Opinion
No. 5-493 / 04-1165
Filed October 26, 2005
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
K.D. appeals from the district court ruling declining to excuse him from registering as a sex offender. AFFIRMED.
Jesse A. Macro, Jr., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and Justin Allen and Michelle Chenoweth, Assistant County Attorneys, for appellee.
Heard by Hecht, P.J., Vaitheswaran, J., and Nelson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
K.D. appeals from the district court ruling declining to excuse him from registering as a sex offender. We affirm.
I. Background Facts and Proceedings.
At the age of fourteen, K.D. was found to have committed the delinquent act of assault with intent to commit sexual abuse causing a bodily injury and was placed at the State Training School (Eldora) until his eighteenth birthday. The delinquency disposition of the court, however, did not require K.D. to immediately register as a sex offender.
The victim in this delinquent act was eleven, three years younger than K.D., and was allegedly "compromised by mental health issues."
Upon his release, the question of whether K.D. would be required to register came before the juvenile court at a hearing on August 6, 2003. At the hearing, evidence was produced by the State showing that despite receiving almost four years of intensive sexual offender treatment at Eldora, K.D. (1) never successfully completed a sexual abuse program, (2) committed two incidents of sexual misconduct while attending Eldora, and (3) was rated as a "high risk to re-offend" by the Eldora staff. Despite this evidence, K.D. testified at the August 2003 hearing that he had accepted responsibility for his actions and that he was now able to benefit from treatment, and therefore should not be required to register. The juvenile court deferred the registry issue for another year while K.D. was on probation to the court, allowing K.D. the intervening opportunity to demonstrate satisfactory progress towards addressing his "anti-social sexual behavior."
On June 23, 2004, a second hearing was held on whether K.D. would be required to register in Iowa as a sex offender. The juvenile court heard from three of K.D.'s experts, each of whom testified to K.D.'s significant progress in outpatient treatment received through the PACE Going Home/Reentry Program since his release from Eldora. All three experts recommended K.D. not be required to register.
The Going Home/Reentry Program is a federally funded program offered through the Iowa Department of Human Services designed to help juveniles transition from the State Training School back to society.
Russell Kinney, a clinical social worker, conducted both the group therapy and the individual therapy sessions K.D. attended. Kinney testified that he based his recommendation on (1) K.D.'s expressions of empathy and his acceptance of responsibility for his past behaviors, (2) a lack of reported sexual fantasies, (3) a strong support structure and family network, and (4) K.D.'s relapse-prevention plan. On cross-examination, however, Kinney admitted that in treating K.D. he (1) had not met with K.D.'s family, (2) had not reviewed K.D.'s past treatment history while at Eldora nor the particulars of K.D.'s initial offense, and (3) had instead based his opinions almost exclusively on K.D's self-reporting. Kinney also admitted K.D.'s recent problems with substance abuse, in particular methamphetamine, indicate impulse control issues, and K.D's "grooming" behavior during the highly-structured treatment program at Eldora were also troubling.
Grooming describes those actions by K.D. used to set up and facilitate sexual activity with other patients at Eldora.
Charles Camp, a second clinical social worker, also found K.D.'s grooming behavior at Eldora somewhat troubling, though he did not believe the behavior indicated K.D. presented a high recidivism risk. Camp indicated he was unaware of K.D.'s recent substance abuse at the time he made his recommendation against requiring K.D. to register but noted the behavior was indicative of K.D.'s problems with impulse control. Camp testified that he had based his recommendation in part on the results of a J-SOAP II evaluation he administered that showed K.D. is a low risk to re-offend. Camp admitted that he had only conducted a two-hour interview with K.D. and that he based many of his answers to the evaluation's questions on information received by Mr. Kinney, noting the importance of Kinney's opinions as K.D.'s last treating therapist. Camp acknowledged that the J-SOAP II, while better suited for use with juveniles than other patients, (1) is not yet validated as a predictor of sexual abuse recidivism risk, (2) is not designed to account for long-range risk factors, and (3) should be re-administered by multiple evaluators every six months. Camp admitted that it was not his practice to do follow-up evaluations as is recommended by the authors of the J-SOAP II.
