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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


         DOUGLAS DURAN BUNDY, et al., Petitioners/Appellees

                                        v.

              CRYSTAL RAE ALFORD, Respondent/Appellant.

                           No. 1 CA-CV 16-0419 FC
                                FILED 4-11-2017


           Appeal from the Superior Court in Mohave County
                        No. B8015DO201504405
               The Honorable Rick A. Williams, Judge

                                  AFFIRMED


                                   COUNSEL

Whitney & Whitney PLLC, Kingman
By Michael J. Wozniak
Counsel for Petitioners/Appellees

Crystal Alford, Mesquite, NV
Respondent/Appellant
                        BUNDY, et al. v. ALFORD
                          Decision of the Court




                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.


B E E N E , Judge:

¶1           Crystal Alford (“Mother”) appeals the superior court’s order
awarding Douglas and Barbara Bundy (“Grandparents”) sole legal
decision-making authority to A.B. (“Child”), and limiting Mother’s
parenting time to eight hours per week. For the following reasons, we
affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            On October 30, 2015, shortly after Child’s father passed away,
Grandparents filed an emergency petition for legal decision-making
authority pursuant to Arizona Revised Statutes (“A.R.S.”) section 25–409
(2017).1    The superior court entered emergency orders awarding
Grandparents temporary legal decision-making authority and temporary
visitation with Child, and granted Mother eight hours per week of
supervised parenting time in a therapeutic setting. The superior court
entered the emergency order based on its finding that Mother was unable
to consistently parent Child and exhibited violent behavior.

¶3             After several hearings, the superior court awarded
Grandparents in loco parentis status with respect to Child, granting them
sole legal decision-making authority and allowing Mother eight hours of
supervised parenting time per week. The superior court noted that Mother
lacked a stable residence, missed two therapeutic visits with Child, and
smelled of marijuana during a therapeutic visit. Based on Mother’s history
of substance abuse, the superior court found that awarding Grandparents
sole legal decision-making authority and allowing Mother only limited
visitation rights was in Child’s best interests.




1     Absent material revisions after the relevant date, we cite a statute’s
current version.


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                         BUNDY, et al. v. ALFORD
                           Decision of the Court

¶4            Mother timely appealed the superior court’s order. We have
jurisdiction pursuant to A.R.S. §§ 12–120.21 (2017) and 12–2101 (2017).

                               DISCUSSION

¶5             Pursuant to A.R.S. § 25–409, a non-parent may petition the
superior court for legal decision-making authority or placement of a child.
The superior court will deny the petition unless: (1) the non-parent stands
in loco parentis to the child, (2) it would be “significantly detrimental” for
the child to remain in the parent’s care, (3) another jurisdiction has not
entered or approved an order concerning parenting time or legal decision-
making authority over the child within the previous year, and (4) one of the
legal parents is deceased. A.R.S. § 25–409(A)(1)–(4).

¶6            There is a presumption that awarding legal decision-making
authority to the parent is in the best interests of the child, but a non-parent
can rebut that presumption by showing clear and convincing evidence to
the contrary. A.R.S. § 25-409(B).

¶7             Mother contends that the superior court erred when it
awarded Grandparents sole legal decision-making authority, because it
ignored evidence that Grandparents interfered with her custodial rights in
violation of the law. Mother also contends that the superior court erred by
finding that Grandparents had an in loco parentis relationship with Child.
We review the award of legal decision-making authority for an abuse of
discretion. Pridgeon v. Superior Ct., 134 Ariz. 177, 179 (1982); Egan v.
Fridlund-Horne, 221 Ariz. 229, 240–41, ¶ 43 (App. 2009); Owen v. Blackhawk,
206 Ariz. 418, 420, ¶ 7 (App. 2003); McGovern v. McGovern, 201 Ariz. 172,
175, ¶ 6 (App. 2001). Likewise, we review the superior court’s decision
regarding in loco parentis custody for an abuse of discretion. Egan, 221 Ariz.
at 240–41, ¶ 43.        “‘Abuse of discretion’ is discretion manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.” Tilley v. Delci, 220 Ariz. 233, 238, ¶ 16 (App. 2009).

¶8            As a preliminary matter, we note that Mother failed to
provide a transcript of the superior court’s proceedings as required by
Arizona Rule of Civil Appellate Procedure 11(b)(1). In the absence of a
transcript, we presume the record supports the superior court’s findings
and conclusions. Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).

