requiring proof that a claim is highly probable.’ " Nejad v. Attorney Gen., State of Ga. , 830 F.3d 1280, 1289 (11th Cir. 2016) (citation omitted). " ‘[H]ighly probable’ is a standard that requires ‘more than a preponderance of the evidence but less than proof beyond a reasonable doubt.’ " Id. (citation omitted); see Ward v. Hall , 592 F.3d 1144, 1177 (11th Cir. 2010). Moreover, "[o]nly evidence directly establishing the existence of a grave risk ... is material to the court's determination." Gomez , 812 F.3d at 1012 (citation omitted).
" ‘Grave risk’ means something more than serious risk, but it does not have to be immediate." Taylor v. Taylor , No. 10-61287-CIV-Jordan, 2011 WL 13175008, at *8 (S.D. Fla. Dec. 13, 2011) aff'd 502 F. App'x 854 (11th Cir. 2012) (citing Charalambous v. Charalambous , 627 F.3d 462, 467 (1st Cir. 2010) ). "The level of risk and danger required to trigger this exception has consistently been held to be very high." Souratgar v. Lee , 720 F.3d 96, 103 (2d Cir. 2013) (citation omitted). To determine if this exception applies, courts consider both the magnitude of the potential harm and the probability that the harm will materialize. See id. (citation omitted).
Further, "[g]rave risk" does not encompass the normal problems and disruptions that a child might encounter if returned to his country of habitual residence. See Friedrich v. Friedrich, 78 F.3d 1060, 1067–68 (6th Cir. 1996). The United States Department of State has stated that an "intolerable situation" under Article 13b was not intended to encompass situations such as return to a home where money is in short supply, or where educational or other opportunities are more limited than in the new country. See Dep't of State Analysis, 51 Fed. Reg at 10510.
"Federal courts typically apply [the grave risk] defense if the children's return to one parent would result in some type of abuse or physical harm." Velasquez v. Funes de Velasquez , 102 F. Supp. 3d 796, 812 (E.D. Va. 2015) (citation omitted). However, courts have recognized that this exception may also apply where return of the child exposes the child to a risk of harm external to the custody dispute. See Friedrich , 78 F.3d at 1069. For example, a hazardous situation in the home country, such as war or famine, may constitute a grave risk. See id. Moreover, courts have found that third parties’ credible threats of harm to the respondent or the child may be indicative of future violence and, thus, constitute a grave risk of harm to the child. See, e.g., Velasquez , 102 F. Supp. 3d at 812 ; Taylor, 2011 WL 13175008, at *9.
Determining whether "the return of the child would subject [him or her] to a ‘grave risk’ of harm or otherwise place it in an ‘intolerable situation’ is a fact intensive-inquiry[.]" Simcox v. Simcox , 511 F.3d 594, 608 (6th Cir. 2007). The inquiry is not whether the child has been harmed in the past, but if repatriating the child will expose him or her to a grave risk of harm if repatriated. See Gomez , 812 F.3d at 1015. ("[T]he inquiry under the Convention is not whether the child had previously been harmed. Rather, the question is whether returning the child [to their home country] would expose her to a grave risk of harm going forward."). However, courts frequently look to the context of past abuse or threats to determine if this past behavior is indicative of future harm. See, e.g., Simcox , 511 F.3d at 607–08 (noting that courts should consider factors such as the nature and frequency of the abuse and likelihood of recurrence to determine if this exception applies); Taylor , 2011 WL 13175008, at *9.
