Verdugo v. Hon Lang Aguilar

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LOUIE ESPINOZA VERDUGO, Petitioner,

v.

THE HONORABLE TODD F. LANG, Judge of the SUPERIOR COURT OF
THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,

ANMARIE AGUILAR, Real Party in Interest.

No. 1 CA-SA 23-0143
FILED 8-24-2023

Appeal from the Superior Court in Maricopa County
No. FC2022-007503
The Honorable Todd F. Lang, Judge

JURISDICTION ACCEPTED AND RELIEF GRANTED

COUNSEL

Cantor Law Group PLLC, Phoenix
By Caleb McKay
Counsel for Petitioner

Anmarie Aguilar, Phoenix
Real Party in Interest
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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined.

H O W E, Judge:

¶1 In this special action proceeding, Louie Verdugo (“Father”)
challenges the superior court’s temporary orders awarding sole legal
decision-making authority and primary physical custody of his minor child
(“Child”) to Child’s maternal aunt, Anmarie Aguilar (“Aunt”).

¶2 Special action jurisdiction is appropriate here because Father
has “no equally plain, speedy, and adequate remedy by appeal.” Ariz. R. P.
Spec. Act. 1(a). Temporary orders are not directly appealable because they
are “‘merely preparatory to a later proceeding’ that might affect the
judgment or its enforcement.” Gutierrez v. Fox, 242 Ariz. 259, 264 ¶ 12 (App.
2017) (citation omitted). We therefore accept special action jurisdiction,
grant relief, and vacate the superior court’s temporary orders because the
superior court lacked jurisdiction to enter them.

FACTS AND PROCEDURAL HISTORY

¶3 Father and Genevieve Aguilar (“Mother”) are the biological
parents of Child, born in 2007. According to Father’s petition, he never
married Mother. Mother was Child’s primary caretaker. Father never
petitioned the family court for decision-making authority or parenting
time. He exercised parenting time with Child whenever Mother would
allow him. When Mother did not allow him to exercise parenting time, he
still communicated with Child through phone calls and text messages.
Mother died in 2021. After Mother died, Child resided with Aunt. Father
sought to have contact with Child but Aunt refused. Father then petitioned
the family court for legal decision-making authority and parenting time.
During the family court proceeding, the court appointed Child a Best
Interests Attorney (“BIA”). The BIA then petitioned the juvenile court to
adjudicate Child dependent as to Father. Father moved to dismiss the
dependency petition.

¶4 The superior court held an evidentiary hearing. At the
hearing, the court heard arguments from Father, Child’s guardian ad litem

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(“GAL”), the BIA, and the Department of Child Safety. Father argued that
Child was not dependent as to him because he was able to provide food,
clothing, shelter, supervision, and medical care for Child. He pointed to the
statement in the Department’s report that he was willing and able to parent
Child and that safety concerns did not exist. He also pointed to the text
messages between him and Child—which he asserted showed a close and
caring relationship between them—as evidence that Child was not
dependent as to him.

¶5 The BIA then argued that the dependency petition should not
be dismissed because of safety concerns. The BIA proffered Child’s
statements about Father “brush[ing] her bottom” and “reach[ing] into the
shower and touch[ing] her while she was taking a shower.” The BIA also
stated that the text messages between Father and Child were misleading
because Mother had encouraged Child to communicate with and be kind
to Father so he would send them money. Finally, the BIA proffered that
Child would run away or suffer severe anxiety if placed with Father. The
GAL also argued that the dependency petition should not be dismissed
because of safety concerns. The GAL pointed out that Aunt had not filed a
third-party-rights petition and if the dependency petition was dismissed,
“no one’s going to have legal authority over [Child], and that [was] very
concerning.” The Department stated that it was requesting a guardianship
and that it objected to dismissing the dependency petition.

¶6 After hearing the arguments, the court stated that, “I still
haven’t heard one reason why [Father was] not a fit parent. All I’ve heard
is it’s in [Child’s] best interest[s]. And I agree, but that is [a] Family Court
[issue]. That is not—that has nothing to do with a dependency.” It therefore
granted Father’s motion. It then stated that it was taking temporary
jurisdiction over the family court case and awarded Aunt sole legal
decision-making authority over Child. The court found, under A.R.S.
§ 25–409(B), that “it ha[d] heard clear and convincing evidence that legal
decision making to Father [was] not consistent with [Child’s] best
interests.” Under A.R.S. § 25–409(A)(2), and (4), it found that “it would be
significantly detrimental” to Child to be placed with Father and that Mother
was deceased.

¶7 After the hearing, the court, sua sponte, initiated a new family
court case in which it listed Aunt as the petitioner. For this new family case,
the court issued a minute entry memorializing the findings and rulings it
made at the hearing on the motion to dismiss the dependency petition. It
entered temporary orders awarding sole legal decision-making authority
and primary physical custody to Aunt, and supervised visitation to Father.

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The court’s order provided that the orders were to remain temporary until
May 13, 2023. The orders would become final without further notice or
action if neither party moved to modify the orders by May 13, 2023. On May
12, 2023, Father moved to modify the superior court’s temporary orders.
This special action followed. Father then moved to stay the proceedings in
the superior court pending this special action. The court granted Father’s
motion and stayed the proceedings.1

DISCUSSION

¶8 Father argues that the superior court erred in entering
temporary orders awarding sole legal decision-making authority and
primary physical custody to Aunt. He contends that the court abused its
discretion in entering such orders without (1) a petition for third party
rights or a motion for temporary orders, and (2) a hearing. Aunt has not
responded to Father’s petition, which may be considered a confession of
error. See Gibbons v. Indus. Comm’n of Ariz., 197 Ariz. 108, 111 ¶ 8 (App.
1999). But in our discretion, we will decide this case on its merits. See id. We
review de novo whether the superior court had statutory or other authority
to issue the temporary orders. Tanner v. Marwil in & for Cnty. of Maricopa,
250 Ariz. 43, 45 ¶ 9 (App. 2020); Duckstein v. Wolf, 230 Ariz. 227, 231 ¶ 8
(App. 2012).

