J.D.S., In Interest of

• Decision Date: 22 February 1989
• Docket Number: No. 88-757,88-757
• Citation: 436 N.W.2d 342
• Parties: In the Interest of J.D.S., A Child, Appellant, State of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 342

436 N.W.2d 342

In the Interest of J.D.S., A Child, Appellant State of Iowa, Appellee.

No. 88-757.

Supreme Court of Iowa.

Feb. 22, 1989.

Jon M. Kinnamon, Cedar Rapids, and Valorie K. Wilson, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., and Katherine S. Miller-Todd, Asst. Atty. Gen., for appellee.

Considered en banc.

SNELL, Justice.

This appeal arises from an adjudication that the sixteen-year-old child in interest, J.D.S. ("Jay"), committed a delinquent act by sexually abusing a four-year-old boy, B.M. ("Brad"). See Iowa Code §§ 232.2(12)(a) ("delinquent act" defined), and 709.1 and 709.3(2) (second-degree sexual abuse defined). Our review is de novo. Iowa Code § 232.58 (1987); In re Meek, 236 N.W.2d 284, 289 (Iowa 1975). We give weight to the fact findings of the juvenile court, especially when considering the credibility of the witnesses, but are not bound by them. Iowa R.App.P. 14(f)(7); In re Meek, 236 N.W.2d at 289. We affirm.

The investigation in this case commenced on July 18, 1987, when C.M., Brad's mother, observed Brad place his fingers on and then lick the bottom of his three-year-old brother. This occurred while the two boys were bathing. On July 21, C.M. reported the incident to the supervisor of the day care center where she worked and which Brad attended; the supervisor, in turn, reported it to Lou Ann Pumphrey, a child abuse investigator for the State. On July 22, Ms. Pumphrey interviewed Brad for the first time. In the course of this interview, Brad told her he had gotten the idea to lick his brother's bottom from Sheryl, his day care teacher. He also denied having had anybody lick or touch his bottom, but stated that he had seen two other children from day care do what he did to his brother. Prior to this interview, however, Brad told his mother he did not want to go swimming at the YMCA because he was afraid of Jay, a teacher's aide at the day care center. He also told her that Jay had licked his bo

ttom and put a finger in his bottom.

On July 28, 1987, Ms. Pumphrey again interviewed Brad. Also present and interviewing Brad on this occasion was Sandy Parisho, a sexual abuse investigator with the Des Moines Police Department. During this interview, Brad stated that Jay had licked his bottom at the YMCA when Brad was putting his clothes on after swimming. Jay was responsible for supervising the day care center boys in the dressing room at the YMCA. Brad again denied being touched anyplace by anyone, including Jay.

On August 3, 1987, Brad was examined by Dr. Rizwan Shah, a medical doctor employed as Director of the Child Sexual Assault Diagnostic Clinic at Broadlawns Medical Center in Des Moines. Before the examination, Brad was briefly interviewed by Shirley Keenan-Allen, Dr. Shah's medical assistant, and told her that Jay had touched his bottom with his hand on one occasion. Brad correctly identified the anal area on an anatomically correct doll as the "bottom." Dr. Shah's examination revealed some venous pooling, a collection of blood in a dilated vein just underneath the skin, in Brad's anal area. In her opinion, this condition indicated Brad had sustained an assault to his anus that was consistent with finger insertion and inconsistent with Brad's initial denials of physical contact. Dr. Shah found no evidence to suggest an object larger than a finger had been inserted. Her best guess regarding the age of the injury, based upon the extent of the trauma and Brad's age, was that it was four to six w

eeks old, but she did not believe there was any way to arrive at an absolute age for a venous pooling injury. Brad's mother thought the assault took place on July 16, 1987, when Brad had last gone swimming at the YMCA, two and a half weeks before Dr. Shah's examination.

This action was subsequently commenced in Polk County Juvenile Court on October 19, 1987, by the filing of a petition alleging Jay had committed four delinquent acts: three thefts and sexually abusing a minor. He admitted committing one of the thefts and the other two theft allegations were dismissed. An adjudicatory hearing was held only on the sexual abuse allegation, resulting in the juvenile court's determination beyond a reasonable doubt that Jay sexually abused Brad in violation of Iowa Code §§ 709.1 and 709.3 (1987). Jay was therefore adjudicated to have committed a delinquent act as defined in Iowa Code § 232.2(12)(a) (1987). This matter was then transferred to the Linn County Juvenile Court for disposition because Jay and his mother made their home in Cedar Rapids. Placement of Jay was ordered continued at a group home facility in Waverly, with the additional requirement that Jay receive group specific therapy in a sex offenders' program in Waterloo.

