In the Interest of S.J.M.

539 N.W.2d 496, 1995 Iowa App. LEXIS 105, 1995 WL 656495
CourtCourt of Appeals of Iowa
DecidedAugust 17, 1995
Docket94-1123
StatusPublished
Cited by5 cases

This text of 539 N.W.2d 496 (In the Interest of S.J.M.) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of S.J.M., 539 N.W.2d 496, 1995 Iowa App. LEXIS 105, 1995 WL 656495 (iowactapp 1995).

Opinions

CADY, Judge.

This is an appeal from an adjudication by the juvenile court of a child in need of assistance (CINA). On our review, we affirm.

Stephanie is the daughter of Troy and Tammy. She was born January 22, 1990. Troy and Tammy divorced in 1991 and Tammy was awarded physical care of Stephanie. Troy and Tammy are hostile to one another.

In July 1993 Tammy contacted the department of human services (DHS) to report that, after returning from a week of visitation with Troy, Stephanie told Tammy’s fiance, Todd, that “daddy Troy” had licked her crotch. Todd reported that when he was putting Stephanie to bed she pulled up her nightgown, spread her legs apart, spread her genitals apart and told him to lick it. Todd [498]*498reported that Stephanie said “isn’t it pretty” and that “daddy Troy” liked it.

The report was investigated by the police and the DHS. Stephanie, Tammy, Troy, Todd, and Troy’s wife were all interviewed. Stephanie continued to report that “daddy Troy” licked her butt or crotch. She stated it “felt like tickles.” She also spread the legs of an anatomically correct doll and pointed. Troy denied the allegations and suggested either the family dog had licked Stephanie or that Stephanie was coached.

The investigation prompted the State to file a petition for child in need of assistance, and an adjudicatory hearing was held. Troy attempted to have the parties stipulate that he passed a lie detector test as a part of the police investigation. All parties objected. The court found lie detector tests were not generally accepted as rehable indicia of truthfulness and refused to accept any evidence of a he detector test.

Detective Randy Hunefeld testified about his investigation, as did child abuse investigator Connie McClellan. McClellan concluded the allegations of sexual abuse were founded. Social worker Gladys Alvarez testified that she had been working with Stephanie in therapy. Her testimony included Stephanie’s statements about “daddy Troy” licking her. The State also offered a report written by Alvarez to the county attorney. Alvarez later testified about the various indicators she looks for when trying to assess the reliability of a child’s report of sexual abuse. She concluded that the indicators of reliability were present in this case.

The evidence presented by Troy included the deposition testimony of Gary Wells, a professor of psychology. Dr. Wehs concluded it was not possible to determine whether Stephanie had in fact experienced the reported incident. At the hearing Troy also offered into evidence a written report by Dr. Wehs. The court sustained the State’s objections that the report was hearsay and contained opinions which invaded the province of the jury. The court also found Dr. Wells’ testimony unhelpful and gave it no weight in the determination.

The court found clear and convincing evidence that Stephanie had been sexually abused by Troy, and adjudicated Stephanie to be a CINA pursuant to Iowa Code section 232.2(6)(d) (1993). Following a subsequent hearing, the juvenile court entered a disposi-tional order placing Stephanie in Tammy’s custody under the supervision of DHS. The no-contact order was entered, and Troy was ordered to complete a sexual offender program.

Troy raises several issues on appeal. We address each separately.

I. Alvarez Testimony

The father first argues that the trial court erred in admitting the written report and opinions of Gladys Alvarez, a clinical social worker and therapist who works with young children alleged to have been sexually abused. Alvarez is employed by the Des Moines Child and Adolescence Guidance Center and was Stephanie’s therapist following the sexual abuse report.

During the course of the direct examination of Alvarez, the State offered a letter into evidence written by Alvarez to an assistant county attorney concerning the therapy sessions with Stephanie. The father objected to the offer, asserting it contained inadmissible hearsay, opinions beyond the expertise of the witness and for which “no proper foundation” had been laid, and “invaded the province of the jury.” The court reserved its ruling and indicated that a written ruling would be made as a part of the final written decision.

Alvarez later testified to the various factors she uses to assess the reliability of sexual abuse accounts of children, and that she found nothing to doubt the reliability of Stephanie’s statements. No objection was lodged to this line of questioning.

The trial court failed to make a specific ruling on the offer of the letter in its written decision. The father did not respond with a posttrial motion requesting the ruling.

Error may not be predicated on a ruling which admits evidence unless a substantial right of the opposing party is affected and a timely objection was made which enunciated the specific grounds of the objection, unless the grounds were otherwise ap[499]*499parent from the record. Iowa R.Evid. 103(a). The objection must generally be specific enough to alert the trial court to the legal question or problem raised, and enable opposing counsel to take any possible corrective action to remedy the defect. State v. Williams, 207 N.W.2d 98, 109-10 (Iowa 1973).

In this case, the father timely objected to the offer of the letter written by Alvarez to an assistant county attorney. The objection was also specific enough to alert the trial court to the legal issue presented.1 However, after the trial court reserved ruling on the objection and failed to include a specific ruling on the objection in its final decision, the father was required to ask the court for a ruling by filing a motion under Iowa Rule of Civil Procedure 179(b). In re Estate of Claussen, 482 N.W.2d 381, 385-86 (Iowa 1992). The failure to ask for a ruling constitutes a waiver. Id.

The father also waived any error in permitting Alvarez to testify at trial about the factors she used to assess the reliability of the child’s claim. This evidence was presented at trial without objection. See Iowa R.Evid. 103(a).

II. Wells Testimony

The father next claims the trial court erred in failing to admit the written report by Dr. Wells, and in failing to give his deposition testimony any weight. The trial court indicated it gave no weight to his testimony because Dr. Wells had performed no clinical work for 17 years, was not involved in the detection or treatment of child victims, was provided only a small portion of the evidence in the case, and never met with Stephanie or reviewed any reports. The court sustained the objections to questions of Dr. Wells which sought his opinion whether Stephanie was truthful, and sustained objections to portions of the written report of Dr. Wells, including his opinion whether Stephanie actually experienced the event.

We recognize that the weight to be given evidence at trial is within the province of the finder of fact. Moreover, expert testimony regarding the truthfulness of a witness is inadmissible “because weighing the truthfulness of a victim is a matter reserved exclusively to the fact finder.” State v. Myers, 382 N.W.2d 91, 95 (Iowa 1986).

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In the Interest of S.J.M.
539 N.W.2d 496 (Court of Appeals of Iowa, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
539 N.W.2d 496, 1995 Iowa App. LEXIS 105, 1995 WL 656495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-sjm-iowactapp-1995.