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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

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IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS D IVISION O NE

I n re the Matter of:

D ANITA ALUPOAIEI , Petitioner /Appell ee ,

v.

T YLER CORREA , Respondent /Appellee

.

__________________________________
O ANA G. ALUPOAIEI, Third -Party/Appellant

.

N o. 1 CA- CV 2 0-0570 FC

A ppeal from the Superior Court in Maricopa County No. FC2019-000755 The Honorable Michael Rassas , Judge

VACATED AND REMANDED

COUNSEL

Rebecca L. Owen PLLC , Phoenix By Rebecca L. Owen C ounsel for Respondent/Appellee

L aw Office of Florence M. Bruemmer PC, Anthem By Florence M. Bruemmer Counsel for Third -Party/Appellant FILED 11-23-2021ALUPOAIEI v. CORREA/A LUPOAIEI Decision of the Court

2 MEMORANDUM DECISION Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.

F U R U Y A , Judge:
¶1 Oana Alup oaiei (” Grandmother”) challenges the superior court’s ruling on her petition s for third

- party legal decision

- making authority relating to her grandchild

. Because t he court erred in den ying the amended petition without a hearing , we vacate that ruling and remand for the court to consider the merits of the amended petition for third

- party legal decision

- making

. FACTS AND PROCEDURAL HISTORY 1
¶2 Danita Alupoaiei (“Mother”) and her child lived with Grandmother i n New York since the child’s birth in March 2016 until mid

2017. A New York court awarded joint custody to Mother and Tyler Correa (“Father”), w ho were not married

. In July 2017, Mother and Father moved with the child to North Carolina , where they lived together for nearly a year. ¶3 In June 2018, Mother and the c hild moved to Arizona to live with Grandmother. Mother registered the New York custody order in Arizona. In early 2019, Mother petitioned to modify the New York joint cust ody order (“2019 petition”)

. Mother sought sole legal decision

- making and primary residential parent designation because she and Father now lived in different states, and Father , a servicemember, would soon be stationed in Japan

. Father opposed the petition. The court entered temporary orders c on tinuing joint legal decision

- making , designat ing Mother the primary residential parent , and awarding Father up to one week of parenting time when he visited Arizona. Because Father was stationed
overseas, t he court gra nted his unopposed motion to stay the final

1 Grandmother objects to Tyler Correa’s statement of facts because they lack citations to the record and raise events that occurred after the ruling on appeal. See ARCAP 1 3(a)( 5), (b)(1)

. However, o ur fact ual discussion is based on our own review of the record. See Shol es v. Fernando, 228 Ariz. 455, 457, ¶ 2, n.2 (App. 2011).ALUPOAIEI v. CORREA/A LUPOAIEI Decision of the Court

3 modification hearing u nder the Service m embers Civil Relief Act

. See 50 U.S.C. §§ 3901–4043.
¶4 During the s tay, Mother re

- enlisted and was also stationed

overseas. Grandmother petitioned for third

- party sole legal decision

making authority under Arizona Revised Statutes (“ A.R.S.”) § 25 -409. The court denied the petition without a hearing, finding it did not show that all fo u r elements in § 25-409 (A) we re true, “speci fically § 25- 409(A)(2) .” A few days later , Father returned to the United States and moved for expedited temporary orders allowing him to bring the child to his temporary duty station in New York

. Father had been granted emergency leave and a humanitarian transfer so he could take custody of the child

. ¶5 While Father’s motion was pending, Grandmother amended her petition for third

- party legal decision

- making

. She a gain failed to serve either parent or their attorneys . I n response to Father’s attempt to take the child with him to New York, Grandmother filed an emergency motion without notice. She sought sole legal decision

- making, physical custody, and supervised parenting time for Father. The court issued a temporary order granting Grandmother ’s emergency motion.
¶6 The next day, Father filed an “expedited stipulation” signed by both parents , in which Mother allowed Father to keep the child u ntil her overseas deployment end ed. As a result, t he day after the court had issued the temporary order granting Grandmother sole legal decision

- making and physical custody , it issued a n order temporarily granting Father physical custod y. T he court later dismissed Grandmother’s emergency motion but did not refer to the temporary order the court had previously issued in response to that emergency motion

. 2
¶7 The court later signed a final order (1) dismiss ing Grandmother’s emergency motion and vacat ing the hea ring on that motion , (2) den ying Grand mother’s petition and amended petition for third

