In the Interest of E.R., Minor Child

• Court: Court of Appeals of Iowa
• Decided: December 4, 2024
• Docket: 23-1723
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-1723 Filed December 4, 2024

IN THE INTEREST OF E.R., Minor Child,

E.R., Minor Child, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Michael Motto, Judge.

A juvenile appeals the juvenile court’s ruling that he committed the

delinquent act of sexual abuse in the second degree in violation of Iowa Code

section 709.3 (2024). AFFIRMED.

Tiffany Kragnes, Des Moines, for appellant.

Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.

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

SANDY, Judge.

Occam’s razor provides, “when confronted with different explanations for an

occurrence, the simplest is the most likely explanation.” Madison St. Props., LLC

v. Marcus Corp., No. 20CV50471, 2023 WL 5860318, at *3 (N.D. Ill. Sept. 11,

2023). Although not outcome determinative, we believe this principle applies in

this case.

E.R. was accused of sexually abusing his younger cousin one night as the

two were playing video games. The State filed a delinquency petition alleging E.R.

committed the delinquent act of sexual abuse in the second degree in violation of

Iowa Code section 709.3 (2024). Armed with a witness credibility argument, E.R.

contends the evidence was insufficient to establish that he committed a “sex act”

as defined by Iowa Code section 702.17. Thus, he claims the evidence is not

enough to establish that he committed the delinquent act of sexual abuse in the

second degree.

Upon our de novo review, we affirm the juvenile court court’s decision.

I. Background Facts and Proceeding Facts

Thirteen-year-old E.R. has had a difficult childhood. He and his three

siblings have been raised by parents who have consistently struggled with

managing their issues with substance abuse. In the spring of 2022, E.R.’s aunt,

W.F., unexpectedly dropped by E.R. and his parents’ house. Upon her entry into

the home, W.F. noticed E.R.’s mother—who is W.F.’s older sister—was “under the

influence of some sort of drug.” W.F. also observed that E.R.’s mother was

alarmingly thin. W.F. asked E.R.’s mother what was going on, and she disclosed

she was using meth. W.F. offered to take E.R.’s mother to a rehabilitation center, 3

but she refused. Still, she did ask W.F. to take E.R. into her home over the

summer. W.F. agreed to do so.

At the end of the summer, W.F. tried to return E.R. to his parents’ house.

But when she arrived at the house, E.R.’s mother told W.F. she was in no position

to care for E.R. In W.F.’s words, “I took him back and [his mother] wasn’t even

happy to see [E.R.] at that point and was basically, like, I’m not ready for you to be

back.” Additionally, while she was in the house, W.F. saw “pills everywhere.” After

seeing pills in the house, W.F. made the decision to report E.R.’s parents to the

Department of Health and Human Services (HHS). An HHS worker investigated

the report and found “substances or a pipe of some sort” in the yard of the home.

E.R. and his siblings were then removed from the home.

Upon their removal from their parents’ home, E.R. and his three siblings

were initially placed in the care of another aunt, T.F., in Burlington.1 At the time,

the T.F. lived with the children’s grandmother. This was ultimately found to be an

untenable placement for all the children based on space constraints in the

grandmother’s home. A few months later, W.F. asked HHS if E.R. and his little

sister could be placed with her. This request was granted by HHS. E.R.’s other

two siblings continued their placement with T.F.

Tension soon developed between W.F. and HHS after E.R. and his little

sister were placed with W.F. According to the HHS worker who oversaw the

removal and placement of the children—W.F. frequently complained to HHS about

“financial issues; wanting to be reimbursed at a quicker rate than what the State

1 W.F., T.F., and E.R.’s mother are sisters. 4

reimburses at.” W.F. also expressed many times her dissatisfaction with how

“[HHS] was dictating how the case was managed.” Particularly, W.F. was upset

that she did not have more discretion in parenting E.R. and his younger sister while

they were in her care. The record discloses W.F. sent several text messages to

HHS workers requesting that E.R. and his little sister be removed from her care.

