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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
DANIELLE T. DURAN, Petitioner/Appellee,
v.
ERIC ANDERSON, Respondent/Appellant.
VINCENT DURAN and SUZANNE DURAN, Intervenors/Appellees.
No. 1 CA-CV 23-0113 FC
FILED 2-20-2024
Appeal from the Superior Court in Mohave County
No. S8015DO201700209
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
Danielle Duran, Mohave Valley
Petitioner/Appellee
DURAN v. ANDERSON/DURAN
Decision of the Court
Law Offices of Heather C. Wellborn PC, Lake Havasu City
By Heather C. Wellborn, Russell Woemmel, Anita Dale
Counsel for Respondent/Appellant
Silk Law Office, Lake Havasu City
By Melinda Silk
Counsel for Intervenors/Appellees
MEMORANDUM DECISION
Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge James B. Morse Jr. joined.
C A T L E T T, Judge:
¶1 Eric Anderson (“Father”) appeals the superior court’s order
awarding maternal grandparents Vincent Duran (“Grandfather”) and
Suzanne Duran (“Grandmother”) (collectively “Grandparents”) visitation
time with Father’s minor daughter, L. On appeal, Father primarily
challenges the superior court’s finding that no credible evidence supports
Father’s assertion that Grandfather sexually abused L. Because the court
did not abuse its discretion in making that finding or in how it awarded
Grandparents visitation time, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Danielle Duran (“Mother”) were never married
but had L. together in 2016. In 2018, Mother and Father agreed to joint legal
decision-making authority and equal parenting time. In May 2019,
however, the Department of Child Safety (“DCS”) took L. into custody and
placed her with a relative due to substance use by both parents and
domestic violence between Mother and Father. In September 2019, DCS
placed L. in Father’s physical custody after finding that he “actively
engaged in all services and has eliminated the safety threats in the home.”
Mother only had supervised visits with L. due to DCS’s ongoing concerns
about her drug use.
¶3 In January 2020, Father petitioned to modify legal decision-
making authority and parenting time, requesting sole legal decision-
making authority after DCS informed him it would not close L.’s
dependency case without such orders in place. Grandparents then
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petitioned for legal decision-making authority and placement of L., but
later changed their position and sought only visitation under A.R.S. § 25-
409. Grandparents otherwise supported Mother’s request for joint legal
decision-making authority and “primary parenting time, subject to
[Father’s] reasonable parenting time.”
¶4 In July 2020, Father reported to the Lake Havasu City Police
Department (“LHCPD”) that Grandfather inappropriately touched L. in a
restaurant bathroom in Arizona. LHCPD interviewed L., who said the
abuse took place at Grandparents’ house in Riverside, California. The last
time L. had been at Grandparents’ house was April 2019.
¶5 Because the alleged abuse took place in California, LHCPD
referred the case to the Riverside City Police Department (“RCPD”). RCPD
conducted interviews with L., Grandmother, and Grandfather, and
concluded there was no evidence corroborating L.’s statements. RCPD
suspended the investigation pending the discovery of corroborating
evidence.
¶6 In September 2021, L. also participated in a forensic interview
with Phoenix Children’s Hospital Child Protection Team (“PCHCPT”). At
the start of the interview, L. was asked what she liked to do and responded
that Grandfather took photos of her “in-betweenie.” When the interviewer
asked L. what Father had said about the interview, L. stated, “He said I
gotta say that.” When the interviewer asked L. who had asked her to tell
the interviewer about Grandfather taking photos, L. responded, “Daddy.”
The interviewer also asked L. if anyone had ever tried to touch her “in-
betweenie.” Child said, “No.” The interviewer asked L. if anyone had ever
wanted her to touch their “in-betweenie.” Child responded, “No, that
would be disgusting.”
¶7 The superior court held an evidentiary hearing in October
2022, during which Grandfather denied abusing L. The court reviewed
both police reports as well as the forensic interview with PCHCPT and
found “L[.]’s statements to investigators have been inconsistent . . . [n]o
charges were ever recommended or filed against [Grandfather] in
California or Arizona,” and, consequently, “no reliable evidence [was]
presented suggesting that L[.] was the victim of sexual abuse by
[Grandfather.]”
