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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

            DANIEL JOSEPH SANTORO, Petitioner/Appellant,

                                        v.

                 NICOLE SANTORO, Respondent/Appellee.


                           No. 1 CA-CV 18-0497 FC
                                FILED 3-26-2019


           Appeal from the Superior Court in Maricopa County
                           No. FC2016-005223
              The Honorable Katherine M. Cooper, Judge

                                  AFFIRMED


                                   COUNSEL

Reeves Maxwell Law, PLLC, Mesa
By Kristina B. Reeves, April Maxwell
Counsel for Petitioner/Appellant

Nicole Santoro, Phoenix
Respondent/Appellee
                        SANTORO v. SANTORO
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


C R U Z, Judge:

¶1           Daniel Joseph Santoro (“Father”) appeals the superior court’s
order denying, in part, his petition to modify legal decision-making and
parenting time. For the following reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2            Father and Nicole Santoro (“Mother”) are the parents of K.S.
They divorced in June 2017. The parties litigated Mother’s long-term use
of prescription pain medication at the time of dissolution, and the superior
court ordered that Mother and Father would have joint legal decision-
making authority and would exercise an equal (4-3-3-4) parenting time
schedule.

¶3            In the three months following the dissolution hearing, Father
twice asked the court to modify its legal decision-making and parenting
time orders based on Mother’s alleged violation of the court’s orders and
neglectful, unstable living situation. The court denied both requests and
directed that, absent an emergency, neither party could petition for a
change in parenting time unless he or she first satisfied certain counseling
and custody evaluation conditions.

¶4            In December 2017, Father petitioned to modify legal decision-
making authority and parenting time, arguing that emergency
circumstances justified a change in custody because the Arizona
Department of Child Safety (“DCS”) had removed K.S., as well as Mother’s
two older children, from Mother’s custody after she appeared at a hospital
emergency room acting erratically and tested positive for amphetamine
and methamphetamine. Father asked the court to grant him sole legal
decision-making authority over K.S. and make him the primary residential
parent for the child, with Mother to have either no parenting time or
supervised parenting time. After an emergency temporary orders hearing,
the court ordered that K.S. would, on a temporary basis, live primarily with
Father and have supervised parenting time with Mother every Saturday



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                           Decision of the Court

afternoon. The court continued its prior order that the parties would have
joint legal decision-making authority, except Father would have final
authority in the event of an educational dispute.

¶5             In July 2018, the superior court held an evidentiary hearing
on Father’s petition to modify. The court found that Mother was not a
danger to K.S. because she had no positive drug tests in the preceding six
months and the juvenile court had returned Mother’s other children to her
after lengthy dependency proceedings. Nevertheless, the court determined
that Mother was unable to provide a stable environment for K.S. and it was
in the child’s best interests to live primarily with Father. The court ordered
that Mother have unsupervised parenting time with K.S. three weekends
per month and continued its earlier order that the parties share joint legal
decision-making authority, with Father to have final authority regarding
education issues.

¶6            Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A)(2).

                               DISCUSSION

¶7             Father argues the superior court erred by denying his request
for sole legal decision-making authority and granting Mother unsupervised
parenting time. He asserts the court erroneously excluded a report from
K.S.’ counselor regarding the child’s progress and improperly considered
the outcome of the dependency proceeding involving Mother’s other
children rather than conducting an independent analysis of K.S.’ best
interests.

I.     Exclusion of the Counseling Report

¶8            Father contends the superior court erred by refusing to admit
a progress report from K.S.’ counselor in evidence at the evidentiary
hearing on his petition to modify. We will not disturb the court’s
evidentiary ruling absent an abuse of discretion and resulting prejudice.
Selby v. Savard, 134 Ariz. 222, 227 (1982) (citation omitted).

¶9            In September 2017, the parties agreed—and the court
ordered—that K.S. attend “Safe Haven” counseling. The following month,
K.S. began weekly counseling with Dr. Alyssa Mandel. At the hearing,
Father offered a letter from Dr. Mandel about K.S.’ counseling progress.
The court refused to admit the letter, ruling that to do so would violate K.S.’
confidentiality with his Safe Haven counselor.


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                            Decision of the Court

¶10           Father, citing Hays v. Gama, 205 Ariz. 99 (2003), argues the
court erred because the letter contained information relevant to each of the
statutory best interests factors that Arizona law required the court to
consider in determining legal decision-making and parenting time. See
A.R.S. § 25-403(A). He asserts the court’s failure to consider the letter
interfered with its duty to consider K.S.’ best interests.

¶11            Hays is distinguishable from this case. In Hays, the superior
court precluded evidence from a child’s therapeutic counselor in a
contested child custody proceeding as a contempt sanction because the
child’s mother had violated certain court orders. 205 Ariz. at 101,
¶¶ 9-10. The Arizona Supreme Court vacated the sanctions, which it ruled
the superior court had “imposed pursuant to the court’s inherent contempt
power,” id. at 101-02, ¶¶ 14-16, and held that excluding the evidence
“effectively preclude[d] potentially significant information from being
considered in the custody determination” and impacted the superior
court’s ability to consider the child’s best interests, id. at 103-04, ¶¶ 22-23.

