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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TIARA SALAZAR, Plaintiff/Appellee, 

v.

NIGUEL ANAYA GUEVARA, Defendant/Appellant. 

No. 1 CA-CV 18-0443 FC

Appeal from the Superior Court in Maricopa County

No. FC2018-093927 

The Honorable Margaret Benny, Judge Pro Tempore

AFFIRMED AS MODIFIED

COUNSEL

Tyler Allen Law Firm, Phoenix

By Shannon Peters

Counsel for Defendant/Appellant 

FILED 3-28-2019
SALAZAR v. GUEVARA

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2 

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Niguel Guevara (“Father”) appeals the trial court’s order of 

protection entered against him on behalf of Tiara Salazar (“Mother”) and 

their two minor children, E.G. (born in 2006) and S.G. (born in 2014). For 

the following reasons, we modify the order to exclude S.G. and otherwise 

affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

¶2 We view the facts and evidence in the record in the light most 

favorable to upholding the trial court’s decision. Mahar v. Acuna, 230 Ariz. 

530, 532, ¶ 2 (App. 2012). Mother and Father are the parents of E.G. and S.G.

The parents share parenting time with the children. In June 2018, Father 

was arrested on the suspicion he punched the older child, E.G., in the face 

with a closed fist. Father eventually was released without charges being 

filed. Mother then petitioned the superior court for an order of protection, 

requesting that the order cover her, E.G., and S.G., at her home and the 

children’s schools. The court granted Mother’s petition ex parte and Father 

requested a hearing.

¶3 At the hearing, Mother testified she learned about the 

punching incident from the Department of Child Safety (“DCS”). Mother

further testified that on the weekend in question, she was waiting for Father 

to return the children after his parenting time and, when she texted Father’s 

mother, rather than reveal he had been arrested, Father’s mother stated 

Father was in the hospital. Mother testified the officer who had arrested 

Father later told her that E.G. told police that Father had punched him in 

the face. Mother also testified she believed E.G. lied to DCS about the 

punching incident when DCS caseworkers interviewed him. Finally, 

Mother testified the younger child, S.G., was present at the time of the 

incident, but was unable to report what happened because of his young age.

¶4 To rebut Mother’s testimony, Father and his girlfriend, 

Angelica Luna, testified and Father offered several exhibits into evidence. 

Luna testified there was a fight between Father and Father’s brother, 
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Andrew, on the evening in question, but that Father never hit E.G.

According to Luna, Father became upset with E.G. after E.G. attempted to 

leave the house with Andrew’s son. Father then sent E.G. to bed. At some 

point, Father and Andrew started fighting while Luna was inside. Though 

Luna could not say why the police arrived, she testified that the police came 

in and ordered everyone outside. In front of the house, Luna found E.G

sitting in his aunt's van, holding an ice pack and crying because “he was . . 

. scared.” Luna said she did not know who gave E.G. the ice pack. 

¶5 Father testified he and Andrew began fighting in the living 

room after an argument in front of several house guests, including Luna. 

According to Father, Andrew and his family left the house after the fight 

but then Andrew’s wife began “banging on the door” to try to re-enter the 

house. Father testified he instructed his brother-in-law, Bryan, not to let 

Andrew’s family back inside because several items in the house had been 

broken, including a TV. Father added that while Andrew’s wife was still 

“banging on the door,” he and everyone else in the house went to sleep, 

only to be awoken later by the police knocking on the door. Father did not 

deny that E.G. was holding an ice pack at some point during the evening 

and could not explain why E.G. had the ice pack. Father also offered in 

evidence a copy of an “Aftercare Plan” from DCS that stated “cases will be 

closed / unsubstantiated,” apparently in reference to the investigation DCS

initiated after it learned of his arrest.

¶6 The court entered a minute entry in which it found by a 

preponderance of the evidence that Father had committed an act of 

domestic violence and that good cause existed to continue the ex parte order 

of protection; it accordingly issued an order to the same effect. Father now 

appeals.

DISCUSSION

¶7 Father argues the court abused its discretion by failing to 

make findings and conclusions of law on the record, continuing the order 

of protection despite insufficient evidence, and including S.G. on the order 

of protection. Mother did not file an answering brief. Though we could treat 

her failure to file an answering brief as a confession of error, in our 

discretion, we decline to do so. Thompson v. Thompson, 217 Ariz. 524, 526, ¶ 

6, n.1 (App. 2008); see also Arizona Rule of Civil Appellate Procedure 

15(a)(2).

