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United States Court of Appeals, Second Circuit
June 11, 2013
Gerardo Guzzo, Petitioner-Appellant,v.Luisa Maria Cristofano, Respondent-Appellee.
Submitted: January 28, 2013
The Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"), opened for signature Oct. 25, 1980, T.I.A.S. No. 11, 670, and the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq., generally require courts in the United States to order children returned to their countries of "habitual residence" if those children have been wrongfully removed to, or retained in, the United States. See Chafin v. Chafin, 133 S.Ct. 1017, 1021 (2013). This appeal asks whether a child was "habitually resident" in Italy within the meaning of the Hague Convention and ICARA. As we explain, the Hague Convention uses the terms "habitual residence" and "habitually resident" in a practical way, referring to the country where a child usually or customarily lives. The term is not equivalent to the American legal concept of "domicile, " which relies principally on intent. Nonetheless, when parents move temporarily to another country, without agreeing to change the child's principal place of residence, a petitioner claiming that the new location has become the child's "habitual residence" must show that the child has "acclimated" to that country. Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005). The petitioner in this case failed to show that the parents agreed to settle in Italy, and he did not attempt to show that the child had acclimated there. Accordingly, the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) properly denied the petition for return of the child.
Gerardo Guzzo, pro se, Scario, Italy, for Petitioner-Appellant.
Jeremy D. Morley, Law Offices of Jeremy D. Morley, New York, NY, for Respondent-Appellee.
Before: Cabranes, Wesley, and Livingston, Circuit Judges.
José A. Cabranes, Circuit Judge:
The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or "Convention"), opened for signature Oct. 25, 1980, T.I.A.S. No. 11, 670, and the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq., [1] generally require courts in the United States to order children returned to their countries of "habitual residence" if those children have been wrongfully removed to, or retained in, the United States. See Chafin v. Chafin, 133 S.Ct. 1017, 1021 (2013). This appeal asks whether a child was "habitually resident" in Italy within the meaning of the Hague Convention and ICARA. As we explain, the Hague Convention uses the terms "habitual residence" and "habitually resident" in a practical way, referring to the country where a child usually or customarily lives. The term is not equivalent to the American legal concept of "domicile, " which relies principally on intent. See note 5, post. Nonetheless, when parents move temporarily to another country, without agreeing to change the child's principal place of residence, a petitioner claiming that the new location has become the child's "habitual residence" must show that the child has "acclimated" to that country.[2] Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005). The petitioner in this case failed to show that the parents agreed to settle in Italy, and he did not attempt to show that the child had acclimated there. Accordingly, the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) properly denied the petition for return of the child.
Petitioner-appellant Gerardo Guzzo (the "Father") is an Italian citizen and resident of Scario, Italy, and respondent-appellee Luisa Maria Cristofano (the "Mother") is a United States citizen and resident of New York. They met in September 2005 onboard a flight from New York to Italy and began visiting each other regularly and discussing the prospect of marriage. In January 2006, the Mother discovered that she was pregnant. She soon visited the Father in Italy, where they resumed discussions about whether to get married in New York or Italy. The Father and Mother eventually agreed to marry in New York while maintaining their respective residences in Italy and New York.
In September 2006, their child was born. Based on the evidence presented at trial, the District Court found that from 2006 to 2007 the parties maintained their "bi-continental marriage, " each parent visiting the other on numerous occasions, and in December 2007 the parties agreed that the Mother and the child would live primarily in Italy with the Father but return periodically to New York. During this time, however, the parents' relationship became increasingly tumultuous. In February 2009, the Mother took the child to New York and told the Father that she wanted a separation.
Over the next few months, the parents negotiated a separation agreement (the "Separation Agreement"), which the Mother signed in English on May 20, 2009, and which the Father signed in Italian on June 10, 2009. As relevant here, the Separation Agreement provided that the parents would "'continue to live separate and apart, '" that the Mother would "'have custody[ ] of the minor child, '" and that the child would attend school at the Good Counsel Academy in White Plains, New York. Guzzo v. Cristofano, No. 11 Civ. 7394 (RJS), 2011 WL 6934108, at *2 (S.D.N.Y. Dec. 30, 2011) (quoting the Separation Agreement). The Separation Agreement also established a visitation schedule, which provided that the child would spend at least two months each year in Italy with the Father.
Soon after signing the Separation Agreement, the Mother returned to Italy with the child. As the District Court explained, the Mother "testified that her trip to Italy was undertaken as an attempt at reconciliation with [the Father], but that she was only willing to make the attempt because she had the protection of the Separation Agreement." Id. at *3. The Mother also testified that "regardless of the reconciliation attempt, she never intended to have the child attend primary school in Italy and that she always planned to live with the child in New York once he was in kindergarten." Id. With only intermittent vacations, including several trips to New York, the child continued to live in Italy, where he attended nursery school.
In November 2010, the Mother took the child to New York with the intention of not returning to Italy. The following month, the parents agreed to make another attempt at reconciliation, and the Mother moved back to Italy in January 2011 with the child. The effort was unsuccessful. In August 2011, the Mother returned with the child to New York, where they have lived ever since. The Mother also initiated divorce proceedings in Westchester County, New York.
The Father initiated this action under the Hague Convention in October 2011, alleging that the Mother had wrongfully removed the child from Italy in August 2011. The District Court held a three-day bench trial in November 2011. The next month, the District Court denied the petition, concluding that the Father had not proved by a preponderance of the evidence that Italy, rather than the United States, was the child's country of "habitual residence." Guzzo, 2011 WL 6934108, at *4.
The District Court began by restating our two-part test for determining a child's habitual residence. Id. at *5 (citing Gitter, 396 F.3d at 134). Under that test, a court must first "inquire into the shared intent of those entitled to fix the child's residence . . . at the [last] time that their intent was shared." Gitter, 396 F.3d at 134. If a court concludes that the parents did not intend to change a child's habitual residence, it then must assess "whether the evidence unequivocally points to the conclusion" that the child has acclimated to the new location, notwithstanding the parents' intentions. Id. The District Court noted that the Father had rested his petition entirely on the first prong, arguing that the parents had agreed to change the child's habitual residence to Italy; he had explicitly abandoned any argument that the child had acclimated to life in Italy. See Guzzo, 2011 WL 6934108, at *5 n.2.
Based on the evidence presented at trial, the District Court determined that the parents' Settlement Agreement in 2009 exhibited their last shared intent regarding the child's usual residence. Although the Mother had moved to Italy with the child after signing the agreement, and had attempted to reconcile with the Father, the Court found "no evidence that the attempted reconciliation, in and of itself, altered the [Settlement] [A]greement in any way." Id. at *6. The Court also found the Father's testimony that the parents reconciled in June 2009 and formed a new shared opinion that the child would live in Italy to be "not credible." Id. at *7. As the Court explained:
[The Father] made no mention of the alleged conversations in which the parties reached a new agreement about where the child should be educated in any of his pre-trial affidavits, memoranda of law, or proposed findings of facts and conclusions of law. Indeed, [the Father] has put forward no evidence of any kind to corroborate his testimony on this issue, despite the abundance of e-mails and letters between the parties that were produced. Put simply, the Court finds [the Father's] assertion of a new "mutually shared intent" to educate the child in Italy to be a wholesale fabrication designed to meet the legal standard established by the Second Circuit in Gitter.
