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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                         ROBERTO GONZALEZ, JR.,
                            Petitioner/Appellee,

                                         v.

                       ANGELICA GARCIA MORAGA,
                             Respondent/Appellee.
                     _________________________________

                           SEBASTIAN ALBA, et al.,
                             Intervenors/Appellants.

                            No. 1 CA-CV 18-0298 FC
                                FILED 2-28-2019


            Appeal from the Superior Court in Maricopa County
                           No. FC2009-007103
                                FC2010-000644
               The Honorable Timothy J. Thomason, Judge

                                   AFFIRMED


                                    COUNSEL

Cosmas Onyia, PC, Phoenix
By Cosmas Onyia
Counsel for Petitioner/Appellee

Alongi Law Firm, PLLC, Phoenix
By Thomas P. Alongi
Counsel for Intervenors/Appellants
               GONZALEZ, JR. v. MORAGA/ALBA, et al.
                      Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1            Sandra Moraga and Sebastian Alba (collectively,
"Grandparents") appeal the superior court order dismissing their petition
for third-party rights as to their grandson ("Child") pursuant to Arizona
Revised Statutes ("A.R.S.") section 25-409 (2019).1 For the following reasons,
we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Child was born in 2009; the following year, the family division
of the superior court granted Angelica Garcia Moraga ("Mother") sole legal
custody and granted parenting time to Roberto Gonzalez, Jr. ("Father"). In
October 2017, Mother was killed. Several days after she died, and
unbeknownst to Father, Grandparents commenced an action in the juvenile
division of the superior court and obtained a temporary guardianship order
over Child.

¶3            Father then filed a motion in the family-division case seeking
a temporary order modifying legal decision-making, physical custody and
parenting time. His motion alleged Mother had died, Child was with
Grandparents and they refused to relinquish him to Father. The superior
court denied the motion, citing only Mother's death. The court later
explained that "[u]pon the death of Mother, Father was the only living
parent and the only remaining person who had parental rights over this
Child." Thus, the court continued, "with Mother deceased, there was no
case to adjudicate."

¶4            On January 4, 2018, Father filed an amended motion in the
family case to modify custody. The court held a return hearing the next
month, at which Grandparents served Father with a Petition to Intervene
under § 25-409(A). In their petition, Grandparents alleged they stood in loco


1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


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               GONZALEZ, JR. v. MORAGA/ALBA, et al.
                      Decision of the Court

parentis to Child. They further alleged that placing Child with Father would
be significantly detrimental to Child because Father had a history of
domestic violence. Grandparents asked the court to grant them legal
decision-making authority and physical custody of Child.

¶5            At a hearing in March 2018, the court heard testimony from
Father, Moraga and Child's counselor, then invited and received an
additional affidavit from Moraga, along with supplemental briefs.

¶6           Moraga's affidavit stated:

      1. . . . [Child] has been a close member of our family since the
      day he was born, eight years ago yesterday. [Child and
      Mother] both lived with us for the first month of his life.
      During this time, my husband and I helped feed, bathe, and
      change [Child]. . . . Before my daughter's murder, [Child]
      spent a significant amount of time at our house. . . . He loved
      spending the weekends and school breaks at our house. . . .

      2. Since the day my daughter lost her life, [Child] has lived
      with us and his two younger siblings. We have taken on the
      full time parenting roles for the past 5 and a half months. . . .
      While [Child] understands we can never replace his mother,
      he now looks to us in the same way he looked to his mother
      for love, protection, guidance, and support. In addition to
      providing all of his basic needs, such as home-cooked meals,
      shelter, and clothing, we also provide the emotional support
      and close family relationships he needs to grieve over the loss
      of his mother and adjust to a life without her.

¶7            In a 10-page order, the superior court dismissed
Grandparents' petition for third-party rights and ordered them to
immediately turn over Child to Father.           Although it dismissed
Grandparents' petition, the court remarked that "Child clearly has a close
and loving bond with" Grandparents and stated that it appeared "that the
Child should clearly have time with the Grandparents" under § 25-409(E)
(third-party visitation).

¶8           Grandparents timely appealed.         We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §
12-2101(A)(3) (2019).




