Beck v. Pino

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

DEWAYNE BECK, Petitioner/Appellant,

v.

DAPHEN N. PINO, Respondent/Appellee.

No. 1 CA-CV 23-0216 FC
FILED 02-22-2024

Appeal from the Superior Court in Maricopa County
No. FC2017-053185
FC2017-093332
The Honorable Paula A. Williams, Judge

AFFIRMED

COUNSEL

Dewayne Beck, Tolleson
Petitioner/Appellant

Daphen N. Pino, Protected Address
Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding
Judge Anni Hill Foster, and Vice Chief Judge Randall M. Howe joined.

F U R U Y A, Judge:

¶1 Dewayne Beck (“Father”) appeals the superior court’s order
for legal decision-making, parenting time, and child support as to his and
Daphen N. Pino’s (“Mother’s”) child (“Child”). For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Child was born in July 2015. Father originally petitioned to
establish legal decision-making and parenting time in May 2017. In
December 2018, the superior court awarded Mother sole legal decision-
making authority and primary parenting time and granted Father
parenting time, including during breaks from school.

¶3 Since the court’s December 2018 order, the parties have
litigated numerous petitions to enforce and modify the parenting plan and
motions for contempt. Eventually, the parties created a May 2020
agreement pursuant to Arizona Rule of Family Law Procedure 69 (the “Rule
69 Agreement”). Per this Rule 69 Agreement, Mother had primary
parenting time until Child turned 10 years old, at which point Father would
have primary parenting time for the rest of Child’s childhood.

¶4 In the time since the Rule 69 Agreement was adopted,
anonymous reporters alleged to the Department of Child Safety (“DCS”)
that Child was sexually abused by his stepbrother, who is approximately
two years older than Child, at Father’s home. Father claims Mother has
been falsifying such allegations to DCS to reduce or eliminate his parenting
time. Mother responds that she was not the person who submitted the
complaints—or at least all of the complaints—to DCS. In May 2021, Mother
moved for temporary orders to suspend Father’s parenting time or modify
it to become supervised because of the alleged abuse, but her motion was
denied.

¶5 In September 2022, Father petitioned to modify the Rule 69
Agreement. At trial in January 2023, the court considered evidence

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Decision of the Court

regarding Mother’s claims Child had been sexually abused by his
stepbrother at Father’s home.

¶6 The court issued a new order in March 2023. It awarded
Mother sole legal decision-making authority and primary parenting time,
abrogating the Rule 69 Agreement which stipulated Father would gain
primary parenting time when Child reached 10 years old. It found “there
[was] evidence to support the child was sexually abused by another child
in Father’s home.” It also awarded Father visitation and imposed child
support of $258 per month.

¶7 Father timely appealed and we have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) §§ 12-120.21(A) and -2101(A).

DISCUSSION

¶8 Father argues there were no significant and continuing
changes in circumstances that materially affect Child’s welfare to support
the court’s new order, and the superior court therefore erred in modifying
the parenting plan. Mother argues the evidence supports the court’s
findings.

I. Standard of Review

¶9 Our review requires that we “evaluate all the statutory
elements found by the . . . court.” Brionna J. v. Dep’t of Child Safety, 255 Ariz.
471, 478 ¶ 26 (2023). To modify a prior order for legal decision-making,
parenting time, or child support, a court must find there has been a “change
in circumstances materially affecting the welfare of the child” and the
modification is in the child’s best interests. Backstrand v. Backstrand, 250
Ariz. 339, 343 ¶ 14 (App. 2020) (citation omitted). See Nia v. Nia, 242 Ariz.
419, 423 ¶ 9 (App. 2017) (requiring substantial and continuing changed
circumstances).

¶10 The court has broad discretion to decide whether a change in
circumstances justifies a modification of an order for legal decision-making,
parenting time, or child support. Backstrand, 250 Ariz. at 343 ¶ 14; see Nia,
242 Ariz. at 423 ¶ 9 (granting court “sound discretion” to find changed
circumstances). Therefore, we review such modifications for a “clear abuse
of discretion.” Backstrand, 250 Ariz. at 343 ¶ 14. We accept the court’s factual
findings “if reasonable evidence and inferences support them” and will
affirm the court’s legal conclusions “unless they are clearly erroneous.”

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Brionna J., 255 Ariz. at 478–79 ¶¶ 30–31 (citations omitted). We do not
reweigh evidence. See id. at 478 ¶ 28.

II. Reasonable Evidence Supports the Court’s Findings of Changed
Circumstances and that a Modification was in Child’s Best
Interests.

¶11 As a preliminary matter, our rules require appellants to
include in the record any transcripts from superior court proceedings
“necessary for proper consideration of the issues on appeal.” Arizona Rules
of Civil Appellate Procedure 11(c)(1)(A). If an appellant fails to do so, “we
assume [any missing transcript or record item] would support the court’s
findings and conclusions.” Baker v. Baker, 183 Ariz. 70, 73 (App. 1995). Here,
the transcript of the parties’ January 2023 hearing is absent from the record
on appeal. We must therefore assume any testimony presented at the
hearing supported the court’s findings (1) of changed circumstances and (2)
that a modification of the parenting plan was in Child’s best interests. See
id.

¶12 Additionally, our review of the record confirms that
reasonable evidence supports the court’s finding of changed circumstances
since the parties’ Rule 69 Agreement. The court found evidence that Child
has suffered sexual abuse by a stepbrother in Father’s home. Among this
evidence was a sexual abuse exam report from March 2021 that included
Child’s description of the occurrences and a registered nurse’s diagnosis of
the abuse. Mother also submitted a description of a conversation the father
of Child’s friend overheard, wherein Child described sexual abuse he had
experienced. She further submitted records from Child’s therapist-intern
that indicated that Child “displays clinically significant results for Anxiety,
Posttraumatic Stress-Intrusion, Posttraumatic Stress-Avoidance,
Posttraumatic Stress-Total, and Sexual Concerns” and avoids responding
about visits to Father’s home. The court-appointed advisor submitted a
report documenting that Child was still sharing a bedroom with his
stepbrother as of November 2022, despite Father’s home having five
bedrooms.

¶13 Therefore, in addition to the presumption that testimony at
the hearing supported the court’s findings, other evidence in the record also
reasonably supports the court’s findings. Because reasonable evidence
supports the court’s finding of changed circumstances, Father’s appeal
amounts to a request to reweigh the evidence. This we will not do. See
Brionna J., 255 Ariz. at 478 ¶ 28. Therefore, the court did not err by finding

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Decision of the Court

a significant and continuing change in circumstances that materially
affected Child’s welfare.

¶14 Father did not meaningfully contest the court’s finding that
modification of the parties’ Rule 69 Agreement was in Child’s best interests
and has therefore waived any argument regarding that issue. See Crystal E.
v. Dep’t of Child Safety, 241 Ariz. 576, 577 ¶ 5 (App. 2017) (holding failure to
challenge a finding constitutes waiver of that argument). However, the
evidence of possible sexual abuse of Child by his stepbrother and of
Father’s failure to mitigate further abuse also support the court’s conclusion
that a modification of the parenting plan was in Child’s best interests. See
Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 150 ¶ 13 (2018) (observing that
termination is in a child’s best interests if the child will be harmed if
severance is denied). And the court satisfied the statutory requirements for
making best interest findings by considering the factors in A.R.S. § 25-
403(A).

¶15 Accordingly, the court did not err in modifying the parenting
plan for legal decision-making, parenting time, and child support.

CONCLUSION

¶16 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: TM

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