Riepe v. Riepe

91 P.3d 312, 208 Ariz. 90

• Court: Court of Appeals of Arizona
• Decided: June 29, 2004
• Docket: 1 CA-CV 03-0184
• Status: Published

Opinions

OPINION

TIMMER, Judge.

¶ 1 Can the superior court award in loco parentis visitation to a widowed step-mother pursuant to Arizona Revised Statutes (“A.R.S.”) section 25-415(C) (2000) when the stepchild enjoyed good relationships with both legal parents before the father’s death and the child is currently parented by his legal mother? We address this issue in Janette Rae Smith Riepe’s (“Stepmother”) appeal from the denial of her petition for visitation with her eight-year-old stepson, Cody, filed pursuant to § 25-415(C). For the reasons that follow, we hold that § 25^U5(C) authorizes the court to award reasonable visitation under such circumstances if the factors set forth in that provision are otherwise satisfied. Because the court misinterpreted § 25-415 by requiring Stepmother to prove that Cody’s relationship with her was equal to or superior to the relationship he shared with his legal parents, we reverse and remand with instructions for the court to assess the evidence presented in support of and in opposition to the petition using the correct interpretation of § 25-415.

BACKGROUND

¶ 2 Cody’s legal parents,¹ Brandy Jo Riepe (“Mother”) and David Allen Riepe (“Father”), were divorced in 2000. The parents shared joint custody, and Father was the primary residential parent. Mother had parenting time every other weekend, one evening a week, and extended time over school vacations. Father began dating Stepmother in May 1999. Father and Cody moved in with Stepmother and her three sons in January 2000. Father and Stepmother married in May 2001. Tragically, Father died in a traffic accident in November 2001.

¶ 3 Prior to and during her marriage with Father, Stepmother spent a significant amount of time with Cody. One of Stepmother’s sons and Cody attended the same school, and she transported them to and from school. She fed Cody, was involved in his classroom, and cared for him both before and after she married Father. All evidence shows that Stepmother was a very loving and involved person in Cody’s life during the time she was with Father. During this time, Mother also was involved with Cody and paid child support to Father.

¶ 4 After Father died, Cody began living with Mother. Mother did not allow contact between Stepmother and Cody, and Stepmother therefore filed a petition for in loco parentis visitation pursuant to A.R.S. § 25-415(C). After holding an evidentiary hearing on Stepmother’s petition and reviewing memoranda from both parties, the superior court found that Stepmother had failed to carry her burden of proving that she stood in loco parentis to the child. Specifically, the court found as follows:

[Stepmother] has shown that she was a caring and supportive step-parent and that Cody did bond to her. However, throughout Cody’s and [Stepmother’s] relationship, and while Cody’s father was alive, Cody’s natural mother and father fulfilled the rights and responsibilities of, parents while [Stepmother] played a supportive role to her husband[’s] role of father to Cody. Although Cody may have referred to [Stepmother] as “mom”, Cody seems to embrace those who show him love and support and brings them into his “family” using terms of familial relationship, such as aunt and uncle, despite the lack of a blood relationship. While he may use the term “mom” to show affection and to give value to his relationship with [Stepmother], the Court is not persuaded that this is indicia that he views [Stepmother] as mother in the same sense that he views his natural mother.

[Stepmother] cared for and supported Cody. However, based upon the evidence presented, the Court cannot factually conclude that she stood in loco parentis to Cody as defined by A.R.S. § 25-415(G)(l).

The court therefore denied the petition and this appeal followed.

STANDARD OF REVIEW

¶ 5 We review de novo the superior court’s interpretation and application of A.R.S. § 25-415. Thomas v. Thomas, 203 Ariz. 34, 36, ¶ 7, 49 P.3d 306, 308 (App.2002). We are not bound by the court’s conclusions of law “that combine both fact and law when there is an error as to the law.” Lee Dev. Co. v. Papp, 166 Ariz. 471, 476, 803 P.2d 464, 469 (App.1990).

