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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  SANDY LEE HUNT, Petitioner/Appellant,

                                        v.

                   STEPHANIE DAY, Intervenor/Appellee.

                           No. 1 CA-CV 15-0436 FC
                            FILED 03-22-2016


             Appeal from the Superior Court in Yuma County
                        No. S1400DO200800058
                  The Honorable John P. Plante, Judge

                      VACATED AND REMANDED


                                   COUNSEL

Mary Katherine Boyte, P.C., Yuma
By Mary K. Boyte Henderson
Counsel for Petitioner/Appellant

Torok Law Office P.L.L.C., Phoenix
By Gregory T. Torok
Counsel for Intervenor/Appellee
                             HUNT v. DAY
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1           Sandy Lee Hunt (“Mother”) appeals the order granting
grandparent visitation to her mother, Stephanie Day (“Grandmother”). For
the following reasons, we vacate the order and remand the case back to the
trial court.

                FACTS AND PROCEDURAL HISTORY

¶2            Mother and her four children moved into a house adjacent to
Grandmother’s home in 2009 and stayed there until 2011.1 During their
stay, Grandmother and her husband saw the children regularly, had them
spend the night, had them help around the house, and took them on
vacations. She continued to see her grandchildren after they moved, but
less frequently.

¶3           In early 2012, Mother and Grandmother had a “falling out”
after Mother contacted her biological father without first telling
Grandmother. Their relationship deteriorated and, ultimately, they
stopped communicating. Mother also prevented Grandmother from
having contact with the children.

¶4            Grandmother filed an action seeking an order of visitation
with her grandchildren under Arizona Revised Statutes (“A.R.S.”) section
25-409.2 After a bench trial, the trial court entered an order granting
Grandmother visitation with her grandchildren, and Mother appealed. We
have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).




1 Mother was divorced, and her ex-husband, the father of the children, had
his parental rights terminated in 2010.
2 We cite to the current version of the statute unless otherwise noted.



                                    2
                              HUNT v. DAY
                            Decision of the Court

                               DISCUSSION

¶5             Mother argues the trial court abused its discretion by granting
visitation to Grandmother. She claims the court failed to give any “special
weight” to her determination that visitation was not in the best interests of
her children, failed to give “significant weight” to her voluntary agreement
to permit visitation, and failed to make specific findings pursuant to A.R.S.
§ 25-403.

¶6             We review a trial court’s decision about grandparent
visitation for an abuse of discretion. McGovern v. McGovern, 201 Ariz. 172,
175, ¶ 6, 33 P.3d 506, 509 (App. 2001). We, however, review de novo issues
of statutory interpretation and constitutional law. Id.

¶7            Parents have a fundamental interest to the “care, custody, and
control of their children” under the Fourteenth Amendment to the
Constitution. Troxel v. Granville, 530 U.S. 57, 65 (2000). Moreover, we
presume that a fit parent will act in the best interests of his or her children,
id. at 68, including deciding whether to cultivate a bond between a
grandparent and grandchildren. Id. at 70. However, if a parent’s decision
regarding visits with a grandparent becomes subject to judicial review,
courts must accord “at least some special weight” to that parent’s own
determination. Id.

A. Special Weight

¶8          Mother argues the court failed to give “special weight” to her
determination that visitation was not in the best interests of the children.
We agree.

¶9            In one of our first opinions addressing a grandparent’s right
to visitation after Troxel, we stated that trial courts should conduct the
following two-step inquiry:

              First, the court should recognize and apply a
              [rebuttable] presumption that a fit parent acts in
              his or her child’s best interest in decisions
              concerning the child’s care, custody, and
              control, including decisions concerning
              grandparent visitation. . . . Second, a trial court
              must consider and give “some special weight”
              to a fit parent’s determination of whether
              visitation is in the child’s best interest. . . .



                                       3
                              HUNT v. DAY
                            Decision of the Court

McGovern, 201 Ariz. at 177, ¶¶ 17, 18, 33 P.3d at 511 (citations omitted).
Although the analysis was straightforward, we did not, like Troxel, define
“special weight,” but said it could be resolved “on a case-by-case basis.” Id.
at 178, ¶ 18, 33 P.3d at 512 (citation omitted).

