Gann v. Gann ( 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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
    GINA L. GANN, Petitioner/Appellant,
    v.
    TARYN L. GANN, et al., Respondents/Appellees.
    No. 1 CA-CV 19-0039 FC
    FILED 10-10-2019
    Appeal from the Superior Court in Maricopa County
    No. FC 2018-004038
    The Honorable Justin Beresky, Judge
    REVERSED AND REMANDED
    APPEARANCES
    Gina L. Gann, Apache Junction
    Petitioner/Appellant
    GANN v. GANN, et al.
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
    in which Judge Michael J. Brown and Judge Lawrence F. Winthrop joined.
    C A M P B E L L, Judge:
    ¶1            Gina L. Gann (“Grandmother”) appeals the superior court’s
    ruling denying her petition for visitation with her three grandchildren. In
    considering a grandparent’s petition for visitation with their grandchildren,
    a superior court must give “special weight” to a fit parent’s determination
    of whether visitation is in the grandchildren’s best interest according to the
    principles set forth in McGovern v. McGovern, 
    201 Ariz. 172
    , 177–78, ¶ 18
    (App. 2001). Because the superior court applied an interpretation of “special
    weight” that is no longer the law in Arizona, we reverse and remand.
    BACKGROUND
    ¶2           Grandmother has three minor grandchildren by her
    daughter, Taryn L. Gann (“Mother”). The two older children’s father has
    no parental rights. The youngest child’s father is Rocky Hernandez,
    Mother’s fiancé.
    ¶3           For significant periods of time from 2012 to 2016, Mother and
    the older two children lived with Grandmother, and Grandmother was
    involved in the children’s daily lives. In the fall of 2016, Mother and the
    children moved in with Hernandez. The youngest child was born in
    February 2017.
    ¶4            In 2018, Grandmother petitioned the superior court for,
    among other things, (1) in loco parentis legal decision-making and physical
    custody of the two older children, and (2) reasonable third-party visitation
    for all three children under A.R.S. § 25-409. Grandmother later, in her
    pre-trial statement, requested visitation every other weekend and on
    vacations.
    ¶5            Mother and Hernandez moved to dismiss Grandmother’s
    petition claiming that she “has a history of irrational behavior and becomes
    threatening and aggressive towards Mother and [Hernandez] when she
    does not get her way.” Following an evidentiary hearing, the superior court
    denied Grandmother both legal decision-making and visitation.
    2
    GANN v. GANN, et al.
    Decision of the Court
    ¶6            After an unsuccessful motion for new trial, Grandmother
    appealed.
    DISCUSSION
    ¶7             On appeal, Grandmother challenges the visitation ruling
    only. This Court will not disturb the superior court’s ruling on visitation
    absent an abuse of discretion. See McGovern, 201 Ariz. at 175, ¶ 6. An abuse
    of discretion occurs when the court “commits an error of law in the process
    of reaching a discretionary conclusion.” In re Marriage of Williams, 
    219 Ariz. 546
    , 548, ¶ 8 (App. 2008). Determining the appropriate burden of proof is a
    question of law, which we review de novo. See Am. Pepper Supply Co. v. Fed.
    Ins. Co., 
    208 Ariz. 307
    , 309, ¶ 8 (2004).
    ¶8          Section 25-409 authorizes a grandparent to petition the
    superior court for visitation with their grandchildren. See § 25-409(C).
    Under subsection (C), the court may only grant visitation if the grandparent
    can demonstrate one of four conditions:
    1. One of the legal parents is deceased or has been missing at
    least three months. . . .
    2. The child was born out of wedlock and the child’s legal
    parents are not married to each other at the time the petition
    is filed.
    3. For grandparent or great-grandparent visitation, the
    marriage of the parents of the child has been dissolved for at
    least three months.
    4. For in loco parentis visitation, a proceeding for dissolution of
    marriage or for legal separation of the legal parents is pending
    at the time the petition is filed.
    Id. Here, Grandmother is eligible for visitation under the second condition
    for the youngest grandchild and under the third condition for the older two
    grandchildren.
    ¶9             In addition to finding that one or more of the conditions is
    satisfied, the superior court must also determine that visitation is in the
    grandchildren’s best interests. See id. In making this determination, the
    court must consider all relevant factors including:
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    GANN v. GANN, et al.
    Decision of the Court
    1. The historical relationship, if any, between the child and the
    person seeking visitation.
    2. The motivation of the requesting party seeking visitation.
    3. The motivation of the person objecting to visitation.
    4. The quantity of visitation time requested and the potential
    adverse impact that visitation will have on the child’s
    customary activities.
    § 25-409(E).1
    ¶10          The superior court’s ruling reflects that it considered and
    made findings under § 25-409(E). The court found, among other things, that
    Grandmother significantly bonded with her older two grandchildren
    during the time they lived with her, but the relationship had since become
    “sporadic.” The court also found Grandmother’s motivation in seeking
    visitation was to “maintain a significant relationship with the children.”
    The court acknowledged that Mother’s objection to visitation was based on