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                GONZALEZ, JR. v. MORAGA/ALBA, et al.
                       Decision of the Court

                                DISCUSSION

¶9            We review de novo the superior court's interpretation and
application of § 25-409. Chapman v. Hopkins, 243 Ariz. 236, 240, ¶ 14 (App.
2017). We will affirm the court's factual findings unless they are clearly
erroneous. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51-52, ¶ 11 (App. 2009).
A finding of fact is not clearly erroneous if substantial evidence supports it
– even if substantial conflicting evidence exists – giving due regard to the
opportunity of the superior court to judge the credibility of the evidence.
Id.

¶10            Under § 25-409(A), "a person other than a legal parent" may
petition for legal decision-making or placement of a child. See also A.R.S. §
25-402 (2019) (court has jurisdiction to rule on petition filed by nonparent).
The court must summarily deny such a petition unless it finds the petition
"establishes" that: (1) the petitioners stand in loco parentis to the child, (2)
allowing the child to remain in the care of a legal parent who wishes to keep
decision-making authority would be significantly detrimental to the child,
(3) no court of competent jurisdiction has entered orders of legal decision-
making or parenting time within the preceding year, and as relevant here,
(4) one of the legal parents is deceased. A.R.S. § 25-409(A). The petition
must be supported by an affidavit containing detailed facts supporting the
specific claims. A.R.S. § 25-409(D).

¶11             In Chapman, we explained that a petition "establishes" the
elements of A.R.S. § 25-409(A) when it contains "sufficient allegations . . . that
the statutory elements exist, not proof of those elements." 243 Ariz. at 242,
¶ 21, n.2. In its order, the superior court concluded that Grandparents'
initial petition was "clearly insufficient" because it made "only a conclusory
allegation that the Grandparents stand in loco parentis." But the court did
not rule based solely on the petition; as noted, it heard testimony at an
evidentiary hearing and allowed Grandparents to file a supplemental brief,
along with a supplemental affidavit, to establish their claim. In its under-
advisement ruling, the court concluded: "Even if all of that evidence were
incorporated into an amended pleading, they have not adequately pled a
plausible claim for in loco parentis."

¶12           Grandparents argue the superior court erred in "summarily
striking their pleadings" because they established that they stand in loco
parentis to Child and therefore are entitled to a trial on the merits of their
petition. But the court did not summarily strike Grandparents' pleadings.
It did not strike any pleadings. It ruled only after taking evidence at a




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                GONZALEZ, JR. v. MORAGA/ALBA, et al.
                       Decision of the Court

hearing and allowing Grandparents to submit supplemental evidence and
briefing and after considering all the materials before it.

¶13           Turning to the merits of the superior court's order, at issue
before that court were the requirements of § 25-409(A)(1) and (A)(2), which
require a petitioner to show both that he or she stands in loco parentis to the
child and that allowing the child to remain in the care of the child's legal
parent would be significantly detrimental to the child.

¶14            A person stands in loco parentis if a child has treated that
person "as a parent" and the person "has formed a meaningful parental
relationship with [the] child for a substantial period of time." A.R.S. § 25-
401(1) (2019). For example, in Chapman, the grandparents stood in loco
parentis because they "had provided 'what amounted to almost daily care'
of all the children even before [the grandsons] moved in with them" four
months before the petition was filed. 243 Ariz. at 238, ¶ 4-6, 242, ¶ 22. In
that case, after the children moved in with their grandparents, "[the]
[m]other and her sons did not have much of a relationship and any
conversations they did have grew increasingly hostile," to the point that one
of the children testified that he would "absolutely never come home" as long
as the mother lived with her boyfriend. Id. at 238, ¶ 6. We concluded "the
children looked to [the] [g]randparents to help provide for their basic needs
when they felt that [the] [m]other could not." Id. at 242, ¶ 22. Further the
grandparents had "helped raise [the children] from the time of their births."
Id. See also Roberto F. v. Ariz. Dep't of Econ. Sec., 232 Ariz. 45, 48-49, ¶¶ 5-11
(App. 2013) (foster parents stood in loco parentis and were allowed to
intervene in dependency hearing under predecessor to § 25-409 because
they cared for the children for 20 months while the children's mother
struggled with drugs and their father was incarcerated in another state);
Egan v. Fridlund-Horne, 221 Ariz. 229, 231, ¶ 2 (App. 2009) (partner in a
same-sex relationship who jointly raised a child for seven years with the
mother stood in loco parentis under § 25-409).

