                     IN THE COURT OF APPEALS OF IOWA

                                    No. 19-0574
                                Filed July 22, 2020


M.W.,
on behalf of B.W.,
      Petitioner-Appellant,

vs.

J.W.,
     Respondent-Appellee.
________________________________________________________________


        Appeal from the Iowa District Court for Linn County, Jason D. Besler, Judge.



        M.W. appeals the denial of a protective order under Iowa Code chapter

236A (2019). AFFIRMED.



        Alexander S. Momany and Mark D. Fisher of Nidey Fisher Pilkington &

Meier, PLC, Cedar Rapids, for appellant.

        Jamie A. Splinter of Splinter Law Office, Dubuque, for appellee.



        Heard by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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AHLERS, Judge.

       M.W. appeals the denial of a protective order under Iowa Code chapter

236A (2019). M.W. is the mother and J.W. is the father of a minor child, B.W. The

mother petitioned for an order prohibiting the father from contacting the child due

to alleged sexual abuse. We agree with the district court that the mother failed to

prove the father committed sexual abuse against the child by a preponderance of

the evidence. Therefore, we affirm.

       I.     Background Facts and Proceedings

       On February 21, 2019, the mother filed the petition for relief from sexual

abuse. In the petition, she alleged the father sexually abused the child, who was

then two-and-one-half years old.1 On March 15, the matter proceeded to an

evidentiary hearing.      According to the mother’s testimony, she first became

alarmed when the child was sitting on the toilet and spontaneously told her “[the

father] touches my potty parts.”         The child “frequently” made concerning

statements after that. In another specific instance, the child was using a baby doll

in play potty training and said the doll “has a vagina, but I not touch it like [the

father] do [sic].” When the child said this, she “extend[ed] one finger and she

repeatedly poke[d] back and forth with her arm moving back and forth towards and

away from the baby between the legs.” Similarly, the mother’s friend testified the

child told her “it hurt when [the father] changed her diaper,” and the child motioned

over the top of a doll.


1The parties divorced prior to filing this petition. While the details of the dissolution
are not in the record, the father testified they have “50/50 parenting” of the child.
After the mother filed this petition, the father filed a modification petition in a
separate proceeding seeking sole legal custody and physical care of the child.
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       The mother also presented testimony from a therapist who engaged in play

therapy with the child at the mother’s request.         The therapist testified to an

interaction during therapy when the child noticed “a cobweb or something” on a

toy and said, “I don’t like the fuzzies.” The therapist asked for clarification, and the

child said the father has “fuzzies.” When asked where the “fuzzies” are, the child

pointed to the crotch of a male doll. When asked if she ever had to touch the

“fuzzies,” the child answered “yes.” The therapist described the interaction as

“weird” and the child only showed a fear reaction at the beginning of the interaction.

The therapist also testified the child made statements about the father touching

her vagina or placing a toy by her vagina, but the therapist determined these

statements were inconsistent and not reportable.

       The father testified on his behalf. He specifically denied sexually abusing

the child or showing his penis to the child. He acknowledged wiping or applying

cream on or near her genital area as part of bathroom hygiene. The father

introduced medical records from a February 6 well-child visit, which showed no

concerns of sexual abuse, and a February 22 sexual-abuse evaluation, which

found “no residual physical diagnostic sign of sexual abuse.” The father also

introduced a video recording of an interview of the child at the Child Protection

Center (CPC). In the video, the child says the father “hits” her. The child then

makes a spanking motion and refers to her buttocks as her “vagina.” The child

later says “penis” when discussing body parts and says she does not have a penis.

However, she does not respond when asked who has a penis, and she answers

“no” when asked if she has ever seen a penis or if anyone has ever shown her a

penis. The child also says the father wipes her after using the potty, and she
                                         4


makes a wiping motion across her buttocks while again referring to the area as her

“vagina.”

       On March 22, the court issued its ruling. The court found the mother failed

to prove by a preponderance of the evidence that the father sexually abused the

child. The mother appeals. The father requests appellate attorney fees.