As part of a contextual inquiry, courts will consider whether the risk of harm is specifically targeted at the child. First, a respondent cannot rely on evidence of general regional violence to establish a grave risk of harm, rather, there must be evidence of a specific risk of harm to the child. See Silverman v. Silverman , 338 F.3d 886, 901 (8th Cir. 2003). Second, courts have found that a threat aimed to achieve a specific objective may be indicative of future violence because a person may be likely to follow through on their threat to achieve that objective. See e.g., Velasquez , 102 F. Supp. 3d at 803 n.4 (noting that petitioner had been subject to previous extortion attempts and petitioner's wealth and status in the community made respondent and the children targets for extortion); Taylor , 2011 WL 13175008, at *9 (finding that threats made to induce the petitioner to repay a debt indicated a risk of future violence because the third parties may follow through on their threats to convince petitioner to repay the debt).
Further, the United States Court of Appeals for the Eleventh Circuit has held that, in some circumstances, the child's proximity to actual or threatened violence may establish a grave risk of harm notwithstanding the fact that the threats or violent attacks are directed at a person other than the child. See Gomez , 812 F.3d at 1014. For example, sufficiently serious acts of spousal violence may establish a high probability that the abusive spouse may someday lose control of his or her temper and inflict physical injury upon the child. See id. at 1014–15. Similarly, the Eleventh Circuit affirmed a district court's finding that violent acts directed at a person other than the child, such as gunshots, may have collateral damage beyond just the intended target, indicating that there is a grave risk of harm to those around the intended target, including the child. See Gomez , 812 F.3d at 1014–15.
Here, the Court finds that Respondent has not met her burden of presenting clear and convincing evidence that there is a grave risk that returning V.M.C.M. to Guatemala would expose him to physical or psychological harm or otherwise place the child in an intolerable situation. Hague Convention, art. 13(b). Specifically, Respondent relies on evidence that these men threatened V.M.C.M. and forced Leo to join MS-13 to establish that repatriating V.M.C.M. will expose him to a risk of harm from these men. See, e.g. , Resp.’s Ex. 10, 12. However, this evidence does not establish that these threats are indicative of future violence or harm. See Gomez , 812 F.3d at 1015.
Notably, Leo's involvement in MS-13 does not establish that it is highly probable that V.M.C.M. will be exposed to a risk of harm if repatriated. As noted above, acts of violence directed at others may pose a grave risk of harm to the child. See Gomez , 812 F.3d at 1014–15. However, Respondent has not provided evidence that members of MS-13 are highly probable to harm or forcibly recruit siblings of other gang members, similar to how it is highly probable that spousal abuse may lead to child abuse. See id. at 1014. Moreover, Respondent did not proffer evidence that Leo's involvement with MS-13 represents a "zone of danger" which may expose V.M.C.M. to a risk of harm. See id. at 1014–15. Thus, Leo's involvement with MS-13 does not establish that there is a high probability that repatriating V.M.C.M. will expose him to a grave risk of harm. Further, Respondent did not proffer evidence that these men have a continued interest in recruiting V.M.C.M. Specifically, more than a year has passed since the men threatened V.M.C.M., and Respondent did not present any evidence that these men have continued to target or seek out V.M.C.M. for recruitment. See Salguero v. Argueta , 256 F Supp. 3d 630, 640 (E.D.N.C. 2017) (finding that threats insufficient to warrant application of the "grave risk" exception where the respondent failed to offer evidence "that members of MS-13 [had] targeted, harassed, or otherwise threatened the child" in the eighteen months since the initial threat).
Similarly, Respondent has not shown that the threat of harm from MS-13 is specific to V.M.C.M. Critically, there is no evidence that that the men sought to recruit V.M.C.M. for any reason other than the fact that gangs seek to recruit young males to join their gang. See Day One Trial Tr. 30:16–18; 35:2–16. And, it is not sufficient for Respondent to proffer evidence that MS-13 forcibly recruits young males and, thus, V.M.C.M. may be forcibly recruited by MS-13. See Silverman, 338 F.3d at 901. Rather, Respondent must proffer evidence that if V.M.C.M. is repatriated, then these men, or other members of MS-13, will specifically seek out V.M.C.M. to recruit him or otherwise harm him, which Respondent did not do. See id.