Id. The Court further concluded that "[d]espite the parties' apparently sincere attempts at reconciliation, the evidence demonstrates that [the Mother] never contemplated spending her life in Italy or having the child attend Italian schools following preschool." Id.
With respect to the child's attendance at nursery school in Italy, the Court found that the Mother had "testified credibly that, regardless of the outcome of the attempted reconciliation, she intended to send the child to kindergarten in New York." Id. For instance, the Mother home-schooled the child in English "in order to prepare him for school in the United States." Id. She also retained ties to New York, by keeping her property there, and by "continu[ing] to perform work for New York clients and [to] collaborate with attorneys in New York." Id. at *8. The Mother also refused to register her marriage with Italian authorities, which would have enabled her to obtain Italian public health insurance. And the child "did not have Italian medical insurance, but rather was insured through Medicaid and received his primary medical treatment in the United States." Id. After reviewing the relevant case law, the Court concluded that "the evidence overwhelmingly demonstrates that, following the execution of the Separation Agreement, the parties never shared an intention to make Italy the child's habitual residence." Id. at *9. Accordingly, the District Court held that the Father had not established that the child's habitual residence was Italy, and denied the petition for return of the child.
This appeal followed.
A. Legal Framework
"The Hague Convention on the Civil Aspects of International Child Abduction generally requires courts in the United States to order children returned to their countries of habitual residence, if the courts find that the children have been wrongfully removed to or retained in the United States." Chafin, 133 S.Ct. at 1021 (emphasis supplied). The question presented in this appeal is whether the Father met his burden of showing that the "habitual residence" of the child was Italy.
"Habitual residence, " as one court has observed, "is the central—often outcome-determinative—concept on which the entire [Hague Convention] system is founded." Mozes v. Mozes, 239 F.3d 1067, 1072 (9th Cir. 2001). Indeed, the terms "habitual residence" and "habitually resident" are used throughout the Hague Convention, see Gitter, 396 F.3d at 130 & n.6 (listing uses), and determining the child's country of habitual residence is a threshold issue in nearly all Hague Convention cases, because the laws of that country determine the custody rights recognized by the Convention, see Hague Convention, art. 3.[3]
Despite the importance of the "habitual residence" concept, the drafters of the Hague Convention deliberately left that term undefined. See Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir. 2004). The official Hague Conference reporter described the term as "a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile." Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law ¶ 66, in 3 Acts and Documents of the Fourteenth Session 426, 445 (1982).[4] Courts have widely recognized that the term should therefore be interpreted "according to 'the ordinary and natural meaning of the two words it contains, as . . . decided by reference to all the circumstances of any particular case.'" Koch v. Koch, 450 F.3d 703, 712 (7th Cir. 2006) (quoting Mozes, 239 F.3d at 1071 (alterations omitted)).
Understood in an ordinary and nontechnical way, a child's "habitual residence" is simply the place where he usually or customary lives.[5] See, e.g., Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir. 1995) (noting "no real distinction between habitual and ordinary residence" (citing Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993), in turn citing Re Bates, No. CA 122.89, High Court of Justice, United Kingdom (1989))). "'[I]n their natural and ordinary meaning[, ] the words mean that the person must be habitually and normally resident [in that country], apart from temporary or occasional absences of long or short duration.'" Mozes, 239 F.3d at 1073 (quoting Shah v. Barnet London Borough Council, [1983] 1 All E.R. 226, 233 (Eng. H.L.)); see also id. at 1073 n. 13. Or, put another way, "we might say that if we observe someone centering his life around a particular location during a given period, so that every time he goes away from it he also comes back, we will call this his habitual residence." Id. at 1073–74. Under the Hague Convention, a petitioner bears the burden of establishing by a preponderance of the evidence a child's habitual residence at the time of the contested removal. See Mota v. Castillo, 692 F.3d 108, 112 (2d Cir. 2012) (citing 42 U.S.C. § 11603(e)(1)(A)).
Although the concept of "habitual residence" seems straightforward, the issue is often disputed in Hague Convention cases, which tend to involve children with ties to more than one country. See Gitter, 396 F.3d at 133. Given the Congressionally recognized "need for uniform international interpretation of the Convention, " 42 U.S.C. § 11601(b)(3)(B), courts have articulated guiding principles to provide for "intelligibility and consistency in [the] application" of this term, [6]Mozes, 239 F.3d at 1072.
Determining a child's habitual residence often becomes difficult when parents move a child from one country to another, raising the question of which country is the "habitual residence" of the child. In evaluating these cases, we have looked to the intent of the parents as a particularly important factor in understanding the context of a child's move to another country. As we have explained:
Focusing on intentions gives contour to the objective, factual circumstances surrounding the child's presence in a given location. This approach allows an observer to determine whether the child's presence at a given location is intended to be temporary, rather than permanent. For example, it allows an observer to distinguish between a child who went away to summer camp for a temporary duration and a child who moved permanently to a new location. In the case of the child away at summer camp, one would generally conclude that the child has not acquired a new habitual residence . . . [because] "he already has an established habitual residence elsewhere and his absence from it—even for an entire summer— is no indication that he means to abandon it."
Gitter, 396 F.3d at 132 (quoting Mozes, 239 F.3d at 1074). Accordingly, "we will presume that a child's habitual residence is consistent with the intentions of those entitled to fix the child's residence at the time those intentions were mutually shared." Id. at 133.
At the same time, however, "parental intent cannot alone establish a child's habitual residence, " nor can it prevent a habitual residence from changing. Id. Instead, a child's habitual residence changes when the child becomes settled in another country, even if one or both of the parents intend for the child to return to the original country of habitual residence. Id. at 133–34. As we have explained:
"The question in these cases is not simply whether the child's life in the new country shows some minimal degree of settled purpose, but whether we can say with confidence that the child's relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed."
Id. at 134 (some internal quotation marks omitted) (quoting Mozes, 239 F.3d at 1081). In other words, we ask: "[W]ould returning the children . . . be tantamount to sending them home?" Holder, 392 F.3d at 1019. Accordingly, although "[n]ormally the shared intent of the parents should control the habitual residence of the child, " that intent is not controlling when "the evidence unequivocally points to the conclusion that the child has [acclimated] to the new location." Gitter, 396 F.3d at 134. The Hague Convention, after all, "places at the head of its objectives the restoration of the status quo, by means of the prompt return of children" to their home country. Gitter, 396 F.3d at 130 (internal quotation marks omitted).
