Opinion No. 104
from the District Court of the Fourth Judicial District of
the State of Idaho, Ada County. Hon. Andrew Ellis, Magistrate
order of the magistrate court is affirmed.
Eismann Law Offices, Nampa, for appellant. Debra L. Eismann
Doe, Meridian, pro se respondent.
Doe was involved in a physical altercation with his sixteen
year old daughter, C.G., resulting in C.G. sustaining a
concussion and cervical strain. The magistrate court entered
a civil protection order, which it subsequently modified.
John Doe appeals from these orders. John Doe argues that the
magistrate court erred when it determined that there was an
"immediate and present danger of domestic violence"
warranting issuance of the protection order and that the
court abused its discretion when it specified that the
protection order would be in effect for a year. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Doe and Jane Doe are the father and mother of C.G., a child
born in 1999, and share joint legal and physical custody of
C.G. The parties' briefing before this Court present
markedly different accounts of the events of August 22, 2015,
which resulted in the issuance of a protection order
("the incident"). Our description of the incident
is primarily based on the evidence presented to the
magistrate judge in the form of medical records, a report of
a child protection investigation and John Doe's
was significant conflict between John Doe and Jane Doe
regarding custody and visitation issues regarding C.G. both
before and after a three-day custody trial in January of
2015. That trial resulted in John Doe receiving visitation
with C.G. on alternating weekends and extended visitation
over certain holidays and during the summer. Before the
incident, C.G. had been exhibiting troubling symptomatology,
including self-harm by cutting herself, anger, and
depression, which culminated with her running away from her
mother's home the week before the incident. In the child
protection investigator's view, C.G.'s difficulties
appeared "to be in direct correlation to the ongoing
tension between her parents."
August 22, 2015, C.G. was visiting her father's home.
John Doe, his wife and C.G. attended a rodeo. Over the course
of the day tension developed between C.G. and John Doe. C.G.
reported to her mother that John Doe had been drinking. The
Doe family returned home after 11 p.m. C.G. was upset upon
their return and went outside to telephone her mother. When
she returned inside, John Doe attempted to speak with her,
but C.G. refused to speak with him and went to her room.
Around 11:30 p.m., John Doe went into C.G.'s room to talk
with her about why she was upset. Apparently still unwilling
to speak with John Doe, C.G. put earbuds in her ears, turned
up the volume of the music playing on her cell phone, and
rolled over on her bed, turning her back to John Doe.
Doe had imposed restrictions on C.G.'s cell phone use in
his home, and C.G. was required to turn her cell phone off
and put it away at bedtime. John Doe removed the earbuds from
C.G.'s ears and told her that she needed to put the cell
phone away and go to bed. C.G. responded with a curse
("F*** you"). John Doe then snatched the cell phone
from her. C.G. attempted to wrestle it back which resulted in
a physical altercation. C.G. bit John Doe twice. John Doe
told C.G. that if she kept biting him he would
"smack" her. C.G. continued biting him and John Doe
"smacked her a couple of times" to cause her to
stop biting him.
Doe's wife entered the room and took the phone, agitating
C.G. further. John Doe then attempted to hold onto C.G.,
explaining that he did so because he was concerned that C.G.
might run away because she was angry. John Doe's attempts
to restrain her prompted C.G. to bite him again. He
"smacked her again" and she ceased biting him. John
Doe testified that he never became angry or lost his temper
during the incident.
called Jane Doe afterwards to report that John Doe "had
smacked her in the head." The next morning, C.G. did not
feel well and Jane Doe asked John Doe to take C.G. to the
emergency room, which he did. The examining physician
concluded that C.G. "suffered concussion and cervical
August 25, 2015, Jane Doe filed a petition for a protection
order on behalf of C.G., seeking protection from John Doe. On
August 26, 2015, the magistrate court issued a temporary ex
parte protection order and issued an order for a child
September 9, 2015, the magistrate court held a hearing on the
protection order. The magistrate judge interviewed C.G.
outside of her parents' presence, but did not discuss the
incident with her. Rather, the magistrate judge inquired as
to C.G.'s wishes regarding the issuance of a protection
order and her views as to her future relationship with her
father. At the conclusion of the hearing, the magistrate
court found that the preponderance of the evidence
established an immediate and present danger of domestic
violence and entered a protection order prohibiting all
contact between John Doe and C.G. for one year.
September 23, 2015, John Doe filed a motion for
reconsideration or in the alternative a motion to modify the
protection order. On October 9, 2015, the magistrate court
held a hearing on John Doe's motion. The magistrate court
denied John Doe's motion for reconsideration and modified
the protection order to permit unlimited telephone phone
contact between John Doe and C.G. and attendance and
participation in a parenting class. On December 2, 2015, the
magistrate court ...