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IN THE COURT OF APPEALS OF IOWA No. 8-955 / 08-1520 Filed December 31, 2008 IN THE INTEREST OF A.R., J.R., and P.R., Minor Children, P.R., Minor Child, Appellant, J.L.R., Mother, Appellant, J.O.R., Father, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge.

A mother, father, and minor child appeal separately from juvenile court removal, adjudicatory, and dispositional orders. AFFIRMED ON ALL APPEALS.

Lynn C.H. Poschner of Borseth Law Offices, Altoona, for appellant-minor child. Ronald R. Reiper, Des Moines, for appellant-mother. Trever Hook of Hook Law Firm, West Des Moines, for appellant-father. Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John P. Sarcone, County Attorney, and Andrea Vitzthum, Assistant County Attorney, for appellee.

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John Jellineck, Des Moines, for J.R. Christine Bisignano, Windsor Heights, guardian ad litem for J.R. Alexandra M. Nelissen of Nelissen & Juckette, P.C., Des Moines, guardian ad litem for P.R. Nicole Garbis Nolan, guardian ad litem for A.R.

Considered by Vogel, P.J., and Mahan and Miller, JJ.

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MILLER, J. June and Jeffrey O. are the parents of eighteen-year-old James, seventeen-year-old Ashley, thirteen-year-old Paige, and eleven-year-old Jeffrey D. June, Jeffrey O., and Paige appeal separately from juvenile court orders removing Paige and Jeffrey D. from June and Jeffrey O.s physical custody, adjudicating them as children in need of assistance (CINA), and placing them in the temporary legal custody of the Iowa Department of Human Services (DHS) for placement in foster care.1 I. BACKGROUND FACTS AND PROCEEDINGS. James and Ashley were born during Junes first marriage to their biological father, Richard. After an acrimonious divorce from Richard, June

married Jeffrey O. and gave birth to two children, Paige and Jeffrey D. Jeffrey O. adopted James and Ashley in 1999 following Richards voluntary termination of his parental rights. In mid-July 2005, June called Richard sobbing and asked him to meet her at a park. When he arrived at the park, June informed him that Ashley had told her that Jeffrey O. was sexually abusing her. Richard instructed her to report the abuse to the police, but June refused because she was afraid Jeffrey O. would "throw [her] out and take [her] kids." Richard reported the abuse to the police the following day. Later that same day, a detective and a representative from DHS interviewed Ashley, June, and Jeffrey O. at their home. Outside the presence of

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We note that neither June nor Jeffrey O. appeal the removal, adjudication, or disposition of Ashley. We also note that although James was seventeen when the CINA proceedings were initiated, the State chose not to file a petition alleging he was a CINA.

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her parents, Ashley denied that Jeffrey O. had sexually abused her. June also denied any knowledge of Ashley being sexually abused by Jeffrey O. A

subsequent child protective assessment resulted in an unfounded child abuse report. In March 2008, Ashleys cousin and his girlfriend brought her to the Polk County Sheriffs Office. She told the police that Jeffrey O. had been sexually abusing her since she was eleven years old. She stated "it started out that he would rub her with oil and insert his fingers into her." He would also masturbate in front of her and fondle her while doing so. She thought such behavior was normal at the time. Ashley stated that in 2005, Jeffrey O. admitted to her "that what he was doing was wrong." She reported the abuse to June, who told her that her allegations "would result in the family splitting up." Jeffrey O. threatened to kill himself "or get [Ashley] kicked out of the house" if she told anyone about the abuse. When the allegations were investigated by the police and DHS in 2005, Ashley was "scared and tried to blame everything on her real dad so her step-dad would not get in trouble." The sexual abuse escalated after the 2005 investigation. Ashley told the police that Jeffrey O. began forcing her to engage in oral sex and sexual intercourse with him. She said that most of their encounters occurred in the computer room of the familys home next door to her brother Jamess room. According to Ashley, Jeffrey O. kept condoms in the ceiling tiles in the computer room. He would then have her put the used condoms in the "burn barrel." On

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one occasion after they had sexual intercourse in the f all of 2007, he "took her on a ride and threw the condom in the ditch." June denied Ashleys allegations when she was informed of them by the police. She told them "that Ashley is prone to lie" and "that she has asked Ashley a million and 10 times since the accusations were made if your dad has ever touched you and she told me no." She wanted Ashley to submit to medical and polygraph examinations. June did not want to see Ashley and contemplated "sign[ing] her over to DHS ,,right now." Ashley, Paige, and Jeffrey D. were removed from their parents physical custody after Ashleys report to the police. Ashley was placed in the home of a member of her church while Paige and Jeffrey D. were placed with their maternal grandmother. An order was entered prohibiting Jeffrey O. from having any

contact with his minor children. Several days after Ashley went to the police station, a detective had her take him to the location where she thought Jeffrey O. had thrown out the used condom. The detective was "about 50 yards from Ashley . . . when [he] saw Ashley jump up and down and yell, ,,I found it. I found it." The condom was covered with snow and dirt. Subsequent DNA testing revealed that Jeffrey O.s DNA was present on the condom. Jeffrey O. was arrested and charged with sexual abuse in the third degree. June posted bond for him, and he returned to live in the familys home. A combined removal and adjudicatory hearing was held over the course of several months. After hearing many hours of testimony, the juvenile court

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entered detailed orders in August 2008 finding clear and convincing evidence existed supporting the childrens removal from their parents physical custody and adjudicating them as children in need of assistance pursuant to Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(d) (2007). In September 2008, the court entered a dispositional order continuing the out-of-home placement of Ashley and modifying the placement of Paige and Jeffrey D. by removing them from their maternal grandmothers home and placing them in the temporary legal custody of DHS for placement in family foster care. June, Jeffrey O., and Paige each

appeal the juvenile courts removal, adjudicatory, and dispositional orders. 2 II. SCOPE AND STANDARDS OF REVIEW. Our review of child in need of assistance proceedings is de novo. We review both the facts and the law, and we adjudicate rights anew. Although we give weight to the juvenile courts factual findings, we are not bound by them. As in all juvenile proceedings, our fundamental concern is the best interests of the child. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001) (citations omitted). III. MERITS. A. Removal.

The appellants first challenge the issuance of the ex parte removal order and the subsequent order affirming the removal of Paige and Jeffrey D. from their parents home. We need not and do not address their challenge to these orders because custody of the children was placed with DHS under the juvenile courts subsequent dispositional order. Any error in granting the removal order cannot

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Although June, Jeffrey O., and Paige filed separate appeals from the juvenile courts orders, they raise the same issues on appeal with the exception that the issues raised by Paige concern only herself while the issues raised by June and Jeffrey O. concern both Paige and Jeffrey D. We will accordingly address their issues together.

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now be remedied. In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994). "We cannot go back in time and restore custody based on alleged errors in the initial removal order." Id. B. Adjudication.

The appellants next claim the record does not contain clear and convincing evidence that Paige and Jeffrey D. are CINA as defined in sections 232.2(6)(c)(2) or 232.2(6)(d). The State bears the burden of proving CINA

allegations by clear and convincing evidence. Iowa Code

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