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Cruz v. Garcia

Court of Appeals of Arizona, Second Division

June 17, 2016

Laura Cruz, Appellant
v.
Robert Garcia Jr., Appellee.

         Appeal from the Superior Court in Pima County No. SP20060213 The Honorable Ken Sanders, Judge Pro Tempore

          Solyn & Lieberman, PLLC, Tucson By Melissa Solyn and Scott Lieberman Counsel for Appellant

          Thrush Law Group, Tucson By Brian K. Kimminau Counsel for Appellee

          Judge Vásquez and Chief Judge Eckerstrom concurred.

          OPINION

          MILLER, Judge

         ¶1 Laura Cruz appeals the family court's order suspending her parenting time with her minor child, L.G., and granting L.G.'s father, Robert Garcia Jr., permanent legal decision-making authority for L.G. She argues the court abused its discretion when it made a final ruling on legal decision-making and parenting time without adequate notice and an evidentiary hearing on the issues. Because we agree Cruz was denied due process, we vacate the order and remand the case for such a hearing.

         Factual and Procedural Background

         ¶2 L.G. was born in August 2001. The case began as a special paternity action brought by the state of Arizona to establish child support obligations. In the 2006 judgment, legal custody was placed with Cruz under A.R.S. § 25-803 because L.G. had resided with Cruz for the greater part of the prior six months. In 2007, the family court granted Garcia six hours of parenting time every other weekend and in 2008 the court increased Garcia's parenting time to one overnight visit every other weekend.

         ¶3 In May 2013, Garcia filed a petition requesting joint legal decision-making and equal parenting time. Later that month, the Pima County Sheriffs Department executed a search warrant on Cruz's home and seized cocaine.[1] Garcia amended his petition to modify custody in June 2013, requesting sole legal decision-making authority and suspension of Cruz's parenting time.

         ¶4The family court set a hearing on the issues of legal decision-making and parenting time for February 2014. But at a settlement conference in January 2014, pursuant to Ariz. R. Fam. Law P. 69, the court accepted the parties' stipulation granting temporary sole legal decision-making to Garcia and making him L.G.'s primary residential parent.

         ¶5In January 2015, Cruz filed a petition to vacate the Rule 69 agreement and restore her legal decision-making and unsupervised parenting time. She expressly requested an evidentiary hearing. The family court construed her petition as a "notification to the Court and parties that this case shall proceed to Court Trial, " setting a trial date in August 2015.

         ¶6On June 2, 2015, Garcia also petitioned the family court to modify one aspect of the Rule 69 agreement. He alleged that Cruz's most recent supervised parenting time with L.G. had deteriorated so severely that the staff of the supervising organization had called the police. Arguing Cruz's supervised parenting time had become "extremely detrimental to the emotional health of the minor child, " Garcia requested its immediate halt. Cruz answered, arguing that Garcia was controlling L.G. and had deliberately alienated her from Cruz, and attaching an unsworn letter from the therapeutic interventionist (Dr. Pellegrin) who had been supervising Cruz's parenting time. In the letter Dr. Pellegrin wrote:

In . . . 20 years doing work with high conflict families, I have never seen a child so averse to even considering a gradual re­unification with a parent [as L.G. is with Cruz]. . . . I am extremely concerned about the well-being of this child. I am not able to continue with my work in this case since I believe the situation is far too serious for weekly outpatient sessions to have any impact and, in fact, am concerned that this approach is making things worse.
I am recommending a full custody evaluation in this case .... I believe that this must be done immediately since too much time has ...

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