Adina v. Allen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JACQUELINE B. ADINA, Petitioner/Appellee,

v.

ANTHONY B. ALLEN, Respondent/Appellant.

No. 1 CA-CV 21-0058 FC
FILED 4-19-2022

Appeal from the Superior Court in Maricopa County
No. FC2011-001576
The Honorable Bradley H. Astrowsky, Judge

AFFIRMED

COUNSEL

Becker Zarling & Moye Law, Avondale
By Gina M. Becker-Zarling
Counsel for Petitioner/Appellee

Law Office of Jose De La Luz Martinez PLLC, Phoenix
By Jose De La Luz Martinez
Counsel for Respondent/Appellant
 ADINA v. ALLEN
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge David D. Weinzweig and Judge Paul J. McMurdie joined.

S W A N N, Judge:

¶1 This is an appeal from an order modifying legal decision-
making and parenting time. We affirm because the modifications, though
drastic, were premised on findings reasonably supported by the evidence.

FACTS AND PROCEDURAL HISTORY

¶2 In 2004, twin children (“the Children”) were born to
Jacqueline B. Adina (“Mother”) and Anthony B. Allen (“Father”). In 2011,
Mother and Father separated and agreed to legal decision-making and
parenting time. Thereafter, the parties regularly returned to court to litigate
legal decision-making and parenting time via various filings, including
modification petitions filed in 2013, 2015, 2017, and 2019.

¶3 This appeal concerns cross-petitions filed in 2019 which
sought to modify a September 2018 order entered under ARFLP 69 that
established sole legal decision-making for Father regarding education
issues, sole legal decision-making for Mother regarding medical issues, and
equal parenting time. Mother, alleging “severe abuse and manipulation of
the children [by Father] causing severe emotional distress” in the Children,
asked for sole legal decision-making and supervised, slightly reduced
parenting time for Father. For his part, Father asked for sole legal decision-
making on medical as well as education issues, and for Mother’s parenting
time to be reduced to every other weekend.

¶4 The evidence at trial established that the parties engaged in
frequent disputes regarding their exercise of legal decision-making and
parenting time under the September 2018 order, as follows.

¶5 First, when Mother sought counseling for the Children
starting in late 2018, Father objected to intake appointments that would
cause the Children to miss school. He directed the Children’s school that
on his parenting days, the school should not permit the Children to be
removed from campus or pulled from class to talk to Mother or her agents.
According to Mother, the school informed Father that it could not honor

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those instructions. Father thereafter moved the Children to a different
school and gave the same instructions to that school.

¶6 The Children’s intake appointments ultimately were
rescheduled. When they took place in April 2019, the Children were
diagnosed with anxiety disorders and were recommended therapy. In June
2019, they completed new intake appointments with a different provider
and were again diagnosed with anxiety disorders and recommended
therapy. They attended only a few therapy sessions in 2019; Father, by his
own admission, “kept canceling” their appointments. He involved the
court as well, asking in July 2019 for contempt and temporary orders based
partly on Mother’s failure to consult with him before scheduling
appointments.

¶7 Father also objected and involved the court when the
Children began attending therapy sessions virtually from Mother’s house
in early 2020—he argued that the sessions were not private and interfered
with the Children’s virtual school schedule, which he contended included
the non-instructional afternoon hours. The court ruled in May 2020 that
neither party could make appointments during required video-conference-
based school sessions; the court further noted that the case was “an
unnecessarily highly contested matter in which both parents have taken
actions and engaged in conduct that conflicts with the best interests of the
children.” Around the same time as the court’s order, the Children
informed their counselors that they wished to discontinue therapy.
According to Mother, Father encouraged that decision. One of the Children
later disclosed in an interview that she shared Father’s view that counseling
is akin to chemotherapy in that it is only for people who really need it.

¶8 The parties also conflicted regarding the Children’s medical
care. Father objected when Mother scheduled medical physicals for the
Children in 2019 as required by their school. And according to Mother,
when the physicals ultimately occurred, Father became upset and tried to
pull the Children from the room after she consented to them receiving the
second in a series of three vaccinations. Mother further reported that Father
instructed the Children to resist the final vaccination in the series.

¶9 Also in 2019, Father sought contempt and temporary orders
after Mother obtained prescription acne medication for the Children against
Father’s wishes and without proper notice. And in 2020, Father unilaterally
took the Children to a pharmacy to get immunizations for which Mother
had scheduled an appointment with the Children’s pediatrician. Father
also contested Mother’s cost-based decision not to pursue immediately

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what the parties agreed was necessary orthodontic treatment for the
Children, despite evidence that he was financially unable to meet other
obligations: he failed to comply with the court’s order that he contribute to
a best interests attorney’s fees (which ultimately led to the court relieving
the attorney), he stated that his income had declined to the point where he
had no money left over each month, and the Children’s school tuition was
in arrears.

