               IN THE SUPREME COURT OF IOWA
                                No. 11–1262

                           Filed January 25, 2013


STATE OF IOWA,

      Appellee,

vs.

KAREN SUE HUSTON,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Lee (North) County,

John G. Linn, Judge.



      Defendant appeals the judgment and sentence following her

conviction for child endangerment causing serious injury. COURT OF

APPEALS DECISION AFFIRMED IN PART AND VACATED IN PART;

DISTRICT COURT JUDGMENT AND SENTENCE REVERSED, AND

CASE REMANDED FOR NEW TRIAL.



      Mark C. Smith, State Appellate Defender, Samuel S. Berbano,

Student Legal Intern, and Shellie L. Knipfer, Assistant State Appellate

Defender, for appellant.



      Thomas J. Miller,       Attorney General, Bridget A. Chambers,

Assistant Attorney General, Michael P. Short, County Attorney, and

Clinton R. Boddicker, Assistant County Attorney, for appellee.
                                     2


WATERMAN, Justice.

         Defendant, Karen Sue Huston, was one of several adult caregivers

for a five-year-old girl suffering from malnutrition. This appeal presents

the question whether the district court committed reversible error in

Huston’s criminal jury trial by allowing a caseworker for the Iowa

Department of Human Services (DHS) to testify that a child abuse report

against Huston was administratively determined to be “founded.”

Huston objected to this testimony as irrelevant and unfairly prejudicial.

         The jury found Huston guilty of child endangerment causing

serious injury. The district court sentenced Huston to a term of fifteen

years in prison.       Huston appealed, contending the evidence was

insufficient to prove a “serious injury” and that the district court erred by

allowing testimony on the DHS administrative finding.          The court of

appeals affirmed, and we granted Huston’s application for further review.

         We exercise our discretion to limit our review to the evidentiary

ruling on the founded child abuse report. See State v. Marin, 788 N.W.2d

833, 836 (Iowa 2010). Division III of the court of appeals decision shall

stand as the final opinion in this appeal on the sufficiency of the

evidence to support Huston’s conviction.    For   the   reasons   explained

below, we hold it was reversible error to allow testimony that DHS had

determined the child abuse complaint against Huston was founded.

Accordingly, we vacate Division II of the decision of the court of appeals,

reverse the judgment of the district court, and remand the case for a new

trial.
                                           3

      I. Background Facts and Proceedings.

      The victim, T.H., was born in January 2005 to Brandon Holmes

and Christie Polhans. Brandon is now married to Mandy Holmes, who

has four children. Mandy is the daughter of Karen and Fred Huston. 1

      In November 2008, T.H. began living with Brandon and his wife,

Mandy, in Fort Madison, Iowa, after DHS removed T.H. from the care of

her mother. Approximately one month later, Brandon, Mandy, T.H., and

Mandy’s four children moved into the Hustons’ two-bedroom home,

where they all stayed until April or May 2010. Mandy was T.H.’s primary

caregiver during this time. In April of that year, shortly before Brandon

and Mandy moved out, Huston returned home from serving a ten-month

federal prison sentence in Texas for passing money orders in violation of

18 U.S.C. § 500.

      Although Karen and Fred initially denied that T.H. lived with them,

Huston admitted at trial that when Brandon and Mandy moved out T.H.

remained at the Hustons’ home. During this eight-month period, Karen,

Fred, and Mandy were all involved in caring for T.H.                    Fred would

occasionally make breakfast or dinner for T.H., but was otherwise gone

most of the day.       Mandy would come over daily and sometimes would

prepare T.H.’s breakfast or lunch. Mandy was also the one who would

bathe T.H.

      Huston is disabled and confined to a wheelchair. She weighs 395

pounds, and her right hip socket is “broke off.” She suffers from COPD

and asthma. She is unable to climb stairs and, for that reason, sleeps

on a bed in the dining room.           In light of her limited mobility, Huston

could only prepare sandwiches and other quick meals for T.H.

