Tia C. v. Gabriel V.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TIA C., Petitioner/Appellant,

v.

GABRIEL V., Respondent/Appellee.

No. 1 CA-CV 23-0519 FC
FILED 4-30-2024

Appeal from the Superior Court in Maricopa County
No. FC2017-054467
The Honorable Ashley B. Rahaman, Judge Pro Tempore

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Tia C., Peoria
Petitioner/Appellant
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MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 Tia C. (Mother) appeals the superior court’s order modifying
legal decision-making authority and parenting time.1 She also challenges
the denial of her petition for enforcement and contempt against Gabriel V.
(Father). We vacate and remand for consideration of a single issue
concerning the enforcement aspect of Mother’s enforcement and contempt
petition. We otherwise affirm.

BACKGROUND

¶2 Mother and Father have three children in common: Jessica,
born in 2006; Gavin, born in 2014; and Justin, born in 2015.2 In late 2017,
Mother petitioned the superior court to establish paternity, legal decision-
making authority, parenting time, and child support. From that point on,
the children mainly resided with Mother but visited Father regularly.

¶3 In the fall of 2018, Mother accused Father of physically
abusing Gavin and Justin, and later added an accusation of sexual abuse.
As a result, the court briefly suspended Father’s parenting time and
imposed a supervision requirement. Mother disclosed that her minor sister
had also accused Father of sexual molestation in 2012. The police and the
Department of Child Safety (DCS) investigated but took no action because
the children disclosed no abuse. During an interview with the Court
Appointed Advisor, Jessica admitted that Mother had told her not to say
good things about Father. Jessica also stated Father had never touched her
inappropriately and she did not believe Father would touch either of the
boys inappropriately.

1 To safeguard the children’s identities, it is ordered that the clerk of
the court shall amend the caption of this appeal as shown above. The above
caption shall be used on all future documents filed in this matter.
2 We use pseudonyms for the children.

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¶4 The court held a trial on Mother’s initial petition in November
2018, and in January 2019 entered an order establishing joint legal decision-
making authority and giving Father substantial unsupervised parenting
time. Almost immediately, Mother petitioned the court to modify the order
to eliminate Father’s parenting time based on continuing sexual abuse of
Gavin and Justin. The court denied that petition.

¶5 In late September 2021, Mother contacted the police to
reiterate her previous allegations that Gavin and Justin were being abused.
She also reported that Father had been threatening suicide, the children did
not want to go to his home, and Jessica was self-harming. Soon thereafter,
Mother petitioned the court to modify its January 2019 order to give her
sole legal decision-making authority and parenting time. Mother then
reported Father to the police for abusing Jessica, though she did not specify
how. A few days later, Mother took Jessica to a medical appointment, where
Jessica disclosed that Father was physically aggressive toward her brothers
and had touched her sexually.

¶6 The police and DCS again investigated, and again found no
grounds for action. Gavin and Justin disclosed no abuse. And though
Jessica stated that Father had touched her sexually once in the past, she tied
that statement to what she said Mother had told her about her aunt’s
accusation. The only other touching Jessica reported was a recent incident
where Father tapped her thigh and groin area as she sat beside him in a car.

¶7 In late November 2021, Father filed a cross-petition to modify
legal decision-making authority and parenting time based on Mother’s
repeated unproven abuse allegations. A few days later, Jessica had a fight
with Father and attempted suicide. Soon thereafter, the court entered
temporary orders giving Father final say on legal decision-making and
giving Mother limited supervised parenting time. The court emphasized
that Mother appeared to be coaching the children to make allegations of
abuse, and that unsupervised parenting time would endanger them.

¶8 Over the next six months, Jessica repeated her previous abuse
disclosures in therapy. Again, the police and DCS investigated—and again,
they found no grounds for action. Both the Court Appointed Advisor and
the children’s Best Interests Attorney told the court that they were
concerned Mother was continuing to unduly influence Jessica.

¶9 In November 2022, the court held Father in contempt for
withholding parenting time. The court also found that, contrary to court
orders, he had not secured counseling services for the children and that they

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were often tardy or absent from school while in his care. Among other
things, the court ordered Father to promptly secure counseling for the
children.

¶10 Mother then filed several motions to modify legal
decision-making authority and parenting time, again alleging that Father
abused the children. The court largely denied those motions, but in
February 2023 removed the requirement that Mother’s parenting time be
supervised. In early March 2023, Mother reported Father to DCS twice, and
DCS again found the reports unsubstantiated.