¶10 Parenting time was another area of dispute. When Mother
proposed taking the Children on vacation during her parenting time by
picking them up directly from their out-of-state school-break camp, Father
objected and refused to provide the school written consent. Similarly, when
Mother sought to obtain passports for the Children, Father refused to sign
necessary documents until Mother obtained court orders. Finally, when
Mother contracted COVID-19 in September 2020 and asked Father to keep
the Children temporarily, Father failed to return the Children upon her
recovery. At the time she requested to resume parenting time, Mother was
still testing positive for COVID-19 but provided Father with documents
from medical providers stating that she was no longer contagious, that she
could return to work, and that continued testing was not required because
she could continue to test positive even after her symptoms resolved.
Despite that documentation, Father refused to return the Children to
Mother based on her failure to provide her positive test results.

¶11 Mother stopped contacting the Children when she requested
that parenting time resume in mid-October because, she explained, she
anticipated that Father would fight her about their return, and she did not
want them put in the middle. She did not make any efforts to communicate
with the Children until November 5, the day of trial. After the trial, she
tested negative for COVID-19 and provided Father with a copy of the test
results. Father, however, continued to withhold the Children.

¶12 A psychologist completed a Focused Assessment of the
family in March 2020. Mother admitted to the psychologist that she had
secretly recorded conversations with the Children at her attorney’s
direction, that she had gone through the Children’s cell phones, and that
she had spoken negatively about Father to the Children. She stated that
Father uses religion to convince the Children that she is a bad person, and
“is getting them to believe it’s God’s will to live with him. They say that
dad has God’s providence . . . .” Father stated that he never says anything
negative about Mother or anything about the court proceedings to the
Children unless “the children are complaining about it and I have to set the
record straight” and “defend[ ] my position.”

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¶13 The Children disclosed that Mother often spoke negatively
about Father and that they wanted to live with Father, with whom their
religious and political beliefs aligned. One of the Children disclosed that
Father wanted her to live with him and had told her that if she did so, she
would no longer have to deal with being exposed to ideas and media at
odds with her religious views. The child explained that “[m]y dad doesn’t
see how living with my mom full time would help me grow” because “a lot
of [Mother’s] views . . . don’t line up with the Bible,” and the child stated
that she “agree[d] with him on that.” That child further stated that Father
spoke to her about the court case a couple of times a week, that he warned
her Mother’s behavior might get worse or she might start taking the
Children to doctors too much, and that Mother and Father both used the
same biblical story to discuss which parent the Children should live with
but Father “uses it more.” The other child refused to comment on whether
either of her parents invoked religion when discussing where she should
live, but she opined that Father “has better spiritual advice to offer.”

¶14 The psychologist reported “significant concerns about
Father’s ability to make decisions with Mother as he appears to create
conflict by continuously disagreeing with her and involving the children in
decision making,” concluded that “Mother also has weaknesses in her co-
parenting style,” and opined that “[b]oth parents appear to lack significant
insight into how they are contributing to the children’s mental health.” The
psychologist explained that “both parents are engaging in alienating
behaviors, although Father’s behaviors are actively turning the children
against Mother.” The psychologist emphasized, however, that “[a]side
from the fact that Mother speaks negatively about Father, the children had
no viable concerns about Mother or her home environment that suggest she
should have limited contact with the children,” but, “[n]otably, Father
engages in similar behavior against Mother, but is actively persuading the
children to report that they prefer to have increased parenting time with
him.” The psychologist explained that “parental alienation is a form of
emotional abuse onto a child,” and recommended that the court appoint a
therapeutic interventionist or consider supervising Father’s parenting time
“given that it is believed that the children[’s] statements are solely based on
Father’s comments to the children.”

¶15 After making extensive findings, the superior court
concluded that it was in the Children’s best interests for Mother to have sole
legal decision-making and for Father to have limited supervised parenting
time. The court ordered that Father would have no contact with the
Children until mid-February and thereafter would have up to three hours
of supervised parenting time every other week, with the possibility of

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enlarged parenting time after six months. The court further ordered Father
to participate in a psychological evaluation, individual counseling, and
family counseling.

¶16 Father appeals.

DISCUSSION

¶17 Father challenges the supervision requirement and the
removal of his legal decision-making regarding education.1 We review
orders concerning legal decision-making and parenting time for an abuse
of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). The superior
court abuses its discretion if no evidence supports its decision, Pridgeon v.
Superior Court (LaMarca), 134 Ariz. 177, 179 (1982), or if it commits an error
of law in exercising its discretion, Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434,
455–56 (1982). We do not reweigh conflicting evidence, and we defer to the
superior court’s credibility determinations. Hurd v. Hurd, 223 Ariz. 48, 52,
¶ 16 (App. 2009).

I. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY
AWARDING MOTHER SOLE LEGAL DECISION-MAKING.

¶18 The court must determine legal decision-making, either
initially or on a petition to modify, in accordance with the child’s best
interests after considering and making specific findings regarding all
relevant factors, including statutorily enumerated ones, and why the
decision is in the child’s best interests. A.R.S. §§ 25-403, -403.01(B).