Camp testified that he had reviewed K.D.'s treatment history while at Eldora and was aware of K.D.'s inability to successfully complete a treatment program. When asked about the disparity between the recent success in outpatient treatment and K.D.'s treatment failures while attending Eldora, Camp testified that it is "not infrequent for somebody to fail in treatment once or twice prior to succeeding." Camp acknowledged K.D. had previously been rated as a high risk to re-offend by the Eldora staff using an accredited adult-oriented evaluation instead of the J-SOAP II. And despite describing Mr. Kinney's opinion on the matter as "pretty fundamental" support for his recommendation that K.D. not be required to register, Camp indicated that as a sex offender therapist, he would never begin treatment before reviewing the patient's past treatment history. Camp also noted that he would never proceed with treatment "based solely on what [the patient] self-reported."
K.D. also offered the testimony of Miradieu Joseph, a caseworker with the Going Home/Reentry program assigned to monitor K.D. and help him make a successful transition back into society. Joseph, who stated he met with K.D. approximately twice per week, noted K.D.'s significant progress toward dealing with his past conduct. Joseph testified (1) he had met with K.D.'s family, which he described as highly supportive, and (2) he believed this support network along with K.D.'s relapse-prevention plan made K.D. a low risk to re-offend. However, in making his recommendation that K.D. should not be required to register, Joseph admitted he was only qualified to make any recommendation on the registry issue "as a person who knows [K.D.]," and not as a qualified sexual abuse therapist.
The State called its own expert, Amy Lampham, an independent, certified sex offender treatment provider. Despite never having treated or interviewed K.D., Lampham claimed she was qualified to make a recommendation on the registry issue based on her review of K.D.'s treatment profile and her experience treating patients similar to K.D. Given the nature of the initial offense and K.D.'s subsequent behavorial issues at Eldora, Lampham stated that it was essential for K.D. to complete a treatment program before she could reasonably recommend against registration. She also opined that K.D.'s failure to complete a treatment program would render suspect any relapse-prevention plan currently in place for K.D. because "all of the factors necessary to go into the plan [should] have been developed through the treatment process."
Lampham testified it is inconsistent with the standard of care for a sex abuse therapist to begin or continue treatment with an individual based entirely on the patient's self-reporting and without first examining the patient's treatment history, "especially if that person had been discharged [from prior treatment programs] unsuccessfully." Lampham also confirmed the substance of expert Camp's admission that the J-SOAP II is only a reliable predictor for sexual abuse recidivism when conducted on a collaborative basis and when repeated by multiple evaluators semiannually.
After this extensive evidentiary hearing, the juvenile court issued its ruling requiring K.D. to register as a sex offender in Iowa. K.D. now appeals, alleging the district court abused its discretion by (1) ignoring substantial record evidence justifying an exception from the registration requirement, and (2) ordering registration in contravention of what K.D. characterizes as the juvenile court's "original ruling" that K.D. would not be placed on the registry unless he "messed up."
II. Scope and Standard of Review.
A juvenile court's sex offender registry decision, like all juvenile proceedings, is reviewed de novo. In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994). We review the entire record before us to decide whether the juvenile court abused its discretion in refusing to excuse K.D. from the mandatory registration requirement of Iowa Code section 692A.2(1) (2003). Compare State v. Greiman, 344 N.W.2d 249, 251 (Iowa 1984) (noting that where the scope of review is de novo and the standard of review is abuse of discretion, all record evidence is examined to determine whether the court abused its discretion), with In re S.M.M., 558 N.W.2d 405, 407 (Iowa 1997) (interpreting section 692A.2(4) to afford the juvenile court discretion to excuse a juvenile sex offender from mandatory registration under the chapter). We will find the juvenile court abused its discretion where its decision is not supported by substantial evidence. State v. Sayles, 662 N.W.2d 1, 8 (Iowa 2003).
