*1 V conclusion, we affirm the district court appeal. Campbell raised on all issues
on
AFFIRMED.
CADY, J., concurs.
SACKETT, P.J., dissents.
SACKETT, Judge (dissenting).
I dissent. must first
There be a determination
unavailability fact of the witness. Then the challenged evidence came under
hearsay exceptions required would it the
reliability to render it admissible. Child, S.J.M.,
In the Interest of A Minor
T.D.M., Father, Appellant.
No. 94-1123. Appeals
Court of of Iowa.
Aug. Coy introduction out-of-court declarations. ment" announced in those cases into the much Craig speak question. did not latter different context out-of-court declarations recognized admissibility Coy, exceptions As we admitted under established lying hearsay statements concerns at the rule. raises White, 743-44, periphery of those U.S. at the Confrontation 112 S.Ct. at (cita designed (emphasis original) Clause is to address. There is thus L.Ed.2d at 860-61 omitted). "necessity require- importing no basis for tions *2 Krull, Moines,
Curt appellant. Des for Miller, Attorney General, Thomas J. Gor- Allen, General, Deputy Attorney don E. Miller-Todd, Kathrine S. Attorney Assistant General, Hunter, County Mike Attorney, and Ray Schober, Blase and Marcia Assistant County Attorneys, appellee for State. Conn, Center,
Susan Youth Law Des Moines, appellee for minor child Cook, Gotsdiner,
Murray B. Gotsdiner of McCarthy, Moines, McEnroe & ap- Des for pellee mother. HAYDEN, P.J.,
Heard and SACKETT CADY, JJ. CADY, Judge. appeal adjudication by
This is an from an court of a child need of assis- (CINA). review, tance our On we affirm. Stephanie daughter Troy is the Tammy. January She was born Troy Tammy divorced 1991 and Tam- my physical Stephanie. was awarded care of Troy Tammy are hostile to one another. July Tammy depart- contacted the (DHS) ment of human services that, returning after from a week of visitation fiance, Troy, Stephanie Tammy’s with told Todd, “daddy Troy” that had licked her reported crotch. Todd that when he was putting Stephanie pulled up to bed she her nightgown, spread legs apart, spread her her genitals apart and told him to lick it. Todd pretty” court clear and “isn’t it Stephanie said that reported sexually had been dence “daddy Troy” it. liked Troy, adjudicated abused police investigated report was pursuant to Iowa Code section to be a CINA Troy, Tammy, Stephanie, the DHS. 232.2(6)(d) (1993). Following *3 subsequent a Todd, Troy’s all interviewed. wife were and hearing, disposi- a court entered “daddy report that Stephanie continued to Tammy’s placing Stephanie tional order stated Troy” her butt or crotch. She licked custody of DHS. The supervision under the legs spread the like tickles.” She also it “felt entered, Troy and order was was no-contact pointed. anatomically and correct doll of an complete pro- to a sexual offender ordered suggested allegations and Troy denied the gram. family dog or had licked either appeal. Troy raises several issues on We Stephanie was that coached. separately. each address Testimony I. Alvarez investigation prompted the State to The assistance, of petition for child in need file a argues that the trial court The father first Troy adjudicatory hearing was held. an and report admitting the written erred stipulate parties to have that attempted Gladys Alvarez, of a clinical opinions social part a of passed a lie detector test as he young therapist who works with worker objected. police investigation. parties All alleged sexually have been children found lie tests were not The court detector by employed Alvarez abused. is the Des accepted indicia of generally as rehable Child Adolescence Guidance Moines any accept truthfulness refused therapist Stephanie’s and was follow- Center he detector dence of a test. ing report. the sexual abuse During the of the direct examina- course Randy Hunefeld testified about Detective Alvarez, a tion of offered letter into the State investiga- investigation, as did child abuse his written to an evidence Alvarez assistant tor McClellan. McClellan concluded Connie attorney county concerning therapy ses- allegations of were founded. sexual abuse objected Stephanie. with The father sions Gladys testified that worker Alvarez Social offer, asserting it contained inadmissible working ther- she had been with hearsay, opinions expertise beyond the of the testimony Stephanie’s apy. Her included proper and for witness which “no foundation” Troy” licking “daddy her. statements about laid, province been “invaded the of had report also a written The State offered jury.” ruling The court reserved its county attorney. Alvarez Alvarez to the la- ruling that a indicated written would be about the indicators ter testified various she part as a of final written made decision. trying reliability when looks for to assess report abuse. of a child’s of sexual She Alvarez later to the fac- testified various reliability of reliability concluded indicators she uses to tors assess sexu- children, in this present case. were and that al abuse accounts of she nothing doubt the of Ste- presented by Troy included The evidence objection No phanie’s statements. was Wells, testimony Gary deposition lodged questioning. to this line of professor psychology. Dr. Wehs conclud- specific to make a The court failed possible whether it was not to determine ed ruling on the offer letter in its of the written report- experienced in fact