- party legal decision -making, and (3) dismiss ing Father’s expedited motion for

2 In yet another order, the court set a status conference on Mother’s 2019 petition to modify. It later stayed th e status conference after

we stayed the appeal because of Mother’s overseas deployment, citing the Servicemembers Civil Relief Act

. Once we lifted the stay in May 2021, the superior court held a status conference. Both parents and Grandmother appeared, and, on Mother’s request, the court dismissed her 2019 petition to modify parenting time, legal decision

- making, and child support.ALUPOAIEI v. CORREA/A LUPOAIEI Decision of the Court

4 t emporary parenting time orders

. Grandmother unsuccessfully moved for reconsideration of the order denying her petitions for thir d- party legal decision

- making.

DISCUSSION

I. Appellate Jurisdiction Exists.
¶8 Father argues that we lack jurisdiction because the notice of appeal is premature

. Father assert s t hat because the petition for grandparent visitation is pending in superior court , t he appeal from the denial of the third

- party petition is premature. W e disagree. Th e petition for grandparent visitation filed under § 25 -409(C) is a separate proceeding from the petition for third

- party legal decision

- making filed under § 25

- 409(A). Because t he ruling on the § 25

- 409(A) petition was final, the appeal is not premature. The notice of appeal was timely , and w e have jurisdiction pursuant A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

II. The Summary Denial Eliminated the Need to Serv e the Petition

. ¶9 Father contends that Gra ndmother did not serve the third

party § 25 -409(A) petition s or otherwise provide notice to either parent. Although this was not addressed in her appellate briefs, Grandmother explained in her response to Father’s motion to strike that she did not serve the third

- party petitions because the court summarily denied them

. As a result, the court never issued an order to appear to serve with the petition.
¶10 Under Arizona R ules of Family Law Procedure 27(d), a third

party petition filed under § 25 -409 (A) must be served with an order to appea r no later than twenty days before the hearing

. See also A.R.S. § 25

- 409(D) (requiring the petitioner to serve the parents notice and a copy of a petition filed under § 25 -409(A)). But w hen the court summar ily denies the petition without a hearing and before it issues the order to appear , there is no need for the petitioner to serve that petition and order to appear . T hus, t he lack of service did not prejudice Father

.
III. The Amended Petition Sufficiently A lleg ed the Elements in § 25

- 409(A).
¶11 Grandmother argues the court erred by denying the petition and amen d ed petition for third

- party legal decision

- making without a hearing. We review the court’s interpretation and application of A.R.S. § 25

- 409 de novo

. Chapman v. Hopkins, 243 Ariz. 236, 240, ¶ 14 (App. 2017).ALUPOAIEI v. CORREA/A LUPOAIEI Decision of the Court

5 ¶12 A person other than a parent can petition for legal decision

making by filing a petition under § 25 -409(A). See Id. at ¶ 15 ; A.R.S. § 25

- 402(B) (2). The court must summarily deny the petition unless it finds that the petition establishes all four statutory elements listed in A.R.S. § 25

- 409(A)

. 3 See Chapman, 243 Ariz. at 240, ¶ 16. But to withstand summary disposition, a p etition for third

- party legal decision

- making under § 25

- 409(A) need only allege that the four statutory elements exist, not prove them, and the facts alleged in the petition need not be “uncontroverted.” Chapman, 243 Ariz. at 242, ¶¶ 21 n.2, 24.
¶13 Here , Father contends Grandmother failed to show she stood in loco parentis or that it would be significantly detrimental for the child to be placed in the care of either parent. See A.R.S. § 25 -409(A)(1)– (2). Further more , the court determined Grandmother’s petition and amended petition did not sufficiently comply with § 25-409(A )(2).
¶14 To adequately plead her in loco parentis status , Grandmother had to sufficiently allege t he child treated her “as a parent” and she “has formed a meaningful parental relationship with [the] child for a substantial period of time.” A.R.S. § 25-401(1). Like the grandparents in Chapman , who stood in loco parentis , G randmother a ll eged she provided daily care and lived with the child for most of his life

. See Chapman, 243 Ariz. at 238, 242, ¶¶ 4

– 6, 22 ; see also Roberto F. v. Ariz. Dep’t of Econ. Sec., 232 Ariz. 45, 48 –49, ¶¶ 5

– 11 (App. 2013) ( stating that foster parents stood in loco parentis because they cared for the children for twenty months while the mother struggled with substance abuse and the father was incarcerated or in treatment programs ).
¶15 Grandmother alleged that she lived with the child all but nine months of his life. She alleged that she provided for the child’s daily financial, medical, emotional, and physical needs and set forth examples

.