      1References   to “Huston” throughout this opinion are to Karen Huston.
                                     4

      Dr. Frank Artinian, T.H.’s pediatrician, first became concerned

about T.H.’s weight in November 2009. T.H. had lost approximately five

pounds or twelve percent of her body weight since her last doctor’s visit

in May.   Dr. Artinian tested T.H. for various medical conditions that

could be at the root of her failure to thrive, but all the tests came back

negative. Dr. Artinian wished to have T.H. admitted to the hospital at

that time for further testing and evaluation, but Mandy lacked authority

to consent to T.H.’s hospitalization, and DHS declined to force T.H.’s

hospitalization.   In lieu of hospitalization, Mandy brought T.H. in for

weekly weight checks for the next month. T.H.’s weight remained stable

during this time period.

      Dr. Artinian did not see T.H. again until ten months later when

Mandy brought T.H. in at the request of DHS. DHS caseworker, Sharon

Andrusyk, had received a report that T.H. was not wearing the glasses

prescribed for her to correct her crossed eyes.        Andrusyk contacted

Mandy, and she brought T.H. into the DHS office a day later on

October 20, 2010. During this meeting, Andrusyk immediately noticed

that something was wrong with T.H.       Andrusyk noted that T.H.’s skin

was “pale and gray,” her affect was flat, and the hair on the top of her

head was extremely thin. Andrusyk asked Mandy to take T.H. to see a

doctor.

      Mandy took T.H. in to see Dr. Artinian. Dr. Artinian determined

T.H. was failing to thrive. Failure to thrive is not a diagnosis but, rather,

“a description of what’s going on with a child.”      There are numerous

potential causes for failure to thrive. Dr. Artinian described T.H.’s failure

to thrive as “very serious” and noted that he “was actually worried about

her life at that point in time” because T.H. had not gained any weight in
                                     5

nearly a year. Dr. Artinian was unable to identify an illness or disease

that could account for T.H.’s condition.

      After examining T.H., Dr. Artinian wrote Andrusyk a letter

expressing his concerns regarding T.H.’s condition. Dr. Artinian wrote:

“[T.H.] had not grown or gained any weight in 10 months. Her hair is

thinning, she is emaciated and has a wasted appearance. [T.H.]’s skin is

dry and loose. Her affect is flat.” Dr. Artinian told Mandy that he was

“profoundly concerned about [T.H.]’s medical and psychological health.”

Nevertheless, Mandy remained unconcerned.          Dr. Artinian, therefore,

urged DHS to compel T.H.’s hospitalization. He noted: “As a pediatrician,

I have grave concerns regarding the physical and mental health of [T.H.].

I am very concerned that she is undergoing abuse/neglect in her home.

DHS absolutely needs to take action to help this child.”

      After   receiving   Dr.   Artinian’s   letter,   Andrusyk   obtained

authorization to remove T.H. from the Hustons’ home, to admit her to the

hospital, and to place her in foster care thereafter.      On November 2,

Andrusyk went to Brandon and Mandy’s home to remove T.H., but she

was not there. Brandon told Andrusyk that T.H. was with Mandy at an

appointment, but refused to tell Andrusyk where they were. Eventually,

Andrusyk found Mandy, but T.H. was not with her.              Mandy took

Andrusyk to the Hustons’ home and went inside the home and removed

T.H. Andrusyk noted the following about T.H.’s condition that day:

            She was very dirty. Her clothing was dirty. Her hair
      was matted. She, again, would not make eye contact, would
      not talk, except to repeat some things. She did state she
      was hungry. Her skin was very gray and loose appearing,
      again, very flat affect. She just didn’t talk hardly.

      Andrusyk took T.H. to the hospital, where she was admitted by

Dr. Christopher Youngman.       T.H. stayed in the hospital for five days.
                                     6

Andrusyk returned to the hospital the day after T.H. was admitted and

took photographs of T.H, including some bruising that appeared after

she was rehydrated.       Andrusyk noted T.H.’s skin tone and affect had

improved markedly since her admission to the hospital the previous day.

      During T.H.’s hospitalization, Dr. Artinian and Dr. Youngman

ruled out a number of medical causes for T.H.’s failure to thrive. While

in the hospital, T.H. ate everything presented to her and sometimes

asked for more to eat. On the last day of her hospitalization, T.H. ate a

lot of food and vomited. By the time T.H. was released from the hospital,

she had gained nine pounds.

