Opinion
No. 2-367 / 01-1445
Filed August 28, 2002
Appeal from the Iowa District Court for Franklin County, Peter B. Newell, District Associate Judge.
Father appeals the juvenile court order adjudicating his minor child a child in need of assistance.
AFFIRMED.
Brian D. Miller of Drews Miller, P.C., Hampton, for appellant.
Larry Johnson of Walters Johnson, Iowa Falls, for mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Bernt Symons, County Attorney, and Daniel Wiechmann, Jr., Assistant County Attorney, for Appellee-State.
Randy Johansen, Hampton, guardian ad litem for minor child.
Considered by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Father appeals the juvenile court order adjudicating his minor child a child in need of assistance pursuant to Iowa Code section 232.2(6)(b) (Supp. 2001). We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Troy is the biological father and primary caretaker of Adam, born July 22, 1989. On May 9, 2001 the Iowa Department of Human Services (DHS) received a report of child abuse alleging Troy had chased Adam around their house and beat him with a belt, leaving bruises. After investigating the incident, as well as a subsequent incident and past incidents, the DHS determined that physical abuse was confirmed and placed a "founded" report of abuse on the state child abuse registry with Troy as the person responsible for the abuse. Based on the suspected abuse the DHS obtained a temporary removal order removing Adam from Troy's home.
On May 17, 2001 the State filed a petition alleging Adam to be a child in need of assistance (CINA) under Iowa Code section 232.2(6)(b). The CINA petition alleged Adam was a child whose parent had physically abused or neglected him, or was imminently likely to do so. A hearing was held on the CINA petition on August 28, 2001. The court heard testimony from Adam, the DHS caseworker, Troy, and others, and received certain documents in evidence. At the close of the testimony the juvenile court made an oral ruling from the bench adjudicating Adam a CINA under section 232.2(6)(b). The court subsequently filed a written ruling on September 4, 2001, confirming its previous oral ruling. Troy filed an appeal from the juvenile court's adjudication order on September 7, 2001 and the supreme court granted interlocutory appeal on February 11, 2002.
II. STANDARD OF REVIEW
Our review of an action arising from CINA proceedings is de novo. Iowa R. App. P. 6.4; In re B.B., 598 N.W.2d 312, 315 (Iowa Ct.App. 1999). Of paramount concern is the welfare and best interest of the child. In re A.D.L., 497 N.W.2d 178, 180 (Iowa Ct.App. 1992). Although on review we are not bound by them, "we give weight to the juvenile court's findings of fact because the juvenile court has had the unique opportunity to hear and observe the witnesses first hand." In re S.V., 395 N.W.2d 666, 668 (Iowa Ct.App. 1986); Iowa R. App. P. 6.14(6)( g). The State has the burden of proving the allegations in the CINA petition by clear and convincing evidence. Iowa Code § 232.96(2).
III. MERITS
On appeal Troy argues (1) the juvenile court erred in concluding Adam was a CINA under section 232.2(6)(b), (2) the court's ruling denied him his constitutional right to raise his child in the manner he deems appropriate and infringes upon his constitutional right to free practice of religion, and (3) the court erred in allowing into evidence over proper objection a mental health report offered by the State. We will address these issues separately, in a slightly different order.
A. Admissibility of Report
Troy argues on appeal that the trial court erred in allowing into evidence a mental health report offered by the State, despite his proper objection to the report. When the State offered the mental health report into evidence during its case-in-chief, Troy objected based on hearsay, no opportunity to cross-examine the maker of the report, and no opportunity to voir dire the author regarding her expertise. The court overruled the objections based on Iowa Code section 232.96(6).
Troy concedes, and we agree, that the hearsay objection was not valid under section 232.96(6) and waives that argument on appeal.
Child in need of assistance proceedings are equitable in nature. See In re E.J.R., 400 N.W.2d 531, 532 (Iowa 1987) (noting the equitable nature of juvenile proceedings, in a proceeding to terminate parental rights). Our review in CINA proceedings is de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). When evidence is objected to in an equitable proceeding the evidence should be admitted subject to the objection. In re Estate of Evjen, 448 N.W.2d 23, 24 (Iowa 1989); see also In re C.D., 508 N.W.2d 97, 101 (Iowa Ct.App. 1993) (holding juvenile court should have allowed cross-examination subject to the objection in termination of parental rights case). In this way we have the evidence before us on appeal and can make our own determination as to admissibility. In re Marriage of Anderson, 509 N.W.2d 138, 142 (Iowa Ct.App. 1993); C.D., 508 N.W.2d at 101. The juvenile court's admission of the evidence preserved the record for our de novo review and we are thus in a position to make our own determination concerning admissibility, if necessary.