¶8 The court then made each finding required by A.R.S. § 25-
409(E), found that Grandparents “were a significant part of L[.]’s life before
Father cut off their access to her,” and concluded that visitation with
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Grandparents would be in L.’s best interest. The court awarded
Grandparents one weekend of visitation per month (with the parties to
select the weekend) and seven consecutive days in the summer. The court
also granted Mother and Father joint legal decision-making authority,
designated Father the primary residential parent, and granted Mother nine
hours of supervised parenting time each weekend, with the possibility of
additional parenting time upon producing two consecutive negative drug
tests.
¶9 Father timely appealed. We have jurisdiction. See A.R.S. § 12-
2101.
DISCUSSION
¶10 Father challenges only the superior court’s award of
grandparent visitation.1 Parents have a fundamental right “under the
Fourteenth Amendment to raise their children as they see fit.” Graville v.
Dodge, 195 Ariz. 119, 123 ¶ 19 (App. 1999); see also Troxel v. Granville, 530
U.S. 57, 66 (2000). “This right limits arbitrary intrusion into fit parents’
decisions regarding their children, including the decision to limit or deny
third-party visitation.” Borja v. Borja, 254 Ariz. 309, 313 ¶ 8 (App. 2022)
(citing McGovern v. McGovern, 201 Ariz. 172, 178 ¶ 19 (App. 2001)).
Section 25-409(C)(2) allows the superior court to grant visitation to
grandparents if the court finds visitation would be in the child’s best
interest and, as applicable here, “[t]he child was born out of wedlock and
the child’s legal parents are not married to each other at the time the petition
is filed.” If granted under these circumstances, grandparent visitation
“does not substantially infringe on parents’ fundamental rights.”
McGovern, 201 Ariz. at 175 ¶ 9 (citation omitted).
¶11 “Because the decision to award visitation rests within the
family court’s discretion upon finding that visitation is in the child’s best
interest, we will not disturb the court’s decision absent an abuse of
discretion in making the best-interest finding.” In re Marriage of Friedman &
Roels, 244 Ariz. 111, 120 ¶ 36 (2018). We view the evidence in the light most
favorable to upholding the court’s decision and will find an abuse of
discretion only when the record “is devoid of competent evidence to
support the [court’s] decision.” Id. (quotation marks and citation omitted).
1 Father, for example, does not challenge the constitutionality of
A.R.S. § 25-409.
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Thus, we defer to the superior court’s factual findings if “supported by
competent evidence.” Borja, 254 Ariz. at 313 ¶ 10.
I. Grandparent Visitation Award
¶12 Father first argues the superior court abused its discretion in
awarding grandparent visitation due to the allegations that Grandfather
sexually abused L. Specifically, Father challenges the superior court’s
finding that “[n]o reliable evidence has been presented suggesting that L[.]
was the victim of sexual abuse by [Grandfather],” arguing instead that the
court “should have erred on the side of caution” and denied visitation.
Grandparents deny these accusations and argue instead that Father
“coached” L. “to make false allegations.”
¶13 The court heard the testimony of Father and Grandfather and
reviewed police reports from both LHCPD and RCPD as well as the forensic
interview PCHCPT conducted. After doing so, the court found that “L[.]’s
statements to investigators were inconsistent” and “no reliable
evidence . . . suggesting that L[.] was the victim of sexual abuse by
[Grandfather.]” We conclude the record adequately supports the court’s
finding.
¶14 Grandfather denied the abuse allegations and there is little
evidence to corroborate them, physical or otherwise. Father originally
informed LHCPD that L. told him the abuse had recently taken place in a
restaurant bathroom in Arizona, but when interviewed by both LHCPD
and RCPD, L. claimed the abuse took place over a year prior in California.
When PCHCPT interviewed L., she was first asked what she liked to do and
immediately responded with allegations that Grandfather took
inappropriate photos of her. L. made statements during the interview that
could be viewed as undercutting the reliability of the allegations.
Ultimately, neither police department recommended charges. Based on the
conflicting evidence and our deferential standard of review, there is no
basis to set aside the superior court’s finding about the alleged abuse. See
In re Marriage of Friedman, 244 Ariz. at 120 ¶ 36.
