Selow v. Smith ( 2019 )


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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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 re the Matter of:
    KYLE VAN SELOW, Petitioner/Appellee,
    v.
    TIFFANY SMITH, Respondent/Appellant.
    No. 1 CA-CV 18-0599 FC
    FILED 8-22-2019
    Appeal from the Superior Court in Maricopa County
    No. FC2017-071716
    The Honorable Lisa Ann VandenBerg, Judge
    AFFIRMED
    COUNSEL
    Tiffany Smith, Maricopa
    Respondent/Appellant
    SELOW v. SMITH
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Kenton D. Jones delivered the decision of the Court, in
    which Vice Chief Judge Kent E. Cattani and Judge Maria Elena Cruz joined.
    J O N E S, Judge:
    ¶1           Tiffany Smith (Mother) appeals the family court’s order
    regarding legal decision-making and parenting time of two minor children
    (the Children). For the following reasons, we affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2            In April 2017, Kyle Van Selow (Father) petitioned the family
    court to establish legal decision-making, parenting time, and child support
    for the Children, then ages two and four. After the parties stipulated to
    paternity, the court directed both parents to participate in random drug
    testing and appointed a best-interests attorney. In May, the court entered
    temporary orders awarding the parties joint legal decision-making and
    requiring Mother’s parenting time be supervised.
    ¶3            At trial in August 2018, Father presented evidence that he had
    tested clean for substances throughout the proceedings, completed a drug
    abuse assessment program, and was providing the Children with a safe
    stable home. Additionally, although several prior Department of Child
    Safety (DCS) investigations had been closed as unsubstantiated, a recent
    report that the Children were sexually abused while in Mother’s care was
    under investigation. Mother acknowledged she initially tested positive for
    methamphetamine and amphetamine but claimed she had attended
    substance abuse treatment and maintained sobriety since then. She did not
    submit any documentation to support this assertion and admitted she
    stopped testing altogether in August 2017.
    ¶4            After taking the matter under advisement, the family court
    found joint legal decision-making was not appropriate given Mother’s non-
    compliance with court orders to participate in drug testing, and her lack of
    stability and commitment to exercising her parenting time. The court
    entered an order awarding Father sole legal decision-making and
    continued supervised parenting time for Mother. Mother timely appealed,
    2
    SELOW v. SMITH
    Decision of the Court
    and we have jurisdiction pursuant to Arizona Revised Statutes §§ 12-
    120.21(A)(1) and -2101(A)(1).
    DISCUSSION
    ¶5             Mother argues the family court abused its discretion by
    failing to obtain and review documents from DCS and failing to consider
    Mother’s testimony that she had maintained sobriety and completed a drug
    and alcohol assessment.1 Ordinarily, we would review the introduction
    and evaluation of evidence for an abuse of discretion. John C. Lincoln Hosp.
    & Health Corp. v. Maricopa Cnty., 
    208 Ariz. 532
    , 543, ¶ 33 (App. 2004) (citing
    Yauch v. S. Pac. Transp. Co., 
    198 Ariz. 394
    , 399, ¶ 10 (App. 2000)). But,
    although Mother states that the DCS records Father submitted were
    incomplete and should have included reports evidencing her sobriety, she
    does not assert that she was prevented from proffering documents on her
    own or that the court rejected documents or evidence that she submitted.
    Moreover, the record and the court’s order reflect that the court received
    evidence regarding the DCS investigations as well as Mother’s testimony
    regarding her sobriety. To the extent the court believed the evidence was
    relevant and competent, we presume it was considered. See May v. Sexton,
    
    68 Ariz. 358
    , 360 (1949). Accordingly, Mother fails to prove any error.
    CONCLUSION
    ¶6            The family court’s orders are affirmed.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    1      Father did not file an answering brief. Although we could regard
    this failure as a confession of error, see ARCAP 15(a)(2); Thompson v.
    Thompson, 
    217 Ariz. 524
    , 526, ¶ 6 n.1 (App. 2008), in our discretion, we
    decline to do so, see Nydam v. Crawford, 
    181 Ariz. 101
    , 101 (App. 1994).
    3
    

Document Info

Docket Number: 1 CA-CV 18-0599-FC

Filed Date: 8/22/2019

Precedential Status: Non-Precedential

Modified Date: 8/22/2019