¶9 A “petition” is “the initial pleading that begins a family law
case.” Ariz. R. Fam. Law P. 23. A person other than a parent may petition
for legal decision-making and parenting time. A.R.S. § 25–402(B)(2). A
person seeking legal decision-making or parenting time, however, must do
so “by filing a petition for third party rights under A.R.S. § 25–409.” Id.
Thus, the superior court has jurisdiction to award legal decision-making
authority and parenting time to a third party only if that third party
petitions for third party rights under A.R.S. § 25–409. See A.R.S. § 25–402;
Sheets v. Mead, 238 Ariz. 55, 57 ¶ 9 (App. 2015) (explaining that the superior
court’s “power to conduct visitation and parenting time proceedings is
provided by A.R.S. § 25–402”).

1 Father’s motions and the superior court’s order on the motion to stay
the proceedings do not appear in our record. However, we take judicial
notice of them because they are relevant to our special action jurisdiction.
See Ariz. R. Evid. 201(b)(2) (court may judicially notice any fact that may be
accurately determined “from sources whose accuracy cannot reasonably be
questioned”); AU Enterprises Inc. v. Edwards, 248 Ariz. 109, 110 ¶ 3 n. 2 (App.
2020).

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¶10 The superior court here erred in entering temporary orders,
awarding sole legal decision-making authority and primary physical
custody to Aunt. The court initiated the family court case sua sponte, listed
Aunt as petitioner, and entered the temporary orders. But Aunt never
petitioned for third party rights under A.R.S. § 25–409. She never consented
to or took any actions to be listed as petitioner. Aunt was not even present
at the evidentiary hearing on Father’s motion to dismiss the dependency
petition, when the court first pronounced its orders. The trial court
therefore erred when it entered the temporary orders without first receiving
a petition for third party rights.

¶11 The superior court found that awarding legal
decision-making authority to Father was not in Child’s best interests. The
court, however, cannot exercise jurisdiction over a case that was not
properly initiated. The Arizona Legislature granted the superior court
jurisdiction to conduct proceedings concerning legal decision-making and
parenting time brought—through a petition—by “a person other than a
parent.” A.R.S. § 25–402. Without such a petition, the court has no
jurisdiction to award legal decision-making and parenting time over a child
to a third party. See Fenn v. Fenn, 174 Ariz. 84, 87 (App. 1993) (“Courts may
do many things in the best interests of children, but they cannot advance
such interests by exercising jurisdiction that they lack.”). The superior court
therefore lacked jurisdiction and any orders it issued are void. Martin v.
Martin, 182 Ariz. 11, 15 (App. 1994) (“A judgment or order is ‘void’ if the
court entering it lacked jurisdiction.”).

¶12 Even if the court had jurisdiction, the court’s orders would
still not stand. “[A] parent is entitled to due process whenever his or her
custodial rights to a child will be determined by a proceeding.” Smart v.
Cantor, 117 Ariz. 539, 542 (1977) (citation omitted). Due process entitles “a
party to notice and an opportunity to be heard at a meaningful time and in
a meaningful manner, as well as a chance to offer evidence and confront
adverse witnesses.” Cruz v. Garcia, 240 Ariz. 233, 236 ¶ 11 (App. 2016)
(internal quotation and citation omitted). Due process “requires that when
there are disputed issues of fact as to a child’s best interests, the court must
allow the parties to present evidence before making its findings.” Id. at 237
¶ 16 (internal quotation and citation omitted).

¶13 Rule of Family Law Procedure (“Rule”) 47 establishes the
procedural guidelines that protect parties’ due process rights. Rule 47
provides that: (1) “[u]pon receiving a motion for temporary orders . . . , the
court must schedule a resolution management conference unless the parties
agree,” and (2) if “issues remain that require an evidentiary hearing

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concerning temporary orders, the court must schedule an evidentiary
hearing on those issues.” See Rule 47(c)(1). Rule 47 also (1) requires that the
court set the conference or hearing no later than 30 days after the motion is
filed, and (2) prohibits the court from resolving disputed issues of fact at
any hearing other than an evidentiary hearing on the temporary orders,
without the parties’ consent. Id.

¶14 Here, the court did not receive a motion for temporary orders
and did not follow any of Rule 47’s procedural requirements. The court
failed to hold a management conference or an evidentiary hearing on the
temporary orders. The court also decided disputed issues of facts at an
evidentiary hearing on a different issue in a different case. The evidentiary
hearing where the court entered the temporary orders was not an
evidentiary hearing on the temporary orders; it was an evidentiary hearing
on Father’s motion to dismiss the dependency petition. The court therefore
violated Rule 47’s directives. By violating Rule 47’s directives, the court did
not offer Father an opportunity to be heard in a meaningful time or manner
and thus violated his due process rights.

CONCLUSION

¶15 For the foregoing reasons, we accept jurisdiction, grant relief,
and vacate the superior court’s temporary orders.

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

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