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No. 15-2471
No. 15-2507
Appeals from the United States District Court for the District
of South Carolina, at Florence.
R. Bryan Harwell, District
Judge. (4:14-cv-04176-RBH)
Argued:
Decided:
her
two
crossed
minor
into
the
children
from
their
United
States
with
biological
father,
home
the
in
Mexico.
children
and
Appellant
Fernando
Contreras
to
International
Convention),
1501.
the
Hague
Child
Convention
Abduction
on
the
(the
Civil
Hague
Aspects
of
Convention
or
children
was
ordinarily
wrongful
require
the
returned to Mexico.
under
the
district
Convention,
court
to
order
which
the
would
children
that the children were now settled in their new environment and
that the Convention did not require a return order under the
circumstances.
The
district
court
declined
to
order
the
I.
The
underlying
facts
are
drawn
from
the
order
of
the
A.
Father, Mother, and both minor children, F.C.G. and A.C.G.,
are Mexican nationals.
married,
in
early
2013
were
living
together
with
the
took
the
children,
without
telling
Father,
to
the
local
and
went
to
authorities.
He
informed
the
Homeland
Securitys
Deferred
Action
for
Childhood
Arrivals
(DACA) program. 1
B.
Mother and the children initially lived with her mother in
Florence.
child,
A.C.G.,
was
not
old
enough
to
attend
The
school.
Neither Mother nor Son spoke English when they arrived, and one
of Mothers sisters helped register Son for school.
During this
Sometime in
Darlington
County,
South
Carolina.
Upon
moving,
Son
completed
the
2013-2014
school
year
at
Brockington
Elementary.
spring term.
C.
On October 27, 2014, Father filed a petition in district
court, seeking the return of the children to Mexico under the
Hague Convention.
January
5,
2015,
stipulation of facts.
Father
and
Mother
filed
joint
to
the
applicable here.
Conventions
rule
of
return
were
mature
child
who
objected
to
his
return;
and
(3) the
Mothers mother and two sisters, Vasquez and his father, one of
Mothers friends from church, and several of Sons teachers and
school
officials.
Son
also
underwent
forensic
interview,
trial,
its
the
factual
district
findings
court
relevant
issued
an
to
issue
the
order
of
The district
court noted that Sons forensic interview indicated that Son can
speak, understand, and converse in English.
characterized
this
fact
as
significant
of
his
for one C in his Science and Math class in the first term of the
year.
Son is
that
accommodations
Son
does
generally
not
receive
afforded
to
any
ESOL
of
the
special
participants.
The
J.A. 443.
The
district
court
found
that
Son
has
extensive
testimony
that
Mother
and
Vasquez
in
stable,
attends
church,
and
the
district
court
Son
credited
testimony that he gets along well with the other children and
has friends at the church.
One of Sons
district
court
further
found
that
despite
Mothers
lack
of
legal
authorization
to
work,
Mother
has
clearly able to provide for the minor children and that the
children
were
shelter.
J.A. 444.
that
they
always
would
provided
adequate
clothing,
food,
and
be
willing
to
help
Mother
and
the
children
financially if needed.
With respect to Sons home life, the district court found
that
Mother
had
environment.
lived
with
maintained
stable
residence
in
Sons
new
children
in
three
different
homes
in
roughly
fourteen months, each home was in the same general area in South
Carolina
and
the
lives.
The
district
moving
each
unstable
time
moves
Id.
court
were
existence
whereabouts.
did
for
not
disrupt
found
that
reasonable,
Son
or
an
and
the
childrens
Mothers
did
attempt
not
to
daily
reasons
reflect
conceal
for
an
his
Id.
United States, and she conceded that she pays no taxes on the
income she earns.
Id.
the
lack
of
authorization,
they
operate
local
445.
that
any
there
harm
was
no
from
government benefits.
indication
[an]
that
inability
Son
to
was
likely
receive
to
certain
Id.
Id.
10
J.A. 453.
The district
court agreed that the Convention did not require it to order Son
returned
if
Mother
established
that
Son
was
settled.
