           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 20, 2009
                                     No. 08-31003
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




ANNE BENNET MORRISON DIETZ,

                                                   Plaintiff-Appellee,
versus

JOHN FORD DIETZ,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                No. 6:07-CV-1398




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       This case concerns the Convention on the Civil Aspects of International
Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 (the “Convention”), a treaty



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 08-31003

implemented by the International Child Abduction Remedies Act (“ICARA”), 42
U.S.C. §§ 11601-11611. The district court held that Anne Dietz had met her bur-
den of proof to make out a claim under the Convention and that John Dietz had
not met his burden of proof to assert affirmative defenses. On appeal, John
contends that the court erred in rejecting two of those defensesSSthe “one
year/well settled” exception and the “child objects/age and maturity” exception.
Finding no error, we affirm.


                                        I.
      John and Anne Dietz were married in New Mexico in 1990. They had two
children: Albert in 1994 and Angus in 1998. Throughout the 1990’s, the family
lived in various places throughout the American Southwest before moving to
Mexico in 1999. Soon after that, the marriage soured, and the couple divorced.
The Mexican divorce decree granted Anne custody of both children and John vis-
itation rights.
      At first, John continued to live and work in close proximity to Anne, so the
children saw both parents regularly. Later, the children lived at various times
with each parent, though more often with their father. The boys would often ac-
company John on his frequent business trips to the United States.
      In January 2006, Anne permitted Albert, who was attending class through
an internet school, to travel with his father to the United States and to reside
temporarily with his paternal grandparents in Louisiana. John then sued for
full custody of Albert and Angus in Mexican court in March 2006. In May 2006,
fearing for his life, John abandoned the custody suit, removed Angus from
school, and fled with his new family to Louisiana.
      After pursuing criminal charges against John in a Mexican court in the
summer of 2006, Anne, in May 2007, filed in Louisiana state court an application
for return of the children under the Convention; John removed the action to

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                                  No. 08-31003

federal court. After a bench trial, the district court, applying the Convention,
determined that Albert and Angus had been wrongfully removed from Mexico
and that John had failed to meet his burden of proof for any of the Convention’s
affirmative defenses.


                                        II.
      John claims that the district court erred when it determined that he did
not make out a successful defense under the Convention’s “one year/well-settled”
exception with respect to his oldest son, Albert. That exception comes from ar-
ticle 12 of the Convention: At the “commencement of the proceedings . . . [if] a
period of less than one year has elapsed from the date of the wrongful removal
or retention, the authority concerned shall order the return of the child forth-
with.” Additionally, it instructs that “even where the proceedings have been
commenced after the expiration of the period of one year . . . [the authority] shall
also order the return of the child, unless it is demonstrated that the child is now
settled in its new environment.” Convention, art. 12.
      We review conclusions of law de novo and findings of fact for clear error.
See, e.g., England v. England, 234 F.3d 268, 270 (5th Cir. 2000). “A factual find-
ing is not clearly erroneous if it is plausible in light of the record read as a
whole.” United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005) (citation
omitted).
      The district court found that John took Albert from Mexico to Louisiana
in January 2006, that John took Angus from Mexico to Louisiana in May 2006,
and that Anne sued in state court on July 13, 2007. The court also found that
the boys had become “well-settled” in their new environment. If the case con-
sisted merely of these bare facts, it would seem the court erred in failing to give
effect to John’s article 12 defense.
      The court determined, however, that what appeared to be a late filing from

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                                        No. 08-31003

