Opinion
No. 2-427 / 01-1573.
Filed May 15, 2002.
Appeal from the Iowa District Court for Polk County, DOUGLAS F. STASKAL, District Associate Judge.
Appellant, the father of two minor children, appeals from a finding that they are children in need of assistance. AFFIRMED IN PART, REVERSED IN PART.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Jennifer Navis, Assistant County Attorney, for appellee-State.
Tiffany Koenig, Des Moines, for appellant.
Rachael Seymore, Des Moines, for minor children.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Appellant, Roger, the adoptive father of Victoria and Dustin, appeals from a finding that they are children in need of assistance (CINA). Roger contends the district court erred in finding sufficient evidence existed to support an adjudication under Iowa Code section 232.2(6)(d) (2001). He also claims his trial counsel was ineffective in failing to call Victoria as a witness. We affirm as to Victoria and reverse as to Dustin.
This section defines child in need of assistance as an unmarried child:
Who has been, or is imminently likely to be, sexually abused by the child's parent, guardian, custodian or other member of the household in which the child resides.
Victoria, born in 1990, and Dustin, born in 1992, were adopted in 1996 by their then foster parents, appellant and his wife Sharon. On May 16, 2001 police interviewed Victoria and her eight-year-old friend, Heather. Heather told the police Roger got into the bathtub with Victoria and her. She said he had on a swimsuit, and she and Heather both said they soaped Roger's body and slid down it into the water. Heather and Victoria said they could not slide down too far because Roger had a bump in his swimsuit. Victoria also told the police there were other times Roger had been in the bathtub with her and she would soak his chest and stomach. Roger admitted at trial the girls soaped him but denied they slid off his body.
On May 31, the court issued a temporary no-contact order between Roger and the children. The children remain in the family home with Sharon. In June the State petitioned to have the children adjudicated in need of assistance. In July a child abuse report was founded with Roger as the perpetrator. After an adjudicatory hearing on August 7, the court found clear and convincing evidence supported the allegations and concluded the children were in need of assistance. The court placed the children with their mother in the family home and continued the no-contact order concerning Roger.
Our review of CINA adjudications is de novo. Iowa R. App. P. 6.4; In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We give weight to the findings of the juvenile court, but are not bound by them. Iowa R. App. P. 6.14(6)(g). "This weight is most notable with a finding involving the credibility of witnesses." L.G., 532 N.W.2d at 481. The State has the burden of proving the allegations of its CINA petition by clear and convincing evidence. Iowa Code § 232.96(2). This is more than a preponderance of the evidence, but less than a reasonable doubt. See In re N.C., 551 N.W.2d 872, 873 (Iowa 1996).
We first address Roger's claim there is not clear and convincing evidence to support a finding Victoria is a child in need of assistance. Having reviewed the trial court file and transcript of the proceedings de novo and giving the required deference to the juvenile court's credibility findings, we affirm. The statements of Victoria and Heather, together with Roger's admissions to the police, statements during his psychosocial evaluation, and testimony at the adjudicatory hearing provide clear and convincing evidence that Victoria is a child in need of assistance under section 232.2(6)(d). We affirm on this issue.
We next address Roger's claim that there is no evidence supporting Dustin's adjudication. Although the evidence supports findings that Roger has difficulties in his marriage, has participated in sexualized activities with Victoria that are improper, and provides inconsistent stories of what has occurred, we find nothing in the record to support a finding Roger sexually abused or is likely to sexually abuse Dustin in the future. This is the only ground the State sought to prove as to Dustin. We acknowledge the State's argument that Roger's improper acts with Victoria make him likely to abuse Dustin also, but find no support for that claim in the record before us. Consequently, we reverse the adjudication of Dustin as a child in need of assistance.
Finally, Roger claims his counsel was ineffective in failing to call Victoria or Heather as witnesses at the adjudication hearing. Our supreme court has provided guidance to our evaluation of claims counsel was ineffective:
For the purposes of this case we will assume, as the State seems to concede, that in these situations due process requires counsel appointed under a statutory directive to provide effective assistance. Although the sixth amendment is not implicated here, we nonetheless will apply the same standards adopted for counsel appointed in a criminal proceeding. This follows the practice of other courts confronting such claims in termination cases.
In re D.W., 385 N.W.2d 570, 579 (Iowa 1986) (citations omitted). Roger must demonstrate counsel's performance was deficient and actual prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).
Roger contends the court needed to hear Victoria and Heather testify, not just read their statements or reports of what others understood them to say. He argues that if credibility was an important factor in the court's decision, he was prejudiced because the court did not truly have the opportunity to judge the credibility of the victims. Roger's own testimony supports the adjudication. Thus, even without considering Victoria's statements, we would affirm. Roger, therefore, cannot demonstrate prejudice from his counsel's choice not to call Victoria to testify.
AFFIRMED IN PART, REVERSED IN PART.