III. Discussion.
While on probation to the juvenile court, K.D. was afforded the opportunity to demonstrate he does not pose the high recidivism risk suggested by the Eldora staff. Iowa Code section 692A.2(4) requires all juvenile sex offenders to register, "unless the juvenile court finds that the person should not be required to register under this chapter." Facing this presumption favoring the registration of all juvenile sex offenders, it is K.D.'s burden to convince the juvenile court that K.D. does not present the type of recidivism risk against which the registry was designed to protect the public. In re S.M.M., 558 N.W.2d at 407.
It is true that three experts involved with K.D.'s treatment since his release testified that he has made a significant breakthrough in his outpatient treatment despite a poor track record with in-patient treatment while housed at Eldora. These three experts each opined that K.D. no longer poses a significant recidivism threat and thus K.D. should not be forced to bear the hardships which accompany registration as a sex offender.
We, however, find the bases upon which each of these experts base their recommendations questionable. Certain of the treatment methods employed by Mr. Kinney, K.D.'s primary treating therapist, were called into question not only by the State's expert, but also by one of K.D.'s own experts, Mr. Camp. In particular, Kinney's conclusions about K.D.'s progress in therapy were weakened because they were reached without consideration of K.D.'s past treatment history and without regard to the Eldora staff's previous assessment of K.D.'s high risk to re-offend. We conclude the district court did not abuse its discretion when it rejected the recommendation of expert Kinney.
Mr. Joseph admitted he was not qualified to perform a recidivism-risk evaluation. He claimed he was nonetheless qualified to express an opinion in this case because he was familiar with K.D. as a person. The district court did not abuse its discretion under these circumstances when it rejected as unpersuasive the recommendation of expert Joseph.
K.D.'s third expert, Mr. Camp, is certified to make recidivism-risk assessments for the sex offenders, and he expressed his opinion against requiring registration in this case after reviewing K.D.'s past treatment history. We find Camp's recommendation less than persuasive, however, because of the data from which it is was derived. First, the J-SOAP II evaluation relied upon by Camp is not verified, meaning its ability to predict recidivism risk among juvenile subjects has not been well established. Second, whatever reliability might justifiably be generally attributed to the results of the J-SOAP II assessment is diminished by problems with the manner in which the evaluation was administered in this case. Camp admitted that the single evaluation was informed by the notes and the recommendation of Mr. Kinney, whose opinions we have already noted were based entirely on K.D.'s self-reporting. Additionally, we conclude the weight we give to Camp's opinion on the registration question is diminished because he failed to (1) correlate the result of his evaluation with the results achieved by other evaluators, and (2) repeat the J-SOAP II consistent with recommended protocol. Thus, we reject K.D.'s assertion that Camp's recommendation is entitled to great weight in this case.
IV. Conclusion.
After de novo review of the entire record, we conclude K.D. has failed to present credible evidence upon which the juvenile court was compelled to excuse him from the mandatory registration requirement of section 692A.2(1). K.D. (1) failed to successfully complete a sexual abuse program, (2) committed two incidents of sexual misconduct while attending Eldora, and (3) was rated as a "high risk to re-offend" by the Eldora staff. Because we find the record amply supports the juvenile court's decision, we find no abuse of discretion in the order requiring K.D. to register as a sex offender.
We also reject K.D.'s contention that the juvenile court's interlocutory ruling on the registration issue constrained the court's discretion to require K.D. to register following the probationary period. Interlocutory rulings are by definition not final decisions and thus are subject to both review and amendment by the court which issues them. Ahls v. Sherwood/Division of Harasco Corp., 473 N.W.2d 619, 624 (Iowa 1991). Because K.D. had no reliance interest in a particular final disposition of the issue, we find no abuse of discretion in the juvenile court's refusal to excuse K.D. from registering as a sex offender and affirm.