      Dr. Artinian testified it was his opinion, to a reasonable degree of

medical certainty, that

      the reason why [T.H.] was failing to grow properly and gain
      weight over time was that she was not receiving an adequate
      amount of calories, meaning she was not getting enough
      food. This was—this was determined by ruling out the other
      problems that could cause it, but more than that, by
      hospitalizing her for five days, we were able to control her
      environment and control her caloric intake, and when given
      calories, she gained weight. We did no other intervention for
      her. We gave her no other medicine or therapies that would
      cause weight gain, and during that five days, [T.H.] came
      into the hospital at 34 pounds and was discharged at 43
      pounds, which is a nine pound weight gain in five days,
      which is—just speaks to the fact that when given calories,
      she was able to grow.

Dr. Youngman similarly concluded, to a reasonable degree of medical

certainty, that the cause of T.H.’s failure to thrive was “inadequate

caloric intake . . . she just was not receiving enough calories to grow.”

Dr. Youngman also noted that if left untreated, “people can die of

malnutrition,” and even short of death, they can suffer “[n]eurological

consequences . . . and other organ damage as well.”
                                     7

      After T.H.’s release from the hospital, she was placed in foster care.

Apart from another episode of vomiting, T.H. has thrived in her new

environment. T.H. has continued to gain weight since her release from

the hospital and, as of her last appointment, was between the 50 and 75

percentiles on the growth chart for weight.         In addition to these

improvements, the hair on the top of T.H.’s head has filled in, and she

has grown two inches.

      Leslie Boyer, a caseworker with DHS, was assigned to investigate

the allegations brought against Karen and Fred regarding T.H.’s care.

Boyer interviewed Karen and Fred at their home as part of this

investigation. During both interviews, Karen and Fred denied that T.H.

was living with them at the time DHS intervened. They later admitted at

trial that, after Brandon and Mandy moved from their home, T.H. stayed

behind with them.

      During these interviews, Huston also reported that she had seen

T.H. overeat and vomit several times. At trial, Fred and Mandy testified

to similar behavior.   Huston also told Boyer that T.H. would eat more

than any of the other children and that she believed T.H. had an eating

disorder. Moreover, Huston and Mandy testified that they thought T.H.’s

failure to thrive may have resulted from the stress she experienced when

Brandon cut ties with his own mother and prevented T.H. from seeing

her siblings and maternal grandparents.

      On December 27, 2010, the State charged Karen and Fred each

with two counts of child endangerment. Count I alleged they knowingly

acted in a manner creating a substantial risk to T.H. or willfully

depriving T.H. of food, causing serious injury in violation of Iowa Code

sections 726.6(1)(a), 726.6(1)(d), and 726.6(5) (2009).   Count II alleged

Karen and Fred intentionally used unreasonable force, torture, or cruelty
                                     8

on T.H. causing bodily injury in violation of Iowa Code sections

726.6(1)(b) and 726.6(6).      The cases against Karen and Fred were

consolidated for trial.

      The three-day trial began on June 20, 2011.         Nine witnesses

testified, including Karen and Fred, who were the defendants’ only

witnesses. One of the State’s witnesses, DHS caseworker Boyer, testified

regarding her investigation of the child abuse allegations against Karen

and Fred and her conclusions following that investigation. Boyer and the

county attorney had the following exchange:

            Q. As a result of your investigation, were you, as part
      of your work, able to reach a conclusion—you talked earlier
      about founded, not confirmed, so forth. Did you reach a
      conclusion with respect to that? A. Yes.
             ....
             Q. And what was your conclusion?
             MR. DIAL: Objection. Relevancy and lower burden of
      proof, Your Honor.
             MR. ORT: Same objection.
             THE COURT: Overruled. You may answer.
            [BOYER]: My outcome of my report was a founded
      child abuse report, two separate, actually, reports: One on
      Karen Huston and one on Fred Huston. It was founded on
      denial of critical care, failure to provide adequate
      supervision, also on physical abuse, and failure to provide
      adequate food.

Boyer had previously testified that a report would be founded if there was

a preponderance of evidence.      The county attorney then asked Boyer

whether there was a process for appealing a founded child abuse report.

The court, over defense counsel’s objection, permitted Boyer to explain

the appeal process.       The county attorney next asked Boyer whether

either Karen or Fred had appealed the founded reports against them.

Before Boyer was allowed to answer, the court sustained the objections

of defense counsel.
                                     9

      At the close of the State’s case, defense counsel for Karen and Fred

moved for a judgment of acquittal on both counts. The court granted the

motions for both defendants as to count II, but denied the motions as to

count I.

