Mesa v. O'Connor

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:
GABRIEL MICHAEL MESA, Petitioner/Appellant,

v.

RACQUEL DIANE O’CONNOR, Respondent/Appellee.

No. 1 CA-CV 24-0414 FC
FILED 01-28-2025

Appeal from the Superior Court in Maricopa County
No. FC2022-093788
The Honorable Steven McCarthy, Judge

VACATED AND REMANDED IN PART

COUNSEL

Berkshire Law Office, PLLC, Tempe
By Keith Berkshire (argued) & Alexandra Sandlin
Counsel for Petitioner/Appellant

David Dick and Associates, Chandler
By David Alan Dick
Counsel for Respondent/Appellee
 MESA v. O’CONNOR
Opinion of the Court

OPINION

Judge Paul J. McMurdie delivered the Court’s opinion, in which Presiding
Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 In this post-decree family matter, Gabriel Mesa (“Father”)
appeals the orders awarding Racquel O’Connor (“Mother”) sole legal
decision-making of the parties’ child, granting Father parenting time “at the
child’s discretion,” and ordering the post-judgment appointment of a
therapeutic interventionist (“TI”) to help repair Father’s relationship with
the child.

¶2 We hold that a superior court may order parenting time at the
child’s discretion after analyzing the child’s best interests. In this case, the
superior court considered the statutory best interests factors and did not
abuse its discretion by concluding that Father should have no parenting
time without the child’s consent. We also hold that the court improperly
appointed a TI under Arizona Revised Statutes (“A.R.S.”) § 25-405 after
resolving the parenting time and legal decision-making issues. Thus, we
vacate the orders appointing a TI and remand for further proceedings
consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶3 We view the evidence in the light most favorable to
upholding the superior court’s decision. Baker v. Meyer, 237 Ariz. 112, 113,
¶ 2 (App. 2015).

¶4 Mother and Father married in 2007 and had a child (“Child”)
shortly after. By early 2009, the parties separated, and by September, they
divorced.

¶5 In 2019, Child, born female, informed Mother that she was
transgender. A year later, Child started using male pronouns and
identifying as male. At first, no one informed Father of the transition
because Child feared his reaction. Once informed, Father’s reaction harmed
his relationship with Child. Father sent a text message to Mother telling her
to “[l]et me grieve the loss of my daughter and leave [m]e alone and stop
trying to build a relationship with [son]. I don’t want to know that person.”

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Father often misgendered Child and used his pre-transition name. When
Child asked Father to use his chosen name, Father said that his birth name
was the only thing he gave Child, and his name would stay that way. Father
also once “blew up” at Child, which included screaming at him and driving
erratically with him in the car.

¶6 After Child told Father of the transition, Father said he loves
Child for who he is but refused to say he loved him as a son. When Child
went to a school where he could register as male, Father tried to “out” Child
at the school by showing up with documentation that showed Child was
biologically female. Father did so without notice and sought to take Child
out of the school. Child became upset and was surreptitiously taken out of
the school, helped by the school resource officer. Child had frequent
nightmares about Father shooting up the school and kidnapping him.

¶7 Father withdrew consent for Child to have a medically
necessary colonoscopy, and he withdrew consent for therapy days after
Child’s suicide attempt. Father repeatedly refused to consent to therapeutic
treatment for Child’s mental health issues.

¶8 Based on Father’s response to his transition, at 14, Child
refused to allow Father to exercise the court-ordered parenting time or talk
with him. Child, who was 16 at the time of the trial, conveyed he wanted
no contact with Father until he apologized for his initial reaction to Child’s
transition. Child considered seeking emancipation if he had to live with
Father.

¶9 In February 2022, Mother petitioned the superior court to
modify the decision-making and parenting time orders. Father
counter-petitioned to enforce legal decision-making and to modify
parenting time. The court issued a temporary order, including plans for a
comprehensive family evaluation, which was never completed. Two years
later, the court held a trial on the issues raised in the competing petitions.
Both Mother and Father testified about their relationships with Child,
issues surrounding their shared medical decision-making, as well as all
parties’ mental health.

