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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

FRANK TURFLER and SHERRY TURFLER, Petitioners/Appellants,

v.

MEGAN MARIE TORREZ, Respondent/Appellee,

and

JOSEPH HOLLISTER, Respondent/Appellee.

No. 1 CA-CV 20-0647 FC

Appeal from the Superior Court in Maricopa County

No. FC 2020-050135

The Honorable Alison Bachus, Judge

AFFIRMED IN PART;VACATED IN PART; REMANDED

COUNSEL

State 48 Law Firm, Scottsdale

By Jillian Hansen, Ankita Gupta, Robert Hendricks, Stephen Vincent

Counsel for Petitioners/Appellants

Cordell Law LLP, Scottsdale

By Kristina Cervone

Counsel for Respondent/Appellee, Megan Marie Torrez

FILED 8-24-2021
TURFLER v. TORREZ

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, Judge:

¶1 Frank and Sherry Turfler (“Petitioners”) appeal the superior 

court’s ruling on their third-party petition relating to C.H., who was born 

in 2007. They challenge the court’s denial of their requests for legal 

decision-making and placement, as well as the court’s decision to limit their 

visitation with C.H. to one day per month. For the following reasons, we 

affirm in part, vacate in part, and remand for further proceedings.

BACKGROUND

¶2 C.H.’s mother, Megan Marie Torrez (“Mother”), and his 

father, Joseph Hollister (“Father”), were never married. Until these 

proceedings began Father was not involved in C.H.’s life.

¶3 Petitioners are not biologically related to C.H., but they claim

they have been “intricately involved” in his life, as both he and Mother 

“resided in [Petitioners’] home from approximately 2007 to 2016.” Mother

disputes Petitioners’ description of the relationship, asserting they “greatly 

exaggerated their role” in C.H.’s life. According to Mother, she and C.H. 

only lived with Petitioners “on-and-off between the years of 2008 and 2015, 

and the off periods were substantial in nature.” 

¶4 C.H. has various behavioral issues and has had problems at 

home and in school. He was admitted to inpatient treatment in August 

2019. The next month, Mother signed a six-month power of attorney,

delegating parental powers to Mrs. Turfler, and C.H. began living full-time 

with Petitioners. Petitioners believed this would be a permanent 

arrangement. But according to Mother, she made the temporary delegation 

to Petitioners because C.H.’s therapist suggested a “temporary change of 

scenery” could help C.H. adjust to his new medication, so she allowed him 

to be enrolled in a school in Petitioners’ district. 

¶5 On December 24, 2019, however, Mother picked up C.H. from 

Petitioners’ home and told them he would not be returning to their 
TURFLER v. TORREZ

Decision of the Court

3

residence. C.H. did not return to Petitioners’ home from that point. The 

next day, he was again admitted to inpatient treatment. 

¶6 Shortly thereafter, Petitioners petitioned for legal decisionmaking and placement/visitation rights over C.H., and also moved for 

temporary orders. Petitioners alleged that Mother could not care for C.H., 

did not provide appropriate medical treatment or maintain his medication, 

and subjected him to unnecessary inpatient treatment “to be rid of him.” 

They also contended Mother has unaddressed mental health issues and will 

not seek proper treatment. 

¶7 Mother, on the other hand, asserted that she provided

appropriate care for C.H., and that based on the advice of medical 

professionals she approved his periods of inpatient treatment. She also 

denied having declining mental health issues. In addition, in light of C.H.’s 

behavioral health, she expressed concerns about Petitioners’ care of C.H., 

arguing they offer a less structured, more indulgent environment, and they 

undermine her parenting by encouraging secret communications. After a 

temporary orders hearing, the court denied the motion for legal decisionmaking and placement, but permitted Petitioners to have visitation on the 

first Saturday of every month. 

¶8 The superior court appointed a best interests attorney

(“BIA”), who conducted an investigation, including interviews with

Petitioners, Mother, Father, and C.H. The BIA filed a pretrial statement 

summarizing her investigation and ultimately recommending that Mother 

should retain legal decision-making and placement, but that C.H. should 

have a “significant relationship” with Petitioners, including visitation on 

weekends, holidays, and summer break. C.H. told the BIA he would like 

to stay with Petitioners. 