¶11 In April 2023, the parties’ competing petitions to modify
decision-making authority and parenting time finally went to trial. The trial
also took up Mother’s motion for enforcement and contempt based on
Father’s alleged non-compliance with orders requiring him to provide the
children counseling and to pay child support, medical insurance, medical
expenses, and supervision costs.

¶12 At the trial, Mother did not claim definitively that the children
had been sexually abused, but testified that she had “serious concerns
about” the matter and believed the allegations were not properly
investigated. Father testified that the children were doing well, with Gavin
and Justin exhibiting no concerning behaviors and Jessica enjoying school.

¶13 In June 2023, in a detailed minute entry, the court ordered that
Father be awarded sole legal decision-making authority and that Mother be
awarded unsupervised parenting time for two hours each week, plus two
additional hours each month. The court found that “Mother’s behavior
since 2017 is among the most pervasive and upsetting this Court has seen.”
The court found that Mother had engaged in a “years-long campaign . . . to
limit [F]ather’s contact with the children” via “manipulation” of Jessica and
the “reckless weaponization of the Department of Child Safety, law
enforcement, and this Court in perpetuating the unsupported allegation
that Father has committed one of the worst crimes one can be accused of as
a parent, the sexual abuse of his children.” The court said that for it to
consider expanding Mother’s parenting time, Mother should undertake a
forensic psychological examination and participate in individual
counseling.

¶14 The court denied Mother’s enforcement and contempt
petition based on an absence of testimony, referred the question of modified

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child support to a Title IV-D commissioner,3 and entered judgment under
Ariz. R. Fam. L. P. 78(b).

¶15 Mother appealed.

DISCUSSION

¶16 Mother makes many arguments on appeal.4 Her arguments
are moot insofar as they relate to legal decision-making and parenting time
regarding Jessica, because she is now 18 years old. See A.R.S. § 1-215(6)
(defining “child” as a person under eighteen years of age); A.R.S.
§ 25-401(3), (5) (providing that legal decision-making authority and
parenting time concern rights and schedules pertaining to a “child”). We
also do not consider Mother’s arguments about the temporary orders and
the contempt adjudication because such rulings must be challenged by
special action. See Gutierrez v. Fox, 242 Ariz. 259, 264, ¶ 12 (App. 2017)
(regarding temporary orders); State ex rel. Dep’t Econ. Sec. v. Burton, 205
Ariz. 27, 30, ¶ 18 (App. 2003) (regarding contempt). Nor do we consider
Mother’s arguments about separate protective-order proceedings or rulings
post-dating the order appealed. We address the balance of Mother’s
arguments in turn, construing them to the best of our ability.

I. Judicial Bias and Delay

¶17 We first address Mother’s arguments that the court was
biased against her and that the proceedings were delayed and involved too
many judge changes. We reject those arguments.

¶18 Nothing in the record suggests that the court was biased.
Though the court criticized Mother, it did so in the context of factual
findings that, as we explain below, were supported by evidence. Further,
nothing in the record shows that any changes in assigned judges were
anything but routine. To be sure, there was delay in resolving the parties’
competing petitions to modify. But the parties were actively litigating
during that time, and the court entered temporary orders that addressed
the disputed issues in the interim.

3 See 42 U.S.C. §§ 651–669.
4 Father did not file an answering brief. We decline to regard this as
confession of error because children’s best interests are at stake. See In re
Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 2 (App. 2002).

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II. Modification of Legal Decision-Making Authority and
Parenting Time

¶19 We next address Mother’s argument that the modifications of
both legal decision-making authority and parenting time were based on
insufficient evidence and false testimony. We reject that argument.

¶20 The court may grant a procedurally proper request to modify
legal decision-making authority and parenting time if the circumstances
have changed since entry of the last order. Engstrom v. McCarthy, 243 Ariz.
469, 472, ¶ 10 (App. 2018); see A.R.S. § 25-411. If the circumstances have
changed, under A.R.S. § 25-403 the court “shall determine legal decision-
making and parenting time . . . in accordance with the best interests of the
child[ren],” considering all relevant factors and, in contested cases, making
express findings under the statute. The court must also consider domestic
violence and child abuse, substance abuse, and sexual offenses under A.R.S.
§§ 25-403.03 to -403.05. For legal decision-making authority, the court must
also consider the factors set forth in A.R.S. § 25-403.01(B). We review the
court’s factor-based determinations for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). The court abuses its discretion if no
evidence supports its decisions, Pridgeon v. Superior Court (LaMarca), 134
Ariz. 177, 179 (1982), or if it fails to make statutorily required findings, Hurd
v. Hurd, 223 Ariz. 48, 51, ¶ 11 (App. 2009). We do not reweigh conflicting
evidence, and we defer to the court’s credibility determinations. Id. at 52,
¶ 16.