Likewise, the lack of evidence establishing that these men threatened V.M.C.M. to achieve an objective that is specific to V.M.C.M. weighs against a finding that it is highly probable that these men will follow through on their threat. See Velasquez , 102 F. Supp. 3d at 803 n.4 ; Taylor , 2011 WL 13175008, at *9. For example, courts have found threats that are made for the purpose of extorting money from a wealthy family or forcing a person to repay a debt that he or she owes may establish a high probability that the threat remains an ongoing risk of harm. See Velasquez , 102 F. Supp. 3d at 803 n.4 ; Taylor , 2011 WL 13175008, at *9. In contrast, a threat made for the purpose of recruiting a young male into a gang does not support a finding that, after a significant period of time, it is highly probable that these men will follow through on their threat, rather than accepting failure and attempting to recruit a new target.
Moreover, the evidence shows that these threats were an isolated event, indicating that the risk of harm is not likely to resurface. See Salguero , 256 F Supp. 3d at 640 (citing Simcox , 511 F.3d at 609 ). Specifically, the evidence shows neither V.M.C.M. nor his family have been previously threatened or harmed by gangs. Day One Trial Tr. 69:14–20. Notably, V.M.C.M. told Dr. Firpi that he only had an abstract awareness about gangs and did not have any prior experience with gangs. Expert Report at 5. Further, Yenifer testified that, prior to Leo's recent involvement with MS-13, Leo was never involved with gangs. See Day One Trial Tr. 20:10–12, 34:22–24. As such, the evidence tends to show that these threats were an isolated event, which weighs against a finding that it is highly probable these threats will reoccur. Cf. Gomez v. Fuenmayor, No. 15-cv-24733, 2015 WL 12977397, at *8 (S.D. Fla. Apr. 29, 2015) aff'd 812 F.3d 1005 (11th Cir. 2016) (finding that "multiple threats and acts are indicative of a violence and dangerous environment, which would endanger the child if she were returned to Venezuela").
Respondent and Yenifer testified that Petitioner had been the subject of two extortion attempts from gangs, which Petitioner denies. Day One Trial Tr. 17:1–5; 68:22–24; Day Two Trial Tr. 22:1–10. The Court does not find Respondent and Yenifer's testimony to be credible. Specifically, neither Respondent nor Yenifer provided a basis for their allegation that Petitioner was subject to extortion attempts nor did they provide any detail supporting these allegations. See Day One Trial Tr. 17:1–5; 68:22–24. As such, the Court does not credit Respondent and Yenifer's testimony that Petitioner was previously subject to extortion attempts.
Thus, the Court finds that Respondent has not proffered clear and convincing evidence to establish that these threats would expose V.M.C.M. to a grave risk of harm if he is repatriated. The Court does not discount the risk of harm at the time that the threats were made nor the fear that Respondent and V.M.C.M. may have felt in response to these threats. However, this exception must be narrowly construed to effectuate the purposes of the Hague Convention. See Gomez , 812 F.3d at 1011 (citation omitted). Further, the grave risk of harm exception constitutes a very high bar, requiring clear and convincing evidence. See id. at 1015 ; see also Souratgar , 720 F.3d at 103 (citation omitted) ("The level of risk and danger required to trigger this exception has consistently been held to be very high."). As such, in light of the foregoing, the Court finds that Respondent has not met her burden to establish that the grave risk of harm exception warrants denying the Petition.
2. Respondent Has Established that V.M.C.M. is Sufficiently Mature, Objects to Being Repatriated and His Objection is Not the Product of Undue Influence.
Second, Respondent argues that the Court should deny the Petition because V.M.C.M. objects to returning to Guatemala and has reached an age and degree of maturity such that the Court should consider his views. Supp. Ans. 5–7.
