Opinion
No. 2-919 / 02-0121
Filed January 29, 2003
Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge.
Appellant father appeals the juvenile court's finding his children, children in need of assistance (CINA) under Iowa Code sections 232.2(6)(c)(2) (2001), and 232.2(6)(j), and additionally with respect to one child, under section 232.2(6)(d). AFFIRMED.
Dennis Bjorklund of Bjorklund Law Firm, P.C., Coralville, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Martha Johnson, Assistant County Attorney, for appellee-State.
Amy Kepes of Youth Law Center, Des Moines, guardian ad litem for minor child.
Heard by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Appellant father Barrion appeals the juvenile court's finding his children, Torrie and Tyler, children in need of assistance (CINA) under Iowa Code sections 232.2(6)(c)(2) and (j) (2001), and Torrie additionally under section 232.2(6)(d). Barrion argues on appeal there was not clear and convincing evidence to find Torrie and Tyler children in need of assistance under sections 232.2(6)(c)(2) and (j), or Torrie under section 232.2(6)(d). Barrion also argues the juvenile court erred in finding Torrie and Tyler should remain in the temporary legal custody of their aunt, Leola. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Torrie, born on December 2, 1987, and Tyler, born July 3, 1990, were the children of Barrion and Candace. Barrion and Candace divorced in 1995. The parties had joint custody, and Candace had primary physical care. Barrion contends Candace often prevented him from exercising his visitation rights and that he sought mediation and a court order to enforce these rights.
Torrie was reportedly sexually abused at age three, telling her parents her babysitter's husband touched her "privates." In 1999 about four years after the divorce of her parents, Torrie claimed she became uncomfortable visiting Barrion because of his "tickling." Torrie alleged Barrion would tickle her buttocks over her clothes, including sometimes reaching around between her legs toward the front of her body while saying, "booty, booty."
On or about September 1, 2000, Torrie reported these tickling incidents, apparently in response to a Department of Human Services investigation which had been initiated by reports from Barrion that Torrie's track coach was spending an inappropriate amount of time with her. Upon discovering he was the subject of the investigation, Barrion maintained he had not touched Torrie inappropriately, he had had no sexual intentions, and that others were always present when he played the tickling game.
Barrion came to the interview with notes to explain his tickling game, so perhaps the fact that he, not the track coach, was the subject of the interview was not the surprise he claimed it was.
In the summer of 1999 Torrie had become associated with a new assistant track coach whose relationship with Torrie was somewhat suspect. According to reports of interviews with the head coach, Torrie and the assistant coach spent an inordinate amount of time together such that it presented an appearance of impropriety. The coach would drive Torrie home, and Torrie even spent the night at his house. Barrion contends he became suspicious of their relationship and attempted to prevent Torrie from communicating with the coach. Barrion reported the coach to DHS in February of 2000, and then again in May or June of that year. In March of 2001 the State was granted a no-contact order between Torrie and the coach. Barrion argues it was in retaliation for his accusations against the coach that Torrie began accusing him of sexual abuse.
In late December of 2000, Torrie also accused Barrion of forcing her to have sexual intercourse with him in 1997 and 1998, when she was about ten years old. This accusation arose out of an investigation conducted after Barrion spent Christmas Eve at Candace's home, which Torrie reported made her uncomfortable. At this time Torrie also reported Barrion had shown her pornographic pictures. Torrie further alleged she had been sexually active with a "Ricco" in sixth grade, had been pregnant twice and had had two abortions, although she later altered that account, claiming only one pregnancy which ended in miscarriage. A temporary no-contact order between Barrion and his two children was issued December 29, 2000. The Des Moines Police Department investigated the sexual abuse allegations but concluded there was insufficient credible evidence to pursue criminal charges.
On January 8, 2001 the State initiated proceedings to have Torrie and Tyler found to be children in need of assistance. Candace died unexpectedly on March 16, 2001. On April 5, 2001 Torrie and Tyler were found to be children in need of assistance under Iowa Code sections 232.2(6)(c)(2) and (j). A dispositional order following this adjudication was issued May 16, 2001. On October 31, following several contested hearings on the sexual abuse charges, Torrie was also found to be a child in need of assistance under section 232.2(6)(d). A contested review of the previous findings under sections 232.2(6)(c)(2) and (j) was held concurrently with the 232.2(6)(d) finding. The October 31 order confirmed the previous findings. A second dispositional order was issued December 19, 2001. Barron's appeal is from this order.
We review CINA cases de novo. In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994). We review "both the facts and the law, and we adjudicate rights anew." Id., (citing In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993). "Although we give weight to the factual determinations of the juvenile court, especially when considering the credibility of witnesses, we are not bound by them." A.M.H., 516 N.W.2d at 870 (citing T.A.L., 505 N.W.2d at 482.)
