Salazar v. Guevara ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
TIARA SALAZAR, Plaintiff/Appellee,
v.
NIGUEL ANAYA GUEVARA, Defendant/Appellant.
No. 1 CA-CV 18-0443 FC
FILED 3-28-2019
Appeal from the Superior Court in Maricopa County
No. FC2018-093927
The Honorable Margaret Benny, Judge Pro Tempore
AFFIRMED AS MODIFIED
COUNSEL
Tyler Allen Law Firm, Phoenix
By Shannon Peters
Counsel for Defendant/Appellant
SALAZAR v. GUEVARA
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.
P E R K I N S, Judge:
¶1 Niguel Guevara (“Father”) appeals the trial court’s order of
protection entered against him on behalf of Tiara Salazar (“Mother”) and
their two minor children, E.G. (born in 2006) and S.G. (born in 2014). For
the following reasons, we modify the order to exclude S.G. and otherwise
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts and evidence in the record in the light most
favorable to upholding the trial court’s decision. Mahar v. Acuna, 230 Ariz.
530, 532, ¶ 2 (App. 2012). Mother and Father are the parents of E.G. and S.G.
The parents share parenting time with the children. In June 2018, Father
was arrested on the suspicion he punched the older child, E.G., in the face
with a closed fist. Father eventually was released without charges being
filed. Mother then petitioned the superior court for an order of protection,
requesting that the order cover her, E.G., and S.G., at her home and the
children’s schools. The court granted Mother’s petition ex parte and Father
requested a hearing.
¶3 At the hearing, Mother testified she learned about the
punching incident from the Department of Child Safety (“DCS”). Mother
further testified that on the weekend in question, she was waiting for Father
to return the children after his parenting time and, when she texted Father’s
mother, rather than reveal he had been arrested, Father’s mother stated
Father was in the hospital. Mother testified the officer who had arrested
Father later told her that E.G. told police that Father had punched him in
the face. Mother also testified she believed E.G. lied to DCS about the
punching incident when DCS caseworkers interviewed him. Finally,
Mother testified the younger child, S.G., was present at the time of the
incident, but was unable to report what happened because of his young age.
¶4 To rebut Mother’s testimony, Father and his girlfriend,
Angelica Luna, testified and Father offered several exhibits into evidence.
Luna testified there was a fight between Father and Father’s brother,
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Andrew, on the evening in question, but that Father never hit E.G.
According to Luna, Father became upset with E.G. after E.G. attempted to
leave the house with Andrew’s son. Father then sent E.G. to bed. At some
point, Father and Andrew started fighting while Luna was inside. Though
Luna could not say why the police arrived, she testified that the police came
in and ordered everyone outside. In front of the house, Luna found E.G
sitting in his aunt's van, holding an ice pack and crying because “he was . .
. scared.” Luna said she did not know who gave E.G. the ice pack.
¶5 Father testified he and Andrew began fighting in the living
room after an argument in front of several house guests, including Luna.
According to Father, Andrew and his family left the house after the fight
but then Andrew’s wife began “banging on the door” to try to re-enter the
house. Father testified he instructed his brother-in-law, Bryan, not to let
Andrew’s family back inside because several items in the house had been
broken, including a TV. Father added that while Andrew’s wife was still
“banging on the door,” he and everyone else in the house went to sleep,
only to be awoken later by the police knocking on the door. Father did not
deny that E.G. was holding an ice pack at some point during the evening
and could not explain why E.G. had the ice pack. Father also offered in
evidence a copy of an “Aftercare Plan” from DCS that stated “cases will be
closed / unsubstantiated,” apparently in reference to the investigation DCS
initiated after it learned of his arrest.
¶6 The court entered a minute entry in which it found by a
preponderance of the evidence that Father had committed an act of
domestic violence and that good cause existed to continue the ex parte order
of protection; it accordingly issued an order to the same effect. Father now
appeals.
DISCUSSION
¶7 Father argues the court abused its discretion by failing to
make findings and conclusions of law on the record, continuing the order
of protection despite insufficient evidence, and including S.G. on the order
of protection. Mother did not file an answering brief. Though we could treat
her failure to file an answering brief as a confession of error, in our
discretion, we decline to do so. Thompson v. Thompson, 217 Ariz. 524, 526, ¶
6, n.1 (App. 2008); see also Arizona Rule of Civil Appellate Procedure
15(a)(2).