       II.    Standard of Review

       Chapter 236A is a fairly recent addition to the Iowa Code. See 2017 Iowa

Acts ch. 121, §§ 4–23. A chapter 236A claim results in a civil proceeding that may

be heard at law or in equity with a corresponding standard of review. See A.N. v.

J.G., No. 19-0634, 2020 WL 2061881, at *2 (Iowa Ct. App. Apr. 29, 2020) (“Both

parties concede the district court ruled on objections as they were made and the

action was tried as an action at law; therefore they agree the standard of review

should be whether there was substantial evidence supporting the district court’s

ruling.”); T.D. v. J.P., No. 19-0607, 2020 WL 1548516, at *2 (Iowa Ct. App. Apr. 1,

2020) (“Because the district court tried this civil case in equity, our review is de

novo.”).

       Here, there is disagreement as to the standard of review. The mother

argues for de novo review. The father argues for review at law such that the district

court’s findings are binding if supported by substantial evidence. To resolve the

dispute, we look to the record. Our review of the record shows the district court

tried the case at law. “[W]e will consider and review a case on appeal in the

manner it was treated below.” Citizens Sav. Bank v. Sac City State Bank, 315

N.W.2d 20, 24 (Iowa 1982). “Where there is uncertainty, a litmus test we have

applied is whether evidentiary objections were ruled on by trial court.” Id. Here,
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the district court ruled on several substantial evidentiary issues, arising from both

pre-hearing motions and objections during the hearing.          As a result, certain

evidence was not admitted into the record. Based on the manner in which the

case was tried, we find the proper standard of review to be for errors at law and

the district court’s findings are binding if supported by substantial evidence. A.N.,

2020 WL 2061881 at *2.2

       III.   Analysis

       A person may seek a chapter 236A protective order by filing a petition for

relief from sexual abuse. Iowa Code § 236A.3(1) (allowing a parent or guardian to

file a petition on behalf of a minor). To obtain a protective order, the person filing

the petition must prove sexual abuse by a preponderance of the evidence. 3 Id.

§ 236A.3(2). A “preponderance” is “superiority in weight, influence, or force. The

evidence may preponderate, and yet leave the mind in doubt as to the very truth.

In such cases the evidence does not fairly set the question at rest, but merely

preponderates in favor of that side whereon the doubts have less weight.” Walthart

v. Bd. of Dirs., 694 N.W.2d 740, 744 (Iowa 2005) (quoting Ball v. Marquis, 92 N.W.

691, 692 (Iowa 1902)).


2 Even if we were to find the case was tried in equity such that de novo review was
the appropriate standard, it would not change the outcome. Under de novo review,
we would give weight to the district court’s findings of fact, especially with regard
to the credibility of witnesses, but we would not be bound by them. Iowa R. App.
P. 6.904(3)(g). Applying that standard of review, our review of the record would
result in the same determination made by the district court that the mother did not
meet her burden of establishing sexual abuse occurred.
3 “Sexual abuse” includes a sex act performed with a child. Iowa Code § 709.1(3).

A “sex act” includes “[c]ontact between the finger or hand of one person and the
genitalia or anus of another person.” Id. § 702.17. “Not all contact is a ‘sex act.’
The contact must be between the specified body parts (or substitutes) and must
be sexual in nature.” State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994).
                                          6


       The district court separated the evidence of sexual abuse against this two-

year-old child into two distinct allegations: (1) that the child touched the father on

or around his pubic area, or “fuzzies”; and (2) that the father touched the child

inside or around her vagina. The mother agrees with this framing and asserts the

evidence clearly establishes the father sexually abused the child.

       The claim that the child touched the father on or around his pubic area is

based on the therapist’s testimony that the child said she does not like “fuzzies”

and then pointed to the crotch of a doll as the location of “fuzzies.”           This

communication is ambiguous at best, and even the therapist described it as

“weird.” Significantly, no one else observed the child suggesting she touched the

father’s pubic area. Furthermore, during the CPC interview the child answered

“no” when asked if she ever saw a penis, and she seemed generally unsure what

a penis is. The district court’s finding that the mother failed to prove the child

touched the father on or around his pubic area is supported by substantial

evidence.