¶19 Here, the court made specific and detailed findings about all
relevant factors and the reasons why sole legal decision-making for Mother
was in the Children’s best interests. The court acknowledged that the
parties had a long history of conflict and an inability to agree, and that
Mother had engaged in problematic conduct, including talking negatively
about Father to the Children, secretly recording the Children, and cutting

1 Father contends in his reply brief that Mother appears to agree with
his appeal because a passage in her answering brief states that the superior
court abused its discretion. Father’s contention is abjectly unreasonable.
Viewed in the context of Mother’s brief as a whole—in which she
repeatedly and clearly argues that the superior court acted within its
discretion and should be affirmed—the cited passage is obviously nothing
more than the product of an editing error by Mother’s counsel. We also
decline Father’s invitation to strike Mother’s brief for noncompliance with
ARCAP 13.

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off her communication with the Children shortly before the trial. The court
emphasized, however, that Father had engaged in a pattern of conduct
designed to interfere with Mother’s ability to make decisions, exercise
parenting time, and maintain a relationship with the Children. Notably,
the court found that Father was motivated by a desire to keep the Children
from Mother, that he “was abhorrent in his active prevention of Mother
exercising her ability to participate in decision-making concerning the
children,” that he “disagreed with the majority of [Mother’s] medical
decisions with no apparent good reason,” that he interfered with Mother’s
ability to obtain counseling that the Children were “in dire need of,” that
he had a “calculated plan to alienate the Children from Mother,” and that
he “use[d] religion as a weapon against Mother [to t]each[ ] the children to
dislike Mother” and convince them that “living with Mother is contrary to
G-d’s will.” The court further found that Father was “unnervingly
obstructive during his cross-examination at trial,” and his conduct and
demeanor suggested “an undiagnosed mental health concern.”

¶20 The evidence reasonably supported the court’s findings, and
we defer to its credibility determinations. Father points out that Mother
made poor parenting decisions. But the court expressly considered those
decisions, and we do not reweigh the evidence. The court did not abuse its
discretion by concluding that sole legal decision-making for Mother served
the Children’s best interests.

II. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY
RESTRICTING FATHER’S PARENTING TIME.

¶21 “A parent who is not granted sole or joint legal decision-
making is entitled to reasonable parenting time to ensure that the minor
child has substantial, frequent, meaningful and continuing contact with the
parent unless the court finds, after a hearing, that parenting time would
endanger the child’s physical, mental, moral or emotional health.” A.R.S.
§ 25-403.01(D). “The court may modify an order granting . . . parenting time
rights whenever modification would serve the best interest of the child, but
the court shall not restrict a parent’s parenting time rights unless it finds
that the parenting time would endanger seriously the child’s physical,
mental, moral or emotional health.” A.R.S. § 25-411(J). The court shall
order supervised parenting time “if the court finds that in the absence of
the order the child’s physical health would be endangered or the child’s
emotional development would be significantly impaired, and if the court
finds that the best interests of the child would be served.” A.R.S. § 25-
410(B).

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¶22 Here, the court found that Father’s time “must be supervised
to protect the children’s physical, mental, or emotional health,” explaining
that “Father has engaged in significant acts of parental alienation” because
“he has incessantly pressured the children to live with him full-time and
even told them that it was G-d’s will that they live with him.” The court
further found that allowing Father to have unsupervised parenting time
“would or could endanger seriously the children’s physical, mental, or
moral health or would significantly impair the children’s emotional
development.” The court emphasized the psychologist’s statement that
“parental alienation is a form of emotional abuse,” found that “[t]his
alienation and emotional abuse has created depression, anxiety, and self-
esteem issues with the children,” and concluded that absent significant
intervention, “the children will be at risk for suicidal ideation and
depression that they will carry with them into adulthood.”

¶23 The evidence reasonably supported the court’s findings.
Father emphasizes that the parenting-time restrictions imposed by the
court were more draconian than what Mother requested. The court,
however, was not constrained by Mother’s position—the court has an
independent duty to consider whether parenting-time restrictions are
necessary to protect children from harm. See Hart v. Hart, 220 Ariz. 183, 187,
¶ 16 (App. 2009) (holding that court may order supervised parenting time
sua sponte). We also reject Father’s contention that his behavior was
insufficient to create serious endangerment. In view of the evidence that
Father had alienated the Children from Mother and had obstructed their
ability to receive counseling for diagnosed disorders, the superior court
reasonably concluded that unsupervised parenting time for Father would
seriously endanger the Children’s mental or emotional health.

¶24 We recognize that the modification order drastically altered
the status quo, which had been equal parenting time since the case’s
inception. On this record, however, we cannot say that the court abused its
discretion by reducing Father’s parenting time to three hours of supervised
time every other week.

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CONCLUSION

¶25 We affirm for the reasons set forth above. We deny the
parties’ competing requests for attorney’s fees. Mother is entitled to recover
her costs upon compliance with ARCAP 21.

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

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