Anne was in fact timely, because the one-year period should be equitably tolled.
Both ICARA and the Convention make no mention of equitable tolling, yet it is
well established in caselaw that it applies. See, e.g., Van Driessche v. Esezeoboh,
466 F. Supp. 2d 828, 850 (S.D. Tex. 2006). The district court found that, despite
attempts to locate her sons, Anne Dietz did not know definitively where they
were until August 2006, meaning that her July 13, 2007, filing was within Arti-
cle 12’s one-year period.
       John does not attack the use of equitable tolling as such. Indeed, he does
not appear to question the court’s application of tolling to the summer of 2006.1
Rather, he argues, because the record reflects that Anne knew where Albert was
during the first part of 2006, that period should not be tolled under the court’s
stated rationale that Anne could not locate the boys. And thus, even by tolling
the one-year requirement from the time Angus was removed on May 19, 2006,
until August 2006, the time period between Albert’s removal (January 2006) and
Anne’s filing (July 13, 2007) still exceeds one year.
       John is correct that the record shows that Anne knew that Albert was re-
siding with his grandparents in Louisiana from January 2006 until May 21,
2006. But the record shows just as plainly that Albert was in Louisiana during
that period, because Anne consented to his being there. She did not have reason
to believe that what was a temporary visit would in fact become permanent




       1
          To the extent, if any, that John does question equitable tolling, the court’s determina-
tion is not clearly erroneous. This conclusion is based on (1) the fact that Anne could not defin-
itively locate the boys until August 2006 in light of her inability to establish contact with the
boys despite repeated attempts to do so before that date; (2) the refusal of John’s family in
Gueydan to provide information about John’s current whereabouts despite requests; and
(3) John’s history of taking frequent, prolonged business trips with the boys throughout the
American Southwest, where he had business and property interests. Nor is the application
of the law to these facts incorrect. See, e.g., Furnes v. Reeves, 362 F.3d 702, 723-24 (11th Cir.
2004); Van Driessche, 455 F. Supp. 2d at 852; Giampaolo v. Erneta, 390 F. Supp. 2d 1269, 1281
(N.D. Ga. 2004).

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                                       No. 08-31003

until Angus was removed, without her consent, on May 21, 2006.2 It is, there-
fore, that dateSSnot January 2006SSon which the clock began to run on the ar-
ticle 12 one-year period. The district court did not err.


                                             III.
       John claims that the district court erred by failing to give effect to Albert’s
and Angus’s stated preference to remain with their father in the United States.
Article 13(b) of the Convention provides, in relevant part, that “[t]he 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.” ICARA
provides that the party opposing the child’s return must establish the child’s
maturity by a preponderance of the evidence. 42 U.S.C. § 11603(e)(2)(A) (1994).
       At the time of trial, Albert was thirteen years old and Angus was nine. Af-
ter reviewing the report of the child psychologist, Dr. Bouillion, and observing
Albert’s and Angus’s testimony at trial, the district court concluded that neither
had attained the age and degree of maturity required by article 13(b) to take his
views into account. That was a factual determination. See England, 234 F.3d
at 272. And, given the reliance on live oral testimony, “the clearly erroneous
standard is particularly strong because the judge had the opportunity to observe
the demeanor of the witness[es].” United States v. Santiago, 410 F.3d 193, 197
(5th Cir. 2005).
       With regard to Albert, the court found him to be “highly defensive,” noting
that he spoke in a “short” and “curt” manner in a “low monotone” and kept his


       2
         See, e.g., In re Ahumada Cabrera, 323 F. Supp. 2d 1303, 1312-13 (S.D. Fla. 2004)
(“[T]he Respondent’s retention only became wrongful under the Convention when the Peti-
tioner became aware of the Respondent’s true intention not to return.”); see also Zuker v. An-
drews, 2 F. Supp. 2d 134, 140 (D. Mass. 1988) (“Until he knew that Andrews would not return,
it would be unfair to require Zuker to file a petition based on alleged wrongful retention.”).

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                                       No. 08-31003

