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In re T.A.

Court of Appeals of Iowa

November 8, 2017

IN THE INTEREST OF T.A. and D.A., Minor Children, M.A., Father, Appellant.

         Appeal from the Iowa District Court for Decatur County, Monty W. Franklin, District Associate Judge.

         A father appeals from the adjudication of his children as children in need of assistance. REVERSED.

          Bryan J. Tingle of Tingle Law Office, Des Moines, for appellant father.

          Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant Attorney General, for appellee State.

          Carol A. Clark, Lamoni, for minor children.

          Heard by Danilson, C.J., and Tabor and McDonald, JJ.

          DANILSON, Chief Judge.

         A father, M.A., appeals from the adjudication of his children-T.A., age ten, and D.A., age six-as children in need of assistance (CINA). Both children were adjudicated CINA pursuant to Iowa Code section 232.2(6)(c)(2) (2017), and T.A. was also adjudicated under section 232.2(6)(d). M.A. contends there is not clear and convincing evidence supporting the grounds for adjudication. Because we find there is insufficient evidence under either ground, we reverse.

         I. Background Facts & Proceedings.

         This is a case first initiated by T.A. and D.A.'s thirteen-year-old half-sibling, S.H., who made allegations of sexual contact alleged to have been committed by M.A., her step-father. If the allegations are supported by clear and convincing evidence, the acts would clearly support a CINA adjudication of both T.A. and D.A. The question we face is whether the evidence is sufficient to support the adjudication in light of both the evidence detracting from the truthfulness of the allegations and the very limited record relied upon by the State. Although S.H. and T.A. underwent a forensic interview, no recordings or transcripts of the interviews were admitted into evidence, and neither the children nor the interviewer testified.

         In February 2017, S.H. reported that M.A. had subjected S.H. to sexual contact. S.H. also reported T.A. had written a note to S.H. revealing T.A. had also been touched inappropriately by M.A. According to testimony by the child protective worker, in an interview with a forensic interviewer at the Child Protection Center (CPC), S.H. reported M.A. asked her on occasion to show him her "bad spots" in order to get things in return. For example, S.H. stated M.A.would sometimes take her driving and request to see her "bad spots" before he allowed her to drive the vehicle. S.H. also reported M.A. touched her "bad spots" on more than one occasion. S.H. recalled a specific incident when she and M.A. were in the family's detached garage and M.A. touched her. S.H. stated she reported the abuse to the mother the previous summer, but M.A. denied the abuse when confronted and no further actions were taken.

         When initially asked by the child protective worker, T.A. stated M.A. had not touched her inappropriately. However, a week later during her interview at the CPC, T.A. reported M.A. told her to go into the bathroom on more than one occasion, remove her clothes, and lie down. T.A. stated M.A. would then get on top of her and his body would be shaking. T.A. described one occasion when she was playing a game and M.A. asked her to go to the bathroom and remove her clothing. She recalled the specific pajamas she was wearing. T.A. stated M.A. told her to lie down on the floor and he kissed her "privates." T.A. stated she told S.H. about the incident by writing her a note.

         If these allegations by S.H. and T. A. were supported by substantial evidence, there would be support for the CINA adjudication of the children. But the record also contains significant evidence detracting from the credibility of S.H. and T.A.'s allegations.

         First, when initially interviewed by the child protective worker, T.A. reported she had not been subjected to sexual contact by M.A. But because S.H. told the child protective worker that T.A. was also abused, one week later both children were required to undergo a forensic interview. It was not until the CPC interview that T.A. reported sexual contact. Sometime during that one- week period, S.H. and T.A. spoke together. The child protective worker testified at the adjudication hearing that when asked by the forensic interviewer T.A. acknowledged she had ...


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