¶10 After the trial, the court issued an order modifying legal
decision-making and parenting time (“Parenting Order”). The order read
that “[d]espite any initial confusion and shock regarding the child’s
transition, during the trial, Father unequivocally expressed acceptance of
his child and a fervent desire to be involved in the child’s life.” Still, the
court explained that Child “wishe[d] to have complete discretion over

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interactions with Father.” Because Child was almost an adult, the court
“heavily weighed the wishes of the child” in its determination.

¶11 The court granted sole legal decision-making to Mother.
While not ordering a structured parenting schedule for Father, the court
allowed Father parenting time “at the child’s discretion” and required
Child and Father to engage in reunification therapy. Two weeks later, the
court filed an order appointing a TI (“Appointment Order”) for Father and
Child’s reunification, which identified the court’s authority for the
appointment and elaborated on the scope and purpose of the appointment.

¶12 Father appealed the Parenting and Appointment Orders. We
have jurisdiction under the Arizona Constitution, Article 6, Section 9, and
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶13 Father raises four arguments on appeal: (1) the superior court
erred by making his parenting time at Child’s discretion, thereby delegating
the best interests determination to Child and failing to create a specific
parenting schedule; (2) the court restricted Father’s parenting time without
complying with A.R.S. § 25-411(J); (3) the court erred by granting Mother
sole legal decision-making based on her status as Child’s primary caregiver
and Child’s wishes; and (4) the court lacked the authority after finalizing
the Parenting Order to issue the Appointment Order, which required
Father and Child to participate in TI services.

¶14 We review the superior court’s award of legal
decision-making and parenting time for an abuse of discretion. Gish v.
Greyson, 253 Ariz. 437, 444, ¶ 31 (App. 2022). An abuse of discretion occurs
when the court commits an error of law in reaching a discretionary decision,
DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019), or the record is “devoid
of competent evidence to support the decision,” Engstrom v. McCarthy, 243
Ariz. 469, 471, ¶ 4 (App. 2018) (quoting Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19
(App. 2009)). We defer to a court’s factual findings unless they are clearly

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erroneous. Id.1 We review the interpretation of statutes and conclusions of
law de novo. Gish, 253 Ariz. at 444, ¶ 31.

A. A Court Is Not Prohibited from Awarding Parenting Time Based
On a Child’s Discretion if It Is in the Child’s Best Interests and Supported
by the Evidence.

1. The Court Did Not Delegate the Best Interests
Determination to Child.

¶15 Father claims that by only allowing parenting time at the
Child’s discretion, the court delegated the parenting time decision to Child,
ignoring its duty to determine the Child’s best interests. We disagree.

¶16 The superior court has an independent duty to determine the
child’s best interests. A.R.S. § 25-403(A) (“The court shall determine legal
decision-making and parenting time . . . in accordance with the best
interests of the child.”); see also Christopher K. v. Markaa S., 233 Ariz. 297,
301-02, ¶¶ 20-23 (App. 2013) (A court must explain its evaluation of the
evidence in the best interests finding.). The child’s best interests “are for the
court alone to decide” and not delegable to another party. DePasquale v.

1 While the superior court summarized the evidence presented at the
trial, it did not resolve some factual disputes. We caution fact-finding courts
against this procedure. The superior court is in the best position to reach
factual conclusions or resolve factual disputes, see Vincent v. Nelson, 238
Ariz. 150, 155, ¶ 18 (App. 2015), and a summary leaves appellate courts
trying to divine its findings. Specific findings aid all parties and the court
in determining the child’s best interests in the future. See Reid v. Reid, 222
Ariz. 204, 209, ¶ 18 (App. 2009); Backstrand v. Backstrand, 250 Ariz. 339, 344,
¶ 18 (App. 2020) (Whether imposed by the court or agreed to by the parties,
the parenting provisions of a decree or other order represent a snapshot of
the child’s best interests and form the baseline from which future courts
assess whether a material change of circumstances has occurred.). Father
does not raise whether the testimonial summary violated the requirement
of factual findings as an issue on appeal, and so any error is waived. See
Francine C. v. Dep’t. of Child Safety, 249 Ariz. 289, 297, ¶ 19 (App. 2020)
(“Generally, an appellate court may infer that the superior court has made
whatever additional findings are necessary to sustain its judgment . . . if the
additional findings are reasonably supported by the evidence and do not
conflict with any of the court’s express findings.”).

