Interest of E.H. III

• Decision Date: 28 May 1998
• Docket Number: No. 97-55,97-55
• Citation: 578 N.W.2d 243
• Parties: In the Interest of E.H. III, H.H., S.H., R.H., and J.H., Minor Children, E.H. II, Father, Appellant.
• Court: Iowa Supreme Court

Page 243

578 N.W.2d 243

In the Interest of E.H. III, H.H., S.H., R.H., and J.H., Minor Children, E.H. II, Father, Appellant.

No. 97-55.

Supreme Court of Iowa.

May 28, 1998.

D. Bradley Kiesey, Washington, for appellant.

Thomas J. Miller, Attorney General, and Gordon E. Allen, Deputy Attorney General, for appellee.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, ANDREASEN, and TERNUS, JJ.

TERNUS, Justice.

The juvenile court, in this child-in-need-of-assistance case, entered a dispositional order that the father have no contact with his minor children. This order was based on a finding that the father had physically and sexually abused his daughter, Sarah. The father appealed, claiming (1) the juvenile court erred in denying his request to have his daughter and son called as witnesses or interviewed by a person of the father's choice, (2) the juvenile court erred in refusing to admit a report of a polygraph test administered to the son, (3) the record lacked clear and convincing evidence of physical or sexual abuse by the father, and (4) the order requiring the father to complete a sexual offender treatment program violated his Fifth Amendment right against self-incrimination.

The court of appeals remanded the case to the juvenile court to receive further evidence and to reconsider its finding of physical and sexual abuse. On further review, we vacate the court of appeals' decision and affirm the judgment of the juvenile court.

I. Background Facts and Proceedings.

Earl II and Geri have five children who were adjudicated children in need of assistance (CINA) in June 1995. See Iowa Code § 232.96 (1995). The primary grounds for this adjudication were (1) the school-age children were not attending school nor being home schooled, (2) the eldest child, Earl III, had sexually abused his younger sister, Sarah, for several years, (3) there were episodes of domestic violence by Earl II against his wife, and (4) a disabled daughter, Heather, had not been provided needed medical care. Pursuant to the initial dispositional order, Earl III and Heather were placed in the custody of the Department of Human Services (DHS), and the other children remained in their parents' care subject to certain conditions, including counseling and schooling. See id. § 232.99.

In October 1995, the children were temporarily removed from their father's custody because Earl II was interfering with the children's therapy. See id. § 232.103. Two months later, the State applied for a no-contact order against the father based on new allegations by Sarah that her father had physically and sexually abused her.

At the hearing on the State's application, the juvenile court admitted two videotaped interviews of Sarah into evidence, one concerning the abuse by Earl III and a later tape concerning her abuse by Earl II. Earl II objected to admission of the tapes and requested an order allowing him to cross-examine Sarah and Earl III or to have the children interviewed by a person of his choice. The juvenile court denied this motion and also denied the father's request to admit a report of a polygraph test given to Earl III concerning Earl III's sexual abuse of his sister.

Stating Sarah's allegations of abuse were "very convincing," the juvenile court found Earl II had physically and sexually abused Sarah. The court entered a no-contact order and required Earl II to attend a sexual offender treatment program and to obtain a recommendation from a therapist before he would be allowed to see his children and return home.

Earl II appealed, claiming the errors previously noted. The appeal was transferred to the court of appeals who reversed the juvenile court's no-contact order and remanded the case to give the father an opportunity to have his daughter reinterviewed. The case now comes to us on the State's application for further review of the court of appeals' decision.

II. Denial of Father's Application to Call Children as Witnesses or to Reinterview Children.

Earl II argued in defense to the sexual abuse allegations that Sarah attributed instances of abuse by Earl III to her father out of spite toward him. He also claimed that DHS and the children's therapists disliked him and somehow planted the idea of physical and sexual abuse in Sarah's mind. In an application filed prior to the hearing on the State's application for a no-contact order, the father requested permission to call Sarah and Earl III as witnesses at the hearing. In the alternative, Earl II wanted the children interviewed again by a person of the father's choice or by a person not employed by or related to Tanager Place (where the children were receiving therapy) or DHS. Earl II also objected to the introduction of the videotaped interviews of Sarah on the basis that (1) they were hearsay, and (2) their admission without Sarah's in-person testimony deprived him of his Sixth Amendment right to confrontation.

