Gutierrez v. Cruz ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
HEATHER GUTIERREZ,
Petitioner/Appellee,
v.
CYNTHIA ANN CRUZ,
Respondent/Appellant.
No. 1 CA-CV 21-0121 FC
FILED 9-28-2021
Appeal from the Superior Court in Maricopa County
No. FN2020-097755
The Honorable Paula A. Williams, Judge Pro Tempore
AFFIRMED
APPEARANCES
Cynthia Ann Cruz, Superior
Respondent/Appellant
Heather Gutierrez
Petitioner/Appellee
GUTIERREZ v. CRUZ
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge David B. Gass joined.
M O R S E, Judge:
¶1 Cynthia Cruz appeals from the continuance of an order of
protection granted on behalf of Heather Gutierrez, O.G., and P.G.1 For the
following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Cruz is the mother of Gutierrez, who is the mother of O.G.
("the Child"). Gutierrez petitioned the superior court for an order of
protection against Cruz. According to the petition, Cruz exhibited
"obsessive behavior towards" the Child after the Child reported being
inappropriately touched by a teenage boy. Cruz suspected that the Child
had also been sexually abused by Gutierrez's boyfriend ("the Boyfriend").
¶3 At 6 a.m. one morning, Cruz and Gutierrez's ex-boyfriend
("Ex-Boyfriend") confronted Gutierrez at her home. When no one came to
the door, Cruz repeatedly rang Gutierrez's doorbell and demanded she be
let inside. On another occasion, Cruz repeatedly banged on the front door
of Gutierrez's sister, who had custody of the Child at the time, and
demanded to know if the Child was in the home.
¶4 Against Gutierrez's wishes, Cruz attempted to pick up the
Child from school and had to be stopped by a teacher. Cruz then "yelled
obscenities from across the school yard to [the Boyfriend] as he was walking
to his car with the [C]hild . . . ." In a group chat which included Gutierrez,
Cruz sent text messages saying she "hate[d] [Gutierrez]" and that Gutierrez
"is dead to me[.]" The superior court granted a temporary order of
1 Gutierrez did not file an answering brief. In the exercise of our
discretion, we decline to treat her failure to do so as a confession of
reversible error. See Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 4 n.3 (App.
2014) (noting that this Court may, but is not required, to treat the failure to
file an answering brief as a confession of error).
2
GUTIERREZ v. CRUZ
Decision of the Court
protection barring Cruz from making any contact with Gutierrez, the Child,
and P.G.
¶5 At Cruz's request, the superior court held a contested hearing.
Gutierrez testified that she did not want to speak to her Ex-Boyfriend, and
Cruz testified that Gutierrez previously had the Ex-Boyfriend escorted out
of the building when he had shown up at Gutierrez's workplace. Cruz
admitted bringing Gutierrez's Ex-Boyfriend to Gutierrez's home at 6 a.m.,
repeatedly ringing the doorbell, and trying to reach the Child at Gutierrez's
sister's home. Cruz also admitted texting Gutierrez that she "hated
[Gutierrez]" and that Gutierrez was "dead to [Cruz.]" Cruz's husband
testified that he and Cruz went to the Child's school to "get a look" at the
Child.
¶6 After considering the evidence, the superior court found "by
a preponderance of the evidence that [Cruz] ha[d] committed an act of
domestic violence against [Gutierrez] within the last year or may commit
an act of domestic violence in the future" and ordered the continuance of
the order of protection.
¶7 Cruz timely appealed. We have jurisdiction under A.R.S. §
12-2101(A)(1), (5)(b).
DISCUSSION
¶8 We review an order of protection for an abuse of discretion,
Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014), and review
evidentiary rulings for a clear abuse of discretion and substantial prejudice,
Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506 (1996). A court must issue
an order of protection if it finds there is reasonable cause to believe that the
defendant "may commit an act of domestic violence" or "has committed an
act of domestic violence within the past year . . . ." A.R.S. § 13-3602(E).
¶9 On appeal, Cruz does not challenge the sufficiency of the
evidence for the order of protection. Instead, she asserts the hearing on the
order of protection "was very unprofessional and bias[ed] towards"
Gutierrez, and Cruz "was not allowed to present backstory regarding [her]
case." But Cruz does not cite to examples of bias or unprofessionalism
during the hearing and does not explain what "backstory" she was not
allowed to present. Because Cruz fails to provide record citation, argument,
or authority, she has waived these claims. See Ritchie v. Krasner, 221 Ariz.
288, 305, ¶ 62 (App. 2009) (noting that arguments may be waived by failure
to provide citation to authorities and the record).
3
GUTIERREZ v. CRUZ
Decision of the Court
CONCLUSION
¶10 Accordingly, we affirm the superior court's order.
AMY M. WOOD • Clerk of the Court
FILED: AA
4