In the Interest of A.W., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0996 Filed October 2, 2024

IN THE INTEREST OF A.W., Minor Child,

S.B., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Chickasaw County, Linnea M.N.

Nicol, Judge.

A mother appeals the district court’s adjudication that her daughter is a child

in need of assistance. AFFIRMED.

Christopher F. O’Donohoe of Elwood, O’Donohoe, Braun & White, LLP,

New Hampton, for appellant mother.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

Kimberly S. Lange of Waterloo Juvenile Public Defender’s Office, Waterloo,

attorney and guardian ad litem for minor child.

Considered by Tabor, C.J., and Chicchelly and Sandy, JJ. 2

SANDY, Judge.

A mother appeals the district court’s adjudication that her daughter is a child

in need of assistance as defined in Iowa Code sections 232.96A(2), (3)(b), and (4)

(2024). The mother argues that insufficient evidence supported the adjudication,

her witnesses were more credible than the children, the district court considered

impermissible hearsay, and the district court relied on “ex parte evidence.” We

affirm.

I. Background Facts and Proceedings

The daughter was born in 2010 and has lived with her father since she was

removed from her mother’s custody by court order following an investigation by the

Iowa Department of Health and Human Services (HHS). HHS had initial contact

with the family in early January 2024. HHS investigated a report by the daughter

that her stepfather had sexually abused her.

The daughter reported that, over the past several years, her stepfather had

touched her breasts, buttocks, and vagina on multiple occasions, and that he

continued to give her smacks on the buttocks and unwanted hugs after she told

him “no.” She also reported that he had forced her to perform oral sex on him and

that she had informed her mother of the stepfather’s abuse about two years ago.

The mother did not address the allegations, did not contact law enforcement or

HHS, and told the daughter and her sibling not to tell anyone.

The daughter told the mother that the mother’s behavior made her feel that

the mother was choosing to protect the stepfather over her. In emails, she told the

mother, “I don’t understand how you can do this to your daughter how you can hurt

me like this” and “you pick [the stepfather] over me.” Shane Sievers, the HHS case 3

worker, testified that he found the daughter to be more credible than the mother

and stepfather based on the corroborating evidence.

Also in January 2024, Sievers interviewed the daughter’s sixteen-year-old

brother, who when asked if there was anything he wished to share with Sievers,

stated “[the stepfather] touching my sister.” The brother explained that the

stepfather would give the daughter random hugs, she would tell him to stop, he

would not stop, and that the brother “would see him slap her on the butt all the

time,” which the brother last observed in December 2023, about two weeks before

the brother’s interview with Sievers. This report is consistent with the daughter’s

recollection of when the stepfather last slapped her buttocks. The brother told

Sievers that he reported this behavior to his mother and that she told the him not

to tell the father.

Chickasaw County Sheriff’s Deputy Gansen also interviewed the brother

later that month. The brother told Gansen that the daughter had told him the week

before that the stepfather had been touching her sexually, including on family

camping trips. The brother stated that the daughter often slept with the stepfather

on those trips because the camper was loaded with more people than beds. The

brother stated that he always believed this was a bad idea because the stepfather

is usually drunk. He expressed that the stepfather’s behavior had always made

him and others present uncomfortable but that he had not known the extent of the

stepfather’s actions until the daughter told him. He stated that it all made sense in

retrospect. The brother believes that the stepfather always made efforts to keep

the daughter happy and attributes this to the stepfather’s efforts to keep her from

talking by giving her what she wants. 4

In her HHS interview, the daughter reported that one time the stepfather

had shoved his hands down her pants and touched her vagina while she was

sleeping with him in the camper bed. She asserted that he was drunk at that time.

And she expressed that on multiple occasions he has reached down her pants to

touch her vagina while also touching her breasts or otherwise fondling her. She

also reported that the stepfather had made her put her mouth on his penis when

she was in fifth grade and that he ejaculated into her mouth.

Accordingly, HHS determined the daughter was in imminent danger and

needed to be removed from her mother’s custody based on the stepfather’s sexual

abuse and mother’s failure to take action in response to that sexual abuse. An

order for temporary removal was entered on January 16, 2024. The daughter was

adjudicated as a child in need of assistance (CINA) on May 22, 2024, and the

disposition order was entered on June 4, 2024. The daughter has been

temporarily placed with her father under supervision of HHS. The mother now

appeals.

