Published: Reversing and Remanding
Dad appealed FC’s amendment of DVO adding minor child as protected party, contending he was improperly denied full evidentiary hearing, that FC improperly made medical findings, and that FC erred by entering DVO for minor child.
Mom and Dad, never married, had been before FC several times on Mom’s DVO petitions. In November 2009, FC entered DVO protecting Mom from Dad. In May 2010, Mom filed Motion to amend DVO to include the parties’ child. At the hearing on the Petition, Mom testified that Child had been returned to her from Dad’s care with a rash, two burns on her leg, and a bump on her head and that he did not seek medical treatment for the burns; Dad testified that he thought that Child was burned at Mom’s house. FC concluded that Child had third-degree burns and that Dad should have sought medical treatment for same, and this alone was cause to extend DVO to Child. FC ordered that Dad would have supervised visitation for 3 hours each Saturday.
Dad filed motion to alter, amend, or vacate which FC denied, and Dad appealed, arguing first, that he was denied full evidentiary hearing because court refused to hear testimony (1) from Batterers’ Intervention Instructor that he was a model student and (2) from his girlfriend that she did not notice the burns prior to taking Child to Mom’s house but they were there on her return; second, that FC should have allowed testimony that Mom attempted suicide while pregnant less than 19 months prior to hearing because custody was at issue at the hearing; and finally, that the facts did not support extension of DVO to Child.
CA first pointed out in a footnote that, although this argument was not raised by the parties, amending the terms of a DVO is fundamentally different from amending the parties to be affected by a DVO and that when a party is to be added to a DVO, the same requirements for the initial issuance of a DVO must be followed.
Regarding the testimony of the Batterers’ Intervention instructor, CA found that FC did not err by refusing this testimony as Dad’s conduct in class had little relevance to his conduct outside of class. However, CA agreed with Dad that he should have been permitted to call Girlfriend to testify regarding the timing of the burns and this error was not harmless.
CA found no error in FC refusing to hear testimony regarding Mom’s mental health history given the length of time that had passed since the alleged suicide attempt and that there were no allegations regarding Mom’s mental health status since Child’s birth.
CA found that any error by FC in making medical findings was harmless as the crux of FC’s finding was Dad’s indifference towards Child’s burns, not the degree to which Child had been burned.
Lastly, CA found Dad’s argument regarding error in issuing DVO moot because case would be remanded to FC on other grounds.
Reversed and remanded.