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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   LINO GONZALES, Petitioner/Appellee,

                                        v.

                 BRANDY VARGAS, Respondent/Appellant.

                           No. 1 CA-CV 17-0371 FC
                                FILED 5-8-2018


           Appeal from the Superior Court in Maricopa County
                          No. FC 2009-001571
                The Honorable Michael J. Herrod, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                   COUNSEL

The Cordrey Law Firm, PLC, Phoenix
By Michael E. Cordrey
Co-Counsel for Respondent/Appellant

The Murray Law Offices, PC, Scottsdale
By Stanley D. Murray
Co-Counsel for Respondent/Appellant

Dean W. O’Connor, PLLC, Phoenix
By Dean W. O’Connor
Counsel for Petitioner/Appellee
                         GONZALES v. VARGAS
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Maurice Portley1 joined.


B R O W N, Judge:

¶1           Brandy Vargas (“Mother”) appeals the superior court’s order
denying her petition for modification of legal decision-making and
parenting time, and her request for attorneys’ fees. For the following
reasons, we affirm the court’s denial of Mother’s request for attorneys’ fees
but vacate the remaining portions of the court’s order and remand for
further proceedings.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             Mother and Lino Gonzales (“Father”) have one minor child in
common, D.G., born in 2007. The parties separated, and in March 2009,
Father filed a petition to establish child custody and parenting time. Two
months later, the superior court found that “the parties have the future
ability to co-parent the minor child,” and granted Mother and Father joint
legal custody of D.G. The court also granted Father parenting time and
required Mother and Father to have daily “telephone contact” pertaining to
D.G.

¶3            In March 2010, Father petitioned for sole legal custody,
alleging D.G. was in danger due to Mother’s “drug problem.” In June 2010,
the Arizona Department of Economic Security-Child Protective Services
(“CPS”) assumed temporary custody of D.G. (and his half-sister S.E.) from
Mother due to ongoing “neglect, methamphetamine abuse, condition of
[the] home, [and] violation of [a] court order.” After an evidentiary hearing,
the superior court granted Father’s petition, finding it was “in [D.G.]’s best
interest that Father be granted sole legal custody,” and that “Mother’s
parenting time would endanger the child’s physical, mental, emotional or
moral health.” The court also ordered that Mother would have to show 60



1      The Honorable Maurice Portley, retired Judge of the Arizona Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.


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                           Decision of the Court

days of continuous random negative drug tests before requesting
reinstatement of parenting time.

¶4            In August 2013, Mother “re-enter[ed] her [May 2012] Petition
to Modify Legal Decision-Making, Physical Custody, and Child Support,”
asserting she had “successfully completed [an] EMPACT substance abuse
treatment program in February 2011 and provided dozens of clean drug
tests.” Her petition also stated that “as a result of [her] efforts the juvenile
court dismissed the dependency case” pertaining to her daughter S.E. and
reinstated Mother’s physical custody as to S.E. Mother explained further
that she sought modification in 2012 but “[r]ather than litigate the matter in
family court, the [F]ather filed a Petition to Terminate [her] Parental
Rights.” (The juvenile court, after a contested hearing in May 2013, denied
Father’s severance petition, finding that although Mother had abandoned
D.G., termination of her parental rights was not in the child’s best interests.)
The superior court dismissed Mother’s petition to modify without
prejudice for “lack of prosecution” in October 2013, but reopened the matter
and held an evidentiary hearing in September 2014.

¶5            Following the hearing, the court did not modify the existing
custody orders; however, it recognized that “the minute entry of the
dependency dismissal shows Mother’s drug testing is adequate to comply
with the [2010 modification] order,” and ordered Mother and D.G. to begin
reunification therapy. The court also ordered Mother to pay Father $124.08
per month in child support, effective October 1, 2014. The court later
ordered Father to pay Mother $500 for attorneys’ fees after determining that
his “position objecting to the specific reunification therapy provider
unnecessarily expanded the proceedings and was an unreasonable
position.” Since that order, there have been two failed attempts at
reunification—the first included multiple therapy sessions that started in
2014 and ended in July 2015, and the second occurred in 2016, which
consisted of the initial intake sessions and one therapy session with D.G.

¶6            In August 2016, the parties attempted mediation but it was
unsuccessful. In November 2016, Mother filed a new petition to modify
legal decision-making (custody), parenting time, and child support.
Mother asserted that a significant and continuing change of circumstances
had occurred since entry of the sole custody order in 2010, and sought sole,
or alternatively, joint legal decision-making and equal parenting time.
Mother alleged that Father failed to follow court orders regarding
therapeutic intervention with therapists Rosa Ruales and Annette Ruskin,
and that Father thwarted the reunification process. Father filed a response



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                          Decision of the Court

denying all allegations and asserting “there has been no change in
circumstance.”