The two-step framework articulated in Mozes and followed by our Court in Gitter is flexible enough to account for the varied circumstances of individual cases. See, e.g., Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir. 2010) (noting that the "habitual residence" inquiry does not amount to "rigid" adherence to parental intent); Koch, 450 F.3d at 715–16 (explaining that the framework in Mozes is "flexible" and "not so rigid"). When applying this framework, the age of the child and the time spent in the respective countries can affect how much weight a court should place on parental intent.[7] For instance, parental intentions become less relevant the longer a child remains in the new environment. In fact, once a child has "been living in one country . . . for a sufficiently long period, " then "questions as to the purpose of the residence become irrelevant, " Gitter, 396 F.3d at 134 (quotation marks omitted). Accordingly, although it makes sense to "'regard the intentions of the parents as affecting the length of time necessary for a child to become habitually resident, because the child's knowledge of these intentions is likely to color its attitude toward the contacts it is making, '" Ruiz v. Tenorio, 392 F.3d 1247, 1254 (11th Cir. 2004) (quoting Mozes, 239 F.3d at 1079– 80), courts must not forget that the core concern of "habitual residence" is where a child normally or usually lives. Once a court "'can say with confidence'" that the child has become settled into a new environment, habitual residence in that country is established. Gitter, 396 F.3d at 134 (quoting Mozes, 239 F.3d at 1081). In this way, the Gitter framework helps provide "intelligibility and consistency" to the habitual residence inquiry, Mozes, 239 F.3d at 1072, but it is flexible enough to recognize that the overall assessment of habitual residence is "not formulaic" but instead "is a fact-intensive determination that necessarily varies with the circumstances of each case, "[8] Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir. 2004).
In sum, "[t]o determine which country is a child's country of habitual residence under the Hague Convention, we apply the two-part test set forth in Gitter v. Gitter." Hofmann v. Sender, --- F.3d ----, 2013 WL 1955846, at *8 (2d Cir. May 14, 2013). We "begin an analysis of a child's habitual residence by considering the relevant intentions, " because "[f]ocusing on intentions gives contour to the objective, factual circumstances surrounding the child's presence in a given location." Gitter, 396 F.3d at 132. We "presume that a child's habitual residence is consistent with the intention of those entitled to fix the child's residence at the time those intentions were mutually shared." Id. at 133. This presumption can be overcome, however, if the evidence shows that a child is settled into (or, "acclimated" to) the new environment—a burden that is more easily satisfied the longer a child has lived in that country. When considering these two steps, the court must not lose sight of the fact that the framework is designed simply to ascertain where a child usually or customarily lives.
On appeal, we review a district court's factual findings for clear error and its legal conclusions de novo. See Ozaltin, 708 F.3d at 368. The habitual residence inquiry is heavily fact dependent, but whether the relevant facts satisfy the legal standard is a question of law that we review de novo. See Gitter, 396 F.3d at 133 n.8; see also Ozaltin, 708 F.3d at 368 ("Legal conclusions include interpretations of the Convention and applications of the appropriate legal standards to the facts."). Accordingly, "a determination of habitual residence under Article 3 of the Hague Convention is a mixed question of law and fact, under which we review essentially factual questions for clear error and the ultimate issue of habitual residence de novo." In re B. Del C.S.B., 559 F.3d 999, 1008 (9th Cir. 2009) (internal quotation marks omitted); see also, e.g., Larbie v. Larbie, 690 F.3d 295, 312 (5th Cir. 2012) (citing Barzilay v. Barzilay, 600 F.3d 912, 916 (8th Cir. 2010)); Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009). We conclude that a district court "clearly erred" only if a review of the record "leave[s] us with 'the definite and firm conviction that a mistake has been committed.'" Hofmann, 2013 WL 1955846, at *8 (quoting Mota, 692 F.3d at 114).
B. Analysis
The Father argues, in part, that we need not assess whether the child's habitual residence changed to Italy because the child was habitually resident in Italy throughout his whole life. Accordingly, we begin by examining the District Court's conclusion that the child was habitually resident in the United States in 2009, at the time of the parents' purported last shared intent regarding the child's residence.
Even assuming that the child was habitually resident in Italy prior to 2009, we conclude that his habitual residence changed to the United States after the parties reached the Settlement Agreement in May and June of 2009. As noted, habitual residence depends on a combination of parental intent and physical presence, see, e.g., Mozes, 239 F.3d at 1079, but when a child is very young, "the shared intent of the parents . . . [is] of paramount importance, " Whiting, 391 F.3d at 550. We detect no clear error in the District Court's finding that the Separation Agreement—signed by the Mother and Father in May 2009 and June 2009, respectively—demonstrated the parents' shared intent for the child to live primarily in New York. Moreover, the child, who was then less than three years old, had been living with the Mother in New York for several months. Because the child was living in New York, and because the parents agreed that he would continue to reside in New York, we agree that the child, in light of his age, was habitually resident in the United States at the time of the Settlement Agreement.
The Father argues that the Settlement Agreement is invalid under Italian and New York law and therefore cannot support the District Court's finding of shared intent. We disagree. "Regardless of whether the document is enforceable in [state] court, it is nevertheless clearly probative of the parties 'last shared intent' for the purposes of determining habitual residence under ICARA." Guzzo, 2011 WL 6934108, at *6 n.3 (quoting Gitter, 396 F.3d at 134). Indeed, the Father acknowledged at trial that when he signed the Agreement he understood (1) its terms; (2) that it provided for the child's residence in New York; and (3) that it would be legally binding, even though he hoped to reconcile with the Mother. Id. at *5–6. Accordingly, we find no clear error in the District Court's finding regarding the parents' shared intent that the child would reside in New York. See Mozes, 239 F.3d at 1076 (noting that shared intent can exist "despite the fact that one parent may have had qualms" about the agreement).
Having found no error in the District Court's determination that the child was habitually resident in the United States at the time of the Settlement Agreement in 2009, we now consider whether the child became habitually resident in Italy following his return to that country in the summer of 2009.
At the first step of the Gitter test, we ask whether the evidence offered at trial showed "settled mutual intent from which . . . abandonment [of the prior habitual residence] can be inferred." Mozes, 239 F.3d at 1077. When considering this issue, "the court should look . . . at actions as well as declarations." Gitter, 396 F.3d at 134. "Clearly, this is one of those questions of historical and narrative facts in which the findings of the district court are entitled to great deference." Mozes, 239 F.3d at 1077–78 (internal quotation marks omitted); see also Hofmann, 2013 WL 1955846, at *8 ("The last shared intent of the parents is a question of fact, and the district court's determination in that regard is reviewed for clear error and thus entitled to deference.").
