IN THE INTEREST OF A.R., J.R., and P.R., Minor Children, P.R., Minor Child, Appellant, J.L.R., Mother, Appellant, J.O.R., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-955 / 08-1520
Filed December 31, 2008
IN THE INTEREST OF A.R., J.R., and P.R.,
Minor Children,
P.R., Minor Child,
Appellant,
J.L.R., Mother,
Appellant,
J.O.R., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Constance Cohen,
Associate Juvenile Judge.
A mother, father, and minor child appeal separately from juvenile court
removal, adjudicatory, and dispositional orders. AFFIRMED ON ALL APPEALS.
Lynn C.H. Poschner of Borseth Law Offices, Altoona, for appellant-minor
child.
Ronald R. Reiper, Des Moines, for appellant-mother.
Trever Hook of Hook Law Firm, West Des Moines, for appellant-father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, John P. Sarcone, County Attorney, and Andrea Vitzthum, Assistant
County Attorney, for appellee.
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John Jellineck, Des Moines, for J.R.
Christine Bisignano, Windsor Heights, guardian ad litem for J.R.
Alexandra M. Nelissen of Nelissen & Juckette, P.C., Des Moines, guardian
ad litem for P.R.
Nicole Garbis Nolan, guardian ad litem for A.R.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
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MILLER, J.
June and Jeffrey O. are the parents of eighteen-year-old James,
seventeen-year-old Ashley, thirteen-year-old Paige, and eleven-year-old Jeffrey
D. June, Jeffrey O., and Paige appeal separately from juvenile court orders
removing Paige and Jeffrey D. from June and Jeffrey O.‟s physical custody,
adjudicating them as children in need of assistance (CINA), and placing them in
the temporary legal custody of the Iowa Department of Human Services (DHS)
for placement in foster care.1
I.
BACKGROUND FACTS AND PROCEEDINGS.
James and Ashley were born during June‟s first marriage to their
biological father, Richard.
After an acrimonious divorce from Richard, June
married Jeffrey O. and gave birth to two children, Paige and Jeffrey D. Jeffrey O.
adopted James and Ashley in 1999 following Richard‟s voluntary termination of
his parental rights.
In mid-July 2005, June called Richard sobbing and asked him to meet her
at a park. When he arrived at the park, June informed him that Ashley had told
her that Jeffrey O. was sexually abusing her. Richard instructed her to report the
abuse to the police, but June refused because she was afraid Jeffrey O. would
“throw [her] out and take [her] kids.” Richard reported the abuse to the police the
following day. Later that same day, a detective and a representative from DHS
interviewed Ashley, June, and Jeffrey O. at their home. Outside the presence of
1
We note that neither June nor Jeffrey O. appeal the removal, adjudication, or
disposition of Ashley. We also note that although James was seventeen when the CINA
proceedings were initiated, the State chose not to file a petition alleging he was a CINA.
4
her parents, Ashley denied that Jeffrey O. had sexually abused her. June also
denied any knowledge of Ashley being sexually abused by Jeffrey O.
A
subsequent child protective assessment resulted in an unfounded child abuse
report.
In March 2008, Ashley‟s cousin and his girlfriend brought her to the Polk
County Sheriff‟s Office. She told the police that Jeffrey O. had been sexually
abusing her since she was eleven years old. She stated “it started out that he
would rub her with oil and insert his fingers into her.” He would also masturbate
in front of her and fondle her while doing so. She thought such behavior was
normal at the time. Ashley stated that in 2005, Jeffrey O. admitted to her “that
what he was doing was wrong.” She reported the abuse to June, who told her
that her allegations “would result in the family splitting up.” Jeffrey O. threatened
to kill himself “or get [Ashley] kicked out of the house” if she told anyone about
the abuse. When the allegations were investigated by the police and DHS in
2005, Ashley was “scared and tried to blame everything on her real dad so her
step-dad would not get in trouble.”
The sexual abuse escalated after the 2005 investigation. Ashley told the
police that Jeffrey O. began forcing her to engage in oral sex and sexual
intercourse with him. She said that most of their encounters occurred in the
computer room of the family‟s home next door to her brother James‟s room.
According to Ashley, Jeffrey O. kept condoms in the ceiling tiles in the computer
room. He would then have her put the used condoms in the “burn barrel.” On
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one occasion after they had sexual intercourse in the fall of 2007, he “took her on
a ride and threw the condom in the ditch.”
June denied Ashley‟s allegations when she was informed of them by the
police. She told them “that Ashley is prone to lie” and “that she has asked Ashley
a million and 10 times since the accusations were made if your dad has ever
touched you and she told me no.” She wanted Ashley to submit to medical and
polygraph examinations. June did not want to see Ashley and contemplated
“sign[ing] her over to DHS „right now.‟”
Ashley, Paige, and Jeffrey D. were removed from their parents‟ physical
custody after Ashley‟s report to the police. Ashley was placed in the home of a
member of her church while Paige and Jeffrey D. were placed with their maternal
grandmother.
