Alupoaiei v. correa/alupoaiei ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
DANITA ALUPOAIEI, Petitioner/Appellee,
v.
TYLER CORREA, Respondent/Appellee.
__________________________________
OANA G. ALUPOAIEI, Third-Party/Appellant.
No. 1 CA-CV 20-0570 FC
FILED 11-23-2021
Appeal from the Superior Court in Maricopa County
No. FC2019-000755
The Honorable Michael Rassas, Judge
VACATED AND REMANDED
COUNSEL
Rebecca L. Owen PLLC, Phoenix
By Rebecca L. Owen
Counsel for Respondent/Appellee
Law Office of Florence M. Bruemmer PC, Anthem
By Florence M. Bruemmer
Counsel for Third-Party/Appellant
ALUPOAIEI v. CORREA/ALUPOAIEI
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.
F U R U Y A, Judge:
¶1 Oana Alupoaiei (”Grandmother”) challenges the superior
court’s ruling on her petitions for third-party legal decision-making
authority relating to her grandchild. Because the court erred in denying the
amended petition without a hearing, we vacate that ruling and remand for
the court to consider the merits of the amended petition for third-party legal
decision-making.
FACTS AND PROCEDURAL HISTORY 1
¶2 Danita Alupoaiei (“Mother”) and her child lived with
Grandmother in New York since the child’s birth in March 2016 until mid-
2017. A New York court awarded joint custody to Mother and Tyler Correa
(“Father”), who were not married. In July 2017, Mother and Father moved
with the child to North Carolina, where they lived together for nearly a
year.
¶3 In June 2018, Mother and the child moved to Arizona to live
with Grandmother. Mother registered the New York custody order in
Arizona. In early 2019, Mother petitioned to modify the New York joint
custody order (“2019 petition”). Mother sought sole legal decision-making
and primary residential parent designation because she and Father now
lived in different states, and Father, a servicemember, would soon be
stationed in Japan. Father opposed the petition. The court entered
temporary orders continuing joint legal decision-making, designating
Mother the primary residential parent, and awarding Father up to one week
of parenting time when he visited Arizona. Because Father was stationed
overseas, the court granted his unopposed motion to stay the final
1 Grandmother objects to Tyler Correa’s statement of facts because
they lack citations to the record and raise events that occurred after the
ruling on appeal. See ARCAP 13(a)(5), (b)(1). However, our factual
discussion is based on our own review of the record. See Sholes v. Fernando,
228 Ariz. 455, 457, ¶ 2, n.2 (App. 2011).
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ALUPOAIEI v. CORREA/ALUPOAIEI
Decision of the Court
modification hearing under the Servicemembers Civil Relief Act. See 50
U.S.C. §§ 3901–4043.
¶4 During the stay, Mother re-enlisted and was also stationed
overseas. Grandmother petitioned for third-party sole legal decision-
making authority under Arizona Revised Statutes (“A.R.S.”) § 25-409. The
court denied the petition without a hearing, finding it did not show that all
four elements in § 25-409(A) were true, “specifically § 25-409(A)(2).” A few
days later, Father returned to the United States and moved for expedited
temporary orders allowing him to bring the child to his temporary duty
station in New York. Father had been granted emergency leave and a
humanitarian transfer so he could take custody of the child.
¶5 While Father’s motion was pending, Grandmother amended
her petition for third-party legal decision-making. She again failed to serve
either parent or their attorneys. In response to Father’s attempt to take the
child with him to New York, Grandmother filed an emergency motion
without notice. She sought sole legal decision-making, physical custody,
and supervised parenting time for Father. The court issued a temporary
order granting Grandmother’s emergency motion.