¶9 Mother and Sherry Turfler testified at trial. The superior 

court then affirmed its prior ruling that Petitioners stood in loco parentis to 

C.H., which neither party disputed. Next, the court looked to the best 

interests factors listed in A.R.S. § 25-403(A) and found that Mother’s mental 

health issues did not prohibit her from parenting effectively, and that no 

credible evidence showed Mother is failing to address C.H.’s mental or 

physical health. After summarizing the evidence in detail, the court denied 

Petitioners’ request for legal decision-making and placement and granted 

visitation for eight hours on the first Sunday of every month. The court 

awarded $1,500 in attorneys’ fees and costs to Mother, finding in part that 

Petitioners acted unreasonably in the proceedings by discussing the 
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Decision of the Court

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litigation with C.H. during visitation. Petitioners timely appealed, and we 

have jurisdiction under A.R.S. § 12-120.21(A)(1). 

DISCUSSION

¶10 We review the superior court’s interpretation and application 

of A.R.S. § 25-409 de novo. Chapman v. Hopkins, 243 Ariz. 236, 240, ¶ 14 

(App. 2017). In addition, we review a decision on child custody matters for 

an abuse of discretion. In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3 (App. 

2002). We will sustain the court’s findings on appeal if they are supported 

by substantial evidence. Graville v. Dodge, 195 Ariz. 119, 129, ¶ 44 (App. 

1999). Finally, we review the court’s award of attorneys’ fees for an abuse 

of discretion. Id. at 131, ¶ 56.

¶11 Before turning to the merits of the appeal, we address 

Mother’s argument that Petitioners failed to comply with certain briefing 

requirements, ARCAP 13, by failing to include (1) record cites in their

Statement of the Case and (2) pincites in their Statement of Facts. Mother 

also argues Petitioners presented issues that did not align with their 

arguments. As such, she asks us to impose sanctions under ARCAP 25. 

Though Petitioners should have been more thorough with their record 

citations and more precise with their arguments, we decline to impose a 

sanction because the errors did not significantly impair Mother’s ability to 

prepare her answering brief, and more importantly, “because a child’s best 

interests are involved.” See Diezsi, 201 Ariz. at 525, ¶ 2. Moreover, Mother’s 

brief itself is not a model of appellate advocacy. Her decision to include a 

18-page block quote from the superior court’s ruling is unhelpful, and she 

failed to address several points Petitioners have raised. Regardless of either 

party’s briefing deficiencies, we consider the issues presented based on our 

own review of the law and the appellate record. 

I. Legal Decision-Making and Placement

A. A.R.S. § 25-409(A)

¶12 Petitioners argue the superior court erred in failing to engage 

in a full analysis of A.R.S. § 25-409(A). Although we do not understand 

why this argument is included in Petitioners’ briefing, given that the 

superior court found that they stand in loco parentis to C.H., we briefly 

address the issue. 

¶13 Section 25-409(A) permits a third party to petition for legal 

decision-making authority and placement of a child. It operates as a 

threshold standing requirement at the pleading stage, which the petitioner 
TURFLER v. TORREZ

Decision of the Court

5

must satisfy before the court will analyze his petition on the merits under 

§ 25-409(B). See Chapman, 243 Ariz. at 240, ¶¶ 15–17. The petition need only 

set forth “sufficient allegations . . . that the statutory elements exist, not proof 

of those elements,” and the facts alleged in the petition need not be 

“uncontroverted.” Id. at 242–23, ¶¶ 21 n.2, 24. Here, after receiving 

Petitioners’ petition, the court scheduled a temporary orders hearing—and 

later, a full trial—rather than summarily dismissing it. We therefore 

presume the court analyzed the petition, found sufficient allegations under 

§ 25-409(A), and proceeded to the § 25-409(B) stage of the proceedings. 

B. A.R.S. § 25-409(B)

¶14 Petitioners argue the superior court erred in conducting its 

analysis under A.R.S. § 25-409(B). We agree. Section 25-409(B) establishes 

a “rebuttable presumption that awarding legal decision-making to a legal 

parent serves the child’s best interests.” A third party may rebut this 

presumption if he can show “by clear and convincing evidence that 

awarding legal decision-making to a legal parent is not consistent with the 

child’s best interests.” Id. To determine a child’s best interests, the court 

“shall consider all factors that are relevant to the child’s physical and 

emotional well-being,” including the 11 factors enumerated in § 25-403(A).

The court is required to “make specific findings on the record about all 

relevant factors and the reasons for which the decision is in the best interests 

of the child.” § 25-403(B).

¶15 First, the court erred in denying Petitioners’ request for legal 

decision-making because it applied an incorrect legal standard. The court 

held: “Petitioners have not established by clear and convincing evidence 

that based on their in loco parentis status, it is in the Child’s best interest that 

they be awarded sole legal decision-making authority.” However,

Petitioners’ burden under § 25-409(B) was to rebut the presumption that 

awarding legal decision-making to Mother was in C.H.’s best interests, not 

to affirmatively prove that it was in C.H.’s best interests for Petitioners to 

be awarded legal decision-making authority. 