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Superior Court, 181 Ariz. 333, 336 (App. 1995); Nold v. Nold, 232 Ariz. 270,
273-74, ¶ 14 (App. 2013).

¶17 Father claims our decisions in DePasquale and Nold prohibited
the court from ordering Father’s parenting time to be “at the child’s
discretion” because to do so delegated its responsibility. But both cases
considered a different scenario than what occurred here. In DePasquale, the
superior court stated it would adopt any recommendation by a
psychologist before the evidentiary hearing, and it then adopted the
psychologist’s recommendation without conducting a hearing. 181 Ariz. at
334. We held the court erred by adopting the psychologist’s
recommendation without independently considering any of the best
interests factors or holding a hearing. Id. at 335-37. In Nold, the superior
court used a custody evaluation as the baseline for its decision, then found
“no persuasive evidence established a sound reason for deviating from the
parenting time schedule [the custody evaluator] suggested.” 232 Ariz. at
273-74, ¶ 14 (alteration in original). We held the court delegated its
obligation to weigh the evidence independently in making a best interest
finding and abused its discretion because it “fail[ed] to make the statutorily
mandated findings.” Id. at 273-74, ¶¶ 14-15.

¶18 In both cases, the superior court erred by failing to evaluate
independently the child’s best interests under A.R.S. § 25-403(B). See A.R.S.
§ 25-403(B) (In a contested legal decision-making or parenting time case, the
court must consider all relevant best interests factors.); DePasquale, 181 Ariz.
at 336; Nold, 232 Ariz. at 273-74, ¶¶ 12, 15. But the court here made no such
error. Instead, the court conducted an evidentiary hearing and made
findings on the record for the A.R.S. § 25-403(A) factors. It made additional
findings on the A.R.S. § 25-403.01(B) factors and the lack of domestic
violence, substance abuse, or sex offenses under §§ 25-403.03, -403.04,
and -403.05. Thus, the error noted in DePasquale and Nold does not exist
here.

¶19 Contrary to Father’s claim, the court determined Child’s best
interests. It weighed all relevant factors before it determined it was in
Child’s best interest to be in control of his relationship with Father, and the
evidence of Father and Child’s strained relationship supports the court’s
conclusion. There is no “hard-and-fast rule” about what is in a child’s best
interests, Evans v. Evans, 116 Ariz. 302, 307 (App. 1977), and the court has
broad discretion to determine what fits the bill, Orezza v. Ramirez, 19 Ariz.
App. 405, 409 (1973). We will only disturb a ruling premised on a best
interests finding if the court abused its discretion in making that finding. In
re Marriage of Friedman & Roels, 244 Ariz. 111, 120, ¶ 36 (2018). Father has

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not shown that the court abused its discretion when it weighed the
evidence, analyzed all relevant factors, noted those on the record, and
entered the parenting order. Thus, the superior court did not err by
assigning Father parenting time at Child’s discretion after independently
considering the best interest factors and making a conclusion based on that
assessment.

2. The Court Created a Practical and Maximized Parenting
Time Schedule.

¶20 Father also argues the court failed to create a parenting
schedule that maximized his parenting time or that gave a practical
schedule for holidays and school vacations, violating A.R.S. § 25-403.02. See
A.R.S. § 25-403.02(B) (“[T]he court shall adopt a parenting plan that . . .
maximizes [parents’] respective parenting time.”); A.R.S. § 25-403.02(C)(3)
(“Parenting plans shall include . . . [a] practical schedule of parenting time
for the child, including holidays and school vacations.”). But the lodestar
for parenting time is not maximizing parenting time, but focusing on what
parenting time arrangement is in the child’s best interests. See, e.g., A.R.S.
§ 25-403.02 (“Consistent with the child’s best interests . . . the court shall adopt
a parenting plan that . . . maximizes [parents’] respective parenting time.”)
(emphasis added); A.R.S. § 25-103(B) (It is the public policy of Arizona that
“it is in a child’s best interest” to have “substantial, frequent, meaningful and
continuing parenting time with both parents.”) (emphasis added); Dunbar
v. Dunbar, 102 Ariz. 352, 354 (1967) (“The final determination of custody in
a divorce action is and must be determined by what the court considers to
be in the best interest of the child. The wishes of the parents, of course, may
and should be considered, but their happiness and their desires will never
be allowed to interfere with the child’s true welfare.”); Gonzalez-Gunter v.
Gunter, 249 Ariz. 489, 492, ¶ 12 (App. 2020); Smith v. Smith, 253 Ariz. 43, 47,
¶ 18 (App. 2022); J.F. v. Como, 253 Ariz. 400, 403–04, ¶¶ 14–19 (App. 2022)
(“[A] child’s best interest represents the lens through which Arizona courts
must review and decide all custody disputes.”).