II. Standard of Review

CINA proceedings are reviewed de novo. In re J.S., 846 N.W.2d 36, 40

(Iowa 2014). “[W]e are not bound by the juvenile court’s fact findings; however,

we do give them weight. Our primary concern is the children’s best interests.” Id.

(citation omitted). “CINA determinations must be based upon clear and convincing

evidence.” Id. at 41. We ask whether there are “serious or substantial doubts as

to the correctness of conclusions of law drawn from the evidence.” In re L.H., 904

N.W.2d 145, 149 (Iowa 2017) (cleaned up). 5

Subsidiary rulings in CINA cases, including questions related to the

admission of evidence, are reviewed for an abuse of discretion. In re L.R., No. 13-

0713, 2013 WL 4504930, at *6 (Iowa Ct. App. Aug. 21, 2013).

III. Discussion

CINA proceedings are governed by Iowa Code chapter 232. We find the

meaning of chapter 232 in its words. See Doe v. State, 943 N.W.2d 608, 610 (Iowa

2020) (noting “in questions of statutory interpretation, ‘[w]e do not inquire what the

legislature meant; we ask only what the statute means’” and “[t]his is necessarily

a textual inquiry as only the text of a piece of legislation is enacted into law” (citation

omitted) (first alteration in original)).

In section 232.2, the legislature defined “child in need of assistance” or

CINA. For a child to be adjudicated CINA, the child must be unmarried and

affected by one or more of the situations described in section 232.96A. See Iowa

Code § 232.2(6). Here, the mother appeals the daughter’s CINA adjudications

under section 232.96A, paragraphs (2), (3)(a), (3)(b), and (4).

“If the court concludes that facts sufficient to sustain the petition have been

established by clear and convincing evidence and that its aid is required, the court

may enter an order adjudicating the child to be a child in need of assistance.” Id.

§ 232.96(9). Physical abuse “means any nonaccidental physical injury suffered by

a child as the result of the acts or omissions of the child’s parent.” Id. § 232.2(48).

A child is in need of assistance pursuant to Iowa Code section 232.96A(2)

when his or her “parent, guardian, other custodian, or other member of the

household in which the child resides has physically abused or neglected the child,

or is imminently likely to physically abuse or neglect the child.” 6

A child is in need of assistance pursuant to Iowa Code

section 232.96A(3)(a) when he or she “has suffered or is imminently likely to suffer

harmful effects as a result” of “[m]ental injury caused by the acts of the child’s

parent.” “‘Mental injury’ means a nonorganic injury to a child’s intellectual or

psychological capacity as evidenced by an observable and substantial impairment

in the child’s ability to function within the child’s normal range of performance and

behavior, considering the child’s cultural origin.” Id. § 232.2(39).

section 232.96A(3)(b) when he or she “has suffered or is imminently likely to suffer

harmful effects as a result” of the “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.” Harmful effects are defined

broadly and can be established “when there was harm to a child’s physical, mental,

or social well-being or such harm was imminently likely to occur.” J.S., 846 N.W.2d

at 41–42.

A child is in need of assistance pursuant to Iowa Code section 232.96A(4)

if he or she “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.”

The mother contends that the district court erred by making credibility

determinations as to the daughter and brother’s statements from the Child

Protective Assessment (CPA) because neither sibling testified and their

statements were not testified to by a person who was present when those

statements were made. She also argues that the brother’s statements to Deputy 7

Gansen were double hearsay and that it was error for the district court to make

credibility determinations as to those statements. The mother works around the

error preservation issue of having not objected to admission of the statements at

trial by attacking the weight the district court gave those statements rather than

attacking admission of the statements.

The mother also argues that there was insufficient evidence to find that the

daughter was sexually abused on the camping trip. She asserts that she provided

three witnesses who disputed the daughter’s statements in the CPA. This is, in

essence, not a sufficiency argument but another weight-of-the-evidence argument

based on witness credibility, and we will address it alongside her other credibility

claims. Appellate courts are to give substantial weight to the district court’s

findings of witness credibility. See In re D.S., 856 N.W.2d 348, 351 (Iowa 2014).

