In re Hinton, 040220 AZAPP1, 1 CA-CV 19-0427 FC

Docket Nº:1 CA-CV 19-0427 FC
Opinion Judge:MCMURDIE, JUDGE
Party Name:In re the Matter of: APRIL C. HINTON, Petitioner/Appellant, v. KYLE D. HINTON, Respondent/Appellee.
Attorney:Gillespie, Shields, Goldfarb & Taylor, Phoenix By DeeAn Gillespie Strub and Mark A. Shields Counsel for Petitioner/Appellant Kyle D. Hinton, San Tan Valley Petitioner/Appellee
Judge Panel:Presiding Judge Paul J. McMurdie delivered the decision of the Court, in which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani joined.
Case Date:April 02, 2020
Court:Court of Appeals of Arizona
 
FREE EXCERPT

In re the Matter of: APRIL C. HINTON, Petitioner/Appellant,

v.

KYLE D. HINTON, Respondent/Appellee.

No. 1 CA-CV 19-0427 FC

Court of Appeals of Arizona, First Division

April 2, 2020

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. FC2016-004619 The Honorable Katherine M. Cooper, Judge

Gillespie, Shields, Goldfarb & Taylor, Phoenix By DeeAn Gillespie Strub and Mark A. Shields Counsel for Petitioner/Appellant

Kyle D. Hinton, San Tan Valley Petitioner/Appellee

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani joined.

MEMORANDUM DECISION

MCMURDIE, JUDGE

¶1 April C. Hinton ("Mother") appeals from an order modifying legal decision-making and parenting time concerning her three children. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND1

¶2 Mother and Kyle D. Hinton ("Father") married in 2000 and together had three children: Bradlee, Kaden, and Amaya. In June 2016, Mother petitioned for the dissolution of the parties' marriage. The parties ultimately submitted a shared parenting plan to the court. In the plan, the parties conceded there had been mutual domestic violence during the marriage, but agreed to joint legal decision-making with Mother designated as the primary residential parent. The parties also agreed to the following parenting time: (1) Father would have parenting time every other weekend during the fall, winter, and spring and every other week during the summer, with the children residing with Mother at all other times; and (2) an equal share of all holidays and school breaks. The court entered a consent decree dissolving the marriage and approving the parenting plan.

¶3 Over the next year and a half, a series of incidents escalated the tension between Mother and Father over the exercise of Father's parenting time. In August 2017, while the children were staying with Father, a physical altercation broke out between Bradlee (then 15 years old), Father, and Father's girlfriend. After a shouting match ensued over Bradlee's refusal to listen to Father and his girlfriend's directions, Father slapped Bradlee across his face. Bradlee responded by punching Father in the head, and a scuffle broke out. The police were called to the scene, but no charges were filed.

¶4 Next, in September 2017, Bradlee called the police after he returned to Father's house from a party and discovered Father and his girlfriend were gone. They had left Kaden and Amaya, along with Father's girlfriend's two children, ages one and two years old, unsupervised. When Father and his girlfriend returned home about three hours later, they told the police they went to a friend's house, left Kaden (then eight years old) in charge, and expected Bradlee to arrive shortly after they left to watch the children. Father was charged with misdemeanor charges of child neglect and contributing to the dependency of a minor, which were dismissed after Father completed counseling services.

¶5 Finally, in May 2018, Father requested that the Goodyear Police Department supervise an exchange of the children. When the police arrived, Mother refused to exchange the children, explaining the children did not want to go and that she had been granted a modification of parenting time and an order of protection against Father. Although she did not have a copy of the order of protection with her, she claimed it was in the process of being served. These statements were false. Mother had not acquired an order of protection or a modification at that time. Nevertheless, the police took no action, the exchange did not take place, and the children remained with Mother. Shortly thereafter, Mother petitioned for and obtained an order of protection against Father. But the children were not listed as protected parties under the order of protection, and the order of protection was dismissed after a hearing.

¶6 The tension caused by these incidents came to a boil in September 2018, when Mother filed a petition to modify parenting time. In the petition, Mother asserted Bradlee and Kaden no longer wished to visit Father and that, based on the incidents described above, the children were no longer safe in Father's care. Mother also asserted Father smoked marijuana in his home, became aggressive when he smoked, and that a "bong [was] near where the children were sleeping." Mother requested the court either limit Father's parenting time to public visits at the children's discretion or eliminate his parenting time. The superior court set the matter for an evidentiary hearing and issued an order requiring both parents to appear. Before the hearing, Mother submitted numerous exhibits, including an exhibit documenting that she had served Father with the petition and the notice to appear. This exhibit included a return receipt purportedly bearing Father's signature.

¶7 On November 6, 2018, at the time scheduled for the modification hearing, Father was not present. The court attempted to contact him through a phone number listed for Father, but he did not answer. The court then questioned Mother concerning whether she had discussed the hearing with Father and asked her whether the signature on the return receipt was Father's. Under oath, Mother told the court that she had not spoken with Father about the hearing, but asserted that the signature on the return receipt was his. The court proceeded with the hearing, received testimony and other evidence from Mother, and took the matter under advisement.

¶8 Before the court ruled on the petition, two developments resulted in further proceedings on Mother's petition. First, after reviewing the evidence presented by Mother, the court found that "it [was] in the children's best interest to conduct a further hearing on the issues presented," and scheduled another hearing for December 2018. Second, Father filed a "Motion to Challenge Service of Hearing" asserting: (1) he had never received notice of the November 2018 hearing; and (2) the signature on the return receipt was not his.

¶9 At the December 2018 hearing, the court took testimony from the parties concerning the service-of-process issue, including who signed the return receipt. After comparing the signature on the return receipt with other documents in the record and asking Mother to reaffirm her claim that the signature was Father's, the court concluded that Mother was not credible and that she had deliberately and intentionally misled the court regarding service of process in an attempt to restrict Father's parenting time. The court then: (1) appointed a therapeutic interventionist to provide assistance to the court and facilitate the reunification of the children with Father; and (2) ordered that Father have parenting time with the children according to the dissolution decree's parenting plan. Finally, the court set a status conference regarding the therapeutic intervention for January 2019.

¶10 On December 28, 2018, another incident changed the nature and urgency of the modification proceedings. During the exercise of her parenting time, Mother took Amaya, who had been ill all week, to a clinic where she was then transferred to the emergency department at Phoenix Children's Hospital ("PCH"). At PCH, Mother told hospital staff she suspected that Amaya's condition might be related to substance abuse by Father and requested a drug test for Amaya. Although Amaya was not showing any symptoms of substance exposure, Amaya's treating physicians conducted a urinalysis on Amaya. The test was positive for...

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