Kazi v. Saleem
| Decision Date | 08 June 2017 |
| Docket Number | No. 1 CA-CV 16-0475 FC,1 CA-CV 16-0475 FC |
| Parties | In re the Matter of: S. JAFFREY KAZI, Petitioner/Appellee, v. HALA SALEEM, Respondent/Appellant. |
| Court | Arizona Court of Appeals |
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Timothy J. Thomason, Judge
AFFIRMED
By Leslie A.W. Satterlee, Markus W. Risinger, Gregg R. Woodnick
Hala Saleem, Pleasanton, California
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
¶1 Hala Saleem ("Mother") appeals the family court's orders modifying legal decision-making and parenting time, denying her motion for new trial, and awarding attorneys' fees to S. Jaffrey Kazi ("Father"). For the following reasons, we affirm.
¶2 The parties have one child in common, born in June 2005. During a lengthy custody proceeding in California, Mother made several allegations that Father was sexually abusing the child. After a twenty-one-day trial, the California superior court found the allegations unsubstantiated and awarded the parties joint legal custody. Father received physical custody of the child in Arizona; Mother received parenting time in California two weekends per month during the school year and alternating weeks during the summer. The court also ordered that the child see a therapist who would "provide a safe haven [and assist the child] in adjusting to the new custodial arrangement." Father registered the custody order in Arizona. See Ariz. Rev. Stat. ("A.R.S.") § 25-1055 (2017).1
¶3 On March 28, 2015, Mother contacted the Scottsdale Police Department and reported that Father had physically and sexually abused the child. The child submitted to a forensic interview and medical examination, and the Arizona Department of Child Safety ("DCS") took temporary custody of the child, placing her in a foster home before finding a placement with a paternal aunt. After a team decision meeting four days later, DCS concluded the allegations were unsubstantiated and returned the child to Father's care. No criminal charges were filed, and Scottsdale police listed the case as inactive.
¶4 On April 3, 2015, Father filed a petition to modify legal decision-making and parenting time in Arizona, alleging a change in circumstances based on the March 28, 2015 allegation.2 The court issuedtemporary orders giving Father sole legal decision-making authority, suspending Mother's parenting time, and appointing a therapeutic interventionist ("TI") to make recommendations on parenting time. Mother refused to participate in the therapeutic intervention process, however, and, on November 10, 2015, the family court affirmed the temporary orders. At the same time, the court encouraged Mother to meet with the TI, suggesting Mother could receive supervised parenting time "in fairly short order" if she were to do so. The court appointed Dr. Bettina Lehnert as the child's safe-haven therapist.
¶5 On April 4, 2016, following a one-day evidentiary hearing, the family court found that, based on the evidence presented, "Father did not molest [the child]." Although the court could not find "that Mother created these allegations and put them in [the child's] head," the court did find that "Mother's behavior is troubling." The court concluded a change in circumstances supported a change of legal decision-making and parenting time and, after considering the relevant factors, ordered that Father have sole legal decision-making authority. See A.R.S. §§ 25-403 (2017), -403.01 (2017), -403.03 (2017). Regarding parenting time, the court concluded unsupervised parenting time with Mother would endanger the child's physical, mental, moral, or emotional health. The court also stated:
The California Court did not impose supervised parenting time . . . . Since then, the minor Child has been subjected to another sexual assault examination, forensic interview and removal from her parent's care as a result of Mother's disturbing behaviors. It appears to this Court that therapeutic supervision is critical to protect this Child from further trauma caused by Mother.
The court reaffirmed the appointment of the TI, but suggested Mother could propose a different TI if she wished. The court also acknowledged that "prompt steps" toward reunification were in the child's best interest, and indicated it would promptly consider a request for parenting time if Mother participated in the therapeutic intervention process. The court also stated:
The Court is not deferring authority to the [TI]. The initial appointment stated that the [TI] was appointed to make recommendations to the Court about parenting time. The Court is looking to the [TI] for recommendations. The Court will make final decisions on parenting time.