¶15 Father further argues the court should have deferred to his
decision to deny Grandparents visitation. When considering whether
granting visitation is in the child’s best interest, the court must “give special
weight to the legal parents’ opinion of what serves their child’s best
interest[.]” A.R.S. § 25-409(E). Thus, when a third party seeks visitation
after a legal parent has refused, the court applies a rebuttable presumption
that the parent is acting in his “child’s best interest in decisions concerning
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the child’s care, custody, and control, including decisions concerning
grandparent visitation.” McGovern, 201 Ariz. at 177 ¶ 17. However, “when
two legal parents have competing visitation views . . . the respective
presumptions effectively and necessarily cancel each other out” and the
superior court is “statutorily permitted to grant visitation rights on a
finding that the visitation is in the [child’s] best interests.” In re Marriage of
Friedman, 244 Ariz. at 117 ¶¶ 22–23 (internal quotation marks and citation
omitted).
¶16 Mother supported Grandparents’ request for reasonable
visitation time with L. and informed the court that she did not believe the
abuse allegations were true. Consequently, the superior court was not
required to give Father’s opinion any “special weight,” because the parents’
competing opinions cancelled each other out. See In re Marriage of Friedman,
244 Ariz. at 119 ¶ 32 (explaining that any parent whose parental rights have
not been terminated is a legal parent whose opinion is entitled to “special
weight” under the statute). At that point, the court was permitted to grant
Grandparents visitation if the court found it would be in L.’s best interest.
Id. at 177 ¶ 23. The court considered each of the five best-interest factors
enumerated in A.R.S. § 25-409(E) and concluded that allowing
Grandparents visitation was in L.’s best interest. The court did not abuse
its discretion.
II. Amount of Visitation
¶17 Father also argues the superior court erred by awarding
Grandparents “excessive” visitation time. We review the amount of
visitation awarded for an abuse of discretion. Borja, 254 Ariz. at 315 ¶ 16;
Graville, 195 Ariz. at 128 ¶ 38. “Any visitation awarded must be as
minimally intrusive as possible because grandparent visitation orders must
adhere to the parents’ superior right to the custody and care of their
children.” Borja, 254 Ariz. at 314 ¶ 16 (internal quotation marks omitted).
¶18 Father contends the amount of visitation time was excessive
because “his evidence [that Grandfather was abusing L.] outweighed
[Grandparents’] evidence.” But we cannot reweigh evidence or determine
witness credibility on appeal. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 284
¶ 20 (App. 2019). The superior court found there was insufficient credible
evidence of abuse, L. wanted to have visitation with Grandparents, and it
was in L.’s best interest to have such visitation. As previously explained,
the court did not abuse its discretion in making those findings.
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¶19 Father also argues that the amount of visitation awarded is
excessive because Grandparents can visit L. during Mother’s nine hours of
supervised parenting time each weekend. Grandparents’ theoretical ability
to see L. more than one weekend per month does not invalidate the superior
court’s order guaranteeing them visitation. The superior court determined
that it was in L.’s best interest to spend time with Grandparents and then
provided them with the legal authority to exercise that right. The court
“designate[d] the frequency of visits and amount of time” by “ordering
visitation at least one weekend a month,” and left the parties with the
discretion to determine on which dates to exercise visitation. See Borja, 254
Ariz. at 316 ¶ 24. Because Mother has nine hours of supervised visitation
time per weekend, Grandparents’ weekend visitation time reduces
Mother’s available visitation time too. Thus, the superior court did not
abuse its discretion.
¶20 Finally, we reject Father’s argument that the amount of
visitation time was excessive because in the future Mother may petition the
court for roughly equal parenting time, which may result in Father
exercising less parenting time if Grandparents exercise their visits with L.
during Father’s parenting time. Father may address his concern to the
superior court if Mother later successfully petitions for equal parenting
time.
ATTORNEYS’ FEES
¶21 Both parties request their attorneys’ fees and costs on appeal
pursual to A.R.S. § 25-324. In our discretion, we deny both parties’ requests.
As the prevailing party, however, Grandparents may recover their costs on
appeal upon compliance with Arizona Rule of Civil Appellate Procedure
21.
CONCLUSION
¶22 We affirm the superior court’s order.
AMY M. WOOD • Clerk of the Court
FILED: AA
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