¶7             The superior court held an evidentiary hearing, receiving
testimony from Mother, the child’s maternal great-grandmother, and
Father, as well as written reports from the reunification therapists. In a
detailed order, the court found “there has been no significant and
continuing change of circumstances that materially affect[s] the welfare of
the child.” The court also stated that “reunification of the child with Mother
is not likely to succeed, and that further attempts to reunify may not be in
the best interests of the child,” reasoning in part as follows:

       [T]herapeutic reunification has been impeded by Father
       because he has not meaningfully participated in encouraging
       [D.G.] to see his mother, but that therapeutic reunification has
       also been impeded by Mother’s unrealistic expectation that
       she can easily be reunited with a child that she neglected, if
       not abused, and has not seen for approximately 8 years.
       Under these circumstances, reunification of Mother [and
       D.G.] may not be possible due to no active fault of either
       parent, other than the circumstances that have been created
       overtime [sic].

¶8             The court determined that Father would continue to have sole
legal decision-making authority regarding D.G., with the condition that he
“give good faith consideration to the views of Mother, and put forth best
efforts to reach a consensus decision.” Addressing a parenting plan, the
court stated that Mother would have parenting time “in Father’s discretion”
and ordered Father to “encourage and facilitate a relationship between
[D.G.] and his half-sister, [S.E.], including arranging contact with [S.E.]
without Mother present.” The court denied both parties’ requests for
attorneys’ fees, finding that each party acted unreasonably in the litigation,
specifically during the attempts at reunification. Mother timely appealed.2




2      Although Mother indicates in her amended notice of appeal that she
is appealing both the “minute entry Order entered on May 4, 2017, and the
child support order entered on August 15, 2017,” she has not asserted any
challenge to the child support order.



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                           GONZALES v. VARGAS
                            Decision of the Court

                                 DISCUSSION

       A.      Modification

¶9              The Arizona Supreme Court and the “United States Supreme
Court have long recognized that the right to the control and custody of
one’s children is a fundamental one.” Michael J. v. Ariz. Dep’t. of Econ. Sec.,
196 Ariz. 246, 248, ¶ 11 (2000) (internal citations and quotations omitted).
Similarly, our legislature has stated that “[t]he liberty of parents to direct
the upbringing, education, health care and mental health of their children
is a fundamental right.” Ariz. Rev. Stat. (“A.R.S.”) § 1–601(A); see also A.R.S.
§ 1–602. This fundamental right does not evaporate simply because the
natural parents have not been model parents or have lost temporary
custody of their child to the state.” Michael J., 196 Ariz. at 248, ¶ 11 (internal
citations and quotations omitted). “[T]he court shall not restrict a parent’s
parenting time rights unless it finds that the parenting time would
endanger seriously the child’s physical, mental, moral or emotional health.”
A.R.S. § 25-411(J). “The outlines of that right are made clear under Arizona
public policy and statutes, which direct that a child’s best interest includes
‘substantial, frequent, meaningful and continuing parenting time with both
parents,’ . . . which protect that right absent exceptional circumstances.”
Baker v. Meyer, 237 Ariz. 112, 114, ¶ 6 (App. 2015) (quoting A.R.S. § 25–
103(B), (C)); see A.R.S. § 25–411(J).

¶10            To change an existing custody order, the superior court must
determine there “has been a material change in circumstances affecting the
welfare of the child.”3 Canty v. Canty, 178 Ariz. 443, 448 (App. 1994). Only
if the superior court finds there has been a material change in circumstances
does it then proceed to analyze best interests. See A.R.S. § 25-411(L) (“The
court shall deny the motion [to modify] unless it finds that adequate cause
for hearing the motion is established by the pleadings . . . .”); Christopher K.
v. Markaa S., 233 Ariz. 297, 300, ¶ 15 (App. 2013) (“If the court finds a . . .
[material] change in circumstances, it must then determine whether a
change in custody would be in the child’s best interests.”).

¶11          The superior court has broad discretion to determine whether
such a change has occurred, and its decision will not be reversed absent an


3      The Legislature amended Title 25 in 2012 and changed the term
“custody” to “legal decision-making and parenting time.” 2012 Ariz. Sess.
Laws, ch. 309, §§ 4, 5 (2nd Reg. Sess.); see also Baker, 237 Ariz. at 114 n.2, ¶ 7.
Because this proceeding spans both versions of the statute, unless otherwise
noted, “custody” refers to both legal decision-making and parenting time.