Having reviewed the record and the parties' submissions, we conclude that the District Court's findings are "amply supported by the record, and there is nothing . . . leav[ing] us with 'the definite and firm conviction that a mistake has been committed.'" Hofmann, 2013 WL 1955846, at *8 (quoting Mota, 692 F.3d at 114). Although the Mother agreed to the child's return to Italy and attendance at an Italian nursery school, the District Court found credible the Mother's testimony that her stay in Italy was temporary, and that she consistently intended to return to New York for the child to begin kindergarten. Record evidence amply supports this conclusion. For instance, the Mother and the child entered Italy on temporary tourist visas, and they registered for health care in New York even though eligible for public health insurance in Italy. The District Court also credited the Mother's testimony that "her willingness to attempt a reconciliation in Italy was clearly premised on the understanding that, should the reconciliation prove unsuccessful, the parties would continue to abide by the terms of the agreement." Guzzo, 2011 WL 6934108, at *9. Indeed, the Mother returned to New York with the child in November 2010, with the stated expectation of staying permanently in the United States, before she agreed to make another attempt at reconciliation with the Father the following month. Accordingly, we do not disturb the District Court's finding that the parents never shared an intent for their child to abandon his prior habitual residence in the United States.
The second step in the Gitter framework is to examine whether, notwithstanding a lack of shared parental intent to change the child's long-term residence, the child was nonetheless sufficiently settled into (or, "acclimated" to) the new environment such that returning the child to that environment would "be tantamount to sending [him] home." Holder, 392 F.3d at 1019.
In this case, the five-year-old child lived mostly in Italy from soon after his birth in 2006 until his removal in 2011, and he regularly attended nursery school there. If it were properly raised in this appeal, we might conclude that the child was "acclimated" to living in Italy—that is, we might be able to "'say with confidence'" that the child's usual or customary place of residence was Italy, notwithstanding any parental intentions to the contrary. Gitter, 396 F.3d at 134 (quoting Mozes, 239 F.3d at 1081). Compare, e.g., Shalit v. Coppe, 182 F.3d 1124, 1128 n.5 (9th Cir. 1999) (noting, without deciding habitual residence, that "[t]hree years is certainly enough time for [the child] to be considered 'settled' in Israel, regardless of [the mother's] claimed intention to have him return permanently to Alaska at some point in the future."), with Hofman, 2013 WL 1955846, at *10 (no acclimation to New York where child had lived there for "over a year" but had moved within the state and had maintained "close ties to friends and caretakers in Canada").
We need not address this issue, however, because the Father—represented by counsel in the District Court and at the time of filing his opening appellate brief—did not preserve any argument that the child was acclimated to Italy. See Guzzo, 2011 WL 6934108, at *5 n.2. "In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present." Greenlaw v. United States, 554 U.S. 237, 243 (2008). Although courts retain "the independent power to identify and apply the proper construction of governing law, " Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991), "our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief, " Greenlaw, 554 U.S. at 244 (quotation marks omitted). Accordingly, the Father has waived any argument with respect to the child's "acclimation." See, e.g., JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (arguments not presented in an appellant's opening brief are waived).
To summarize:
1. Notwithstanding the argument of the petitioner (the Father) that the child has been habitually resident in Italy since birth, we conclude that the child was habitually resident in the United States in 2009. At that time, the two-year-old child was living in New York with the respondent (the Mother), and the parents agreed that he would continue to live in the United States as his country of primary residence. Because parental intentions regarding a child's residence are of paramount importance at such a young age, and because the child was already physically present in New York, we conclude that he was habitually resident in the United States at the time of the parents' Settlement Agreement in 2009.
2. We also reject the Father's argument that, even if the child was habitually resident in the United States in 2009, he became habitually resident in Italy by the time of the contested removal in August 2011. To assess this argument, we use a two-step framework for evaluating whether a child's "habitual residence" has changed. See Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005).
3. At the first step, we conclude that the District Court did not clearly err in finding that the parents did not agree to change the child's habitual residence from the United States.
4. The second step of the Gitter framework recognizes that the habitual residence inquiry is flexible and does not place talismanic importance on parental intent, especially if the child is old enough to appreciate his surroundings and has lived mostly in a single country for an extended period. But we do not consider the second step of the Gitter framework here because the Father has waived any reliance on that step.
Accordingly, because the District Court did not err regarding the first step of the Gitter test, and because the petitioner has not preserved any argument regarding the second step, the judgment dismissing the petition is AFFIRMED.
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(May 2013)


text: These Body Balls are perfect as a therapy tool for older students, with the increased sized to support a larger height and weight. The flexibility of the balls can help with balance training, coordination as well as relaxation and for exercise. Being lighter than Gym Balls, it gives students more control when sitting and handling them and the warm and tactile surface takes up to 300kg / 47 stone and should be stored in a safe place when not in use. Constructed of durable PVC. Each ball has a slip-resistant ribbed surface. Please do not leave students unattended whilst they are using the Body Balls. Supplied ready to inflate. Inflators sold separately. Please note - colours may vary.


text: Students in an art club at a high school in Georgia recently showcased their math skills during the design and creation of a labyrinth for community use. Students measured the area for the design, created scale sketches of the labyrinth and calculated the overall cost of the project. "It was really neat to see them in action and see some of their math skills," teacher Stan Dodson said.


text:
COLUMBUS, Ohio — Cows aren't jumping over the moon in this year's Ohio State Fair butter sculptures, but the refrigerated exhibit does have a space travel theme.
Fair officials said Tuesday the usual cow and calf made of butter are accompanied this year by a butter space shuttle and astronaut.
The American Dairy Association says the display pays tribute to the shuttle program's 30-year legacy. The last space shuttle flight ended Thursday with the landing of the Atlantis.
The trade group says in a news release that the butter sculptors "had a blast" creating the exhibit. The work took 475 hours and used 1,550 pounds of butter, about 6,200 sticks.
Last year's fair featured two NFL players and a giant football made of butter.
The 158th Ohio State Fair opened Wednesday.
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text:
The tilati in the area of Mashhad in the North saw a marked white Orange
And I heard it to Christians through Christian sites in the North.
Anyone heard about this?
Wanna join the discussion?! Login to your Long distance hiking trails forum accountor Register a new forum account. Or Connect via Facebook
Get in touch for Christ you saw.
Is the child of courage (not for Jesus) not available.
And here's another link
Http://www.hike.co.il/posts/t65475% d7% a9% d7% 91% d7% 99% d7% 9c% d7% 99% d7% a9% d7% 95
Have fun good luck.
Although not really valid and Mashad and less regulated, but that Bill White, Orange and white.
Why less? And what would you recommend to do anything illegal?
We should all realize we do not embark on these trails and areas coordination with IDF, including weapon and who knows what else. It's better to be cautious than hasty and rules 7.


text:
Gotu kola Salad
Total Time
Prep 10 mins
Cook 0 mins
I'm posting this recipe because I have too much gotu kola or swamp pennywort and I need some recipes to get rid of it! Gotu kola is supposedly good if you have arthritis.
Ingredients Nutrition
- 2 bunches gotu-kola (about 250 g leaves without stems)
- 3 shallots or 1 small onion, finely chopped
- good squeeze lime juice or lemon juice
- 1 sliced chili (optional)
- 75 g fresh grated coconut
- salt
- 1⁄2 teaspoon sugar
- Wash well and strip leaves from stems.
- Shred finely with a sharp knife.
- Combine with other ingredients and serve immediately.
