Opinion
No. 2 CA-CV 2014-0058
11-14-2014
PATRICIA MALALLY, Plaintiff/Appellant, v. CINDY STARK, Defendant/Appellee.
COUNSEL The Wilkins Law Firm, PLLC, Phoenix By Amy M. Wilkins Counsel for Plaintiff/Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. DC20130043
The Honorable Margaret L. Maxwell, Judge Pro Tempore
AFFIRMED
COUNSEL The Wilkins Law Firm, PLLC, Phoenix
By Amy M. Wilkins
Counsel for Plaintiff/Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Appellant Patricia Malally appeals the trial court's denial of her petition for visitation of the three children she raised with her former partner and the children's adoptive mother, appellee Cindy Stark. The court denied the petition on the grounds that Malally did not have standing to seek visitation under A.R.S. § 25-409(C). We affirm the denial of the petition.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to upholding the trial court's ruling." Hammoudeh v. Jada, 222 Ariz. 570, ¶ 2, 218 P.3d 1027, 1028 (App. 2009). Malally and Stark are former partners who had been living together and raising three foster children when Stark adopted the children in 2007. Stark changed the children's last name to "Malally Stark" when she adopted them. After the adoption, Malally remained involved in the day-to-day rearing of the children. Following an incident between Malally and the oldest child in February 2013, however, the Arizona Department of Economic Security, Child Protective Services instructed Stark not to allow Malally contact with the family, and Stark obtained an order of protection against Malally.
Child Protective Services is no longer a division of the Department of Economic Security. Child welfare is now administered by the Department of Child Safety. See 2014 Ariz. Sess. Laws 2nd Spec. Sess., ch. 1, § 20.
¶3 In October 2013, Malally filed her "Petition to Establish Legal Decision Making/Custody/Parenting Time (In Loco Parentis)," pursuant to § 25-409 and A.R.S. § 25-402(B). After the trial court began hearings on the petition, the parties stipulated that Malally would withdraw any claim for legal decision-making authority or custody and would proceed only with her claim for visitation. The court accepted the stipulation and ordered the case to proceed on the petition for visitation. The court, after making factual findings concerning Malally's relationship to the children, denied the petition on the grounds that Malally did not have standing to seek visitation under subsection (C) of § 25-409.
The stipulation stated the parties would "proceed with . . . [Malally's] Petition to Establish Parenting Time Visitation in loco parentis under A.R.S. § 25-409(C) and A.R.S. § 25-402(B)." Section 25-409(C), which concerns "person[s] other than a legal parent," does not contain the term "parenting time," but refers only to "visitation rights." Thus, we refer to the requested relief at issue only as visitation or visitation rights.
Failure to File an Answering Brief
¶4 Stark failed to file an answering brief in this case. "When an appellant raises debatable issues, the failure to file an answering brief generally constitutes a confession of reversible error in civil cases." State v. Greenlee Cnty. Justice Ct., Precinct 2, 157 Ariz. 270, 271, 756 P.2d 939, 940 (App. 1988). But that doctrine is discretionary, and we are reluctant to apply it when the trial court has followed the only relevant precedent in the area. See Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994). Therefore, we will review the merits of Malally's appeal.
Visitation Under A.R.S. § 25-409(C)
¶5 Malally argues the trial court erred in determining that she lacked standing to seek visitation with the children. She claims she has standing under subsection (C)(2) of § 25-409, which authorizes the court to grant visitation to a nonparent if "visitation is in the child's best interests" and "[t]he child was born out of wedlock and the child's legal parents are not married to each other at the time the petition is filed." § 25-409(C). Her claim for relief turns on whether children who have been adopted can be "born out of wedlock" under § 25-409(C)(2), despite the language of A.R.S. § 8-117(A), which treats adopted children as "born . . . in lawful wedlock" to their adoptive parents.
¶6 "The question of whether a party has standing . . . is a question of law [that] we review . . . de novo." Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, ¶ 16, 81 P.3d 1016, 1021 (App. 2003). We also review de novo the "interpretation and application of statutes." Thomas v. Thomas, 203 Ariz. 34, ¶ 7, 49 P.3d 306, 308 (App. 2002).
The question of Malally's standing to petition for visitation under § 25-409(C) is technically distinct from the question of whether the statute entitles her to relief. See In re Maricopa Cnty. Juv. Action No. JA-502394, 186 Ariz. 597, 598, 925 P.2d 738, 739 (App. 1996). But in this case, as argued by Malally, any distinction is not relevant.
