Johnson v. Boatley ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
JERMAINE B. JOHNSON, Petitioner/Appellee,
v.
TWYLA BOATLEY, Respondent/Appellant.
No. 1 CA-CV 15-0252 FC
FILED 1-19-2016
Appeal from the Superior Court in Maricopa County
No. FC2014-005635
The Honorable Michael J. Herrod, Judge
AFFIRMED
COUNSEL
Twyla Boatley, Phoenix
Respondent/Appellant
Alongi & Donovan Law PLLC, Tempe
By Ashley A. Donovan
Counsel for Petitioner/Appellee
JOHNSON v. BOATLEY
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.
W I N T H R O P, Judge:
¶1 Twyla Boatley (“Mother”) appeals the family court’s
judgment regarding the petition by Jermaine Johnson (“Father”) to
establish legal decision-making authority and parenting time of their
biological child J.B. Mother generally alleges the superior court erred
during her dependency proceedings before the juvenile court and the
custody proceedings before the family court, and asks us to reverse the
superior court’s judgment and order a new trial.1 For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Shortly after birth, J.B. was placed with M.G., identified by
Mother as J.B.’s father. At or about the same time, the Department of Child
Safety (“DCS”) filed a dependency petition regarding J.B. as to Mother.2
Father’s mother (“Grandmother”) learned Father might be J.B.’s father and
contacted DCS. Not long after the initial placement, M.G. returned J.B. to
DCS, refusing to take further care of him. After Father’s paternity of J.B.
was established, DCS placed J.B.’s physical custody with Grandmother.
Father petitioned the juvenile court to grant him sole legal decision-making
1 Mother also asks us to appoint her an attorney for this appeal and
the family court proceedings below. We deny this request because there is
no right to appointment of counsel in civil proceedings in Arizona. Powell
v. State, 19 Ariz. App. 377, 378, 507 P.2d 989, 990 (1973); cf. Ariz. Const. art.
2 § 24 (mandating the rights to counsel to the accused in criminal
proceedings); Ariz. R. Crim. P. 6.1(a) (codifying such rights in criminal
proceedings); Ariz. Rev. Stat. (“A.R.S.”) § 8-221 (codifying the rights to
counsel in juvenile proceedings). Note we cite the current version of all
applicable statutes unless revisions material to this decision have occurred
since the events in question.
2 It is unclear whether Mother placed, or asked DCS to place, J.B. with
M.G.
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JOHNSON v. BOATLEY
Decision of the Court
authority and no parenting time to Mother. DCS then moved to dismiss the
dependency regarding J.B. as the case plan was changed to reunification
with Father. The juvenile court granted the motion, temporarily placed J.B.
with Father, and transferred jurisdiction of the matter to the family court.
After an evidentiary hearing, the family court granted Father sole legal
decision-making authority of J.B. and granted Mother therapeutic
supervised visitation with the child every two weeks for up to two hours at
Mother’s expense. Mother timely appealed the family court’s order.
ANALYSIS
¶3 We have appellate jurisdiction over the family court’s order
pursuant to the Arizona Constitution, Article 6, Section 9; A.R.S. §§ 12-
120.21(A)(1), -2101(A)(1). To the extent Mother challenges any orders from
the juvenile court, her appeal is untimely, and we cannot consider it. See
Ariz. R.P. Juv. Ct. 104(A) (requiring a notice of appeal be filed no later than
fifteen days after the filing of the final order); Pima Cty., Juv. Action No. B-
9385, 138 Ariz. 291, 294–95, 674 P.2d 845, 848–49 (1983) (dismissing an
appeal due to an untimely notice of appeal).