      At the close of the defendants’ case, the court denied defendants’

renewed motions for judgment of acquittal on count I.           The court

submitted the case to the jury.     The jury found Huston guilty on the

felony charge of child endangerment causing serious injury. Fred was

found guilty of a lesser included misdemeanor—child endangerment

causing no injury, in violation of Iowa Code sections 726.6(1) and

726.6(7). Huston admitted she had at least two prior felonies, making

her a habitual offender eligible for an enhanced sentence under Iowa

Code sections 902.8 and 902.9(3).        The court denied the defendants’

motions for a new trial on August 5. The court sentenced Huston to a

term not to exceed fifteen years.

      Huston appealed, alleging the district court erred in admitting DHS

caseworker Boyer’s testimony that the child abuse report against Huston

was founded and describing the process for appealing an administrative

finding of child abuse.    Huston also contends her trial counsel was

ineffective when he failed to move for judgment of acquittal after the

State failed to prove T.H. suffered serious injury. Fred did not appeal the

judgment or sentence entered against him. We transferred the case to

the court of appeals.

      A three-judge panel of the court of appeals affirmed Huston’s

conviction and sentence for child endangerment causing serious injury.

The court of appeals concluded the district court acted within its

discretion by admitting Boyer’s testimony as relevant:
                                      10
      Boyer’s testimony regarding the report described T.H.’s
      weight loss, failure to grow, and poor condition—evidence
      consistent with intentional abuse or neglect, an essential
      element the State needed to prove. The testimony explained
      the investigatory and protective steps taken by DHS to
      determine whether evidence supported the initial information
      DHS received, and how the investigation resulted in a
      “founded” report.     The testimony explained why further
      action was taken against Huston and what measures were
      taken to protect T.H.

The court of appeals further held Boyer’s testimony was not unfairly

prejudicial:

      [T]he probative value of the evidence outweighed any danger
      of unfair prejudice to Huston [because] . . . [u]nder these
      facts, evidence of a founded child abuse report is hardly the
      type of information that would arouse horror or surprise in
      the jury or lure the jury into declaring guilt on a ground
      different from proof specific to the offense charged.

The court of appeals also found that any error in admitting Boyer’s

testimony was harmless.

      We granted Huston’s application for further review.

      II. Scope of Review.
      We review evidentiary rulings for abuse of discretion.      State v.

Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001); McClure v. Walgreen Co.,

613 N.W.2d 225, 235 (Iowa 2000) (“We reverse a ruling that the district

court makes in the balancing process under rule 403 only if the district

court has abused its discretion.”).

      III. Analysis.

      We must decide whether the district court committed reversible

error by allowing the DHS caseworker to testify that the child abuse

report against Huston was determined to be founded.         Huston argues

“the danger here was that the jury would find [her] guilty because DHS

found her to have committed child abuse.” The State contends testimony

that the abuse report was deemed founded was admissible to explain the
                                    11

actions taken by DHS to remove T.H. from Huston’s care and that any

error in admitting this testimony was harmless.

      We recognize that a DHS caseworker may need to provide some

context when she testifies in a child endangerment case as to her

personal observations of the victim or home environment and when she

recounts the statements made by the defendant during interviews. But,

we have also cautioned “ ‘the line of inadmissibility’ ” may be crossed

when an investigator’s testimony goes “ ‘beyond the point of merely

explaining why certain responsive actions were taken.’ ” State v. Elliot,

806 N.W.2d 660, 668 (Iowa 2011) (quoting State v. Doughty, 359 N.W.2d

439, 442 (Iowa 1984)). Here, T.H.’s removal for hospitalization and the

interviews of Karen and Fred Huston all occurred before the DHS’s

determination that the child abuse allegations were founded.           Boyer

could have simply testified that she acted in response to a report of child

abuse to provide the context necessary for this testimony, without telling

the jury that DHS determined the abuse report to be founded.

      Huston argues any probative value of the fact DHS deemed the

abuse report against Huston to be founded was substantially outweighed

by the danger of unfair prejudice. We agree. Even relevant evidence is

inadmissible “ ‘if its probative value is substantially outweighed by the

danger of unfair prejudice.’ ” McClure, 613 N.W.2d at 235 (quoting Iowa

R. Evid. 5.403). Rule 5.403 provides:

      Although relevant, evidence may be excluded if its probative
      value is substantially outweighed by the danger of unfair
      prejudice, confusion of the issues, or misleading the jury, or
      by considerations of undue delay, waste of time, or needless
      presentation of cumulative evidence.