An order was entered prohibiting Jeffrey O. from having any
contact with his minor children.
Several days after Ashley went to the police station, a detective had her
take him to the location where she thought Jeffrey O. had thrown out the used
condom. The detective was “about 50 yards from Ashley . . . when [he] saw
Ashley jump up and down and yell, „I found it. I found it.‟” The condom was
covered with snow and dirt. Subsequent DNA testing revealed that Jeffrey O.‟s
DNA was present on the condom. Jeffrey O. was arrested and charged with
sexual abuse in the third degree. June posted bond for him, and he returned to
live in the family‟s home.
A combined removal and adjudicatory hearing was held over the course of
several months.
After hearing many hours of testimony, the juvenile court
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entered detailed orders in August 2008 finding clear and convincing evidence
existed supporting the children‟s removal from their parents‟ physical custody
and adjudicating them as children in need of assistance pursuant to Iowa Code
sections 232.2(6)(c)(2) and 232.2(6)(d) (2007). In September 2008, the court
entered a dispositional order continuing the out-of-home placement of Ashley
and modifying the placement of Paige and Jeffrey D. by removing them from their
maternal grandmother‟s home and placing them in the temporary legal custody of
DHS for placement in family foster care.
June, Jeffrey O., and Paige each
appeal the juvenile court‟s removal, adjudicatory, and dispositional orders. 2
II.
SCOPE AND STANDARDS OF REVIEW.
Our review of child in need of assistance proceedings is de novo.
We review both the facts and the law, and we adjudicate rights
anew. Although we give weight to the juvenile court‟s factual
findings, we are not bound by them. As in all juvenile proceedings,
our fundamental concern is the best interests of the child.
In re K.N., 625 N.W.2d 731, 733 (Iowa 2001) (citations omitted).
III.
MERITS.
A.
Removal.
The appellants first challenge the issuance of the ex parte removal order
and the subsequent order affirming the removal of Paige and Jeffrey D. from their
parents‟ home. We need not and do not address their challenge to these orders
because custody of the children was placed with DHS under the juvenile court‟s
subsequent dispositional order. Any error in granting the removal order cannot
2
Although June, Jeffrey O., and Paige filed separate appeals from the juvenile court‟s
orders, they raise the same issues on appeal with the exception that the issues raised by
Paige concern only herself while the issues raised by June and Jeffrey O. concern both
Paige and Jeffrey D. We will accordingly address their issues together.
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now be remedied. In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994). “We cannot
go back in time and restore custody based on alleged errors in the initial removal
order.” Id.
B.
Adjudication.
The appellants next claim the record does not contain clear and
convincing evidence that Paige and Jeffrey D. are CINA as defined in sections
232.2(6)(c)(2) or 232.2(6)(d).
The State bears the burden of proving CINA
allegations by clear and convincing evidence. Iowa Code § 232.96(2). “Clear
and convincing evidence is evidence that leaves no serious or substantial doubt
about the correctness of the conclusion drawn from it.” In re D.D., 653 N.W.2d
359, 361 (Iowa 2002) (citation omitted). The appellants argue the State did not
prove Paige and Jeffrey D. were CINA under sections 232.2(6)(c)(2) or
232.2(6)(d) because “there are no allegations of sexual abuse perpetrated
against [Paige] or [Jeffrey D.] and no allegations that [they] were not properly
supervised.” We do not agree.
Sections 232.2(6)(c)(2) and 232.2(6)(d) provide:
“Child in need of assistance” means an unmarried child:
....
c. Who has suffered or is imminently likely to suffer harmful effects
as a result of . . .
....
(2) The failure of the child‟s parent . . . to exercise a reasonable
degree of care in supervising the child.
d. Who has been, or is imminently likely to be, sexually abused by
the child‟s parent . . . .
(Emphasis added.)
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“Although every CINA adjudication addresses a unique situation, facts in
prior cases suggest that perpetrators of sexual abuse often abuse multiple
children in the family . . . .” D.D., 653 N.W.2d at 362. “Prior decisions likewise
reflect the common sense notion that, ordinarily, all siblings are at risk when one
child has been sexually abused.” Id. There is clear and convincing evidence
present in the extensive record that Jeffrey O. sexually abused Paige‟s and
Jeffrey D.‟s sister Ashley.
The juvenile court found, and we agree, that Ashley‟s account of Jeffrey
O.‟s sexual abuse of her was credible and supported by other evidence in the
record.
A.M.H., 516 N.W.2d at 870 (stating weight should be given to the
juvenile court‟s findings regarding the credibility of witnesses). Ashley was able
to provide a detailed and consistent description of the sexual abuse she endured
over the course of eight years. In addition, the police were able to locate a
condom with Jeffrey O.‟s DNA present on it in the location Ashley recalled he
threw it after having sexual intercourse with her. The police also interviewed a
friend of Ashley‟s who informed them that while she was on the phone with
Ashley one night in February 2008 she overheard an individual she believed to
be Jeffrey O. “tell Ashley something to the effect of „We‟re gonna have sex
tonight‟ or some other sexual comment.”