¶10           In 2012, the Arizona Legislature repealed A.R.S. § 25-409,
which had been titled “Visitation rights of grandparents and great-
grandparents,” and did not have a “special weight” provision. 2012 Ariz.
Sess. Laws, ch. 309, § 19 (2d Reg. Sess.). It was replaced by a statute entitled
“Third party rights,” id. at § 20, which added a subsection which explicitly
incorporates the term “special weight.” A.R.S. § 25-409(E). The subsection
provides, in relevant part, that:

              In deciding whether to grant visitation to a third
              party, the court shall give special weight to the
              legal parents’ opinion of what serves their
              child’s best interests and consider all relevant
              factors including:

              1. The historical relationship, if any, between
              the child and the person seeking visitation.

              2. The motivation of the requesting party
              seeking visitation.

              3. The motivation of the person objecting to
              visitation.

              4. The quantity of visitation time requested and
              the potential adverse impact that visitation will
              have on the child’s customary activities.3

A.R.S. § 25-409(E) (emphasis added).

¶11           The new statute did not, however, define “special weight.”
The term remained undefined until early 2016 when we decided Goodman
v. Forsen, ___ Ariz. ___, ___ P.3d ___, 1 CA-CV 14-0844, 2016 WL 349699
(Ariz. App. Jan. 28, 2016). In Goodman, we concluded that “special weight”
means “that the parents’ determination is controlling unless a parental



3The subsection has a fifth factor, which requires the court to consider “the
benefit in maintaining an extended family relationship,” but only if one or
both of the parents are deceased. A.R.S. § 25-409(E)(5).

                                       4
                              HUNT v. DAY
                            Decision of the Court

decision clearly and substantially impairs a child’s best interests.” Id. at *3,
¶ 13. Specifically, we stated that:

              Our interpretation of A.R.S. § 25-409(E)
              recognizes     that    the   “special      weight”
              requirement demands robust deference to fit
              parents’ opinions concerning their children’s
              best interests.          Consistent with the
              constitutional right to parent, the legislature has
              provided nonparents with fewer rights than
              parents. Assuming parental fitness, the analysis
              required under § 25-409 is not a typical
              balancing test in which the court’s own
              determination of best interests is controlling –
              we interpret “special weight” to mean that the
              parents’ determination is controlling unless a
              parental decision clearly and substantially
              impairs a child’s best interests.          Even if
              arbitrary, the parents’ determination is the
              primary factor in the analysis, and the burden is
              on the person seeking visitation to demonstrate
              that denial of visitation would clearly and
              substantially impair the child’s interests.

              That is not to say that a fit parent’s decision
              must always be upheld. . . . But a nonparent
              who seeks visitation carries a substantial
              burden to prove that the parent’s decision is
              harmful. It is not enough merely to show that
              the nonparent stands in loco parentis to the child.
              Nor is it enough merely to show that a
              reasonable person could disagree with the
              parent’s decision to deny visitation. The court’s
              role is not to engineer what it perceives to be the
              optimal situation for the child, but to determine
              whether compelling circumstances warrant
              state interference with a fit parent’s decisions.
              The nonparent must prove that the child’s best
              interests will be substantially harmed absent
              judicial intervention.

Id. at *3, 4, ¶¶ 13, 14 (internal quotation marks and citations omitted).



                                       5
                             HUNT v. DAY
                           Decision of the Court

¶12          Here, the court concluded Mother was a fit parent. The court
analyzed the § 25-409 factors, including the fact that the children and
Grandmother had a close relationship, and had a mutual desire to see each
other. The court, however, recognized that Mother resented her mother
based on childhood events, which were “legitimate things to be angry
[about],” but not enough to prevent the children from seeing their
Grandmother.     Consequently, the court granted Grandmother one
weekend per month visits with her grandchildren.