W.F. readily admitted she was frustrated with HHS. Even so, she denied

her frustrations with HHS primarily stemmed from reimbursement issues. Instead,

she claimed her main issue with HHS was a lack of communication and

consistently being “overruled” in her parenting decisions related to E.R. and his

younger sister. W.F. claimed these frustrations led her to request that E.R. and

his little sister be removed from her care. At E.R.’s adjudication hearing, W.F.

testified she “loved having [E.R.] in my home. I was just trying my best in everything

I could for both [E.R.] and my sister.”

W.F. also expressed annoyance with HHS’s handling of sibling visits.

According to W.F., she and T.F. were primarily responsible for providing

transportation to sibling visits. This occurred even though HHS told W.F. it would

provide transportation for these visits. The sibling visits became problematic for

W.F. because some occurred in Burlington. W.F. lives in Davenport, which is

located nearly one hundred miles apart from Burlington. After one particularly bad

visit between E.R. and his siblings, W.F. sent the following text message to the

HHS worker and T.F. in a group chat:

We need to either set up a conference call or something because what happened today was UNACCEPTABLE and put me in a very comprising position!! I will not comply with anything further until we come up with a bigger game plan than what we have. Because I’m done going to visitations. I’m not going to do the phone calls. 5

Because of the threats and remarks I’m DONE. Either we come up with a plan or I’m DONE. I will wash my hands [of] it all.

As W.F. was experiencing difficulties with HHS, E.R.’s behavior in her home took

a dark turn. When W.F. first took E.R. into her home during the summer of 2022,

he stayed in a basement room belonging to her stepson. But after E.R. and his

younger sister were placed with W.F. by HHS, she and her husband let E.R. share

a room with their then-six-year-old son—K.F. W.F. and her husband even bought

a bunk bed to make it easier for K.F. and E.R. to share a room.

On the night of December 4, 2022, W.F. was walking down a hallway in her

home when she heard the sound of a T.V. blaring from K.F. and E.R.’s room. This

bothered W.F. because this was a school night, and the children were supposed

to be asleep. W.F. then checked on K.F. and E.R. As she opened the door to K.F.

and E.R.’s room, she heard “a sound coming from like if you hop down from the

top bunk, there was like, a creak sound.” W.F. saw E.R. lying on the bottom bunk,

while K.F. was on the top bunk holding a controller and playing Fortnite. W.F. took

the controller from K.F. and turned the T.V. off. But as she did so, she noticed “a

look of fear” on K.F.’s face. W.F. thought nothing of this because she attributed

the look on her son’s face to the fact that E.R. and K.F. “just got caught playing

video games at 9:30 at night on school night.”

As the children in the home were eating breakfast and preparing for school

the next morning, K.F. approached W.F. and told her E.R. had put inappropriate

images on the T.V. the night before. K.F. disclosed E.R. showed him images of

“[b]oobies and pee-pees” on the T.V. After K.F. told W.F. this, she ushered the

other children out of the room so that she could speak to K.F. alone. When they 6

were alone, K.F. told W.F. that E.R. “stuck his finger up my butt and he licked my

pee-pee.” K.F. also indicated to his mother that his buttocks were in pain.

Immediately after K.F. told her E.R. had sexually abused him the night

before, W.F. attempted to contact E.R.’s attorney and HHS. She never received

a response from either. She then contacted an HHS hotline. An HHS hotline

worker told her HHS would call the police. But after a few hours passed with no

police officers arriving at the home, W.F. called the police herself. The police

arrived soon after and arrested E.R. and removed him from the home.