II. IOWA CODE SECTIONS 232.2(6)(c)(2) AND 232.2(6)(j)
Barrion first argues there was not clear and convincing evidence to support the findings under Iowa Code sections 232.2(6)(c)(2) and (j). The State argues this issue has not been preserved for our review.
We recognize that Iowa Code section 232.2(6)(j) concerns a child "[w]ho is without a parent, guardian or other custodian." Torrie and Tyler were in fact not "without a parent," as their father Barrion still had parental rights, regardless of his no-contact order. We conclude, however, that this issue is not material to the ultimate disposition of this case.
No notice of appeal was filed following either the April 5, 2001 adjudication or the May 16 disposition hearing. The notice of appeal from the findings under these sections was not filed within thirty days of the dispositional order. When the dispositional order was filed the adjudicatory order became final. We have no jurisdiction to consider issues raised concerning the May 16 dispositional order. See In re A.W., 464 N.W.2d 475, 477 (Iowa Ct.App. 1990) (citing In re Long, 313 N.W.2d 473, 477 (Iowa 1981)).
III. IOWA CODE SECTION 232.2(6)(d)
In appealing Torrie's CINA adjudication based upon allegations by Torrie that Barrion sexually abused her, Barrion contends that in spite of the juvenile court's credibility findings favoring Torrie, Torrie's credibility was suspect, and the finding was not supported by clear and convincing evidence.
The juvenile court acknowledged there were problems with Torrie's credibility but nevertheless found clear and convincing evidence of the sexual abuse. The court stated several reasons for reaching this conclusion. Torrie's allegations against Barrion had never waivered. Torrie's therapist reported Torrie was very fearful of her father. Torrie has seemingly sought out inappropriate sexual relationships, a common practice for those who have been sexually abused. Furthermore, separate and apart from Torrie's claims, Barrion's testimony was largely not believable. He denied the improper billing practices and improper client contact allegations which social worker Crenshaw concluded led to the revocation of his social work license. Barrion instead claimed he had voluntarily given up his social work license because he did not need it anymore. Additionally, Barrion insisted he had a certification in psychology, which Iowa apparently does not offer. The juvenile court noted Barrion's lack of stability in relationships and employment "constitute[d] sexual abuse risk factors." The juvenile court further determined Barrion's lack of emotion during his testimony operated to "impugn his credibility."
On our de novo review we find a number of instances showing Torrie lacked credibility. Torrie made inconsistent statements regarding sexual partners and pregnancies and abortions. Torrie has not, however, waivered on her allegations against Barrion and her reluctance to have contact with him. We find Barrion's testimony is not entirely credible.
While also recognizing there were valid challenges to Torrie's credibility, the juvenile court believed Torrie's claims rather than Barrion's testimony on the issue of his sexual abuse. We give deference to these findings and affirm.
With respect to Tyler, although the juvenile court dismissed allegations made under Iowa Code section 232.2(6)(d), the juvenile court nevertheless made the contrary finding that there was clear and convincing evidence Barrion was imminently likely to abuse Tyler. We conclude Tyler is also at risk of imminent sexual abuse by Barrion and find him a child in need of assistance under section 232.2(6)(d) as well. See In re D.D. and V.D., 653 N.W.2d 359, 362 (Iowa 2002).
IV. PLACEMENT
Barrion's third claim is that the juvenile court erred in placing Torrie and Tyler in the custody of his sister, their aunt Leola. Barrion claims, among other reasons, Leola is too busy and her household of nine people does not allow her to properly supervise Torrie and Tyler.
Barrion's attorney conceded in oral argument that Tyler's interests are best served by remaining in Leola's custody.
Torrie and Tyler were placed with Leola, at the encouragement of Barrion, following Candace's death. To modify a dispositional order, the juvenile court must find conditions since that placement have so materially and substantially changed that the best interests of the child will be served by a change in placement. See In re Leehey, 317 N.W.2d at 513, 516 (Iowa Ct.App. 1982). Although Leola has a number of people in her home and leads a busy life, the juvenile court was confident Leola could meet the challenges of providing an adequate home for Torrie and Tyler. The court observed Leola was the children's aunt and has had consistent contact with them, she was committed to them and loved them, she provided adequate structure and supervision, she ensured they attend therapy, and she lived in Des Moines, where the children wished to remain. We agree with the juvenile court that the evidence presented in the child in need of assistance proceedings showed the children's interests would be served by remaining with Leola. We decline to modify Torrie's and Tyler's placement.
While evidence in the termination proceeding consolidated with this matter for purposes of oral argument showed Torrie was no longer in her aunt's care, that evidence was not a part of the record here.