In re E.W.
| Decision Date | 30 March 2022 |
| Docket Number | 21-1736 |
| Parties | IN THE INTEREST OF E.W., Minor Child, D.W., Father, Appellant. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Polk County, Romonda D Belcher, District Associate Judge.
A father appeals the juvenile court's adjudication of his daughter as a child in need of assistance.
Randall L. Jackson, Des Moines, for appellant father.
Anjela A. Shutts of Whitfield & Eddy, P.L.C., Des Moines, for appellee mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State.
Bo Woolman and Erin Mayfield (until withdrawal) of the Youth Law Center, Des Moines, attorneys and guardians ad litem for minor child.
Considered by Tabor, P.J., and Greer and Ahlers, JJ.
The juvenile court adjudicated E.W. as a child in need of assistance (CINA), finding the four-year-old had been, or was imminently likely to be, sexually abused by her father. See Iowa Code § 232.2(6)(d) (2021). The father contests the sufficiency of the State's evidence and the admission of hearsay at the adjudication hearing. Finding clear and convincing proof to support the CINA adjudication and no reversible error in the admission of evidence, we affirm.[1]
E.W. was born in 2017. Her parents divorced in June 2020. The decree granted the parents joint legal custody. The mother has physical care, and the father has visitation. During a spring 2021 visit, her father touched her vagina with his hand and tongue. E.W. told her mother, and her mother reported the alleged sexual abuse to the Iowa Department of Human Services (DHS). A child protective services investigation returned a founded report of child abuse on allegations that the father placed his mouth on E.W.'s genitals. Her report of hand-to-genital contact was not confirmed.
In July, the State filed a CINA petition, citing Iowa Code section 232.2(6), paragraph (b) (), paragraph (c)(2) (inadequate supervision), and paragraph (d) (sexual abuse). At two September hearings, the juvenile court heard from the DHS child protection investigator and the mother. Over objections from the father's counsel, those witnesses shared out-of-court statements from E.W. The father's counsel also lodged hearsay objections to the State's offer of police reports, a letter from E.W.'s therapist Abby Sohn, and the child protective assessment. The juvenile court overruled those objections and admitted the exhibits. In October, the juvenile court granted the CINA petition, citing only paragraph (d). In a November dispositional order, the court left the child in her mother's care under DHS supervision.
The father now appeals the CINA adjudication. Both the State and the mother file responsive petitions defending the juvenile court's order.
The father argues that the juvenile court improperly admitted hearsay evidence at the adjudication hearing. Hearsay means a statement made by a declarant outside the current court hearing and offered into evidence "to prove the truth of the matter asserted in the statement." Iowa R. Evid. 5.801(c).
In his petition on appeal, the father complains that the court "permitted numerous exhibits" to be admitted over hearsay objections and "permitted the witnesses to testify to out-of-court statements made by third parties, including E.W." The State rightly critiques his complaints as lacking in specificity as to which "objections he believes were incorrectly overruled and what exact testimony he is now claiming should have been excluded."
We recognize that the expedited briefing schedule in child-welfare appeals often restricts counsel's ability to review and cite the transcript of the proceedings. See Iowa Rule of App. P. 6.201. But, at the same time, we cannot do counsel's job from the bench. See Matter of Est. of DeTar, 572 N.W.2d 178, 180 (Iowa Ct. App. 1997) (). By our count, the father's counsel objected more than a dozen times on hearsay grounds at the adjudication hearing. But counsel makes no effort to pinpoint which of those overruled objections he is contesting on appeal. As a matter of grace, we will try to decipher what evidence the father now finds objectionable, but only as long as we can do so without assuming a partisan role. See id. at 181.
We start with the five exhibits that the father's counsel challenged as hearsay. Exhibits 3 and 4 were police reports against the father for offenses unrelated to E.W. and Exhibit 6 was a complaint alleging he violated a no-contact order protecting the mother. The State asserts these records related to E.W.'s safety if left in the father's care and thus were admissible under Iowa Code section 232.96(6).[2] But we need not decide their admissibility. The juvenile court did not rely on them to adjudicate E.W. as a CINA under section 232.2(6)(d) and neither does our court in affirming the adjudication.
Next, we consider Exhibit 1, a letter from social worker Abby Sohn who had six weekly therapy sessions with E.W. called "Discovery Work." Sohn described the program as "an extended evaluation method of therapy which is utilized in cases which abuse is suspected." Sohn's letter detailed her conversations with E.W., including E.W.'s unprompted disclosure that "Daddy is touching my vagina." When asked what he touches it with, E.W. responded: "His tongue." The juvenile court mentioned the Discovery Work revelations in its adjudication order.
The State first argues the Sohn letter is admissible under section 232.96(6), in the same category as a forensic interview completed at a child protection center. See In re E.H. III, 578 N.W.2d 243, 246 (Iowa 1998). But, as the State acknowledges, Sohn's employer, Orchard Place Child Guidance Center, is not a hospital, as required to avoid hearsay rules under the statute. Iowa Code § 232.96(6). In the alternative, the State contends the therapist's letter was admissible under the hearsay exception for statements made for purposes of medical treatment or the residual exception. See Iowa R.s Evid. 5.803(4), 5.807; see generally State v. Skahill, 966 N.W.2d 1 (Iowa 2021) (). Trouble is, those arguments do not address the first layer of hearsay. The State did not call Sohn as a witness, so her written recollections of E.W.'s disclosures were themselves out-of-court statements offered for the truth of the matter asserted.
After rejecting those grounds for admissibility, we turn to the State's last try-that allowing the Sohn letter into evidence was not reversible error because the substantive portions of the exhibit were subsumed in Exhibit 7, the child protective assessment. With that argument we agree. That report was admissible over counsel's hearsay objections. See Iowa Code § 232.96(4), (6); see also In re A.C., 852 N.W.2d 515, 518 (Iowa Ct. App. 2014). And it incorporated all of the same statements made by E.W. to therapist Sohn. The juvenile court did not err in relying on the child protective assessment along with other evidence.
Finding no reversible error in the admission of the State's exhibits, we turn to the challenged testimony. As mentioned above, the father's attorney fails to point to the particular statements he is challenging on appeal. After arguing waiver stemming from that lack of precision, the State contends that any of E.W.'s statements related during the testimony of the DHS social worker and the mother were not offered for the truth of the matter asserted, but to show the testifying party's later actions. See State v. Banes, 910 N.W.2d 634, 642 (Iowa Ct. App. 2018) ( that when out-of-court statement is offered, not to show the truth of the matter asserted but to explain responsive conduct, it is not viewed as hearsay). We agree that many of the child's out-of-court statements were admissible under that theory. The responsive conduct of the witnesses was relevant to how the juvenile court decided to address the CINA petition. See id. (). Here, the court noted the mother "has demonstrated protective capacity" and ordered that she retain temporary legal custody under DHS supervison. We decline to reverse the CINA adjudication on hearsay grounds.
The father also argues that ...
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