“eyes cast downward.” Obviously, these are characteristics that a trial court
judge, armed with the contemporaneous powers of sight and sound, is better
suited to observe than is an appellate panel armed only with a transcript. Nev-
ertheless, the record lends support to the district court’s observations.
       For instance, the report of Dr. Bouillion, who examined Albert and Angus
and testified in court as to his observations, noted that Albert “demonstrated
anxiety during the interview.” Bouillion also observed that despite showing
“high average to superior intelligence,” Albert displayed “only average verbal
skills,” performed poorly in school, had been involved in psychotherapy, “needs
help in addressing his self-esteem and mood problems,” and “clearly demon-
strates social and emotional immaturity compared to his same age peers.”
       The district court’s conclusion that Albert was immature for purposes of
the Convention’s article 13 defense is in keeping with precedent. For example,
in England, we concluded that whether a child is of sufficient age and maturity
is a fact-intensive process, and we declined to hold, as a matter of law, that any
particular age is sufficient or insufficient to meet the defense.3 We also noted
the “narrowness of the age and maturity exception to the Convention’s rule of
mandatory return,” going so far as to reverse the trial court’s determination that
a 13-year old girl was of sufficient age and maturity where the record showed
signs of an unstable home life, learning disabilities, and confusion. England,
234 F.3d at 272-73.
       The district court did not credit Angus’s preference, because it found that
his views were “unduly influenced by his father.” The court credited Anne’s tes-
timony that Angus said to her, “Daddy’s told me this is all about money and the
house, and you want to take this all away from us and put us in foster care.” Id.


       3
         See England, 234 F.3d at 272 n.4 (“We do not hold that as a matter of law a 13 year-
old is not sufficiently mature for her views to be considered. We do hold that, on this record,
a 13 year-old has not been shown to be mature enough for her views to be considered.”).

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                                       No. 08-31003

On the witness stand, Angus stated as much himself, adding that he had ob-
tained the information about his mother’s supposed motives from his father, who
would show him e-mails from Anne’s brother.4
       The district court’s ability to conclude that Angus’s views were unduly in-
fluenced by his father finds ready support in law. “A child’s objection to being
returned may be accorded little if any weight if the court believes that the child’s
preference is the product of the abductor parent’s undue influence over the
child.” Pub. Notice 957, 51 Fed. Reg. 10,494, 10,509 (1986). In In re Robinson,
983 F. Supp. 1339, 1344 (D. Colo. 1997), the court concluded that an eleven-year-
old child’s casually referring to being “settled” (a legal term under the Conven-
tion), in response to questions from the court, evidenced undue influence. Simi-
larly, in Hazbun Escaf v. Rodriguez, 200 F. Supp. 2d 603, 615 (E.D. Va. 2002),
the court found the thirteen-year old child, “like all adolescents[,] . . . susceptible
to suggestion and manipulation,” noting that “some of his statements regarding
reasons for staying in the United States appear[ed] to be the product of sugges-
tion, echoing the preferences of his father.”
       This case is the reverse of England: We are asked whether to defer to the
conclusion that the children are immature. “Given the fact-intensive and idio-
syncratic nature of the inquiry, decisions applying the age and maturity excep-
tion are understandably disparate.” DeSilva v. Pitts, 481 F.3d 1279, 1287 (10th
Cir. 2007). It is therefore not surprising that there are cases in which children
as young as eight have been found to be of sufficient age and maturity.5 But that


       4
         In his report for the court based on interviews with the children, Bouillion notes that
“[Angus] feels that the mother is more interested in the money and the house than he and his
brother.” Though silent about Angus’s involvement, Bouillion mentions that Albert “is too in-
volved in adult issues and focused on the only reason the mother wants them back in Mexico
is so she can sell the family home.”
       5
       See, e.g., Anderson v. Acree, 250 F. Supp. 2d 876, 883 (S.D. Ohio 2002) (“Beth was com-
posed and did not appear to be unduly nervous or afraid. She calmly and readily answered
                                                                                  (continued...)

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                                         No. 08-31003

does not preclude contrary results in other cases.
       Here, the district court was better positioned to judge the children’s ma-
turity than are we. The court’s factual determination that Albert and Angus
were not sufficiently mature to take account of their views is not clearly errone-
ous, and there is no ground for reversal.
       AFFIRMED.




       5
         (...continued)
the court’s questions. She was able to point to New Zealand on a globe . . . . She appeared to
understand the court’s questions, and also indicated her understanding of the difference be-
tween truth and falsehood . . . . The court saw no reason to conclude that Beth’s answers to
the court’s questions were the product of any coercion or undue influence on the part of re-
spondent. Based on this court’s observations of Beth and the other evidence presented in this
case, this court finds that Beth is of sufficient age and maturity to permit this court to consider
her views . . . .”).

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