¶21 The superior court has the discretion to determine parenting
time “based on all the evidence before it.” Gonzalez-Gunter, 249 Ariz. at 492,
¶ 11. In some cases, the statutorily mandated parenting time plan will not
include a specified time for a parent if doing so is not in the child’s best
interests. See, e.g., Matter of Lora PP. v. Alphonso PP., 200 N.Y.S.3d 194, 196
(N.Y. App. Div. 2023) (“Although parenting time with a noncustodial
parent is generally presumed to be in a child’s best interests, a structured
parenting time schedule is not required where it would be detrimental to
the child’s welfare.”); State ex rel. Kaaden S. v. Jeffery T., 932 N.W.2d 692, 704

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(Neb. 2019) (“The Parenting Act does not require any particular parenting
time schedule to accompany an award of either sole or joint physical
custody, and there exists a broad continuum of possible parenting time
schedules that can be in a child’s best interests.”); Unif. Marriage & Divorce
Act § 407 cmt. (Unif. L. Comm’n 1973) (“With two important exceptions,
this section states the traditional rule for visitation rights. The general rule
implies a ‘best interest of the child’ standard. Although the judge should
never compel the noncustodial parent to visit the child, visitation rights
should be arranged to an extent and in a fashion which suits the child’s
interest rather than the interest of either the custodial or noncustodial
parent.”).

¶22 Here, the superior court determined, based on the evidence,
that it was in Child’s best interests that Father have no specific parenting
time and instead let Child determine whether he wanted to spend time with
Father. Given the record of hostility between Father and Child, the superior
court did not abuse its discretion by coming to that conclusion. And
contrary to Father’s position, the superior court’s Parenting Order met the
requirement that a parenting plan include a practical schedule. Under the
order, Mother has all parenting time, including holidays and school
vacations, subject only to Child’s decision to have parenting time with
Father. Thus, the court did not abuse its discretion by creating a parenting
plan consistent with its best interests findings.

B. The Superior Court Could Reduce Father’s Parenting Time.

¶23 Father contends the superior court erred by reducing his
scheduled parenting time to nothing without making a finding that his
parenting time “would endanger seriously the child’s physical, mental,
moral or emotional health.” A.R.S. § 25-411(J). But A.R.S. § 25-411(J) bars
the court from “restrict[ing] 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.” Id. The “parenting time right” is
distinct from “parenting time.” Gonzalez-Gunter, 249 Ariz. at 492, ¶¶ 13-14.
Parenting time is the schedule of time when a parent cares for a child, so a
change in parenting time is a change in the allotment.2 But a restriction on

2 “’Parenting time’ means the schedule of time during which each
parent has access to a child at specified times. Each parent during their
scheduled parenting time is responsible for providing the child with food,
clothing and shelter and may make routine decisions concerning the child’s
care.” A.R.S. § 25-401(5).

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parenting time rights restricts how that parent may oversee the child, such
as by requiring supervised parenting time. Gonzalez-Gunter, 249 Ariz. at
492, ¶ 13. In other words, parenting time rights encompass what a parent
may do during his or her parenting time. A restriction that limits the
parent’s ability to parent during his or her parenting time is a parenting
time right restriction.