"The drafters of the Convention sought to deter wrongful removals, but they also recognized that wrongfully removed children are not inanimate objects—they are people with agency of their own." Rodriguez v. Yanez , 817 F.3d 466, 475 (5th Cir. 2016). Thus, Article 13 of the Hague Convention provides that the Court "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 [his] views." Hague Convention, art. 13.
A court may deny a petition on the sole basis that the child objects to being repatriated. See Tsai–Yi Yang v. Fu-Chiang Tsui , 499 F.3d 259, 278–79 (3d Cir. 2007) (citing Blondin v. Dubois , 189 F.3d 240, 247 (2d Cir. 1999) ). However, when a child's " ‘wishes are the sole reason underlying a repatriation decision and not part of some broader analysis,’ such as whether the child would suffer a grave risk of harm if returned to his or habitual residence,’ courts must apply a stricter standard." Id. (quoting de Silva v. Pitts , 481 F.3d 1279, 1286 (10th Cir. 2007) ). Moreover, "[i]n making its determination, a court should also consider whether a child's desire to remain or return to a place is the product of undue influence, in which case the child's wishes should not be considered." Id. at 279 (citation and internal quotation marks omitted).
A respondent bears the burden to establish by a preponderance of the evidence that this exception applies. See § 9003(e)(2)(B); In re K.J. , No. 9:16-CV-80177-RLR, 2016 WL 874360, at *6 (S.D. Fla. Mar. 8, 2016). For this exception to apply the Court must find that (1) the child is sufficiently mature that the Court should take his views under consideration; (2) the child has a particularized objection to being repatriated; and (3) the child's objection is not the product of undue influence. See Tsai–Yi Yang , 499 F.3d at 279.
i. Sufficiently Mature
The Hague Convention provides no specific age at which a child is deemed sufficiently mature such that his opinion must be considered, see id. , nor does the Convention provide "objective criteria or tests for assessing ‘maturity’ in the context of the mature child exception." Haimdas v. Haimdas , 720 F. Supp. 2d 183, 205 (E.D.N.Y. 2010) (citation omitted). "Given the fact-intensive and idiosyncratic nature of the inquiry, decisions applying the age and maturity exception are understandably disparate." de Silva , 481 F.3d at 1287 (citation omitted).
Here, the Court finds that V.M.C.M., who was twelve (12) at the time of the Bench Trial, is sufficiently mature for the Court to take his view against repatriation into account. This age is consistent with other courts’ findings. See, e.g., Blondin v. Dubois , 238 F.3d 153, 167 (2d Cir. 2001) (affirming district court's finding that eight year old was sufficiently mature for the court to consider his view); Sadoun v. Guigui , No. 16-cv-22349, 2016 WL 4444890, at *10 (S.D. Fla. Aug. 22, 2016) (finding children aged fourteen and twelve were sufficiently mature to have their views taken into account); Lopez v. Alcala , 547 F. Supp. 2d 1255, 1259 (M.D. Fla. 2008) (finding ten year old child had sufficient maturity for his views to be taken into account); Matovski v. Matovski , No. 06-civ-4259, 2007 WL 2600862, *14–15 (S.D.N.Y. Aug. 31, 2007) (considering objections of twelve and eleven year old children in denying petition).
In support of this defense, Respondent offered Dr. Firpi's expert opinion that V.M.C.M. is sufficiently mature for the Court to take his objections into consideration. Expert Report at 11. First, Dr. Firpi finds that V.M.C.M. ability to understand and express mixed feelings as well as his ability to consider both the positive and negative aspects about his experiences, and his relationships as a signifier of maturity. Id. at 5, 10; see Díaz-Alarcón v. Flandez-Marcel , 944 F.3d 303, 309 n.12 (1st Cir. 2019) ("Importantly, [the child] had positive and negative things to say about her life [in her country of habitual residence], which showed that it was not a black-and-white decision but rather one that she had weighed and considered."). Notably, although V.M.C.M. demonstrated a negative attitude about Petitioner, he was able to demonstrate fairness and honesty when discussing Petitioner. Day One Trial Tr. 108:17–21.