DISCUSSION

¶ 6 Stepmother first argues that the superior court incorrectly interpreted A.R.S. § 25-415 to require her to prove that her relationship with Cody was the same as or superior to his relationship with Mother. Section 25 — 115(C) authorizes the court to grant reasonable visitation rights to “a person who stands in loco parentis to a child” upon a finding, among others, that visitation is in the child’s best interests.² Section 25-415(G)(1) defines one “in loco parentis” as “a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.”

¶7 Stepmother contends that the court imposed an additional burden not prescribed by § 25 — 115 by requiring her to persuade the court that Cody viewed Stepmother “as mother in the same sense as he views his natural mother.” According to Stepmother, this burden effectively requires an individual seeking in loco parentis visitation to prove that the child’s relationship with that individual is equivalent to or superior to his or her relationship with the parent(s) rather than simply proving that the child treated the individual “as a parent” and that they enjoyed “a meaningful parental relationship” for a substantial period of time, as set forth in § 25 — 115(G)(1).

¶ 8 Mother counters that the court correctly interpreted § 25-415(G)(l) to require Stepmother to show that her relationship with Cody was the same as or superior to his relationship with Mother and Father. Relying on dictionary definitions of “in loco parentis,” she asserts that § 25-415(G)(l) required Stepmother to show that she stood “in the place of’ a natural parent in order to receive visitation rights. Because Mother and Father fulfilled the rights and obligations of parents to Cody before Father’s death, Mother contends that Stepmother could not have “stood in the place” of either parent.

¶ 9 We disagree with Mother’s position. This court looks to commonly used definitions of statutory terms only when the legislature has not ascribed a particular meaning to such terms. State v. Wise, 137 Ariz. 468, 470 n. 3, 671 P.2d 909, 911 n. 3 (1983) (acknowledging that unless legislature clearly expresses intent to give term a special meaning, court gives words used in statutes their plain and ordinary meaning, which can be gleaned from dictionaries). Here, because the legislature has provided a definition of in loco parentis in § 25-415(G)(l), we must look no further than that definition when deciding what is required to establish in loco parentis status.

¶ 10 Section 25-415(G)(l) does not require a person seeking in loco parentis visitation to establish that he or she has a parental relationship with a child that replaces that child’s relationship with a legal parent. Similarly, the petitioning party need not show that his or her relationship with the child is superior to the child’s relationship with one or both legal parents. Rather, to establish in loco parentis status, a non-parent must prove that the child (1) treated that person as a parent and (2) formed a meaningful parental relationship with that person for a substantial period of time. A.R.S. § 25-415(G)(l). Assuming that the remaining factors set forth in § 25-415(C) are satisfied, including a finding that visitation is in the child’s best interests, the court can order reasonable visitation. Thus, as Mother acknowledged in oral argument before this court, the superior court can grant in loco parentis visitation to a petitioning party even if the child maintains a meaningful parental relationship with his or her legal parents. With these principles in mind, we turn to the superior court’s application of § 25-415(G)(l) in its ruling.

¶ 11 The superior court found that Stepmother failed to prove both that Cody had treated her as a parent and that she had formed a meaningful parental relationship with Cody for a substantial period of time. In explaining this finding, the court stated that before Father’s death, he and Mother fulfilled the rights and responsibilities of parents while Stepmother had played a supportive role to Father. The court further concluded that although Cody called Stepmother “mom,” this reference did not indicate that he viewed Stepmother “as mother in the same sense that he views his natural mother.”

¶ 12 Although somewhat unclear, it appears the court adopted Mother’s position that Stepmother was required to prove that she stood in the place of either Father or Mother and could not establish in loco parentis status if Cody had enjoyed parental relationships with his legal parents. Because § 25-415(G)(l) does not require such a showing, we reverse the judgment and remand to the superior court for further proceedings. Specifically, in deciding whether Stepmother stands in loco parentis with Cody, the court should consider only whether Cody views Stepmother as a parent, and whether they have formed a meaningful parental relationship, which has endured for a substantial period of time. If the court then decides that Stepmother does not stand in loco parentis with Cody, it must deny the petition. If the court decides that Stepmother has achieved this status, the court must then consider whether Stepmother should have reasonable visitation rights after applying the factors set forth in A.R.S. § 25-415(C), including whether visitation would be in Cody’s best interests.

