Opinion
No. 3-343 / 02-1897
Filed June 13, 2003
Appeal from the Iowa District Court for Winneshiek County, Alan D. Allbee, Judge.
Father appeals an order adjudicating his two children to be in need of assistance. AFFIRMED.
Kevin Schoeberl of Story, Schoeberl Kowalke Law Firm, Cresco, for appellant-father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Andrew Van Der Maaten, County Attorney, and Stephen Belay, Assistant County Attorney, for appellee.
Bradley Shidler of Miller, Pearson, Gloe, Burns, Beatty, Cowie Shidler, P.L.C., Decorah, for minor children.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Ron and his girlfriend, Karen, are the parents of twins, Timothy and Miranda, eight months old at time of the child in need of assistance (CINA) adjudication. Karen also has an older son, Michael, age eight. A pretrial ruling allowed the State's expert to opine as to the risk Ron presented to the children. On August 28, 2002, the juvenile court adjudicated Timothy and Miranda to be children in need of assistance, pursuant to Iowa Code section 232.2(6)(d) (2001), based on the court's finding that the twins were imminently likely to be sexually abused by Ron. Ron appeals the adjudication and subsequent dispositional order, limiting Ron's contact with the children to supervised visitation.
Our review of a CINA order is de novo. In re D.T., 435 N.W.2d 323, 329 (Iowa 1989). A claim that an expert witness does not qualify to give expert testimony lies within the discretion of the district court. Olson v. Nieman's, Ltd., 579 N.W.2d 299, 309 (Iowa 1998). We will not reverse its decision absent an abuse of that discretion and prejudice to the complaining party. Id. (citing Hyler v. Garner, 548 N.W.2d 864, 868 (Iowa 1996)).
Expert testimony.
In 1998, Ron entered an Alford plea and was convicted of Lascivious Conduct with a Minor. The Department of Human Services (DHS) determined the allegation of sexual abuse was founded. Sexual abuse of a second child was found undetermined by DHS. Ron was placed on the sex offender registry but did not participate in treatment as a sexual abuser.
Ron also argues that the conviction of lascivious conduct with a minor does not qualify as a sex act or sexual activity and therefore the record is insufficient to establish he has a history of sexual abuse. An eight-year-old girl accused Ron of inserting his fingers into her vagina while he was babysitting her. Subsequently Ron entered an Alford plea to lascivious conduct with a minor. While lascivious conduct with a minor does not include a sex act as an element, the crime is under the Sexual Abuse chapter in the code and the allegation certainly included a sex act. See Iowa Code § 709.14 (1998). We conclude that the 1998 conviction is sufficient to show Ron has a past history of sexual abuse.
During its investigation of whether Karen had denied her son, Michael, critical care, DHS became concerned for the safety of Timothy and Miranda due to Ron's past history of sexual abuse. In response to its concerns, DHS provided family-centered psychological evaluations in May and June 2002, conducted by Dr. George Harper, for Ron, Karen, and Michael, then age eight. Dr. Harper's deposition was admitted into evidence at the adjudication hearing. Ron argues the juvenile court erred in admitting Dr. Harper's opinion of Ron's propensity to reoffend as Dr. Harper should not have been qualified as an expert witness. Ron asserts Dr. Harper did not have the proper education or training to address Ron's propensity to sexually abuse children.
Expert testimony is admissible "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Iowa R. Evid. 5.702. "The source of expert knowledge is not significant." Deburkarte v. Louvar, 393 N.W.2d 131, 138 (Iowa 1986) (holding that physician need not be specialist in particular field of medicine to give expert testimony). Dr. Harper is a licensed psychologist and has been in practice for twenty-eight years. Dr. Harper admits he does not specialize in the assessment of sex offenders but he works and consults with another doctor who has extensive experience with sexual abuse perpetrators. Over the course of his career, Dr. Harper has provided therapy for four men who have sexually abused children. Dr. Harper testified, through deposition, that he did not feel comfortable with the statement that Ron was imminently likely to sexually abuse his children. But Dr. Harper continued, stating that Ron had an increased risk of reoffending due to his substance abuse, mental health issues, and past behavior. Dr. Harper further stated that he did not conduct a risk assessment during his evaluation of Ron because he believed it to lack any validity.
We think the juvenile court did not abuse its discretion in overruling Ron's objections to the qualifications and testimony of Dr. Harper, particularly whether he was qualified to testify as to Ron's propensity to reoffend. Any deficiencies in Dr. Harper's education, training, or experience go to the weight of his testimony rather than to its admissibility. See Olson, 579 N.W.2d at 309 (citing Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d 882, 885 (Iowa 1994) (holding that if witness has threshold qualifications to testify as an expert, any inquiry concerning the extent of his qualifications goes to the weight of his testimony and not to its admissibility)). Further we note that even if Dr. Harper should not have been allowed to testify as an expert witness, Ron suffered no prejudice as one of Dr. Harper's conclusions was he could not offer an opinion as to whether Ron was imminently likely to sexually abuse his children.
Clear and convincing evidence.
Next Ron argues the adjudication was not supported by clear and convincing evidence. The juvenile court adjudicated eight-month-old Timothy and Miranda in need of assistance solely on the basis that they were imminently likely to be sexually abused by Ron. See Iowa Code § 232.2(6)(d) (2001).
A child is in need of assistance if, inter alia, he "has been, or is imminently likely to be sexually abused by [his] parent, guardian, custodian or other member of the household in which [he] resides." Iowa Code § 232.2(6)(d). There has not been any allegation that Ron has sexually abused his children; rather the issue is whether Ron is imminently likely to do so.
Social worker Tara Hanson testified that the supervised visits between Ron and the twins had not elicited any inappropriate behavior. However, Hanson was concerned about Ron's substance abuse issues and anger management. Hanson also noted Ron had not completed any sex offender treatment after his 1998 conviction, nor had he completed the batterers' education program after he was convicted of domestic abuse of Karen in July 2001 and ordered to complete the program. Dr. Harper evaluated Ron, Karen, and Michael, focusing on the relationships among the family members to determine if the children were safe in the home. Dr. Harper found Ron to be emotionally unstable and strongly suggested Ron seek further evaluation, because of the likelihood Ron was suffering from a bipolar disorder. In recommending any contact with the children be supervised, Dr. Harper testified:
My recommendation that his visits with the children continue to be supervised were based on, number one, little or no evidence or no evidence that he had ever participated in a child sex abuse perpetrator's treatment program successfully. I would think that would be essential in deciding whether or not you could consider the children safe in his care. . . . He is emotionally unstable and he has a history of substance abuse, both of which raise the probability that he will engage in some kind of behavior that is harmful or neglectful to the children. There is a strong association between substance abuse and child sexual abuse. Mr. Wentworth had a history that he revealed in his interview of a lot of anti-social behavior, including assaults and things of that sort, which in my estimation anyway are probably the result of his undiagnosed bi-polar disorder.
Dr. Harper concluded Ron has a significantly increased risk to abuse the twins and recommended Ron continue supervised visits with them until he had completed the recommended and court ordered treatments.
"In determining what is in the best interests of the child[ren] we can look to a parent's past performance because it may be indicative of the quality of the future care that parent is capable of providing." In re Marriage of Winnike, 497 N.W.2d 170, 174 (Iowa Ct.App. 1992) (citing In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981) (citations omitted)). While no one including Dr. Harper could accurately predict the future, we find his testimony along with the other evidence presented, satisfies the clear and convincing standard to support the adjudication and subsequent dispositional order restricting Ron's contact with the children to supervised visitation.