                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1227
                             Filed February 11, 2015


IN THE INTEREST OF M.L.-H.,
Minor Child,

J.L.-T., Father,
Appellant,

F.H., Mother,
Appellant,

M.L.-H., Minor Child,
Appellant.
________________________________________________________________
      Appeal from the Iowa District Court for Howard County, Alan Allbee,

Associate Juvenile Judge.


       A mother, father, and child appeal the juvenile court’s order adjudicating

the child in need of assistance. AFFIRMED ON ALL APPEALS.


       Rockne O. Cole of Cole & Vondra, L.L.P., Iowa City, for appellant father.

       Kevin E. Schoeberl of Story & Schoeberl Law Firm, Cresco, for appellant

mother.

       Thais Ann Folta of Elwood, O’Donohoe, Braun & White, L.L.P., Cresco, for

appellant minor child.

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

General, and Alex Koenigs, County Attorney, for appellee State.

       Whitney L. Schiller, Decorah, guardian ad litem for minor child.


       Considered by Vogel, P.J., and Doyle and McDonald, JJ.
                                          2


DOYLE, J.

       A mother, father, and child appeal the juvenile court’s order adjudicating

the child in need of assistance, claiming clear and convincing evidence did not

support the statutory ground for adjudication. The father also challenges the

admission of certain evidence relating to “past claims of abuse.” We affirm on all

appeals.

I.     Background Facts and Proceedings

       This family came to the attention of the Iowa Department of Human

Services (DHS) in September 2013, on a report of repeated sexual abuse by the

father upon fifteen-year-old, M.L.H. A DHS caseworker initiated contact with the

family, as well as a family friend, Janet Gibbs. The caseworker learned that over

the summer, the child had confided to Gibbs about her father coming into her

bedroom at night and sexually abusing her. Shortly thereafter, the mother had

taken M.L.H. and her younger siblings to Wisconsin for a month to stay with their

grandmother. When they returned in mid-August, the mother put a lock on the

child’s door to keep the father out at night.

       A DHS investigation ensued, and the Cresco Police Department became

involved. During the caseworker’s initial visit to the family home, the mother

confirmed there were concerns of sexual abuse perpetrated by the father against

the child. Another family friend was present who indicated she had been aware

of the sexual abuse since June. The child’s younger sister (who shared a room

with her) confirmed she had observed the father sexually abusing M.L.H. “more

than 5 times and likely more than 15 times” at night. Finally, the caseworker

spoke with M.L.H., who stated her father had entered her bedroom at night
                                         3


“probably more than 15 or 20 times” and touched her in her lower private area.

The caseworker also observed a slide bolt lock screwed into the molding

surrounding the child’s bedroom door.

       The child was taken to St. Luke’s Hospital for an interview and medical

examination at the Child Protective Center.         During the interview, the child

provided specific details of sexual abuse, including touching and oral sex acts

performed by the father and one incident where he forced her to touch him. In

October 2013, DHS completed a child protection assessment, issuing a founded

report of sexual abuse perpetrated by the father.

       Meanwhile, the father was arrested on a multiple counts of sexual abuse

in the third degree and was taken to the Howard County Jail, and the process

was begun to have him deported to Mexico. During an interview with police, the

father denied sexually abusing the child but admitted instances of sleep walking

and stated he was unaware of what he was doing during those times and such

actions were possible.

       Because the father had been arrested and was being deported (i.e., was

no longer a danger to the child or her siblings), the State and DHS agreed a

child-in-need-of-assistance petition would not be required.1           That stance

changed, however.        First, during a December 2013 meeting with a service

provider, M.L.H. stated her previous allegations were untrue and she had made

them up because she was angry at her father for grounding her for an extended

period in the summer. Then, during a March 2014 deposition, M.L.H. stated her


1
  The caseworker warned the mother not to allow the father in the home or foster care
placement would become an option.
                                           4


allegations against her father were untrue and stemmed from a scheme

concocted by Janet Gibbs, based on Gibbs’s statements that the family would

benefit financially if the father was forced to leave the family home. The criminal

case against the father was dismissed following the child’s statements during the

deposition, and he was released from custody.

       On March 27, 2014, the State filed a petition alleging the child to be in

need of assistance as a result of sexual abuse by the father, under Iowa Code

section 232.2(6)(d) (2013). At the same time, DHS filed an addendum to its child

protective assessment acknowledging the child’s recantation but finding the

report of sexual abuse was still founded, and stating although the weight of

evidence was no longer as strong as before the child’s recantation, a

preponderance of evidence remained that the child was abused.