¶7 Preliminarily, we note that Malally asserts all three children were born out of wedlock to their natural parents, and that "the trial court denied standing to [Malally], but did not make a ruling as to whether the Malally Stark children were born out of wedlock." But her petition for visitation does not allege the children were born out of wedlock. And she cites no evidence in the record to support her claim that the children were born out of wedlock. She ultimately asks that we remand the case to the trial court for that determination, but does not indicate why she could not have fully litigated that issue during the hearing.
¶8 We are not obligated to search the record for evidence to support Malally's factual contentions. See Gibson v. Boyle, 139 Ariz. 512, 521, 679 P.2d 535, 544 (App. 1983); Hubbs v. Costello, 22 Ariz. App. 498, 501, 528 P.2d 1257, 1260 (1974); see also Ariz. R. Civ. App. P. 13(a)(4) (appellant must support facts with reference "to the record or page of the certified transcript where such evidence appears"). And statements made by counsel are no substitute for evidence admitted into the record. London v. Green Acres Trust, 159 Ariz. 136, 141, 765 P.2d 538, 543 (App. 1988). Because Malally does not direct us to any evidence to show the children were born out of wedlock to their natural parents, she fails to show she is entitled to visitation under any interpretation of "born out of wedlock" in § 25-409(C)(2). See id.
¶9 Furthermore, Malally failed to provide us with a complete record to support reversing the trial court. "A party is responsible for making certain the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal." Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995); see also Ariz. R. Civ. App. P. 11(b); Myrick v. Maloney, 235 Ariz. 491, ¶ 12, 333 P.3d 818, 822 (App. 2014) ("An appellant carries the burden of showing the trial court erred."). "When a party fails to include necessary items [in the record on appeal], we assume they would support the court's findings and conclusions." Baker, 183 Ariz. at 73, 900 P.2d at 767.
¶10 The parties argued the issue of the trial court's authority to grant Malally's petition for visitation at a hearing in January 2014, and the court's minute entry shows that it took the issue under advisement. The court subsequently issued its order denying the petition. Malally did not include a transcript of this hearing in the record on appeal, and the written ruling does not explain the arguments supporting the standing determination or the trial court's reasoning. We assume what occurred at the hearing supports the trial court's ruling. See id.
¶11 More importantly, the record Malally has provided shows that she is not entitled to visitation. Nonparent visitation is "purely a creature of statute," and the trial court may not order visitation unless authorized to do so by statute. In re Maricopa Cnty. Juv. Action No. JA-502394, 186 Ariz. 597, 599, 925 P.2d 738, 740 (App. 1996). When construing the former grandparent visitation rights statute, A.R.S. § 25-337.01, this court considered the effect of § 8-117. Id. at 598-99, 925 P.2d at 739-40; Guethe v. Truscott, 185 Ariz. 29, 30, 912 P.2d 33, 34-35 (App. 1995). Section 8-117(A) states:
1992 Ariz. Sess. Laws, ch. 139, § 1, since renumbered as A.R.S. § 25-409. 1996 Ariz. Sess. Laws, ch. 192, § 2.
On entry of the decree of adoption, the relationship of parent and child and all the legal rights, privileges, duties, obligations and other legal consequences of the natural relationship of child and parent thereafter exist between the adopted child and the adoptive parent as though the child were born to the adoptive parent in lawful wedlock.(Emphasis added.) We concluded that statute deems an adopted child to have been born in lawful wedlock to his or her adoptive parent or parents, and that the trial court may not grant visitation on grounds that require the adopted child to have been "born out of wedlock." Maricopa Cnty. No. JA-502394, 186 Ariz. at 599 n.3, 925 P.2d at 740 n.3 ("[T]he statute . . . effectually mandate[s] that, after adoption and ever after, the child is indeed, before the law, born within 'lawful wedlock.'").
¶12 Section 25-337.01 has since been renumbered as § 25-409 and revised to govern visitation rights for all nonparents. 1996 Ariz. Sess. Laws, ch. 192, § 2; 2012 Ariz. Sess. Laws, ch. 309, § 20. The legislature, when it amended § 25-409 in 2012, incorporated the "born out of wedlock" phrase used in the grandparent visitation statute into its general provisions on nonparent visitation. 1992 Ariz. Sess. Laws, ch. 139, § 1; 2012 Ariz. Sess. Laws, ch. 309, § 20.
