Sealed v. Sealed , 575 F. App'x 507 ( 2014 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-10987
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
July 22, 2014
SEALED APPELLEE,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
SEALED APPELLANT,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-1445
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellee A.V. filed a petition under the Hague Convention on
the Civil Aspects of International Child Abduction (the “Convention”), T.I.A.S.
No. 11670, 19 I.L.M. 1501, codified by the International Child Abduction
Remedies Act (“ICARA”), 42 U.S.C. §§ 11601, et seq., seeking the return of her
child, M.V., to Mexico. In her petition, Plaintiff-Appellee alleged that
Defendant-Appellant, M.A.V., unlawfully abducted their minor child when he
removed M.V. from Mexico and took M.V. to the United States on June 16,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10987
2012. On August 27, 2013, the district court found that M.V. had been
wrongfully removed to the United States and ordered Respondent-Appellant
to return M.V. to Mexico. On September 23, 2013, a panel of this Court denied
Respondent’s motion for a stay pending appeal. We now affirm the judgment
of the district court.
The only issue on appeal is whether the district court correctly
determined that Mexico, and not the United States, was M.V.’s habitual
residence for the purposes of the Convention. See 42 U.S.C. § 11603(e)(1);
Convention art. 3. Respondent raises three points of contention with the
district court’s habitual residence determination: (1) whether the district
court’s habitual residence determination was supported by sufficient evidence;
(2) whether the objective facts of the case unequivocally point to Mexico as
M.V.’s new habitual residence; and (3) whether the district court improperly
shifted the burden of proof to Respondent to prove that he did not agree to
change M.V.’s habitual residence to Mexico.
Applying our decision in Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012),
the district court found that the parties manifested a shared intent for M.V. to
abandon the United States as her habitual residence and to remain in Mexico
indefinitely. The district court’s finding that Mexico was M.V.’s habitual
residence at the time of M.V.’s removal is supported by sufficient and
compelling evidence. The district court based its decision in part on the
credibility of both Petitioner and Respondent, and we afford credibility
determinations great deference upon appellate review. See Gitter v. Gitter, 396
F.3d 124, 133 (2d Cir. 2005) (“[T]he court’s task [is] to determine the intentions
of the parents as of the last time that their intentions were shared. Clearly,
this is a question of fact in which the findings of the district court are entitled
to deference.”); Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 345 (5th Cir.
2004) (“We defer to the district court’s credibility determinations and will not
2
No. 13-10987
disturb them unless a review of the evidence leaves us with the definite and
firm conviction that a mistake has been made.” (internal quotation marks and
citation omitted)).
Respondent also argues that the district court improperly placed the
burden on him to show that he and Petitioner did not share an intent for M.V.
to remain in Mexico, though the law requires the Hague Convention petitioner
to carry the burden of proof. See 42 U.S.C. § 11603(e) (“A petitioner . . . shall
establish by a preponderance of the evidence . . . that the child has been
wrongfully removed or retained within the meaning of the Convention.”).
When making its shared intent determination, the district court stated, “The
Court relies on Petitioner’s credible testimony that, during Respondent’s
August 2011 tripe [sic] to Linares, Mexico, the pair agreed to alter M.V.’s
permanent residence.” After determining that Petitioner had met her burden
of proof, only then did the court explain, “Aside from Petitioner’s credible
testimony, convincing circumstantial evidence exists to demonstrate that, in
addition to the parties’ agreement in August 2011 to make Mexico M.V.’s home,
Respondent acquiesced to M.V. laying permanent roots there.” The record
shows that the district court properly placed the burden of proof on Petitioner
to establish M.V.’s habitual residence, and only viewed the circumstantial
evidence of Respondent’s failure to object after the fact as additional proof to
support its conclusion.
Finally, Respondent’s argument that the district court should not have
considered the parties’ actions surrounding M.V.’s move to Mexico is
unavailing. Since Larbie’s shared intent standard is a fact-based inquiry, the
district court properly considered the events surrounding the parties’
agreement to move M.V. to Mexico when making its habitual residence
determination. See Gitter, 396 F.3d at 134 (“In making [the shared intent]
determination the court should look, as always in determining intent, at
3
No. 13-10987
actions as well as declarations.”); see also Larbie, 690 F.3d at 310 (noting that
the inquiry into a child’s habitual residence “is a fact-intensive determination
that necessarily varies with the circumstances of each case”). 1
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
1 The district court did not reach the second step of the Larbie test, namely, “Absent
[the parties’] shared intent, prior habitual residence should be deemed supplanted only where
‘the objective facts point unequivocally’ to this conclusion.” Larbie, 690 F.3d at 310–11.
Because we affirm this case based on the parties’ shared intent, we do not reach this issue
either.
4