A.W., In Interest of, 89-1699
| Decision Date | 23 October 1990 |
| Docket Number | No. 89-1699,89-1699 |
| Parties | In the Interest of A.W., A Child, C.W., Mother, and State of Iowa, Appellants. |
| Court | Iowa Court of Appeals |
Lawrence S. Jones of Cambridge, Feilmeyer, Landsness, Chase & Jones, Atlantic, for appellant mother.
Thomas J. Miller, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., and Judy Sheirbon, Asst. Atty. Gen., for appellant State.
John M. Trewet and James W. Mailander of Howard, Rutherford & Mailander, Atlantic, for appellee father.
W. Edward Anstey, guardian ad litem.
Heard by SCHLEGEL, P.J., and SACKETT and HABHAB, JJ.
This is an appeal by the State and a mother from an order dismissing a child in need of assistance proceeding. We modify the trial court order. We determine the child in need of assistance proceedings should not have been dismissed. We find the child should remain a child in need of assistance. We remand with directions.
The child's parents' marriage was dissolved and custody was given to appellee father. The mother was given extensive visitation. Facts surfaced showing the child had been sexually abused. An application for temporary removal from the father's care was filed and the parents agreed to placement in foster care. Ultimately, the State filed a petition to have the child found to be a child in need of assistance. The parents agreed the child had been sexually abused. In March of 1989, the trial court found the child to be a child in need of assistance and made the following finding:
All parties concur that the evidence contained in the Department of Human Services reports previously submitted to the Court, and in the depositions ... indicate by clear and convincing evidence that the child has been the victim of sexual abuse, however, it is not sufficiently specific to identify the perpetrator of said sexual abuse; that the medical and mental health professionals indicate that 'most probably the perpetrator was the father,' however, this does not satisfy the clear and convincing standard, and further there are indications that there is a possibility that it was the step-grandfather 1 that was the perpetrator....
With the parents' agreement, a dispositional order was entered on the same day providing for services, including the continuation of foster care. No appeal was taken from these orders.
On September 6, 1989, the matter came on for review, and the trial court entered the order from which this appeal was taken. The order provided in part:
Sherry Toelle, Iowa Department of Human Services ... testified ... it would be therapeutic for him (the natural father) to admit that he did sexually abuse the child. Sherry Toelle testified that despite the Court's not finding sufficient evidence to name the father as the founded sexual abuse finding him to be the perpetrator, they had to consider him to be the perpetrator.... It is apparent to the Court that despite the Court's finding ... the Department of Human Services as well as the therapists for the minor child have concluded that the natural father is the perpetrator of the sexual abuse upon the minor child. Indeed, for the past six months their only purpose in therapy is to get him to 'admit' that he is the perpetrator. The essence of the report and their testimony is that once he 'admits' that he is the perpetrator, then they can begin to therapeutically assist him. However, it is apparent to the Court that the natural father is not going to 'admit' that he is the sexual perpetrator and, indeed, the Court has previously found that there is not clear and convincing evidence that he is the perpetrator. It is equally evident to the Court that this matter will never be concluded if allowed to continue because the natural father is never going to 'admit,' nor is the finding going to be changed. Indeed, the Court does not believe that there is any factual basis for the adjudication based on the findings of the Court's Order dated March 28, 1989. ... Given the tainted child abuse investigation that obviously occurred herein, the Court does not believe that the Court can give credence to the child's statements in that regard as well. There being no factual basis for an adjudication herein, the Court must dismiss the adjudication herein as improvidentially granted and order the Petition be dismissed.
The State appeals from this order contending (1) the trial court should not have reversed the original adjudication order, and (2) the child in need of assistance proceedings should not have been dismissed. The mother appeals contending the court should have found the father sexually abused the child.
The issue of whether the child was sexually abused had been adjudicated in the March 1989 order. The adjudication order standing alone was not a final appealable order. See In re Long, 313 N.W.2d 473, 477 (Iowa 1981). However, when the dispositional order was entered, the order became final. See Long, 313 N.W.2d at 477. No appeal was taken from the entry of the dispositional order. Therefore, the issue had been litigated. The review hearing from which this appeal was taken is not a hearing to readjudicate the original grounds for finding the child was a child in need of assistance; rather it is a hearing to consider changed circumstances which may warrant returning the child to his or her parent. See In re Welcher, 243 N.W.2d 841, 844 (Iowa 1976).
To the extent, if any, the trial court's September 6, 1989, order reversed the adjudication order, we modify the June 6, 1989 order. Having adopted the State's argument on this issue, we do not consider the mother's claim the court should have found the father was the perpetrator of the abuse. The issue of the identity of the perpetrator of the abuse was also adjudicated in the March 1989 order which we have determined was a final order and from which no appeal was taken.
The next issue is whether the trial court should have dismissed the child in need of assistance proceeding or whether the child should remain a child in need of assistance. The State argues the trial court should not have dismissed the proceedings. The father argues the trial court should have. We determined it was...
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