Brooks v. cardoza/braswell

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BARBARA BROOKS, Petitioner/Appellant,

v.

ZOEY CARDOZA and TORRIN BRASWELL, Respondents/Appellees.

No. 1 CA-CV 23-0604 FC
FILED 08-01-2024

Appeal from the Superior Court in Mohave County
No. B8015DO202004098
The Honorable Kenneth Gregory, Judge Pro Tempore

AFFIRMED

COUNSEL

Barbara Brooks, Bullhead City
Petitioner/Appellant

Zoey Cardoza, Bullhead City
Respondent/Appellee

Torrin Braswell, Bullhead City
Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Vice Chief Judge Randall M. Howe
joined.

C A T L E T T, Judge:

¶1 Barbara Brooks (“Brooks”) appeals the superior court’s
decision terminating her legal decision-making authority over M.B. The
superior court did not err in concluding that Brooks failed to rebut the
presumption that it was in M.B.’s best interests to award legal decision-
making authority to M.B.’s mother (“Mother”). We therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶2 M.B. was born in May 2019. When M.B. was about four
months old, Mother left M.B. with Brooks, who is the mother of one of
Mother’s former boyfriends. Brooks then petitioned for third-party legal
decision-making authority over M.B. After conducting an ex parte hearing
and finding Mother was “unable to parent due to a heroin addiction,” the
superior court gave Brooks temporary legal decision-making authority.
Several months later, the court held another hearing, during which Brooks
and Mother testified. After that hearing, the court awarded Brooks legal
decision-making authority, partly because Brooks, on behalf of M.B., had
obtained an injunction against Mother, preventing Mother from exercising
parenting time with M.B.

¶3 Two years later, Mother sought to re-obtain legal decision-
making authority. The court initially rebuffed that request because the law
required it to presume Mother, at the time, was an unfit parent due to her
history of substance abuse. See A.R.S. § 25-403.04. The court noted,
however, “that [Mother] ha[d] made significant headway towards
rebutting the presumption of unfitness” because she was participating in
an adult recovery court program and was “90 days clean.” The court
instead allowed Mother unsupervised parenting time with M.B., and it
informed her that “successful completion of the Recovery Court program
will be sufficient . . . to rebut the statutory presumption of unfitness and
restore her rights as [M.B.’s] parent.”

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¶4 In 2023, Brooks was arrested and incarcerated. So Mother
requested temporary orders giving her legal decision-making authority
over M.B. The court granted Mother’s request.

¶5 Later, after an evidentiary hearing, the court revisited
Mother’s request for legal decision-making authority. The court recognized
that Mother had overcome the presumption of parental unfitness because
she was “in Phase 4 of the adult recovery court and [wa]s 232 days clean
and sober, as verified by random drug testing[.]” The court explained that
it, therefore, had to presume that “awarding legal decision-making to
Mother is in the best interest of [M.B.].” See A.R.S. § 25-409(B). The court
concluded that Brooks “ha[d] not rebutted this presumption by clear and
convincing evidence” and awarded Mother legal decision-making
authority.

¶6 Brooks timely appealed; we have jurisdiction. See A.R.S. § 12-
2101.

DISCUSSION

¶7 Brooks challenges the superior court’s order restoring
Mother’s parental rights as to M.B. Mother did not file an answering brief
with this court. When an appellee does not file an answering brief and
debatable issues exist, we may consider such failure a confession of
reversible error. Savord v. Morton, 235 Ariz. 256, 259 ¶ 9 (App. 2014). But
because, here, the best interests of a child are at issue and Brooks has not
raised a debatable issue, we address the merits of her arguments.