Stephanie had respond decision. father did not with a hearing Troy also incident. At the of- ed ruling. posttrial requesting motion report by into evidence written Dr. fered predicated Error not be on a The court sustained the State’s ob- Wehs. jections report ruling which admits unless a sub evidence prov- right party is opposing affect contained which invaded stantial timely jury. objection was made also found Dr. ed and ince of the The court objec gave specific grounds it unhelpful and no enunciated Wells’ tion, grounds ap- unless the were otherwise weight the determination. parent from the record. Iowa R.Evid. recognize We that the to be 103(a). objection generally spe- given must be province trial is within the enough cific to alert Moreover, the trial court to the expert the finder of fact. testi legal question raised, problem mony regarding and enable the truthfulness of a witness opposing any possible counsel to take correc- is weighing inadmissible “because the truth remedy tive action to the defect. State v. fulness of a victim is a matter reserved exclu Williams, sively 109-10 to the fact Myers, finder.” State v. (Iowa 1986). We also observe that a written of a witness case, timely In this the father ob prior constitutes a out-of-court jected to the offer of the letter written statement of the witness and is admissible Alvarez county attorney. assistant *4 only if the witness is available for cross ex objection specific enough was also to alert amination and one of the three criteria under the trial legal presented.1 court to the issue 801(d)(1) Iowa Rule of Evidence are met. However, ruling after the trial court reserved Dr. Wells was not available for cross-exami objection on the spe and failed to a include case, nation in this and none of the three ruling objection cific on the in its final deci 801(d)(1) circumstances set forth in rule were sion, required the father was to ask the court present. The trial court did in not err re ruling by filing for a a motion under Iowa Wells, jecting testimony the of Dr. in 179(b). Rule of Civil Procedure In re Estate sustaining objections the report. to his Claussen, (Iowa 381, 385-86 1992). ruling The failure to ask for a consti Polygraph a III. tutes waiver. Id. Test Results The any father also waived in error argues The father next that the trial permitting testify Alvarez to at trial about court erred in excluding evidence of the re the factors she used to the assess sults of a polygraph examination he submit of the pre child’s claim. This evidence was prior ted Polygraph to trial. evidence is objection. sented at trial without See Iowa in inadmissible the absence of a 103(a). R.Evid. A.D.L., stipulation by parties. the In re 497 (Iowa 178, App.1992). N.W.2d 180 The fa Testimony
II. Wells ther asks that exception we carve out an this in rule child in need of assistance actions The father next claims the trial court erred involving allegations of child sexual abuse in failing to admit report by the written Dr. against when the evidence Wells, accused is failing deposition and in his largely based on statements of the victim and testimony any weight. The trial court indi- experts who have interviewed the victim. gave cated it no to his X, 13, See In re 110 Idaho 714 P.2d 18 performed because Dr. Wells had no clinical (1986) (Polygraph results in admissible sexu years, work for 17 was not in involved al abuse case under Idaho Child Protective victims, detection or treatment of child was Act entirely” when evidence is “almost hear provided only portion a small of the evidence say opinion evidence from case, counselors in the Stephanie and never met with psychologists). See also McCormick on any reports. reviewed The court sustained (John ed., § Strong Evidence 206 W. 4th ed. objections questions of Dr. Wells 1992). sought opinion his whether truthful, objections por- was and sustained Wells, report
tions of the written of Dr. applicable The rules of evidence including opinion his required whether actu- to civil trials are to be followed in ally experienced the event. proceedings, except spe- CINA as otherwise general objection question 1. The pointed calls for reasons for exclusion must be out. “opinion case, and conclusion” province witness and this counsel for the father indicated that the jury” specifici- "invades the lacks beyond expertise went of the wit- Katz, ty and has no force or effect. Olson v. 201 therapist. ness as a (Iowa 1972). specific N.W.2d 482 Some justice inappropriate in sex- engaged act. her father had cifieally provided 232.96(3) (1993). allegations The could not § Our courts ual contact. child’s Iowa Code by physical un polygraph to admit results be either verified or discounted have refused reported because of their The the mat- der our rules of evidence examination. mother out, reliability. police. majority points Haldeman v. questionable See ter to the As the Inc., 98, 101-02 child, mother, Petroleum, police N.W.2d Total interviewed (Iowa 1985); juve father, fiance, Iowa R.Evid. 403. Iowa’s mother’s provision justice special makes for conduct nile act no wife. The father denied the father’s passed. Accord the admission of results. and took a he detector test that he trial not its ingly, prosecute find the court did abuse elected not to the father we State excluding the results. criminal a child in need of discretion action but petition filed. trial court