¶21 The court reasonably found that Jessica’s mental health
concerns and Mother’s new abuse allegations constituted a change in
circumstances. The court then made detailed findings on all statutorily
applicable factors under A.R.S. §§ 25-403, -403.01, -403.03, -403.04, and
-403.05. Evidence supports those findings and the court’s determinations
regarding what allocation of legal decision-making authority and parenting
time would serve the children’s best interests. Among other things,
evidence showed the following: Mother made escalating abuse allegations
against Father, coached at least one of the children regarding the claims,
and refused to stop making the allegations even though investigations
proved the allegations unsubstantiated on multiple occasions—and despite
that fact that she did not express certainty as to the allegations’ truth during
her testimony at trial. As a result of Mother’s repeated reports of abuse,
Gavin and Justin had to undergo multiple interviews and miss parenting
time with Father. However, Father managed to maintain a relationship with
Gavin and Justin, and their behaviors improved while in his primary care.
On this record, we find no abuse of discretion in the court’s findings or its

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determination that sole legal decision-making authority for Father and
limited parenting time for Mother served Gavin and Justin’s best interests.

¶22 Mother contends that the parenting time she received is not
enough to permit her to maintain a meaningful relationship with Gavin and
Justin. The superior court has discretion to allocate parenting time in accord
with the children’s best interests and safety. See A.R.S. §§ 25-403(A)
(providing that parenting time shall be determined, “either originally or on
petition for modification, in accordance with the best interests of the child”),
-403.02(B) (providing that “[c]onsistent with the child’s best interests,” the
court must adopt a parenting plan “that maximizes [the parents’] respective
parenting time”), -411(J) (providing that modification of parenting time
“shall not restrict a parent’s parenting time rights unless [the court] finds
that the parenting time would endanger seriously the child’s physical,
mental, moral or emotional health”); Smith v. Smith, 253 Ariz. 43, 47,
¶¶ 17–18 (App. 2022) (explaining that statutes do not create a presumption
of equal parenting time). Here, given Mother’s pattern of conduct and its
risks to Gavin and Justin’s emotional health, we find no abuse of discretion
in the court’s orders limiting Mother’s parenting time. We also find no
abuse of discretion in the court’s recommendation that Mother undergo a
forensic psychological evaluation and counseling before seeking more
parenting time.

III. Enforcement and Contempt Petition

¶23 Mother next argues that the court erred by denying her
enforcement and contempt petition based on the absence of testimony. She
argues that she did present testimony and would have presented more if
given adequate time. We address Mother’s arguments as they relate to the
enforcement aspect of her petition only. See Burton, 205 Ariz. at 30, ¶ 18
(recognizing absence of appellate jurisdiction over contempt
adjudications). We reject Mother’s arguments, with one exception.

¶24 We first address Mother’s argument that she was given
inadequate time at trial to address the enforcement and contempt petition.
The court has discretion to impose reasonable time limits both before and
during trial, but to ensure due process, must allow additional time if it
becomes apparent that the court will otherwise be deprived of adequate
testimony to perform its essential tasks. Volk v. Brame, 235 Ariz. 462,
468–69, ¶¶ 19–22 (App. 2014). Mother was given more than two hours to
present her evidence, and she neither objected to the time limit nor
requested more time at trial. On this record we conclude that she had
sufficient opportunity to make her case.

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¶25 We next address Mother’s argument that she presented
testimony supporting the enforcement and contempt petition. Our review
of the trial transcript reveals that though Mother tried to question the Court
Appointed Advisor about Father’s non-payment of child support and
medical insurance, she ultimately elicited no relevant testimony on those or
any other financial matters. The court did, however, hear testimony from
Mother, Father, and the Court Appointed Advisor that Father had not
provided counseling for Gavin and Justin—something that he had to do
under court order. We therefore conclude that the court erred insofar as it
found no evidence presented regarding the counseling aspect of the
enforcement portion of Mother’s petition. We vacate and remand for the
court to consider the petition with respect to the narrow issue of enforcing
the order requiring counseling for Gavin and Justin.

CONCLUSION

¶26 We affirm the June 2023 order’s modification of legal
decision-making authority and parenting time, and we largely affirm the
order’s denial of Mother’s enforcement and contempt petition. We vacate
and remand the denial of the enforcement and contempt petition insofar as
it relates to enforcement of the order for Gavin and Justin’s counseling. We
deny Mother’s request for attorneys’ fees and costs on appeal.

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

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