IN THE COURT OF APPEALS OF IOWA

No. 21-0151

Filed June 16, 2021

IN THE INTEREST OF S.K. and N.K.,

Minor Children,

S.K., Father,

Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Monona County, Mark C. Cord III, 

District Associate Judge.

A father appeals the adjudication of his children as children in need of 

assistance. AFFIRMED.

Molly Vakulskas Joly of Vakulskas Law Firm, PC, Sioux City, for appellant 

father.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney 

General, for appellee State.

Michelle M. Hynes of Juvenile Law Center, Sioux City, attorney and 

guardian ad litem for minor children.

Considered by Vaitheswaran, P.J., Ahlers, J., and Gamble, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2021).
2

GAMBLE, Senior Judge.

A father appeals from the adjudication of his two children, S.K. and N.K., as 

children in need of assistance (CINA).

I. Background Facts

The Iowa Department of Human Services (DHS) became involved with this 

family after S.K. stated the father sexually abused her while N.K. slept nearby. The 

juvenile court ordered S.K.’s temporary removal from the familial home. Following 

removal, S.K. went to her paternal great-grandmother’s home. Then, the father 

went to the great-grandmother’s home and retrieved S.K.’s cell phone and her 

password. The juvenile court granted the State’s request for temporary removal 

of N.K. two months later.

When preparing for the adjudicatory hearing, the father filed his witness and 

exhibit list. The witness list included “[a]ny technician at Computer Forensic 

Resources.” The father had sent S.K.’s phone to Computer Forensic Resources 

for evaluation. After the father refused the State’s prior request for production of 

the phone and any report generated by the expert, the State filed a motion to 

compel. The juvenile court granted the State’s motion and ordered the father to 

produce the phone and any report generated. The father did not comply, so the 

State filed a second motion to compel. The court ordered the father to produce 

the phone and report.1 The father filed an amended witness list, which again listed 

“[a]ny technician at Computer Forensic Resources.”

 

1 The court ordered the father to produce by January 16, 2020 at 12:00 p.m. 

Should he not produce, the court directed the father to appear before the court at 

1:45 p.m. the same day. Because we find no reference to the father appearing 

before the court that day, and we do find subsequent references to the father 
3

Following a two-day adjudicatory hearing, the court adjudicated S.K. CINA, 

pursuant to Iowa Code section 232.2(6)(b), (c)(1), (c)(2), (d), and (l) (2019), and 

adjudicated N.K. CINA, pursuant to section 232.2(6)(c)(1), (2). The court then held 

a dispositional hearing. The dispositional order provided for visitation between the 

children and the father in a supervised or therapeutic setting at the discretion of 

DHS, the children’s guardian ad litem (GAL) and attorney, and therapists. The 

father appeals following the dispositional order.2

II. Standard of Review

CINA proceedings are reviewed de novo. In re J.S., 846 N.W.2d 36, 40 

(Iowa 2014). “[W]e are not bound by the juvenile court’s fact findings; however, 

we do give them weight. Our primary concern is the children’s best interests.” Id.

(citation omitted). “In determining the best interests of the child[ren], ‘we look to 

the parent[’s] past performance because it may indicate the quality of care the 

parent is capable of providing in the future.’” In re L.H., 904 N.W.2d 145, 149 (Iowa 

2017) (second alteration in original) (quoting In re J.E., 723 N.W.2d 793, 798 (Iowa 

2006)). 

With respect to evidentiary issues arising within CINA proceedings, we 

review for an abuse of discretion. In re L.R., No. 13-0713, 2013 WL 4504930, at 

*6 (Iowa Ct. App. Aug. 21, 2013).

 

producing the phone and report in a later motion in limine, we assume the father 

produced.

2 The father appeals following entry of the dispositional order, which is when the 

adjudication became final for appeal purposes. See In re Long, 313 N.W.2d 473, 

475 (Iowa 1981).
4

III. Discussion

A. Visitation

The father first challenges the visitation provision of the dispositional order

concerning N.K.

3

 The dispositional order stated, “[C]ontact between [N.K.], [S.K.] 

and their father . . . shall be left to the discretion of [DHS], the children’s 

[GAL]/attorney and their respective therapist to be only in a supervised or 

therapeutic setting.” The order went on to clarify, 

[DHS] shall make all reasonable efforts to facilitate visitation between 

the parents and [N.K.], relying, in part, on the analysis and 

conclusions of [N.K.]’s therapist(s). “To establish reasonable efforts, 

DHS must either present a definitive plan with the ultimate goal of 

visitation or make a showing that visitation is not in the children’s best 

interests.”