¶8 On the filing of a verified petition pursuant to Arizona 

Revised Statutes (“A.R.S.”) section 13-3602(A), the court shall issue an order 
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of protection when it finds reasonable cause to believe the defendant may 

commit an act of domestic violence or has committed such an act within the 

past year. A.R.S. § 13-3602(E). “Domestic violence” is defined by statute and 

includes assault as defined in section 13-1203. A.R.S. § 13-3601(A). A person

commits assault, as relevant here, by “[i]ntentionally, knowingly or 

recklessly causing any physical injury to another person” or by 

“[k]nowingly touching another person with the intent to injure.” A.R.S. § 

13-1203(A).

¶9 We review an order of protection for abuse of discretion.

Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App. 2014). “A trial court abuses 

its discretion when it makes an error of law in reaching a discretionary 

conclusion or when the record, viewed in the light most favorable to 

upholding the trial court’s decision, is devoid of competent evidence to 

support the decision.” Id. (internal quotation marks and citation omitted).

¶10 After hearing the testimony, the court found on the record 

that there were “sufficient grounds” to continue the order of protection. In 

its subsequent minute entry, the court found “that [Father] has committed 

an act of domestic violence against Plaintiff within the last year or may 

commit an act of domestic violence in the future.” Father argues the trial 

court erred by merely stating that it had found “sufficient grounds” to 

continue the order of protection. Instead, Father contends the court was 

required to expressly find Father had committed an act of domestic violence

because Arizona Rule of Protective Order Procedure 38(h) requires a court 

to “state the basis for continuing” a protective order. The only incident 

alleged in Mother’s petition, and the only incident at issue during the 

hearing, was that Father punched E.G. in the face. By finding on the record 

that sufficient grounds existed to continue the order, the court implicitly 

found that, by a preponderance of the evidence, Father had hit E.G.

¶11 Father next argues there was insufficient evidence to support 

the court’s decision to uphold the order of protection. At the hearing, the 

parties presented conflicting evidence, with Mother testifying that she had 

heard reports that Father had hit E.G. in the face and Father and Luna 

testifying Father had not done so. Mother also presented an arrest citation 

from the Chandler Police Department stating Father had been arrested for, 

inter alia, assaulting an unspecified minor on the night in question. Father

presented documents showing that he had not yet been charged with the 

offenses he had been arrested for, including assault on a minor, and a 

photograph of an “Aftercare Plan” from DCS noting that “cases will be 

closed / unsubstantiated.” The photographed page from DCS did not 

indicate which child it was related to, what the “cases” were, or whether 
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they involved the alleged assault on E.G. However, the DCS Aftercare Plan 

was dated within 10 days of Father’s arrest and noted “co-parenting 

relationships are non-functional.” Father and Luna offered conflicting 

versions of the night in question, including where the alleged fight between 

Father and Andrew took place and when the police arrived. Finally, neither 

Father nor Luna could explain why E.G. was holding an ice pack while the 

police were present or where E.G. had gotten the ice pack. Because the trial 

court “is in the best position to judge credibility of witnesses and resolve 

conflicting evidence,” we generally defer to the trial court’s findings. 

Cardoso v. Soldo, 230 Ariz. 614, 619, ¶ 17 (App. 2012) (citation omitted). 

Viewing the evidence in the light most favorable to upholding the trial 

court’s ruling, as we must, the court did not abuse its discretion in

continuing the order of protection as to Mother and E.G. See Mahar, 230 

Ariz. at 532, ¶ 2. 

¶12 Father additionally argues S.G., the parties’ younger child, 

should not be included on the order of protection. “A judicial officer cannot 

include a defendant’s child in a protective order unless there is reasonable 

cause to believe: (A) physical harm may result or has resulted to the child, 

or (B) the alleged acts of domestic violence involved the child.” Ariz. R. 

Protect. Ord. P. 5(b)(1). Moreover, before granting a protective order 

prohibiting contact between a parent and child, “the judicial officer must 

consider: (1) whether the child may be harmed if the defendant is permitted 

to maintain contact with the child, and (2) whether the child may be 

endangered if there is contact outside the presence of the plaintiff.” Ariz. R. 

Protect. Ord. P. 35(b). Nothing in the record indicates the trial court 

considered Father’s relationship with S.G., and there is no evidence or 

allegation that Father committed an act of domestic violence against S.G. 

The trial court abused its discretion in continuing the order of protection as 

to S.G. in the absence of evidence regarding harm or potential future harm 

to S.G. Accordingly, we vacate the order of protection as to S.G. only.

CONCLUSION

¶13 For the foregoing reasons we modify the order of protection 

to remove S.G. and otherwise affirm the order.

¶14 On appeal, Father requests his costs and attorney’s fees. In our 

discretion we decline to award Father his attorney’s fees. Father has not 

been charged a filing fee for filing this appeal. Because Father partially 

prevailed, however, we award him his remaining taxable costs, if any, on 
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compliance with Arizona Rule of Civil Appellate Procedure 21.