¶ 13 In light of our conclusion that the court incorrectly interpreted and applied § 25-415(G)(l), we need not decide whether the court properly assessed the evidence using the incorrect definition of in loco parentis.

Response to the Dissent

¶ 14 Our dissenting colleague asserts that we “unhinge the ties of gender and number contained within Arizona’s definition of the term ‘parent,’ ” ¶ 127, infra, in an attempt to “judicially accommodate[ ]” step-relationships, ¶ 152, infra. He further contends that we promote same-sex parenting and polyamory, ¶¶ 97-104, infra, impinge marriage, ¶¶ 99-106, infra, circumvent the democratic process, ¶¶ 112-15, infra, and violate the constitutional rights of legal parents to parent their children, ¶¶ 116-19, infra. With due respect to our colleague, today’s decision is not born of our invention but instead stems from the language and purpose of A.R.S. § 25-415. The Dissent’s concerns about the social ramifications of this provision are more appropriately raised to the legislature. However, we are compelled to apply well-established principles of statutory construction to reveal the fallacy of the Dissent’s interpretation of § 25 — 115.

¶ 15 The Dissent’s arguments are based on the erroneous notion that our interpretation of A.R.S. § 25-415 creates additional parents for a child, which are unlimited in number and gender combinations. See, e.g., ¶ 60, infra. According to the Dissent, because a child can only have one mother and one father, a third party cannot obtain in loco parentis status unless that person serves as a same-gender substitute for one of the child’s parents. See, e.g., ¶ 73, infra. The Dissent mistakenly blurs the concepts of “parent” and “in loco parentis” and imposes limitations on in loco parentis visitation that are not supported by § 25-415.

¶ 16 First, the Dissent contravenes established principles of statutory interpretation by construing the term “parent” without considering the context of its usage in § 25-415. See ¶¶ 41-59, infra.; Mary Lou C. v. Arizona Dept. of Economic Sec., 207 Ariz. 43, 47, ¶ 9, 83 P.3d 43, 47 (App.2004) (‘We ... interpret a statute’s individual provisions in the context of the entire statute.”). The legislature did not authorize in loco parentis visitation for a “parent,” but instead bestowed authority on the court to grant such visitation to “a person” standing in loco parentis to a child. A.R.S. § 25-415(C). Section 25-415(G)(1) defines “in loco parentis” as a person (1) who a child treats as a parent, and (2) who has established a meaningful parental relationship with the child for a substantial period of time. The Dissent mistakenly assumes that “treated as a parent” and “parental relationship” are synonymous with “parent.” But by choosing to authorize visitation for persons “treated as a parent,” the legislature plainly intended § 25-115(C) to apply to non-parent visitation. The opposite conclusion would make the words “treated as” entirely superfluous. See Herman v. City of Tucson, 197 Ariz. 430, 434, ¶ 14, 4 P.3d 973, 977 (App.1999) (citation omitted) (noting courts avoid interpreting statute “so as to render any of its language mere ‘surplusage,’ [and instead] give meaning to ‘each word, phrase, clause, and sentence ... so that no part of the statute will be void, inert, redundant, or trivial.’ ”). In sum, a person standing in loco parentis to a child for purposes of § 25 — 415(C) is not a “parent,” and the meaning of “parent” in other contexts, therefore, is inconsequential.

¶ 17 Our conclusion is underscored by the fact that the legislature authorized in loco parentis visitation even when the child has two legal parents, each with attendant parental rights. See A.R.S. § 25-415(0(2), (3) (authorizing visitation when in child’s best interests and legal parents are either not married to each other or are in process of dissolving marriage); § 25-415(G)(2) (recognizing that legal parents have “parental rights”). Additionally, the legislature’s inclusion of grandparents and great-grandparents in the category of persons who can obtain in loco parentis visitation privileges indicates that § 25-415(0) applies to non-parent visitation. Such visitation is not dependent on a finding that the child does not or did not enjoy a meaningful and healthy relationship with one or both legal parents, as suggested by the Dissent. See ¶ 136, infra By contrast, in order to obtain in loco parentis custody, a petitioning party must establish, among other things, that it would be “significantly detrimental to the child to remain or be placed in the custody of either of the child’s living legal parents who wish to retain or obtain custody.” A.R.S. § 25-415(A)(2).

