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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 the Matter of Guardianship of:
DANIEL LEVI BONDY, an Adult.
SUSAN BONDY, Petitioner/Appellant,
v.
MARICOPA COUNTY PUBLIC FIDUCIARY, Respondent/Appellee,
DANIEL LEVI BONDY, Appellee.
No. 1 CA-CV 16-0676
FILED 10-24-2017
Appeal from the Superior Court in Maricopa County
No. PB2012-050606
The Honorable Lisa Ann Vandenberg, Judge Pro Tempore
AFFIRMED
APPEARANCES
Susan Bondy, Phoenix
Petitioner/Appellant
Maricopa County Attorney's Office Civil Services Division, Phoenix
By M. Colleen Connor, Edward W. France, III
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Margaret H. Downie joined.
B R O W N, Judge:
¶1 Susan Bondy ("Mother") appeals the superior court's order
denying her petition to be appointed successor guardian for her adult son,
Daniel Bondy, and to remove the Maricopa County Public Fiduciary
("Public Fiduciary") as his guardian. Finding no abuse of discretion, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Due to complex medical conditions, physical disabilities, and
cognitive impairment, Daniel is unable to care for himself. Mother filed a
petition to be appointed Daniel's permanent guardian and conservator just
before his eighteenth birthday in July 2012. Shortly after Mother filed her
petition, Arizona Child Protective Services filed a dependency action in the
juvenile court that was eventually dismissed on July 11, 2012. In the
dependency action, Daniel was represented by attorney John R. Worth,
who asked the court to appoint a guardian ad litem ("GAL") to determine
whether Mother would be an appropriate guardian.
¶3 The superior court conducted a two-day trial in December
2012, at which several witnesses testified. The court denied Mother's
petition and appointed the Public Fiduciary as Daniel's permanent
guardian. Mother has since filed several petitions to remove the Public
Fiduciary and have herself appointed Daniel's guardian.
¶4 As a result of one of Mother's petitions, the parties
participated in a settlement conference in June 2014. Following the
settlement conference, Daniel's adult sister, Patti Blackwell, was appointed
his temporary guardian. The superior court, however, vacated the
temporary guardianship and reappointed the Public Fiduciary following
an emergency hearing in October 2014.
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BONDY v. MARICOPA
Decision of the Court
¶5 Mother has also filed several requests for visitation. The
Public Fiduciary responded that a protocol for supervised visitation is
necessary and has been successful in the past. The superior court denied
Mother's last visitation request, finding there were legitimate reasons to
impose visitation parameters and Mother could visit Daniel within those
parameters, as she had done so previously.
¶6 Upon receipt of Mother's most recent petition to remove the
Public Fiduciary and appoint herself as guardian, the superior court
ordered another investigation. The GAL interviewed Daniel, his group
home staff, the prior GAL, the Public Fiduciary, Mother, and Daniel's
attorney, and concluded it was in Daniel's best interest to remain in his
current placement and for the Public Fiduciary to continue as guardian.
The court investigator interviewed the same people and visited Daniel in
his group home, and found Daniel was well-cared for in his group home.
The investigator also noted that Mother agreed the Public Fiduciary was
doing a good job as guardian. On October 3, 2016, after hearing from
Mother and the Public Fiduciary, the court denied Mother's petition,
finding no basis to remove the Public Fiduciary.
¶7 Mother then filed a pleading titled "Appeal Decision Comm.
Lisa Vandenberg Denied Motion for Guardianship by His Mother Oct. 3,
2016." The superior court determined this pleading did not constitute a
notice of appeal and treated it as a motion for reconsideration. In a detailed
order, the court affirmed the denial of Mother's petition to remove the
Public Fiduciary and substitute herself as guardian.
¶8 Despite the superior court's treatment of Mother's "appeal,"
this court opened the current appeal. The appeal was stayed to allow the
entry of an order containing the requisite certification of finality pursuant
to Arizona Rule of Civil Procedure ("Rule") 54(c). The superior court issued
a signed order that included the Rule 54(c) certification. Thus, the appeal
was reinstated.
