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Nicaise v. Sundaram

Court of Appeals of Arizona, First Division

March 1, 2018

ROBERT J. NICAISE, JR., Petitioner/Appellee,
v.
APARNA SUNDARAM, Respondent/Appellant.

         Appeal from the Superior Court in Maricopa County Nos. FC2014-094949 and FC2014-095056 (Consolidated) The Honorable Theodore Campagnolo, Judge

          Law Office of Karla L. Calahan, Scottsdale By Karla L. Calahan Counsel for Petitioner/Appellee

          Horne Slaton, PLLC, Scottsdale By Sandra Slaton, Kristin M. Roebuck Bethell Counsel for Respondent/Appellant

          Judge Peter B. Swann delivered the opinion of the court, in which Presiding Judge Paul J. McMurdie and Judge James B. Morse Jr. joined.

          OPINION

          SWANN, Judge

         ¶1 In this family-law appeal, we hold that decrees awarding joint legal decision-making with one parent having the final decision-making authority on certain issues must be interpreted as awarding sole legal decision-making on those issues. We further hold that while the court may base an award of legal decision-making on the decisions the parents are likely to make, it may not substitute its judgment for that of the parents and make parenting decisions for them when they are unable to agree.

         ¶2 In this case, the evidence established that the parents were completely unable to agree on medical, dental, mental-health, and therapy issues concerning their child. While the record contained evidence of the father's shortcomings, the evidence also established that the mother had repeatedly failed to secure treatments for the child, and the court therefore did not abuse its discretion by awarding sole legal decision-making to the father on those issues.

         FACTS AND PROCEDURAL HISTORY

         ¶3 In September 2010, a child ("Child") was born to Aparna Sundaram ("Mother"), an osteopathic doctor, and Robert J. Nicaise, Jr. ("Father"), a medical doctor. Father became a stay-at-home parent in 2012 after his medical license was revoked for misconduct. Father came to believe that Child was developmentally delayed, but Mother did not agree.

         ¶4 In August 2014, school-district assessments indicated that Child would qualify for special-education services; Mother thereafter enrolled Child in private home tutoring instead of preschool. Also in August 2014, Father obtained a referral for Child to be seen by a behavioral pediatrician for suspected autism. Mother objected to the referral but ultimately participated in the November 2014 appointment, which resulted in a qualified autism diagnosis and a recommendation for a standardized autism assessment.

         ¶5 Meanwhile, in September 2014, Mother and Father filed competing actions (later consolidated) to establish paternity, legal decisionmaking, parenting time, and child support. In November 2014, the parties stipulated to paternity and the court entered temporary orders on legal decision-making and parenting time. The court noted grave concerns about each parent and about their ability to cooperate, but awarded Mother and Father joint legal decision-making. The court limited Father's parenting time to once-weekly supervised visits until he attended four psychiatric appointments and followed all recommendations, at which time he was to assume "week on/week off parenting time." But though Father promptly attended the appointments and was recommended no treatment, the court nonetheless ordered in February 2015 that his parenting time would remain limited to supervised visits on a twice-weekly basis. In December 2015, the court granted Mother's request for sole legal-decision-making authority with respect to a medical well-child visit and dental check-up.

         ¶6 Mother and Father's interactions during the temporary- orders phase were highly contentious and precipitated extensive court involvement. Child's best interests attorney described the case as "one of the most divisive family court cases [he] has seen." Mother and Father engaged in constant conflict, to the point that their court-appointed parenting coordinator ultimately asked to resign based on their lack of progress.

         ¶7 Mother and Father were unable to work together, especially with respect to issues regarding Child's mental and behavioral health. Multiple professionals diagnosed Child with autism and recommended that she receive various therapies, including occupational therapy, speech and language therapy, a feeding evaluation and therapy, and autism-specific applied behavioral analysis therapy. Mother, however, maintained her belief that Child is not autistic, and her medical expert and Child's play therapist agreed. But notably, even those two professionals opined that Child had developmental issues that required occupational, speech, and socialization therapies.[1] Mother facilitated only limited sessions of such therapies, and she declined to arrange any autism-specific therapy sessions. Mother also failed to vaccinate Child timely or resolve Child's need for extensive dental treatment. Mother blamed her failure to secure medical and dental treatment on Father's interference. She testified that Father cancelled many medical and dental appointments and, with respect to at least one dentist, caused Child to receive a referral instead of treatment because Father told the dentist that Child is autistic. With respect to mental and behavioral-health services, Mother blamed her failure to arrange therapy on provider waiting lists and difficulty in finding therapists with awareness of trauma-based delays.

         ¶8 For brief periods, Mother enrolled Child in two preschools. She then enrolled Child in a third school but withdrew her soon thereafter when staff identified behavioral issues and recommended a developmental evaluation. Child's play therapist supported Mother's subsequent plan to homeschool Child; Father engaged an expert who recommended public schooling.

         ¶9 For his part, Father engaged in inappropriate behavior that included threatening multiple providers, investigating the personal life of Mother's former counsel, filing a complaint (ultimately dismissed) against Mother with her professional licensing board, and filing so many specious motions that the court declared him a vexatious litigant and limited his ability to email Mother. Father also engaged in a physical altercation with Mother during a parenting-time exchange, which led to mutual orders of protection.

         ¶10 A psychologist evaluated Father and concluded in November 2015 that he suffers from anxiety and adjustment disorders. By the time of trial, Father had resumed contact with the same psychiatrist he had met with early in the case, and for several months had been taking anti-anxiety medication prescribed by that provider, to good effect.

         ¶11 Further, though the parents' relationship was volatile, Father's interactions with Child during his supervised parenting time were mostly appropriate. He did, however, experience gaps in visits, mostly attributable to his conduct toward Mother and supervisors. And his visits ceased entirely after May 2016, when the supervising agency withdrew because Father added liquid, which he said was folic acid, to Child's food without permission. A forensic social worker conducted home studies on both parents in August 2016, visiting with Mother and Child at Mother's rented condominium and with Father and Child at an extended-stay hotel room that Father rented for that purpose because his hotel-room residence lacked air conditioning. The social worker observed that Child appeared developmentally delayed but interacted positively with both parents, who both appeared to love Child and care about her future.

         ¶12 In late 2016, the superior court held an evidentiary hearing concerning, in major part, legal decision-making and parenting time. In the 58-page minute entry that followed, the court expressed concern that many of its interim orders, though justified by Father's unreasonable behavior, had harmed Child's relationship with both parents. The court further found that Father's behavior "provided the perfect foil for Mother to take advantage of the Court's perception of Father's apparent inability to properly parent the child, " and "because of Father's bad behavior, the Court has repeatedly expected Mother to do the right thing in seeking certain medical, dental, educational and therapeutic evaluation and treatment of the child" but "[i]t is now abundantly clear that Mother has not done the right thing." The court made detailed findings regarding each of the factors set forth in A.R.S. §§ 25-403(B), -403.01(B), and -403.03.

         ¶13 The court awarded Mother and Father "joint legal decision- making ...


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