       After a contested hearing,2 the juvenile court found clear and convincing

evidence supported the State’s allegations and adjudicated the child in need of

assistance under section 232.2(6)(d). The court continued the child’s placement

with the mother and ordered the child to continue to have no contact with the

father. The father, mother, and child appeal.3

II.    Standard of Review

       We review the evidence in child-in-need-of-assistance adjudications de

novo. In re B.B., 500 N.W.2d 9, 11 (Iowa 1993). We examine both the facts and

law and adjudicate anew those issues properly preserved and presented for

review. In re L.G., 532 N.W.2d 478, 480-81 (Iowa Ct. App. 1995). We accord

2
  The father and child contested adjudication. The guardian ad litem joined the State in
seeking adjudication.
3
  Insofar as their claims on appeal overlap, we address them together.
                                             5


considerable weight to the factual findings of the juvenile court, especially

concerning the credibility of witnesses, but are not bound by those findings. Id.

Our main concern lies with the child’s welfare and best interests. Id. at 481.

III.   Discussion

       The appellants claim the court erred in finding clear and convincing

evidence supported adjudicating the child in need of assistance under section

232.2(6)(d).4, 5 As their primary support for this claim, the appellants contend the

court erred in concluding the child’s recantation was “improperly influenced,” and

that the record lacks any “direct evidence” to support the court’s ruling.

       At the outset, we note the DHS child protective assessment was founded

as to the father’s sexual abuse of the child, even after the DHS caseworker

issued an addendum acknowledging the child’s recantation.                  The court also

acknowledged the child’s recantation of her initial allegations, but noted its

“significant doubts about the veracity” of the child’s reasons for allegedly

concocting her initial claims of abuse.          The court pointed out the “extremely

leading questions” by the father’s attorney during the deposition “[which]

appeared to be a well-orchestrated effort to aid the child in recanting her

allegations.”6




4
   “‘Child in need of assistance’ means an unmarried child: . . . . Who has been, or is
imminently likely to be, sexually abused by the child’s parent, guardian, custodian, or
other member of the household in which the child resides.” Iowa Code § 232.6(d).
5
   The father raises this claim in Issue 3 of his brief on appeal; the mother and child raise
it as their sole claim on appeal.
6
   The father challenges this and similar “factual findings” of the court in Issue 1 of his
brief on appeal. In light of the considerable weight we accord to the factual findings of
the juvenile court, especially concerning the credibility of the witnesses, we decline to
address the father’s claim on the issue. See L.G., 532 N.W.2d at 480-81.
                                                 6


          The court found M.L.H.’s “detailed statements about her abuse and her

father’s actions to keep her quiet about the abuse lend great credibility to her

original claims.” The court reached this finding upon determining the child’s initial

allegations of sexual abuse by her father had been assessed as credible and

detailed by the investigators. Moreover, in general, “[c]ourts look at the entire set

of circumstances and view recantations of testimony with great suspicion.” In re

R.C., No. 02-0818, 2003 WL 183815, at *2 (Iowa Ct. App. Jan. 29, 2003)

(affirming adjudication after the child’s recantation of sexual abuse allegations

against her step-father “[i]n spite of the fact that only the recantation was sworn

testimony” (citing State v. Folck, 325 N.W.2d 368, 377 (Iowa 1982); State v.

Tharp, 372 N.W.2d 280, 282 (Iowa Ct. App. 1985))). Giving proper deference to

the court’s credibility assessment, we find clear and convincing evidence

supports a finding M.L.H. was sexually abused by her parent. See Iowa Code

§ 232.2(6)(d).

          The father additionally contends the court erred in admitting “hearsay

testimony” of the child and her younger sister “relating to past claims of abuse.”7

This challenged evidence was introduced in the form of the forensic interviewer’s

video recordings of interviews of the child and her sister, the forensic

interviewer’s summaries of those interviews, and the report of a DHS

caseworker. Iowa Code section 232.96(6) governs the admissibility of these

types of evidence. It states:

          A report, study, record, or other writing or an audiotape or
          videotape recording made by the department of human services, a
          juvenile court officer, a peace officer or a hospital relating to a child

7
    The father raises this claim in Issue 2 of his appellate brief.
                                         7


       in a proceeding under this division is admissible notwithstanding
       any objection to hearsay statements contained in it provided it is
       relevant and material and provided its probative value substantially
       outweighs the danger of unfair prejudice to the child’s parent,
       guardian, or custodian. The circumstances of the making of the
       report, study, record or other writing or an audiotape or videotape
       recording, including the maker’s lack of personal knowledge, may
       be proved to affect its weight.

Iowa Code § 232.96(6). The court overruled the father’s motion in limine with

regard to this evidence at the outset of the hearing.

       Upon our review, we conclude the exhibits were clearly relevant and

material to the question of the child’s safety, a paramount consideration in a

child-in-need of assistance action. See id. § 232.116(2); In re P.L., 778 N.W.2d

33, 37 (Iowa 2010). Under these circumstances, we are also convinced the

probative value of the evidence substantially outweighed the danger of unfair

prejudice to the father. See Iowa Code § 232.96(6).

IV.    Conclusion

       Clear and convincing evidence supports the statutory ground for

adjudication under Iowa Code section 232.2(6)(d).          We therefore affirm the

adjudication of M.L.H. as a child in need of assistance.

       AFFIRMED ON ALL APPEALS.