After E.R. was taken into custody by the police, W.F. took K.F. to a local

hospital in Davenport to receive a forensic sexual assault exam. A registered

nurse performed a sexual assault examination on K.F. K.F. told the nurse prior to

the examination that the night before “[E.R.] and me were watching T.V. in our

room, and he put on a show with boobies, penises, and other girl parts. It was

yucky. He started to lick my pee-pee and put his fingers in my butt.” The nurse

testified at E.R.’s adjudication hearing that she examined K.F.’s rectum but saw no

signs of “trauma or injury.” But she explained it is not uncommon for sexual abuse

victims not to exhibit signs of trauma or physical injury. And she stated she

believed K.F. had been sexually abused.

The State filed a delinquency petition on December 6, 2022. The State

alleged E.R. committed the delinquent act of sexual abuse in the second degree

in violation of Iowa Code section 709.3. An adjudication hearing was held May 24,

2023. At the hearing, the juvenile court heard testimony from K.F., W.F., the nurse,

and T.F. A disposition hearing was later held in October 2023. The juvenile court

issued its dispositional order after that. The juvenile court found E.R. committed 7

the delinquent act of sexual abuse in the second degree in violation of Iowa Code

section 709.3 and placed him on probation with the juvenile court services. The

juvenile court withheld a decision on whether E.R. would be required to register as

a sex offender.

E.R. now appeals.

II. Standard of Review

“Juvenile delinquency proceedings are ‘special proceedings that provide an

alternative to the criminal prosecution of children where the best interest of the

child is the objective.’” In re T.H., 913 N.W.2d 578, 582 (Iowa 2018) (citation

omitted). Our review for a challenge to the sufficiency of the evidence in a juvenile

delinquency adjudication is de novo. Id. “We presume the child to be innocent of

the charges, and the court cannot find that the child engaged in the delinquent

conduct unless the State can prove beyond a reasonable doubt that the child

engaged in such behavior.” In re J.A.L., 694 N.W.2d 748, 751 (Iowa 2005). We

give weight to the factual findings of the juvenile court, especially those involving

witness credibility, but are not bound by them. In re A.K., 825 N.W.2d 46, 49 (Iowa

2013).

III. Analysis

For sexual abuse in the second degree, the State was required to prove

E.R. committed a “sex act” with a child. Iowa Code §§ 709.1(3), .3(b). Iowa Code

section 702.17 defines “sex act” as follows:

The term “sex act” or “sexual activity” means any sexual contact between two or more persons by any of the following: 1. Penetration of the penis into the vagina or anus. 8

2. Contact between the mouth and genitalia or mouth and anus or by contact between the genitalia of one person and the genitalia or anus of another person. 3. Contact between the finger, hand, or other body part of one person and the genitalia or anus of another person, except in the course of examination or treatment by a person licensed pursuant to chapter 148, 148C, 151, or 152. 4. Ejaculation onto the person of another. 5. By use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus. 6. The touching or a person’s own genitals or anus with a finger, hand, or artificial sexual organ or other similar device at the direction of another person.

On appeal, E.R. does not contest the fact that K.F. was a child when the abuse

occurred. Instead, he contends the evidence is insufficient to establish that he

committed a sex act. Thus, he contends the evidence was insufficient to establish

that he committed sexual abuse in the second degree. Essentially, E.R.’s entire

appeal boils down to a witness credibility argument. He contends the evidence is

clear W.F. wanted him out of her house, and that her desire to have him removed

from her home motivated her to fabricate allegations against him. As E.R. puts it,

“[W.F.] is not a credible witness and she pushed K.F. to repeat the scant

allegations” against him. He adds, “because [W.F.] was at the heart of the

allegations against [him] providing an excuse to get him out of the house, K.F. is

not credible either.” In support of his argument, E.R. points to several text

messages in the record which show W.F. requested E.R. and his little sister be

removed from her care. We reject this argument for two reasons.

