                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0705
                            Filed February 11, 2015

IN THE INTEREST OF D.H.,
      Minor Child,

D.H., Minor Child,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Buena Vista County, Mary L.

Timko, District Associate Judge.



       A juvenile adjudicated delinquent challenges the order requiring him to

register as a sex offender. AFFIRMED.



       Lisa Mazurek of Mazurek Law Firm, P.C., Cherokee, for appellant.

       Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, Dave Patton, County Attorney, and Matthew Speers, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Doyle and Tabor, JJ.
                                           2



TABOR, J.

       After spending more than nine months in a psychiatric medical institution

for children (PMIC), D.H. asked the juvenile court to waive the requirement that

he register as a sex offender under Iowa Code section 692A.103(3) (2013). The

court declined D.H.’s waiver request, finding the teenager posed a risk of

reoffending outside the structure and supervision of his home. Mindful “the legal

standard for waiver is guided by public protection,” we conclude the juvenile court

acted within its discretion in deciding D.H. failed to prove he was unlikely to

reoffend in the community. Accordingly, we affirm the registration requirement.

I.     Background Facts and Prior Proceedings

       This delinquency case started for D.H. when he was fourteen years old.

In July 2012, the Buena Vista County Attorney filed a petition charging D.H. with

multiple counts of false imprisonment, assault, and enticing a minor with intent to

commit sexual abuse. The allegations involved three victims, who ranged in age

from seven to ten.     The State alleged D.H. would hold the victims down in his

bedroom, lay on top of them, and “hump” them. D.H. later admitted performing

the same acts on his twelve-year-old adopted sister.1 On August 24, 2012, the

juvenile court found a factual basis for D.H.’s plea to enticing a minor with intent

to commit sexual abuse and adjudicated him delinquent. The State dismissed

the remaining charges.




1
  According to the juvenile court, D.H. admitted in therapy “to repeatedly asking his
victims to act out, bribing them, and pressuring them. While engaging in these
behaviors, the three victims started resisting. [D.H.] then chose his adoptive sister to
offend against because he had access to her and she was unlikely to resist.”
                                         3



       Psychological evaluations indicated D.H. was not only the perpetrator of

sexually related offenses, but had been a victim himself. Born in 1998, D.H.

spent his early years in “an extremely abusive and neglectful biological

environment before he was removed from the home.”                D.H. reported his

biological father sexually abused him and D.H. witnessed “a great deal of

domestic violence.” He lived in four foster homes before being adopted in 2008.

In 2011, he was diagnosed with reactive attachment disorder, attention deficit

hyperactivity disorder, conduct disorder, and post traumatic stress disorder.

       Juvenile Court Services placed D.H. at the Piney Ridge PMIC in

Waynesville, Missouri, on November 15, 2012.2            His admitting diagnoses

included mood disorder, reactive attachment disorder, oppositional defiant

disorder, intermittent explosive disorder, attention deficit hyperactivity disorder,

conduct disorder, and borderline intellectual functioning. After nine months of

treatment, Piney Ridge discharged D.H. on September 4, 2013. The discharge

summary noted D.H. successfully completed the Sexually Abuse Youth (SAY)

program. He was discharged to his parents’ home in Missouri.3

       The juvenile court held a review hearing on February 26, 2014, at which

the judge considered whether D.H. should be placed on the sex offender registry.

The proceedings were not reported, but the parties submitted evidence. D.H.



2
  Before the juvenile delinquency action started, D.H. was voluntarily placed in Four
Oaks residential treatment center for ten months. He was also placed in the Rabinar
residential treatment center for fifteen months. These placements did not succeed in
addressing D.H.’s sexually abusive behavior.
3
   D.H.’s adoptive parents moved to Missouri during the pendency of the juvenile
delinquency case. Neither party has suggested the Iowa juvenile court did not retain
jurisdiction to order D.H. to register as a sex offender.
                                        4



requested that he be exempted from the sex offender registry. His juvenile court

officer recommended the court waive the registration requirement. The district

court kept the record open until March 31, 2014, so an updated risk assessment

could be completed.

