Opinion
No. 1-868 / 01-0816
Filed February 20, 2002
Appeal from the District Court for Polk County, Joe E. Smith, District Associate Judge.
The State and guardian ad litem appeal the juvenile court's dismissal of a CINA petition. AFFIRMED.
Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant Attorney General, for appellant State of Iowa.
Michelle Miller, Des Moines, guardian ad litem, for appellant minor child.
James S. Blackburn, Des Moines, for appellee father.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
The State and guardian ad litem for a minor child appeal the district court's dismissal of a child in need of assistance (CINA) petition based on allegations of sexual abuse by the father. The father cross-appeals. We affirm.
Mike and Holly are the unmarried parents of Mikayla, born February 1997. They share physical and legal custody of Mikayla. In March 2000, Mikayla began to act out in a sexual manner. Holly took Mikayla to her physician who reported possible abuse to the Department of Human Services (DHS). DHS filed a founded report of child abuse and in November 2000, the State filed a CINA petition alleging Mikayla had been sexually abused, or was imminently likely to be sexually abused, by Mike.
After a hearing in March 2001, the juvenile court held that while it was convinced sexual abuse had occurred, the identity of the perpetrator had not been proven by clear and convincing evidence. The State and guardian ad litem appeal and Mike cross-appeals.
We review CINA proceedings de novo. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). While we give weight to the trial court's findings of fact, we are not bound by them. Id. It is the State's burden to prove the allegations by clear and convincing evidence. In re B.B., 598 N.W.2d 312, 315 (Iowa Ct. App. 1999).
Upon de novo review we agree that the State has failed to prove by clear and convincing evidence that Mikayla is a child in need of assistance. "Clear and convincing evidence means no serious or substantial doubt exists about the correctness of the conclusions drawn from the evidence." In re S.J.M., 539 N.W.2d 496, 500 (Iowa Ct. App. 1995). The trial court observed and gave credence to the testimony of the art therapist and the child's mother. However, their testimony was only as reliable as the statements made by the child. It is the inconsistencies in the child's statements that led the investigator to conclude that the case had been established by a "slight preponderance" and the court to conclude that the allegations had not been proven by clear and convincing evidence. We agree. Therefore, we affirm the district court's dismissal of the State's CINA petition. As a result, we need not address the issues raised in Mike's cross-appeal.
AFFIRMED.