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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                               In re the Matter of:

                LISA MARIE CAMPBELL, Petitioner/Appellee,

                                         v.

             MARIO JAMAL STEPHENS, Respondent/Appellant.

                            No. 1 CA-CV 15-0830 FC
                                 FILED 11-10-2016


            Appeal from the Superior Court in Maricopa County
                            No. FC2011-000586
                 The Honorable Katherine Cooper, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Law Offices of Kimberly A. Staley, P.L.L.C., Peoria
By Kimberly A. Staley
Counsel for Respondent/Appellant
                        CAMPBELL v. STEPHENS
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Justice Rebecca White Berch1 joined.


W I N T H R O P, Judge:

¶1            Mario Jamal Stephens (“Father”) appeals an order granting
joint legal decision-making authority and unsupervised parenting time to
Lisa Marie Campbell (“Mother”). For the reasons stated below, we vacate
the award of joint legal decision-making and unsupervised parenting time
and remand for further proceedings consistent with this decision.

                             BACKGROUND

¶2             The parties have one child in common, born in 2007. Until
September 2012, the child lived with Mother and his older half-sibling. In
September 2012, the child’s school called the Department of Child Safety
(“DCS”) when he arrived covered in bruises with a note from Mother
stating he fell off a bicycle. The child and his older brother were removed
from Mother’s care, and the child was placed with Father. Mother admitted
that both she and her then-husband had “whooped” the child with a belt as
a punishment. Mother was convicted of class six felony child abuse, and
the court placed her on probation for ten years, beginning February 22,
2013.

¶3           In December 2012, the family court ordered that Mother not
have parenting time with the child until further court order and awarded
Father sole physical custody and legal decision-making authority (“the
December 2012 order”).2 Although Mother did not have any parenting time


1       The Honorable Rebecca White Berch, Retired Justice of the Arizona
Supreme Court, has been authorized to sit in this matter pursuant to Article
6, Section 3, of the Arizona Constitution.

2     In explaining its order, the family court stated it had reviewed

      the photographs taken by the hospital where [the child] was
      treated. The bruising is extensive and is all over the body of



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                           Decision of the Court

with the child after this order, Father occasionally took the child to visit his
half-brother and maternal grandmother. In May 2014, Mother filed a
petition to modify, seeking in part joint legal decision-making and
reasonable parenting time. Initially, Father opposed joint legal decision-
making and any parenting time, but he later agreed that supervised
parenting time in a therapeutic environment might be appropriate. The
trial court and the parties attempted to set up therapeutic intervention
sessions and family therapy but were unable to make the necessary
arrangements. Mother eventually met with the child and his individual
counselor twice—in March and September 2015—but, according to Mother,
the expense prevented her from scheduling more frequent sessions.

¶4            On October 8, 2015, the family court held an evidentiary
hearing on Mother’s petition to modify. Mother testified she had regained
custody of her older child, divorced her former husband, and completed
domestic violence training as part of her probation. She also testified her
two visits with the child went well, although she acknowledged the child’s
counselor had suggested she make appointments to meet with the
counselor every other weekend as part of the reunification therapy.3 Out

       the minor child, including both legs, the back, the face[,] and
       both arms of the minor child. The extensive nature of the
       bruising, including cuts that appear to be inflicted by a belt
       buckle, or at least a cut that is consistent with the shape of a
       belt buckle, is noted on the minor child’s left leg. The
       extensive bruising suggests to this Court that the number of
       times that the minor child was struck with the belt was
       considerabl[y] higher than the number attributed by Mother,
       who indicated that the child was hit ten to fifteen times. The
       extensive bruising would suggest[] that the number of strikes
       was much higher. The Court does not need to determine the
       extent to which the child was struck with the belt, the
       evidence is overwhelming, and Mother admits, that the child
       was beaten excessively. Mother admits, “that the beating got
       way out of hand.” The Court is convinced that the injuries
       suffered by the minor child did not result from a simple
       corporal disciplinary act, but had well crossed over the line to
       physical abuse of the child based on the evidence that was
       presented to this Court.

3      The child’s counselor was unable to make a recommendation to the
court at the hearing based on the two brief sessions he had observed.



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                           Decision of the Court

of concern for the child’s safety and emotional well-being, Father wanted
to continue the reunification therapy for the child before Mother was
awarded either supervised or unsupervised parenting time.

¶5           The family court awarded joint legal decision-making, with
Father having the final say if the parties could not agree, and awarded
Mother supervised parenting time seven hours a week. The court further
ordered that, after approximately three-and-a-half months, Mother’s
parenting time would become unsupervised, and beginning June 5, 2016,
the parties would share equal parenting time.

