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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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: OLIVER JORGENSON, Petitioner/Appellee, v. DEBORAH GIANNECCHINI, Respondent/Appellant. No. 1 CA-CV 20-0009 FC JORGENSON v. GIANNECCHINI Decision of the Court

Mother’s “failure to regularly and consistently participate in appropriate mental health treatment is contrary to the best interests of the parties’ minor child.” The court ruled:

THE COURT FURTHER FINDS that based on the Court’s findings made above, and contingent on Mother participating in long-term psychotherapy, that it is in the child’s best interest to exercise substantial frequent, meaningful and continuing parenting time with both parents.

¶6 The court further specified detailed procedures for selecting both the mental-health provider with whom Mother should treat and a second professional who would evaluate her need for medication to address her anxiety. The court ruled that if the parties could not agree on either professional, it would make the appointment from a list they provided. The court also set a status conference six months out to “determine whether Mother is complying with the Court’s orders,” and awarded Father attorneys’ fees under Arizona Revised Statutes (“A.R.S.”) § 25-324(A).

¶7 We have jurisdiction over Mother’s timely appeal pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12- 120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. The Court Exceeded Its Statutory Authority in Ordering Mother to Participate in Long-Term Psychotherapy as a Condition of Exercising Parenting Time.

¶8 Mother contends the court exceeded its authority by conditioning her parenting time on participation in long-term psychotherapy. ^[1] Arizona Rule of Family Law Procedure 95(b) authorizes the superior court to “order parties to engage in behavioral or mental health

1 Father did not file an answering brief. While we could treat this as a confession of reversible error, we choose to address the merits because Mother’s appeal involves the minor child’s best interests. In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 2 (App. 2002); see also Hoffman v. Hoffman, 4 Ariz. App. 83, 85 (1966) (“[T]o reverse the decision of the trial court concerning the custody and well being of two minor children because their mother failed or was unable to file an answering brief would not, we believe, serve the ends of justice . . . .”).

JORGENSON v. GIANNECCHINI Decision of the Court

services, including counseling and therapeutic interventions.” Ariz. R. Fam. Law P. 95(b). But procedural rules “cannot enlarge the court’s authority beyond that granted by statute.” Paul E. v. Courtney F., 246 Ariz. 388, 398, ¶ 40 (2019) (citing In re Marriage of Waldren, 217 Ariz. 173, 177, ¶¶ 20-21 (2007)). As such, “[e]very power that the superior court exercises in a dissolution proceeding must find its source in the supporting statutory framework.” Fenn v. Fenn, 174 Ariz. 84, 87 (App. 1993). We review issues regarding the application and interpretation of court rules de novo. Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App. 2012).

¶9 Under A.R.S. § 25-405(B), the court “may seek the advice of professional personnel” in determining legal decision-making authority and parenting time. The court did so in this case, and both a court- appointed advisor and the psychologist who evaluated Mother testified not only that long-term therapy could benefit her but that she may need supervision to ensure she progresses in such treatment. However, § 25- 405(B) does not authorize the court to order a parent to undergo treatment, including treatment with a specific provider, as a condition of parenting time. Cf. Paul E., 246 Ariz. at 397, ¶ 38 (stating that § 25-405(B) “nowhere authorizes the court to order treatment for a child”); id. at 397, ¶ 37 (“[Section] 25-405(B) applies only when an issue regarding legal decision- making authority or parenting time is pending before the court.”).

¶10 In short, having decided the legal decision-making and parenting time issues before it, the court had no statutory power to order Mother to participate in long-term psychotherapy going forward. 2 Because that order was the premise of the court’s ruling concerning parenting time, we vacate the parenting-time ruling and all subsequent orders concerning Mother’s psychotherapy. On remand, the superior court shall hold a hearing and determine parenting time based on the circumstances now present.

¶11 Because we are vacating the parenting-time ruling, we also vacate the attorneys’ fees award.

JORGENSON v. GIANNECCHINI Decision of the Court

II. Attorneys’ Fees on Appeal

¶12 Mother requests her attorneys’ fees and costs incurred in this appeal under A.R.S. § 25-324(A). Having considered the financial information in the record and Mother’s positions on appeal, we decline her request for fees. As the prevailing party, however, she is entitled to her costs of appeal contingent upon her compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶13 We vacate and remand the superior court’s parenting-time order, its order requiring Mother to undergo long-term psychotherapy, and its attorneys’ fees order.