                      IN THE COURT OF APPEALS OF IOWA

                                     No. 18-0933
                                Filed August 15, 2018


IN THE INTEREST OF M.R.,
Minor Child,

M.R.,
     Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Polk County, William A. Price, District

Associate Judge.



        The minor child appeals from a provision of the dispositional order in this

child-in-need-of-assistance proceeding. AFFIRMED.



        Jane M. White of Jane White Law Office, Des Moines, for appellant child.

        Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

        Kimberly S. Ayotte of Youth Law Center, Des Moines, guardian ad litem for

minor child.

        Sarah E. Dewein of Cunningham & Kelso, PLLC, Urbandale, for

custodian/guardian.



        Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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DANILSON, Chief Judge.

       The minor child appeals from a provision of the dispositional order in this

child-in-need-of-assistance (CINA) proceeding. He challenges the requirement

that he “participate in and complete a second psychosexual evaluation.”

       The fifteen-year-old child, M.R., came to the attention of the department of

human services (DHS) in October 2017 when his cousin/adoptive sister reported

he had sexual contact with her.1 M.R. was removed from the family home and,

after several continuances, an adjudication hearing was held on February 8 and

March 12, 2018.

       On March 14, the juvenile court entered a CINA adjudication order, which

states in part:

               The court makes the following specific findings of fact: [M.R.]
       on or about 2017 sexually abused S.G. (age 7) by touching her
       genital area under her clothing with his hand and placing his penis in
       her mouth. This occurred in the family home. The court finds the
       testimony of [child abuse investigator] Susan McManigal credible on
       this issue [as] well as [the abuse investigation report] entered into
       evidence.

The court also found that P.G.’s husband, M.G., had sexually abused S.G. while

residing in the family home with M.R. and S.G.2 On April 10, the court ordered

M.R. to participate in a psychosexual evaluation before the dispositional hearing.

The order entered also granted M.R.’s application for an expert chosen by M.R.

and M.R.’s counsel, Dr. Kirk Witherspoon.




1
  M.R. lived with his biological great grandmother, P.G.; her husband, M.G.; and two of
M.R.’s cousins. M.R. and his cousins have been adopted by P.G. and M.G.
2
  The two other children were removed from P.G.’s home in December 2017 after S.G.
recanted claims of sexual abuse, saying her biological father had told her what to say, and
a DHS worker became concerned P.G. was coaching the child.
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       On May 11, the dispositional hearing was held, at which a psychosexual

evaluation report was admitted into evidence, which was prepared by Dr.

Witherspoon, a clinical and forensic psychologist. While the State did not object

to admission of the report, counsel did express concern about the report:

       I do have a number of concerns with this evaluation. My main
       concern is the finding that this child does not need to be a CINA
       based on his review of the same evidence that this Court reviewed
       and made a finding that there was a need—that the child needed to
       be a child in need of assistance. I have not seen a psychosexual
       evaluation that looks like this previously. There does not seem to be
       a lot of conversation about the actual testing that took place and how
       it relates to the findings contained in the report. I do think that
       another evaluation would be appropriate. . . .
               I know the child would resist doing another evaluation.
       Whether or not the Court determines that we need to do another
       evaluation based on what’s contained in Dr. Witherspoon’s report, I
       do think, based on [M.R.’s] contact with [P.G.] and his behavior at
       YESS, we can move forward in returning him to [P.G.], which I think
       is the main area of contention between the parties prior to this point.

       The juvenile court expressed concern that Dr. Witherspoon “starts with the

assumption that the court erred in its ruling [finding M.R. sexually abused S.G.]”

In response to the court’s observations, counsel for M.R. made a professional

statement concerning additional conversations she had with Dr. Witherspoon in an

attempt to allay the court’s concerns.

       The guardian ad litem also expressed concern about the evaluation report.