The
district court noted that the Convention does not define what it
means for a child to be settled.
concluded
that
preponderance
the
evidence
II.
We review the district courts findings of fact for clear
error and review its construction and application of the Hague
Convention de novo.
Cir. 2009); Miller v. Miller, 240 F.3d 392, 399 (4th Cir. 2001).
III.
A.
To address the problem of international child abductions
during
domestic
Private
disputes,
International
Law
in
1980
adopted
the
the
Hague
Conference
[Hague
on
Convention].
Remedies
Act
(ICARA).
Id.
at
1229
(citing
F.3d
at
398.
To
that
end,
the
age
of
16
has
been
wrongfully
See Miller,
Conventions
central
removed
from
his
or
her
has been brought generally must order the prompt return of the
child.
Importantly,
the
return
remedy
does
not
alter
the
of
the
country
of
habitual
residence.
Id.
The
child
are
well
served
when
decisions
regarding
custody
Id.
at 20.
the
The
ultimate
return
custody
remedy,
in
determination
effect,
in
the
lays
venue
childs
for
country
of
However,
at 1229.
[t]he
return
remedy
is
not
absolute.
Id.
398-99, 402.
Convention.
Article
12
states
the
general
rule
that
where
forthwith.
Convention,
art.
12,
19
I.L.M.
at
1502.
demonstrated
that
the
child
13
is
now
settled
in
its
new
environment.
Id.
Convention
abduction
and
environment.
was
the
not
commenced
child
is
now
within
settled
one
in
year
of
the
or
his
new
her
B.
Father does not dispute that the one-year period elapsed
before
he
commenced
this
action.
Whether
the
Convention
Under ICARA,
22 U.S.C. 9003(e)(2)(B).
1.
ICARA
mandates
that
courts
shall
decide
cases
22 U.S.C. 9003(d).
in
The
(2d
in
Cir.
2012),
affd
part
sub
nom.
Lozano
v.
Montoya
14
In
Lozano,
the
Second
Circuit
began
by
noting
that
the
exceptions
to
swallow
the
basic
rule
of
return:
Department
interpreted
of
State
has
settled
to
require
15
stability,
and
permanence
in
its
new
environment.
Accord, e.g.,
2.
The Convention and ICARA are also silent regarding what
facts
court
determination.
Convention
should
consider
in
making
does
not
place
any
limits
on
textual
limitation,
circumstance
that
permanenceor
the
courts
should
demonstrates
lack
thereofin
the
categories
childs
of
consider
security,
a
settled
any
relevant
stability,
new
or
environment.
in
decisions
of
our
sister
circuits.
See,
e.g.,
these
considerations
considerations
formulaic
way
circumstance.
may
be
may
to
be
may
not
relevant.
tabulate
or
apply
and
Additionally,
weigh
any
additional
there
particular
is
no
factor
or
helpful
in
guiding
factual
development
and
analysis,
their use should not obscure the ultimate purpose of the courts
inquiry.
This
determination
of
inquiry
whether
is,
as
child
explained
has
above,
significant
holistic
connections
turning
to
consider
whether
Sons
circumstances
18
analysis
should
not
be
transmuted
child
resolving
standard
consideration
of
in
custody
into
custody
dispute.
disputes,
The
but
we
Convention
and
are
not
[ICARA]
claims.
Friedrich
v.
22
U.S.C.
Friedrich,
78
F.3d
9001(b)(4);
1060,
1067
see
(6th
also,
e.g.,
Cir.
1996)
of
the
childs
connections
to
her
or
his
new
her
or
his
prior
situation
or
expected
situation
if
returned. 8
3.
We
now
Convention
argument
concluded
turn
to
on
to
Sons
appeal
that
the
the
district
circumstances.
is
that
totality
the
of
Sons
living
application
Fathers
district
the
of
the
overarching
court
erroneously
circumstances
established
courts
arrangements
and
(2)
overstating
We disagree.
a.
With regard to Sons living arrangements and schooling, it
is undisputed that he has lived in three different homes since
arriving in the United States in 2013.
could
adjust
to
those
new
Br. 24.