¶24 While the court may only restrict a parent’s parenting right if
it would “endanger seriously the child’s physical, mental, moral or
emotional health,” A.R.S. § 25-411(J), this heightened test does not apply to
changes or reductions in parenting time, Gonzalez-Gunter, 249 Ariz. at 492,
¶ 13; Berkel v. Berkel, 1 CA-CV 19-0829 FC, 2020 WL 7353763, at *3, ¶ 13
(App. Dec. 15, 2020) (mem. decision) (“But the ’endanger seriously’ finding
is required only to ’restrict’ parenting time rights, which refers not to
reducing parenting time, but rather to placing conditions on how a parent
may exercise parenting time.”). Instead, the court may modify or reduce
parenting time by (1) determining “whether a change of circumstances
materially affecting the welfare of the child” exists, then (2) determining
“whether a change in custody will be in the best interests of the child.”
Backstrand v. Backstrand, 250 Ariz. 339, 343, ¶ 14 (App. 2020) (quoting Black
v. Black, 114 Ariz. 282, 283 (1977)).

¶25 Father’s parenting time was reduced, but both parties agreed
that there had been a change of circumstances materially affecting Child’s
welfare, and the court determined a change in parenting time would be in
Child’s best interests. Supra ¶19. Thus, the court did not err by reducing
Father’s parenting time.

C. The Court Did Not Restrict Father’s Parenting Time Right
under A.R.S. § 25-411(J).

¶26 Even though the court properly reduced Father’s parenting
time, we also consider whether it improperly restricted his parenting time
right under A.R.S. § 25-411(J) by ordering reunification therapy or
parenting time at Child’s discretion.

¶27 While “parenting time right” is not defined, the court placing
a “condition” on parenting time, such as “limiting the manner that
parenting time is exercised,” is a restriction of the right. See Gonzalez-Gunter,
249 Ariz. at 492, ¶ 13; see generally A.R.S. § 25-411(J). A parenting time right
may be restricted by such a condition only when the parenting time itself
would “endanger seriously the child’s physical, mental, moral or emotional
health.” A.R.S. § 25-411(J). Although the court must make findings

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consistent with § 25-411(J), these findings need not be “reduced to writing
or stated on the record.” Hart v. Hart, 220 Ariz. 183, 188, ¶ 16 (App. 2009).3

¶28 Here, the court required Child and Father to engage in
reunification therapy and allowed Father parenting time conditioned on
Child’s choice to spend time with Father. But neither contested part of the
court’s orders amounted to a parenting right restriction.

¶29 The court ordered reunification therapy to “support the
relationship between family members.” See Lynne M. Kenney & Diana
Vigil, A Lawyer’s Guide to Therapeutic Interventions in Domestic Relations
Court, 28 Ariz. St. L.J. 629, 650 (1996) (Therapeutic reunification generally
consists of progressive contact between a child and parent proceeding with
stepwise approximations to the parenting order at a rate supporting the
child’s well-being.). This is not a restriction on how Father can parent.
Clinical services offered by TIs, including reunification therapy, “involve
some degree of psychological treatment or dispute resolution.” Id. at 635.
The role of an interventionist more closely aligns with supporting the
family than being an arm of the court. See id. This means that therapeutic
interventions, including reunification therapy, are generally independent
of a parent exercising their parenting time because the focus is clinical, not
legal.

¶30 Additionally, Father’s parenting time being conditioned on
Child’s decision to spend time with him is not the type of “condition”
contemplated in A.R.S. § 25-411(J). Supervised parenting time, the only
condition that Arizona courts have determined to restrict parenting time
rights, see Hart, 220 Ariz. at 187, ¶¶ 16, 19, seeks to protect the child at the
expense of the parent’s ability to parent. Cf. Kenney & Vigil, supra ¶ 29, at
651 (Therapeutic supervised visitation is “more restrictive” than steps like
reunification and can be implemented to protect the child rather than meet
the parent’s needs.); accord A.R.S. § 25-411(J) (A court may only restrict the
parenting time right if unfettered parenting time would seriously endanger
the child.); Hart, 220 Ariz. at 187, ¶ 16. Ordering parenting time at the
Child’s discretion is not a condition on the parenting time, and, in this case,
the superior court made it explicit that Father had no parental fitness
concerns. If Child chooses to spend time with Father, Father will be free to

3 Hart considered A.R.S. § 25-411(D), which is identical to the current
version of § 25-411(J) except for the subsection letter. Compare A.R.S.
§ 25-411(D) (2008) with A.R.S. § 25-411(J) (2025).

