Bondy v. Maricopa ( 2017 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 the Matter of Guardianship of:
    DANIEL LEVI BONDY, an Adult.
    SUSAN BONDY, Petitioner/Appellant,
    v.
    MARICOPA COUNTY PUBLIC FIDUCIARY, Respondent/Appellee,
    DANIEL LEVI BONDY, Appellee.
    No. 1 CA-CV 16-0676
    FILED 10-24-2017
    Appeal from the Superior Court in Maricopa County
    No. PB2012-050606
    The Honorable Lisa Ann Vandenberg, Judge Pro Tempore
    AFFIRMED
    APPEARANCES
    Susan Bondy, Phoenix
    Petitioner/Appellant
    Maricopa County Attorney's Office Civil Services Division, Phoenix
    By M. Colleen Connor, Edward W. France, III
    Counsel for Respondent/Appellee
    MEMORANDUM DECISION
    Presiding Judge Michael J. Brown delivered the decision of the Court, in
    which Judge Jennifer B. Campbell and Judge Margaret H. Downie joined.
    B R O W N, Judge:
    ¶1           Susan Bondy ("Mother") appeals the superior court's order
    denying her petition to be appointed successor guardian for her adult son,
    Daniel Bondy, and to remove the Maricopa County Public Fiduciary
    ("Public Fiduciary") as his guardian. Finding no abuse of discretion, we
    affirm.
    FACTS AND PROCEDURAL BACKGROUND
    ¶2             Due to complex medical conditions, physical disabilities, and
    cognitive impairment, Daniel is unable to care for himself. Mother filed a
    petition to be appointed Daniel's permanent guardian and conservator just
    before his eighteenth birthday in July 2012. Shortly after Mother filed her
    petition, Arizona Child Protective Services filed a dependency action in the
    juvenile court that was eventually dismissed on July 11, 2012. In the
    dependency action, Daniel was represented by attorney John R. Worth,
    who asked the court to appoint a guardian ad litem ("GAL") to determine
    whether Mother would be an appropriate guardian.
    ¶3           The superior court conducted a two-day trial in December
    2012, at which several witnesses testified. The court denied Mother's
    petition and appointed the Public Fiduciary as Daniel's permanent
    guardian. Mother has since filed several petitions to remove the Public
    Fiduciary and have herself appointed Daniel's guardian.
    ¶4           As a result of one of Mother's petitions, the parties
    participated in a settlement conference in June 2014. Following the
    settlement conference, Daniel's adult sister, Patti Blackwell, was appointed
    his temporary guardian. The superior court, however, vacated the
    temporary guardianship and reappointed the Public Fiduciary following
    an emergency hearing in October 2014.
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    ¶5           Mother has also filed several requests for visitation. The
    Public Fiduciary responded that a protocol for supervised visitation is
    necessary and has been successful in the past. The superior court denied
    Mother's last visitation request, finding there were legitimate reasons to
    impose visitation parameters and Mother could visit Daniel within those
    parameters, as she had done so previously.
    ¶6           Upon receipt of Mother's most recent petition to remove the
    Public Fiduciary and appoint herself as guardian, the superior court
    ordered another investigation. The GAL interviewed Daniel, his group
    home staff, the prior GAL, the Public Fiduciary, Mother, and Daniel's
    attorney, and concluded it was in Daniel's best interest to remain in his
    current placement and for the Public Fiduciary to continue as guardian.
    The court investigator interviewed the same people and visited Daniel in
    his group home, and found Daniel was well-cared for in his group home.
    The investigator also noted that Mother agreed the Public Fiduciary was
    doing a good job as guardian. On October 3, 2016, after hearing from
    Mother and the Public Fiduciary, the court denied Mother's petition,
    finding no basis to remove the Public Fiduciary.
    ¶7            Mother then filed a pleading titled "Appeal Decision Comm.
    Lisa Vandenberg Denied Motion for Guardianship by His Mother Oct. 3,
    2016." The superior court determined this pleading did not constitute a
    notice of appeal and treated it as a motion for reconsideration. In a detailed
    order, the court affirmed the denial of Mother's petition to remove the
    Public Fiduciary and substitute herself as guardian.
    ¶8            Despite the superior court's treatment of Mother's "appeal,"
    this court opened the current appeal. The appeal was stayed to allow the
    entry of an order containing the requisite certification of finality pursuant
    to Arizona Rule of Civil Procedure ("Rule") 54(c). The superior court issued
    a signed order that included the Rule 54(c) certification. Thus, the appeal
    was reinstated.
