Rosfeld v. Painter

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JACK D. ROSFELD, Petitioner/Appellant,

v.

CHRISTINA J. PAINTER, Respondent/Appellee.

No. 1 CA-CV 19-0481 FC
FILED 2-27-2020

Appeal from the Superior Court in Maricopa County
No. FC2018-008318
The Honorable Michael C. Blair, Judge

AFFIRMED

COUNSEL

Gillespie Shields Goldfarb Taylor, Phoenix
By David L. Goldfarb
Co-counsel for Petitioner/Appellant

Gillespie Shields Goldfarb Taylor, Mesa
By Mark A. Shields
Co-counsel for Petitioner/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Diane M. Johnsen joined.

H O W E, Judge:

¶1 Jack Rosfeld appeals the trial court’s ruling denying his in loco
parentis petition seeking legal decision-making authority and primary
physical custody and his alternative request for third-party visitation. For
the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the record in the light most favorable to supporting
the trial court’s order. In re Marriage of Friedman and Roels, 244 Ariz. 111, 113
¶ 2 (2018). Christina Painter (“Mother”) and Rosfeld were in a romantic
relationship from March 2012 to April 2015. In April 2015, Mother became
involved in a romantic relationship with Michael Marquez (“Father”),
moved in with him, and later became pregnant. In July 2015, Mother and
Father ended their relationship and Mother moved back in with Rosfeld,
and they maintained a platonic relationship. In March 2016, Mother gave
birth to her son, A.P. Rosfeld was the only father figure for A.P. until
November 2018.

¶3 While Mother lived with Rosfeld, he paid for all her expenses.
Rosfeld cared for A.P. during the day while Mother was at work and took
A.P. to doctors’ appointments, took him on vacations, and did other
activities with him. A.P. began to refer to Rosfeld as “Dad,” and Mother
gave Rosfeld gifts on A.P.’s behalf. In March 2017, Mother and A.P. moved
into their own apartment. After that move, Rosfeld continued to care for
A.P. while Mother was at work. Mother then started dating Ryan Malleo,
who has known A.P. since he was five months’ old and has developed a
strong bond with A.P.

¶4 Mother became addicted to methamphetamine in 2018, and
Rosfeld found methamphetamine in Mother’s apartment. Rosfeld
consequently petitioned for in loco parentis, seeking legal decision-making
authority and primary physical custody of A.P. He also moved for
temporary emergency custody of A.P. After Rosfeld petitioned for in loco

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parentis, Mother started going to TERROS for drug counseling. The trial
court denied the temporary custody motion and set the case for trial. The
trial court also ordered Mother to undergo random drug testing and
continue drug counseling through TERROS. Before trial, Rosfeld filed a
pretrial statement that also included a request for third-party visitation.

¶5 By November 2018, Mother had cut off Rosfeld’s contact with
A.P. Mother completed drug counseling through TERROS and tested
negative for drugs from November 2018 through March 2019. In the
meantime, Father began visiting A.P. once every two weeks and developed
a strong bond with A.P., who now calls him “Dad.”

¶6 At trial, Rosfeld’s expert, Dr. Daniel J. Gaughan, testified that
Rosfeld had a strong bond with A.P. and that third-party visitation with
Rosfeld would be in A.P.’s best interests. Dr. Gaughan also testified that
Mother sent text messages to her friend saying she thought about harming
herself every day. Dr. Gaughan further testified that, based on Mother’s
deposition testimony, she was in denial about her drug problem and that
he had little confidence that she would remain sober. Dr. Gaughan
admitted, however, that Mother did not present a current risk to A.P. given
her clean drug tests. He also admitted that he never observed A.P. and
never observed the child with any of the adults involved in the case.

¶7 Malleo testified that he was present when Mother and Rosfeld
got into an argument at her apartment. Malleo said that Rosfeld became
angry and started hitting a wall. Mother also testified that Rosfeld had
anger issues from post-traumatic stress disorder. Mother further testified
that giving third-party visitation to Rosfeld would be detrimental to A.P.
because it would confuse him now that Father is involved in his life.

¶8 During trial, Rosfeld abandoned his request for in loco parentis
and instead asked the court to grant him third-party visitation. Following
trial, the trial court denied Rosfeld’s petition for legal decision-making and
primary custody of A.P. and his request for third-party visitation. Rosfeld
timely appealed the denial of his request for third-party visitation.1

DISCUSSION

¶9 Rosfeld argues that the trial court abused its discretion in
denying his request for third-party visitation without making specific
findings on the record about all the relevant factors under A.R.S.

1 Rosfeld does not appeal the trial court’s ruling denying his petition
for legal decision-making authority and primary custody of A.P.

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§ 25–409(E). We review issues of law and the application of statutory
provisions de novo. See Egan v. Fridlund-Horne, 221 Ariz. 229, 232 ¶ 8 (App.
2009). When deciding whether to grant third-party visitation, the court
“shall give special weight to the legal parents’ opinion of what serves their
child’s best interests and consider all relevant factors[.]” A.R.S. § 25–409(E).
We review a trial court’s decision to deny visitation for an abuse of
discretion. McGovern v. McGovern, 201 Ariz. 172, 175 ¶ 6 (App. 2001). An
abuse of discretion exists when the record is devoid of competent evidence
to support the decision. In re Marriage of Friedman, 244 Ariz. at 120 ¶ 36.

¶10 Section 25–409(E) does not require a trial court to make
specific findings on the record about a child’s best interests in third-party
visitation cases. Compare A.R.S § 25–403(B) (requiring a trial court to make
specific findings on the record in contested cases about legal
decision-making and parenting time). Even so, the trial court made specific
findings about each factor enumerated under § 25–409(E). Rosfeld argues
Mother’s drug history poses a threat to the child, but in denying his request
for visitation, the court specifically considered Mother’s substance abuse.
While the trial court did not address every negative fact introduced at trial,
the court was not required to do so. See A.R.S. § 25–409. Therefore, the trial
court did not err when making its findings.

¶11 Rosfeld also argues that the trial court failed to analyze
evidence of Mother’s substance abuse, Mother’s texts concerning self-harm,
and the testimony from Dr. Gaughan that A.P. would suffer a detriment by
having his contact with Rosfeld cut off. Rosfeld further argues that without
the required findings, this Court cannot presume that the trial court
properly analyzed the presumption that “a fit parent acts in his or her
child’s best interests” or whether Rosfeld rebutted that presumption. See
McGovern, 201 Ariz. at 177 ¶ 17.

¶12 As previously stated, the trial court was not required to make
specific findings under A.R.S. § 25–409(E). And while the court’s analysis
does not detail Mother’s substance abuse, self-harm texts, or Dr. Gaughan’s
testimony, the trial court’s comprehensive decision does note Mother’s
substance abuse and Dr. Gaughan’s testimony. Even though the court’s
analysis was not as detailed as Rosfeld may have wanted, the court was not
required to list every finding. See A.R.S. § 25–409(E).

¶13 Additionally, competent evidence supports the trial court’s
ruling denying Rosfeld’s request for third-party visitation. Dr. Gaughan
admitted that Mother did not present a current risk to A.P. and that he
never observed A.P. with Mother, with Father, or with Rosfeld. The trial

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court also heard testimony that Rosfeld had anger issues and that
third-party visitation would be detrimental to A.P. because visitation
would confuse him now that Father is involved in the child’s life and
bonded with him. Because competent evidence supports the trial court’s
ruling, the court did not abuse its discretion by denying Rosfeld’s request
for third-party visitation.

CONCLUSION

¶14 For the foregoing reasons, we affirm.

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

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