Opinion
No. 4-555 / 03-2059.
August 26, 2004.
Appeal from the Iowa District Court for Boone County, David R. Danilson, Judge.
Defendant-appellant, R.H., appeals the district court's issuance of a domestic abuse protective order. REVERSED.
Kevin Fors, Harcourt, for appellant.
James Malloy of Johnson Malloy, P.C., Ogden, for appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Defendant-appellant Raymond is the father of Danielle, who was born in February of 1990. Raymond had primary physical custody of the child, and her mother, Penny, had visitation. Penny filed a petition on behalf of Danielle for relief from domestic abuse contending that Raymond had abused Danielle. The district court entered a domestic abuse protective order following a hearing on the petition.
Raymond appeals, contending the court did not have jurisdiction to enter the order and it was not supported by substantial evidence. Raymond's primary contention is that the Domestic Abuse Act, Iowa Code section 236.2(4) (2003), does not apply to conduct between parents and their minor children and, thus, the district court was without jurisdiction to enter the order, and that the district court's findings of fact are not supported by substantial evidence. We reverse.
I. BACKGROUND FACTS AND PROCEEDINGS
The incident that gave rise to filing the petition took place at a 4-H awards ceremony on November 9, 2003. Raymond was at the awards ceremony waiting for his daughter, Danielle, to arrive. Danielle was exercising scheduled visitation with her mother, Penny, that weekend. Before Danielle arrived, Raymond was told by 4-H leaders of inappropriate conduct by Danielle. Danielle finally arrived and Raymond observed that she had put streaks in her hair, which was against his wishes. Seeing Danielle, Raymond took her outside the auditorium and confronted her about her behaviors. Following this confrontation, Raymond and Danielle went back inside the auditorium for the remainder of the ceremony. After the ceremony, Penny arrived and Danielle told her about the confrontation with her father. Then the three of them had words, during which time it was alleged that Raymond made profane remarks, threatened to shave Danielle's hair off, and threatened to physically discipline Danielle. Penny then took Danielle to the police station. The next day, November 10, the petition for relief from domestic abuse was filed in district court by Penny on behalf of Danielle. A temporary protective order was issued on November 10.
On November 18 the district court held a hearing on the matter. The district court, after specially questioning the truthfulness of both parents about what happened, found the allegations of the petition proven and entered a final domestic abuse protective order with a finding that Penny should have temporary custody of Danielle. The court ordered Raymond and Danielle to undergo four counseling sessions and then for the counselor to let the court know about visitation and, apparently, about Raymond resuming custody. Raymond appeals from this final order.
The district court judge, in oral findings, indicated he was not modifying custody on a permanent basis and he ultimately would provide for Danielle to return to her father's house.
II. SCOPE OF REVIEW
Civil domestic abuse cases are heard in equity and, thus, receive de novo review. Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001); see Iowa R. App. P 6.4. We give weight to the district court's findings, but are not bound by them. Iowa R. App. P. 6.14(6)( g). However, our review of claims of insufficient evidence to support a finding of domestic abuse is for correction of errors at law. See State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).
III. ANALYSIS
Domestic abuse requires the commission of an "assault as defined by section 708.1" and, for purposes of this case, that "the assault is between family or household members who resided together at the time of the assault." Iowa Code § 236.2(2) (2003) (emphasis added). The focal issue in this case is whether an incident between a parent and his minor child constitutes an assault between family or household members under the statute above. We determine it does not.
The definition of "family or household members" is provided by Iowa Code section 236.2(4). Section 236.2(4) provides:
a. "Family or household members" means spouses, persons cohabiting, parents, or other persons related by consanguinity or affinity.
b. "Family or household members" does not include children under age eighteen of persons listed in paragraph "a".
Section 236.2(4)(b) indicates that children under eighteen are excluded from chapter 236 coverage where the alleged assaulter is a parent. Prior to 1995 the definition of family or household members was "spouses, persons cohabiting, parents, or other persons related by consanguinity or affinity, except children under eighteen." Iowa Code § 236.2 (1995). Therefore, before 1995 "children under eighteen had no right of action for relief against domestic abuse." D.M.H v. Thompson, 577 N.W.2d 643, 645 (1998). In interpreting the amended statute, the Iowa Supreme Court held that the amendments "expanded chapter 236 protection to only those (1) persons under eighteen who are assaulted by spouses, and (2) persons under eighteen who are either emancipated or unemancipated and are assaulted by the person with whom they are simply cohabiting." Id. at 646.
The evidence here is that, if Danielle was assaulted at all (which we do not decide here), she was assaulted by a parent. Therefore, under the statute, Danielle has no right of action for relief under Iowa Code chapter 236. Danielle is not without forum, though, for there is a provision for such a matter to be addressed in juvenile court. The legislature has vested the juvenile court with jurisdiction to determine whether a child has been abused and is in need of assistance, through Iowa Code section 232.61. We reverse.
In saying this, we recognize, as the district court seemed to, that this was more an issue of disagreement between parents and daughter, and that, as the district court found, Raymond may be too controlling and Penny too liberal.
The legislature, under the provisions and protections of Iowa Code section 232, has provided remedies for the protection and removal of minor child where the child is abused, including by persons with whom they reside. The provisions of section 232 are tailored, among other things, to provide for immediate and lasting protections under the direction of the juvenile court, and if the State has reason to believe Danielle is a child in need of assistance, a petition should be filed by the State under Iowa Code section 232.
Section 232.61 states:
Jurisdiction
1. The juvenile court shall have exclusive jurisdiction over proceedings under this chapter alleging that a child is a child in need of assistance.
2. In determining such jurisdiction the age and marital status of the child at the time the proceedings are initiated is controlling.