       On April 17, 2014, the district court issued its order requiring D.H. to

register as a sex offender under Iowa Code chapter 692A. The court also closed

the probationary period and discharged D.H. from the jurisdiction of the juvenile

court. D.H. appeals the district court’s decision to place him on the sex offender

registry.

II.    Legal Principles Governing the Sex Offender Registry and Hybrid

Standard of Review for Registration Orders in Delinquency Cases

       In Iowa, a person who is convicted of or adjudicated delinquent for

committing certain sexual offenses is required to register as a sex offender. Iowa

Code chapter 692A. The “paramount purpose” of the registry is to protect the

public from sex offenders, including juvenile offenders, after they have been

released back into society following the disposition of their cases. In re A.J.M.,

847 N.W.2d 601, 604 (Iowa 2014).

       The law presumes all sex offenders must register, but the court may waive

the requirement for eligible juveniles who were adjudicated delinquent for a

sexual offense that requires registration. Id. Eligible juveniles are those who

were less than fourteen years of age at the time of the offense or were not

adjudicated for a sex offense “committed by force or the threat of serious

violence, by rendering the victim unconscious, or by involuntarily drugging the
                                        5



victim.” Iowa Code § 692A.103(4). The juvenile bears the burden to rebut the

registration presumption. In re S.M.M., 558 N.W.2d 405, 407 (Iowa 1997).

       The code allows a juvenile court to waive the registration requirements for

an eligible juvenile when it “finds that the person should not be required to

register.” Iowa Code § 692A.103(3). But the code does not provide any specific

guidelines or factors for the court to consider.     See id.   Our supreme court

recently decided an on-the-record finding by the juvenile court was key in a

registration waiver situation. See A.J.M., 847 N.W.2d at 605, 607. The A.J.M.

court held juvenile courts must exercise their discretion under section

692A.103(3) to determine “whether the juvenile is likely to reoffend.” Id. at 607.

A likelihood means reoffending is “probable or reasonably to be expected.” Id. at

606.

       We review juvenile delinquency proceedings de novo. In re D.S., 856

N.W.2d 348, 351 (Iowa 2014). But when we are reviewing the juvenile court’s

exercise of statutory discretion, we review the evidence de novo to determine

whether the discretion was abused. A.J.M., 847 N.W.2d at 604; In re B.A., 737

N.W.2d 665, 667 (Iowa Ct. App. 2007). We will conclude the juvenile court

abused its discretion “when its ruling is based on grounds that are unreasonable

or untenable.”   A.J.M., 847 N.W.2d at 607.        The terms “unreasonable” and

“untenable” refer to rulings not supported by substantial evidence or based on

mistaken applications of the law. Id.
                                            6



III.   Analysis of D.H.’s Waiver Claim

       D.H. contends the juvenile court abused its discretion in ordering him to

register as a sex offender. D.H. accurately observes the juvenile court “did not

squarely state a finding as to the likelihood” that he would reoffend.4 But D.H.

acknowledges the court implicitly reached that determination.

       The juvenile court stated: “The reports are clear that with [his] parents

providing structure, support, and supervision, along with their loving commitment

to him, [D.H.] will likely not re-offend in the home.” The juvenile court further

stated: “Unfortunately, the record does not support that this same protection,

supervision, and structure can be provided to [D.H.] outside of the home in a

community setting. This is precisely the reason that the sex offender registry

was created—to protect the community at large.” The court commended D.H.’s

adoptive family members for their involvement in the case and commitment to

him.

       But for this, it is likely that [D.H.] would still be involved in inpatient
       care. He is now able to return home due to the implementation of
       the structure and supervision provided by the [family]. At this time,
       the same cannot be said for the ability to provide that increased
       level of structure and supervision in the community at large thereby
       reducing [D.H.’s] risk of re-offending in the community.

