from the Superior Court in Pima County No. SP20060213 The
Honorable Ken Sanders, Judge Pro Tempore
& Lieberman, PLLC, Tucson By Melissa Solyn and Scott
Lieberman Counsel for Appellant
Law Group, Tucson By Brian K. Kimminau Counsel for Appellee
Vásquez and Chief Judge Eckerstrom concurred.
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.
and Procedural Background
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.
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. Garcia amended
his petition to modify custody in June 2013, requesting sole
legal decision-making authority and suspension of Cruz's
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.
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.
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 ...