                   IN THE SUPREME COURT OF IOWA
                              No. 61 / 07–0546

                           Filed August 15, 2008


ANISA MIKAH SMITH,

      Appellant,

vs.

IOWA DEPARTMENT OF HUMAN SERVICES
and IOWA DEPARTMENT OF INSPECTIONS AND APPEALS,

      Appellees.



      Appeal from the Iowa District Court for Hardin County, Carl D. Baker,

Judge.



      Appellant seeks reversal of district court decision affirming agency

finding she committed dependent adult abuse. AFFIRMED.



      Lawrence B. Cutler of Craig & Smith, LLP, Eldora, for appellant.



      Thomas J. Miller, Attorney General, and Mark Hunacek, Assistant

Attorney General, for appellees.
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CADY, Justice.

       In this appeal from a district court decision that affirmed a finding by

the Iowa Department of Inspections and Appeals (DIA) that a caretaker

committed dependent adult abuse, we must decide under our standard of

review whether DIA erred in concluding the conduct of the caretaker

constituted sexual exploitation of a dependent adult.                  We agree with the

conclusion of the district court and affirm the district court order.

       I. Background Facts and Proceedings.

       Anisa Smith was employed as a certified nursing assistant at a

licensed healthcare facility in Iowa. One of the residents at the facility was

an elderly man identified in these proceedings as E.M.                    E.M. was ninety

years old. He suffered from a number of health issues, including depression.

He was a dependent adult, and Smith was one of his caretakers.1

       Over time, E.M. became emotionally attached to Smith, and his

amorous feelings led him to physically express his affections. On more than

one occasion, E.M. placed his hand on Smith’s legs and inner thigh.                        On

another occasion, E.M. attempted to touch her breast. On March 18, 2005,

Smith alerted her supervisor, the director of nursing, to the conduct. Smith

was told to avoid caring for E.M.
       On March 20, 2005, Smith was on duty at the facility. Her shift was

nearly concluded, and she had completed her required tasks.                       Instead of

assisting other caretakers until the conclusion of her shift pursuant to the


       1A  dependent adult is defined as “a person eighteen years of age or older who is
unable to protect the person’s own interests or unable to adequately perform or obtain
services necessary to meet essential human needs, as a result of a physical or mental
condition which requires assistance from another, or as defined by departmental rule.”
Iowa Code § 235B.2(4) (2003). A caretaker is defined as “a related or nonrelated person who
has the responsibility for the protection, care, or custody of a dependent adult as a result of
assuming the responsibility voluntarily, by contract, through employment, or by order of the
court.” Id. § 235B.2(1). It was agreed by the parties in this case that E.M. was a dependent
adult and Smith was a caretaker.
                                         3

policy of the facility, Smith visited E.M. in his room. Another staff member

located outside the room heard E.M. ask Smith, “[W]hen are we going to

have a night like last night?”2 Smith giggled in response. At about the same
time, two other staff members arrived, and all three entered the room

together.

      The staff members observed Smith sitting in a reclining chair with her

feet on E.M.’s walker. She was fully clothed. E.M. was seated next to Smith

in his wheelchair, facing her.     His arm was extended over the side of the

chair, and his hand was touching her inner thigh.              As the three staff

members entered, Smith removed E.M.’s hand from her lap and said “no.”

Smith promptly left the room. She was eventually fired over the incident.

E.M. became distraught and depressed.           He believed Smith’s termination

was his fault and later felt he had been unfaithful to his late wife.

      The health care facility notified the DIA of the incident.           The DIA

conducted an investigation and determined Smith committed dependent

adult abuse by sexually exploiting E.M.        Smith appealed and requested a

hearing. An administrative hearing was held where Smith and five of the

facility’s employees testified and a number of exhibits were admitted. Smith

testified E.M.’s hand was only on her inner thigh for an instant and that she

was verbally telling him to remove it when the other staff members entered

the room. She claimed she did not consent to the actions by E.M.

      The administrative law judge who presided over the hearing upheld the

previous finding of abuse made by the DIA. The judge found Smith allowed

E.M. to place his hand between her clothed inner thighs for the purpose of

arousing or satisfying the sexual desires of either Smith or E.M. and


      2The  previous night, staff members heard allegations of inappropriate activity
between E.M. and Smith. Thus, staff members were on the lookout for inappropriate
conduct between the two.
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concluded this conduct amounted to dependent adult abuse by sexual

exploitation under section 235B.2(5)(a)(3).     Smith requested review by the

director of the department.       The director affirmed the decision of the

administrative law judge. Smith petitioned for judicial review. On judicial

review, the district court held the findings of the agency were supported by

substantial evidence, and the statute was not unconstitutional.            Smith

appealed and essentially raises three claims of error. First, Smith argues the

agency erred in its interpretation of the definition of sexual exploitation

found in Iowa Code section 235B.2(5)(a)(3).        Second, Smith asserts the

evidence does not adequately support the agency’s conclusion that she

consented to sexual conduct.       Finally, Smith argues Iowa Code section

235B.2(5)(a)(3) is facially unconstitutional.

