Michael Farr v. Bonnie Kendrick

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 2020
• Docket: 19-16297
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 20 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL ABRAHAM FARR, No. 19-16297

Plaintiff-Appellant, DC No. 3:19 cv-8127 DWL

v. MEMORANDUM* BONNIE JEANENE KENDRICK,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding

Argued and Submitted July 17, 2020 San Francisco, California

Before: TASHIMA and HURWITZ, Circuit Judges, and MARSHALL,** District Judge.

Michael Farr filed a pro se petition under the International Child Abduction

Remedies Act, 22 U.S.C. § 9001 et seq., which implements the provisions of the

Hague Convention on the Civil Aspects of International Child Abduction (the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Consuelo B. Marshall, United States District Judge for the Central District of California, sitting by designation. Convention). Farr sought the return of his twin minor children to Mexico, after his

ex-wife and mother of the children, Bonnie Jeanene Kendrick, took them from

Mexico to live with her in Arizona. The district court denied Farr’s petition,

concluding that Kendrick was not required to return the children because the

children’s country of habitual residence was the United States, not Mexico. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Under the Convention, “a child wrongfully removed from her country of

‘habitual residence’ ordinarily must be returned to that country.” Monasky v.

Taglieri, 140 S. Ct. 719, 723 (2020). Thus, “[d]etermination of ‘habitual

residence’ is ‘perhaps the most important inquiry under the Convention.’” Murphy

v. Sloan, 764 F.3d 1144, 1150 (9th Cir. 2014) (quoting Asvesta v. Petroutsas, 580

F.3d 1000, 1017 (9th Cir.2009)). “The habitual-residence determination . . .

presents a task for factfinding courts, not appellate courts, and should be judged on

appeal by a clear-error review standard deferential to the factfinding court.”

Monasky, 140 S. Ct. at 730.

The district court thoroughly and carefully reviewed the evidence and found

that the parents did not have a shared, settled intent to abandon the United States as

their habitual residence when they moved to Mexico, pursuant to existing

precedent. See Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir. 2013) (“In the

2 Ninth Circuit, we look for the last shared, settled intent of the parents in an attempt

to determine which country is the ‘locus of the children’s family and social

development.’” (quoting Mozes v. Mozes, 239 F.3d 1067, 1084 (9th Cir. 2001)).

However, after the district court’s decision, the Supreme Court held that “a child’s

habitual residence depends on the totality of the circumstances specific to the

case.” Monasky, 140 S. Ct. at 723. Thus, “a wide range of facts other than an

actual agreement, including facts indicating that the parents have made their home

in a particular place, can enable a trier to determine whether an infant’s residence

in that place has the quality of being ‘habitual.’” Id. at 729.

“Under the circumstances of this case, we decline to disturb the judgment

below.” Id. at 731. The district court’s very thorough findings enable us to

conclude that, under the totality of the circumstances, the children’s habitual

residence was the United States. For example, the district court found that

Kendrick credibly testified that she viewed the move as temporary and believed the

3 family would remain in Mexico for three to five years.1 The court also relied on

Kendrick’s repeated requests, in email exchanges and in conversations secretly

recorded by Farr, to return to the United States. The court found “most telling” a

January 2017 email exchange, in which Kendrick described Houston, Texas, as

their home and permanent residence, and, rather than dispute the characterization,

Farr sought to postpone deciding when the move would occur. A December 2016

email by Farr also supports the district court’s finding. In this email, Farr detailed

a “plan of action” for their return to the United States, setting forth decisions they

needed to make “very soon,” such as which United States city they would move to.

The record also contains March 2016 text message exchanges in which Kendrick

expressed uncertainty about whether they would stay in Mexico, writing, for

example, that it was difficult for the family to settle in Mexico and make friends

because “we don’t know month to month if we’ll be here or not.”

1 Farr raises many challenges to the court’s credibility findings, but “[w]here, as here, findings of fact turn on credibility determinations, the findings receive heightened deference in light of ‘the fact finder’s unique opportunity to observe the demeanor of the witnesses.’” Valenzuela, 736 F.3d at 1176 (quoting Newton v. Nat’l Broad. Co., 930 F.2d 662, 671 (9th Cir.1990)). We do not find any of Farr’s arguments regarding alleged inconsistencies that undermine Kendrick’s and other witnesses’ credibility sufficient to overturn the district court’s credibility findings. 4 Other circumstances the court relied on include the following: Farr,

Kendrick, and the children are United States citizens; Farr’s sister testified that

Farr’s job in Mexico was “indefinite” and “temporary”; Kendrick’s and the

children’s temporary visas expired in August 2017;2 Farr made seven trips to the

United States between August 2015 and August 2018; all of Kendrick’s and most

of Farr’s extended family members live in the United States; and Farr maintained

an American bank account and American automobile insurance while living in

Mexico.In addition, the court noted that the children were less than a year old when

they moved to Mexico, only three years old when they returned to the United

States, did not speak Spanish, and did not attend school in Mexico. The totality of

the circumstances supports the district court’s finding that the children’s habitual

residence was the United States, not Mexico.

For the reasons articulated in Monasky, we conclude that it is not necessary

to remand for the district court to consider the evidence under the new standard

announced by Monasky. First, the district court conducted a three-day evidentiary

hearing, considering numerous exhibits and testimony from many witnesses, and

thus “had before it all the facts relevant to the dispute.” Monasky, 140 S. Ct. at

2 Farr’s argument that the visas were being renewed as of August 2018 is unavailing. He does not indicate when he filed the application for renewal, and, at any rate, he does not dispute that the visas expired in August 2017. 5 731. Second, “[n]othing in the record suggests that the District Court would

appraise the facts differently on remand.” Id. Third, although Farr cites evidence

that he contends establishes the children’s habitual residence was Mexico, the

district court already “considered the competing facts bearing on those assertions.”

Id. Finally, “[a] remand would consume time when swift resolution is the

Convention’s objective.” Id.

The district court carefully laid out all the evidence in favor of both sides,

stated which facts it was relying on and which ones it was not, explained the

reasons for those evidentiary decisions, and explained its credibility findings. Its

findings are supported by the record.3

AFFIRMED.

3 The district court further concluded that, even if Kendrick would otherwise be required to return the children, an exception to the return requirement applied, see Monasky, 140 S. Ct. at 723 (noting that the Convention recognizes that a child’s return is not required “if the return would place her at a ‘grave risk’ of harm or otherwise in an intolerable situation” (quoting Art. 13(b) of the Convention)), finding that there was a grave risk that returning the children to Mexico would expose them to physical or psychological harm. We do not address this finding because we affirm the district court’s finding that the children’s habitual residence was the United States. 6