¶4 Mother did not cite to the record in her brief or provide any
transcript of the hearing before the family court. An appellant must cite to
the record in the statement of facts or in the argument section of the opening
brief. ARCAP 13(a)(4) & 13(a)(7). Failure to do so may constitute waiver
as to the issues raised in the brief. Delmastro & Eells v. Taco Bell Corp., 228
Ariz. 134, 137 n.2, ¶ 7, 263 P.3d 683, 686 n.2 (App. 2011). In the exercise of
our discretion, however, we will consider the merits of her arguments
relative to the family court’s decisions. See id. (stating the appellate court
may entertain deficient briefs on merits). However, to the extent Mother
contends that the court’s order is not supported by the evidence presented,
Mother had the responsibility to order and provide this court with the
transcript of any evidentiary hearing. ARCAP 11(c); State ex rel. Dep’t of
Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16, 66 P.3d 70, 73 (App. 2003). In the
absence of such transcript, we will presume that the testimony and other
evidence discussed in the missing transcript supports the court’s factual
findings and conclusions of law. Burton, 205 Ariz. at 30, ¶ 16, 66 P.3d at 73.
I. Evidence
¶5 As a preliminary matter, Mother contends the family court
erred in excluding some video evidence of a visitation session with J.B. on
the basis of untimely disclosure, claiming Father’s attorney signed a receipt
acknowledging timely receipt of all exhibits. We review the court’s rulings
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JOHNSON v. BOATLEY
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on admissibility of evidence for abuse of discretion. State v. Salamanca, 233
Ariz. 292, 294–95, ¶ 8, 311 P.3d 1105, 1107–08 (App. 2013). A party who fails
to timely disclose information may not use the information as evidence
unless the failure is harmless, except by leave of court for good cause
shown. Ariz. R. Fam. Law P. 65(C)(1).3 “Good cause” should be “broadly
interpreted to require an examination of the grounds for granting relief,
rather than limiting the inquiry only to the specific reasons why evidence
was not timely disclosed.” Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 287, 896
P.2d 254, 257 (1995).4 In his brief, Father advises that none of Mother’s
exhibits were timely disclosed, but that the court admitted all of those
exhibits she physically provided to counsel on the day of the hearing. The
subject video evidence, however, could not be displayed, so counsel and
the court could not determine what relevant evidence, if any, was contained
on the video. Additionally, Mother did not provide a transcript of the
evidentiary hearing before the family court and, as previously noted, we
presume the missing transcript supports the family court’s ruling excluding
the video evidence.5 See Burton, 205 Ariz. at 30, ¶ 16, 66 P.3d at 73. On this
record, the family court did not abuse its discretion in excluding the
evidence.
II. Legal Decision-Making Authority and Parenting Time
¶6 The family court must “determine legal decision-making and
parenting time . . . in accordance with the best interest[] of the child.” A.R.S.
§ 25-403(A); accord Hays v. Gama, 205 Ariz. 99, 102, ¶ 18, 67 P.3d 695, 698
3 Rule 65 is the family law equivalent of Arizona Rule of Civil
Procedure 37; as such, we look to the case law interpreting and applying
Rule 37 in evaluating the family court’s application of Rule 65. Ariz. R. Fam.
Law P. 65, comm. cmt; see Ariz. R. Fam. Law P. 1, comm. cmt (allowing, in
applying the family law rules, to follow case law interpreting Arizona Rules
of Civil Procedure wherever the language in the family law rules is
substantially the same as the language in the Rules of Civil Procedure).
4 The part of Ariz. R. Civ. P. 26.1(c) interpreted by the Allstate court
was deleted and replaced with an amendment to Ariz. R. Civ. P. 37(c)(1) to
codify the holding in Allstate. Marquez v. Ortega, 231 Ariz. 437, 442–43, ¶ 21,
296 P.3d 100, 105–06 (App. 2013).
5 In a separate section of her brief, Mother argues the family court
erred in denying the introduction of her mental health records. We again
presume the missing transcript would also support this ruling.
