Opinion
No. 1 CA-CV 17-0197 FC
01-04-2018
In re the Matter of: TERESA M. ALCORN, Petitioner/Appellee, v. CRYSTAL M. MANGO, Respondent/Appellant, RICHARD L. RANKIN, Respondent/Appellee.
COUNSEL Torok Law Office PLLC, Yuma By Gregory T. Torok Counsel for Respondent/Appellant Teresa M. Alcorn, Yuma Petitioner/Appellee Richard L. Rankin, Jr., Yuma Respondent/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Yuma County
No. S1400DO201300407
The Honorable Stephen J. Rouff, Judge Pro Tempore
VACATED IN PART AND REMANDED
COUNSEL
Torok Law Office PLLC, Yuma
By Gregory T. Torok
Counsel for Respondent/Appellant
Teresa M. Alcorn, Yuma
Petitioner/Appellee
Richard L. Rankin, Jr., Yuma
Respondent/Appellee
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge Jennifer B. Campbell joined.
PERKINS, Judge:
¶1 Crystal Mango ("Mother") appeals from the trial court's order modifying third party visitation awarded to her mother, Teresa M. Alcorn ("Grandmother"). For the following reasons, we vacate the order, in part, and remand the case to the trial court.
FACTS AND PROCEDURAL HISTORY
¶2 In May 2015, Grandmother filed a petition for grandparent's visitation rights with Mother's three children pursuant to Arizona Revised Statutes ("A.R.S.") section 25-409(C). In November 2015, the trial court held an evidentiary hearing and entered an order granting Grandmother's request, including monthly weekend visits, an uninterrupted week of summer visitation, and twenty-four hours of visitation during the Christmas, spring, and Thanksgiving school holidays. The court further ordered that Grandmother is permitted to attend any of the children's school functions, excluding parent-teacher conferences.
¶3 Mother later moved to amend the visitation order, and the trial court held an evidentiary hearing in January 2017. Mother sought to terminate Grandmother's visitation with her daughter and modify visitation with her sons to exclude overnight visits, vacation periods, and to allow the boys to choose whether to visit with Grandmother. Following the January hearing, the trial court modified its November 2015 order by granting Grandmother parenting time with Mother's sons, clarifying additional restrictions on Mother's decision-making rights regarding her sons while in Grandmother's care, and terminating visitation between Grandmother and Mother's daughter. Mother now appeals the portions of the order pertaining to her sons.
DISCUSSION
¶4 Mother argues the trial court improperly applied the law in granting Grandmother visitation and parenting time. Specifically, Mother contends the trial court had no authority to grant Grandmother parenting
time or veto power over Mother's childcare decisions. Further, Mother argues the trial court abused its discretion in failing to follow A.R.S. § 25-409(E) and granting visitation to Grandmother.
¶5 We review the trial court's visitation decision for abuse of discretion. McGovern v. McGovern, 201 Ariz. 172, 175 ¶ 6 (App. 2001). However, we review issues of statutory interpretation and constitutional law de novo. Id.
¶6 Parents have a fundamental right, protected by the Fourteenth Amendment, to the "care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65 (2000); see also Graville v. Dodge, 195 Ariz. 119, 123-24 ¶ 19 (App. 1999). This right limits arbitrary intrusion into fit parents' decisions regarding their children, including the decision to limit or deny third party visitation. See McGovern, 201 Ariz. at 178 ¶ 19. Thus, absent a showing to the contrary, it is presumed that a fit parent will act in the best interests of his or her children. See Troxel, 530 U.S. at 68.
I. Third Party Visitation
¶7 Grandmother initially petitioned for third party visitation pursuant to A.R.S. § 25-409(C). This subsection permits a court to award visitation so long as the third party seeking visitation meets the requirements of A.R.S. § 25-409(C) and 409(E). However, a court may not grant more than visitation in response to a petition under A.R.S. § 25-409(C). Here, the trial court awarded Grandmother parenting time and other legal decision-making rights not contemplated under A.R.S. § 25-409(C).
¶8 Third parties seeking parental rights cannot do so under the guise of a petition for visitation. Instead, a third party seeking legal decision-making authority or other rights reserved for legal parents must petition the court pursuant to A.R.S. § 25-409(A). However, even A.R.S. § 25-409(A) does not permit an award of parenting time, which can only be granted to legal parents under A.R.S. § 25-408. See also Egan v. Fridlund-Horne, 221 Ariz. 229, 237-38 ¶ 31 (App. 2009) (recognizing numerous areas where rights of legal parents are superior to the rights of non-parents). Among other protections, A.R.S. § 25-409(A) requires the court to dismiss any petition that fails to establish the petitioner stands in loco parentis or fails to show continued placement with the child's legal parents would be "significantly detrimental" to the child. A.R.S. § 25-409(A). The record below indicates no such petition or findings. Thus, the trial court erred in
awarding Grandmother parenting time and legal decision-making authority, including authority to keep the children out of summer school.
II. Special Weight
¶9 Visitation petitions by non-parent third parties are governed by A.R.S. § 25-409(E), which requires "special weight" be given to the legal parents' visitation decisions in addition to a consideration of several best-interests factors. A.R.S. § 25-409(E). We defined "special weight" in Goodman v. Forsen as the assumption that "the parents' determination is controlling unless a parental decision clearly and substantially impairs a child's best interests." 239 Ariz. 110, 113 ¶ 13 (App. 2016). The trial court entered the November 2015 order before our decision in Goodman, but after the legislature incorporated "special weight" into the statute and after our decision in McGovern. In McGovern, we held that courts should presume "a fit parent acts in his or her child's best interests" and give "special weight" to a fit parent's determination regarding grandparent visitation. 201 Ariz. at 177 ¶ 18.
¶10 Here, the record indicates the trial court gave little weight to Mother's decision to deny grandparent visitation. Instead, the trial court dismissed Mother's decision as one motivated by animosity and presumed that visitation should be granted.
¶11 Subsequently, in its January 2017 order, the trial court ordered continued parenting time with Mother's sons, incorporating its November 2015 order. The January order contained no deference to Mother's wishes, but instead, expressed concern that parents who attempt to interfere with relationships between children and grandparents harm their own relationship with their children. As we expressed in Goodman, the court is limited to overturning a fit parent's decision only on a finding that the parent's decision "substantially impairs" the best-interests of the child. 239 Ariz. at 113-14 ¶ 13; see also Troxel, 530 U.S. at 67-68 (prohibiting visitation orders based solely on a judge's "mere disagreement" with a fit parent's decision). Thus, the trial court erred in failing to give special weight to Mother's decision to deny visitation.
¶12 Finally, although Grandmother's Answering Brief repeatedly referenced the trial court's decision to terminate visitation between Grandmother and Mother's daughter, the issue has not been raised on appeal and is not before this court. Therefore, the portions of the January order pertaining to Mother's daughter remain effective.
CONCLUSION
¶13 For the foregoing reasons, we vacate, in part, the trial court's January order, including the incorporated portions of the November order, and remand the matter for further proceedings consistent with this decision. We deny Mother's request for attorney's fees pursuant to ARCAP 21. Mother is entitled to an award of costs upon compliance with ARCAP 21.