The juvenile court denied the application, finding that Sarah and Earl III would be unduly traumatized by testifying in court and such an event would interfere with their therapy. The court also concluded another interview, especially by a stranger, would also interfere with their therapy, and that additional interviews would serve no useful purpose. Finally, the court rejected the father's hearsay and Sixth Amendment claims.

We review the father's constitutional claim de novo. See State v. Veal, 564 N.W.2d 797, 806 (Iowa 1997) (reviewing claimed violation of Confrontation Clause of the Sixth Amendment de novo). To the extent the father's claim of error rests on statutory interpretation, our review is for correction of errors of law. See State v. Terry, 569 N.W.2d 364, 366 (Iowa 1997). Otherwise, we generally review evidentiary rulings for abuse of discretion. See Veal, 564 N.W.2d at 803; State v. Weaver, 554 N.W.2d 240, 247 (Iowa 1996); cf. In re Long, 313 N.W.2d 473, 482 (Iowa 1981) (holding juvenile court did not abuse its discretion in admitting expert testimony). We find an abuse of discretion where a decision is clearly unreasonable, "is not based on substantial evidence ..., or is based on an erroneous application of the law." City of Windsor Heights v. Spanos, 572 N.W.2d 591, 592 (Iowa 1997).

A. Hearsay. On appeal, Earl II claims the second videotaped interview of his daughter is inadmissible hearsay. Iowa Code section 232.96(6) provides for the admission of reports containing hearsay under certain circumstances:

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 in a [CINA] proceeding ... 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.

(Emphasis added.) The record shows the challenged interview of Sarah was conducted at a Cedar Rapids hospital by a hospital-employed interviewer who held a master's degree in social work. The subject of the interviews was Sarah's allegations of physical and sexual abuse by her father, making the videotape "relevant and material" to the hearing. We think the juvenile court reasonably concluded the probative value of the tapes substantially outweighed any danger of unfair prejudice to the father. The interviewer's questions were open-ended and non-leading; Sarah answered the questions in an assured and confident manner. Moreover, the father was afforded ample opportunity at the hearing to undermine Sarah's credibility with other evidence. We find no abuse of discretion in the juvenile court's ruling that Earl II's hearsay objection was without merit.

B. Sixth Amendment right of confrontation. The father claims that admission of Sarah's videotaped interview combined with the refusal of his request to call Sarah as a witness operated to deny the father his Sixth Amendment right of confrontation. See U.S. Const. amend. VI. We have previously held that the Sixth Amendment Confrontation Clause does not apply to civil CINA proceedings. See In re L.K.S., 451 N.W.2d 819, 822 (Iowa 1990). Thus, this allegation of error must be rejected.

C. Request to call the children as witnesses or to reinterview the children. The mother, the guardian ad litem for the children, and the therapists treating the children agreed that requiring Earl III and Sarah to testify at the hearing would traumatize them and interfere with their therapy. Earl III, in particular, had expressed a fear of testifying because he did not want to "take sides." We find no abuse of discretion in the juvenile court's conclusion that the best interests of the children militated against their testimony in court.

We also find no abuse of discretion in the juvenile court's decision that another interview was not warranted under the circumstances presented. The record shows that an interview of the children by a stranger, requesting that they detail the events of sexual abuse, would be inappropriate and a setback in their recovery. Earl III's therapist testified that another interview requiring Earl III to reiterate the sexual abuse he inflicted on his sister could trigger resentment, causing him to reoffend. Moreover, additional interviews would serve no useful purpose. The abusive events involving Sarah and Earl III are well documented in the record before us. When Sarah was questioned about her father's abuse in the second videotaped interview, she was able to clearly distinguish events concerning her father from those involving her brother. Given the damage to the children's therapy that would occur from additional...