I. Right of Confrontation. Jay's first contention on appeal of this disposition and the sexual abuse adjudication is that he was denied the right to confront witnesses against him at the adjudicatory hearing (1) by the implementation of a screening procedure that enabled Brad to testify without being able to see Jay, and (2) by Brad's alleged refusal to respond to cross-examination.

We note at the outset that juvenile delinquency proceedings are not criminal prosecutions; they are special proceedings that serve as an ameliorative alternative to the criminal prosecution of children. In re Johnson, 257 N.W.2d 47, 48 (Iowa 1977); State v. White, 223 N.W.2d 173, 175 (Iowa 1974). The non-criminal nature of these proceedings, however, does not deprive the child in interest of all constitutional procedural rights. Although the child is not entitled to a jury trial, McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S.Ct.1976, 1986, 29 L.Ed.2d 647, 661 (1971), he or she is entitled to several other due process rights, including the right to confront and cross-examine adverse witnesses. In re Johnson, 257 N.W.2d at 49; In re Delaney, 185 N.W.2d 726, 729 (Iowa 1971).

A. Screening Procedure. Jay asserts his right to confront witnesses against him was violated by the taking of Brad's testimony in a room separate from him, pursuant to Iowa Code section 910A.14(1) (1987). That section states:

1. A court may, upon its own motion or upon motion of any party, order that the testimony of a child, as defined in section 702.5, be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the court. Only the judge, parties, counsel, persons necessary to operate the equipment, and any person whose presence, in the opinion of the court, would contribute to the welfare and well-being of the child may be present in the room with the child during the child's testimony.

The court may require a party be confined to an adjacent room or behind a screen or mirror that permits the party to see and hear the child during the child's testimony, but does not allow the child to see or hear the party. However, if a party is so confined, the court shall take measures to insure that the party and counsel can confer during the testimony and shall inform the child that the party can see and hear the child during testimony.

Iowa Code § 910A.14(1) (1987). By the use of a one-way mirror, Jay was able to observe Brad but Brad could not see Jay.

Our determination of the constitutionality of denying Jay a face-to-face confrontation with Brad is guided by Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Coy was charged with sexually assaulting two thirteen-year-old girls while they were camping out in the backyard of the house next door to him. The procedure used by the trial court was to place a large screen between him and the witness stand during the girls' testimony. The screen enabled the defendant to see the victim witnesses but they could not see him at all. The United States Supreme Court held that this screening procedure violated the defendant's constitutional right to a face-to-face confrontation guaranteed under the Sixth Amendment, absent individualized findings that these thirteen-year-old witnesses needed special protection while testifying. Coy, 487 U.S. at ----, 108 S.Ct. at 2803, 101 L.Ed.2d at 867. The generalized import of section 910A.14 to protect child victims was insufficient to withstand Coy

's constitutional challenge as it affected him. Id. On remand our court held it could not find that the error involving Coy's constitutional rights was harmless beyond a reasonable doubt. Accordingly, the case was reversed and remanded for a new trial. State v. Coy, 433 N.W.2d 714, 715 (Iowa 1988).

In conceptualizing the protection afforded by the Confrontation Clause, the Supreme Court emphasized the importance of a defendant's right to physically face those who testify against him. Even so, the Court found that the Confrontation Clause does not compel a witness to fix his eyes upon the defendant. Coy, 487 U.S. at ----, 108 S.Ct. at 2802, 101 L.Ed.2d at866. He may studiously look elsewhere, but the trier of fact will draw its own conclusions. The Court further confirmed that the rights conferred by the Confrontation Clause are not absolute, and may give way to other important interests. Id.

The Court reserved judgment, however, on whether any exceptions exist to the right of face-to-face confrontation, stating "[w]hatever they may be, they would surely be allowed only when necessary to further an important public policy." Id. at ----, 108 S.Ct. at 2803, 101 L.Ed.2d at 867. Justice O'Connor, joined by Justice White, expanded on this thought in her concurring opinion:

The protection of child witnesses is, in my view and in the view of a substantial majority of the States, just such a policy. The primary focus therefore likely will be on the necessity prong. I agree with the Court that more than the type of generalized legislative finding of necessity present here is required. But if a court makes a case-specific finding of necessity, as is required by a...