Opinion
No. 2-496 / 01-1728
Filed October 30, 2002
Appeal from the Iowa District Court for Polk County, Artis I. Reis, Judge.
Petitioner appeals the district court's order affirming the Department of Human Services' dismissal of his request to correct information in the child abuse information registry. AFFIRMED.
Robert A. Wright, Jr., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Mary K. Wickman, and Ann Marie Brick, Assistant Attorneys General, for appellee Iowa Department of Human Services.
Elizabeth A. Rosenbaum, Sioux City, for appellee Lynne Swanger.
Heard by Sackett, C.J., and Miller and Eisenhauer, JJ.
Donald Swanger appeals the district court's order affirming the Department of Human Services' (DHS) dismissal of his request to correct information in the child abuse information registry. He contends he was constitutionally entitled to an evidentiary hearing, and the district court erred in affirming the (DHS) finding of issue preclusion and dismissal of his action. We affirm.
I. Background Facts and Proceedings. In November 1996, the DHS, after conducting a child protective assessment, found Swanger had sexually abused two of his daughters. Swanger requested correction of the child protective assessment pursuant to Iowa Code section 235A.19 (1997). A hearing was deferred until the Swangers' dissolution proceedings concluded.
In June 1998, the district court filed the dissolution decree. The court found Swanger had sexually abused his daughters and denied him visitation. He did not appeal.
The DHS filed a motion to dismiss Swanger's request for correction of the child abuse report, citing the district court's finding that Swanger had abused his children. In September 2000, an administrative law judge granted the motion based on the doctrine of issue preclusion. Swanger filed a petition for judicial review, which the district court dismissed.
II. Standard of Review. Our review of the district court's decision on judicial review is for errors at law. Meredith Outdoor Adver., Inc. v. Iowa Dep't. of Transp., 648 N.W.2d 109, 113 (Iowa 2002). We are guided by the standards of Iowa Code section 17A.19(8) (1999) in determining whether the district court applied the law correctly. Id. We uphold the action of the agency as long as it is supported by substantial evidence in the record, and the agency did not act capriciously, unreasonably, or arbitrarily. Id. Assignments of error in judicial review proceedings that raise constitutional challenges require independent evaluation of the totality of the evidence from which the questions arise. Loder v. Iowa Dep't of Transp., 622 N.W.2d 513, 515 (Iowa Ct.App. 2000).
III. Preservation of Error. The State claims Swanger failed to preserve error on the issue of whether he was denied his constitutional right to due process. It claims this argument was not raised before the agency or the district court. Swanger resisted the DHS's motion to dismiss on the grounds that he had not had a chance to refute the allegations made against him. On judicial review, Swanger specifically claimed he should not be precluded from relitigating the issue of child abuse. However, Swanger never claims a constitutional right to a hearing. We find error was preserved on the issue of whether issue preclusion operates to deny a hearing under section 235A.19(2). We need not address whether Swanger has an independent constitutional right to a hearing.
IV. Evidentiary Hearing. Iowa Code section 235A.19(2) states:
A subject of a child abuse report may file with the department within six months of the date of the notice of the results of an assessment performed in accordance with section 232.71B, a written statement to the effect that report data and disposition data referring to the subject is in whole or in part erroneous, and may request a correction of that data or of the findings of the assessment report. The department shall provide the subject with an opportunity for an evidentiary hearing pursuant to chapter 17A to correct the data or the findings, unless the department corrects the data or findings as requested.
Swanger contends he is entitled to a hearing under section 235A.19(2), and that the doctrine of issue preclusion does not apply. We note at the outset that whether issue preclusion operates to deny a hearing under section 235A.19(2) is an issue of first impression.
"The doctrine of issue preclusion prevents a party to a prior action in which a judgment has been rendered from relitigating in a subsequent action issues raised and resolved in the previous action." Dettmann v. Kruckenberg, 613 N.W.2d 238, 244 (Iowa 2000) (quoting Brown v. Kassouf, 558 N.W.2d 161, 163 (Iowa 1997)). Issue preclusion applies when (1) the issue determined in the prior action is identical to the present issue; (2) the issue was raised and litigated in the prior action; (3) the issue was material and relevant to the disposition in the prior action; and (4) the determination made of the issue in the prior action was necessary and essential to that resulting judgment. Id. We find these four criteria are met. The issue Swanger sought to resolve in his request to correct information in the child abuse registry is whether he sexually abused his daughters. This issue was raised and litigated in Swanger's dissolution proceedings. The issue was both material and relevant to determining child custody and visitation issues in the dissolution. In order to deny joint custody and visitation, the court was required to cite clear and convincing evidence that joint custody was unreasonable and not in the best interest of the children. Iowa Code § 598.41(2)(b). It was also required to consider "whether the safety of the child . . . will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation." Iowa Code § 598.41(3)(i). As a result, a finding that Swanger had or had not abused his daughters was necessary and essential.
Although Swanger attempts to distinguish the issue raised in the dissolution from the issue to be raised in the hearing by citing the definitions of "report data" and "disposition data" set forth in Iowa Code section 235A.13, we conclude the ultimate issue remains whether he committed the abuse.
Issue preclusion may only be used where the parties in both actions are the same, or where there is privity between the party against whom issue preclusion is invoked and the party against whom the issue was decided in the first litigation. Id. However, these requirements may be waived under certain circumstances. Hunter v. City of Des Moines, 300 N.W.2d 121, 126 (Iowa 1981); American Family Mut. v. Allied Mut. Ins. 562 N.W.2d 159, 164 (Iowa 1997). Issue preclusion may be used offensively where the four requirements of issue preclusion articulated above are met and (1) where the party was afforded a full and fair opportunity to litigate the issues in the previous action, and (2) where any other circumstances are present that would justify granting the party occasion to relitigate those issues. It may be used defensively if the party against whom issue preclusion is invoked was so connected in interest with one of the parties in the former action as to have had a full and fair opportunity to litigate the relevant claim or issue and be properly bound by its resolution.
Opheim v. American Interinsurance Exch., 430 N.W.2d 118, 120 (Iowa 1988).
We find issue preclusion applies to Swanger's request to correct information in the child abuse registry. Although this case does not fit neatly into either offensive or defensive use of issue preclusion, Swanger was afforded a full and fair opportunity to litigate the issue of whether he sexually abused his daughters during the dissolution proceedings. The challenge to the registry was pending while the dissolution was litigated. The burden of proof used by the DHS in assessing child abuse is by a preponderance of the evidence. The trial court in the dissolution found by clear and convincing evidence that Swanger had abused his children. Swanger has not indicated any circumstances that would justify allowing him a hearing to relitigate the issue. Accordingly, we affirm the district court's order affirming the dismissal of his request to correct information.