¶6            Father filed a timely appeal from the court’s order.4 We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-
2101(A)(2) (2016).5

                                 ANALYSIS

¶7             We review a modification of legal decision-making and
parenting time for an abuse of discretion. See Owen v. Blackhawk, 206 Ariz.
418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). When considering a petition to
modify legal decision-making and parenting time, the court must first
determine whether there has been a change in circumstances materially
affecting the child’s welfare, and if so, the court must then determine
whether modification is in the child’s best interest. Christopher K. v. Markaa
S., 233 Ariz. 297, 300, ¶ 15, 311 P.3d 1110, 1113 (App. 2013). This requires
the court to consider all relevant factors enumerated in A.R.S. § 25-403(A)
(Supp. 2015). In this case, the court was also required to apply A.R.S. § 25-
403.03 (Supp. 2015) because of Mother’s child abuse conviction.

       I.     Legal Decision-Making

¶8             Pursuant to A.R.S. § 25-403.03(A), the court shall not award
joint legal decision-making if it finds “the existence of significant domestic
violence pursuant to [A.R.S.] § 13-3601 [(Supp. 2015)] or if the court finds

4      Mother did not file an answering brief. In the exercise of our
discretion, we decline to treat this failure as a confession of reversible error
and address the merits of the legal decision-making and parenting time
issues. See Gonzales v. Gonzales, 134 Ariz. 437, 437, 657 P.2d 425, 425 (App.
1982).

5     Absent any material revisions after the relevant date, we cite the
current version of the statutes.



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                          Decision of the Court

by a preponderance of the evidence that there has been a significant history
of domestic violence.” The court made no specific findings under § 25-
403.03(A), but stated it had “considered the history of child abuse in this
case,” reviewed the December 2012 order, and considered the evidence and
testimony. The December 2012 order detailed the September 2012 incident
and another 2012 incident in which Mother’s former husband abused the
child. Additionally, the family court found Mother was on probation for
class six felony child abuse.6

¶9             In this case, Mother’s history of abuse, including her felony
child abuse conviction pursuant to A.R.S. § 13-3623 (2010),7 raises a question
whether an award of joint legal decision-making is precluded under A.R.S.
§ 25-403.03(A). See Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 12, 219 P.3d 258, 261
(App. 2009) (recognizing that a finding of “significant domestic violence”
pursuant to § 13-3601 precludes an award of joint legal decision-making
under § 25-403.03(A)). Unlike the rebuttable presumption against
awarding sole or joint legal decision-making to a parent who has committed
“an act of domestic violence against the other parent,” see § 25-403.03(D),
where the court finds “significant domestic violence pursuant to § 13-3601”
or a “significant history of domestic violence,” the court is prohibited from
awarding that parent sole or joint legal decision-making. See A.R.S. § 25-
403.03(A). Before awarding Mother joint legal decision-making, the court
was required to consider whether such an award was precluded under

6      The December 2012 order also stated that “Mother’s problems with
striking the children is not based solely on this incident. As the [DCS]
records note, Mother has been involved in other actions, one involving [the
child’s older half-brother] and another involving an older child as well.”
The court noted that, in October 2009, the child’s older half-brother
“disclosed that Mother punched him all over his body,” and he had a bruise
on his wrist because “Mother was holding him by the wrist as she was
punching him.” Additionally, the court noted that Mother had two prior
criminal matters (in 1995 and 2003) resolved by plea agreements—one
involving assault, and the other involving “disorderly conduct,
contributing to the delinquency of a dependent minor, and violation of a
promise to appear”—and found these earlier criminal actions, although
“dated,” tended to “show a trend with respect to Mother’s tendency
towards physical confrontation.”

7       We may take judicial notice of Mother’s criminal conviction. See
State v. Lynch, 115 Ariz. 19, 22, 562 P.2d 1386, 1389 (App. 1977) (recognizing
that courts may “take judicial notice of procedural facts reflected in the
record of another superior court action”).


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                          CAMPBELL v. STEPHENS
                            Decision of the Court

A.R.S. § 25-403.03(A). Accordingly, we vacate that portion of the order and
remand for the court to consider and make appropriate findings relative to
the applicability of § 25-403.03(A).

       II.    Parenting Time

¶10          Father concedes that Mother should renew her relationship
with the child in a therapeutic environment, with the allowance of some
supervised parenting time. However, he contends the evidence does not
support the relatively quick transition from supervised parenting time to
some unsupervised parenting time to equal unsupervised parenting time.

