In the Interest of E.W., Minor Child

• Court: Court of Appeals of Iowa
• Decided: March 30, 2022
• Docket: 21-1736
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-1736 Filed March 30, 2022

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

D.W., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Romonda D. Belcher,

District Associate Judge.

A father appeals the juvenile court’s adjudication of his daughter as a child

in need of assistance. AFFIRMED.

Randall L. Jackson, Des Moines, for appellant father.

Anjela A. Shutts of Whitfield & Eddy, P.L.C., Des Moines, for appellee

mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Bo Woolman and Erin Mayfield (until withdrawal) of the Youth Law Center,

Des Moines, attorneys and guardians ad litem for minor child.

Considered by Tabor, P.J., and Greer and Ahlers, JJ. 2

TABOR, Presiding Judge.

The juvenile court adjudicated E.W. as a child in need of assistance (CINA),

finding the four-year-old had been, or was imminently likely to be, sexually abused

by her father. See Iowa Code § 232.2(6)(d) (2021). The father contests the

sufficiency of the State’s evidence and the admission of hearsay at the adjudication

hearing. Finding clear and convincing proof to support the CINA adjudication and

no reversible error in the admission of evidence, we affirm.1

I. Facts and Prior Proceedings

E.W. was born in 2017. Her parents divorced in June 2020. The decree

granted the parents joint legal custody. The mother has physical care, and the

father has visitation. During a spring 2021 visit, her father touched her vagina with

his hand and tongue. E.W. told her mother, and her mother reported the alleged

sexual abuse to the Iowa Department of Human Services (DHS). A child protective

services investigation returned a founded report of child abuse on allegations that

the father placed his mouth on E.W.’s genitals. Her report of hand-to-genital

contact was not confirmed.

In July, the State filed a CINA petition, citing Iowa Code section 232.2(6),

paragraph (b) (physical abuse or neglect), paragraph (c)(2) (inadequate

supervision), and paragraph (d) (sexual abuse). At two September hearings, the

juvenile court heard from the DHS child protection investigator and the mother.

Over objections from the father’s counsel, those witnesses shared out-of-court

1Our overarching standard of review in child-welfare cases is de novo. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). But we review component hearsay rulings for correction of errors at law. In re A.B., No. 21-1495, 2022 WL 108586, at *2 (Iowa Ct. App. Jan. 12, 2022). 3

statements from E.W. The father’s counsel also lodged hearsay objections to the

State’s offer of police reports, a letter from E.W.’s therapist Abby Sohn, and the

child protective assessment. The juvenile court overruled those objections and

admitted the exhibits. In October, the juvenile court granted the CINA petition,

citing only paragraph (d). In a November dispositional order, the court left the child

in her mother’s care under DHS supervision.

The father now appeals the CINA adjudication. Both the State and the

mother file responsive petitions defending the juvenile court’s order.

II. Analysis

A. Hearsay Objections

The father argues that the juvenile court improperly admitted hearsay

evidence at the adjudication hearing. Hearsay means a statement made by a

declarant outside the current court hearing and offered into evidence “to prove the

truth of the matter asserted in the statement.” Iowa R. Evid. 5.801(c).

In his petition on appeal, the father complains that the court “permitted

numerous exhibits” to be admitted over hearsay objections and “permitted the

witnesses to testify to out-of-court statements made by third parties, including

E.W.” The State rightly critiques his complaints as lacking in specificity as to which

“objections he believes were incorrectly overruled and what exact testimony he is

now claiming should have been excluded.”

We recognize that the expedited briefing schedule in child-welfare appeals

often restricts counsel’s ability to review and cite the transcript of the proceedings.

See Iowa Rule of App. P. 6.201. But, at the same time, we cannot do counsel’s

job from the bench. See Matter of Est. of DeTar, 572 N.W.2d 178, 180 (Iowa Ct. 4

App. 1997) (declining to undertake advocacy when brief fails to guide appellate

court). By our count, the father’s counsel objected more than a dozen times on

hearsay grounds at the adjudication hearing. But counsel makes no effort to

pinpoint which of those overruled objections he is contesting on appeal. As a

matter of grace, we will try to decipher what evidence the father now finds

objectionable, but only as long as we can do so without assuming a partisan role.

See id. at 181.

We start with the five exhibits that the father’s counsel challenged as

hearsay. Exhibits 3 and 4 were police reports against the father for offenses

unrelated to E.W. and Exhibit 6 was a complaint alleging he violated a no-contact

order protecting the mother. The State asserts these records related to E.W.’s

safety if left in the father’s care and thus were admissible under Iowa Code

section 232.96(6).2 But we need not decide their admissibility. The juvenile court

did not rely on them to adjudicate E.W. as a CINA under section 232.2(6)(d) and

neither does our court in affirming the adjudication.

Next, we consider Exhibit 1, a letter from social worker Abby Sohn who had

six weekly therapy sessions with E.W. called “Discovery Work.” Sohn described

the program as “an extended evaluation method of therapy which is utilized in

2 That section provides: A report, study, record, or other writing . . . made by the department of human services, a juvenile court officer, a peace officer or a hospital relating to a child in a proceeding under this subchapter is admissible notwithstanding any objection to hearsay statements contained in it provided it is relevant and material and provided its probative value substantially outweighs the danger of unfair prejudice to the child’s parent, guardian, or custodian. Iowa Code § 232.96(6). 5

cases which abuse is suspected.” Sohn’s letter detailed her conversations with

E.W., including E.W.’s unprompted disclosure that “Daddy is touching my vagina.”