(Citation omitted.) The father contends the juvenile court “improperly delegated its 

power to make visitation decisions to the discretion of DHS, in consultation with 

the GAL and the child’s therapist.” Cf. In re Marriage of Stephens, 810 N.W.2d 

523, 530 (Iowa Ct. App. Feb. 15, 2012) (recognizing only a district court may 

modify a custody or visitation order). We disagree. The father is correct that “[a] 

court may not delegate this power to a third party.” In re A.F., No. 17-0919, 2017 

WL 3525327, at *2 (Iowa Ct. App. Aug. 16, 2017). However, the juvenile court did 

not delegate its power. See id. Instead, it “made the custody and care 

determination and afforded the agency discretion to implement the court’s decision 

in the best interest of the child. This was a permissible exercise of the juvenile 

 

3 The father also challenges the visitation provision contained in prior interlocutory

orders. However, with respect to the prior orders, the issues are moot so we do 

not address them. Cf. In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994); In re C.G., 

No. 10-0062, 2010 WL 2757206, at *7 (Iowa Ct. App. July 14, 2010).
5

court’s authority.” Id. (collecting cases). Moreover, because the juvenile court 

afforded DHS discretion to regulate visitation, it will be able to increase visitation, 

should conditions improve, more quickly than it could absent the discretion granted 

to it by the juvenile court. Cf. In re S.M., No. 09-0293, 2009 WL 1212768, at *1–2 

(Iowa Ct. App. May 6, 2009). The juvenile court retained oversight by requiring 

DHS to either present a plan with a goal of visitation or show visitation is not in the 

best interest of N.K. in order to establish reasonable efforts. And should the father 

feel DHS is arbitrarily withholding visitation in the future, he is not without recourse. 

He should alert the juvenile court and argue DHS is failing to provide reasonable 

efforts toward reunification. See In re L.M., 904 N.W.2d 835, 839–40 (Iowa 2017);

In re K.L.P., No. 15-1371, 2015 WL 6507840, at *4–5 (Iowa Ct. App. Oct. 28, 2015).

To the extent the father argues the “juvenile court err[ed] when it found that 

it was in the best interests of N.K. that no supervised visitation with [the f]ather be 

ordered, and that the decision regarding visitation should remain at the discretion 

of DHS, in consultation with the GAL and the child’s therapist,” we find his 

argument to be without merit. The dispositional order specifically ordered 

supervised or therapeutic visitation between N.K. and the father.4 And we agree 

that determining and executing the frequency and finer points of visitation was best 

left for DHS in consultation with the GAL and therapist because those parties have 

the most up-to-date and pertinent information as to how visitation could be 

 

4 To the extent the father challenges visitation determination in prior interlocutory

orders, the issues are moot, and we do not address them. Cf. A.M.H., 516 N.W.2d 

at 871; C.G., 2010 WL 2757206, at *7.
6

successfully completed for this family. Cf. In re S.J., 620 N.W.2d 522, 525 (Iowa 

2000) (holding services should be tailored to each case’s unique circumstances).

So we do not disturb the dispositional order’s visitation provision.

B. Discovery Issue

For his next claim, the father claims the juvenile court abused its discretion 

by ordering the father to produce S.K.’s phone and the forensic expert’s report 

relating to the phone.5 The father asserts the juvenile court violated his right to 

privacy in the phone when it compelled him to produce it. He also asserts the data 

stored on the phone and the forensic report amounts to privileged work product.

First, we note the father’s claim the court violated his right to privacy by 

compelling production of the phone is without merit. While the father purchased 

the phone and paid for the service, he provided it to S.K. for her exclusive use. 

The phone contained S.K.’s communications, not the father’s, so the father had no 

expectation of privacy in the phone.6 Cf. State v. Tyler, 867 N.W.2d 136, 167 (Iowa 

2015) (noting for a person to have a legitimate expectation of privacy, the person 

must establish a subjective expectation of privacy that is objectively reasonable).

Further, the phone is a tangible thing, and the data stored on the phone is 

electronically stored information. Both the phone and the data are subject to 

discovery pursuant to Iowa Rule of Civil Procedure 1.512. See Iowa Ct. R. 8.3 

 

5 The father previously sought interlocutory review of the juvenile court’s order, 

which was denied by a single justice order and confirmed in a three-justice review 

order.

6 The father refers to the phone as his phone in his petition on appeal. However, 

at the adjudicatory hearing, the father referred to the phone as “[S.K.]’s phone.” 

The father’s phone was seized by law enforcement following his arrest for sexual 

abuse.
7

(“Although informal discovery methods are preferred, Iowa R. Civ. P. divisions V 

and VII, governing discovery, depositions and perpetuation of testimony, shall 

apply to proceedings under Iowa Code chapter 232, divisions III and IV, where not 

otherwise inconsistent with these rules or applicable statutes.”); cf. 11 Barry A 

Lindahl, Iowa Practice Series: Civil & Appellate Procedure § 24:26 (May 2021 

update) (explaining electronically stored information is discoverable so long as it is 

relevant to the pending action and not otherwise privileged). The data stored on 

the phone was not prepared in anticipation of litigation by the father, his lawyer, or 

his experts. The electronically stored information on the phone is not protected 

from discovery as work product under Iowa Rule of Civil Procedure 1.503(3). See

Iowa Ct. R. 8.3 (applying division V of the Iowa Rules of Civil Procedure to juvenile 

cases); cf. Iowa Ins. Inst. v. Core Grp. Of Iowa Ass’n for Justice, 867 N.W.2d 58, 

70 (Iowa 2015) (“To constitute work product, something must be (1) a document 

or tangible thing, (2) prepared in anticipation of litigation, and (3) prepared by or 

for another party or by or for that party's representative.”).

