Danilo Pennacchia v. Dena Hayes , 666 F. App'x 677 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANILO PENNACCHIA, No. 16-35635
Petitioner-Appellant, D.C. No. 1:16-cv-00173-EJL
v.
MEMORANDUM*
DENA MICHELLE HAYES,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and submitted December 9, 2016
Seattle, Washington
Before: TALLMAN and CHRISTEN, Circuit Judges, and ENGLAND,** District
Judge.
Danilo Pennacchia appeals from the district court’s denial of his petition to
return his minor child to Italy under the Hague Convention on the Civil Aspects of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
International Child Abduction.1 We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.2
Article 3 of the 1980 Hague Convention provides that the removal or
retention of a child is wrongful where it is in breach of actually exercised custody
rights under the law of a state in which the child was habitually resident
immediately before the removal or retention. Convention, art. 3, 19 I.L.M. at
1501. The parties’ dispute hinges on SAPH’s habitual residence under the
Convention.
“[W]e approach the question of habitual residence as a mixed question of
law and fact.” Valenzuela v. Michel, 736 F.3d 1173, 1176 (9th Cir. 2013). We
give “appropriate deference to the district court’s findings of fact and credibility
determinations,” and “accept the district court’s historical or narrative facts unless
they are clearly erroneous.” Papakosmas v. Papakosmas, 483 F.3d 617, 622–23
(9th Cir. 2007) (quotation marks and citation omitted). “After scrutinizing the
circumstances of a particular case, we must determine whether the discrete facts
1
Oct. 25, 1980, 19 I.L.M. 1501, as implemented by the International Child
Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001–11 (hereinafter the 1980
Hague Convention or the Convention).
2
The parties are familiar with the facts, so we do not recount them here.
Following the practice of the parties and in the interest of privacy, we will refer to
the child as SAPH throughout this disposition.
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add up to a showing of habitual residence,” Holder v. Holder, 392 F.3d 1009, 1015
(9th Cir. 2004), and we review “the ultimate issue of habitual residence de novo.”
Valenzuela, 736 F.3d at 1176 (quoting In re B. Del C.S.B, 559 F.3d 999, 1008 (9th
Cir. 2009)).
The parties agree that to determine a child’s habitual residence, we first
“look for the last shared, settled intent of the parents.” Valenzuela, 736 F.3d at
1177 (citing Mozes v. Mozes, 239 F.3d 1067, 1084 (9th Cir. 2001)). Our court was
recently invited “to adopt a habitual residence standard that would focus on the
subjective experiences of the child” and declined to do so. Murphy v. Sloan, 764
F.3d 1144, 1150 (9th Cir. 2014).
The district court concluded SAPH’s habitual residence was the United
States. In doing so, the court applied the correct legal standard by focusing on the
“shared, settled intent of the parents.” See Holder, 392 F.3d at 1020 n.11
(observing that even for a new born baby “[i]t is the settled intentions of the
parents that render that ‘residence’ of the baby habitual” (citation omitted)). The
district court acknowledged that the parents’ testimony differed concerning their
intentions at the time they left the United States, but found Pennacchia’s
“testimony lacks credibility and evidence to support his position.” We give heavy
deference to factual determinations such as which witnesses to believe and which
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documents corroborate the most credible version of disputed testimony. See, e.g.,
FED. R. CIV. P. 52(a) (reviewing courts “must give due regard to the trial court's
opportunity to judge the witnesses’ credibility”). The district court found
Pennacchia agreed to and signed several documents, including paperwork
appointing United States guardians, that support the mother’s testimony and
evidenced the parties’ initial agreement that “their living arrangement in Italy was
conditional and ‘a trial period.’” The district court did not err when it concluded
that, for both parents, “the settled intention was for SAPH’s habitual residence to
be the United States.”
For SAPH’s habitual residence to change, “the agreement between the
parents and the circumstances surrounding it must enable the court to infer a shared
intent to abandon the previous habitual residence.” Mozes, 239 F.3d at 1081.
“Although it is possible for a child’s contacts standing alone to be sufficient for a
change in habitual residence, in view of ‘the absence of settled parental intent, [we]
should be slow to infer from such contacts that an earlier habitual residence has
been abandoned.’” Holder, 392 F.3d at 1019 (alteration in original) (quoting
Mozes, 239 F.3d at 1079). “To infer abandonment of a habitual residence by
acclimatization, the ‘objective facts [must] point unequivocally to [the child’s]
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ordinary or habitual residence being in [the new country].’” Murphy, 764 F.3d at
1152 (emphasis and alterations in original) (quoting Mozes, 239 F.3d at 1081).
SAPH has significant contacts in Italy, but the district court did not find a
shared parental intent to abandon her habitual residence in the United States or that
the objective facts point unequivocally to a change in SAPH’s habitual residence.
Pennacchia did not meet his burden on acclimatization, and therefore, the district
court did not err by concluding SAPH’s habitual residence under the 1980 Hague
Convention remains the United States. The district court properly denied
Pennacchia’s petition.
The parties shall bear their own costs on appeal.
AFFIRMED.
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