Opinion
No. 5-793 / 04-1947
Filed November 23, 2005
Appeal from the Iowa District Court for Iowa County, Susan F. Flaherty, Associate Juvenile Judge.
The appellant appeals from the juvenile court's decision that he be required to register as a sex offender. AFFIRMED.
Fred Stiefel, Victor, for appellant-child.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, Lewis McMeen, County Attorney, and Timothy McMeen, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Jacob challenges the juvenile court's decision that he be required to register as a sex offender. Jacob was fifteen years old when he was charged by a juvenile delinquency petition with sexual abuse in the second degree and found guilty of the offense after a trial. He contends the juvenile court abused its discretion in not excusing him from the requirement that he register as a sexual offender. We affirm.
Juvenile delinquency proceedings are reviewed de novo. In re S.M.D., 569 N.W.2d 609, 610 (Iowa 1997). Iowa Code section 692A.2(1) (2003) describes persons required to register on the state's sex offender registry as follows:
A person who has been convicted of a criminal offense against a minor, sexual exploitation, or other relevant offense, or a sexually violent offense in this state . . . shall register as provided in this chapter.
Iowa Code section 692A.2(4) provides:
A person who is convicted, as defined in 692A.1, of either a criminal offense against a minor, sexual exploitation, a sexually violent offense, or an other relevant offense as a result of delinquency in juvenile court shall be required to register as required in this chapter unless the juvenile court finds that the person should not be required to register under this chapter.
(Emphasis added).
Thus, although the statute begins with the general requirement that all offenders in the specified group of crimes be required to register, it allows a juvenile court to excuse registration in some cases according to its discretion. In re S.M.M., 558 N.W.2d 405, 407 (Iowa 1997). The statute prescribes who is covered by the registration requirement. The only discretion the juvenile court has is deciding who will be excused. See id. The statute is a regulating or remedial statute and not punitive. See id. The burden is on J.L. to prove he is entitled to an exception. See id.
In general, an abuse of discretion occurs only when the discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Atley, 564 N.W.2d 817, 830 (Iowa 1997). Iowa Code chapter 692A gives no guidance as to what factors courts need to consider in deciding whether to require a juvenile who has been found guilty of a defined act to register on the sex offender's registry.
Jacob was charged with three counts of sexual abuse. Two counts were dismissed. He denied the remaining charge and a hearing was held. The victim testified. The juvenile court determined Jacob committed the offense of sexual abuse in the second degree in April and May of 2002 when Jacob put his hand and mouth on the penis of a six-year-old child. At the time of the abuse Jacob's mother, who had a day care in her home, was caring for the child.
At a subsequent dispositional hearing the juvenile court found Jacob in need of treatment as a perpetrator of sexual abuse based on the serious nature of the act and the culpability evidenced by the nature of the act itself. The court found reasonable efforts had been made to alleviate the need for placement out of his home and residential placement was necessary to protect the children who remain at risk of abuse from Jacob. Jacob was then placed with the Iowa Department of Human Services for residential treatment placement in a sexual offender's treatment program. It was further ordered Jacob have no contact with a child under the age of twelve years unless supervised by an adult present in the same room who assumes responsibility for the safety of the children.
Jacob subsequently was placed in the Four Oaks STOP program, a specialized adolescent sexual abuse treatment program. Once in the program Jacob for the first time admitted he committed the abuse with which he was charged and also advised his counselor that he wished to discuss the allegations in the two counts that were dismissed. While the counselor believed the admissions were true, he recognized Jacob could have made the admissions in order to leave the residential treatment program and have outpatient treatment, in so much as he could only go to outpatient treatment if he admitted he was guilty.
In September 2003 a second dispositional hearing was held, at which time Don Kiesewetter was of the opinion that Jacob could be treated through outpatient treatment. Kiesewetter has a master's degree in social work and is a licensed independent social worker and a certified sexual offender treatment professional, level two, with the State of Iowa. The juvenile court ordered Jacob be returned to his parent under the supervision of the juvenile court. The court may have further verbally ordered that Jacob did not have to register as a sex offender and that issue would be addressed toward the end of Jacob's probation.