First, we begin by noting the juvenile court heard testimony from K.F. that

E.R. “[s]tuck his finger up my butt and he licked my pee-pee.” These acts meet

the definitions of a “sex act” provided for in the Iowa Code. See id. And a victim’s

testimony alone is enough to sustain a finding of guilt for sexual abuse. See State 9

v. Trane, 934 N.W.2d 447 (Iowa 2019) (“Here, the jury heard K.S. testify that Trane

repeatedly and forcibly inserted his finger in her vagina and repeatedly grabbed

her hand and put it over his groin area. K.S.’s testimony, standing alone, is

sufficient to support Trane’s conviction on this count.”); see also State v. Hildreth,

582 N.W.2d 167, 170 (Iowa 1998) (“We find that the alleged victim’s testimony is

by itself sufficient to constitute substantial evidence of defendant’s guilt.”); In re

Z.N., No. 16-0693, 2017 WL 1086229, at *3 (Iowa Ct. App. Mar. 22, 2017) (“The

witness’s consistent testimony at trial regarding the operative fact that Z.N.

molested her is sufficient to carry the State’s burden.”).2

Second, although E.R. attacks the credibility of W.F. and K.F. due to his

belief W.F. had a motivation to fabricate allegations of sexual abuse, the juvenile

court explicitly found W.F. and K.F.’s testimony to be credible. In its ruling following

the adjudication hearing, the juvenile court wrote:

To be fair, there is plenty of evidence that W.F. was frustrated with the Department, and the Court found [the HHS worker] and T.F. to be credible in consistently recounting the conflicts. W.F. never denied the conflicts. That said, the Court found the testimony of [K.F.], W.F., and the nurse to be credible in recounting the sexual abuse, and [the HHS worker] and T.F. did not, and could not, simply claim the abuse did not happen.

The juvenile court also explicitly rejected E.R.’s theory that W.F.’s alleged

motivation to have him removed from her home made her an uncredible witness.

It wrote:

2 In his brief, E.R. also notes the fact that “K.F. did go to the hospital for an exam

and there was no sign of anal trauma, redness or injury.” But our supreme court has said a sexual abuse victim’s accusations need not be corroborated by physical evidence. See Hildreth, 582 N.W.2d at 170 (“This court has held that a [sexual abuse] victim’s accusation need not be corroborated by physical evidence.”). 10

The first issue the Court has with this theory, other than the fact that it is speculative in nature, is that W.F.’s main issue is not the removal of [E.R.] from her home. [E.R.] was there voluntarily the prior summer, and was there by request this time around, too. W.F.’s complaint was that the Department was preventing W.F. from raising the five kids in her care the way she wanted to raise them (the Department was micromanaging her care, so to speak), and that the Department was not getting her reimbursed for the travel costs and other expenditures related to caring for [E.R.] and [his sister]. That is, she does not dislike [E.R.]. There is no motive for her to make up serious allegations against him personally.

These findings are significant because appellate courts are to defer to witness

credibility determinations made by the juvenile court. See In re Marriage of Gast,

No. 23-0109, 2024 WL 260823, at *3 (Iowa Ct. App. Jan. 24, 2024) (“But we defer

to the district court’s factual findings based on witnesses’ credibility because of that

court’s inherent advantages in making credibility determinations.”). We give that

deference to the juvenile court because it is in a much better position than we are

to assess the credibility of a witness. See Hora v. Hora, 5 N.W.3d 635, 645 (Iowa

2024) (“It is pragmatic because the district court has a front-row seat to the live

testimony, viewing the demeanor of both the witness as she testifies and the

parties while they listen, whereas our review is limited to reading black words on a

white page of a sterile transcript.”). From this record, we see no reason to disturb

the credibility determinations made by the juvenile court.

Accordingly, we find substantial evidence supports the juvenile court’s

ruling that E.R. committed the delinquent act of sexual abuse in the second degree.

IV. Conclusion 11

We affirm the juvenile court’s ruling, finding substantial evidence supports

the finding E.R. committed the delinquent act of sexual abuse in the second

degree.

AFFIRMED.