       The juvenile court’s finding that D.H. was not likely to reoffend at home,

but remained at risk of reoffending in community was based on substantial

evidence in the record.       D.H.’s juvenile court officer reported “[i]n the home



4
  When issuing its ruling on April 17, 2014, the juvenile court did not have the benefit of
the supreme court’s June 6, 2014 decision in A.J.M. which held the registration
requirement could not be waived without a specific finding by the court that the juvenile
was not likely to reoffend. See A.J.M., 847 N.W.2d at 608.
                                           7



setting, [D.H.] has been monitored closely as not to put his siblings at further risk.

An alarm was placed on [D.H.]’s door to monitor his whereabouts in the home.”

By contrast, concerns about D.H.’s ability to navigate social situations in the

larger community were expressed by D.H.’s therapist, Shandra Carter, in her

March, 29, 2014, risk reassessment:

               The only concerning dynamic factor present for [D.H.] is his
       social isolation.      Finding opportunities for [D.H.] to develop
       emotionally intimate peer relationships outside of the school day
       will be important. This will require some creativity, as the [family]
       are geographically isolated, have a busy schedule and have to
       factor in the level of supervision needed for [D.H.] given the activity.

       The juvenile court was within its discretion in seizing on the therapist’s

uncertainty concerning D.H.’s interactions in the world beyond Piney Ridge and

his family home.5 Waiver from the registry requirement is only available when

the juvenile court “finds” in its discretion that the eligible juvenile is not likely to

reoffend.   A.J.M., 847 N.W.2d at 606 (opining “the legal standard for waiver

under the statute is guided by public protection”). In this case, the court decided

D.H. did not carry his burden to show no likelihood of reoffending: “Although

[D.H.] is able to show that he can engage in following and obeying rules when

provided structure and a highly-supervised environment, the court needs more to

ensure that the community is protected.”

       D.H. complains the juvenile court relied too heavily on facts about his life

which predated his delinquency adjudication and on the penultimate risk



5
  The record revealed D.H.’s lack of social maturity. His juvenile court officer reported
that although D.H. is now sixteen years old, he acts as if he were much younger. For
example, D.H. would rather build a fort or play with Lego blocks with his younger brother
than “hang out with kids his own age.”
                                          8



assessment which discussed his treatment of and attitude toward his victims.

The State responds by asserting the juvenile court appropriately recounted all of

the evidence relevant to the registration requirement.      The State voices the

stronger position. The same judge presided at all stages of D.H.’s delinquency

proceedings. She had an opportunity to observe D.H. at various proceedings

and to follow the progression of his placements. Contrary to D.H.’s argument on

appeal, the juvenile court did not misunderstand the evolution of the case.

       The nature of the offender’s acts, the offender’s status, his attitude toward

his victims, as well as clinical judgment and assessment tools, are all factors

which courts may consider in deciding if a juvenile is appropriately listed on the

sex offender registry. See B.A., 737 N.W.2d at 668 (reviewing whether court

abused its discretion in denying juvenile’s request to be removed from the

registry). In this case, the juvenile court order offered a fair portrayal of D.H.’s

offending acts, his initial minimizing of the harm and blaming of the victims, and

his eventual remorse and empathy toward the victims. Even granting D.H. the

progress he has made, the seriousness of his delinquent behavior remains a

relevant aspect of the juvenile court’s finding.

       D.H. also emphasizes that therapist Carter amended his risk of

reoffending from moderate to low in her final report to the court. The juvenile

court acknowledged the therapist’s updated clinical assessment, but also

highlighted countervailing concerns in her report. As trier of fact, the court was

within its discretion to accept or reject the expert’s opinion in whole or in part.

See Rouse v. State, 369 N.W.2d 811, 815 (Iowa 1985).
                                          9



       The waiver decision ultimately rests with judges, not clinicians.         The

juvenile court found D.H. failed to carry his burden to show he was unlikely to

reoffend when outside the structure of his home life and supervision of his

parents. That finding was neither unreasonable nor untenable given all of the

circumstances. Accordingly, we affirm the order requiring D.H. to register as a

sex offender. 6

       AFFIRMED.