               Certainly, based on my review of Dr. Witherspoon’s
       credentials, I was expecting something with greater detail that talked
       about the objective testing that was done, what those results of that
       testing would be. This evaluation is absolutely not what I was
       expecting.
               I would agree with Ms. White [M.R.’s attorney] with respect
       to—I think the report lays out what the re-offense rate for adolescents
       is. And that is statistics I’ve heard not just through Witherspoon, but
       other trainings on that issue. I know that statistic is accurate. But
       the information that’s contained in this report really seems one-sided,
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       to one extent, and without the benefit of the objective testing and how
       he arrived at some other conclusions within there.
              It is problematic[] to me and not helpful in terms of how we
       move forward in providing the appropriate level of services, if any, to
       [M.R.]

The court observed,

               I too will agree this is a unique report, unlike any other
       psychosexual evaluation I’ve ever seen, in that there are no—there’s
       not references to any actual testing that was done other than,
       apparently, a discussion, which is not out of—I mean, the discussion
       itself is not out of order. That’s a part of any psychosexual
       evaluation, but there’s not even mention of any other testing, much
       less results.

       The juvenile court confirmed M.R. was a CINA, returned M.R. to P.G.’s

custody under DHS supervision, adopted the proposed case plan, and required

M.R. to undergo a second psychosexual evaluation, presumably to be arranged

by DHS.

       M.R. appeals.

       We begin by noting that M.R. has not challenged his adjudication as a CINA

or the disposition itself.   Rather, M.R. asserts the juvenile court abused its

discretion in ordering him to submit to a second psychosexual evaluation.

       M.R. does not challenge the authority of the juvenile court to order him to

undergo an examination. Iowa Code section 232.98(1) (2017) provides that “a

physical or mental examination of the child may be ordered” by the juvenile court

“after a hearing to determine whether an examination is necessary to determine

the child’s physical or mental condition.” See In re W.C., No. 13-0314, 2013 WL

1751435, at *3 (Iowa Ct. App. Apr. 24, 2013) (recognizing section 232.98 applies

to psychosexual evaluations); see also In re J.F., No.14-1017, 2014 WL 5252719,

at *4 (Iowa Ct. App. Oct. 15, 2014) (accepting that a parent may be ordered to
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undergo a psychosexual evaluation “to determine what services need to be offered

to facilitate the possible reunification” of the family). However, M.R. observes no

party objected to the appointment of Dr. Witherspoon and no party subpoenaed

the expert to testify.3 M.R. argues that because there has been no showing of a

flaw in the methodology utilized by Dr. Witherspoon, there has been no showing

of a need for a second evaluation.

         Because the juvenile court “may” order a physical or mental examination,

see Iowa Code section 232.98(1) (providing that evaluations “may” be ordered),

we review the order to have a psychosexual evaluation for an abuse of discretion.

Thus, we may only reverse the district court’s ruling when “it rests on grounds that

are clearly unreasonable or untenable.” In re Marriage of Erpelding, ___ N.W.2d

___, ___, 2018 WL 3322921, at *2 (Iowa 2018) (describing abuse-of-discretion

standard of review). “A ruling is clearly unreasonable or untenable when it is ‘not

supported by substantial evidence or when it is based on an erroneous application

of the law.’” Id. (citation omitted).

         The juvenile court explained its concerns about the evaluation report

submitted, including the lack of testing results and objective findings. The State

and the guardian ad litem expressed concerns about the adequacies of the report

and the evaluator’s apparent premise that the child should not be adjudicated a




3
    Counsel for M.R. informed the court:
        We talked about having [Dr. Withspoon] here. It’s unfortunate because
        these are the discussions that I had with him. At one time the State was
        talking about having him here. Then they decided not to. I talked about
        having him here. He was willing to come do that. There wouldn’t be
        another cost involved.
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CINA.    The order of a second evaluation is not clearly unreasonable or for

untenable reasons. Finding no abuse of discretion, we affirm.

        AFFIRMED.