- The flavour is slightly sour, slightly bitter.


text:
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sanskriti school hosts a noble ceremony
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Recently, Sanskriti School held a special event achieve desired efforts from all politicians for the realization of the millennium Development Goals which aim to eradicate poverty in India. The list of the guests included Kalikesh Narayan Singh Deo (MP). The petition, which was submitted to the minister, was signed by 500 students and activists. These persons are members of M D G Community. The event was held by SWECHHA and it s associates. The petition was very persuasive in nature and the group hoped it would motivate lawmakers to do the needful.
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Word mark
Trademark: 'COMFORT MAT'
On 14. 4. 2000 the community trademark application no. 001611706 was filed for COMFORT MAT (Word mark) by Pasture B.V. before the OAMI.The goods and services in respect of which registration of the trademark was sought are in classes 6, 7 and 27. The current status of the trademark is application withdrawn.
Status is 'Application withdrawn'
The Community Trade Mark application has been withdrawn by the applicant for whatever reason. So right now there is no protection of this very trademark ad you can file it.
|14. 4. 2000
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|6, 7, 27
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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Research Paper:
. Even when the child in a home where DV occurs is not physically harmed, most of the time, these children know about the violence. As a result, they may experience emotional and behavior problems (The Domestic Violence…, N.d.).
A victim of DV needs to be reminded:
She is not alone.
She is not at fault.
Help is available.
In The physician's guide to domestic violence, P.R. Salber and E. Taliaferro (N.d.). about stress that DV evolves from the aim for power and control. They define domestic violence as "a pattern of controlling behaviors aimed at gaining power in order to control an intimate partner. It is not just about hitting or punching. It is a pattern of assaultive and coercive behavior, including psychological, sexual and physical abuse" (Salber & . Taliaferro). The syndrome of dominance and control the perpetrator initiates leads to the victim's increasing entrapment, also known as the "battering syndrome."
Domestic violence, "Practice standards for working with women affected by domestic and family violence (2002), an Australian publication explains, denotes violence between individuals indicated in the domestic violence legislation. DV encompasses physical abuse such as hitting, punching, slapping, shoving, as well as other varieties of physical and sexual assault. DV includes:
Determined injury;
Determined damage to property;
harassment or intimidation, includes stalking;
Indecent behavior toward the spouse/partner without the spouse consenting; and A threat or effort to commit whichever of the above ("Practice standards…," 2002).
In addition to physical abuse, DV may include various other behaviors to gain/maintain power and control over the victim and/or frighten the victim, for example, the abuser may threaten "to injure or otherwise harm the spouse or the spouse's children, or constantly following a spouse. It is the important elements of fear and intimidation that distinguishes between conflict in a relationship and domestic violence" ("Practice standards…," 2002, p. 8). Physical violence, one major risk factor for the development of mental illness in women, may contribute to anxiety disorders such as post traumatic stress disorder (PTSD). According to Baca-Garcia, Perez-Rodriguez, Mann and Oquendo (2008), higher rates of domestic violence or sexual abuse link to increased risk for mental health disorders, suicidal ideation and attempts. Pailler et al. (2007) concur that those individuals who suffer repeated physical violence report more symptoms of posttraumatic stress disorder and depression. Therefore, the researcher asserts, identifying the risk factors which increase the probability of women becoming victims of recurring violent acts, along with identifying those currently being abused, proves vital. The development and implementation of evidence-based practice protocol to identify victims of DV, the primary focus of this capstone, the literature reveals, comprises a significant study effort.
Study Aim and Objectives
As this Capstone project investigates the development and implementation of an evidence-based practice protocol in the researcher's clinical specialty area, domestic violence and Hispanic women, the researcher also identifies and describes this current critical concern. The objects for this study include:
To review and analyze the current research and clinical literature pertinent to the key issues of an EPBB, relating to domestic violence and Hispanic women, including published standards.
To implement an existing EBPP in the researcher's clinical setting in work as an APN.
To provide a theoretical base for the proposed EBPP: physiological/psychological/pathophysiological, behavioral, developmental theories.
To describe/develop the EBPP, and describe the process for its implementation in the researcher's practice setting, including EBPP document as appendix.
To identify ways in which the effectiveness of the EBPP will be evaluated and documented; to identify outcomes.
To describe the cost implications of the new EBPP, and how the implementation of this EBPP will be financed.
To summarize the significance of this case to the APN role, e.g., identify relevant specialty competencies.
To create a letter of inquiry for submission to relevant journal to determine possibility for publication of project paper.
The next section of this Capstone relates a synopsis of literature related to this study's focus to fulfill the aim and objectives. During the process, the reader's understanding of DV, as well as IPV, confirmed to be a primary public health concern, not only in the U.S., but worldwide will increase. The researcher's hope for this study includes the desire that the related information regarding EBPP will ultimately contribute to helping decrease reported and unreported statistics regarding DV.
"My abuser didn't learn it [to be an abuser] off the TV.
My husband learned it from his dad"
(Tilley & Brackley, 2004, Developmental critical…section, ¶ 4).
Increasing Concerns
The prevalence of domestic violence among Hispanic women in the United States reportedly increases each year, simultaneously posing a high threat for the development of mental illness among this population. According to Rodriguez, Heilemann, Fielder, Ang, Nevarez, and Mangione (2008), Hispanic women who experience physical violence are at increased risk for mental and physical problems including depression, anxiety and substance abuse. To increase reports of domestic violence, it proves crucial on understand sthe cultural beliefs and practices of Hispanic women. This knowledge and awareness consequently will facilitate healthcare providers to specifically assess Hispanic women who present with signs and symptoms of physical abuse.
Many Hispanic women believe their role in the family and community is inferior in comparison to males. Some of these women are brought up in homes with male role models who controlled and manipulated other family members. A number of these women also suffered sexual abuse when a child. It is common for Hispanic women to perceive violence as acceptable since many grew up in abusive homes. Young females who become involved in abusive relationships during early adulthood often come from a family with history of intimate partner violence (Pailler, Kassam-Adams, Datner, & Fein, 2007).
For Latino women, the family is of utmost importance. Therefore, women frequently neglect their own health needs. Maternidad Latina (2008) observes that pressure to "keep the family together" may come from family or church members, even if it means suffering more abuse. Religious and societal beliefs may contribute to woman feeling guilty if/when she leaves her abusive partner or acts against his will. Hispanic women, particularly immigrants, may not be familiar with U.S. laws that protect women and children against violence, and not realize these laws may differ considerably from those in other countries. The Hispanic woman may also fear involving the law because of her immigration status. Other factors which may restrain Hispanic women from seeking help include the language barrier and lack of financial means.
One vital element for developing an evidenced-based protocol for Hispanic women suffering from domestic violence and mental illness involves providing cultural sensitive interventions. According to National Alliance of Mental Illness, the first component is the education of Hispanic women about domestic violence, as well as the negative effects of DV on mental and physical health. The women also need to be advised of specific available community resources for victims of domestic violence and treatment options.
