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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                          SAMANTHA M., Appellant,

                                         v.

            DEPARTMENT OF CHILD SAFETY, M.G., Appellees.

                              No. 1 CA-JV 16-0266
                                FILED 1-19-2017


            Appeal from the Superior Court in Maricopa County
                              No. JD528640
                   The Honorable James P. Beene, Judge

                                   AFFIRMED


                                    COUNSEL

Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant

Arizona Attorney General’s Office, Mesa
By Ashlee N. Hoffman
Counsel for Appellee Department of Child Safety
                        SAMANTHA M. v. DCS, M.G.
                           Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Samuel E. Vederman1
joined.


C A T T A N I, Judge:

¶1             Samantha M. (“Mother”) appeals the superior court’s ruling
restricting visitation with her daughter, M.G., to supervised telephonic
visits. For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           M.G. was born in June 2013 to Mother and Matthew G.
(“Father”). In May 2015, the court found M.G. dependent as to Mother and
           2

Father and ordered family reunification services, including visitation.
Although the original case plan was family reunification, M.G.’s case plan
has since been changed to severance and adoption. She has been placed
with her paternal aunt since the initiation of dependency proceedings.

¶3             After M.G. was found dependent, Mother was allowed to
have twice-weekly supervised in-person visits with M.G. These visits
continued for one month, until Mother was incarcerated for burglary and
trafficking in stolen property in June 2015. Mother had video visits with
M.G. while in jail, and in-person visits during a brief release in November
2015. According to the Department of Child Safety (“DCS”) case manager
assigned to the family, M.G. did well during visits before and during
Mother’s incarceration, but became “withdrawn” after the in-person visits
while Mother was released.

¶4             Since November 2015, Mother has been incarcerated at the
state prison in Perryville; Father is currently incarcerated at the state prison
in Tucson. Both will be incarcerated until at least 2019. After Mother was


1      The Honorable Samuel E. Vederman, Judge of the Arizona Superior
Court, has been authorized to sit in this matter pursuant to Article VI,
Section 3 of the Arizona Constitution.

2      Father is not a party to this appeal.


                                       2
                       SAMANTHA M. v. DCS, M.G.
                          Decision of the Court

incarcerated, M.G.’s maternal grandmother facilitated periodic telephonic
visits with M.G. without the knowledge of M.G.’s case manager. According
to the case manager, M.G. has behaved erratically since Mother has been in
prison, particularly after visits with her grandmother.

¶5            In April 2016, Mother filed a motion to permit visitation. DCS
opposed, citing a psychologist’s recommendation that Mother and Father
not have visitation time with M.G. After an evidentiary hearing, the
superior court granted Mother and Father weekly supervised telephonic
visits with M.G. The court imposed this limitation on visitation because of
M.G.’s recent negative behavior, the psychologist’s opinion that visitation
would not be beneficial, and the potential consequences of transporting
M.G. between her placement and two different prisons. Mother timely filed
this appeal, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) § 8-235(A).3

                               DISCUSSION

¶6             Mother argues that the superior court’s order infringes on her
fundamental right to associate with her child.             A parent has a
constitutionally-protected right to “the companionship, care, custody, and
management of his or her children.” Stanley v. Illinois, 405 U.S. 645, 651
(1972). This right extends to incarcerated parents, who “retain the right of
reasonable visitation with their children.” Michael M. v. Ariz. Dep’t of Econ.
Sec., 202 Ariz. 198, 200, ¶ 8 (App. 2002). However, a court may impose
restrictions or limitations if visitation will “endanger seriously the child’s
physical, mental, moral or emotional health.” Maricopa Cty. Juv. Action No.
JD-5312, 178 Ariz. 372, 376 (App. 1994); see also Michael M., 202 Ariz. at 201,
¶ 11.

¶7             The superior court has broad discretion in determining
whether to permit or limit visitation. JD-5312, 178 Ariz. at 375. We defer to
the superior court’s determination regarding the weight and credibility of
evidence unless it is clearly erroneous, and will uphold the order restricting
visitation if any evidence supports it. Id. at 375–76.

¶8            Although the superior court did not make a specific finding
that in-person visitation would endanger M.G., such a finding is implicit in
the court’s decision. Cf. Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45,
52, ¶ 34 (App. 2013). And the superior court had sufficient evidence to


3     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                       3
                       SAMANTHA M. v. DCS, M.G.
                          Decision of the Court

conclude that in-person visitation with Mother would endanger M.G.’s
well-being. M.G.’s case worker testified that M.G.’s behavior had declined
since Mother’s incarceration, and that these behavioral problems were
apparently exacerbated by her intermittent telephonic interactions with
Mother. Furthermore, a psychologist opined that contact between M.G.
and her parents “could be detrimental.” And the court reasonably
concluded that M.G. could be further harmed if she were frequently
transported between two prison facilities, especially given that she had
shown signs of confusion about the permanency of her situation.

¶9              Mother argues that Michael M., 202 Ariz. at 201, ¶¶ 11–13,
requires a more specific evidentiary basis for restricting a parent’s visitation
rights. But in Michael M., this court overturned a termination of visitation
rights where the record was “devoid of any evidence . . . that allowing [the
father] to visit with [his daughter] at the jail would be harmful to the child.”
Id. at ¶ 13 (emphasis added). In contrast, the superior court’s decision here
was supported by specific evidence of M.G.’s behavioral changes following
in-person and telephonic visits with Mother and M.G.’s increased
confusion in the months after Mother’s incarceration at Perryville. See JD-
5312, 178 Ariz. at 376–77 (upholding termination of visitation rights where
the superior court found, among other considerations, that visitation was
“confusing and disruptive for the children”).

                               CONCLUSION

¶10           For the foregoing reasons, we affirm the superior court’s
order limiting Mother to weekly supervised telephonic visits with M.G.




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




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