DISCUSSION
¶9 Proceedings to substitute and appoint a successor guardian
are governed by A.R.S. § 14–5307. "The court's discretion to remove a
guardian is not to be exercised arbitrarily or capriciously but is a legal
discretion to be exercised with due regard to the legal rights of all
concerned." In re Cosden's Estate, 12 Ariz. App. 88, 89 (1970). Pursuant to
A.R.S. § 14–5307(A), "the court shall substitute a guardian and appoint a
successor if it is in the best interests of the ward." Thus, Mother has the
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BONDY v. MARICOPA
Decision of the Court
burden of showing that the superior court abused its discretion in
concluding it was in Daniel's best interests for the Public Fiduciary to
continue as his guardian. In re Guardianship of Kelly, 184 Ariz. 514, 518 (App.
1996).
¶10 Mother's appellate briefs and addendum do not comply with
ARCAP 13(a), which requires citation to the record and legal authorities as
well as a statement of issues, among other things. Mother also refers to
matters that were not before the superior court at the October 2016 hearing.
We do not consider matters that were not in evidence before the superior
court. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4 (App.
1990). In addition, the record does not include a transcript from that
hearing. It is Mother's duty as the appellant to ensure the record on appeal
includes the transcripts necessary for consideration of the issues on appeal.
See ARCAP 11(c)(1); State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 30,
¶ 16 (App. 2003). When such transcripts are not included, "we assume the
missing portions of the record would support the trial court's findings and
conclusions." Burton, 205 Ariz. at 30, ¶ 16.
¶11 Based on the record on appeal, we find no abuse of discretion.
Mother provided this court with information regarding several areas in
which she finds fault with Daniel's care. Mother made similar allegations
in her petition to the superior court. However, it is unclear whether any of
this information was properly presented to the court. In any event, the
court ordered an interview and investigation into Daniel's current
placement in response to Mother's latest petition. As discussed above, the
reports presented to the court based on those investigations established that
Daniel was being appropriately cared for and, based on the case history, a
placement with Mother was not in Daniel's best interests. Thus, the
evidence supports the court's decision.
¶12 The evidence also supports the implicit conclusion that good
cause existed to appoint the Public Fiduciary over Mother despite her
statutory priority as a parent. See A.R.S. § 14–5311(F)1 (authorizing a court
to pass over a person with a higher priority for "good cause"). The Public
Fiduciary contends Mother waived this argument by failing to request
specific good cause findings from the court within ten days as required by
§ 14–5311(G) (formerly § 14–5311(E)). However, Mother's "appeal"
1 In 2016, § 14–5311 was amended; subsection (D) was renumbered
and is now found in subsection (F). See 2011 Ariz. Sess. Laws, Ch. 354, § 12
(2d Reg. Sess.).
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BONDY v. MARICOPA
Decision of the Court
pleading was filed within ten days and generally asserts that the trial court
had no basis for removing Daniel from his family. In ruling on this
pleading, the court provided a detailed explanation for its decision to
appoint the Public Fiduciary over Mother. Accordingly, the court satisfied
§ 14–5311(G).
¶13 Mother alleged many violations of the Arizona Code of
Judicial Administration § 7–201 (general requirements) and A.R.S. sections
14–5312 (duties of guardians), 36–551.01 (rights of persons with
developmental disabilities), and 13–3623 (abuse of vulnerable adults).
Many of these allegations were contained in Mother's petition to remove
the Public Fiduciary, her requests to visit Daniel, have Daniel speak to the
trial judge, and return Daniel to her care filed in June 2016. As noted above,
in response to these pleadings, the superior court reappointed the GAL "to
investigate whether the current Guardian is appropriate and whether the
current placement is in the ward's best interest." The court also ordered the
Court Investigator to conduct a home visit. These investigations concluded
Daniel's placement was appropriate and he was well-cared for. There are
no citations to the record supporting Mother's allegations, and the record
on appeal does not include a transcript of the relevant hearing.
Accordingly, we presume the evidence supports the court's ruling and find
no abuse of discretion. See Burton, 205 Ariz. 27.2
CONCLUSION
¶14 No one involved in this case doubts Mother's love for Daniel
and that she wants to ensure he receives the best care, but the record
indicates Daniel is receiving appropriate care in his current placement and
the Public Fiduciary is acting in Daniel's best interests. The record also
shows that, at this time, Mother is not physically or emotionally able to
2 Mother also raised issues with the orders denying her previous
visitation and guardianship petitions; however, those prior orders are not
properly raised in this appeal.
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BONDY v. MARICOPA
Decision of the Court
provide the level of daily care Daniel requires on a long-term basis. The
superior court did not abuse its discretion, and therefore we affirm the
court's order denying Mother's petition to remove the Public Fiduciary and
be appointed guardian.
AMY M. WOOD • Clerk of the Court
FILED: AA
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