When asked what he touches it with, E.W. responded: “His tongue.” The juvenile

court mentioned the Discovery Work revelations in its adjudication order.

The State first argues the Sohn letter is admissible under section 232.96(6),

in the same category as a forensic interview completed at a child protection center.

See In re E.H. III, 578 N.W.2d 243, 246 (Iowa 1998). But, as the State

acknowledges, Sohn’s employer, Orchard Place Child Guidance Center, is not a

hospital, as required to avoid hearsay rules under the statute. Iowa Code

§ 232.96(6). In the alternative, the State contends the therapist’s letter was

admissible under the hearsay exception for statements made for purposes of

medical treatment or the residual exception. See Iowa R.s Evid. 5.803(4), 5.807;

see generally State v. Skahill, 966 N.W.2d 1 (Iowa 2021) (analyzing applicability

of the medical exception to medical versus non-medical or professional declarants

in a sexual abuse case). Trouble is, those arguments do not address the first layer

of hearsay. The State did not call Sohn as a witness, so her written recollections

of E.W.’s disclosures were themselves out-of-court statements offered for the truth

of the matter asserted.

After rejecting those grounds for admissibility, we turn to the State’s last

try—that allowing the Sohn letter into evidence was not reversible error because

the substantive portions of the exhibit were subsumed in Exhibit 7, the child

protective assessment. With that argument we agree. That report was admissible

over counsel’s hearsay objections. See Iowa Code § 232.96(4), (6); see also In

re A.C., 852 N.W.2d 515, 518 (Iowa Ct. App. 2014). And it incorporated all of the 6

same statements made by E.W. to therapist Sohn. The juvenile court did not err

in relying on the child protective assessment along with other evidence.

Finding no reversible error in the admission of the State’s exhibits, we turn

to the challenged testimony. As mentioned above, the father’s attorney fails to

point to the particular statements he is challenging on appeal. After arguing waiver

stemming from that lack of precision, the State contends that any of E.W.’s

statements related during the testimony of the DHS social worker and the mother

were not offered for the truth of the matter asserted, but to show the testifying

party’s later actions. See State v. Banes, 910 N.W.2d 634, 642 (Iowa Ct. App.

2018) (noting that when out-of-court statement is offered, not to show the truth of

the matter asserted but to explain responsive conduct, it is not viewed as hearsay).

We agree that many of the child’s out-of-court statements were admissible under

that theory. The responsive conduct of the witnesses was relevant to how the

juvenile court decided to address the CINA petition. See id. (explaining that for

statements to be admissible as showing responsive conduct, they must be relevant

to some aspect of proponent’s case). Here, the court noted the mother “has

demonstrated protective capacity” and ordered that she retain temporary legal

custody under DHS supervison. We decline to reverse the CINA adjudication on

hearsay grounds.

B. Clear and Convincing Evidence

The father also argues that the State failed to prove its case by clear and

convincing evidence. He contends that the child protective assessment cannot,

standing alone, support the CINA adjudication. And he attacks the mother’s

testimony as inconsistent and limited in detail about E.W.’s alleged abuse. 7

We agree that child protective assessment cannot be the sole basis for an

adjudication. See Iowa Code § 232.96(4); In re D.S., No. 14-2021, 2015 WL

800084, at *1 (Iowa Ct. App. Feb. 25, 2015). But here it was not. The State offered

corroborating evidence from the mother that one day in March 2021 she went

looking for E.W., expecting to find her playing in her bedroom. Instead, the mother

saw her four-year-old daughter touching her own vagina, “like self-stimulating kind

of gyrating back and forth.” The mother recalled that E.W. was “very upset” and

crying, “like a hurt cry.” It was then that E.W. revealed that her father had touched

her vagina. That revelation prompted the mother to contact the DHS. The DHS

arranged for a forensic interview. But interviewers couldn’t understand E.W., who

struggles with speech development and is working with a speech pathologist. So

the DHS could not confirm the abuse report.

But E.W. continued to make concerning statements to her mother. For

example, later that spring, E.W. told her mother to “lick her butt.” Another time,

E.W. asked her mother, out of the blue, if the father “was in time-out again.” The

mother said, “No, should he be?” In response, E.W. disclosed that the father had

touched her vagina with his tongue. Indeed, the mother had noticed some redness

in the child’s vagina in May. As these disclosures continued at home, E.W. was

attending the “Discovery Work” therapy sessions. The mother did not share E.W.’s

statements about her father “licking” her with therapist Sohn. But as the child

protective worker learned from Sohn, E.W. repeated that same allegation

independently in therapy. We find this corroboration heightens the credibility of

E.W.’s claims of sexual abuse. See In re N.C., 952 N.W.2d 151, 156 (Iowa 2020). 8

All told, we find the admissible evidence in the record supported the juvenile

court’s CINA adjudication.

AFFIRMED.