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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KYLE VAN SELOW, Petitioner/Appellee,

v.

TIFFANY SMITH, Respondent/Appellant.

No. 1 CA-CV 18-0599 FC

Appeal from the Superior Court in Maricopa County

No. FC2017-071716

The Honorable Lisa Ann VandenBerg, Judge

AFFIRMED

COUNSEL

Tiffany Smith, Maricopa

Respondent/Appellant

FILED 8-22-2019
SELOW v. SMITH

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in 

which Vice Chief Judge Kent E. Cattani and Judge Maria Elena Cruz joined.

J O N E S, Judge:

¶1 Tiffany Smith (Mother) appeals the family court’s order 

regarding legal decision-making and parenting time of two minor children

(the Children). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In April 2017, Kyle Van Selow (Father) petitioned the family 

court to establish legal decision-making, parenting time, and child support 

for the Children, then ages two and four. After the parties stipulated to 

paternity, the court directed both parents to participate in random drug 

testing and appointed a best-interests attorney. In May, the court entered 

temporary orders awarding the parties joint legal decision-making and 

requiring Mother’s parenting time be supervised.

¶3 At trial in August 2018, Father presented evidence that he had 

tested clean for substances throughout the proceedings, completed a drug 

abuse assessment program, and was providing the Children with a safe 

stable home. Additionally, although several prior Department of Child 

Safety (DCS) investigations had been closed as unsubstantiated, a recent 

report that the Children were sexually abused while in Mother’s care was 

under investigation. Mother acknowledged she initially tested positive for 

methamphetamine and amphetamine but claimed she had attended 

substance abuse treatment and maintained sobriety since then. She did not 

submit any documentation to support this assertion and admitted she 

stopped testing altogether in August 2017.

¶4 After taking the matter under advisement, the family court 

found joint legal decision-making was not appropriate given Mother’s noncompliance with court orders to participate in drug testing, and her lack of 

stability and commitment to exercising her parenting time. The court 

entered an order awarding Father sole legal decision-making and 

continued supervised parenting time for Mother. Mother timely appealed, 
SELOW v. SMITH

Decision of the Court

3

and we have jurisdiction pursuant to Arizona Revised Statutes §§ 12-

120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶5 Mother argues the family court abused its discretion by 

failing to obtain and review documents from DCS and failing to consider 

Mother’s testimony that she had maintained sobriety and completed a drug 

and alcohol assessment.1 Ordinarily, we would review the introduction 

and evaluation of evidence for an abuse of discretion. John C. Lincoln Hosp. 

& Health Corp. v. Maricopa Cnty., 208 Ariz. 532, 543, ¶ 33 (App. 2004) (citing 

Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, 399, ¶ 10 (App. 2000)). But,

although Mother states that the DCS records Father submitted were 

incomplete and should have included reports evidencing her sobriety, she 

does not assert that she was prevented from proffering documents on her 

own or that the court rejected documents or evidence that she submitted. 

Moreover, the record and the court’s order reflect that the court received 

evidence regarding the DCS investigations as well as Mother’s testimony

regarding her sobriety. To the extent the court believed the evidence was 

relevant and competent, we presume it was considered. See May v. Sexton, 

68 Ariz. 358, 360 (1949). Accordingly, Mother fails to prove any error.

CONCLUSION

¶6 The family court’s orders are affirmed.

 

1 Father did not file an answering brief. Although we could regard 

this failure as a confession of error, see ARCAP 15(a)(2); Thompson v. 

Thompson, 217 Ariz. 524, 526, ¶ 6 n.1 (App. 2008), in our discretion, we 

decline to do so, see Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994).