In light of the foregoing, we reject the appellants‟ argument that Paige and
Jeffrey D. are not CINA under sections 232.2(6)(c)(2) or 232.2(6)(d), because
there were no allegations that Jeffrey O. sexually abused them. See, e.g., In re
E.B.L., 501 N.W.2d 547, 548 (Iowa 1993) (father allegedly sexually abused older
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daughter and all six children adjudicated CINA); In re A.B., 492 N.W.2d 446, 447
(Iowa Ct. App. 1992) (court ordered CINA petition to be filed as to all children
after allegations of sexual abuse of one child). Our statutory CINA provisions are
“preventative as well as remedial.” In re L.L., 459 N.W.2d 489, 494 (Iowa 1990).
“They are designed to prevent probable harm to the child and do not require
delay until after harm has occurred.” Id. We likewise reject their argument that
Paige and Jeffrey D. are not CINA under those sections because there were no
allegations that they were not properly supervised.
June‟s adamant refusal to believe her husband sexually abused Ashley
impacts her ability to protect Paige and Jeffrey D. from similar abuse.
She
agreed in response to a question asked of her during cross-examination that
nothing anybody could tell her would change her opinion that Ashley fabricated
the sexual abuse allegations.
June went to great lengths to refute Ashley‟s
allegations, “preposterous[ly]” hypothesizing at one point during the case that
Ashley broke into [June and Jeffrey O.‟s] locked bedroom, fished a
used condom out of the wastebasket, somehow wiped [June‟s]
DNA off the condom, planted her own DNA onto the condom, and
then led the police to the condom she “planted” in the ditch in an
effort to frame her father.
June‟s steadfast support of Jeffrey O. in the face of seemingly
insurmountable evidence corroborating Ashley‟s allegations supports the juvenile
court‟s conclusion that Paige and Jeffrey D. would be imminently likely to be
sexually abused by Jeffrey O. if they were not adjudicated CINA. June failed to
protect Ashley from further sexual abuse after Ashley informed her of it in 2005.
There is nothing present in the record to suggest that her response would be any
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different if Jeffrey O. were to start abusing Paige or Jeffrey D. in the future. See
In re T.B., 604 N.W.2d 660, 662 (Iowa 2000) (“The future can be gleaned from
evidence of the parents‟ past performance and motivations.”). This leads us to
the appellants‟ final claim concerning the juvenile court‟s dispositional order.
C.
Disposition.
In its September 2008 dispositional order, the juvenile court removed
Paige and Jeffrey D. from their maternal grandmother‟s home and placed them in
the temporary legal custody of DHS for placement in family foster care upon
finding that “it is more than possible that [the maternal grandmother] is allowing
prohibited contact between June and Jeffrey and their children.”
The court
further found the children were at “risk of further adjudicatory harm” because “no
one in the family believes the sexual abuse occurred or feels that June . . . failed
to protect Ashley.” The appellants challenge this order, arguing it was not the
least restrictive disposition available because “there were no allegations of
continued abuse to children [Paige] and [Jeffrey D.] while in their maternal
grandmother‟s care.”
Iowa Code section 232.99(4) requires the juvenile court to “make the least
restrictive disposition appropriate considering all the circumstances of the case”
upon conclusion of the dispositional hearing.
The home of a relative is
considered less restrictive than placement with DHS.
See Iowa Code §§
232.99(4); .102(1); In re N.M., 528 N.W.2d 94, 97 (Iowa 1995) (stating chapter
232 favors relative placements over nonrelative placements). However, Paige
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and Jeffrey D.‟s continued placement with their maternal grandmother was not
appropriate given the circumstances of this case.
We find, like the juvenile court, that the maternal grandmother was not
truthful about where she, Paige, and Jeffrey D. spent the evening before the final
day of the dispositional hearing. She testified they spent the night at James‟s
apartment. James, however, testified that no one was present at his apartment
that night aside from himself and his roommates. It is likely given the evidence
presented at the dispositional hearing that the maternal grandmother was
allowing Paige and Jeffrey D. to have prohibited contact with their parents,
especially considering her testimony that she did not believe Ashley‟s allegations
of sexual abuse.
There was also evidence that the maternal grandmother
exposed Paige and Jeffrey D. to June‟s sister‟s husband, a registered sex
offender, without concern for their safety. We thus agree with the juvenile court
that it was not in the children‟s best interests to remain in their maternal
grandmother‟s care. See In re E.H., 578 N.W.2d 243, 248 (Iowa 1998) (stating
our overriding consideration is the best interest of the children).
IV.
CONCLUSION.
Upon our de novo review, we conclude that Paige and Jeffrey D. are CINA
as defined in Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(d). We further
conclude their placement with DHS was the least restrictive disposition available
under section 232.99(4) given the circumstances present in this case.
judgment of the juvenile court is accordingly affirmed.
AFFIRMED ON ALL APPEALS.
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