Atkison v. Shafer

• Decision Date: 29 December 2022
• Docket Number: 1 CA-CV 22-0004 FC
• Parties: In re the Matter of: DIANE CAROL ATKISON, Petitioner/Appellant, v. ROBERT ANTHONY SHAFER, Respondent/Appellee.
• Court: Arizona Court of Appeals

In re the Matter of: DIANE CAROL ATKISON, Petitioner/Appellant,
v.
ROBERT ANTHONY SHAFER, Respondent/Appellee.

No. 1 CA-CV 22-0004 FC

Court of Appeals of Arizona, First Division

December 29, 2022

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. FC2019-007092 The Honorable Mark H. Brain, Judge AFFIRMED IN PART/REMANDED

Gillespie, Shields, Goldfarb & Taylor, Phoenix

By Mark A. Shields (argued), David L. Goldfarb

Counsel for Petitioner/Appellant

Curry, Pearson & Wooten, PLC, Phoenix

By Daniel S. Riley ^[1]

Counsel for Respondent/Appellee

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Judge Paul J. McMurdie delivered the Court's decision, in which Presiding Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

MEMORANDUM DECISION

McMURDIE, JUDGE:

¶1 Diane Carol Atkison ("Grandmother") appeals from the superior court's denial of her petition for in loco parentis legal decision-making and her motion to amend. We find no reversible error and affirm the court's parenting determination. We remand for the court to determine the child support award during the interim period.

FACTS AND PROCEDURAL BACKGROUND

¶2 Liam^[2] is Grandmother's maternal grandson, and his father is Robert Anthony Shafer ("Father"). Liam's mother ("Mother") and Father had a turbulent and volatile relationship. In 2016, Father petitioned for legal decision-making and parenting time. Grandmother intervened in Father's case (Maricopa County cause number FC 2016-008657), petitioning for in loco parentis rights. The court appointed a best-interests attorney for the child. The best-interests attorney began a dependency action against Mother and Father. Eventually, the dependency petition, Father's legal decision-making petition, and Grandmother's in loco parentis petition were dismissed without the entry of a parenting order.

¶3 Father relocated to California. Father took Liam to California for a short period, but Liam returned and remained with Mother in Arizona. In August 2019, Mother was hospitalized following a cardiac arrest. She died two weeks later.

¶4 Before Mother's death, Grandmother again petitioned for in loco parentis decision-making under A.R.S. § 25-409, alleging that Father had a significant history of domestic violence and drug abuse. She asked the court to grant her legal decision-making and parenting time for Liam and order Father to undergo drug testing. She also moved for temporary orders.

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¶5 In September 2019, after an evidentiary hearing, the court issued temporary orders that designated Grandmother as the sole legal decision-maker with physical custody of Liam but allowed Father supervised parenting time. The court also ordered Father to submit to random drug testing at least eight to ten times per month. The court warned Father that each failure to participate might be considered a failed test, and he should disclose any prescriptions that could lead to a positive test result. Finally, the court appointed a behavioral health professional to conduct a comprehensive family evaluation.

¶6 In April 2021, the parties proceeded to trial. They presented evidence that Father completed nearly 30 drug tests during the previous 19 months, four of which were positive. The first positive result occurred in September 2019, when Father tested positive for amphetamines, benzodiazepines, cannabinoids, and fentanyl. He began an inpatient treatment program just over a month later.

¶7 Yet Father tested positive for cocaine, fentanyl, and methadone in March 2020. He testified that this was the only hair follicle test conducted by taking a sample from his leg instead of his chest or armpit, which may have had a longer detection window because he sometimes trimmed his body hair but never his legs. He also presented a letter from an addiction psychologist stating that different body areas may yield different results. Father completed three negative urinalysis tests and a negative hair follicle test two weeks following the positive hair follicle test.

¶8 In May and July 2020, Father tested positive for amphetamines. As for these tests, he testified that he had a prescription amphetamine medication that he had since stopped taking. Father added that after completing the inpatient treatment program, he saw a physician for monthly urine tests and a prescription opioid antagonist. He maintained that he had been clean and sober.

¶9 Grandmother presented evidence of Father's domestic violence. In November 2017, Father was arrested for assaulting Mother. He was released but ordered to have no contact with Mother. But a week later, police responded to a call from Mother's neighbor, who could hear Mother and Father fighting inside Mother's apartment. The responding officer concluded the argument was only verbal but arrested Father for violating the no-contact order.

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¶10 Grandmother presented text messages from April 2018 between Mother and Mother's brother, in which Mother stated Father struck her in the head and knocked her out eight times. Grandmother alleged that Father assaulted Mother again in May 2018, leading police to arrest both Mother and Father for domestic violence.

¶11 Grandmother presented photos of Mother's injuries, including when Father allegedly broke Mother's hand in July 2018. Grandmother offered text messages between Mother and Father, in which Mother accused Father of tackling and belittling her in front of Liam, to which Father replied, "Everything you do and say in front [of] him is perfectly ok but when [I] do [it it's] the end [of] the world." Grandmother testified that this was Father's admission "to doing it in front of [Liam]."

¶12 The superior court denied Grandmother's in loco parentis petition. The court began its analysis by stating that a grandparent may be awarded third-party rights if it finds that all the requirements of A.R.S. § 25-409(A) are met. The court acknowledged the presumption that it is in a child's best interests to remain with the natural parent. The court determined that the only disputed element under the statute was whether it would be significantly detrimental to the child to remain in Father's care.

¶13 Before proceeding to the best-interests analysis, the court rejected Grandmother's arguments under the domestic violence provisions of A.R.S. § 25-403.03. The court "simply disagree[d]" with Grandmother that domestic violence was relevant to the case. The court recognized that A.R.S. § 25-403.03(B) requires courts to "consider evidence of domestic violence as being contrary to the best interests of the child" and continued:

Of course it is. But the goal is to keep the child from being exposed to domestic violence, not to penalize a parent who once engaged in it but cannot anymore. Accordingly, the Court concludes that father's history of domestic violence with mother (which was sometime[s] mutual) is not pertinent to the current dispute

¶14 The court then analyzed the best-interests factors under A.R.S. § 25-403. The court found that Liam had good relationships with Grandmother, Father, and his extended family. It further found that Liam had adjusted well to living with Grandmother in Phoenix. The court added that Liam, who was five years old at the time, was too young for his wishes to be considered. And the court found that Liam and Grandmother were in

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good mental and physical health, as was...