DISPOSITION: REVERSED AND REMANDED COUNSEL: Hufford, Horstman, Mongini, Flagstaff, Parnell & Mc Carthy, P. We address this issue in Janette Rae Smith Riepe’s (“Stepmother”) appeal from the denial of her petition for [***2] visitation with her eight-year-old stepson, Cody, filed pursuant to § 25-415(C). § 25-415 to require her to prove that her relationship with Cody was the same as or superior to his relationship with Mother. 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. Lankford, Presiding Judge, BARKER, Judge, dissenting. OPINIONBY: TIMMER OPINION: [**313] [*91] TIMMER, Judge P1 Can the superior court award in loco parentis visitation to a widowed step-mother pursuant to Arizona Revised Statutes (“A. 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? 8 of 22 DOCUMENTS JANETTE RAE SMITH RIEPE, Petitioner-Appellant, v. 1 CA-CV 03-0184 COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT B 208 Ariz. During this time, Mother also was involved with Cody and paid child support to Father. After holding an evidentiary hearing on Stepmother’s petition and [***4] 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. P10 Section 25-415(G)(1) 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. 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. Second, awarding in loco parentis visitation against a parent’s wishes does not eliminate that parent’s rights. The person filing the petition stands in loco parentis to the child. 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 court of competent jurisdiction has not entered or approved an order concerning the child’s custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health. One of the following applies: (a) One of the legal parents is deceased. “In loco parentis” means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the [***25] child for a substantial period of time. “Legal parent” means a biological or adoptive parent whose parental rights have not been terminated. The majority misconstrues the in loco parentis statute (“ILP statute”) n6 by utilizing an alternative definition of “parent” that judicially unhinges the ties of number and gender that pertain to that term. S.”) section 25-415 (2000) is referred to throughout this dissent as the ILP statute.
n1 A “legal parent” is “a biological or adoptive parent whose parental rights have not been terminated.” A. She fed Cody, was involved in his classroom, and cared for him both before and after she married Father. Relying on dictionary definitions of “in loco parentis,” she asserts that § 25-415(G)(1) required Stepmother to show that she stood “in the place of” a natural parent in order to receive visitation rights. 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). Notice shall include a copy of the petition and any affidavits. PRIOR HISTORY: Appeal from the Superior Court in Coconino County. Mother had parenting time every other weekend, one evening a week, and extended time over school vacations. Father and Cody moved in with Stepmother and her three sons in January 2000. Tragically, Father died in a traffic accident in [***3] November 2001. One of Stepmother’s sons and Cody attended the same school, and she transported them to and from school. 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. P8 Mother counters that the court correctly interpreted § 25-415(G)(1) to require Stepmother to show that her relationship with Cody was the same as or superior to his [**315] [*93] relationship with Mother and Father. 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. The legislature did not constrain the court’s discretion by imposing additional limitations [**318] [*96] 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. [***19] P22 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). The petitioner shall provide notice as required by subsection e. P26 Because I write at some length, the following Table of Contents is provided. n7 Unless the person was a grandparent or great-grandparent requesting visitation, the legislature provided that such persons must be "in loco parentis." Id. As to any person other than a grandparent or great-grandparent, the person must show they are in loco parentis regardless of whether they are seeking custody or visitation. 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. STANDARD OF REVIEW P5 We review de novo the superior court’s interpretation and application of A. 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. 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. 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 . In sum, a person standing in loco parentis to a child for purposes of § 25-415(C) is not a “parent,” and [***14] the meaning of “parent” in other contexts, therefore, is inconsequential. 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(C) applies to non-parent visitation. A person standing in loco parentis to a child is not a “parent,” does not enjoy parental rights, n3 and therefore does not become an “additional parent,” as the Dissent suggests. 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. has physical control of the child through state compelled custody or visitation.” See P 132, infra. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child’s best interests. 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. A person who has court ordered custody or visitation rights.
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. However, based upon the evidence presented, the Court cannot [***5] factually conclude that she stood in loco parentis to Cody as defined by A. 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. 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 § 25-415(C) to apply to non-parent visitation. P17 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. 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. 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 [***15] custody of either of the child’s living legal parents who wish to retain or obtain custody.” A. n3 The Dissent takes issue with this view, stating, without authority, that “no legal parent can fully exercise ‘parental rights’ to the child when an [in loco parentis] parent . One of the legal parents is deceased or has been missing at least three months. The child’s legal parents are not married to each other at the time the petition is filed. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed. A grandparent, [***24] a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found. Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following: 1. 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. P13 In light of our conclusion that the court incorrectly interpreted [***11] and applied § 25-415(G)(1), we need not decide whether the court properly assessed the evidence using the incorrect definition of in loco parentis. [**316] [*94] Response to the Dissent P14 Our dissenting colleague asserts that we “unhinge the ties of gender and number contained within Arizona’s definition of the term ‘parent,'” P 127, infra, in an attempt to “judicially accommodate” step-relationships, P 152, infra. The Dissent’s concerns about the social ramifications of this provision are more appropriately raised to the legislature. the person filing the petition stands in loco parentis to the child. Father had primary physical custody and mother [***33] had parenting time every other weekend, one evening a week, and extended time during school vacations. At the same time, however, mother was fully engaged as Cody’s mother. Cody was five years old when his parents were divorced. Joint legal custody was awarded to mother and father. His parents were Brandy Jo Riepe ("mother") and David Alan Riepe ("father"). Stepmother was actively and appropriately involved in Cody’s life. The legislature required that the stepparent must also be in loco parentis. In January 2000, father and Cody moved in with stepmother and her three children. In November 2001, tragically, father was killed in an automobile accident.