    DISCUSSION
    ¶9             Proceedings to substitute and appoint a successor guardian
    are governed by A.R.S. § 14–5307. "The court's discretion to remove a
    guardian is not to be exercised arbitrarily or capriciously but is a legal
    discretion to be exercised with due regard to the legal rights of all
    concerned." In re Cosden's Estate, 
    12 Ariz. App. 88
    , 89 (1970). Pursuant to
    A.R.S. § 14–5307(A), "the court shall substitute a guardian and appoint a
    successor if it is in the best interests of the ward." Thus, Mother has the
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    Decision of the Court
    burden of showing that the superior court abused its discretion in
    concluding it was in Daniel's best interests for the Public Fiduciary to
    continue as his guardian. In re Guardianship of Kelly, 
    184 Ariz. 514
    , 518 (App.
    1996).
    ¶10            Mother's appellate briefs and addendum do not comply with
    ARCAP 13(a), which requires citation to the record and legal authorities as
    well as a statement of issues, among other things. Mother also refers to
    matters that were not before the superior court at the October 2016 hearing.
    We do not consider matters that were not in evidence before the superior
    court. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 
    165 Ariz. 1
    , 4 (App.
    1990). In addition, the record does not include a transcript from that
    hearing. It is Mother's duty as the appellant to ensure the record on appeal
    includes the transcripts necessary for consideration of the issues on appeal.
    See ARCAP 11(c)(1); State ex rel. Dep't of Econ. Sec. v. Burton, 
    205 Ariz. 27
    , 30,
    ¶ 16 (App. 2003). When such transcripts are not included, "we assume the
    missing portions of the record would support the trial court's findings and
    conclusions." Burton, 
    205 Ariz. at 30, ¶ 16
    .
    ¶11            Based on the record on appeal, we find no abuse of discretion.
    Mother provided this court with information regarding several areas in
    which she finds fault with Daniel's care. Mother made similar allegations
    in her petition to the superior court. However, it is unclear whether any of
    this information was properly presented to the court. In any event, the
    court ordered an interview and investigation into Daniel's current
    placement in response to Mother's latest petition. As discussed above, the
    reports presented to the court based on those investigations established that
    Daniel was being appropriately cared for and, based on the case history, a
    placement with Mother was not in Daniel's best interests. Thus, the
    evidence supports the court's decision.
    ¶12           The evidence also supports the implicit conclusion that good
    cause existed to appoint the Public Fiduciary over Mother despite her
    statutory priority as a parent. See A.R.S. § 14–5311(F)1 (authorizing a court
    to pass over a person with a higher priority for "good cause"). The Public
    Fiduciary contends Mother waived this argument by failing to request
    specific good cause findings from the court within ten days as required by
    § 14–5311(G) (formerly § 14–5311(E)). However, Mother's "appeal"
    1      In 2016, § 14–5311 was amended; subsection (D) was renumbered
    and is now found in subsection (F). See 2011 Ariz. Sess. Laws, Ch. 354, § 12
    (2d Reg. Sess.).
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    Decision of the Court
    pleading was filed within ten days and generally asserts that the trial court
    had no basis for removing Daniel from his family. In ruling on this
    pleading, the court provided a detailed explanation for its decision to
    appoint the Public Fiduciary over Mother. Accordingly, the court satisfied
    § 14–5311(G).
    ¶13            Mother alleged many violations of the Arizona Code of
    Judicial Administration § 7–201 (general requirements) and A.R.S. sections
    14–5312 (duties of guardians), 36–551.01 (rights of persons with
    developmental disabilities), and 13–3623 (abuse of vulnerable adults).
    Many of these allegations were contained in Mother's petition to remove
    the Public Fiduciary, her requests to visit Daniel, have Daniel speak to the
    trial judge, and return Daniel to her care filed in June 2016. As noted above,
    in response to these pleadings, the superior court reappointed the GAL "to
    investigate whether the current Guardian is appropriate and whether the
    current placement is in the ward's best interest." The court also ordered the
    Court Investigator to conduct a home visit. These investigations concluded
    Daniel's placement was appropriate and he was well-cared for. There are
    no citations to the record supporting Mother's allegations, and the record
    on appeal does not include a transcript of the relevant hearing.
    Accordingly, we presume the evidence supports the court's ruling and find
    no abuse of discretion. See Burton, 
    205 Ariz. 27
    .2
    CONCLUSION
    ¶14          No one involved in this case doubts Mother's love for Daniel
    and that she wants to ensure he receives the best care, but the record
    indicates Daniel is receiving appropriate care in his current placement and
    the Public Fiduciary is acting in Daniel's best interests. The record also
    shows that, at this time, Mother is not physically or emotionally able to
    2       Mother also raised issues with the orders denying her previous
    visitation and guardianship petitions; however, those prior orders are not
    properly raised in this appeal.
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    BONDY v. MARICOPA
    Decision of the Court
    provide the level of daily care Daniel requires on a long-term basis. The
    superior court did not abuse its discretion, and therefore we affirm the
    court's order denying Mother's petition to remove the Public Fiduciary and
    be appointed guardian.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    6