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                         GONZALES v. VARGAS
                          Decision of the Court

abuse of discretion. Pridgeon v. Superior Court (LaMarca), 134 Ariz. 177, 179
(1982). The court “abuses its discretion when it makes an error of law in
reaching a discretionary conclusion or ‘when the record, viewed in the light
most favorable to upholding the trial court’s decision, is devoid of
competent evidence to support it.’” Savord v. Morton, 235 Ariz. 256, 259, ¶10
(App. 2014) (quoting Mahar v. Acuna, 230 Ariz. 530, 534, ¶14 (App. 2012)).
As the party seeking to modify custody, Mother had the burden of proving
a material change in circumstances. Pridgeon, 134 Ariz. at 181.

¶12            The superior court found there had been no material changes
in circumstances affecting the welfare of the child and explained its findings
in part as follows:

       Mother continues to be alienated from the child due to a
       multitude of circumstances. The circumstances include the
       removal of the child from Mother, and Mother’s continuing
       failure to remedy the circumstances leading to the removal;
       Mother’s abandonment of the child for a period of years; and
       Father’s failure to encourage the child to participate with
       Mother in reunification.

We conclude the court erred in making that determination. Although the
ruling includes analysis of the A.R.S. § 25-403 best interests factors, the
court focused primarily on the failed reunification efforts and not on the
significant changes that have occurred in Mother’s life since 2010, when the
last custody order was entered, in determining whether a material change
in circumstances affecting the welfare of the child has occurred. See Davis
v. Davis, 78 Ariz. 174, 176 (1954) (holding modification of custody orders
requires “cogent reasons” “constitut[ing] facts or conditions unknown at
the time of the original [order], or occurring subsequent to the [order]”);
Hendricks v. Mortensen, 153 Ariz. 241, 243 (App. 1987) (holding Arizona case
law requires a showing of changed circumstances materially affecting the
welfare of the child).

¶13           At the time of the 2010 custody order, Mother was abusing
methamphetamine and lived with her children in a hazardous
environment, which led to their removal. Since then, and contrary to the
finding that Mother had failed to remedy the circumstances leading to
removal, the evidence is uncontradicted that she has maintained sobriety,
obtained full-time employment, has reliable housing, and is successfully
parenting her daughter S.E. The record shows Mother made repeated
requests for modifications to the 2010 custody order since 2012. To the
extent the court found there was no material change of circumstances based


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                         GONZALES v. VARGAS
                          Decision of the Court

on Father’s failure to encourage the child to participate in reunification,
Mother cannot control that circumstance.

¶14           The failed reunification efforts in this case should not be
viewed in a vacuum, see id. at 243-44, particularly when the superior court
has acknowledged that Mother is not solely responsible for the failed
efforts. Instead, “the court must initially determine whether a change of
circumstances has occurred since the last custody order”—in this case, the
2010 order. Pridgeon, 134 Ariz. at 179. Further, “when a new motion for
change of custody is made alleging that a new, previously unconsidered
changed circumstance exists, the court should consider the new
circumstance and prior circumstances,” id. at 180, particularly when no
prior modification has been made. On this record, after considering the
new circumstance (failed reunification efforts) and prior circumstances
(Mother’s stabilized lifestyle), it is evident that a material change in
circumstances affecting the welfare of the child has occurred since the
imposition of the 2010 custody order.

¶15           Given that Mother has shown a material change of
circumstances, we turn to the superior court’s parenting time and decision-
making orders. As the court aptly recognized, this is a “very difficult case.”
The court properly recognized that Father impeded therapeutic
reunification by failing to “meaningfully participate[] in encouraging [D.G.]
to see his Mother.” The court also found that Father “is not equipped to
meaningfully assist in the [reunification] process” and that “Father’s
testimony and demeanor indicate that the reunification process has been
largely beyond his ability.” Addressing Mother’s involvement, the court
found that she also impeded therapeutic reunification by having
“unrealistic expectation[s] that she can easily be reunited with a child that
she neglected. . . and she ha[d] not seen for approximately 8 years. The
court noted that “Mother is more focused on her need to have a relationship
with [D.G.] than on [his] needs and psychological well-being.”