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JOHNSON v. BOATLEY
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(2003). The court must also make specific findings on the record about the
factors and reasons for which the court’s decision is in the best interest of
the child. A.R.S. § 25-403(B); In re Marriage of Diezsi, 201 Ariz. 524, 525–26,
¶ 4, 38 P.3d 1189, 1191 (App. 2002). We review the family court’s order on
child custody and parenting time for abuse of discretion. Armer v. Armer,
105 Ariz. 284, 289, 463 P.2d 818, 823 (1970); Owen v. Blackhawk, 206 Ariz. 418,
420, ¶ 7, 79 P.3d 667, 669 (App. 2003). We will uphold the family court’s
factual findings unless clearly erroneous. Ariz. R. Fam. Law P. 82(A), Berger
v. Berger (In re Marriage of Berger), 140 Ariz. 156, 161, 680 P.2d 1217, 1222
(App. 1983). Here, the family court made the detailed findings required by
A.R.S. §§ 25-403.01(B), -403(A), -403.03, -403.04, and -403.05(A). On this
record, we do not find the findings clearly erroneous.6
¶7 Mother implies that the family court erred in granting Father
sole legal decision-making authority because Father is a registered sex
offender. The family court may not award a registered sex offender with
sole or joint legal decision-making authority of, or unsupervised parenting
time with, a child unless it finds “there is no significant risk to the child and
states its reasons in writing.” A.R.S. § 25-403.05(A). Here, the family court’s
order notes that Father committed the offense at seventeen; that he
completed his sentence for the offense; that DCS had investigated the
offense and had determined it was not a bar to Father obtaining custody of
J.B.; and that the juvenile court placed J.B. with Father with express
knowledge of the conviction. Although the family court did not in its order
explicitly find Father poses no significant risk to J.B., we again presume the
missing transcript would support the court had made this finding. See
Burton, 205 Ariz. at 30, ¶ 16, 66 P.3d at 73. On this record, the family court
did not abuse its discretion in this regard.
¶8 “A parent who is not granted sole or joint legal decision-
making is entitled to reasonable parenting time to ensure that the minor
child has substantial, frequent, meaningful and continuing contact with the
parent unless the court finds, after a hearing, that parenting time would
endanger the child’s physical, mental, moral or emotional health.” A.R.S.
§ 25-403.01(D). Similarly, before restricting a parent to supervised
visitation, the court must find, “in the absence of the order[,] the child’s
6 In making the findings on Mother’s illegal substance use, the family
court’s written order did not specify whether her use was within twelve
months before the filing of petition for legal decision-making authority and
parenting time as required by A.R.S. § 25-403.04(A); however, we presume
the missing transcript supports the family court making the required
finding. See Burton, 205 Ariz. at 30, ¶ 16, 66 P.3d at 73.
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JOHNSON v. BOATLEY
Decision of the Court
physical health would be endangered or the child’s emotional development
would be significantly impaired, and . . . the best interest[] of the child
would be served.” A.R.S. § 25-410(B). Here, the family court expressly
found that Mother had mental health issues and often reacted with violence
in attempting to resolve conflicts with adults, all of which caused the court
to be concerned about J.B.’s physical, mental, and emotional health, and to
structure Mother’s parenting time accordingly. In her brief, Mother claims
she poses no danger to the child, has sought mental health treatment, and
has in her possession recommendation letters from counselors in this
regard. She further asserts the mental health records from DCS contain
biased information or false criminal and mental health records; however, as
with other factual assertions in her brief, Mother did not cite to any portion
of the record to support her assertions. On this record, reasonable evidence
supports the court’s findings. Mother was diagnosed with mental health
disorders but has refused to take prescribed medication. Since an early age,
Mother has resorted to violence in dealing with conflicts. Although there
is no direct evidence of child abuse or neglect as to J.B., the record shows
DCS removed Mother’s other four children because she threatened to kill
them. All of this evidence supports the court’s concern about J.B.’s potential
safety and health were Mother allowed unsupervised visitation.
¶9 Accordingly, the family court did not err in granting Father
sole legal decision-making authority of J.B. and in granting Mother
therapeutic supervised visitation with J.B. Father seeks an award of
attorneys’ fees incurred relative to the appeal pursuant to § 25-324. In our
discretion, we deny that request, but award Father his costs on appeal,
subject to compliance with ARCAP Rule 21.
CONCLUSION
¶10 The family court’s judgment is affirmed.
:ama
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