Initially, we note that nothing in the juvenile court's oral or written ruling indicates the court relied on the report for any of its findings or conclusions. Nor does the report appear to contain information of significance to the court's CINA determination. In fact, there is information in the report that is favorable to Troy, such as the statement that Adam misses his father and his hometown, and he very much wants to continue his relationship with Troy. However, without deciding if the mental health report was properly admitted into evidence, on our de novo review we give it no consideration as we find nothing of consequence in it.
We note in passing that the Sixth Amendment right of confrontation does not apply to CINA proceedings. In re L.K.S., 451 N.W.2d 819, 822 (Iowa 1990).
B. Sufficiency of the Evidence
Troy argues the juvenile court erred in concluding that Adam was a CINA under section 232.2(6)(b) because there was insufficient evidence that Adam suffered any injury from Troy at any time. Iowa Code section 232.2(6)(b) defines a child in need of assistance, in part, as a child whose parent has physically abused or neglected them, or is imminently likely to do so. Iowa Code § 232.2(6)(b).
As set forth above, although on our de novo review we are not bound by the findings of the court, "we give weight to the juvenile court's findings of fact because the juvenile court has had the unique opportunity to hear and observe the witnesses firsthand." In re S.V., 395 N.W.2d at 668. The juvenile court set forth in detail the testimonial evidence received from Adam, the DHS caseworker, and Troy, and documents received in evidence. Among other things, Adam testified as to bruises left on him by Troy striking him with a belt, and a bruise on him caused by Troy pushing him into a doorknob. The juvenile court made explicit credibility findings as to both Troy and Adam. The court found and concluded,
The Court in reaching its decision has made a determination that Adam['s] . . . testimony is more credible than the testimony of Troy. . . . This is based on the demeanor of Adam . . . in court and the demeanor of his father during his testimony.
It is abundantly clear to the Court that Adam . . . is afraid of his father and is afraid of being struck with the belt. Adam . . . expressed fear of his father's bad moods. Adam['s] . . . testimony is that his father chases him with a belt and that Adam screams at his father not to hit him. Adam . . . describes being hit by the belt more than three times and did not describe a backhand flicking motion.
The Court finds Troy['s] . . . testimony to be less credible. Troy . . . testified that when he flicks his son with the belt, his son giggles and jumps around. However, Troy . . . testified that this produces the desired result of having Adam take him seriously and results in a correction of Adam's behavior. This does not strike the Court as plausible.
. . .
The Court concludes that Adam's testimony is more credible, and based upon his testimony the Court concludes that Adam has been physically abused by his father. The Court finds that the State has met its burden of establishing by clear and convincing evidence that Adam has been physically abused or is imminently likely to be abused or neglected by his father.
We give great deference to the trial court on issues of witness credibility. McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 825 (Iowa 1996). After doing so we find clear and convincing evidence in the record to support the juvenile court's conclusion that Adam had been physically abused by Troy. Upon our de novo review of the record we also find that Troy had physically abused Adam.
C. Constitutional Challenge
Finally, Troy argues the court's ruling adjudicating Adam a CINA denied Troy his constitutional right to raise his child in the manner he deems appropriate and infringes on his constitutional right to free practice of his religion. Specifically, Troy asserts his method of punishment is corporal punishment and the use of corporal punishment is consistent with his religious beliefs. He alleges that by initiating the child abuse investigation and filing a CINA petition the DHS and the State are infringing on his constitutional right to freely practice his religious beliefs.
The State argues Troy has not preserved this issue for our review because the juvenile court did not address this issue in its CINA ruling and Troy failed to file an Iowa Rule of Civil Procedure 1.904(2) motion. An issue must ordinarily be presented to and passed upon by the trial court before it may be raised and adjudicated on appeal. Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). This is true even if the issue is constitutional in nature. State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982). A motion pursuant to rule 1.904(2) seeking to enlarge or amend findings and conclusions of the trial court is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory properly submitted to it for adjudication. State Farm Mut. Auto Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984). This rule is applicable to juvenile court termination proceedings, In re A.R., 316 N.W.2d 887, 889 (Iowa 1982), and to juvenile court CINA proceedings, In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994).