¶16           Notwithstanding these concerns, the record lacks sufficient
evidence that parenting time with Mother would endanger D.G. No one
involved, other than the child, has taken a position that Mother should not
be involved in his life—the best interests attorney advocated for it, and
Father stated he hoped reunification would “work out.” A child’s wishes
are only one factor, and are not dispositive of his best interests. J.A.R. v.
Superior Court (E.C.G.), 179 Ariz. 267, 274 (App. 1994). The superior court
therefore erred in denying Mother parenting time on the basis it “would
endanger the child’s physical, mental, moral or emotional health because
the child refuses to have any contact with Mother, and forcing the child to


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                          GONZALES v. VARGAS
                           Decision of the Court

have contact with Mother could cause severe emotional distress to the
child.” Cf. Desiree S. v. Dep’t of Child Safety, 235 Ariz. 532, 534–35, ¶¶ 11-13
(App. 2014) (holding, in the context of termination of parental rights, an
eleven-year-old’s “subjective belief” that Mother could not keep him safe,
and child’s refusal to participate in family counseling, without more, could
not “be the sole basis to determine as a matter of law that Mother will be
unable to parent him in the near future”).

¶17            The court also erred in permitting Mother parenting time only
in Father’s sole discretion and in suggesting Father help facilitate visits
between D.G. and S.E. without Mother being present.4 This parenting time
plan does not facilitate “substantial, frequent, meaningful and continuing
parenting time.” A.R.S. § 25-103(B). No evidence was presented that
therapeutic efforts had completely failed or that additional efforts would be
futile. Instead, there was ample evidence that all parties, with the exception
of D.G., were interested and willing to continue with reunification efforts.

¶18           Finally, in addressing sole legal-decision making authority,
the court acted within its discretion in directing Father to consider Mother’s
views, and to strive to reach a consensus. See Nicaise v. Sundaram, 1 CA-CV
17-0069, 2018 WL 1101654, at *4 n.3, ¶ 19 (Ariz. App. Mar. 1, 2018) (“When the
court awards sole legal-decision-making authority, it similarly may require
that the parties attempt to agree in good faith before the parent with
authority makes a decision—and a failure to act in good faith under such
an order could eventually lead the court to revisit the grant of sole authority
to a particular parent.”). The court also stated that if a decision “involves
medical or schooling issues,” and if the parents decide to “seek input from
treating physicians or educators,” then both parents “shall be provided
with such input.” What is lacking in the court’s ruling is any provision that
allows Mother access to such information, which would necessarily include
access to D.G.’s school and medical records. Without that information, she
will not have a reasonable basis upon which to share her views with Father.

¶19          Based on the foregoing, we vacate the court’s legal decision-
making and parenting time orders and remand for reconsideration of
Mother’s petition. On remand, the court should enter orders targeted to
achieve compliance with A.R.S. § 25-103(B), including additional therapy,
supervised visits between Mother and D.G., and visits with Mother that
include reunification of D.G. with S.E, as well as orders ensuring Mother

4     Because S.E. is not a party to this case, the superior court does not
have authority over S.E.; therefore, the court lacks the authority to limit
Mother’s presence in matters involving S.E.


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                         GONZALES v. VARGAS
                          Decision of the Court

has reasonable access to information about D.G. to give her a meaningful
opportunity to provide input to Father about decisions he makes relating
to D.G.

      B.     Attorneys’ Fees

¶20           Mother also argues the superior court erred in not awarding
her attorneys’ fees after “Father had taken unreasonable positions by
obstructing and refusing to cooperate in the reunification process.” A court
may award reasonable attorneys’ fees “after considering the financial
resources of both parties and the reasonableness of the positions each party
has taken throughout the proceedings.” A.R.S. § 25–324(A). We review an
award of attorneys’ fees for an abuse of discretion. MacMillan v. Schwartz,
226 Ariz. 584, 592, ¶ 36 (App. 2011).

¶21           Here, the superior court declined to award either party
attorneys’ fees after finding that “there is no substantial disparity of
financial resources between the parties,” and “that both parents acted
unreasonably in the litigation,” and in particular, “during the attempts at
reunification.” Because the record supports the court’s decision, we find no
abuse of discretion.

¶22           Both parties request attorneys’ fees on appeal pursuant to
A.R.S. § 25-324. In our discretion, we deny both requests. Father also
requests attorneys’ fees under A.R.S. § 12-349(A)(1), asserting that Mother’s
appeal was taken without substantial justification. We deny Father’s
request. As the successful party on appeal, Mother is entitled to taxable
costs upon her compliance with ARCAP 21.




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                        GONZALES v. VARGAS
                         Decision of the Court

                              CONCLUSION

¶23           For the foregoing reasons, we affirm the superior court’s
denial of Mother’s request for attorneys’ fees but we vacate the remaining
portions of the court’s order and remand for further proceedings consistent
with this decision.




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




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