¶9           Here, the superior court heard testimony from Grandparents,
Mother, and a sheriff’s deputy, and admitted exhibits showing, inter alia,
Mother’s history of alcohol and drug abuse and inability to obtain gainful
employment, Mother’s therapeutic visits with Child, grandfather’s 2007


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                         BUNDY, et al. v. ALFORD
                           Decision of the Court

DUI conviction, a 2015 letter from the Department of Child Safety
determining that a report of child neglect or abuse by Mother was
unsubstantiated, and letters from others attesting to Mother’s parenting
abilities or grandfather’s violent history. A superior court has a “duty to
independently assess evidence” presented at a hearing. Leslie C. v. Maricopa
Cty. Juv. Ct., 193 Ariz. 134, 135 (App. 1997). When there is conflicting
evidence, the trial court may make a finding provided there is substantial
evidence to support it. Imperial Litho/Graphics v. M.J. Enters., 152 Ariz. 68,
77 (App. 1986). The superior court is in the best position to weigh this
evidence and assess witness credibility, and we will not reweigh the
evidence. Gutierrez v. Gutierrez, 193 Ariz. 343, 347-48, ¶ 13 (App. 1998).

¶10            Based on the testimony and other evidence, the superior
found that Grandparents have an in loco parentis relationship with Child
after caring for him for “a large portion of [his] life.” The superior court
also found that Mother did not have a stable residence, missed two
therapeutic visits with Child, and smelled of marijuana during another
therapeutic visit. Based on Mother’s “history of chemical dependence and
probationary status for [a] felony drug offense,” the superior court found
Mother’s behavior “troubling,” and determined that awarding Mother
legal decision-making authority would put Child’s health, safety and
welfare at risk. The superior court found, and it is undisputed, that Child’s
father is deceased.

¶11           Having addressed the preliminary requirements in § 25-409,
the superior court determined that Grandparents established clear and
convincing evidence that it was in Child’s best interests to award
Grandparents sole legal decision-making authority to Child, because
Grandparents appropriately cared for Child’s medical, educational and
day-to-day needs. Mother testified contrary to Grandparents’ evidence and
testimony, but the superior court found that Mother “did not testify
credibly.” Because substantial evidence supports the superior court’s
findings, the court did not abuse its discretion.

¶12           Lastly, Mother contends that the superior court erred when it
admitted, over objection, Mother’s mental health records in violation of the
Health Insurance Portability and Accountability Act.2 “We review the
[superior] court’s decision to admit evidence for an abuse of discretion or
legal error and resulting prejudice.” TM2008 Invs., Inc. v. Procon Capital
Corp.,     234     Ariz.     421,    424,    ¶      12    (App.       2014);

2    Health Insurance Portability and Accountability Act of 1996
(HIPAA), Pub. L. 104-191, 110 Stat. 1938 (1996).


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                        BUNDY, et al. v. ALFORD
                          Decision of the Court

State v. Smith, 136 Ariz. 273, 276 (1983). Generally, relevant evidence is
admissible. See Ariz. R. Evid. 402. Relevant evidence is evidence that has
any tendency to make a consequential fact more or less probable than it
would be without that evidence. Ariz. R. Evid. 401.

¶13            Mother’s contention is unfounded. HIPAA privacy rules
apply only to covered entities—health plans, health care clearinghouses,
and health care providers who electronically transmit health information.
See 42 U.S.C. § 1320d–1(a) (2012); 45 C.F.R. § 160.102(a) (2013); 45 C.F.R. §
164.104(a) (2013). Grandparents are not covered entities. See State v.
Straehler, 307 Wis.2d 360, 366–67, ¶ 10 (Wis. App. 2007) (HIPAA does not
apply to police officers because they are not “covered entities”). Assuming
arguendo, that HIPAA applied to Grandparents and they violated the
privacy rule, suppression of the evidence is not a remedy for a HIPAA
violation. See id. at 368, ¶ 13. Mother’s mental health records showing
alcohol and drug abuse are relevant to Child’s best interests. Without a
transcript of the proceedings, we assume the superior court did not abuse
its discretion by admitting Mother’s mental health records.

¶14          Grandparents request an award of attorneys’ fees and costs
on appeal pursuant to A.R.S. § 25–324. After review, that request is denied.

                               CONCLUSION

¶15          For the foregoing reasons, we affirm the superior court’s
order.




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




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