¶16 In addition, the court’s best interests findings regarding legal 

decision-making, as required by § 25-403(B), are inadequate. Though the 

court listed the § 25-403(A) factors and provided related facts for each of 

them, it did not explain the “reasons for which the decision is in the best 

interests of the child,” § 25-403(B). See Downs v. Scheffler, 206 Ariz. 496, 499, 

¶ 9 (App. 2003) (“[A] custody decision without the specific findings 

required by § 25-403 is deficient and, as a matter of law, constitutes an abuse 

of . . . discretion.”). Without more detailed findings, we “cannot ascertain 
TURFLER v. TORREZ

Decision of the Court

6

. . . how the court weighed the statutory factors to arrive at its conclusion” 

and we are “deprived . . . of a meaningful opportunity to assess the family 

court’s best interests finding.” Reid v. Reid, 222 Ariz. 204, 207, ¶¶ 13, 20

(App. 2009).

¶17 Here, despite its extensive recitation of facts and evidence, the 

court did not explain how it weighed the factors to arrive at its conclusion. 

In its analysis of the § 25-403(A) factors, many of the facts supported both 

Mother’s and Petitioners’ positions. See Owen v. Blackhawk, 206 Ariz. 418, 

421–22, ¶ 12 (App. 2003) (remanding for further findings where court made 

detailed findings that “do not favor either parent”). The court also briefly 

referenced the BIA’s pretrial statement, but failed to offer any explanation 

for either agreeing or disagreeing with the BIA’s summary or 

recommendations. Nor can we tell whether the court placed too much 

weight on a single factor. See Reid, 222 Ariz. at 207, ¶ 13 (“Without further 

explanation,” the appellate court “cannot say that the trial court did not 

focus too much attention on [one factor] to the exclusion of other relevant 

considerations.”) (quotation and citation omitted). For instance, several 

times the court mentioned Mother’s allegation that Petitioners had 

discussed the pending litigation with C.H., which is significant because the 

evidence on that point was disputed. 

¶18 Second, the court erred in failing to consider Petitioners’ 

request for placement.1 The court conducted a thorough analysis regarding 

legal decision-making, but did not make findings, conduct analysis, or 

mention “placement” in its ruling, apart from a few non-substantive 

references to “parenting time.” We will not presume the court’s legal 

decision-making analysis was intended to extend to the issue of placement 

without any evidence to support that inference. Therefore, we vacate the 

provisions of the order regarding legal decision-making and placement, 

and remand for the court to apply the proper standards and to explain its 

reasoning on the record in compliance with § 25-403(B).

1 The record indicates the parties treated “placement” as a separate 

issue, and thus the superior court should have resolved it. Although 

“placement” as used in § 25-409(B) is not defined by statute, see A.R.S. § 25-

401, we will not attempt to discern its application or meaning without a 

fully-developed record, which must include the superior court’s analysis of 

whether Petitioners met their burden of proving C.H. should have been 

placed with them.
TURFLER v. TORREZ

Decision of the Court

7

II. Visitation 

¶19 Petitioners argue the superior court erred in issuing its 

visitation ruling.2 A third party may petition the court for visitation rights, 

defined as the “schedule of time” spent with a child by “someone other than 

a legal parent.” A.R.S. §§ 25-401(7), -409(C). The court may grant visitation 

“on a finding that [it] is in the child’s best interests” and that “[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.” § 25-409(C)(2).

¶20 “In deciding whether to grant visitation, the court . . . shall 

give special weight to the legal parent’s opinion.” § 25-409(E). Fit parents 

are entitled to a rebuttable presumption that they act in their “child’s best 

interest in [making] decisions concerning . . . visitation.” McGovern v. 

McGovern, 201 Ariz. 172, 177, ¶ 17 (App. 2001) (citing Troxel v. Granville, 530 

U.S. 57, 68–69 (2000)). For special weight to be given to a parent’s opinion, 

he or she need only be a legal parent, not a custodial parent or in any way 

a “model parent[].” In re Marriage of Friedman, 244 Ariz. 111, 119, ¶¶ 30–31 

(2018); see § 25-401(4) (defining “[l]egal parent” as a “biological . . . parent 

whose parental rights have not been terminated”); Ward v. Ward, 88 Ariz. 

130, 139 (1960) (finding parent is presumed to be fit if no adjudication of 

unfitness). If parents disagree, both “opinions are entitled to special 

weight” and “the parents’ conflicting opinions must give way to the court’s 

finding on whether visitation is in the child’s best interests.” Friedman, 244 

Ariz. at 113, ¶ 1.

