Opinion
No. 1 CA-CV 18-0499 FC
06-20-2019
In Re The Matter Of: CRYSTAL ANN MEIER, Petitioner/Appellee, v. SAMANTHA P. GERMAN; ZABEHULLAH AHMADI, Respondents/Appellants.
COUNSEL Law Office of Sonia Martinez, Gilbert By Sonia Martinez Counsel for Petitioner/Appellee Samantha P. German, Scottsdale Respondent/Appellant Zabehullah Ahmadi, Scottsdale Respondent/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. FC2017-097404
The Honorable Michael S. Mandell, Judge
AFFIRMED
COUNSEL Law Office of Sonia Martinez, Gilbert
By Sonia Martinez
Counsel for Petitioner/Appellee Samantha P. German, Scottsdale
Respondent/Appellant Zabehullah Ahmadi, Scottsdale
Respondent/Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Judge Jon W. Thompson joined. Presiding Judge James B. Morse Jr. dissented. SWANN, Judge:
¶1 In this family-law case, the parents of a minor child appeal the superior court's grant of third-party visitation rights to the child's great-grandmother. For reasons that follow, we affirm the visitation order.
FACTS AND PROCEDURAL HISTORY
¶2 Samantha P. German ("Mother") and Zabehullah Ahmadi ("Father") are the biological parents of A., born in December 2015. Crystal Ann Meier is A.'s great-grandmother. After Mother and Father (collectively, "the Parents") stopped Meier's visits with A., Meier filed a petition for third-party visitation rights, contending that she was eligible under A.R.S. § 25-409(C) because the Parents were not married at the time she filed the petition and visitation was in A.'s best interests. The Parents married a few weeks later and then filed responses to Meier's petition. Both of the Parents objected to Meier receiving any visitation time.
¶3 The court held an evidentiary hearing and issued a detailed ruling granting Meier visitation rights with A. The Parents appeal.
DISCUSSION
¶4 The Parents contend that the visitation order was erroneous because: (1) the court did not have authority to award visitation because none of the enumerated prerequisites under A.R.S. § 25-409(C) had been fulfilled; (2) the order violates the Parents' Bill of Rights because it infringes on their right to direct A.'s upbringing; and (3) the Parents did not have an opportunity to testify or to cross-examine Meier. We will not disturb the superior court's decision to award visitation absent an abuse of discretion. In re Marriage of Friedman & Roels, 244 Ariz. 111, 120, ¶ 36 (2018). We review the interpretation of statutes and constitutional issues de novo. Id. at 114, ¶ 11.
Although we may regard Meier's failure to file an answering brief as a confession of reversible error, McDowell Mtn. Ranch Cmty. Ass'n v. Simons, 216 Ariz. 266, 269, ¶ 13 (App. 2007), in the exercise of our discretion, we choose to address the merits of the appeal.
¶5 First, the Parents contend that the superior court did not have authority to grant visitation to a third party under § 25-409(C)(2) because they were married by the time the visitation "petition process" was complete. The court may grant visitation to a non-parent if it finds that such visitation is in the child's best interests and that any one of four enumerated prerequisites is fulfilled, including that "[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." A.R.S. § 25-409(C)(2). Here, Mother and Father married several weeks after Meier filed the petition. Then, shortly after their marriage, the Parents filed their separate responses to the petition. Contrary to the Parents' contention that the dispositive date under § 25-409(C)(2) is when the opposing party files its response to the petition, the statute plainly focuses on the Parents' marital status "at the time the petition is filed," not when the "petition process" is complete. See Bell v. Indus. Comm'n of Ariz., 236 Ariz. 478, 480, ¶ 7 (2015) ("If a statute's language is subject to only one reasonable meaning, we apply that meaning."). Because the Parents did not marry until after Meier filed the petition, their marriage did not defeat the petition, and the court correctly concluded that Meier was eligible under § 25-409(C)(2).
