Opinion
No. 2-777 / 02-0453
Filed November 15, 2002
Appeal from the Iowa District Court for Muscatine County, James A. Weaver, District Associate Judge.
Father appeals from an order adjudicating his two children to be in need of assistance. AFFIRMED.
Jeffrey Johnson, Muscatine, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Richard Phillips, County Attorney, and Patricia Rolfstad and Korie Shippee, Assistant County Attorneys, for appellee-State.
William Creasey of Goedken Creasey, Muscatine, guardian ad litem for minor child.
Considered by Sackett, C.J., and Vogel, and Mahan, JJ.
Shirley C. and her boyfriend, Chad H., are the parents of two boys, Elijah H., age two, and Kaleb H., age one. Shirley also has an older son, Zachary C., age eight. On December 24, 2001, the juvenile court adjudicated Elijah and Kaleb to be children in need of assistance, pursuant to Iowa Code section 232.2(6)(c)(2) (2001), based on the court's finding that Chad had sexually molested Zachary and had not received treatment for the behavior. Chad appeals from these orders.
Our review is de novo. In re D.T., 435 N.W.2d 323, 329 (Iowa 1989). However, we generally review evidentiary rulings for abuse of discretion. State v. Veal, 564 N.W.2d 797, 806 (Iowa 1997).
During the adjudicatory proceedings, Chad subpoenaed Zachary in order to receive his testimony. Following a hearing, the court ordered the subpoena quashed, and consequently Zachary did not testify. On appeal, Chad generally contends the court erred in refusing to require Zachary to testify.
We first note Chad clearly states he is not asserting any violation of a constitutional right to confrontation. See In re E.H., III, 578 N.W.2d 243, 246 (Iowa 1998) (holding there is no constitutional right of confrontation in a civil child in need of assistance proceeding). Rather, Chad claims the trial court abused its discretion in quashing the subpoena, as he claims Zachary had at one point recanted his allegations of abuse.
The trial court is given discretion in determining whether child witnesses must testify. See Mauk v. State Dep't. of Human Servs., 617 N.W.2d 909, 913 (Iowa 2000); In re E.H., III, 578 N.W.2d at 246. Child abuse investigator Vicki Leau and Zachary's counselor, Kimberly Hessel, both testified to the numerous manners in which testifying would be traumatic to Zachary. In particular, Hessel testified that when she would approach the subject with Zachary, he would totally withdraw, not be able to speak, curl up in a ball, and "shut down." She opined that forcing him to testify would cause a set back in his post-traumatic stress disorder and his demonstrations of violent and self-abusive behavior. We find no abuse of discretion in the juvenile court's conclusion that Zachary's best interests militated against his testimony in court.
Chad next contends there was insufficient evidence to sustain a finding that he sexually abused Zachary. As noted, Elijah's and Kaleb's adjudications were based, in part, on the findings that Chad had molested Zachary, he had not received treatment, his propensity to commit such acts remained, and his continued supervision of the children would be unreasonable. On our de novo review, we conclude the court properly adjudicated Elijah and Kaleb under section 232.2(6)(c)(2).
During an interview with a police detective and a child protection worker, Chad admitted to the sexual abuse of Zachary and another child. He later reaffirmed this in a written confession. Zachary admitted to investigators and others that Chad had touched his penis. Vicki Leau's interviews with Lucas N. and Steven S. confirmed that they had witnessed Chad performing oral sex on both Zachary and Lucas. Accordingly, we conclude the record supports the juvenile court's findings regarding Chad's abuse of Zachary, and the harmful effects on Elijah and Kaleb.