¶12           In contrast to Hays, here the court did not exclude the letter as
a sanction against Father, but did so to preserve the protection and
confidentiality of K.S.’ Safe Haven counseling.1 The court may appoint a
third-party professional to interview a child to assist the court with a legal
decision-making or parenting time determination. See A.R.S. § 25-405(B);
Ariz. R. Fam. Law P. 12. In those situations, the relationship between the
child and the professional is not ongoing and the professional should
explain to the child that the discussion is not confidential and he or she may
relay what the child says to the court. In this case, however, the court did
not appoint Dr. Mandel to assist in resolving Father’s petition to modify,
but to give K.S. a counselor to talk to about the ongoing conflict between
Mother and Father. K.S. attended weekly or biweekly counseling sessions
with Dr. Mandel who, eight months after beginning therapy with K.S.,
authored a report in which she detailed a developing relationship of trust
and confidence between her and K.S. Under these circumstances, the court
did not abuse its discretion by refusing to admit Dr. Mandel’s letter.


1       We reject Father’s argument that the court excluded Dr. Mandel’s
letter under A.R.S. § 12-2293(B)(3), which allows a heath care provider to
deny a parent access to a minor patient’s medical records under certain
circumstances. See A.R.S. §§ 12-2291(4), -2293(B)(3). The court did not cite
or otherwise indicate it was applying A.R.S. § 12-2293(B)(3) to exclude the
letter. Further, as Father notes, A.R.S. § 12-2293(B)(3) does not apply in this
case because Dr. Mandel voluntarily gave the letter to Father.


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                          SANTORO v. SANTORO
                            Decision of the Court

¶13            Further, unlike the evidentiary sanctions in Hays, we are
unable to determine that the court excluded evidence that had an
“especially significant effect” on its ability to determine K.S.’ best interests.
Father testified that K.S. had adjusted well to his home and was thriving on
a consistent routine that included attending school, socializing with other
children, and participating in sports. He stated K.S.’ self-esteem had
increased while his hyper-vigilant behavior and night terrors had “calmed
down dramatically.” This testimony, coupled with Mother’s testimony and
evidence of K.S.’ school progress, gave the court sufficient information to
assess K.S.’ best interests.

¶14            Nevertheless, Father argues Dr. Mandel’s letter contained
information about K.S.’ relationship with Mother, her older children, and
Mother’s boyfriend that was critical to the court’s assessment of K.S.’ best
interests. We disagree. Mother had not seen K.S. for three months before
the hearing because, as the court found, Father had frustrated Mother’s
access to K.S. by unreasonably refusing to agree to a volunteer third-party
supervisor for her parenting time. Accordingly, the information contained
in the letter about K.S.’ relationship with Mother and others was largely
outdated and would have been only minimally helpful to the court in
determining K.S.’ best interests.

¶15          Accordingly, the court did not abuse its discretion by refusing
to admit Dr. Mandel’s letter into evidence.

II.    Consideration of the Dependency Proceeding

¶16           Father next contends the court erred by relying on the juvenile
court’s determination in the dependency proceeding concerning Mother’s
two older children, rather than independently determining whether
Mother was a danger to K.S. We review the court’s legal decision-making
and parenting time orders for an abuse of discretion. In re Marriage of Diezsi,
201 Ariz. 524, 525, ¶ 3 (App. 2002) (citation omitted).

¶17          In ruling on a petition to modify legal decision-making and
parenting time, the court must consider the factors in A.R.S. § 25-403(A)
regarding the child’s best interests. The court in this case made specific
findings regarding each of these factors in its ruling. Father argues,
however, that the court’s determination that Mother used illegal drugs in
December 2017 created a rebuttable presumption under A.R.S.
§ 25-403.04(A) that joint legal decision-making was not in K.S.’ best interests
and the court was therefore also required to make findings that its legal




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                         SANTORO v. SANTORO
                           Decision of the Court

decision-making authority and parenting time order would appropriately
protect K.S.2

¶18           The court’s citation of A.R.S. § 25-403.04 in its order and its
findings and conclusions demonstrate it carefully considered the evidence
of Mother’s drug use and her drug test results for the six months preceding
the hearing. Arizona law gives the court discretion to determine the degree
of protection warranted in a particular case, and absent an abuse of that
discretion, we will not substitute our judgment on appeal. The court’s
limitation on Mother’s parenting time and its requirement that she continue
to submit to drug testing satisfies the statutory requirement that the court’s
orders must appropriately protect the child. See A.R.S. § 25-403.04(A)(2).
We therefore find no abuse of discretion and affirm the court’s order for
Mother to have unsupervised parenting time three weekends per month
and granting the parties joint legal decision-making, with Father having
final decision-making authority regarding education.

¶19           Moreover, we reject Father’s argument that the court
abdicated its “duty to exercise its independent judgment in making
findings,” Elliott v. Elliott, 165 Ariz. 128, 135 (App. 1990), by improperly
applying the doctrine of issue preclusion and relying on the juvenile court’s
dismissal of the dependency concerning Mother’s older children as
evidence that she was not a danger to K.S. The court’s ruling indicates that
it independently analyzed K.S.’ best interests and determined that Mother
was not a danger to the child. Although the court discussed the juvenile
court’s ruling in the dependency matter, it did not simply adopt it under
the doctrine of issue preclusion as Father suggests; rather, the court made
its own findings.

¶20         We find no abuse of discretion in the court’s legal decision-
making and parenting time orders.




2     The court found that Mother consumed methamphetamine in
December 2017 and had a “pattern of recurring positive test results for illicit
drugs.” We assume without deciding that A.R.S. § 25-403.04 applies in this
case even though the court did not specifically determine that Mother
“abused drugs” as the statute requires.



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                       SANTORO v. SANTORO
                         Decision of the Court

                             CONCLUSION

¶21          For the foregoing reasons, we affirm. Mother is entitled to
costs upon compliance with ARCAP 21.




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




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