      II. Standard of Review.

      Dependent adult abuse proceedings are reviewed pursuant to chapter

17A. Iowa Code § 235B.10(3). When reviewing district court decisions on

judicial review of agency action under chapter 17A, “we determine whether

our conclusions are the same as those reached by the district court.”

Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 508 (Iowa 2003).

“The agency decision itself is reviewed under the standards set forth in

section 17A.19(10).” Id. To the extent Smith raises constitutional questions,

our review is de novo. Grovijohn v. Virjon, Inc., 643 N.W.2d 200, 202 (Iowa

2002).

      III. Dependent Adult Abuse by Sexual Exploitation.

      Iowa Code section 235B.2(5)(a)(3) prohibits sexual exploitation of a

dependent adult. It defines sexual exploitation, in relevant part, as

      any consensual or nonconsensual sexual conduct with a
      dependent adult for the purpose of arousing or satisfying the
      sexual desires of the caretaker or dependent adult, which
      includes but is not limited to kissing; touching of the clothed or
                                       5
         unclothed inner thigh, breast, groin, buttock, anus, pubes, or
         genitals . . . .

Iowa Code § 235B.2(5)(a)(3).      Importantly, sexual exploitation requires a

caretaker to engage in sexual conduct, either consensual or nonconsensual,

with a dependent adult for the purpose of arousing or satisfying the sexual

desires of the caretaker or the dependent adult.     The conduct specifically

includes touching certain areas of the body, including the inner thigh and

groin.

         While Smith challenges the sufficiency of the evidence to support the

finding of all elements of sexual exploitation, she primarily seizes on the

“consensual or nonconsensual” sexual conduct component of the definition

of sexual exploitation. She asserts that sexual conduct between two persons

is consensual only when both persons consent, but is nonconsensual when

just one person does not consent. Thus, she argues nonconsensual sexual

conduct must be interpreted under the statute to constitute sexual

exploitation only when the dependent adult does not consent and not when

the caretaker is the nonconsensual person. In other words, Smith claims

the statutory definition of sexual exploitation cannot be interpreted to

include a caretaker who is the victim of a sexual assault by a dependent

adult. Relying on that interpretation, Smith argues the evidence does not

support a finding that she consented to the touching by E.M., and there was

no evidence she engaged in sexual conduct by affirmatively touching E.M.

         We are bound by the findings of an administrative agency if supported

by substantial evidence in the record as a whole.         Grant v. Iowa Dep’t of

Human Servs., 722 N.W.2d 169, 173 (Iowa 2006). Evidence is substantial

when a neutral, detached, and reasonable person would find it sufficient to

establish the fact at issue. Iowa Code § 17A.19(10)(f).
                                      6

      The central finding of dependent adult abuse in this case is that Smith

allowed E.M. to place his hand on her inner thigh. The facts that support

this finding date back to the days preceding the March 20 incident when

Smith reported to her supervisor that E.M. had been touching her in

inappropriate ways. Yet, despite a warning by her supervisor to stay away

from E.M., Smith visited him in the privacy of his room on March 20.

During this visit, she positioned herself in a chair in a way that enabled E.M.

to touch her inner thigh from his wheelchair.          A sexually suggestive

comment exchanged between Smith and E.M. was overheard at the time.

      This evidence is sufficient to support a finding that Smith willingly

engaged in consensual sexual conduct with E.M. for the purpose of arousing

or satisfying the sexual desires of either of them.    In particular, it is not

important that the evidence might also support a finding that Smith did not

consent to the touching by E.M. The evidence must only support the finding

made. See Grant, 722 N.W.2d at 173. While Smith testified otherwise, a

reasonable fact finder could have concluded that she consented to the

touching by E.M. and removed his hand from her inner thigh and voiced

opposition to the presence of his hand on her body only when the conduct

was detected by others. Consequently, it is unnecessary to further consider

Smith’s claim that sexual exploitation under the statute does not include

sexual conduct with a nonconsensual caretaker.