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parent Child as he sees fit. Thus, Father’s discretionary parenting time does
not restrict his parenting time right.

¶31 The court reduced Father’s parenting time under the correct
test and did not restrict his parenting time right. Thus, the court did not
violate A.R.S. § 25-411(J).

D. The Superior Court Did Not Err by Granting Mother Sole
Legal Decision-Making.

¶32 Father argues the superior court erred by granting Mother
sole legal decision-making based on her status as the primary caregiver and
Child’s wishes. According to Father, relying on these factors is
impermissible.

¶33 Father argues the court erroneously allowed one factor—the
child’s wishes—to override all other factors. But, as discussed above, the
court weighed all factors but strongly considered Child’s wishes. Supra
¶¶ 18-19. This factor did not override the others but outweighed them by
comparison.

¶34 Father also alleges that considering Mother’s position as
Child’s primary caretaker violated our holding in Barron v. Barron that “the
court err[s] by favoring parenting time for Wife over Husband based on the
fact that Wife had been the children’s primary caregiver.” 246 Ariz. 580, 586,
¶ 15 (App. 2018), vacated in part on other grounds by 246 Ariz. 449 (2019). In
Barron, we came to this conclusion because the legislature removed the
child’s primary caregiving as a best interest factor. Id. And while primary
caregiver status is not a factor under A.R.S. § 25-403, Barron acknowledged
that primary caregiver status may weigh into other factors, such as the
relationship between the parents and the child. Id. at 586, ¶ 16; see also A.R.S.
§ 25-403(A)(1) (The court must consider “[t]he past, present and potential
future relationship between the parent and the child” as a best interest
factor.). Thus, it is permissible for the court to consider Mother’s historical
caregiver status under other factors in the best interests determination.

¶35 Even if Father’s claim were correct, other factors supported
the court awarding Mother sole legal decision-making. A court may only
modify legal decision-making in accordance with the child’s best interests
after considering the enumerated factors in A.R.S. §§ 25-403(A) and
25-403.01(B). In its order, the court described the parties as having “a
complete inability to work together to make decisions that are in the best
interest[s] of the child” and believed that “joint decision-making is
logistically [im]possible.” See A.R.S. § 25-403.01(B)(3) (the ability of the

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parents to cooperate in decision-making); A.R.S. § 25-403.01(B)(4) (whether
joint decision-making is logistically possible). Child refused to engage with
Father at the time of the order and has resided with Mother during his
transition. A.R.S. § 25-403(A)(1) (the past, present, and potential
relationship between the parent and child). And Child “unequivocally
desires to remain in Mother’s sole care, custody and control.” See A.R.S.
§ 25-403(A)(4) (a child of suitable age and maturity’s wishes as to the legal
decision-making and parenting time).

¶36 Father points to the best interests factors that support
granting sole legal decision-making to him. Father may disagree about the
weight the superior court gave the factors, but we defer to the superior
court’s findings unless they are clearly erroneous. Gish, 253 Ariz. at 444,
¶ 31. The court does not abuse its discretion when sufficient evidence
supports its findings. Smith, 253 Ariz. at 48, ¶ 22. The record supports the
court’s resolution of the factors, and the court did not err by assigning
Mother sole legal decision-making.

E. A Court Has the Authority to Make Post-Decree Appointments
under A.R.S. § 25-410(B).

¶37 Father argues the court exceeded its authority by ordering a
TI after resolving the parenting issues in the Parenting Order. To support
his argument, Father notes that A.R.S. § 25-405, the statutory authority the
court relied on, does not support the court’s appointment. A court may seek
the advice of professionals under § 25-405(B), but only when a question
about legal decision-making authority or parenting time is pending before
the court. Paul E. v. Courtney F., 246 Ariz. 388, 397, ¶ 37 (2019). Once the
court enters an order establishing legal decision-making authority and
parenting time, it does not need professional assistance, and the
appointment authority under § 25-405(B) ceases. Id.4

4 Arizona Rule of Family Law Procedure 95, which grants courts the
authority to “order parties to engage in behavioral or mental health
services, including counseling and therapeutic interventions,” does not
independently allow courts to appoint a TI post-decree. “[Rule 95] is a
procedural rule and cannot enlarge the court’s authority beyond that
granted by statute.” Paul E., 246 Ariz. at 398, ¶ 40. Thus, Rule 95’s scope is
limited to when there are outstanding issues of legal decision-making or
parenting time pending unless another statutory basis applies. Id. at 397,
398, ¶¶ 37, 40.