¶8 We review an award of legal decision-making authority for
an abuse of discretion. Olesen v. Daniel, 251 Ariz. 25, 29 ¶ 14 (App. 2021).
We review the court’s interpretation and application of A.R.S. § 25-409 de
novo. Chapman v. Hopkins, 243 Ariz. 236, 240 ¶ 14 (App. 2017). The superior
court has a “duty to independently assess evidence” presented at a hearing.
Leslie C. v. Maricopa Cnty. Juv. Ct., 193 Ariz. 134, 135 (App. 1997). Where
there is conflicting evidence, the superior court is in the best position to
weigh the evidence and assess witness credibility. Gutierrez v. Gutierrez, 193
Ariz. 343, 347–48 ¶ 13 (App. 1998). We also note that Brooks failed to order
transcripts of the superior court’s proceedings. See Ariz. R. Civ. App. P.
11(b)(1). Without transcripts, we assume the record supports the superior
court’s findings and conclusions. Kline v. Kline, 221 Ariz. 564, 572 ¶ 33 (App.
2009).

¶9 When deciding whether to award legal decision-making
authority to a third party, there is “a rebuttable presumption that awarding

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legal decision-making to a legal parent serves the child’s best interests[.]”
A.R.S. § 25-409(B). This presumption is only rebutted “by clear and
convincing evidence that awarding legal decision-making to a legal parent
is not consistent with the child’s best interests,” as outlined in A.R.S. § 25-
403. A.R.S. § 25-409(B); see also Chapman, 243 Ariz. at 241 ¶ 18.

¶10 After the superior court heard testimony from Mother and
one of her treatment providers, the court found Mother was in Phase 4 of
the adult recovery court, had undergone random drug tests showing she
was “232 days clean and sober,” and was “stable and doing well.” The
record adequately supports the superior court’s conclusion that Mother
rebutted the presumption that, due to her previous substance abuse,
awarding her legal decision-making authority was not in M.B.’s best
interests. See A.R.S. § 25-403.04.

¶11 That conclusion triggered a second presumption, this time in
Mother’s favor—“that awarding legal decision-making to [Mother] serves
[M.B.’s] best interests.” See A.R.S. § 25-409(B). Brooks could only overcome
that presumption with “clear and convincing evidence that awarding legal
decision-making to [Mother] [was] not consistent with [M.B.’s] best
interests.” Id. The superior court determined that Brooks did not
sufficiently show that awarding Mother legal decision-making would be
inconsistent with M.B.’s best interests. The court instead found that M.B.
was doing well in Mother’s care. Without a transcript of the hearing, we
assume the record supports those findings and conclusions. Kline, 221 Ariz.
at 572 ¶ 33.

¶12 Finally, Brooks argues the superior court judge should have
recused himself because, according to Brooks, the judge previously dated
one of Mother’s aunts, making him more likely to award Mother legal
decision-making authority. Rule 2.11 of the Arizona Code of Judicial
Conduct instructs that “[a] judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be
questioned,” including when the judge’s spouse or certain other close
relatives are party to the proceeding. A party challenging a judge’s
impartiality “must overcome the presumption that [superior court] judges
are ‘free of bias and prejudice.’” Stagecoach Trails MHC, L.L.C. v. City of
Benson, 232 Ariz. 562, 568 ¶ 21 (App. 2013) (citations omitted). To do so, the
party must “set forth a specific basis for the claim of partiality and prove by
a preponderance of the evidence that the judge is biased or prejudiced.”
Simon v. Maricopa Med. Ctr., 225 Ariz. 55, 63 ¶ 29 (App. 2010); Stagecoach
Trails MHC, L.L.C., 232 Ariz. at 568 ¶ 21 (“Judicial rulings alone do not

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support a finding of bias or partiality without a showing of an extrajudicial
source of bias or a deep-seated favoritism.”).

¶13 The niece of an individual a judge once dated is not among
the relationships listed in Rule 2.11. In any event, Brooks does not establish
that the judge was aware who Mother’s aunt was or, more importantly, that
the purported former relationship between the judge and Mother’s aunt
otherwise rendered the judge impartial. Brooks has not established judicial
bias requiring recusal.

CONCLUSION

¶14 We affirm.

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

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