¶15          Here, the superior court did not err by concluding
Grandparents failed to establish that they stood in loco parentis before
Mother's death in October 2017. Although Moraga stated in her affidavit
that Child "spent a significant amount of time at [Grandparents'] house"
before Mother died, she testified Child lived full time with Mother in a
separate home for the two years before Mother died. In fact, the only time
before October 2017 that Moraga described Child living in their home was
during the month just after Child was born. Although Moraga testified that
Child spent weekends and school breaks at their home while Mother was
alive, Grandparents neither alleged nor offered evidence that they were


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               GONZALEZ, JR. v. MORAGA/ALBA, et al.
                      Decision of the Court

actively involved in parenting Child before Mother's death. Instead, as the
superior court found, "they had a more or less typical, loving grandparent
relationship with the Child." Thus, unlike the grandparents in Chapman,
who provided "almost daily care" of the children and who housed the
grandsons full time even while the mother was available to parent, see 243
Ariz. at 242, ¶ 22, Grandparents in this case began housing and caring for
Child full time only after Mother died.

¶16           Further, although Child may have been in the sole care of
Grandparents during the four months between Mother's death and the
filing of Grandparents' petition, the superior court did not err by
concluding that period did not constitute a "substantial period of time"
under the circumstances. See A.R.S. § 25-401(1); Roberto F., 232 Ariz. at 48,
¶¶ 5-10 (foster parents raised children for 20 months); Egan, 221 Ariz. at
231, ¶ 2 (party co-parented for seven years). Grandparents argue the four-
month period in which they cared for Child before they filed their petition
was similar to that in Chapman, but the facts of the two cases are
significantly different. See 243 Ariz. at 238-39, ¶¶ 3-8. In Chapman, the
evidence showed that the mother was not "of sound mind" for more than
three years before the grandsons moved in with the grandparents, and that
the grandparents provided "almost daily care" for their grandsons long
before the children moved in with them. Id. at 239, ¶¶ 9-11, 242, ¶ 22. By
contrast, here, Grandparents did not allege or offer proof that before she
died, Mother was unable to care for Child or that Child looked to
Grandparents for daily care.

¶17           Moreover, in considering the period that Grandparents cared
for Child after Mother's death, the superior court noted that period of time
was extended over Father's "strenuous objection" and continued only
because of delays in scheduling court proceedings. As described above,
Father moved to assert his parental rights to Child immediately after
Mother's death in October. After he filed another motion, the return
hearing was not set until February, at which time Grandparents moved for
third-party rights. In the meantime, having obtained guardianship of Child
without giving notice to Father, Grandparents housed and cared for Child
until the court finally ruled in March. As the superior court observed,

      The point to be made here . . . is that Father tried to do
      everything he could here to adjudicate his rights. . . . If the
      rights of the parties were promptly adjudicated, then it is clear
      that an in loco parentis relationship did not exist for a
      substantial period of time. Father should not be penalized by
      this delay.


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                GONZALEZ, JR. v. MORAGA/ALBA, et al.
                       Decision of the Court

¶18            The record supports the reasoning of the superior court.
Grandparents neither pled nor offered facts sufficient to support their
assertion that they stood in loco parentis to Child. Section 25-409(A) requires
parties such as Grandparents to satisfy each of the four elements specified
in (A)(1) through (A)(4). Because Grandparents' claim failed under § 25-
409(A)(1), we need not address the court's conclusion that Grandparents
also failed to adequately allege or show that allowing Child to remain in
Father's care would be significantly detrimental to Child under § 25-
409(A)(2). For the same reason, we need not address Grandparents'
argument that the court should have considered A.R.S. § 25-403.03 in
deciding whether allowing Child to remain in Father's care would be
significantly detrimental to Child.

                               CONCLUSION

¶19            For the foregoing reasons, we affirm. In the exercise of our
discretion, we decline to award attorney's fees on appeal. Father is entitled
to his costs on appeal.




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




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