¶13            The record reveals the hearing focused on the history between
Mother and Grandmother. In ruling that their dispute was insufficient to
prevent the children from visiting with their Grandmother, the court
seemed to discount Mother’s concerns that Grandmother’s husband
admitted to physically disciplining the children against her wishes, as well
as her concerns that he drank too much around the children. Although the
visitation order directs no alcohol consumption or corporal punishment
during the visits, both factors are relevant because they impact the “special
weight” the court must give to Mother’s opinion about what is in the best
interests of her children.

¶14            Because the court rejected Mother’s opinion and did not have
the benefit of the Goodman definition of “special weight,” including the
impact of physically disciplining the children against Mother’s wishes,
Goodman, 1 CA-CV 14-0844, 2016 WL 349699, at *5, ¶ 17, we vacate the order
of visitation and remand the matter for the court to consider the evidence
in light of the now-defined special weight to give to Mother’s opinion, and
whether Grandmother proved that the children’s best interests would
suffer “clear and substantial” harm without judicial intervention. See
McGovern, 201 Ariz. at 179, ¶¶ 25, 26, 33 P.3d at 513 (remanding back to the
trial court “to conduct a further evidentiary hearing” in light of Troxel and
the court’s newly articulated test for determining grandparent visitation)
(citation omitted); see also Goodman, 1 CA-CV 14-0844, 2016 WL 349699, at
*5, ¶ 18 (remanding to “permit the court to reweigh the evidence under the
[newly articulated] test”).

B. Significant Weight

¶15           Mother also contends the “court erred as a matter of law by
failing to give significant weight to [her] voluntary agreement to permit
visitation.” We disagree.




                                     6
                              HUNT v. DAY
                            Decision of the Court

¶16            In Troxel, after noting that many states expressly provide that
courts may not award visitation unless a parent has unreasonably denied
visits to third parties, like grandparents, 530 U.S. at 71, the Court criticized
the trial court’s “failure to accord significant weight” to the mother’s offer
to give “meaningful visitation to the [grandparents],” even if once a month
was less than what the grandparents were seeking. Id. at 60-61, 72. In
McGovern, we followed that direction when we reiterated that a trial court
should give “significant weight” to a “parent’s voluntary agreement to
some visitation, albeit not as much visitation as the grandparent desires.”
201 Ariz. at 177-78, ¶ 18, 33 P.3d at 511-12.

¶17           Here, Mother had not, and did not, agree to any visitation.
She sent Grandmother a text message in May 2013, stating, “I would love
for my children to spend time with their family,” but noted that unless
Grandmother and her husband “s[at] down with a counse[lor],” with
Mother, and Mother’s husband to “discuss the expectations of the
children’s relationship with [them],” there would be no contact. The text
message did not offer or afford Grandmother any time with the children.
Instead, and as the court found, Mother’s decision “condition[ed]
[visitation] upon counseling.” Consequently, the court’s determination
that Mother was not willing to allow unconditional visits with the children
was not legal or factual error.

C. Failure to Make Specific Findings Pursuant to A.R.S. § 25-403

¶18            Finally, and relying on Downs v. Scheffler, Mother argues the
trial court erred because it was required to “consider and make findings
regarding the statutory factors of A.R.S. § 25-403.” 206 Ariz. 496, 80 P.3d
775 (App. 2003). We disagree.

¶19           Downs was not a grandparent visitation case, but one where
the paternal grandmother wanted legal custody of her grandchild. Id. at
497-98, ¶¶ 1-5, 80 P.3d at 776-77. Because custody, now known as legal
decision-making, requires the court to make factual findings regarding how
the decision would further the best interests of the child under A.R.S. § 25-
403, we reversed the ruling and remanded the case for further proceedings,
including addressing whether visitation was appropriate, assumedly if
custody was not granted. Id. at 500, ¶ 12, 80 P.3d at 779. Because this is not
a custody case, and there was no request for factual findings under Arizona
Rule of Family Law Procedure 82 before trial, the court was not required to
make specific factual findings under § 25-409 beyond those made in the
record.




                                       7
                         HUNT v. DAY
                       Decision of the Court

                         CONCLUSION

¶20          Based on the foregoing, we vacate the ruling granting
Grandmother visitation with the children and remand for further
proceedings consistent with this decision.




                              :RT




                                8