¶13 "[I]n interpreting a statute, we presume that the legislature is aware of the existing case law and that, if it revises a statute and retains language on which we have based our decisions, the legislature agrees with our interpretation of the statute." State v. Bonillas, 197 Ariz. 96, ¶ 5, 3 P.3d 1016, 1017 (App. 1999); see also State v. Superior Court, 104 Ariz. 440, 442, 454 P.2d 982, 984 (1969). The legislature did not make any changes that would affect the construction of this phrase as it applies to adopted children. 1992 Ariz. Sess. Laws, ch. 139, § 1; 2012 Ariz. Sess. Laws, ch. 309, § 20. Thus, we presume the legislature accepted this construction and intended courts to continue construing "born out of wedlock" in accordance with § 8-117(A). See Bonillas, 197 Ariz. 96, ¶ 6, 3 P.3d at 1018.
¶14 Additionally, "[t]he doctrine of stare decisis, which requires us to give weight to previous decisions addressing the same issue, seeks to promote reliability so that parties can plan activities knowing what the law is. Importantly, our deference to precedent is strongest when prior decisions construe a statute." Galloway v. Vanderpool, 205 Ariz. 252, ¶ 16, 69 P.3d 23, 27 (2003) (internal citation omitted); see also White v. Bateman, 89 Ariz. 110, 114, 358 P.2d 712, 714 (1961) (stare decisis applies to single case even with divided court). Thus, stare decisis requires we respect the holding in Maricopa County No. JA-502394.
¶15 Malally contends, however, that this construction "should not be the law" because it denies any and all visitation with the child of a single adoptive parent "even when the in loco parentis relationship forms after the adoption" and thereby "arbitrarily omit[s]" adopted children "from the support and love of in loco parentis visitation." Yet Malally does not cite any authority allowing us to change the statute even if it does treat adopted children differently. See Marco C. v. Sean C., 218 Ariz. 216, ¶ 9, 181 P.3d 1137, 1140 (App. 2008) (noting that, even when "the result may be harsh . . . , we do not second-guess the legislature's policy decision[s]"). To the extent that Malally argues such a provision "should not be the law," her "concerns . . . are more appropriately raised to the legislature." Riepe v. Riepe, 208 Ariz. 90, ¶ 14, 91 P.3d 312, 316 (App. 2004); see also State v. Milke, 177 Ariz. 118, 130, 865 P.2d 779, 791 (1993) ("The legislature is the proper forum to which [a party] should make its policy argument . . . .").
Malally cites Thomas to suggest that treating adopted children differently under this statute would be "arbitrary." In Thomas, we concluded the phrase "[t]he child's legal parents are not married to each other at the time the petition is filed" in former A.R.S. § 25-415(A)(4)(b), which governed in loco parentis custody, did not apply in single adoptive parent cases because we found nothing to suggest the legislature intended such application. 203 Ariz. 34, ¶ 13, 49 P.3d at 309; 1997 Ariz. Sess. Laws, ch. 295, § 1; 2012 Ariz. Sess. Laws, ch. 309, §§ 20, 24 (repealing § 25-415 and re-codifying as part of § 25-409). Here, the express, broad language of § 8-117(A) supports our construction of the phrase "born out of wedlock" in § 25-409(C)(2). See Edonna v. Heckman, 227 Ariz. 108, ¶ 23, 253 P.3d 627, 631 (App. 2011) (noting "all-encompassing language of A.R.S. § 8-117" when applying it to wrongful death statute).
Malally also argues this construction makes "it . . . easier for a non-parent to seek custody than . . . simply to visit a child." Whether this is true or not, this too is a policy argument better directed to the legislature. See Milke, 177 Ariz. at 130, 865 P.2d at 791; Riepe, 208 Ariz. 90, ¶ 14, 91 P.3d at 316.
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¶16 Although the statutes granting visitation rights to nonparents have changed, Malally presents us with no reason to disturb our previous holding and construe "born out of wedlock" differently under the current version of § 25-409. We conclude that § 8-117 deems the Malally Stark children to have been born in lawful wedlock to their adoptive mother, Cindy Stark. See Maricopa Cnty. No. JA-502394, 186 Ariz. at 599, 925 P.2d at 740. Consequently, § 25-409(C)(2) does not entitle Malally to visitation.
Best Interests Determination
¶17 Malally also argues the trial court abused its discretion in failing to make a best interests determination when it considered her petition for visitation. Because the statute does not entitle her to visitation, the court had no reason to make a best interests finding. We need not address this issue further. See Greenwood v. State, 217 Ariz. 438, ¶ 12, 175 P.3d 687, 691 (App. 2008).
Disposition
¶18 For the foregoing reasons, we affirm.