¶ 18 In short, by crafting its definition of “in loco parentis,” the legislature did not require a showing that the child substituted the petitioning party for a legal parent. A person standing in loco parentis to a child is not a “parent,” does not enjoy parental rights,³ and therefore does not become an “additional parent,” as the Dissent suggests. See ¶ 60, infra. Therefore, whether or not Stepmother stands in loco parentis to Cody for the purpose of obtaining reasonable visitation privileges, Mother will remain Cody’s sole parent with attendant rights and responsibilities.

¶ 19 Second, the Dissent’s view that a petitioning party cannot be in loco parentis if the child has a parent of the same gender as the petitioning party is unsupported by the plain language of § 25-415. See Williams, 175 Ariz. at 100, 854 P.2d at 133 (noting statute’s language is best and most reliable guide of its meaning). Neither the definition of “in loco parentis” nor the criteria for obtaining visitation rights requires that the petitioning party be of a different gender than a legal parent. A.R.S. § 25-415(C), (G). Additionally, if we adopted the Dissent’s position, a party could never obtain in loco parentis visitation when both legal parents are living; a result that would contravene the plain language of § 25-415(C)(2), (3). See ¶ 17, supra.

¶20 The legislative history of § 25-415 further supports a conclusion that in loco parentis status is not tied to the number of involved legal parents or gender. As the Dissent explains, ¶¶ 79, 85, infra, the legislature enacted § 25-415 in 1997 in response to the supreme court’s decision in Finck v. O’Toole, 179 Ariz. 404, 880 P.2d 624 (1994), which held that the superior court was not authorized to grant visitation rights to step-grandparents who stood in loco parentis to a child. In Finch, the court noted that the legislature had only provided procedures for awarding visitation to noncustodial parents, grandparents, and great-grandparents. Id. at 407, 880 P.2d at 627. In light of the legislature’s specificity in listing the classes of parties entitled to visitation, the court reasoned that the legislature did not intend to authorize visitation for unspecified third parties, including step-parents and step-grandparents. Id. In a special concurrence, Justice Zlaket speculated that the legislature had not consciously intended to exclude stepparents or step-grandparents from obtaining visitation with children to whom they stood in loco parentis. Id. at 408, 880 P.2d at 628. Consequently, he stated that the issue “er[ied] out for legislative clarification.” Id.

¶21 In response to Finch, rather than simply adding step-parents and step-grandparents to the classes of parties entitled to petition for visitation, the legislature enacted § 25-415(C) to broadly provide that the court may award reasonable visitation rights to persons standing in loco parentis to a child, including, presumably, step-parents and step-grandparents, subject to satisfaction of the listed requirements. By doing so, the legislature authorized the superior court to consider each unique circumstance and award in loco parentis visitation when appropriate. The legislature did not constrain the court’s discretion by imposing additional limitations relating to gender or the quality of the child’s relationship with his legal parents, and the Dissent errs by seeking to impose such constraints.⁴ See State v. Averyt, 179 Ariz. 123, 129, 876 P.2d 1158, 1164 (App.1994) (court cannot interpret statute to insert words of limitation that the legislature has expressly omitted).

¶22 Finally, the fallacy of our dissenting colleague’s position is further revealed by an examination of the effects and consequences of his view of § 25-415(C). Forino v. Ariz. Dep’t of Transp., 191 Ariz. 77, 80, 952 P.2d 315, 318 (App.1997) (“To discern the legislature’s intent, we may consider the effect and consequences of alternative construction.”). If the Dissent is correct, the court could not have awarded in loco parentis visitation to the step-grandmother in Finck pursuant to § 25 — 415(C) because the child’s mother had custody of him and parented him.⁵ Finck, 179 Ariz. at 405, 880 P.2d at 625. Conversely, the step-grandfather could have obtained in loco parentis visitation because the child did not know his biological father. Similarly, in the present case, if Cody’s father had established a relationship with a same-sex partner rather than marrying Stepmother, that partner, but not Stepmother, could qualify for in loco parentis status under the Dissent’s view. Such results would be absurd and could not have been intended by the legislature. State v. Medrano-Barraza, 190 Ariz. 472, 474, 949 P.2d 561, 563 (App.1997) (“We presume the framers of the statute did not intend an absurd result and our construction must avoid such a consequence.”); see also A.R.S. § 1-211(B) (“Statutes shall be liberally construed to effect their objects and to promote justice.”).