In 2006, statistics reported the percentages of females with mental health disorders to be higher than in males. Furthermore, Hispanics reportedly have the highest percentage for mental illness and substance abuse. During 2006, this was noted be as high as 86.9% for the Hispanic population, according to the Substance Abuse and Mental Health Service The percentage of women treated for psychiatric disorders, reportedly has increased each year. The researcher presents a significant amount of quantitative data on this population, accessed from the Substance Abuse and Mental Health Service Administration (SAMHSA) in this Capstone's Appendices. SAMHSA reports include demographic data such as gender, age distribution, race/ethnic distribution, employment status, and living situation (Table 1, 3 & 4).
Studies indicate that mental health disorders are more prevalent among females than in males. A large volume of this researched evidence suggests the reason relates to the higher rate of sexual and physical abuse in females. According to Dixon, Howie, and Starling (2005), as noted in this Capstone's introduction, abuse serves as an overwhelming risk factor for depression and posttraumatic stress disorder in females. In the study Dixon, Howie, and Starling conducted, 70% the female participants who suffered from posttraumatic stress were victims of domestic violence and sexual assault.
Due to the physical abuse they experience, many adolescent females, Dixon, Howie, and Starling note, also have dual diagnosis of depression, panic disorder, and/or substance abuse. Several interventions that will impact and improve the health and quality of life of this population include:
Prompt and accurate assessment of physical abuse through a domestic violence assessment tool; and Proper use of mental health resources and referrals.
Myths and Facts Regarding DV
The online publication, "Myths and facts about domestic violence" (2009) clarify the following five myths relating to DV:
Domestic violence does not affect many people.
A woman is beaten every 15 seconds. (Bureau of Justice Statistics, Report to the nation on Crime and Justice. The Data. Washington DC Office of Justice Program, U.S. Dept. Of Justice. Oct 1983)
Domestic violence is the leading cause of injury to women between ages 15 and 44 in…[continue]
"Evidence-Based Practice Protocol Domestic Violence" (2009, May 07) Retrieved November 28, 2016, from http://www.paperdue.com/essay/evidence-based-practice-protocol-domestic-22083
"Evidence-Based Practice Protocol Domestic Violence" 07 May 2009. Web.28 November. 2016. <http://www.paperdue.com/essay/evidence-based-practice-protocol-domestic-22083>
"Evidence-Based Practice Protocol Domestic Violence", 07 May 2009, Accessed.28 November. 2016, http://www.paperdue.com/essay/evidence-based-practice-protocol-domestic-22083
Advanced Practice Nursing Framework Following its introduction during the 1960s, the role of the advanced practice nurse (hereinafter alternatively "APN") has expanded greatly into a number of specialty areas (Nwosuocha, 1999). Consequently, the definition of the advanced practice nurse has also experienced significant changes. According to Nwosuocha, "With the expanded roles of advanced practice nursing there are many definitions of what constitute faculty practice. Teaching, service, joint appointments and other
Moreover, it is unclear whether Jim has attempted to reestablish any meaningful contact with his children; rather, his entire focus has been on becoming a better person. While there is certainly nothing wrong with that goal in and of itself (it is, after all, a universal human quality), he appears to have pursued this goal to the total exclusion of making any substantive reparations to his family. Finally, it is
" (Tyson, 1) The participants in the program has responded universally in favor of the program and have described it as a way of gaining access to critical support services which are inaccessible due to age, travel restriction and disability. Though the Tyson article denotes that many participants in the program do require some adjustment time to become comfortable with the flow of videoconferencing, most have ultimately reported that the reduction
The questions on legal liability issues were minimal as the field of legal issues is new in nursing. The questions addressed a theoretical part regarding the legal liability issues. They were no need of clarification since the questionnaires were easy and self -- administrative. Although the researcher was there for assistance but telephonically. 1.7. Data analysis In this chapter, the analysis is discussed in detail. Data was collected by means of
(1999) which are: 1) Those with serious mental illnesses such as schizophrenia, bi-polar disorder with major depression and who use alcohol and drugs to self-mediate to cope with the symptoms; and 2) Those with borderline personality and anti-social personality disorders including anxiety disorder that is complicated by use of alcohol and illicit drugs. (Mather et al. 1999) Presenting further difficulty is the establishment of problems with alcohol and illicit drug use
143). In this regard, Yen cites the case of one-4-year-old child who was sold to a child sex-trafficking ring operating in the United States. According to Yen, "She was enslaved for twelve years, servicing mostly American men. To keep the children obedient, her traffickers frequently abused them psychologically and physically" (p. 653). Although truly alarming, this case is certainly not unique and Yen stresses that children ranging in age
100). Much of the focus of personnel selection using psychological testing was on new troops enlisting in the military during two world wars and the explosive growth of the private sector thereafter (Scroggins et al., 2008). Psychological testing for personnel selection purposes, though, faded into disfavor during the 1960s, but it continues to be used by human resource practitioners today. In this regard, Scroggins and his colleagues advise, "Many


text:
18 Jun 2007
Laugh Now, Stupid! Garsington's `Lady of the Lake' Is Bad Joke
Raphaela Papadakis seems to like 'playing with fire'. After her acclaimed performance as the put-upon maid, Anna, in Independent Opera's production of Šimon Voseček's Beidermann and the Arsonists at Sadler's Wells last year, she is currently rehearsing for the premiere this week of And London Burned, a new opera by Matt Rogers which has been commissioned by Temple Music Foundation to commemorate the 350th anniversary of The Great Fire of London.
By Warwick Thompson [Bloomberg.com, 18 June 2007]
June 18 (Bloomberg) -- The absurdities of Rossini's ``La Donna del Lago'' (The Lady of the Lake) have had audiences laughing affectionately for years.


text:
Mark S. Kitchen, PGA
Main Address:
Broken Tee Virtual Golf Club
166 County St
Lakeville, MA 02347-1888
(508) 923-4653
166 County St
Lakeville, MA 02347-1888
(508) 923-4653
183 Rhode Island Rd
Lakeville, MA 02347-1405
Lakeville, MA 02347-1405
(508) 923-5700
Mark Kitchen is a PGA Professional in Lakeville, MA. The PGA of America comprises 27,000 men and women professionals with one singular goal in mind - to make the game of golf more enjoyable for you.
Services Offered:
- Instruction
Professional has not entered award information.
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Sorry! The position you're looking for is no longer available. Check out other Event Planning internships in Los Angeles, CA below.