20
environments.
Appellants
arriving
in
South
Carolina
was
to
represent
part
of
first
444.
lived
with
Within
natural
to
an
the
few
by
compelled
children
months
she
Id.
in
her
moved
mothers
herself
house.
and
the
found that the final move was within the same community and
school district in Darlington County, id., and that Vasquez and
Mother are involved in a stable, loving relationship and . . .
eventually plan to marry.
suggests
that
each
move
J.A. 432.
broadly
an
overall
Father is correct
rapidly
learned
English
such
English
classes
without
any
that
he
was
accommodations
earning
and
As
that
in
his
Son
had
are
J.A. 445.
clearly
erroneous.
Father
argues
that
Sons
It
was reasonable for the district court to infer that Sons strong
academic development suggests a baseline stability to his life.
Additionally, Sons language acquisition and report cards are
only part of the evidence of a successful adjustment to his
environment.
These
findings
are
not
clearly
erroneous
Fathers
contention
that
Mother
has
not
and
J.A.
are
We thus
presented
22
b.
We next turn to Fathers contention that Mother and Son
lack a financial or social support network, such that Son leads
an insecure life in his new environment.
supported by the record.
the opposite.
The district courts bottom line findings were that Mother
is clearly able to provide for the minor children, J.A. 444,
that
they
are
provided
with
adequate
clothing,
food,
and
shelter, id., and that the minor children are well-cared for,
have access to medical care, and are supported by a network of
family and friends.
J.A. 445.
that
Mothers
immigration
J.A. 443.
Father repeatedly
statuswhich
we
discuss
than
provided
for
Sons
needs.
As
the
district
court
Since
their arrival, both children have gained weight and are happy
23
and
healthy.
friends.
[Son]
is
doing
well
in
school
and
has
many
J.A. 453.
c.
We
now
turn
to
immigration status.
Fathers
main
argument
concerning
Sons
way
that
necessarily
prevents
Son
from
being
settled.
are
status
legally
and
consequences
unavailable
describes
to
to
various
Mothers
and
individuals
lacking
lawful
potential
adverse
legal
Sons
continued
unauthorized
Neither
the
Hague
Convention
nor
ICARA
makes
lack
of
categorical
bar
into
the
treaty.
If
child
is
Cf. Lozano,
see also, Lozano, 697 F.3d at 57; In re B. Del C.S.B., 559 F.3d
at 1010.
We agree.
on
the
totality
of
Sons
circumstances,
the
district
the
district
court
made
numerous
As discussed
factual
findings
J.A. 445.
The district
court further found that there was no indication that Son was
likely
to
suffer
any
harm
from
[his]
inability
Id.
to
receive
As before,
assumption
practical matter.
precludes
Son
from
being
settled
as
As in all lives,
other
stabilizing
ones.
The
record
facts
as
whole
environment
such
that
his
26
life
is
stable,
secure,
and
d.
In sum, we do not think that the district court made any
essential factual findings that were clearly erroneous.
The
with
the
district
establishes
that
court
that
Son
has
preponderance
significant
of
those
connections
the Convention.
IV.
Father makes one additional argument on appeal that merits
consideration.
courts
nevertheless
retain
discretion
to
order
the
child
We
agree
that
settled
determination
does
not
preclude
We disagree, however,
This retained
in
Lozano,
Justice
Alito
In a concurring
suggested
several
134 S. Ct.
10
It
is
sufficient
for
present
purposes
to
note
that
the
Sons
return. 11
Father
stresses
the
inequity
of
1235.
cost.
Id.
established
exception
Convention
nullity:
exception,
necessary
we
would
predicate
to
render
that
considering
Perez-Vera
Report
34),
we
are
also
mindful
that
the
the
district
court
noted,
beyond
the
fact
of
the
J.A. 453.
Fathers arguments
V.
For the foregoing reasons, we affirm the district courts
determination that Son is settled within the meaning of the
Hague Convention and affirm its decision not to exercise its
discretion to order Son returned.
AFFIRMED
30