We employ a two-part test to decide whether evidence should be excluded

under rule 5.403.   See State v. Cromer, 765 N.W.2d 1, 8 (Iowa 2009).
                                    12

First, we “consider the probative value of the evidence.” Id. Second, we

balance the probative value “ ‘against the danger of its prejudicial or

wrongful effect upon the triers of fact.’ ” Id. (quoting State v. Harmon,

238 N.W.2d 139, 145 (Iowa 1976)).

      “[T]he purpose of all evidence is to sway the fact finder.” State v.

Mitchell, 633 N.W.2d 295, 301 (Iowa 2001) (Neuman, J., dissenting). In

child abuse cases, much evidence will be “at least somewhat prejudicial.

Exclusion is required only when evidence is unfairly prejudicial [in a way

that] substantially outweighs its probative value.” Id. “ ‘Unfair prejudice’

is the ‘ “undue tendency to suggest decisions on an improper basis,

commonly though not necessarily, an emotional one.” ’ ” McClure, 613

N.W.2d at 235 (quoting State v. Plaster, 424 N.W.2d 226, 231 (Iowa

1988)).

      We see no probative value to the DHS determination the abuse

report against Huston was founded.       Whether or not the abuse report

was deemed founded is irrelevant to any issue for the jury to decide.

Additionally, we see a real danger the jury will be unfairly influenced by

that agency finding, which gives the “imprimatur” of a purportedly

unbiased state agency on a conclusion that Huston was guilty of child

abuse. A federal court recently applied the same balancing test under

Federal Rule of Evidence 403 to exclude from evidence a fire department

report on the cause of a fire.     EMK, Inc. v. Fed. Pac. Elec. Co., 677

F. Supp. 2d 334, 338 (D. Me. 2010). The court concluded,

      Because . . . the report . . . carries the imprimatur of
      municipal government, the jury could well place undue
      emphasis on its summary causation conclusion on the
      assumption that it reflects the considered opinion of a fire
      investigator, who is cloaked with governmental objectivity
      and expertise.
Id. We see the same danger here.
                                      13

      Other courts have recognized the danger a jury will be unfairly

influenced by an administrative agency finding.              In Rambus, Inc. v.

Infineon Technologies, AG, 222 F.R.D. 101, 110 (E.D. Va. 2004), the court

held that Rule 403 required exclusion of a decision by an administrative

law judge. The court surveyed the authorities as follows:

             First, the jury, when confronted with the Initial
      Decision, likely would give undue weight to the findings of
      the ALJ. See Martin v. Cavalier Hotel Corp., 48 F.3d 1343,
      1358 (4th Cir. 1995) (upholding trial court’s decision under
      Fed. R. Evid. 403 to exclude report of state agency because
      “jury would have placed undue weight on such evidence”)
      (internal citations and quotations omitted); accord Williams
      v. Nashville Network, 132 F.3d 1123, 1129 (6th Cir. 1997) (“A
      strong argument can made that a jury would attach undue
      weight to this . . . agency determination.”). Similarly, the
      jurors’ ability to reach their own determinations respecting
      the facts at issue in this case would be undermined by the
      admission of the Initial Decision.         United States v.
      MacDonald, 688 F.2d 224, 230 (4th Cir. 1982) (upholding
      trial court’s decision under Fed. R. Evid. 403 to exclude
      executive branch investigator’s findings and conclusions
      because report “tend[ed] to undermine the exclusive province
      of the jury”); see also Steven P. Grossman & Stephen J.
      Shapiro, The Admission of Government Fact Findings Under
      Federal Rule of Evidence 803(8)(C): Limiting the Dangers of
      Unreliable Hearsay, 38 U. Kan. L. Rev. 767, 778–779 (1990)
      (“Jurors learning that a presumably objective public official
      has reached a certain conclusion after hearing evidence
      similar to what they have heard may have difficulty reaching
      an opposite conclusion.       Further, the jury is likely to
      deliberate on the correctness of the previous fact finding,
      rather than retaining the open-minded, first impression
      approach to the issues our system prefers.”).

Rambus, Inc., 222 F.R.D. at 110.