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December 02 2016
Are you ready to join an organization where you can make an extraordinary impact every day? Description: The Los Angeles County Division of the American Heart Association has internship opportunities …
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Event Interns Needed for 2017 Program! Only 2 more spots remaining! Start date of January 2nd - March 2nd (six month internships are also available). GBK Productions LLC is looking for interns who are…
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Italian American Museum of Los Angeles — Los Angeles, CA
November 30 2016
Italian American Museum of Los Angeles (IAMLA) is a 21st century, interactive museum that documents the history and contributions of Italian Americans in Southern California and the nation. The Italia…
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Entry Level Event Planning Assistant
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September 28 2016
Entry Level Event Planning Assistant Wilshine Events is of of the leading marketing and advertising firms in the West LA area. We have recently expanded and are looking to fill entry level positions i…
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August 23 2016
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July 26 2016
The BE Hive is an urban sanctuary in the heart of Hollywood. We have several threads of business, all seeking an intern to learn and develop within, maximizing community development and profitability …
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Looking for a high energy future workaholic who is passionate to learn. We will give you tasks you can handle. Looking for go-getters who want to learn the industry, not afraid to work knowing there i…
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Event Planning Internship with nonprofit organization!
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The Dream Builders Project is looking for an Event Planning intern to join our passionate, driven team! This internship will provide you with real-world, hands on event planning experience in a nonpro…
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Event Planning Intern For Fall Semester!
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July 12 2016
This company will give you the unique experience of learning directly from the CEO of a multi-faceted business created to empower women. You will learn the ends and outs of being an entrepreneur, get …
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June 19 2016
Innovative Aesthetics is currently looking for CREATIVE DIRECTORS, PHOTOGRAPHERS, GRAPHIC DESIGNERS AND BLOGGERS to join our team. The candidate must have knowledge and/or interest in art, architectur…
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Fue hair transplant clinic Pakistan
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text:
A Macroeconomic Experiment in Mass Immigration
This paper studies the effects of mass immigration from the former USSR to Israel in the 1990s on the employment of the native-born. The exogeneity and the size of this inflow make it a "natural experiment" of macroeconomic proportions. An open-economy macroeconomic model is used to analyze this experience, focusing on the differential entry of immigrants into the labor and goods markets and the ensuing dynamic implications for labor demand. The reduced form of the model – consisting of two equations for native employment and the relative price of domestic goods – is estimated, finding negative effects of immigration on native employment a year after arrival. The delay in the effect is attributed to a positive impact of immigration on the excess demand for goods and, thus, on the demand for labor earlier on.
If you experience problems downloading a file, check if you have the proper application to view it first. In case of further problems read the IDEAS help page. Note that these files are not on the IDEAS site. Please be patient as the files may be large.
|30 pages
|Date of creation:
|Apr 2002
|Date of revision:
|Contact details of provider:
| Postal: IZA, P.O. Box 7240, D-53072 Bonn, Germany
Phone: +49 228 3894 223
Fax: +49 228 3894 180
Web page: http://www.iza.org
|Order Information:
| Postal: IZA, Margard Ody, P.O. Box 7240, D-53072 Bonn, Germany
References listed on IDEAS
Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.:
- George J. Borjas & Richard B. Friedman & Lawrence F. Katz, 1997. "How Much Do Immigration and Trade Affect Labor Market Outcomes?," Brookings Papers on Economic Activity, Economic Studies Program, The Brookings Institution, vol. 28(1), pages 1-90.
- David Card, 1989.
"The Impact of the Mariel Boatlift on the Miami Labor Market,"
NBER Working Papers
3069, National Bureau of Economic Research, Inc.
- David Card, 1990. "The Impact of the Mariel Boatlift on the Miami Labor Market," ILR Review, Cornell University, ILR School, vol. 43(2), pages 245-257, January.
- Joseph G. Altonji & David Card, 1989. "The Effects of Immigration on the Labor Market Outcomes of Natives," NBER Working Papers 3123, National Bureau of Economic Research, Inc.
- Rachel M. Friedberg & Jennifer Hunt, 1995.
"The Impact of Immigrants on Host Country Wages, Employment and Growth,"
Journal of Economic Perspectives,
American Economic Association, vol. 9(2), pages 23-44, Spring.
- Rachel M. Friedberg & J. Hunt, 1995. "The Impact of Immigrants on Host Country Wages, Employment and Growth," Working Papers 95-5, Brown University, Department of Economics.
- Klaus F. Zimmermann, 1995. "Tackling the European Migration Problems," Journal of Economic Perspectives, American Economic Association, vol. 9(2), pages 45-62, Spring.
- Richard B. Freeman, 1982. "Crime and the Labor Market," NBER Working Papers 1031, National Bureau of Economic Research, Inc.
- Rachel M. Friedberg, 2001. "The Impact of Mass Migration on the Israeli Labor Market," The Quarterly Journal of Economics, Oxford University Press, vol. 116(4), pages 1373-1408.
- John M. Abowd & Richard B. Freeman, 1991. "Immigration, Trade, and the Labor Market," NBER Books, National Bureau of Economic Research, Inc, number abow91-1, September.
- George J. Borjas, 1994. "The Economics of Immigration," Journal of Economic Literature, American Economic Association, vol. 32(4), pages 1667-1717, December.
- Joseph G. Altonji & David Card, 1991. "The Effects of Immigration on the Labor Market Outcomes of Less-skilled Natives," NBER Chapters, in: Immigration, Trade, and the Labor Market, pages 201-234 National Bureau of Economic Research, Inc.
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decided: August 5, 1988.
GARY OBRINGER, PETITIONERv.COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT
Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Gary Obringer, No. 2260-P.
Robert W. Beckwith, Appellate Counsel, with him, Lester G. Nauhaus, Public Defender, and John H. Corbett, Jr., Chief, Appellate Division, for petitioner.
Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Senior Judge Blatt.
[ 119 Pa. Commw. Page 309]
Gary Obringer*fn1 (petitioner) petitions for our review of denial by the Pennsylvania Board of Probation and Parole (Board) of administrative relief by its order mailed on December 3, 1987. We will affirm.
The petitioner was arrested for burglary in 1979 and was sentenced to serve one to five years in prison. He
[ 119 Pa. Commw. Page 310]
began serving this sentence on November 2, 1983. His original maximum expiration date, therefore, was November 2, 1988. He was paroled on November 2, 1984. While on parole, he was arrested four times for new criminal offenses on November 8, 1985, December 11, 1985, December 13, 1985 and February 4, 1986.*fn2 He was found guilty on June 4 and June 25 of 1986 and was ultimately sentenced to serve a term of one and one-half to three years.
The petitioner was charged by the Board with a technical violation for violating condition number 3b of his parole by failing to notify his parole agent of his arrest within 72 hours. A preliminary hearing was held on January 16, 1986, after which it was determined that probable cause was established on the technical violation. The petitioner's violation hearing was subsequently held on February 20, 1986. On April 21, 1986, the Board ordered the petitioner to be recommitted as a technical parole violator to serve six months backtime when available.*fn3 The Board's decision of May 8, 1987 reads as follows:
Refer to Board action of 3-18-86 -- recommitment as a technical parole violator to serve 6 months backtime when available; and now continue on parole with prejudice with regard to the convictions of 6-4-86 and 6-25-86.