¶23 In sum, the Dissent errs by both equating parents with persons who stand in loco parentis to a child, and by imposing number and gender restrictions on obtaining in loco parentis visitation that are not supported by the language or legislative history of § 25-415. Any such restrictions must be imposed, if at all, by the legislature.

CONCLUSION

¶24 In order to obtain in loco parentis visitation pursuant to A.R.S. § 25 — 415(C), Stepmother was not required to prove that she usurped the role that either Father or Mother served in Cody’s life. Because the superior court imposed this requirement on Stepmother, we reverse the judgment and remand for further proceedings.

CONCURRING: JEFFERSON L. LANKFORD, Presiding Judge.

1 . A "legal parent” is "a biological or adoptive parent whose parental rights have not been terminated.” A.R.S. § 25-415(G)(2).

2 . Section 25-415(C) provides in full as follows:

The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of § 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child’s best interests and that any of the following is true:

1. One of the legal parents is deceased or has been missing at least three months.

2. The child’s legal parents are not married to each other at the time the petition is filed.

3. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.

3 . The Dissent takes issue with this view, stating, without authority, that "no legal parent can Mly exercise 'parental rights’ to the child when an [in loco parentis] parent ... has physical control of the child through state compelled custody or visitation.” See ¶ 132, infra, (emphasis in original). The Dissent is wrong. First, § 25-415 authorizes in loco parentis custody or visitation under appropriate circumstances when a child has one or both legal parents, who are defined as biological or adoptive parents "whose parental rights have not been terminated." A.R.S. § 25-415(G)(2) (emphasis added). Second, awarding in loco parentis visitation against a parent’s wishes does not eliminate that parent’s rights. See Jackson v. Tangreen, 199 Ariz. 306, 309-10, ¶¶ 6-15, 18 P.3d 100, 103-04 (App.2000) (holding grandparent visitation statute, A.R.S. § 25-409, neither substantially interferes with nor heavily burdens parental rights and therefore does not unconstitutionally infringe upon a parent's fundamental right to control child rearing). Finally, although in loco parentis custody may burden a legal parent’s rights, the standard for awarding such custody is more onerous than that for obtaining visitation. A.R.S. § 25-415(A)(2) (requiring finding, among other things, that it would be "significantly detrimental to the child to remain or be placed in the custody of either of the child’s living legal parents who wish to retain or obtain custody.”). Whether in loco parentis custody impermissibly infringes on a legal parent's rights, or eliminates them altogether, is not at issue in this case.

4 . The Dissent quotes extensively from statements made by State Representative Mark Anderson before enactment of § 25-415 to support the Dissent’s position that in loco parentis visitation can only be ordered for persons who have taken the place of legal parents who were not fulfilling their role. See ¶¶ 79, 90, 96, infra. These remarks, however, concerned custody rather than visitation.

5 . The Dissent apparently attempts to avoid this result by stating that the step-grandparents in Finck had taken the place of both parents for a period of time before they were awarded visitation. See ¶ 88. In fact, neither the supreme court's decision in Finck, nor this court’s prior decision in that case, reflects that the step-grandparents had "replaced” mother or step-father in the child’s life prior to the award of visitation. Rather, we only know that the child had lived with his step-father and step-grandparents for a period of six months or less prior to being returned to the mother, and that at some point during that period the step-father was incarcerated. Finck, 179 Ariz. at 405, 880 P.2d at 625, rev’g 177 Ariz. 417, 419, 868 P.2d 1000, 1002 (App.1993). Regardless, an award of in loco parentis visitation to the grandmother while the mother fulfilled her parental role would impermissibly result in an additional "parent” under the Dissent's view.