    Grandmother’s failure to “follow parenting requests.” It also noted that
    Mother believes Grandmother tries to manipulate the children, and that
    Grandmother made a false or misleading report against Mother to the
    Department of Child Safety. The court found Mother willing to allow
    Grandmother to see the grandchildren at family gatherings and concluded
    that if Grandmother were to disregard parental requests regarding diet and
    bedtime during visitation, “it could have an adverse impact on the
    children.”
    ¶11          There is evidence in the record to support the superior court’s
    findings, and we have no reason to question them. However, we must
    examine how the court evaluated the evidence.
    ¶12            In making a best-interests finding, § 25-409(E) requires the
    superior court to give “special weight” to the parents’ opinion on visitation.
    The statute itself does not define “special weight.” See § 25-409. In 2016, this
    Court interpreted the phrase “special weight” in Goodman v. Forsen, 
    239 Ariz. 110
    , 113–14, ¶ 13 (App. 2016):
    Assuming parental fitness, the analysis required under
    § 25–409 is not a typical balancing test in which the court’s
    1There is a fifth condition that applies only if one or both parents are
    deceased. See § 25-409(E)(5).
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    GANN v. GANN, et al.
    Decision of the Court
    own determination of best interests is controlling—we
    interpret “special weight” to mean that the parents’
    determination is controlling unless a parental decision clearly
    and substantially impairs a child’s best interests. Even if arbitrary,
    the parents’ determination is the primary factor in the
    analysis, and the burden is on the person seeking visitation to
    demonstrate that denial of visitation would clearly and
    substantially impair the child’s interests.
    (emphases added). Two years later, the Arizona Supreme Court expressly
    rejected Goodman’s interpretation of special weight. See In re Marriage of
    Friedman & Roels, 
    244 Ariz. 111
    , 116, ¶ 19 (2018) (disavowing Goodman
    “insofar as it purports to subject a nonparent to a heightened burden of
    proof”).
    ¶13            Although the superior court’s decision in this case was
    entered five months after the Friedman decision, the court quoted from
    Goodman and expressly applied its “special weight” interpretation.
    Specifically, the court concluded that “Grandmother has not proven by a
    preponderance of the evidence that Mother’s decision to deny
    Grandmother’s visitation clearly and substantially impairs the Children’s best
    interests.” (Emphasis added.)
    ¶14            Because the superior court applied a standard that is no
    longer the law in Arizona, we must vacate and remand to allow the court
    to redetermine whether Grandmother’s requested visitation is in the
    children’s best interests. In doing so, the court should apply the holding
    from Friedman where the Arizona Supreme Court explained that it would
    interpret the phrase “special weight” in line with the United States Supreme
    Court’s decision in Troxel v. Granville, 
    530 U.S. 57
     (2000), and this Court’s
    decision in McGovern. See Friedman, 244 Ariz. at 116, ¶ 20.
    ¶15           In Troxel, the court started from the presumption that “fit
    parents act in the best interests of their children.” 530 U.S. at 68. Relying on
    that presumption, the court introduced the notion of “special weight”:
    In an ideal world, parents might always seek to cultivate the
    bonds between grandparents and their grandchildren.
    Needless to say, however, our world is far from perfect, and
    in it the decision whether such an intergenerational
    relationship would be beneficial in any specific case is for the
    parent to make in the first instance. And, if a fit parent’s
    decision of the kind at issue here becomes subject to judicial
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    GANN v. GANN, et al.
    Decision of the Court
    review, the court must accord at least some special weight to the
    parent’s own determination.
    Id. at 70 (emphasis added).
    ¶16           In McGovern, this Court distilled two principles from Troxel.
    See McGovern, 201 Ariz. at 177, ¶ 17. First, there is a presumption that a fit
    parent acts in his or her child’s best interest and a grandparent seeking
    visitation has the burden of rebutting that presumption. See id. Second, the
    superior court must consider and give some “special weight” to a fit
    parent’s determination of whether visitation is in the child’s best interest
    and give “significant weight” to a parent’s voluntary agreement to some
    visitation. See id. at 177-78, ¶ 18. The principles set forth in McGovern
    establish a lesser burden of proof on Grandmother than that required by
    Goodman and applied by the superior court in this case. See Goodman, 239
    Ariz. at 113–14, ¶ 13. On remand, the court should apply the principles
    articulated in McGovern to the evidence presented and require the parties
    to present updated information for the court’s consideration.
    CONCLUSION
    ¶17            For the foregoing reasons, we reverse and remand to the
    superior court for a determination of whether Grandmother’s visitation is
    in the best interests of the grandchildren, applying the standard set forth in
    Troxel and McGovern.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    6
    

Document Info

Docket Number: 1 CA-CV 19-0039-FC

Filed Date: 10/10/2019

Precedential Status: Non-Precedential

Modified Date: 10/10/2019