R.M. v. D.S.

• Decision Date: 06 October 2021
• Docket Number: No. 20-1375,20-1375
• Citation: 967 N.W.2d 363 (Table)
• Parties: R.M., Petitioner-Appellee, v. D.S., Respondent-Appellant.
• Court: Iowa Court of Appeals

967 N.W.2d 363 (Table)

R.M., Petitioner-Appellee,

v.D.S., Respondent-Appellant.

No. 20-1375

Court of Appeals of Iowa.

Filed October 6, 2021

Nina Forcier of Forcier Law Office, PLLC, Waterloo, for appellant.

Sonci Kingery of Iowa Coalition Against Sexual Assault, Des Moines, for appellee.

Heard by Tabor, P.J., and Greer, and Badding, JJ.

TABOR, Presiding Judge,

Teenager D.S. appeals the imposition of a protective order for relief from sexual abuse under Iowa Code chapter 236A (2020). H.M., the teenage protected person, did not testify at the hearing. So D.S. argues the evidence provided by H.M.’s mother, R.M., and a nurse practitioner was hearsay and improper vouching. D.S. also argues the juvenile court admitted a Snapchat message without proper foundation. And he argues petitioner R.M. did not present enough evidence to justify the protective order.

We find the court properly admitted the nurse practitioner's testimony and the Snapchat exhibit. And with that proof, R.M. satisfied the preponderance-of-the-evidence standard for obtaining a protective order. So we affirm.

I. Facts and Prior Proceedings

On August 4, 2020, R.M. filed a chapter 236A petition for relief from sexual abuse against D.S. on behalf of her minor daughter H.M. According to the petition, D.S. "forced" H.M. "to have sexual intercourse" at his home around 12:30 a.m. the day before. The petition alleged H.M. "asked him to stop, tried to push him off and was not able to." R.M. took her daughter to the emergency room later that morning, where medical staff referred them to a child protective services (CPC) clinic. There, a nurse practitioner examined and treated H.M.

Under chapter 236A, the court must hold a hearing "[n]ot less than five and not more than fifteen days after" the petition is filed.¹ Iowa Code § 236A.6(1). The juvenile court set a hearing for August 10.² The court then continued the hearing until August 17 at D.S.’s request. Self-represented R.M. moved to continue the hearing beyond that date, stating counsel was not available to her and she needed more time to "gather medical documentation and witness statements." But citing the statutory time constraint, the court denied R.M.’s motion.

At the hearing, R.M. appeared on her own. She explained H.M. would not be testifying, based on medical advice concerning her physical and mental health. R.M. planned to testify and offer several unsworn statements from others. The court explained it could not accept those hearsay statements and reminded R.M. that she had the burden of proof. R.M. confessed, "I'll be honest. I don't know what I'm allowed to present and not present based on what you just kind of mentioned with having any kind of statements. I can't use them if they can't be spoken to or cross-referenced. I'm not sure what I'm allowed to present."

The court responded, "Well, I'm going to let you present—because you're a pro se person, I'm going to let you present whatever you want to present." But the court gave this warning:

[T]he rules of evidence do apply. I don't know if you have witnesses, but because you don't know the difference between direct evidence and hearsay, I'm going to let you say whatever you want to say. But what I can tell you is that if everything you have to say is hearsay, that's not going to get us to a preponderance of the evidence.

The court clarified it would rule later whether R.M.’s evidence was admissible.

R.M. then testified to events outside her personal knowledge that were conveyed to her by others, including her husband and H.M. She also testified about the existence of a medical report following the sexual abuse but did not want to offer it into evidence because of an ongoing criminal investigation. D.S. objected at several points that R.M.’s evidence was hearsay. The court "noted" these objections but did not give an immediate ruling. At the close of R.M.’s testimony, the court explained that it could not consider R.M.’s hearsay testimony.³ The court then recessed to give R.M. time to subpoena a witness. R.M. was able to subpoena the nurse practitioner who examined H.M.

Appearing by telephone, nurse practitioner Elizabeth Heying recounted what H.M. told her about the assault and her medical condition afterward. D.S. objected on hearsay grounds, but the court allowed it under Iowa Rule of Evidence 5.803(4), the exception for statements made for the purpose of medical diagnosis and treatment.⁴ During Heying's testimony, the mother asked whether bruises on H.M. were consistent with H.M.’s report that she was forced into the sex acts. D.S. objected that Heying's affirmative response was impermissible vouching for H.M.’s truthfulness. The court sustained that objection. When Heying testified H.M. identified her assailant as D.S., counsel for D.S. did not object.