¶6 The next day, Father filed an “expedited stipulation” signed
by both parents, in which Mother allowed Father to keep the child until her
overseas deployment ended. As a result, the day after the court had issued
the temporary order granting Grandmother sole legal decision-making and
physical custody, it issued an order temporarily granting Father physical
custody. The court later dismissed Grandmother’s emergency motion but
did not refer to the temporary order the court had previously issued in
response to that emergency motion. 2
¶7 The court later signed a final order (1) dismissing
Grandmother’s emergency motion and vacating the hearing on that motion,
(2) denying Grandmother’s petition and amended petition for third-party
legal decision-making, and (3) dismissing Father’s expedited motion for
2 In yet another order, the court set a status conference on
Mother’s 2019 petition to modify. It later stayed the status conference after
we stayed the appeal because of Mother’s overseas deployment, citing the
Servicemembers Civil Relief Act. Once we lifted the stay in May 2021, the
superior court held a status conference. Both parents and Grandmother
appeared, and, on Mother’s request, the court dismissed her 2019 petition
to modify parenting time, legal decision-making, and child support.
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Decision of the Court
temporary parenting time orders. Grandmother unsuccessfully moved for
reconsideration of the order denying her petitions for third-party legal
decision-making.
DISCUSSION
I. Appellate Jurisdiction Exists.
¶8 Father argues that we lack jurisdiction because the notice of
appeal is premature. Father asserts that because the petition for
grandparent visitation is pending in superior court, the appeal from the
denial of the third-party petition is premature. We disagree. The petition
for grandparent visitation filed under § 25-409(C) is a separate proceeding
from the petition for third-party legal decision-making filed under § 25-
409(A). Because the ruling on the § 25-409(A) petition was final, the appeal
is not premature. The notice of appeal was timely, and we have jurisdiction
pursuant A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
II. The Summary Denial Eliminated the Need to Serve the Petition.
¶9 Father contends that Grandmother did not serve the third-
party § 25-409(A) petitions or otherwise provide notice to either parent.
Although this was not addressed in her appellate briefs, Grandmother
explained in her response to Father’s motion to strike that she did not serve
the third-party petitions because the court summarily denied them. As a
result, the court never issued an order to appear to serve with the petition.
¶10 Under Arizona Rules of Family Law Procedure 27(d), a third-
party petition filed under § 25-409(A) must be served with an order to
appear no later than twenty days before the hearing. See also A.R.S. § 25-
409(D) (requiring the petitioner to serve the parents notice and a copy of a
petition filed under § 25-409(A)). But when the court summarily denies the
petition without a hearing and before it issues the order to appear, there is
no need for the petitioner to serve that petition and order to appear. Thus,
the lack of service did not prejudice Father.
III. The Amended Petition Sufficiently Alleged the Elements in § 25-
409(A).
¶11 Grandmother argues the court erred by denying the petition
and amended petition for third-party legal decision-making without a
hearing. We review the court’s interpretation and application of A.R.S. § 25-
409 de novo. Chapman v. Hopkins, 243 Ariz. 236, 240, ¶ 14 (App. 2017).
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Decision of the Court
¶12 A person other than a parent can petition for legal decision-
making by filing a petition under § 25-409(A). See Id. at ¶ 15; A.R.S. § 25-
402(B)(2). The court must summarily deny the petition unless it finds that
the petition establishes all four statutory elements listed in A.R.S. § 25-
409(A). 3 See Chapman, 243 Ariz. at 240, ¶ 16. But to withstand summary
disposition, a petition for third-party legal decision-making under § 25-
409(A) need only allege that the four statutory elements exist, not prove
them, and the facts alleged in the petition need not be “uncontroverted.”
Chapman, 243 Ariz. at 242, ¶¶ 21 n.2, 24.
¶13 Here, Father contends Grandmother failed to show she stood
in loco parentis or that it would be significantly detrimental for the child to
be placed in the care of either parent. See A.R.S. § 25-409(A)(1)–(2).
Furthermore, the court determined Grandmother’s petition and amended
petition did not sufficiently comply with § 25-409(A)(2).
¶14 To adequately plead her in loco parentis status, Grandmother
had to sufficiently allege the child treated her “as a parent” and she “has
formed a meaningful parental relationship with [the] child for a substantial
period of time.” A.R.S. § 25-401(1). Like the grandparents in Chapman, who
stood in loco parentis, Grandmother alleged she provided daily care and
lived with the child for most of his life. See Chapman, 243 Ariz. at 238, 242,
¶¶ 4–6, 22; see also Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45, 48–49,
¶¶ 5–11 (App. 2013) (stating that foster parents stood in loco parentis
because they cared for the children for twenty months while the mother
struggled with substance abuse and the father was incarcerated or in
treatment programs).