3 The court must summarily deny a third

- party petition for legal decision

- making unless the pleading shows all four statutory e lements are true : (1) the petitioner stands in loco parentis ; (2) “[i]t would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishe s to keep or acquire legal decision

- making[;]” (3) it has been one ye ar since the last legal decision

- making or parenting time order, unless there is reason to believe the “present environment may seriously endanger the child’s physical, mental, moral or emotional health[;]” and (4) one of the child’s parents is deceased or the parents are not married to each other or a petition for dissolution or separation is pending when the petition is filed. A.R.S. § 25-409(A).ALUPOAIEI v. CORREA/A LUPOAIEI Decision of the Court

6 A t the time of the amen d ed petition , both parents were stationed overseas , and Grandmother was car ing for the child. In May 2018, when Father left Mother and the c hild in North Carolina , Mother and the child moved in with Grandmother in Arizona

. Grandmother also alleged that even when Mother lived with her, Grandmother primarily cared for the child and provided for his daily needs.
¶16 Father contends that he and Mother are fit parents, so Grandmother cannot st and in loco parentis

. Father also focuses on the superior rights of a parent

. To allege i n loco parentis standing , a third

- party need not show they have a parental relationship that replaces that of the legal parents or that their relationship is superior to the legal parents. Riepe v. Riepe, 208 Ariz. 90, 93, ¶ 10 (App. 2004); A.R.S. § 25 -401(1). Grandmother’s amended petition sufficiently alleged that she stood in loco parentis to the child

. ¶17 Next , Grandmother alleged that it would be significantly detrimental to allow the child to remain in the care of either parent. She specifically alleged that when the child lived with the parents they left l oaded firearms within his reach , did not properly care for his diaper rash , and he suffered “ bumps and bruises .” She also asserted that the parents did not provide adequate food , proper food for the child’s allergies , regular fin ancial support , or medical insurance. Grandmother alleged that it would be significantly detrimental to send the child to live with parents who frequently mov e , sometimes overseas, depending on their military assignments

. Finally, s he alleged that it would be significantly detrimental to remove the child from her stable home and care given t he ir strong bond and the child ’s request t hat Grandmother promise not to “ ‘ give him away’ again.”
¶18 Father disputes Grandmo ther’s allegations and questions her credibility . M any facts Father cites are irrelevant because they occurred after the court denied the amended petition. But more importantly, “[ §] 25- 409(A) does not require that the initial petition contain uncontroverted evidence of significant detriment for the court to consider a third party’s petition for legal decision -making.” Chapman, 243 Ariz. at 242, ¶ 24. The Chapman court found that the pleading requirement for a petition u nder § 25- 409(A) was like that in Arizona Rule of Civil Procedure 12(b)(6 ), and t he court is required to assume the truth of all well

- pled factual allegations in the petition. Id. Applying that standard, Grandmother’s amended petition sufficiently alleged that placing the child in the parents’ care would be significantly detrimental

. Therefore, w e vacate the summary denial of the amended petition and remand for re consideration o n the merits

.ALUPOAIEI v. CORREA/A LUPOAIEI Decision of the Court

7 ¶19 Given this resolution, we need not address Grandmother’s argument s that the summary denial deprived her of due process , that the parents’ stipulation was invalid , or that the stay was improper . T he stipulation was signed after the amended petition for third

- party legal decision

- making and is not re levant in deciding whether the petition contained sufficient allegations. Further, b ecause the stay was lifted, arguments relating to it are moot.

ATTORNEYS’ FEES AND COSTS ON APPEAL
¶20 W e deny Father’s request for attorneys’ fees on appeal under § 25 -324 be cause we lack any information about the parties’ financial

resources

. Grandmother i s entitled to her costs on appeal upon compliance with ARCAP 21. See A.R.S. § 12-342.

CON C LUSION
¶21 We vacate the court’s order summarily denying Grandmother’s amended petition for third

- party legal decision

- making and remand for the court to consider the merits of Grandmother’s amen d ed third

- party petition for legal decision

- making

.