CPAs are admissible at adjudicatory hearings pursuant to Iowa Code

section 232.96(6). The district court found that the CPA was credible because the

siblings’ statements were consistent with each other:

The Court believes [the daughter] is credible because she has reported the same facts repeatedly to a number of professionals. [The brother] confirms the details and that he spoke to [the mother] about those details. [The brother] can look back and see that after the incident where [the stepfather] put his hands down [the daughter]’s pants and touched her vagina, [the daughter] refused to be alone with [the stepfather]. [The brother’s] confirmation of [the daughter]’s report happened January 3 and January 4, 2024, before the family marshalled their family members and resources against [the daughter]. [The brother] appeared on both witness lists. [The brother] is in the horrible position of being forced by his mother to choose sides.

The mother argues that she was not given the “opportunity to adequately test the

veracity of the statements contained within” the CPA. But she did have that 8

opportunity even if not through cross-examination of the siblings, who did not

testify. Section 232.96(6) provides that “[t]he circumstances of the making of the

report . . . including the maker's lack of personal knowledge, may be proved to

affect its weight.” The mother cross-examined each of the State’s witnesses,

including Sievers, and called seven of her own witnesses.

Additionally, to discredit the daughter’s statements in the CPA, the mother

herself relied on hearsay by calling witnesses that testified about out-of-court

statements the daughter made to them. The mother would like to have it both

ways—she asks the court to discount hearsay that hurts her but to favor hearsay

that supports her. And our court has affirmed CINA adjudications where the

evidence supporting such an adjudication was based on an HHS worker’s

testimony. See In re D.S., No. 14-2021, 2015 WL 800084, at *1 (Iowa. Ct. App.

Feb. 25, 2015) (“[T]he mother is incorrect in asserting the [CPA] was the sole basis

for the adjudication. As explained, the district court also relied on the [HHS]

employee’s testimony in adjudicating the child in need of assistance. While this

testimony was based on hearsay evidence, the mother concedes hearsay is

admissible.”).

And the mother does not challenge admission of Sievers’s testimony

relating to statements made by the brother to Deputy Gansen. She states that “the

error alleged relates not to admissibility itself but rather the weight of the evidence

given to it by the trial court.” Her sole argument on this point is that she was not

given opportunity to test the veracity of those statements. Yet the mother’s

attorney did cross examine Sievers and asked him about the information he had 9

received from Deputy Gansen. She took the opportunity to discredit Sievers and

the district court did not find it compelling.

The mother also points to the testimony of three of her witnesses to support

her contention that those witnesses’ testimony outweighs any evidence brought

forward that the daughter was sexually abused on the camping trip. But the

daughter had previously reported being sexually abused to her mother and aunt.

It was thus reasonable not to find the testimony of the mother or the aunt credible

in light of those prior reports. Combined with the consistency of the daughter and

brother’s corroborating statements, it was reasonable for the district court to attach

more weight to the CPA than to the mother’s witnesses.

Lastly, the mother argued that the district court erred in relying on “ex parte

evidence.” She argues that the evidence introduced by the State that the daughter

had been abused on the camping trip was ex parte, but it is unclear how far she is

arguing the evidence is ex parte. “Ex parte evidence” is an anachronistic term that

has not been used by Iowa courts since 1869. See Allen v. Rogers, 27 Iowa 106,

106 (1869). She states that the State was permitted “to introduce evidence on an

ex parte basis without any real opportunity to test its veracity,” which suggests that

the evidence related to sexual abuse during the camping trip was ex parte because

she was not permitted to contradict that evidence at any point. But she admits to

having directly attacked this evidence through witness testimony. And she fails to

cite authority sufficiently supporting this issue. We deem that she has waived this

issue. See Iowa R. App. P. 6.903(2)(a)(8)(3) (“Failure to cite authority in support

of an issue may be deemed waiver of that issue.”). Similarly, we deem any 10

potential confrontation claim to be waived based the mother’s one passing

reference to such a claim in an issue heading.

Accordingly, we cannot say that “serious or substantial doubts as to the

correctness of conclusions of law” can be raised from the evidence presented to

the district court. L.H., 904 N.W.2d at 149 (cleaned up). The evidence presented

by the State was clear and convincing. We affirm.

AFFIRMED.