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¶38 Here, the court explicitly made its appointment under A.R.S.
§ 25-405. It ordered the appointment of a TI in the same order that it
resolved the outstanding issues of decision-making and parenting time. It
elaborated on the TI’s appointment by creating the Appointment Order
after it entered the Parenting Order. Thus, the court erred by violating the
rule in Paul E. when it invoked A.R.S. § 25-405(B) to appoint a TI in its
Parenting and Appointment Orders. 246 Ariz. at 397, ¶ 37.

¶39 But a court can appoint a “local social service agency” after
deciding parenting time and legal decision-making authority. A.R.S.
§ 25-410(B). Consistent with the supervisorial authority granted to the
courts under A.R.S. § 25-410(B), our supreme court enacted Arizona Rule of
Family Law Procedure 81, which addresses a court’s post-decree authority.

¶40 Supervisorial appointment after a decree is subject to
different restrictions and requires more findings than the appointment of a
professional under A.R.S. § 25-405(B). Either parent may request an
appointment, or the court must find the child’s physical health would be
endangered or their emotional development significantly impaired without
post-decree supervision. A.R.S. § 25-410(B). A court must also determine
that an appointment would serve the child’s best interests. Id. The
post-decree supervision must be conducted by a “local social service
agency” with fees “approved by the supreme court.” Gish, 253 Ariz. at
447-48, ¶ 50 (citing A.R.S. § 25-410(B)). This supervision may only be
ordered to ensure the legal decision-making and parenting time terms are
carried out as ordered. A.R.S. § 25-410(B). And the order must contain
specific terms, including the allocation of payment, who must schedule
appointments, what types of reports are required to be given to the court
and with what frequency, and the duration of supervision. Ariz. R. Fam.
L.P. 81(c)(3).

¶41 The court did not make the requisite determinations or
establish the required terms in the Appointment Order under A.R.S.
§ 25-410(B). Similarly, the court made none of these determinations when it
ordered the appointment in the Parenting Order. As a result, we cannot
uphold the Appointment Order or the TI appointment in the Parenting
Order under A.R.S. § 25-410(B) and Rule 81. We vacate the Appointment
Order and the portions of the Parenting Order appointing a TI. We remand
for the court to comply with the statute and Rule if it determines that
appointing a TI is warranted.

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 MESA v. O’CONNOR
Opinion of the Court

ATTORNEY’S FEES AND COSTS

¶42 We decline Mother’s request for attorney’s fees because she
failed to cite authority for such an award. ARCAP 21(a)(2); Ezell v. Quon, 224 Ariz. 532, 539, ¶ 31 (App. 2010). Mother requests that we award her a
portion of her superior court attorney’s fees, but we decline to consider her
request because she did not bring a cross-appeal. ARCAP 13(b)(2) (An
appellate court may enlarge an appellee’s rights or reduce an appellant’s
rights only if the appellee filed a notice of cross-appeal.). Because Mother
has prevailed on most of the issues raised, we award her costs upon
compliance with ARCAP 21.

¶43 Father requests attorney’s fees and costs under A.R.S. § 25-324
and ARCAP 21. Both parties presented minimal evidence of their finances,
and neither side acted unreasonably on appeal. Per our discretion, we
decline to award Father his fees and find he is not the prevailing party on
appeal.

CONCLUSION

¶44 We vacate and remand the court’s Appointment Order and
the portions of the Parenting Order appointing a TI. On remand, the court
must allow both parties, if requested, to present new evidence for events
since the entry of the previous orders. See Francine C. v. Dep’t. of Child Safety,
249 Ariz. 289, 300, ¶ 35 (App. 2020) (Given the time from the original
hearing, “if a party requests to present additional evidence to show the
current circumstances, the court must grant the request.”).5

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

5 We note that at the date of the issuance of this opinion, Child is now
17.

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