In August, on discretionary review, Jacob was ordered to register as a sex offender as he had been discharged from residential treatment. He was told he could request a hearing to review the requirement, but was told filing such a request did not relieve him of the statutory obligation to register immediately.
Jacob asked for a hearing on the issue of whether he should register. At the hearing Kiesewetter testified. He had worked with Jacob at Four Oaks. When asked if Jacob was likely to reoffend Kiesewetter testified:
I can't answer directly. I don't think anybody can answer that: Is he likely to or not? I think there are no tools that can give me that kind of information. We have some tools that can address the likelihood but nationally the standards about eighty percent don't get arrested again for sex offenses. He said Four Oaks had some statistics and he understood they have about eighty percent of the children they treat have not reoffended or been charged.
Kiesewetter also testified he had completed a sex offender risk assessment on Jacob. He said the assessment was developed specifically to help the State determine whose pictures should be published as sex offenders. Kiesewetter said the assessment came from adult corrections in New York state and was geared to adults leaving the New York prison system. He said an adult leaving the prison system is different than a teenager in Jacob's situation. He said in completing the form he came up with a total risk assessment of eighty-five but he took ten points off because Jacob is an adolescent and the assessment is prejudiced against adolescents. This left Jacob with a score of seventy-five, a score that put him at the bottom of medium and at the top of low risk. Kiesewetter said if you were rated low your picture would not be in the paper and if you were rated medium it would depend. He said the system in theory is not designed to determine potential risk for reoffending but is designed to determine whether one's picture gets in the paper. He said the Iowa assessment is based on history and does not take in consideration treatment or lack thereof.
Apparently the assessment gives the subject ten points for having offended as an adolescent.
Kiesewetter also completed a "Juvenile Sex Offender Assessment Protocol" on Jacob. Kiesewetter said half of the assessment is based on history and half is based on treatment issues, showing either progress or lack of progress in treatment. He said Jacob got zero on the second half, which is good as it means he successfully completed treatment. He said Jacob received a seven on the first part of the assessment. Putting the scores together Jacob was rated at twelve, with 100 being the greatest risk of reoffending. Kiesewetter said a score of twelve put Jacob at a low risk to reoffend. He also noted Jacob had not committed other offenses. He did not believe Jacob should be required to register as a sex offender in Iowa because, in his opinion, Jacob was at low risk of reoffending.
Jessica Viergutz, who works as a therapist at the Four Oaks STOP Program, who began working with Jacob in her capacity as a group therapist in August of 2003 and then worked with him in individual and therapy testified. She said Jacob actively participated in the sessions and was compliant and respectful.
The junior high and high school principal in the school Jacob attends testified. He said Jacob is a good student, has good grades, attends school regularly, has good support from home, and has not caused any problems at school. The principal said Jacob was in sports and he had coached Jacob in one sport.
Jim Leidigh, a sixth district juvenile court probation officer, testified. He said he knew about Jacob only on paper and that Jacob may have had a number of probation officers because of turnovers of employees not because of any problems with Jacob. Leidigh said he filed a report in July recommending Jacob not be put on the sex abuse registry. He said he and Shawn Moss discussed it and it had to do with the recommendation of Four Oaks that Jacob not register. Leidigh testified a report was filed about two months later recommending Jacob be placed on the registry. When asked why the change, he said in preparation for the hearing he and Shawn went through the registry report, the risk assessment, and Jacob was rated pretty high. Leidigh agreed Kiesewetter had testified the assessment he used is no longer used in Iowa and that he and Kiesewetter disagreed as to how the assessment should be completed. It appeared that Leidigh gave Jacob (1) extra points for three offenses though he was only convicted on one offense, (2) points for violent conduct, and (3) did not subtract the ten points Jacob received for offending as an adolescent. Kiesewetter questioned Leidigh on adding these points to Jacob's score, which Kiesewetter did not do.
Leidigh said there had been no problems with Jacob since the first recommendation. His explanation for changing his recommendation is that he did this assessment and came up with a high score. When asked about Kiesewetter's disagreement with him about the analysis on the risk assessment test, Leidigh said Kiesewetter scored it wrong. Leidigh testified that, based on the assessment and Jacob's score, he was at a potentially high risk to reoffend.