¶6 Second, the Parents contend that the court's grant of visitation to Meier against their wishes violates their fundamental right to direct the upbringing of their child under the Parents' Bill of Rights, A.R.S. §§ 1-601, -602. They argue that, when parents are married to each other and agree to deny visitation to a third party, that decision may not be overridden. The Parents' Bill of Rights reasserts the established principle that parents have a fundamental right to direct the upbringing of their children. A.R.S. §§ 1-601, -602; see Graville v. Dodge, 195 Ariz. 119, 125, ¶ 23 (App. 1999) (noting parents' fundamental rights). In Graville, this court held that awarding visitation under § 25-409 to a grandparent over a parent's objection "does not substantially infringe on [a] parent['s] fundamental rights." 195 Ariz. at 125, ¶ 23. The court held that the statute—which at that time did not expressly require giving the parent's decision "special weight"—was constitutional. Id. The court noted the statute's multiple due process prerequisites; i.e., the third party seeking visitation must meet one of the enumerated criteria (including that the parents are not married) and the court must consider the child's best interests under the prism of the factors listed in § 25-409(E). Id. at 125-26, ¶¶ 23, 27; see Jackson v. Tangreen, 199 Ariz. 306, 310, ¶¶ 14-15 (App. 2000) (reasserting Graville's holding in light of Troxel v. Granville, 530 U.S. 57 (2000)).
At the time Graville was decided, for the third party to be eligible for visitation, A.R.S. § 25-409 required only that the child be born out of wedlock, not, as here, that the child be born out of wedlock and the parents be unmarried at the time the petition is filed. Compare A.R.S. § 25-409(A)(3) (1999) with A.R.S. § 25-409(C)(2) (2018).
¶7 The Parents' Bill of Rights is statutory, and is not a constitutional provision. When the legislature enacted the Parents' Bill of Rights in 2010, it did not repeal or amend A.R.S. § 25-409 in any way that alters either our earlier constitutional analysis or the conditions necessary for a valid petition for third-party visitation. Though the Parents' Bill of Rights contains important policy statements concerning the relation between parents' fundamental rights and the power of the Arizona government, it does not trump A.R.S. § 25-409. We also note that the Parents' Bill of Rights is couched in terms of the rights of parents, not married parents.
¶8 Here, the Parents' argument assumes that they were married when Meier filed the petition, in which case we would agree that Meier would not have fulfilled any of § 25-409(C)'s eligibility requirements. But, as discussed above, the Parents were not married and Meier was eligible under the statute. And, to the extent that the Parents argue that § 25-409(C) infringes on their fundamental rights, we disagree.
¶9 Finally, the Parents contend that the court erred by not allowing them to testify or to cross-examine Meier. While due process generally requires that a party have the opportunity "to offer evidence and confront adverse witnesses," Curtis v. Richardson, 212 Ariz. 308, 313, ¶ 16 (App. 2006), the requirements may vary depending on the setting, Gaveck v. Ariz. St. Bd. of Podiatry Exam'rs, 222 Ariz. 433, 437, ¶ 14 (App. 2009); see also Volk v. Brame, 235 Ariz. 462, 466, ¶ 14 (App. 2014) (holding, in civil case, that the court must allow the parties "a reasonable opportunity to present testimony whenever resolution of a material contested issue hinges on credibility"); Dep't of Child Safety v. Beene, 235 Ariz. 300, 305, ¶ 11 (App. 2014) (noting that rights to confrontation and cross-examination are not guaranteed in all hearings). Because the Parents did not provide a transcript of the evidentiary hearing, we must presume that the missing record supports the superior court's decision. See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).
¶10 Here, while the court's minute entry concerning the evidentiary hearing leaves it unclear whether the self-represented Parents testified under oath, it does note that they were "sworn" and were given an opportunity to "address the Court." And the court's detailed ruling indicates that the court considered the Parents' statements as though they were testimony; for example, it states that Mother "testified" during the hearing, and recounts the Parents' statements side-by-side with the statements made under oath by other witnesses. This is sufficient evidence that the court provided the Parents the necessary opportunity to present testimony. And, without the transcript from the hearing, we must presume that the Parents were able to cross-examine Meier to whatever extent due process required.
CONCLUSION
¶11 We therefore affirm the superior court's visitation order. MORSE, Judge, dissenting:
¶12 I respectfully dissent. Meier has not filed an answering brief. Because of the fundamental parental rights at issue in this case, we should treat Meier's failure to respond as a confession of reversible error. McDowell Mtn. Ranch Cmty. Ass'n., 216 Ariz. at 269, ¶ 13. Under the circumstances of this case, affirming places untenable tension between A.R.S. § 25-409 and the Parents' constitutional rights to raise their child. We should exercise our discretion to accept Meier's confession of error and avoid that conflict. See Hayes v. Cont'l Ins. Co., 178 Ariz. 264, 273 (1994) (explaining that where it is "possible we construe statutes to avoid unnecessary resolution of constitutional issues"). Otherwise, and although the record on appeal is admittedly incomplete, see supra ¶ 9, we risk affirming a decision in which Parents' due process and fundamental rights may have been violated.