assistance testimony concerning Sufficiency considered of Evidence IV. State, child’s truthfulness introduced lastly The father asserts the rejected issue of child’s on the finding was clear and court erred there father, credibility not offered and did sexual abuse. We of the he detector test consider results L.K.S., review this claim de novo. In re attempted the father introduce. 819, 821 We are not *5 convincing found and trial court clear court, findings juvenile the bound of of sexual the father. dence abuse give weight unique of its but them because opportunity to hear and observe witness. urges, among father on other issues S.V., 666, App. In re 668 this, appeal, in cases such as the results of a I am he detector test should be considered. agree unique to of this inchned facts proving has of The State the burden protect situation and our to the child need convincing allegations clear and evi provide compelhng reason to allow 232.96(2) (1993). § dence. Iowa Code Clear limit- polygraph admission of evidence under convincing and evidence means no serious or closely ed cir- circumstances and tailored substantial doubt exists about correct only cumstances such as these where the ness of from evi the conclusions drawn of abuse on and evidence is based Stancel, 621, dence. v. Raim of I as to the truthfulness the child. (Iowa App.1983). polygraph is in- recognize evidence recognize polygraph I convincing find clear admissible. also
We and evi question- to be support adjudication. results are still determined of Stepha dence to reliability. suggest able I relating But their reliabili- nie was consistent events to others, ty greater par on or than the and was able to describe the is evidence sensa making factual experienced with court considered its tion the action. She was details, age some consideration. able recall used Moreover, appropriate language. we The focal issue is whether father en- court, findings to the gaged rights His the conduct. visitation who was able observe the various wit severely if should be restricted he did com- nesses. and, mit if charged the acts with he is AFFIRMED. so, necessary it is critical the child have the protection from him. SACKETT, Judge (dissenting). But, complaints if the have been child’s I dissent. coached, it is fabricated then the mother primary responsibility in this is fiance be in their Our case her who should limited Stephanie, nagging a child of a to the A second issue who was center access child. may lurking struggle parents bitter between divorced be to whether the child was her as who, years age, allegedly wrong at three and one-half abused but identified the and, so, may prob- allegedly reported perpetrator if there be a her mother’s fiance Prediction, Prevention, giving Guyer, lem with the mother not the child the and Clinical required protection. Expertise Custody in Child Cases in Which Allegations Child Sexual Abuse Have On one is the fact side the coin the chñd Made, Farmly Been Quarterly, Law Vol. allegedly detañed abuse to her mother’s XXV, No. 3 at Fall 1991. happened was to fiance week after it have repeated people it to who several considered, When aü these factors are I judge it credible. The trial found there was opinion am of the polygraph test results clear evidence the abuse oc- may greater bear a indication of curred. than the other considered. For the protection, feel, On the of the coin child’s I under other side is the fact these limited circumstances, polygraph this is a classification of case where false should be con- occur; reporting likely is the sidered. most only old, years chñd was three and one-half suggests polygraph The State this test was age easüy when a is chñd influenced and not a credible attorney test. father’s Furthermore, confused. evidence of others aüeged given it is and it the direction as to the of the chñd truthfulness has no of Department. the West Des Moines Police proven reliability; study sug recent confusing. record is Because I see the gested, particularly where the witness only protection, real ehñd’s issue is the I agenda, have an not such is reli would remand trial court to to the receive able. See Thomas Horner & M. Melvin J. giv- evidence of how the test was Prediction, Prevention, Guyer, and Clinical en, examiner, qualifications Expertise Custody in Child Cases in Which the results of the test.
Allegations Child Sexual Abuse Have I majority note the has resolved several Made, Family Quarterly, Been Law Vol. preservation issues on error and the State XXV, *6 No. 381 Fall Thomas M. suggested has in this record ease does Horner, professor psy a clinical assistant resolving not lend itself issue of the chology Infancy director of and Ear admission of a test under this ly Department Chfldhood Clinic in the special suggest pres- I circumstance. error Psychiatry University Michigan at controlling applying ervation is not where it Medicine, Guyer, School of and Melvin J. considering result in a court not professor psychology Depart of social in the gives guidance protect dence that in how it Psychiatry University ment of a chñd. Medicine, Michigan School of who holds a psychology Ph.D. in and a J.D. from the
University Michigan, point out their that, victim,
article as a the chñd is vulnera purpose
ble adult’s ulterior cloaked in
suggestive easüy chñd is tones and the led to
say things fit concep and do the adult’s
tion. Horner See Thomas M. & Melvin J.