Second, Dr. Firpi finds that V.M.C.M. has well-developed judgment and a social contract orientation, which is indicative of maturity. Expert Report at 9–10. Third, Dr. Firpri finds that V.M.C.M. is able to plan past obstacles, rather than becoming frustrated and seeking instant gratification as a less mature child would. Id. Based on his interview with V.M.C.M., Dr. Firpi concludes that "V.M.C.M. is mature enough to independently form and state an opinion as to whether he objects to a return of Guatemala." Id. at 11. The Court finds that Dr. Firpi's opinion to be thorough and well-supported. Thus, the Court finds that V.M.C.M. is sufficiently mature for his objections to be considered.
ii. Valid Objections
Next, the Court finds that V.M.C.M. has sufficiently stated a particularized objection. The text of the Convention restricts the age and maturity exception to cases in which the child states an objection, rather than a mere preference against repatriation. See Rodriguez , 817 F.3d at 476–77 ("Only an objection is sufficient to trump the Convention's strong presumption in favor of return."); Tsai-Yi Yang, 499 F.3d at 279. A child's objection is different from a child's wishes, as would be considered in a custody hearing. See Neumann v. Neumann , 310 F. Supp. 3d 823, 835 (E.D. Mich. 2018). "There is a substantive difference between preferring to live in one of two countries–when living in either country would be acceptable–and affirmatively objection to returning to one country–when living in that country would be unacceptable." Rodriguez , 817 F.3d at 466.
Here, V.M.C.M. objects to returning to Guatemala because (1) he fears reprisal from gang members; (2) he prefers to remain with Respondent rather than Petitioner; and (3) he perceives that there are better opportunities for him in the United States than in Guatemala. Expert Report at 11.
First, V.M.C.M. objects to returning to Guatemala out of fear of being forced to join MS-13 or otherwise being harmed by them. Dr. Firpi opines that this "objection is rooted primarily in fear or reprisals, physical harm, or even death at the hands of gang members[.]" Expert Report at 11. Moreover, Dr. Firpi testified that V.M.C.M. emphatically objected, and stated that he would rather be dead than live in fear of the gang members. Day One Trial Tr. 111:4–15. Thus, the Court finds that this objection is sufficiently particularized to state an objection to returning to Guatemala, not just a mere preference to remain in the United States. See Rodriguez , 817 F.3d at 466.
Second, V.M.C.M. objects based on his perception of his strained relationship with Petitioner. Although the instant inquiry is a limited one and courts should not consider the underlying custody dispute, courts will consider the child's objections pertaining to the petitioning parent. See, e.g. , Gutierrez v. Sandoval , No. 3:18-cv-01036, 2019 WL 3231276, at *4 (M.D. Tenn. July 18, 2019) (considering that the child finds that "the thought of going with his father was very stressful, as he has come to dislike spending time with [petitioner] for specific reasons"); Sadoun , 2016 WL 4444890, at *11 (crediting children's objections based on the petitioner's physical abuse and alcohol usage); McManus v. McManus , 354 F. Supp. 2d 62, 70–71 (D. Mass. 2005).
The basis of V.M.C.M.’s perception of his strained relationship with Petitioner is Petitioner's behavior. Expert Report at 12. For example, V.M.C.M. expressed that his father would call him demeaning names, physically discipline him, and ignore him. Id. at 4. The Court credits this objection because V.M.C.M. has set forth particularized reasons underlying this objection, rather than just a mere preference to remain with one parent. See McManus , 354 F. Supp. 2d at 70–71.