On August 27, 1987, the petitioner was paroled from his new sentence to Board detainer to begin serving his backtime. This decision, which was dated November
[ 119 Pa. Commw. Page 3113]
, 1987, also noted that he was to be reparoled on February 27, 1988 and that his new parole violation maximum date would be July 16, 1990. On November 18, 1987, the petitioner filed a Request for Administrative Relief with regard to the November 3, 1987 decision, in which he challenged the recomputation of his maximum time from November 2, 1988 to July 16, 1990. He argued that this recomputation had the effect of revoking his parole.
The Board's denial of this request, mailed on December 3, 1987, explains that the petitioner's maximum time was recomputed because he cannot be credited for the period of time during which he was delinquent on parole, citing Section 21.1 of the "Parole Act" (Act), Act of August 6, 1941, P.L. 861, added by Section 5 of the Act of August 24, 1951, P.L. 1401, as amended, 61 P.S. § 331.21a. The Board explained the recomputation as follows:
Your original maximum expiration date was 11-2-88. Your good standing on parole was terminated on 12-13-85. This meant that you had two years, ten months, 19 days remaining on your original sentence at that point. If you will add that time to 8-27-87, you will find that your new maximum expiration date is 7-16-90. You began service of your back parole time on 8-27-87, and will be reparoled on 2-27-88, upon the condition there are no misconducts.
Original Record at 1.
The petitioner raises four interrelated issues before this Court.*fn4 The first is whether the Board erred by "extending" his parole time without holding a final revocation hearing, thereby denying him due process of law.
[ 119 Pa. Commw. Page 312]
A "revocation hearing" is required before a parolee may be recommitted as a convicted violator. 37 Pa. Code § 71.4. it is defined at 37 Pa. Code § 61.1 as, "[a] hearing held to determine whether a parolee should be recommitted as a convicted violator." In contrast, a "violation hearing" is defined as "[a] hearing held to determine whether a parolee should be recommitted as a technical violator." 37 Pa. Code § 61.1. See also 37 Pa. Code § 71.2 (procedure for violation of parole conditions). The petitioner was charged only as a technical violator, not as a convicted violator. Under these circumstances, a "revocation hearing" was not necessary, and the proper procedure was followed by holding the preliminary and violation hearings.
Secondly, the petitioner contends that the Board erred by stopping and extending his parole time in contravention of their order of May 8, 1987, quoted above. After reading this order, we find that we cannot determine what the Board meant by it. In fact, the Board does not address this issue in its brief nor in its denial of administrative relief. Regardless of the intention behind this order, however, the action which the Board took by holding the petitioner's parole in abeyance until he had served his new criminal sentence was proper and within its authority.
The next issue raised is whether the Board properly applied its own "regulations" by having the petitioner serve his new sentence before serving his backtime. The petitioner specifically refers to Section 21.1(a)(1) of the Act, 61 P.S. § 331.21a(a)(1) and Emmi v. Pennsylvania Board of Probation and Parole, 74 Pa. Commonwealth Ct. 554, 460 A.2d 889 (1983), to support his contention that he was entitled to serve his backtime before serving the sentence imposed for the convictions of June 4, 1986 and June 25, 1986. He also points out that he was ordered to serve this time "when available" and argues that he became available on June 25, 1986,
[ 119 Pa. Commw. Page 313]
the date of his last conviction. These arguments, however, are without merit. Section 21.1(a) and Emmi both apply to convicted violators. Although he could have been charged as both a convicted and technical violator, the petitioner was charged only as a technical violator. And, because he was being held on new criminal charges and then to serve a new sentence, he was not in the Board's custody on its warrant until he was paroled from the new sentence on August 27, 1987. There are no provisions in the Act or the regulations for the sequence in which time must be served when a parolee is being held on new criminal charges and then to serve a new sentence, but is charged only as a technical violator. We will not hold, therefore, that backtime must be served before the new sentence in such cases.
The petitioner also argues that the Board erred in ruling that a Gagnon*fn5 II hearing is not required when a parole period is extended. This is essentially the same point he raised in his first argument regarding the necessity for a parole revocation hearing. As noted previously, a violation hearing was held on February 20, 1986. This hearing satisfied the due process requirement of a second hearing.
We would further note, by way of clarification, that the petitioner's parole period here was not lengthened. In recomputing his maximum time, the Board calculated the amount of time he had remaining on his original
[ 119 Pa. Commw. Page 314]
sentence as of December 13, 1985,*fn6 which was two years, 10 months and 19 days, and merely added that remaining time to the date of August 27, 1987, the day when he was released on parole from his new sentence, to determine his new maximum expiration date of July 16, 1990. He is not, therefore, actually serving any more time on parole than he was previously sentenced to serve. He is, in reality, simply not being permitted to serve that time concurrently with his new criminal sentence. As the Board notes, it was not crediting the petitioner for the time during which he was delinquent on parole, which included the time during which he was incarcerated due to his new criminal convictions. Such a result is totally reasonable and certainly not improper.
We will, accordingly, affirm the decision of the Board.
And Now, this 5th day of August, 1988, the decision of the Pennsylvania Board of Probation and Parole denying administrative relief in the above-captioned matter is hereby affirmed.
Further, upon consideration of the petition of the Public Defender of Allegheny County for leave to withdraw as counsel, and it appearing that counsel has not filed a brief consistent with Anders v. California, 386 U.S. 738 (1967), but rather has filed a brief challenging the recommitment action of the Pennsylvania Board of Probation and Parole as violative of due process and that counsel has not alleged that this matter is frivolous, said petition is denied.
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Official Journal of the Italian Society of Vascular and Endovascular Surgery
Indexed/Abstracted in: EMBASE, Scopus
Frequency: Quarterly
Online ISSN 1827-1847
Piffaretti G., Tozzi M., Lomazzi C., Rivolta N., Caronno R., Castelli P.
Unit of Vascular Surgery Department of Surgery University of Insubria, Varese, Italy
Aim. The aim of this study was to present our experience evaluating the effectiveness and durability of popliteal artery aneurysms treatment with stent-graft.
Methods. In the last 6-years, 15 patients aged 72±7 (range 57-85) with 16 popliteal artery aneurysms underwent stent-graft repair. Aneurysm diameter was 44±20 mm (range 20-90), and mean length was 58±24 mm (range 18-90). Fourteen patients were symtpomatic: 5 aneurysms presented with acute thrombosis. All the procedures were performed in the theatre under loco-regional anesthesia.
Results. Primary technical success in placing the stent- graft and excluding the aneurysm was 100%; early oc- clusion was never observed. During a mean follow-up of 22.7 months (range 6-60), 6 late occlusions occurred; 3 patients underwent conversion to conventional femoro- distal bypass after a mean period of 12-months, 2 patients underwent major amputation, and 1 aneurysm was managed conservatively. Four patients died during the follow-up for procedure unrelated causes. Overall, primary patency rates at 1, 3 and 5-years were 84.6%, 63.4% and 47.6%, respectively.
Conclusion. Our experience suggests that endovascular treatment of popliteal artery aneurysms is feasible with initial acceptable results, but have lower long-term patency rates than conventional surgery have been recorded.
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