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In re D.S.

Supreme Court of Iowa

November 21, 2014

IN THE INTEREST OF D.S., Minor Child. D.S., Minor Child, Appellant, STATE OF IOWA, Appellee

On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Allamakee County, Alan D. Allbee, Associate Juvenile Judge. The State seeks further review of a court of appeals decision reversing a juvenile court order adjudicating a child delinquent, in violation of Iowa Code section 708.7(1)(b) .

Thais A. Folta, Elwood, O'Donohoe, Braun & White, L.L.P., Cresco and John Slavik, Elwood, O'Donohoe, Braun & White, L.L.P., Charles City, for appellant.

Thomas J. Miller, Attorney General, Bruce L. Kempkes, Assistant Attorney General, and Jill M. Kistler, County Attorney, for appellee.

OPINION

Page 349

ZAGER, Justice.

A juvenile accused of harassing a peer during an after-school confrontation appeals from her delinquency adjudication. She contends that there was insufficient evidence to support the finding that she committed harassment under Iowa Code section 708.7(1)( b ). She also contends that her delinquency adjudication violated her First Amendment rights under the United States Constitution. Upon our de novo review, we conclude there was insufficient evidence to support the finding that the juvenile committed harassment. Because we reach this conclusion on different grounds than did the court of appeals, we vacate the decision of the court of appeals and reverse the judgment of the juvenile court.

I. Background Facts and Proceedings.

On February 20, 2013, K.B. approached New Albin Police Chief, Kent Orr, and told him that her fifteen-year-old daughter, T.B., had been harassed at school by a fellow classmate, fifteen-year-old D.S.

Based on this report, Chief Orr went to the home of D.S., who lived with her mother in New Albin. According to Chief Orr, D.S. answered the door and immediately said, " Let me guess. This is about [T.B.]" Chief Orr told D.S. he had received a complaint that she had been harassing T.B. D.S. replied, " I hate that f*cking b*tch." Orr then asked D.S. if she talked to T.B. at school. D.S. answered, " I don't ever talk to that nasty b*tch because she stinks and she f*cked the bus driver. I don't like her and can't stand being around her." Before leaving the house, Chief Orr instructed D.S. not to have any contact with T.B.

Chief Orr then met with T.B. and her mother at the police station. At Chief Orr's request, T.B. wrote a statement of the incident in question. T.B. wrote:

I was walking home from the bus and [D.S.] yelled " T-bitch" so I turned around and I thought she was talking to me so [I] told her " What?" and then she said " I wasn't talking to you you fat skanky b*tch! I'm way better than you [and] prettier than you and I'm not desperate like you to sleep with the bus driver." I replied, " I don't care about looks at least I have a heart." [D.S. responded,] " Whatever you skanky b*tch!" [D.S.] bullied me about every day since kindergarten.

K.B. added, " Earlier last year we had our house for sale because the harassment is so bad we don't know what else to do."

Later that day, Chief Orr spoke with the mother of D.S. Chief Orr asked her whether she was aware of " what was going on." She answered, " Yes, [T.B.] has issues. She has no friends and is just a spoiled

Page 350

little brat." Chief Orr informed her he had directed D.S. not to have contact with T.B. and asked for her assistance in preventing future harassment. She replied, " Yeah, well . . . I'll do my best."

On March 11, the State filed a " Petition Alleging Delinquency" alleging D.S. had committed a delinquent act as defined in Iowa Code section 232.2(12), specifically harassment in the third degree in violation of Iowa Code sections 708.7(1)( b ) and 708.7(4). According to the petition, D.S. " did purposefully and without legitimate purpose, have personal contact with another person, with the intent to threaten, intimidate, or alarm that other person."

An adjudicatory hearing was held in juvenile court on May 9. The court heard testimony from Chief Orr, K.B., T.B., D.S., and one of T.B.'s neighbors who witnessed part of the encounter. T.B. testified that on February 20,

[D.S.] yelled b*tch, and I turned around and asked her if she needed to say anything to my face, and she said, " Yeah, well, you're a fat skank, and I can get with any guy I want, and you can go die in a hole." And I [said], " Well, I don't care how I look or I don't care about my weight, but at least I'll get farther in life than you'll ...

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