Finally, V.M.C.M. objects because he feels safe in the United States and feels that there are better opportunities for him in the United States. Expert Report at 7 & 12. Courts have held that a child's preferences such as "opinions about her school, friends, parents, and future success" are insufficient to meet the respondent's burden without the child having set forth particularized objections to returning to the home country. Jimenéz Blancarte v. Ponce Santamaria , No. 19-13189, 2020 WL 38932, at *7 (E.D. Mich. Jan. 3, 2020). Therefore, a preference to remain in the United States is not accorded much, if any, weight. See Valles Rubio v. Veintimilla Castro, No. 19-CV-2524(KAM)(ST), 2019 WL 5189011, at *20 (E.D.N. Y Oct. 15, 2019) ("[C]ourts tend to discount objections that are based more on a child's fancy rather than concerns of the future."); In re Skrodzki , 642 F. Supp 2d 108, 118 (E.D.N.Y. 2007) ("Even if life in the United States is moderately preferable to life in Poland for a young child, this Court must take seriously its obligation under the Hague Convention to return an abducted child to the country of its habitual residence."). Therefore, the Court does not attribute much weight to V.M.C.M.’s objection based on his preference to remain in the United States. Regardless, V.M.C.M. has stated a particularized objection to being repatriated based on his fear of being harmed by gang members and his perception of his strained relationship with Petitioner. As such, the Court finds that V.M.C.M. has sufficiently stated a particularized objection to being repatriated.
iii. Undue Influence
Additionally, the Court finds that V.M.C.M.’s objections are not the product of undue influence. "[I]f a court determines that the youngster's opinion is the product of undue influence, the child's wishes are not taken into account." de Silva , 481 F.3d at 1286 ; see also Walker v. Walker , 701 F.3d 1110, 1123 (7th Cir. 2012) (cautioning that "district court[s] must be attentive to the possibility that the children's views may be the product of ‘undue influence’ of the parent who currently has custody") (citation omitted).
Courts will consider the nature of the child's objection to determine if it is the product of undue influence. For example, courts should not credit an objection that does not seem to be based on the child's personal knowledge. See e.g., Haimdas , 720 F. Supp. 2d at 207 (finding the child's testimony was inconsistent with his siblings and that the child made statements about the petitioner's behavior that he could not have known firsthand); Giampaolo v. Erneta , 390 F. Supp. 2d 1269, 1286 (N.D. Ga. 2004) ("The Child remembers very little about Argentina and believes that Petitioner only wants to make her return to make Respondent sad."); Hazbun Escaf v. Rodriquez , 200 F. Supp. 2d 603, 615 (E.D. Va. 2002) (finding the child's objection appears to be the product of suggestion). In contrast, a detailed and particularized objection based on the child's firsthand experiences may tend to indicate that the objection is based on the child's independent thought. See McManus , 354 F. Supp. 2d at 70–71.
Moreover, courts will consider the behavior of the custodial parent. For example, an objection may be the product of undue influence if the custodial parent has prevented the other parent from communicating with the child. See Barrera Casimiro v. Pineda Chavez , No. Civ.A.1:06CV1889-ODE, 2006 WL 2938713 (N.D. Ga. Aug. 2, 2016). Notably, in Berrera Casmiro , the respondent did not permit the child to speak with petitioner until ordered to do so by the court. See id. at *7.
However, a lack of communication is not per se evidence of undue influence. See Vasconcelos v. Batista , 512 F. App'x 403, 406 (5th Cir. 2013) (finding a lack of communication between the petitioner and child did not result in undue influence because the lack of communication was attributable to the petitioner). Rather, a lack of communication is one factor, to be considered among all the evidence. For example, in Becerra Casmiro , the court found there were multiple indications of undue influence, including evidence that the child's objection appeared to be the product of suggestion. See 2006 WL 2938713, at *7.
