IN THE INTEREST OF B.N. and C.N., Minor Children, K.J.N., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-312 / 09-0198
Filed May 29, 2009
IN THE INTEREST OF B.N. and C.N.,
Minor Children,
K.J.N., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Susan Flaherty,
Associate Juvenile Judge.
A father appeals from the juvenile court’s order finding his son is a child in
need of assistance. AFFIRMED.
Mark Meyer and Jon Kinnamon, Cedar Rapids, for appellant father.
Jessica Wiebrand, Cedar Rapids, for appellee mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Harold Denton, County Attorney, and Lance Heeren, Assistant County
Attorney, for appellee State.
Dawn Wilson, Cedar Rapids, for minor children.
Considered by Miller, P.J., and Eisenhauer and Mansfield, JJ.
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MANSFIELD, J.
This is a child in need of assistance case. K.N. appeals from that portion
of the juvenile court’s order finding that his son, B.N., is a child in need of
assistance (CINA).
The genesis of this case occurred in May 2008. K.N. and his wife had
adopted two foster children in 2001 and 2002 respectively: C.N., a girl who is
now fourteen, and B.N., a boy who is now nine. C.N. has been in some respects
a difficult child. The record shows that she has ADHD, atypical behaviors, and a
low average IQ in the 85-88 range.
As can be seen from the DVD of her
interview, although she is fourteen years old, she functions at approximately a
third grade level. B.N. seems to be better adjusted and has had fewer issues.
In early May 2008, C.N. was overheard telling a classmate that K.N. had
inappropriately touched her.
The Iowa Department of Human Services
investigated and, in the interim, C.N. was placed at a youth shelter, and B.N. was
placed with K.N.’s parents.
In a recorded interview with a forensic interviewer, C.N. stated that K.N.
had touched her inappropriately on several occasions. She also described an
incident that occurred right after Memorial Day the previous year (interestingly,
the recorded interview occurred right after Memorial Day in 2008) where K.N.
had asked her to get into the shower with him, took her hand, made her rub his
penis, and then ejaculated.
C.N.’s recounting of this incident has been
consistent and detailed. K.N. and his wife strongly deny the incident or any other
inappropriate touching ever occurred.
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After determining C.N.’s reports of sexual abuse to be founded, the State
commenced this CINA proceeding. Following a hearing on October 1, 3, and 16,
2008, the juvenile court found C.N. and B.N. to be CINA. Notably, K.N., who was
being investigated for possible criminal prosecution, declined to testify at the
hearing. C.N. did not testify either; rather, the State relied on the DVD of her late
May 2008 interview.
The CINA determinations were based on Iowa Code
sections 232.2(6)(c)(2) (“failure of the child’s parent, guardian, custodian, or other
member of the household in which the child resides to exercise a reasonable
degree of care in supervising the child”), 232.2(6)(d) (a child “[w]ho has been, or
is imminently likely to be, sexually abused by the child’s parent, guardian,
custodian or other member of the household in which the child resides”), and, as
to C.N. only, 232.2(6)(k) (a child “[w]hose parent, guardian, or other custodian for
good cause desires to be relieved of the child’s care and custody”).
In the view of the juvenile court, the critical issue at the hearing was the
credibility of C.N.’s statements reporting sexual abuse by her father. The court
found those statements to be credible. The court also gave some weight to
evidence that C.N. had undergone sexual penetration and the fact that C.N. had
recently added an allegation of sexual intercourse to her reports concerning K.N.
K.N. now appeals. K.N. does not challenge the juvenile court’s order as
regards C.N., and both K.N. and his wife agree that for behavioral reasons alone,
they no longer wish to be responsible for C.N.’s care and custody. K.N. does,
however, challenge the order as regards B.N.
We review CINA cases de novo. In re D.D., 653 N.W.2d 359, 361 (Iowa
2002). Although not bound by the juvenile court’s factual findings, we give them
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weight, especially when considering the credibility of witnesses. Id.; In re D.T.,
435 N.W.2d 323, 329 (Iowa 1989). “The most important consideration in any
CINA case is the best interests of the child.” D.D., 635 N.W.2d at 362.
On appeal, K.N. argues that the juvenile court erred in finding clear and
convincing evidence that he had sexually abused C.N. Alternatively, he argues
that even a finding that he sexually abused C.N. should not result in a
determination that B.N. is a CINA.
This is a difficult case.
On the recorded interview, C.N. yawns and
stretches frequently and often looks away from the camera. It is very obvious
that she does not function at a normal intellectual or emotional level for someone
her age.
Yet, DHS and the juvenile court both found her to be credible,
particularly because of the degree of detail and consistency in her story, and
ultimately we do as well.
At the hearing, K.N. introduced evidence that he did not have the
opportunity to have sexually abused C.N., and that because of certain medication
he was not capable of an erection. K.N. also introduced testimonials as to his
good character from various sources. Some of the force of this evidence and
testimony is drained, however, by the fact that K.N. himself declined to testify at
the hearing.
Of course, it is the right of K.N. not to testify, but in a civil
proceeding such as this we may draw an inference from this fact. Conkling v.
Conkling, 185 N.W.2d 777, 784 (Iowa 1971).
Alternatively, K.N. contends that the finding with respect to C.N. does not
support a determination that son B.N. is a CINA. However, we agree with the
juvenile court’s decision here as well. The juvenile court quoted and relied upon
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In re D.D., 653 N.W.2d 359 (Iowa 2002), where the supreme court held that a
finding that a father had engaged in a highly inappropriate sexual episode with
his daughter could support a section 232.2(6)(d) CINA determination regarding
the son as well. Although the supreme court also reminds us that “every CINA
adjudication addresses a unique situation,” id. at 362, we believe the juvenile
court correctly found that B.N., a young child of nine, also needs the protection of
CINA status at this time given the factual finding that K.N. sexually abused his
older sister. We note that on his recorded interview, B.N. does appear to have
been coached by K.N. and/or his family, a point that perhaps highlights B.N.’s
vulnerability. Thus, we find that B.N.’s best interests are served by adjudicating
him a child in need of assistance.
Accordingly, we affirm the decision of the juvenile court.
AFFIRMED.
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