      Other courts have applied the Rule 403 balancing test to exclude

evidence   of   administrative     agency    determinations      in      employment

discrimination cases.     One such court pointedly observed, “presenting

the   administrative    findings   with     respect   to   plaintiff’s    charge   of

discrimination is ‘tantamount to saying “this has already been decided

and here is the decision.” ’ ” Brom v. Bozell, Jacobs, Kenyon & Eckhardt,
                                     14

Inc., 867 F. Supp. 686, 692 (N.D. Ill. 1994) (quoting Tulloss v. Near N.

Montessori Sch., Inc., 776 F.2d 150, 154 (7th Cir. 1985)). The Eighth

Circuit affirmed the trial court’s ruling to exclude from evidence in a jury

trial the EEOC’s administrative determination of racial discrimination.

Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309–10 (8th Cir.

1984). The Johnson court observed that to allow the agency finding into

evidence

      would amount to admitting the opinion of an expert witness
      as to what conclusions the jury should draw, even though
      the jury had the opportunity and the ability to draw its own
      conclusions from the evidence presented regarding disparate
      treatment.
Id. at 1309; see also Jones v. Cargill, Inc., 490 F. Supp. 2d 989, 992–93

(N.D. Iowa 2007) (excluding evidence of finding by Cedar Rapids Civil

Rights Commission of no probable cause as to race discrimination).

      These cases are persuasive. Telling the jury the DHS determined

the child abuse complaint against Huston was founded was unfairly

prejudicial due to the risk the jury would substitute the DHS

determination for its own finding of guilt or would give the determination

undue weight.

      The State argues the risk of prejudice was mitigated by testimony

from the DHS caseworker as to the lower burden of proof to establish a

child abuse complaint as founded by the agency. The district court gave

no curative or limiting instruction to the jury regarding the DHS

determination. Other courts have allowed testimony as to administrative

findings with a curative or limiting instruction. See, e.g., United States v.

W.R. Grace, 455 F. Supp. 2d 1203, 1207 (D. Mont. 2006) (allowing

evidence of EPA environmental risk assessment because the jury is

capable of “[d]ifferentiating between the different standards” with the
                                     15

help of a limiting jury instruction); Commonwealth v. Hernandez, 615

A.2d 1337, 1341 (Pa. Super. Ct. 1992) (affirming conviction for sexual

abuse of minor when trial court gave cautionary instruction “that only

the jury was the factfinder . . . and [that] it ‘must not and may not accept

any standard adopted by DHS’ ”). We do not believe it would have been

proper in this case to allow testimony that the child abuse report was

determined to be founded even with a limiting instruction. In any event,

we conclude Boyer’s testimony as to the lower burden of proof was

insufficient to cure the unfair prejudice.

      The risk of unfair prejudice to Huston was exacerbated by further

testimony as to the right to appeal the DHS determination, followed by

the district court’s evidentiary ruling preventing testimony as to whether

Huston appealed. The jury could improperly infer Huston’s guilt from

the absence of a successful appeal overturning the DHS finding that the

child abuse complaint against her was founded.

      For all these reasons, we hold the district court abused its

discretion by allowing the jury to hear testimony the child abuse

complaint against Huston was founded. Nor are we persuaded the error

was harmless. Prejudice is presumed, and the State bears the burden of

showing lack of prejudice.    State v. Howard, ___N.W.2d ___, ___ (Iowa

2012). The evidence against Huston was strong, but not overwhelming.

Huston shared responsibility for feeding T.H. with several other

caregivers.   Huston’s own mobility was limited.     The child–victim had

problems vomiting in the hospital and with her new foster parents. The

seriousness of the child’s injury from malnutrition and Huston’s intent

and role in the victim’s endangerment were disputed issues. We cannot

conclude the record affirmatively establishes that Huston was not
                                   16

prejudiced by the erroneous admission of evidence that the child abuse

complaint against her was founded. She is entitled to a new trial.

      IV. Conclusion.

      We hold the district court abused its discretion by allowing the

DHS caseworker to testify the child abuse report against Huston was

founded.   That evidentiary error was not harmless, and accordingly,

Huston is entitled to a new trial. We therefore vacate Division II of the

court of appeals decision and reverse the judgment and sentence of the

district court. We remand the case for a new trial.

      COURT OF APPEALS DECISION AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AND SENTENCE

REVERSED, AND CASE REMANDED FOR NEW TRIAL.