Here, the juvenile court did note Troy's argument that his method of discipline was corporal punishment and that the application of this type of punishment was consistent with his religious beliefs. However, the court expressly found it unnecessary to determine whether corporal punishment constitutes per se physical abuse in order to reach a decision regarding the CINA petition. This brief mention is the only time in the entirety of the court's opinion that Troy's constitutional argument is mentioned. Troy did not file a rule 1.904(2) motion asking the court to address or resolve this issue. Accordingly, we seriously question whether error was preserved on this issue. However, assuming without deciding that error was preserved, we will address the merits of the claim.
Iowa law has established that parents have a right to inflict corporal punishment in rearing their children. In re B.B., 598 N.W.2d at 315; Bacon ex rel. Bacon v. Bacon, 567 N.W.2d 414, 418 (quoting State v. Arnold, 543 N.W.2d 600, 603 (Iowa 1996)); Hildreth v. Iowa Dep't of Human Servs., 550 N.W.2d 157, 159 (Iowa 1996). However, this right is restricted by moderation and reasonableness. Bacon, 567 N.W.2d at 418. "[A] parent must not `punish with undue severity or cruelty, or only because he is angered with the child and thereby gratifies his own aroused passions.'" In re B.B., 598 N.W.2d at 315 (quoting State v. Fischer, 245 Iowa 170, 177, 60 N.W.2d 105, 109 (1953)). In determining whether the punishment crosses the line from corrective to abusive, the court looks at the amount of force used while taking into account the child's age, physical condition, and other characteristics, as well as the gravity of the child's misconduct. Id. at 315-16.
Troy argues the juvenile court's finding that Adam was a CINA infringes on his right to use corporal punishment and thereby his constitutional right to freely practice his religion which approves of such punishment. We have already determined there is clear and convincing evidence in the record to support the juvenile court's determination that Adam had been physically abused by Troy inflicting bruises on him. Accordingly, it is clear that Troy's corporal punishment did in fact "cross the line" and constituted physical abuse of Adam. Based on this determination, we conclude the CINA adjudication is not an infringement of Troy's constitutional right to free practice of religion.
"[N]either rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth's well being, the state as parens patriae may restrict the parent's control . . ." over their children. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, 652 (1944). The State's authority to regulate a parent's behavior "is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience." Id. at 166, 64 S.Ct. at 442, 88 L.Ed. at 652-53. "[T]he state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare; and . . . this includes, to some extent, matters of conscience and religious conviction." Id. at 167, 64 S.Ct. at 442, 88 L.Ed. at 653.
In cases in which harm to the physical or mental health of the child or to the public safety, peace, order, or welfare is demonstrated, these legitimate state interests may override the parents' qualified right to control the upbringing of their children.
City of Panora v. Simmons, 445 N.W.2d 363, 369-70 (Iowa 1989) (quoting Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1264 (M.D.Pa. 1975), aff'd, 535 F.2d 1245 (3rd Cir. 1976), cert. denied, 429 U.S. 964, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976)).
The State has a compelling interest in protecting the children of this state from abuse by their parents. While parents have a right to the free exercise of religion, including the use of corporal punishment subject to the limitations mentioned above, they do not have the right to physically abuse their children. If in exercising religious freedom a parent's actions cross the line from correction to abuse the State's legitimate interest, and in fact its parens patriae duty, overrides the parent's right in order to protect the safety of the child.
This is precisely what took place in the case at hand. Troy's right to practice his religion freely does not include the right to abuse Adam by physically injuring him. His freedom to exercise his alleged religious beliefs cannot occur at the price of violating Adam's right to live in safety, without physical abuse, or the State's duty to ensure this right.
IV. CONCLUSION
Based on our de novo review, and for all of the reasons set forth above, we conclude there is clear and convincing evidence in the record to support the juvenile court's adjudication of Adam as a child in need of assistance under Iowa Code section 232.2(6)(b). We further find the juvenile court's decision did not infringe on Troy's right to free practice of his religion through corporal punishment. Troy's actions crossed the line from correction to abuse. Although parents have a right to limited use of corporal punishment and to freely exercise their religion, they do not have a right to physically abuse their children. Without determining whether the court erred in admitting the mental health report, on our de novo review we give no consideration to that report. The juvenile court's adjudication of Adam as a child in need of assistance is affirmed.
AFFIRMED.