¶21 The court applied the wrong standard in deciding the extent 

to which Petitioners could exercise visitation with C.H. In its ruling, the 

court explained it “considered all relevant factors regarding the Child’s best 

2 Mother argues Petitioners failed to properly plead visitation in their 

original petition. In their petition, Petitioners requested sole legal decisionmaking and primary care or “[p]arenting [t]ime,” and suggested Mother 

could have visitation with C.H. Following the temporary orders hearing, 

the superior court noted that because placement was not ordered for the

third party, it construed the request as a request for visitation, and it 

ordered visitation on the first Saturday of each month. In their pretrial 

statement, Petitioners requested visitation as an alternative to legal 

decision-making and placement, and Mother testified at trial that she 

agreed with allowing Petitioners visitation for one day each month. Thus, 

Mother cannot complain now that Petitioners failed to properly request 

visitation. 
TURFLER v. TORREZ

Decision of the Court

8

interests . . . giving deference to the parents’ position” and “applied the 

presumption that Mother has, and the parents shall, continue to make 

decisions that are in the Child’s best interests.” These statements are in 

accord with the standard for visitation in § 25-409(C), (E) and McGovern, 

201 Ariz. at 177, ¶ 17. But the court also found: “There has been no credible 

showing that either parent is unfit. The Court finds Petitioners have failed 

to show the Child’s best interests will be substantially harmed absent 

judicial intervention.” To be awarded visitation rights, Petitioners were not 

required to make a showing of parental unfitness or substantial harm to 

C.H., as these requirements have been explicitly overturned by our 

supreme court. Friedman, 244 Ariz. at 116, ¶ 19 (disavowing Goodman v. 

Forsen, 239 Ariz. 110 (App. 2016)). 

¶22 Second, the court abused its discretion in finding that Father 

agreed with Mother’s opinion on visitation. Early in the case, Mother 

opposed Petitioners’ visitation with C.H., but after the court temporarily 

granted visitation of one day per month, she argued Petitioners should be 

limited to that amount. Father, however, remained more open about C.H. 

having broader contact with Petitioners. After the temporary order 

hearings, the court noted that Father’s position on visitation was “not 

clear.” Father told the BIA he thinks C.H. should remain with Mother, but 

he “understands the bond” C.H. has with Petitioners and “would be in 

agreement with [C.H.] having an ongoing relationship that would include 

visits.” He stated that “if he had custody, [C.H.] could spend the summers 

with the [Petitioners].” At trial, Father briefly commented that he believed 

C.H. should remain with Mother, but did not address visitation. 

¶23 In its ruling, however, the court stated: “Father testified he 

agrees with Mother’s position.” Substantial evidence does not support this 

factual finding because Father never stated an opinion on the proffered

visitation plan. Though Mother is the custodial parent, and Father has had 

limited contact with C.H., his opinion is entitled to equal weight with 

Mother’s. To the extent his opinion about visitation conflicts with hers, 

“neither parent is entitled to a presumption in his or her favor,” and the 

superior court’s “factually supported determination of whether visitation 

is in the child's best interests controls.” Friedman, 244 Ariz. at 119, ¶ 34. We 

vacate the visitation order and remand for further consideration of Father’s 

opinion and application of the proper legal standard.

III. Attorneys’ Fees – Superior Court

¶24 Petitioners argue the superior court erred in awarding 

attorneys’ fees and costs to Mother. The court “may order a party to pay a 
TURFLER v. TORREZ

Decision of the Court

9

reasonable amount to the other party” for attorneys’ fees and costs, “after 

considering . . . the reasonableness of the positions each party has taken 

throughout the proceedings.” A.R.S. § 25-324(A). The court ordered 

Petitioners to pay $1,500 of Mother’s fees and costs, finding Petitioners

acted unreasonably by discussing the litigation with C.H., which 

“undermined Mother’s ability to parent.” We conclude the court abused its 

discretion in considering this allegation. The reasonableness portion of 

§ 25-324(A) refers to a party’s legal positions, not the reasonableness of a 

party’s conduct in general. See In re Marriage of Williams, 219 Ariz. 546, 548, 

¶¶ 9–10 (App. 2008) (quotation and citation omitted). On remand, the court 

shall reconsider the award of attorneys’ fees and costs. 

CONCLUSION

¶25 For the foregoing reasons, we affirm the superior court’s 

ruling regarding § 25-409(A), but we vacate the remainder of the court’s 

ruling and remand for further proceedings consistent with this decision, 

including taking additional evidence if the court deems it appropriate. In 

our discretion, we deny Petitioners’ request for attorneys’ fees under § 25-

324 but award taxable costs to Petitioners upon compliance with ARCAP 

21.