¶11            Where, as here, “the court finds that a parent has committed
an act of domestic violence, that parent has the burden of proving to the
court’s satisfaction that parenting time will not endanger the child or
significantly impair the child’s emotional development.” A.R.S. § 25-
403.03(F). Thus, pursuant to subsection (F), a finding of domestic violence
does not automatically preclude an award of parenting time; however,
“[t]he court shall consider the safety and well-being of the child and of the
victim of the act of domestic violence to be of primary importance.” A.R.S.
§ 25-403.03(B).8 Additionally, § 25-403(B) requires the court to make specific
findings on the record as to all relevant § 25-403(A) factors and the reasons
why the parenting time order is in the child’s best interest. Owen, 206 Ariz.
at 421, ¶ 9, 79 P.3d at 670.

¶12            The court did not make specific findings regarding § 25-
403.03(F), see generally Christopher K., 233 Ariz. at 301, ¶ 19, 311 P.3d at 1114,
or explain how it weighed the § 25-403 factors to conclude that the
unsupervised parenting time schedule was in the child’s best interest.
Under § 25-403.03(F), Mother had the burden of proving that unsupervised
parenting time will not endanger the child or significantly impair his
emotional development. Based on the evidence in the record and the trial
court’s lack of detailed findings, we cannot tell whether Mother met this
burden.

¶13           The child’s counselor provided no information to the court
regarding the two interactions between Mother and the child, and Mother
did not arrange for any additional therapeutic counseling outside of the
child’s individual counselor. Further, there was no court-ordered custody


8      The court shall also “consider a perpetrator’s history of causing or
threatening to cause physical harm to another person.” A.R.S. § 25-
403.03(B).


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                         CAMPBELL v. STEPHENS
                           Decision of the Court

evaluation or parenting conference report, and the court had no
independent evaluation regarding the child’s interactions with Mother.

¶14            Mother testified that the two visits went well. However,
Father testified that the child “still remembers” the abuse, and after the
child visits Mother or her family members, the child becomes “emotional”
and “mad” and will not listen. This behavior is consistent with the child’s
behavior in 2012, when he began acting up after Mother spoke to him on
his half-brother’s cell phone, ostensibly in violation of court orders.

¶15            In considering its award of joint legal decision-making, the
court found “Mother has taken appropriate steps to address her prior
conduct and has custody of her other minor child.” Although Mother
divorced the husband who also abused the child on two occasions in 2012,
Mother herself seriously abused the child. Mother completed domestic
violence training as a condition of her probation, regained custody of the
child’s older half-sibling, and reports that older child is doing well in her
care; however, that child is a teenager and was only removed from Mother’s
home for eight months. More importantly, the record does not indicate that
Mother inflicted the severe abuse on the child’s older half-brother that she
inflicted on the child. At the time of the hearing, the parties’ child was eight
years old and had only spent two supervised hours with Mother in the past
three years.

¶16           In its order, the family court addressed the § 25-403(A) factors;
however, the findings do not necessarily relate to or otherwise explain the
reasons why the court concluded it was in the child’s best interest for
Mother to exercise unsupervised parenting time after only a few months
without any reunification therapy or other counseling. We also note the
lack of any evidence from a mental health provider regarding what effect
transitioning from three years of almost no contact to weekly parenting
time will have on the child. Additionally, the court did not appear to
explicitly consider the behavioral problems the child experienced after
having contact with Mother.

¶17            The court was required to set forth on the record the reasons
its decision is in the child’s best interest. See A.R.S. § 25-403(B). The trial
court’s failure to specify the reasons why unsupervised parenting time is in
the child’s best interest as required by A.R.S. § 25-403(B) is an abuse of
discretion. See Hurd, 223 Ariz. at 51, ¶ 11, 219 P.3d at 261. Based on the
evidence in the record, we cannot conclude Mother met her burden of
proving unsupervised parenting time with no reunification therapy was in
the child’s best interest and would not endanger the child or impair his


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                           Decision of the Court

emotional development.9 See A.R.S. §§ 25-403(B), -403.03(F). Accordingly,
we vacate the order granting unsupervised parenting time and remand for
the family court to reconsider the parenting time orders based on any
additional evidence the court, in its discretion, permits the parties to
provide. On remand, any orders for supervised or unsupervised parenting
shall be based on specific findings in the record consistent with A.R.S.
§§ 25-403(B) and 25-403.03(F).

                               CONCLUSION

¶18            We vacate the family court’s legal decision-making and
parenting time orders and remand for further proceedings consistent with
this decision. As the successful party, Father is entitled to an award of costs
on appeal upon compliance with Arizona Rule of Civil Appellate Procedure
21. See A.R.S. § 12-342 (2016).




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




9      At the hearing, the family court acknowledged the importance of
reunification or family therapy; however, the final order did not include
any such provision.


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