IN THE INTEREST OF D.W., 01-1806 (Iowa App. 11-25-2002)

No. 2-690 / 01-1806Court of Appeals of Iowa.
Filed November 25, 2002

Appeal from the Iowa District Court for Fayette County, ALAN D. ALLBEE, Associate Juvenile Judge.

The father appeals from the juvenile court order adjudicating his children to be children in need of assistance. ADJUDICATION AFFIRMED INPART AND DISMISSED IN PART; DISPOSITION AFFIRMED.

Larry Woods, Oelwein, for appellant father.

Charles Hallberg of Hallberg Law Office, Oelwein, for mother.

Thomas J. Miller, Attorney General, Gordon Allen, Deputy Attorney General, Kathrine Miller-Todd, Assistant Attorney General, W. Wayne Saur, County Attorney, and Jay Villont, Assistant County Attorney, for appellee-State.

Richard Buffington, Oelwein, guardian ad litem for minor child.

Heard by HUITINK, P.J., and MAHAN and VAITHESWARAN, JJ.

MAHAN, J.

The father appeals from the juvenile court order adjudicating his children to be children in need of assistance. Specifically, he contends the juvenile court erred when it: (1) determined he committed sexual abuse on his daughter and (2) placed the children in foster care with restrictions on his visitation. We affirm the adjudication in part and dismiss it in part and affirm the disposition.

Background Facts and Proceedings. Shannon is the father of Cameron, born on January 7, 1993; Dustiny, born on August 1, 1995; Shayli, born on December 13, 1996; and Zerina, born on December 11, 1999. Melissa is the mother of Shayli, Zerina, and Stetson, born on March 3, 1995. The children came to the attention of the Department of Human Services (DHS) on March 19, 2001, when Dustiny was diagnosed with venereal warts. As a result, both Shannon and Melissa were examined. The test results revealed Shannon had penile warts while Melissa’s test results were negative. None of the other children had venereal warts.

On March 27, 2001, the children were interviewed by DHS at the Child Protection Center. DHS concluded Shannon had sexually abused Dustiny because of the physical evidence of venereal warts on both of them and Dustiny’s attitude and demeanor during the interview. DHS was unable to interview Shannon because law enforcement requested the interview be delayed.

A child in need of assistance (CINA) petition was filed on behalf of all the children pursuant to Iowa Code chapter 232 on April 3, 2001. Shannon and Melissa did not dispute the children were CINA under Iowa Code sections 232.2(6)(c)(2) and (g) (2001); however, they denied the allegations as to sexual abuse under section 232.2(6)(d), and the matter proceeded to hearing. Following the hearing, the juvenile court adjudicated the children to be CINA under sections 2.32.2(6)(c)(2), (d), and (g). Dustiny and Cameron were placed in foster care. Shannon appeals.[1]
Standard of Review. The court’s review of CINA proceedings is de novo.

In re M.B., 553 N.W.2d 343, 344 (Iowa Ct.App. 1996). The court is not bound by the findings of the trial court, but gives them weight, especially as to the credibility of witnesses. Iowa R.App.P. 6.14(6)(g). The court’s paramount concern is the children’s best interests. In re N.C., 551 N.W.2d 872, 872-73 (Iowa Ct.App. 1996). The State has the burden of proving the allegations of its CINA petition by clear and convincing evidence. Id.
Adjudication. Shannon claims that the adjudication of CINA under section 232.2(6)(d) is not supported by clear and convincing evidence. We agree. There is certainly evidence that Dustiny has been sexually abused. However, the evidence implicating Shannon is inconclusive. Therefore, our de novo review of the record leads us to the conclusion that the adjudication of CINA based on section 232.2(6)(d) is not supported by clear and convincing evidence. We dismiss that adjudication. We note, however, that the adjudications under sections 232.2(6)(c)(2) and (g) are not the subject of this appeal and shall remain intact.

Disposition Shannon argues the juvenile court erred in its placement of Dustiny and Cameron in foster care. He alleges that without the sexual abuse finding the juvenile court did not have sufficient evidence to justify the removal of Dustiny and Cameron from his care. We disagree. The juvenile court did not base its decision to remove the children solely upon the finding Shannon had committed sexual abuse on Dustiny. The children were also adjudicated on the basis of sections 232.2(6)(c)(2) and (g). The family-centered psychological evaluation introduced at the disposition hearing concluded Shannon would:

[H]ave a considerable struggle appropriately nurturing, protecting, and caring for his youngsters. This man is psychologically unstable and quite prone to make frequent errors in judgment. He has been neglectful and uninvolved in the care of his children in the past. He tends to overvalue corporal punishment and he seems to lack appropriate expectations or an adequate understanding of normal child growth and development. It appears that [the father] has difficulty taking care of himself and he often becomes preoccupied with his own needs while ignoring those of his children. This self-centeredness, especially in the light of his marginal parenting knowledge and skills, is likely to contribute to future episodes of neglect of these youngsters. [The father’s] chronic anxiety and depression, as well as his apparent anger, are emotional issues which will probably distract him from his responsibilities as a parent. If the children are to be placed with him he will require a significant amount of support in the form of services from the Department of Human Services. . . .

Accordingly, we determine the record in this case supports the decision of the juvenile court to place Dustiny and Cameron in foster care.

Summary. We affirm the adjudication of the children under sections 232.2(6)(c)(2) and (g). We dismiss the adjudication under section 232.2(6)(d). We also affirm the disposition entered by the juvenile court.

ADJUDICATION AFFIRMED IN PART AND DISMISSED IN PART; DISPOSITIONAFFIRMED.