Opinion
No. 2-935 / 02-0818
Filed January 29, 2003
Appeal from the Iowa District Court for Polk County, Karla Fultz, Associate Juvenile Judge.
Appellant appeals the adjudication and disposition orders of the juvenile court finding the minor children to be children in need of assistance. AFFIRMED.
Thomas Webster of Tingle, Knight, Webster Juckette, P.L.C., Des Moines, for appellant father.
Jeffrey Carter, Des Moines, for mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Jennifer Galloway, Assistant County Attorney, for appellee-State.
J. Karnale Manuel of Drake Legal Clinic, Des Moines, guardian ad litem for minor child.
Heard by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Appellant Rick, father to Leanna and stepfather to Risa and Lincoln, appeals the adjudication and disposition orders of the juvenile court finding Risa, Lincoln and Leanna children in need of assistance (CINA) under Iowa Code sections 232.2(6)(c)(2) (2001), and 232.2(6)(d), following reports by Risa that Rick had subjected her to sexual abuse on at least two separate occasions. On appeal Rick argues the district court erred in finding sufficient evidence existed to adjudicate the children CINA under section 232.2(6)(d) in light of Risa's recantation of her allegations against Rick and the testimony of therapist Maureen Dion that Risa was not always trustworthy. We affirm.
Appellant refers to the child born on September 24, 1991 as "Logan." All references in the orders, as well as references made by the State in its brief, indicate this child's name is "Lincoln."
On September 26, 2001, Risa, born February 27, 1985, made allegations at school that Rick had sexually abused her. Risa stated Rick had entered the bathroom while she was taking a shower and tied her hands to an object in the shower with a necktie. He allegedly then pulled down his pants and had a condom in his hand, when Risa's mother, Connie, entered the bathroom and witnessed the event. Without saying anything, Connie exited the bathroom, and Rick followed. The next morning Connie allegedly said nothing to Risa and did not take her to school as she usually did.
Following these allegations, Risa also stated that some weeks before, while she and the family were playing poker and drinking wine coolers, Rick touched her bottom under her shorts and her breasts both over and under her shirt, and he also tried to kiss her.
A no-contact order was issued on September 27. Rick moved out of the house. After approximately two weeks Risa recanted, claiming she made up the allegations against Rick because she wanted Connie to get mad and kick him out of the house. Risa testified she became overwhelmed with her responsibilities, including cooking, cleaning, and childcare at home, as well as working, so she told the story so Rick could no longer "control [her] life." Apparently Rick would nag Risa at home if something went wrong at Aqualand, where she worked and Rick was manager.
Following her recantation Risa, as well as Lincoln and Leanna, born September 24, 1991 and February 12, 1997, respectively, were removed from the house due to the juvenile court's determination that Risa had recanted under pressure from Connie, who was suffering emotional and financial hardship with Rick no longer in the house. Finding pressure to testify in a certain way regarding Rick's actions put all the children at risk, the court placed the three children with their grandmother. Risa was later placed in a group home because she was running away, skipping classes at school, and had conflicts with her grandmother.
We review this CINA adjudication de novo. In re D.T., 435 N.W.2d 323, 329 (Iowa 1989); In re J.R.H., 358 N.W.2d 311, 317(Iowa 1984). We are not bound by the juvenile court's factual findings, but give them weight, especially when credibility is at issue. In re D.T., 435 N.W.2d at 329.
The State must show by clear and convincing evidence that Risa, Lincoln, and Leanna are children in need of assistance. Iowa Code § 232.96(2). Clear and convincing evidence is evidence that leaves "no serious or substantial doubt about the correctness of the conclusion drawn from it." Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct.App. 1983); see also In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Rick claims on appeal that, given Risa's recantation, there is not clear and convincing evidence of sexual abuse. Besides the recantation, Rick points to Risa's conflicting stories of sexual abuse. One story told to the Department of Human Services was that Rick attempted to sexually assault her in the shower. In another, Risa told therapist Maureen Dion that Rick attempted to sexually assault her in her bedroom. When asked, Risa denied ever stating anything about an attempted sexual assault in the bedroom.
We acknowledge Risa is not entirely trustworthy. In spite of her earlier statements to Dion, Risa later fully denied ever giving an account of the attempted sexual assault in the bedroom. Further, Risa came up with some colorful excuses as to why she tested positive for marijuana, including that it was mixed into a cake she ate or that she was present in a room full of marijuana smokers. Additionally, Risa broke promises not to skip school as well as promises to come home at night, and there was a suspicious charge on her grandmother's credit card which Dion believed was likely Risa's.
However, we nevertheless conclude there was clear and convincing evidence the shower incident did happen, as the recantation was not believable for several reasons. One, the alleged "lie" of the shower incident would have unjustifiably removed Rick from the house, removed all of the children from their mother's house, and destroyed Rick's reputation, yet Risa expressed no emotion in her recantation. Further, in recanting, Risa claimed she never even took a shower that night. Notably, Rick had previously stated, when being questioned about the incident, that Risa took a shower first that night, and that he took one later. Also in her recantation Risa claimed the entire poker incident was a lie as well, in spite of the fact that Rick had earlier admitted drinking alcohol and playing poker with Risa and Connie.
Courts look at the entire set of circumstances and view recantations of testimony with great suspicion. State v. Folck, 325 N.W.2d 368, 377 (Iowa 1982); State v. Tharp, 372 N.W.2d 280, 282 (Iowa Ct.App. 1985). We note, however, that Risa's recantation in this case was not of statements made under oath; it was simply of the story she told a friend, the school counselor, a police officer, and DHS, on September 26, 2001. Only her recantation, recorded in a deposition, was sworn testimony.
In spite of the fact that only the recantation was sworn testimony, the particular circumstances of this case indicate to us the truthfulness of the shower incident, and more generally, of a problem of sexual abuse in the household with Rick present. As stated above, Risa's recantation is too sweeping to be believable. In her recantation she claimed she never even took a shower the night in question, when even Rick admitted both he and she had taken a shower, just at separate times. Further testimony indicated Leanna reported Risa's telling her that Rick touched her breasts in the bedroom, and Lincoln reported seeing Rick touch Risa's breasts in the bedroom. The details of the shower incident, specifically Rick's use of a necktie, contain specific indicia of reliability. Rick admitted having tied Connie's hands, specifically with a necktie, before engaging in intercourse with her in the past. It is unlikely the necktie concept would have materialized out of thin air, especially considering that it corresponds with Rick's sexual behavior in the past. We refuse to believe this is mere coincidence.
We conclude there was clear and convincing evidence that Rick sexually abused Risa. We further find Rick therefore presents a danger to Risa as well as to her siblings, Lincoln and Leanna. In re D.D. and V.D., 653 N.W.2d 359, 362 (Iowa 2002). Accordingly, we affirm the juvenile court's CINA adjudication.