       The claim that the father inappropriately touched the child in or around the

vagina is based on testimony from the mother’s three witnesses. The therapist

testified the child said the father touched her vagina. The mother’s friend testified

the child complained the father hurt her while changing her diaper. The mother

testified the child said the father touched her vagina and mimicked digital

penetration.

       The father acknowledged he touched the child around the vagina, but he

asserts he only did so to wipe and apply cream as part of ordinary bathroom

hygiene. The district court found his explanation “credible,” remarking he “did
                                          7


seem to act with the appropriate amount of disgust regarding these allegations.”

His explanation accounts for much of the conduct described by the witnesses, and

we note the therapist thought the child’s statements about touching her were

inconsistent and not reportable as suspected abuse.4

       The video of the child’s CPC interview, which is our only opportunity to

directly observe the child, largely refutes the allegations the father inappropriately

touched the child. The child struggled to effectively communicate at times during

the interview, which is not surprising considering her age. She often gave a one-

word response or no response to questions, she referred to her buttocks as her

“vagina” multiple times, and she said things that were refuted by credible

evidence.5 We did not observe the fear reaction during this interview that the

therapist claimed to have observed during her sessions with the child; instead, the

child giggled and called the father “silly” when first asked about him. The only

times the child said the father touches her were in the context of bathroom hygiene

or potential spanking, which the father denies ever doing. Additionally, the medical

record from the February 6 well-child visit—occurring less than two weeks before



4 Iowa Code section 232.69 sets forth a list of classes of persons known as
“mandatory reporters.” The therapist who testified would be classified as a
mandatory reporter pursuant to section 232.69(1). As a mandatory reporter, if the
therapist “reasonably believe[d] the child ha[d] been abused” or believed the child
had “suffered abuse,” she would have been required to submit both an oral and
written report of abuse to the Iowa Department of Human Services. See Iowa
Code §§ 232.69(1), .70. Because the therapist found the child’s statements of the
father touching her inconsistent, she did not feel obligated to report it, suggesting
she did not “reasonably believe” the child had been abused, though she later
reported the “fuzzies” interaction.
5 For example, she said she did not have a bed at the father’s house. The father

testified she has a bed at her house, which she always uses when she sleeps in
her house. He also submitted a photograph of this bed into evidence.
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the mother filed the petition—shows no concern for sexual abuse, and the

February 22 sexual-abuse evaluation found no evidence of sexual abuse.

       The mother maintains the child’s communications, as described by her

witnesses, were spontaneous, detailed, and coherent so as to be reliable. For

purposes of our discussion, we will assume the child said and did the things the

mother’s witnesses described. However, even with that assumption, we believe

the child’s communications were open to interpretation and not a clear description

of sexual contact between the child and father. We find substantial evidence

supporting the district court’s determination that the mother did not prove by a

preponderance of the evidence that the father sexually abused the child.

Accordingly, we affirm the district court’s ruling denying the chapter 236A

protective order. We deny the father’s request for appellate attorney fees, as the

father has cited no persuasive authority permitting us to honor that request. See

Bankers Tr. Co. v. Woltz, 326 N.W.2d 274, 278 (Iowa 1982) (noting the right to

attorney fees is statutory both in the trial court and in the appeal).

       AFFIRMED.

       Mullins, J., concurs; Vaitheswaran, P.J., specially concurs.
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VAITHESWARAN, Presiding Judge (concurring specially).

       I specially concur only to highlight my concern with the play therapist’s

testimony.   Under established precedent, an expert may not vouch for the

credibility of a child witness. State v. Leedom, 938 N.W.2d 177, 192 (Iowa 2020)

(“[W]e are committed to the legal principle that an expert witness cannot give

testimony that directly or indirectly comments on the child’s credibility.” (alteration

in original) (citation omitted)); State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014)

(“Although we are committed to the liberal view on the admission of psychological

evidence, we continue to hold expert testimony is not admissible merely to bolster

credibility.”). The play therapist violated this prohibition when she testified she did

not “see cognitively how a two-and-a-half-year-old would be capable of” being

coached or conditioned. The district court afforded “little weight” to the therapist’s

testimony based on other factors. In my view, her improper credibility opinion

further diminishes the weight of her testimony.
