IN THE INTEREST OF K.K.C., Minor Child, C.N., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-938 / 06-1589
Filed December 28, 2006
IN THE INTEREST OF K.K.C.,
Minor Child,
C.N., Mother,
Appellant.
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Appeal from the Iowa District Court for Cass County, Mark J. Eveloff
(adjudication) and Kathleen A. Kilnoski (disposition), District Associate Judges.
A mother appeals from a juvenile court order adjudicating her child to be a
child in need of assistance. AFFIRMED.
Patrick A. Sondag, Council Bluffs, for appellant-mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, and Daniel Feistner, County Attorney, for appellee.
David Larson of Hanson & Sulhoff, Avoca, for father.
Andrew Knuth, Atlantic, guardian ad litem for minor child.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MILLER, J.
A mother appeals from a juvenile court order adjudicating her child to be a
child in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(d)
(2005) (child who has been, or is imminently likely to be, sexually abused by a
member of the household in which the child resides). We affirm.
Crystal is the mother of Kaylee, born in early 2002, and Ali, born in mid2005.
Kaylee’s father is Jarrod, and Ali’s father is Nolan.
Nolan was
incarcerated during the juvenile court proceedings in this case.
Crystal and Jarrod lived together after Kaylee’s birth, but separated when
Kaylee was about one and one-half years of age, approximately mid-2003. At
some subsequent time Crystal and Ehren began cohabiting. Crystal and Jarrod
shared Kaylee’s physical care, exchanging her each two weeks.
In early
November 2005 the Iowa Department of Human Services (DHS) conducted a
child abuse investigation after Kaylee, during a two-week period with Jarrod, told
Jarrod and his girlfriend, Heidi, that Ehren had sexually abused her. The DHS
investigation led to a “founded” report of sexual abuse by Ehren.
The State filed a petition alleging Kaylee was a CINA. It later filed a
petition alleging Ali was a CINA. Following a June 6, 2006 hearing the juvenile
court filed its ruling in August.
It found that Crystal had abided by
recommendations and orders that there be no contact between Ehren and
Kaylee and Ehren and Ali. It found the State had not proved Ali was a CINA and
dismissed the petition as to her. It found the State had proved the allegations
concerning Kaylee, and adjudicated her a CINA pursuant to Iowa Code section
232.12(6)(d).
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In a late September dispositional order the juvenile court found that
Crystal had recently given birth to another child, fathered by Ehren. It ordered
that Kaylee remain in the custody of Jarrod, in whose custody she had been
since November 2005, subject to supervision by the DHS and visits with Crystal
at the discretion of the DHS. Crystal appeals, seeking reversal of the juvenile
court order adjudicating Kaylee a CINA.
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). We give weight to the fact findings of the
juvenile court, especially when considering the credibility of the witnesses, but we
are not bound by such findings. Iowa R. App. P. 6.14(6)(g); In re B.B., 598
N.W.2d at 315. The State has the burden of proving the allegations in the CINA
petition by clear and convincing evidence. Iowa Code § 232.96(2). “Clear and
convincing evidence means no serious or substantial doubt exists about the
correctness of the conclusions drawn from the evidence.”
In re S.J.M., 539
N.W.2d 496, 500 (Iowa Ct. App. 1995).
Crystal first claims the juvenile court erred in relying on the opinion of a
forensic interviewer, Sally Kaplan, that Kaylee was being truthful, “not
withstanding the court itself during adjudication hearing sustaining repeated
objections by [Crystal] to prohibit any witness from giving an opinion about
Kaylee’s truthfulness.”
As shown by the evidence, a forensic interviewer is a person specially
trained to talk to children when there is a suspicion of abuse or neglect. Sally
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Kaplan holds a Master of Social Work degree; acquired a mental health
provider’s license by performing 2000 hours of supervised, post-master’s degree
work and passing a test; acquired a clinical social worker’s license by passing
another test; has eighteen years of experience in child welfare work; and has
conducted at least 750 forensic interviews of children suspected to be victims of
abuse or neglect. She conducted a forensic interview of Kaylee, prepared written
reports and a summary, and testified at the adjudicatory hearing.
Crystal did timely object to certain questions to witnesses that might have
led to the expression of opinions concerning Kaylee’s truthfulness, and the
juvenile court sustained her objections. However, in its adjudicatory ruling the
court found Sally Kaplan’s testimony “extremely credible,” and in doing so noted
Kaplan had testified “that a three-year-old would not be able to lie about [the]
type of abuse [described by Kaylee].” Nevertheless, our review is de novo and
for three reasons we find no reversible error.
First, the essence of Crystal’s challenge to Kaylee’s assertions of sexual
abuse, the findings of the DHS child abuse investigator, and the opinion of the
forensic interviewer that Kaylee had been sexually abused, was that Kaylee had
been coached by Jarrod or Jarrod and Heidi to make her assertions of abuse by
Ehren.
As noted by the State, Crystal did not object when the forensic
interviewer testified that “it’s impossible to coach a three-year-old,” nor did
Crystal object to admission of a DHS report noting the forensic interviewer’s
opinion finding “Kaylee’s accounts of Ehren sexually abusing her to be credible.”
We find no error in the juvenile court considering and, as noted below, to some
extent relying on, evidence admitted without objection.
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Second, as shown by its adjudicatory ruling and as emphasized in its
ruling on Crystal’s Iowa Rule of Civil Procedure 1.904 motion, the forensic
interviewer’s opinion concerning Kaylee’s truthfulness was only one of several
things the juvenile court relied on in concluding the State had met its burden.
Third, for the reasons discussed below and without giving any
consideration to the forensic interviewer’s opinion concerning Kaylee’s
truthfulness, we find the State has proved by clear and convincing evidence that
Kaylee is a CINA as alleged by the State and found by the juvenile court, and in
so doing reject Crystal’s other claim of juvenile court error, that the State did not
prove by clear and convincing evidence that Kaylee had been or was imminently
likely to be sexually abused.
As noted above, at the time Kaylee made her assertions of sexual abuse
by Ehren, Crystal and Jarrod had been separated for over two years. They had,
apparently without any need for a court order concerning custody, physical care,
or visitation, been equally sharing physical care of Kaylee who was then about
three years and nine months of age. The record contains no evidence of any
rancor or disputes concerning their shared arrangement, or of any attempt or
desire to change it, before Kaylee alleged sexual abuse by Ehren. In short, the
record does not demonstrate that Jarrod (or Heidi) had any substantial reason to
coach Kaylee to make false accusations of sexual abuse by Ehren.
More importantly, Kaylee presented the forensic interviewer with detailed
and graphic descriptions and drawings of male anatomical parts, and detailed
and graphic descriptions of Ehren’s acts and actions. These matters are to a
substantial extent set forth in the juvenile court’s adjudicatory ruling, are fully
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supported by the record evidence, and need not be repeated in this opinion. It is
sufficient to note that most all of such matters would not be within the knowledge
of a child less than four years of age unless the child had actually observed the
things and experienced the events upon which the verbal descriptions and
drawings were based.
We do note that a medical examination of Kaylee
presented no physical evidence of sexual abuse, and that some statements by
Kaylee that may arguably be interpreted as claiming sexual penetration are
inconsistent with the findings of the medical examination.
However, such
arguable discrepancies are explained by evidence showing that Kaylee may
have simply misunderstood the nature or extent of what had occurred.
Upon our de novo review we agree with and affirm the judgment of the
juvenile court.
AFFIRMED.
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