      Additionally, there is nothing in the statute that requires a caretaker

to affirmatively touch a dependent adult in a sexual manner to commit

sexual exploitation. The statutory definition of sexual exploitation hinges on

“sexual conduct,” and there is no language in the statute that confines the

phrase to require the caretaker to affirmatively touch the dependent adult in

a sexual manner. Instead, “sexual conduct” has a much broader meaning

under the statute and requires the actions of the caretaker to be examined in
                                              7

light of all of the circumstances to determine if the conduct at issue was

sexual and done for the purpose of arousing or satisfying the sexual desires

of the caretaker or the dependent adult. In this case, Smith affirmatively

permitted a wheelchair-bound dependent adult to touch an area of her body

in a sexual manner by sitting in a chair in such a way that allowed the

touching to take place. These facts amount to sexual conduct without the

need to further show touching by the caretaker.

       IV. Constitutionality of Iowa Code Section 235B.2(5)(a)(3).

       Smith also argues the district court erred in failing to find the

definition of sexual exploitation under Iowa Code section 235B.2(5)(a)(3)

facially unconstitutional based on her claim that the language of the statute

impermissibly includes caretakers who are nonconsensual victims of sexual

conduct perpetrated by a dependent adult.                Importantly, Smith does not

challenge section 235B.2 as applied to her.3

       We first recognize that we can remedy a claim of a constitutional

infirmity in a statute by interpreting the statute to avoid the constitutional

claim. See State v. Abrahamson, 696 N.W.2d 589, 593 (Iowa 2005) (“ ‘If the

law is reasonably open to two constructions, one that renders it

unconstitutional and one that does not, the court must adopt the
interpretation that upholds the law’s constitutionality.’ ” (quoting Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Visser, 629 N.W.2d 376, 380

(Iowa 2001))). Yet, we also recognize that “a person lacks standing to make a

facial challenge to a statute, if a statute can be constitutionally applied to

that person’s conduct.” State v. Bower, 725 N.W.2d 435, 443 (Iowa 2006);


       3In a brief submitted to the district court, Smith stated: “[Smith] is not making an
argument that Iowa Code section 235B.2(5)(a)(3) was unconstitutional as applied, but rather
is unconstitutional on its face.” Thus, Smith failed to present the issue that the statute was
unconstitutional as applied to the district court, which precludes any consideration of this
issue on appeal.
                                      8

accord State v. Musser, 721 N.W.2d 734, 746 n.7 (Iowa 2006); State v. Price,

237 N.W.2d 813, 816 (Iowa 1976). The rationale behind this principle was

explained by the United States Supreme Court:

      Embedded in the traditional rules governing constitutional
      adjudication is the principle that a person to whom a statute
      may constitutionally be applied will not be heard to challenge
      that statute on the ground that it may conceivably be applied
      unconstitutionally to others, in other situations not before the
      Court. A closely related principle is that constitutional rights
      are personal and may not be asserted vicariously.         These
      principles rest on more than the fussiness of judges. They
      reflect the conviction that under our constitutional system
      courts are not roving commissions assigned to pass judgment on
      the validity of the Nation’s laws.

Broadrick v. Oklahoma, 413 U.S. 601, 610–11, 93 S. Ct. 2908, 2915, 37

L. Ed. 2d 830, 839 (1973); accord Price, 237 N.W.2d at 816.

      Of course, our principles of standing are not constitutional strictures,

but are self-imposed rules of restraint. Hawkeye Bancorp. v. Iowa Coll. Aid

Comm’n, 360 N.W.2d 798, 802 (Iowa 1985). Yet, the principle at issue is

firmly entrenched within our rules of judicial restraint. See, e.g., State v.

Willis, 218 N.W.2d 921, 923 (Iowa 1974) (“[O]ne to whom application of a

statute is constitutional, with exceptions not involved here, lacks standing to

attack the statute on the ground it might be susceptible of unconstitutional

application to other persons or other situations.”); Upper Mo. River Corp. v.

Bd. of Review, 210 N.W.2d 828, 831 (Iowa 1973) (“Generally, one attacking

the constitutionality of a statute is not the champion of any rights except his

own.”); Lee Enters., Inc. v. Iowa State Tax Comm’n, 162 N.W.2d 730, 740

(Iowa 1968) (“As a general rule the constitutionality of a statute is to be

considered in the light of the standing of the party who seeks to raise the

question and of its particular application.”). We do not waver from this rule

today, and Smith makes no claim that any recognized exception to the rule

applies to this case. See Price, 237 N.W.2d at 816 (recognizing exceptions
                                        9

when First Amendment rights are implicated or when persons who are not

parties to the suit stand to lose by its outcome, but have no effective avenue

for preserving their rights). We conclude Smith does not have standing to

challenge the facial constitutionality of the statute.

      V. Conclusion.

      The agency findings were supported by substantial evidence, and

section 235B.2 was properly applied to the findings. Smith does not have

standing to challenge the constitutionality of section 235B.2. We affirm the

decision of the district court.

      AFFIRMED.

      All justices concur except Baker, J., who takes no part.