After considering the parties' respective financial positions, the court awarded Father reasonable attorneys' fees based on the unreasonable positions taken by Mother in the case. See A.R.S. § 25-324 (2017).
¶6 On July 8, 2016, the family court denied Mother's motion for new trial and awarded Father $40,000 in attorneys' fees. See Ariz. R. Fam. Law P. ("Rule") 81. We have jurisdiction over Mother's timely appeal pursuant to A.R.S. § 12-2101(A)(2), (5)(a) (2016).
¶7 We review the family court's legal decision-making and parenting time orders for an abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). We will not reweigh the evidence, and we will affirm if substantial evidence supports the court's ruling. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009).
¶8 Mother argues there were no changed circumstances supporting consideration of Father's petition to modify.
¶9 When considering a petition to modify legal decision-making and parenting time, the family court must find a "material change in circumstances affecting the welfare of the child" before determining whether modification is in the child's best interest. Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17, 357 P.3d 834, 839 (App. 2015) (citing Canty v. Canty, 178 Ariz. 443, 448, 874 P.2d 1000, 1005 (App. 1994)); accord Christopher K. v. Markaa S., 233 Ariz. 297, 300, ¶ 15, 311 P.3d 1110, 1113 (App. 2013). The family court has broad discretion to determine whether a change in circumstances has occurred, and we will not disturb its decision absent an abuse of discretion. Pridgeon v. Superior Court, 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982).
¶10 Put simply, Mother claims nothing has "changed," i.e., Father was abusing the child before and he continues to abuse her now. Cf. Richards v. Richards, 137 Ariz. 225, 226, 669 P.2d 1002, 1003 (App. 1983) (). But the record contains no evidence this claim has been substantiated by any law enforcement or child welfare agency or in any legal proceeding. Accordingly, the family court properlyconsidered Mother's March 2015 report to be a new allegation of abuse against Father, which supported the court's finding of a material change in circumstances.
¶11 Mother challenges the family court's finding that Father did not abuse the child, urging the court should have given more weight to the child's forensic interview. Clearly, the court found "disturbing" "the incredible level of detail and the things that [the child] was able to say" during the interview. Again, however, we will not reweigh the conflicting evidence and will defer to the family court to decide witnesses' credibility and the weight to give the evidence. See Hurd, 223 Ariz. at 52, ¶ 16, 219 P.3d at 62; Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 (App. 1998). Moreover, the evidence reasonably supports the court's finding. See Vincent, 238 Ariz. at 155, ¶ 17, 357 P.3d at 839.
¶12 Mother argues the family court denied her supervised parenting time without making the requisite findings. The court may restrict parenting time when it finds "the parenting time would endanger seriously the child's physical, mental, moral or emotional health." A.R.S. § 25-411(J) (2017); see also A.R.S. § 25-403.01(D).3 We review an order restricting parenting time for an abuse of discretion. See Hart v. Hart, 220 Ariz. 183, 187, ¶ 15, 204 P.3d 441, 445 (App. 2009); Baker v. Meyer, 237 Ariz. 112, 116, ¶ 10, 346 P.3d 998, 1002 (App. 2015). In explaining its decision to restrict Mother's parenting time, the court concluded that "frequent, meaningful and continuing unsupervised parenting time with Mother, at this time, would endanger the Child's physical, mental, moral or emotional health." (Emphasis added.) The court did not deny supervised parenting time; instead, it conditioned supervised parenting time on Mother's participation in the therapeutic intervention process.
¶13 Next, Mother argues the family court lacked authority to order her to meet with a TI as a condition for parenting time. The court may require a party to engage in services such as therapeutic intervention and therapeutic supervised parenting time. Ariz. R. Fam. Law P. 95(A), (D). Mother suggests this condition amounts to a deprivation of her fundamental right to the care, custody, and control of the child. See generally Santosky v. Kramer, 455 U.S. 745, 753-54 (1982). We disagree. Mother offers no persuasive explanation why she would not have been given parenting time after meeting with the TI, particularly considering ...
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