Following the hearing the juvenile court filed a ruling denying Jacob's request that he be excused from registering as a sex offender. In doing so the court noted that (1) Jacob denied the offense under oath after watching the victim testify; (2) Jacob's parents and persons in Jacob's home community rallied to Jacob's defense and did not consider that Jacob was sexually abusing the child; (3) Jacob admitted the abuse in treatment when faced with the prospect of remaining in treatment for an extended period if he did not admit the alleged behavior; (4) Jacob lied to family and friends even after his admission; and (5) Jacob's family and friends remain supportive of him and view Jacob as cured after completing the treatment program. The court found the community support could be detrimental to other children in the community who rely on adults to protect them. The court said it believed Jacob had made significant progress in treatment and has the tools and support to avoid reoffending, but the court was not convinced Jacob would always use the tools and support. The court was concerned people in Jacob's community who are aware of the finding Jacob abused the child do not recognize the potential risk of harm to children and continue to offer Jacob the opportunity to have unsupervised contact with children. The court also said Jacob's prior lie precluded it from giving Jacob the benefit of the doubt and left it unwilling to let Jacob bypass the legislative directive.
Jacob challenges the juvenile court and says it abused its discretion in considering there was community support for Jacob as a factor in its determination. He contends the fact of community support came from a perception on the part of the court and that it was not a proper factor for the court to consider. We disagree with Jacob that the juvenile court's findings on the community support issue are not supported by facts in the record. The record includes findings regarding community support of Jacob by juvenile court judges both in the disposition order dated May 19, 2003 and in the order of lesser restrictive placement dated September 10, 2003. These findings were noted by the juvenile court in the order of November 12, 2004. There are adequate facts in the record to support these findings. The level of belief of members of the community is an appropriate consideration regarding placement on the registry.
The district court considered observations of the members of the community present at the dispositional hearing and provided support for its findings. While we maintain de novo review, we should give the district court due deference in this determination.
Jacob further contends the juvenile court abused its discretion in considering the fact that Jacob exercised his right to a trial as a negative factor against his request to be excused from registry. We disagree with Jacob on this issue.
The sex offender registry is a regulatory statute aimed at promoting public safety. State v. Pickens, 558 N.W.2d 396, 398 (Iowa 1997). It appears the legislature recognized the stigma that comes from being included on the sexual abuse registry and sought to provide a safety net for juveniles who committed the crimes, but did not appear to be a danger as the predictors indicated they would not reoffend. Consequently, our focus of inquiry is whether the public needs to know about Jacob because he may present a danger to society, that is, whether or not he will reoffend. While we have long recognized that we may use past behavior in predicting future conduct, this is only one factor in the difficult and perhaps impossible job of predicting future conduct. The opinions of the experts most closely associated with Jacob are that he should not be required to register.
In determining the issue we need to consider certain factors including (1) the nature of the offense; (2) the status of the victim; (3) Jacob's status, attitude, and ability to obey rules as well as his safety plan and his attitude toward following it; (4) clinical judgments; and (5) assessment tools.
Jacob abused a victim who was younger than himself. Jacob initially denied the abuse, but later admitted the abuse. He has cooperated with treatment providers, is a good student and follows school rules, and has developed a safety plan for himself, noting he declined the invitation to coach fourth grade flag football with fellow high school football players. The opinion of his primary treatment provider was that he should not have to register. Probation officers, including one who had never met Jacob but initially accepted the opinion of his treatment providers, assessed Jacob's possibility to reoffend using a test no longer used in Iowa.
As a fact finder, the juvenile court is at liberty to accept or reject opinion testimony. Miller v. International Harvester Co., 246 N.W.2d 298, 302 (Iowa 1976). We cannot say the juvenile court abused its discretion in rejecting expert testimony.
AFFIRMED.
Vogel, J. and Eisenhauer, J. concur; Sackett, C.J. concurs in part and dissents in part.
I concur in part and dissent in part.
I concur with the majority in all respects except I believe the juvenile court abused its discretion in considering the community support issue when the record contained insufficient evidence to support the conclusions drawn. I would remand to the juvenile court to reconsider its ruling after excluding its perception of community support.