¶8 On the filing of a verified petition pursuant to Arizona
Revised Statutes (“A.R.S.”) section 13-3602(A), the court shall issue an order
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of protection when it finds reasonable cause to believe the defendant may
commit an act of domestic violence or has committed such an act within the
past year. A.R.S. § 13-3602(E). “Domestic violence” is defined by statute and
includes assault as defined in section 13-1203. A.R.S. § 13-3601(A). A person
commits assault, as relevant here, by “[i]ntentionally, knowingly or
recklessly causing any physical injury to another person” or by
“[k]nowingly touching another person with the intent to injure.” A.R.S. §
13-1203(A).
¶9 We review an order of protection for abuse of discretion.
Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014). “A trial 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 the decision.” Id. (internal quotation marks and citation omitted).
¶10 After hearing the testimony, the court found on the record
that there were “sufficient grounds” to continue the order of protection. In
its subsequent minute entry, the court found “that [Father] has committed
an act of domestic violence against Plaintiff within the last year or may
commit an act of domestic violence in the future.” Father argues the trial
court erred by merely stating that it had found “sufficient grounds” to
continue the order of protection. Instead, Father contends the court was
required to expressly find Father had committed an act of domestic violence
because Arizona Rule of Protective Order Procedure 38(h) requires a court
to “state the basis for continuing” a protective order. The only incident
alleged in Mother’s petition, and the only incident at issue during the
hearing, was that Father punched E.G. in the face. By finding on the record
that sufficient grounds existed to continue the order, the court implicitly
found that, by a preponderance of the evidence, Father had hit E.G.
¶11 Father next argues there was insufficient evidence to support
the court’s decision to uphold the order of protection. At the hearing, the
parties presented conflicting evidence, with Mother testifying that she had
heard reports that Father had hit E.G. in the face and Father and Luna
testifying Father had not done so. Mother also presented an arrest citation
from the Chandler Police Department stating Father had been arrested for,
inter alia, assaulting an unspecified minor on the night in question. Father
presented documents showing that he had not yet been charged with the
offenses he had been arrested for, including assault on a minor, and a
photograph of an “Aftercare Plan” from DCS noting that “cases will be
closed / unsubstantiated.” The photographed page from DCS did not
indicate which child it was related to, what the “cases” were, or whether
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they involved the alleged assault on E.G. However, the DCS Aftercare Plan
was dated within 10 days of Father’s arrest and noted “co-parenting
relationships are non-functional.” Father and Luna offered conflicting
versions of the night in question, including where the alleged fight between
Father and Andrew took place and when the police arrived. Finally, neither
Father nor Luna could explain why E.G. was holding an ice pack while the
police were present or where E.G. had gotten the ice pack. Because the trial
court “is in the best position to judge credibility of witnesses and resolve
conflicting evidence,” we generally defer to the trial court’s findings.
Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 17 (App. 2012) (citation omitted).
Viewing the evidence in the light most favorable to upholding the trial
court’s ruling, as we must, the court did not abuse its discretion in
continuing the order of protection as to Mother and E.G. See Mahar, 230
Ariz. at 532, ¶ 2.
¶12 Father additionally argues S.G., the parties’ younger child,
should not be included on the order of protection. “A judicial officer cannot
include a defendant’s child in a protective order unless there is reasonable
cause to believe: (A) physical harm may result or has resulted to the child,
or (B) the alleged acts of domestic violence involved the child.” Ariz. R.
Protect. Ord. P. 5(b)(1). Moreover, before granting a protective order
prohibiting contact between a parent and child, “the judicial officer must
consider: (1) whether the child may be harmed if the defendant is permitted
to maintain contact with the child, and (2) whether the child may be
endangered if there is contact outside the presence of the plaintiff.” Ariz. R.
Protect. Ord. P. 35(b). Nothing in the record indicates the trial court
considered Father’s relationship with S.G., and there is no evidence or
allegation that Father committed an act of domestic violence against S.G.
The trial court abused its discretion in continuing the order of protection as
to S.G. in the absence of evidence regarding harm or potential future harm
to S.G. Accordingly, we vacate the order of protection as to S.G. only.
CONCLUSION
¶13 For the foregoing reasons we modify the order of protection
to remove S.G. and otherwise affirm the order.
¶14 On appeal, Father requests his costs and attorney’s fees. In our
discretion we decline to award Father his attorney’s fees. Father has not
been charged a filing fee for filing this appeal. Because Father partially
prevailed, however, we award him his remaining taxable costs, if any, on
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compliance with Arizona Rule of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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