I. Due Process
¶13 Parents were engaged, but not yet married, when Meier filed a petition under A.R.S. § 25-409(C) for compelled visitation with A., Parents' minor child and Meier's great-granddaughter. Parents married 25 days after the petition was filed. Parents filed pro per responses to the petition in which they explained their reasons for opposing Meier's visitation request:
We limited the time spent because we found out [Meier] smokes in front of her, gave her sugared drinks and food when we specifically said not to, never gave her naps when we asked which disrupted her sleep pattern at home, and I have told [Meier] multiple times that she will no longer be allowed in her life if she continued to disrespect us. She did not stop.
¶14 Parents further explained that A. is "on a specific diet plan, sleeping plan, and socializing plan to get her prepared for pre-school. We have a strong bond with her and we also need to harbor the relationship she has with her 2 half brothers which she only gets to see every other weekend, every Wednesday, holidays, and through a summer schedule."
¶15 In their pretrial statement, Parents asserted ten contested issues in support of their opposition to visitation, including the claims regarding smoking, sugar consumption, and naps. Parents also asserted that visitation would adversely impact the Parents' bond with A. and the bond between A. and her half-brothers, and that a toxic relationship between Meier and Parents "will not be in the best interest of child." Prior to the hearing, Father sought and obtained permission to attend telephonically so that he could care for A. during the hearing.
¶16 At the hearing, Parents argued that because they were married, the superior court did not have jurisdiction to hear the petition. The superior court rejected that argument because A.R.S. § 25-409(C)(2) provides that marital status is measured "at the time the petition is filed." Parents also argued that granting the visitation request would violate their constitutional rights to determine with whom their child spends time.
I agree with the majority that A.R.S. § 25-409(C)(2) allows the court to consider the petition. Supra ¶ 5. Allowing a court to consider a petition for visitation so long as parents are unmarried when the petition is filed, even if they subsequently marry before the petition is decided, may not further the policy goals envisioned by the legislature, but it is for the legislature to correct any error.
¶17 The hearing on the petition lasted less than two hours. In their opening brief, Parents claim that the "court ran out of time and the parents were not able to cross-examine [Meier] nor allowed the time to present their own testimony." While we have not been provided with transcripts of the hearing, the superior court's minute entry at least partially corroborates Parents' claim. The minute entry specifies that great- grandmother and three other witnesses who testified on great-grandmother's behalf were "sworn and testifie[d]," but it does not indicate whether those witnesses were subject to cross-examination. Moreover, unlike the case for Meier and her witnesses, the minute entry does not state that Mother and Father were individually sworn and testified, and instead lists their names together and simply indicates that they "address[ed] the Court."
¶18 In granting visitation, the superior court noted that it disbelieved Mother's stated reasons for denying visitation and found "Mother's motivations are specifically intended to exclude all of her relatives from [A.'s] life." The court further stated that it did not find "credible evidence" that great-grandmother had harmed A. or acted contrary to A.'s best interest. Because credibility was paramount to the court's decision, denial of Parents' right to present their own testimony and confront Meier's evidence via cross-examination would violate Parents' due process rights and result in prejudice requiring reversal. See Volk, 235 Ariz. at 470, ¶ 26. In this case, where Parents allege that they were denied the opportunity to cross-examine Meier and present their own testimony, and the minute entry provides either direct or inferential support for that claim, Meier's failure to respond should be treated as a confession that such error occurred. We should reverse.
As in Volk, Parents' failure to comply with the visitation order may subject them to significant penalties and possible contempt. The record reflects that Parents have already been found in contempt, fined, and subjected to a civil arrest warrant for failure to comply with the visitation order.
II. Fundamental Rights
¶19 In order to protect "'[parents'] fundamental right to make decisions concerning the rearing' of their children," courts must presume that parents are "act[ing] in the best interest of [their] child" and give "special weight" to the parents' opinion about grandparent visitation. In re Marriage of Friedman & Roels, 244 Ariz. at 115, ¶14 (quoting Troxel v. Granville, 530 U.S. 57, 68-69 (2000)). "[P]arents have a constitutionally protected right under the Fourteenth Amendment to raise their children as they see fit." McGovern v. McGovern, 201 Ariz. 172, 175, ¶ 9 (App. 2001); see also Troxel, 530 U.S. at 65-66.