After Heying testified, R.M. had one final piece of evidence. She offered a printout of a photograph she took with her phone of an incoming message to H.M.’s phone on the social media application Snapchat. The message came from an account labeled with D.S.’s first name and read, "So why u telling people I forced u too?" The time on H.M.’s phone read "7:31." R.M. testified: "[H.M.] was in the hospital when this message came through. I had taken her phone so that she couldn't talk to anyone."

D.S. objected that R.M. had not laid an appropriate foundation for the photograph establishing who sent the message or the date it was sent. After additional testimony and a second photographic exhibit from R.M., the court admitted the electronic evidence.

D.S. presented no evidence. Based on Heying's account, the court found R.M. met her burden and issued a protective order: "[T]he petitioner provided evidence, through the testimony of Elisabeth Heying, nurse practitioner that a sexual assault occurred between H.M., who is a fourteen-year-old child, and the respondent, who is a sixteen-year-old child, against the will of H.M. This conduct constitutes sexual abuse under Iowa Code section 709.4(1)(a)." D.S. appeals.

II. Scope and Standards of Review⁵

D.S. and R.M. debate the applicable standard of review. Our supreme court has not interpreted chapter 236A. So we have analogized it to the provisions for relief from domestic abuse under chapter 236. See, e g. , R.W. v. L.W. , No. 20-0872, 2021 WL 2137684, at *3 (Iowa Ct. App. May 26, 2021) ; A.N. v. J.G. , No. 19-0634, 2020 WL 2061881, at *2 (Iowa Ct. App. Apr. 29, 2020). In interpreting chapter 236, the supreme court has held appellate review depends on the mode of trial. See Bacon v. Bacon , 567 N.W.2d 414, 417 (Iowa 1997) (citing Knight v. Knight , 525 N.W.2d 841, 843 (Iowa 1994) ). In deciding chapter 236A cases, we have found that when the court ruled on evidentiary objections as they were made, it heard the case at law rather than in equity. See, e.g. , A.N. , 2020 WL 2061881, at *2 ; compare R.W. , 2021 WL 2137684, at *3 (finding court tried case in equity and reviewing de novo, noting "[t]he question of which standard of review to apply requires we visit the trial transcript").

In considering R.M.’s petition, the court reserved some objections to decide later but ruled on others as counsel lodged them. Despite this hybrid approach, we conclude the court tried the case at law, so we review for correction of errors at law. Under this standard, the court's findings are binding upon us if they are supported by substantial evidence. See Bacon , 567 N.W.2d at 417. Evidence is substantial if "a reasonable person would find it sufficient to reach a given conclusion." Mitchell v. Cedar Rapids Cmty. Sch. Dist. , 832 N.W.2d 689, 703 (Iowa 2013).

In addition, we review most evidentiary rulings for an abuse of discretion. State v. Fontenot , 958 N.W.2d 549, 555 (Iowa 2021). But we review hearsay rulings for errors at law. Id.

III. Analysis

We will address the evidentiary issues first, then proceed to the question whether substantial evidence supports granting the protective order.

A. Evidentiary Rulings

1. R.M.’s testimony

D.S. reprises evidentiary objections on appeal that he won at trial. To start, he contends R.M.’s testimony about what happened to her daughter constituted inadmissible hearsay. Hearsay is "a statement that ... [t]he declarant does not make while testifying at the current trial or hearing ... offer[ed] into evidence to prove the truth of the matter asserted." Iowa R. Evid. 5.801(a). At the end of R.M.’s testimony, the court told her it could not consider her hearsay statements. In its written order, the court reiterated that ruling: "the court ... advised [R.M.] that all the information she provided up to that point was hearsay that would have to be excluded under the Rules of Evidence."

In his appellant's brief, D.S. acknowledges the court found the statements were hearsay. But he argues

these rulings were not made on the record by the Court at the time of the hearing, the objections were only noted, and the Court did not specifically state in its final ruling that it disregarded the testimony of R.M. so it is unclear whether the Court actually dismissed it as inadmissible hearsay or whether the Court took it into consideration in making its ruling.

It is true the court only "noted" D.S.’s hearsay objections as he made them. But it is a routine practice in bench trials to reserve ruling on objections until later. See In re Det. of Tripp , 915 N.W.2d 867, 879 (Iowa 2018) (Mansfield, J., concurring in part and dissenting in part). The court disregarded R.M's hearsay testimony when granting the protective order. We find no error.

2. Nurse practitioner's testimony

Next, D.S. contends the court improperly allowed Heying to relay H.M's statements over his objections to hearsay and impermissible vouching.

a. Hearsay

Heying is a nurse practitioner with training in sexual assault exams. She works at the CPC and met H.M. there. Heying first spoke with H.M., then conducted a physical exam and "gather[ed] forensic evidence." Afterward, H.M. met with a "forensic interviewer" who did not...