¶15 Grandmother alleged that she lived with the child all but nine
months of his life. She alleged that she provided for the child’s daily
financial, medical, emotional, and physical needs and set forth examples.
3 The court must summarily deny a third-party petition for legal
decision-making unless the pleading shows all four statutory elements are
true: (1) the petitioner stands in loco parentis; (2) “[i]t would be significantly
detrimental to the child to remain or be placed in the care of either legal
parent who wishes to keep or acquire legal decision-making[;]” (3) it has
been one year since the last legal decision-making or parenting time order,
unless there is reason to believe the “present environment may seriously
endanger the child’s physical, mental, moral or emotional health[;]” and (4)
one of the child’s parents is deceased or the parents are not married to each
other or a petition for dissolution or separation is pending when the petition
is filed. A.R.S. § 25-409(A).
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At the time of the amended petition, both parents were stationed overseas,
and Grandmother was caring for the child. In May 2018, when Father left
Mother and the child in North Carolina, Mother and the child moved in
with Grandmother in Arizona. Grandmother also alleged that even when
Mother lived with her, Grandmother primarily cared for the child and
provided for his daily needs.
¶16 Father contends that he and Mother are fit parents, so
Grandmother cannot stand in loco parentis. Father also focuses on the
superior rights of a parent. To allege in loco parentis standing, a third-party
need not show they have a parental relationship that replaces that of the
legal parents or that their relationship is superior to the legal parents. Riepe
v. Riepe, 208 Ariz. 90, 93, ¶ 10 (App. 2004); A.R.S. § 25-401(1). Grandmother’s
amended petition sufficiently alleged that she stood in loco parentis to the
child.
¶17 Next, Grandmother alleged that it would be significantly
detrimental to allow the child to remain in the care of either parent. She
specifically alleged that when the child lived with the parents they left
loaded firearms within his reach, did not properly care for his diaper rash,
and he suffered “bumps and bruises.” She also asserted that the parents did
not provide adequate food, proper food for the child’s allergies, regular
financial support, or medical insurance. Grandmother alleged that it would
be significantly detrimental to send the child to live with parents who
frequently move, sometimes overseas, depending on their military
assignments. Finally, she alleged that it would be significantly detrimental
to remove the child from her stable home and care given their strong bond
and the child’s request that Grandmother promise not to “‘give him away’
again.”
¶18 Father disputes Grandmother’s allegations and questions her
credibility. Many facts Father cites are irrelevant because they occurred
after the court denied the amended petition. But more importantly, “[§] 25-
409(A) does not require that the initial petition contain uncontroverted
evidence of significant detriment for the court to consider a third party’s
petition for legal decision-making.” Chapman, 243 Ariz. at 242, ¶ 24. The
Chapman court found that the pleading requirement for a petition under §
25-409(A) was like that in Arizona Rule of Civil Procedure 12(b)(6), and the
court is required to assume the truth of all well-pled factual allegations in
the petition. Id. Applying that standard, Grandmother’s amended petition
sufficiently alleged that placing the child in the parents’ care would be
significantly detrimental. Therefore, we vacate the summary denial of the
amended petition and remand for reconsideration on the merits.
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Decision of the Court
¶19 Given this resolution, we need not address Grandmother’s
arguments that the summary denial deprived her of due process, that the
parents’ stipulation was invalid, or that the stay was improper. The
stipulation was signed after the amended petition for third-party legal
decision-making and is not relevant in deciding whether the petition
contained sufficient allegations. Further, because the stay was lifted,
arguments relating to it are moot.
ATTORNEYS’ FEES AND COSTS ON APPEAL
¶20 We deny Father’s request for attorneys’ fees on appeal under
§ 25-324 because we lack any information about the parties’ financial
resources. Grandmother is entitled to her costs on appeal upon compliance
with ARCAP 21. See A.R.S. § 12-342.
CONCLUSION
¶21 We vacate the court’s order summarily denying
Grandmother’s amended petition for third-party legal decision-making
and remand for the court to consider the merits of Grandmother’s amended
third-party petition for legal decision-making.
AMY M. WOOD • Clerk of the Court
FILED: AA
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