¶20 A court "does not substantially infringe on parents' fundamental rights," however, when it grants grandparent visitation pursuant to A.R.S. § 25-409. McGovern, 201 Ariz. at 175, ¶ 9. But in reaching that conclusion, the superior court must "give special weight to the legal parents' opinion of what serves their child's best interests." A.R.S. § 25-409(E); see also McGovern, 201 Ariz. at 177-78, ¶ 18. The statute does not define "special weight," but our supreme court has held that the legislature "clearly intended to incorporate Troxel's 'special weight' component" and specifically held that "special weight" under A.R.S. § 25-409 should not be interpreted any differently than in Troxel and McGovern. In re Marriage of Friedman & Roels, 244 Ariz. at 116-17, ¶ 20. Thus, the "amount of weight" to be placed on the parent's opinion is subject to "development on a case-by-case basis." Id. at 116, ¶ 16 (quoting McGovern, 201 Ariz. at 177-78, ¶ 18).
¶21 In this case, there is no allegation that Parents are unfit. Nor are Parents divided about their decision to discontinue Meier's visitation with their child. Cf. In re Marriage of Friedman & Roels, 244 Ariz. at 117, ¶ 22 (holding that "when two legal parents have competing visitation views, . . . the respective presumptions effectively and necessarily cancel each other out"). Because two fit parents agree about visitation, and have proffered facially-valid reasons for their decision, the "amount of weight" afforded to their decision must be sufficient to ensure that any visitation order is not "'based solely on the judge's determination of the child's best interests' or on the judge's 'mere disagreement' with a fit parent's choice." McGovern, 201 Ariz. at 178, ¶¶ 18-19 (quoting Troxel, 530 U.S. at 67-68).
¶22 Admittedly, the superior court's order acknowledges the presumption that Parents were acting in their child's best interest, and purports to "give 'special weight' to the legal parents' opinion of what serves their child's best interests." (citing In re Marriage of Friedman & Roels, 244 Ariz. at 116, ¶16). However, the court's minute entry does not reflect that the superior court actually applied any presumption or special weight to the Parents' position in evaluating the case. Instead, the superior court simply disbelieved Parents' stated complaints about Meier's behavior, rejected Mother's assertions about Meier's motivations, faulted Mother for not providing "specifics" as to how visitation would diminish A.'s time with her parents and half-siblings, and asserted twice that Mother's actual "motivations are specifically intended to exclude all of her relatives from [A.'s] life."
¶23 The superior court's burden-shifting approach to the lack of "specifics" is flatly inconsistent with its claim that it applied "special weight" to the Parents' opinion, or that it applied the presumption in favor of Parents and placed the burden of proof on Meier. Even if Parents had based their decision to cease visitation between A. and Meier on a broader decision to exclude all of Mother's relatives from A.'s life, the superior court should have presumed that broader decision was also in the child's best interest and afforded that opinion special weight. It did not do so.
¶24 Rather than faulting Parents for lack of specifics or ascribing a different motive to Parents' choices, the presumption and "special weight" require, at a minimum, that the superior court presume that the Parents are correct and hold Meier to the burden to prove otherwise. Thus, the court should have required that Meier prove that court-ordered visitation would not have negatively impacted the Parents' relationship with A., would not have diminished the time that A. was able to spend with her Parents and half-siblings, and would have been a positive benefit to A. Instead, the superior court treated Parents' decision as illegitimate because the court disagreed with two fit Parents about their child-rearing choices, and ignored Parents' wishes in favor of the court's determination of A.'s best interests. Because the visitation order was "based solely on the judge's determination of the child's best interests" and "'mere disagreement' with a fit parent's choice," McGovern, 201 Ariz. at 178, ¶ 19 (quoting Troxel, 530 U.S. at 67-68), the superior court's decision does not meet the heightened standard required by Troxel and McGovern, as endorsed by In re Marriage of Friedman & Roels. Therefore, Parents' fundamental right to raise their child was violated. We should accept Meier's failure to respond as a confession of error and reverse.