       Danilson, C.J., dissents; Doyle, J., concurs.




6
  Our resolution does not preclude future motions by the juvenile to modify or suspend
the registration based on “good cause.” See Iowa Code § 692A.103(5); see also B.A.,
737 N.W.2d at 668 (examining juvenile’s request to be removed from the sex offender
registry under earlier version of the statute).
                                         10



DANILSON, C.J. (dissenting)

       I respectfully dissent. On this record, it is hard to imagine a case where a

waiver of sex offender registry is more appropriate. Moreover, the juvenile court

never made the requisite finding that D.H. was likely to reoffend. In re A.J.M.,

847 N.W.2d 601, 608 (Iowa 2014) (remanding because the absence of a finding

that the child was likely to reoffend prevents the ability on review to determine if

the juvenile court properly exercised its discretion).

       Although the court concluded D.H. was not likely to reoffend in the home,

the court only surmised the same protection, supervision, and structure was not

available in the community at large. Such a conclusion is not synonymous with a

conclusion that D.H. was likely to reoffend outside of the home.

       Even if we could say the record is sufficient, according to the most recent

report prepared by Licensed Clinical Social Worker Sandra L. Carter and dated

March 29, 2014, the original assessment of a moderate risk to reoffend “has

been mitigated to low risk.” Significantly, she also notes D.H. has already been

“reunified with his family, returned to high school and reintegrated back into his

community.” This report was prepared almost seven months after D.H.’s return

to the family home.      So it appears any concern about D.H. being in the

community at large is diminished. In my opinion, the juvenile court placed too

much reliance on an earlier report prepared before D.H. had completed the sex

offender treatment program.

       Carter and the juvenile court expressed concerns about D.H.’s social

isolation and maturity, two factors not previously identified as factors to consider
                                         11



in making the decision to waive the registry requirement. See In re B.A., 737

N.W.2d 665, 668 (Iowa Ct. App. 2007) (reciting the following factors: “(1) the

nature of the offenses; (2) the status of the victims; (3) [the offender’s] status,

attitude, and ability to obey rules as well as his safety plan and his attitude

toward following it; (4) clinical judgment; and (5) assessment tools.” Although

immaturity and social isolation may be characteristics of someone likely to

reoffend, these characteristics are not uncommon in society as a whole,

especially in this digital era where teenagers eschew personal contact for contact

with friends via their electronics. One also has to wonder if any isolation may be

related to D.H.’s remorse and embarrassment. The court lacked evidence to

explain the significance of these two characteristics as it may relate to the

likelihood to reoffend.

       It is also doubtful any expert will ever say in cases of this nature that there

is no risk to reoffend. And our supreme court has noted that it is possible for any

juvenile sex offender to reoffend even if registered as a sex offender. A.J.M.,

847 N.W.2d at 606-07. There are also few families who will go the extra mile to

provide such a child with the structure, support, and supervision being provided

by D.H.’s family. Moreover, D.H. has successfully completed a sex offender

treatment program and has shown remorse for his actions.

       Assuming a juvenile otherwise meets the requirements of Iowa Code

section 692.103(3), and absent other aggravating circumstances, a juvenile who

has been evaluated to be a low risk to reoffend, has strong family support, has

successfully completed treatment, and shows remorse, would appear to be an
                                         12



ideal candidate for waiver of the sex offender registry requirement as authorized

by the legislature.

       Here, I would reverse and remand on the basis that the juvenile court

abused its discretion by relying too heavily on a report prepared before the

treatment program was completed and on factors not shown in this record to be

reflective of risks to reoffend. I would not require the juvenile court to enter an

order for waiver but rather require the juvenile court to consider the issue anew

upon up-to-date evidence and reports supported by testimony explaining factors

that may bear on the risk to reoffend.