Here, the Court finds that V.M.C.M.’s objections are the product of his own independent thought rather than the product of undue influence. First, Dr. Firpri opines that "V.M.C.M[’s] opinion does not appear to have been the product of coercion, coaching or parental alienation[.]" Expert Report at 12; Day One Trial Tr. 112:1–3. Moreover, Dr. Firpi opined that a greater degree of affiliation with one parent does not rob an adolescent of their ability to make independent decisions. Expert Report at 11. Further, Dr. Firpi finds that "V.M.C.M.’s maturity, behavior, and demeanor, as well [as] his current state of psychosocial development, make it improbable that he is merely a passive entity in this situation." Id. Additionally, Dr. Firpi finds that V.M.C.M. displayed honesty and fairness when asked if Petitioner spoke ill of Respondent. Id. at 10. Dr. Firpi notes that a child who has been unduly influenced would be unlikely to say anything positive or would take the opportunity to stress more negative attributes. Id.
Second, the nature of V.M.C.M.’s objections establish that V.M.C.M.’s objections are not the result of undue influence. Namely, V.M.C.M.’s objections are based on his personal experiences and he provides specific reasons underlying his objections. See McManus , 354 F. Supp. 2d at 71 (finding the children's testimony appeared to be their genuine thoughts and feelings where the children gave specific reasons for their objection). Notably, his objection based on fear of reprisals from the men who threatened him is based on a personal experience. See Expert Report at 9 (opining that V.M.C.M.’s experience of being threatened by gang members has resulted in anxiety and sleep disturbances). As to his perception that his relationship with Petitioner is strained, V.M.C.M. provided specific examples such as that Petitioner would get frustrated when helping V.M.C.M. with his homework, would physically discipline him, and call him demeaning names, indicating that this objection is based on personal experience rather than the product of suggestion. Id. at 4.
Third, considering the evidence as a whole, the Court does not find the lack of communication is evidence of manipulation or undue influence. As noted above, the Court finds that the lack of communication was not the result of any attempts by Respondent to thwart communication. Rather, the evidence shows that the lack of communication was the result of Petitioner's failure to communicate with V.M.C.M. Although it is concerning that Respondent told Petitioner and his family not to contact V.M.C.M., during this time, Petitioner knew how to, and was able to, contact V.M.C.M. but made no attempts to do so. Day Two Trial Tr. 32:14–16; see Vasconcelos , 512 F. App'x at 406 (noting that "even if B.V.’s perception of her biological father was one-sided, that one-sidedness stemmed in great part from the fact that Mr. Vasconcelos never reached out to B.V. from the time she was taken from Brazil up until the start of these proceedings, although he knew B.V.’s whereabouts, knew how to contact her, and had authorization to travel outside Brazil.").
Moreover, when the situation could be remediated, as V.M.C.M. had made attempts to contact Petitioner, Petitioner declined to communicate with V.M.C.M. See Day Two Trial Tr. 33:4–18; 34:23–35:3. Further, the evidence indicates that V.M.C.M. was not influenced by Respondent's disapproval of communication with Petitioner and Petitioner's family. Specifically, the evidence shows that V.M.C.M. disregarded Respondent's disapproval and communicated with his sisters. See Pet.’s Ex. 11 at 5. Therefore, in light of the strong evidence indicating that V.M.C.M.’s objections are the product of his own independent thought, and the weak or nonexistent evidence that there has been any undue influence, the Court finds that there has not been any undue influence such that the Court should disregard V.M.C.M.’s objections.
In conclusion, the Court finds that Respondent has presented sufficient evidence to establish that V.M.C.M. is sufficiently mature, objects to being returned and his objections are not the result of undue influence. Thus, the Court credits V.M.C.M.’s objection and declines to order his return to Guatemala.
III. CONCLUSION
UPON CONSIDERATION of the foregoing, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Petition (ECF No. 1) is DENIED. The Clerk of Court is INSTRUCTED to CLOSE this case. All pending motions, if any, are DENIED AS MOOT. It is FURTHER ORDERED that the Temporary Restraining Order (ECF No. 13) is DISSOLVED.
DONE AND ORDERED in Chambers at Miami, Florida, this 2nd day of July, 2020.