The forensic report was prepared by the father’s expert in anticipation of 

litigation. However, the father made overtures throughout these proceedings 

suggesting he intended to call the expert who created the report to testify or offer 

the report itself as an exhibit. For example, two of his witness lists identified a 

“technician at Computer Forensic Resources” as a witness, and his motion in 

limine requested he “be allowed to offer any contents of the phone or report as 

evidence at the hearing.” Yet, at other times, the father suggested he would not 

call a witness from Computer Forensic Resources. So we agree with the juvenile 

court that the father was attempting to “present and hide the ball” in effort to avoid 
8

or delay disclosure. And despite the father’s contention that the report amounted 

to privileged work product, we view the report as that of an expert expected to be 

called as a witness making it discoverable. See Iowa R. Civ. P. 1.508(1)(b) 

(permitting discovery of reports made by an expert expected to testify); cf. Iowa 

Ins. Isnt., 867 N.W.2d at 71 (recognizing surveillance video “loses the status of 

protected work product once a determination is made that the surveillance will be 

used at trial”). So we conclude the court did not abuse its discretion in ordering 

the father to produce the phone and the report.

Moreover, the father is not entitled to any relief because he could not 

establish any resulting prejudice from the disclosures. See In re A.S., 743 N.W.2d 

865, 869 (Iowa Ct. App. 2007) (noting “even the erroneous admission of . . . 

evidence will not result in reversal unless it is prejudicial”). The State did not use 

any of the data from S.K.’s cell phone at the trial. No party introduced the expert’s 

report. Only the father introduced evidence from S.K.’s phone. So he was not 

prejudiced by the disclosures and is entitled to no relief.

C. Statutory Grounds for Adjudication

Finally, the father challenges the statutory grounds authorizing adjudication 

of S.K. and N.K. However, he makes only perfunctory and generalized statements 

to challenge the grounds supporting adjudication.7 The State argues the father 

waived his challenges to the statutory grounds by failing to adequately develop his 

 

7 With respect to S.K., the father argues, “The [c]ourt failed to take into account 

S.K. adding additional facts to her allegations, as well as lying in the forensic 

interview regarding sending nude pictures, and numerous instances of S.K. lying 

under oath.” With respect to N.K., the father argues, “The State failed to prove 

either subsection with regards to adjudication of N.K.”
9

arguments on appeal. We agree and conclude the father waived his claims as to 

N.K. See In re Z.I., No. 20-1473, 2021 WL 811130, at *1 n.1 (Iowa Ct. App. Mar. 

3, 2021); In re A.D., No. 20-1192, 2020 WL 7022393, at *3 n.5 (Iowa Ct. App. Nov. 

30, 2020); In re W.N., No. 20-1099, 2020 WL 7021682, at *2 n.4 (Iowa Ct. App. 

Nov. 30, 2020); In re C.N., No. 19-1861, 2020 WL 567283, at *1 (Iowa Ct. App. 

Feb. 5, 2020); In re O.B., No. 18-1971, 2019 WL 1294456, at *2 (Iowa Ct. App. 

Mar. 20, 2019).

With respect to S.K., we find the father sufficiently developed an argument 

challenging S.K.’s adjudication. He argues, “The [c]ourt failed to take into account

S.K. adding additional facts to her allegations, as well as lying in the forensic 

interview regarding sending nude pictures, and numerous instances of S.K. lying 

under oath.” Essentially, he claims S.K.’s words cannot be trusted to serve the 

basis for her adjudication as CINA. 

The juvenile court adjudicated S.K. CINA on five grounds: (1) under section 

232.2(6)(b) as a child “[w]hose parent . . . has physically abused or neglected the 

child, or is imminently likely to abuse or neglect the child”; (2) under 

section 232.2(6)(c)(1) as a child “[w]ho has suffered or is imminently likely to suffer 

the harmful effects as a result of . . . [m]ental injury caused by the acts of the child’s 

parent”; (3) under section 232.2(6)(c)(2) as a child “[w]ho has suffered or is 

imminently likely to suffer the harmful effects as a result of . . . [t]he failure of the 

child’s parent . . . to exercise a reasonable degree of care in supervising the child”;

(4) under section 232.2(6)(d) as a child “[w]ho has been, or is imminently likely to 

be, sexually abused by the child’s parent”; and (5) under section 232.2(6)(l) as a 
10

child “[w]ho for good cause desires to have the child’s parents relieved of the child’s 

care and custody.”

The juvenile court made the following relevant findings:

The court FINDS State’s evidence and the testimony of 

witnesses supporting [S.K.]’s removal and adjudication as credible 

concerning the incident when she was 13 years old. Although 

[S.K.]’s initial statements and deposition statements contain certain

inconsistencies, the court notes a common thread throughout that 

cannot be ignored. [S.K.] relates the incident details about location 

and circumstances surrounding the abuse. She describes how she 

was held down, when her father placed his penis in her vagina, how 

the semen felt, and how she was to clean off. A child’s recollection 

of traumatic incidents from several years prior will not contain a 

photographic recreation of the details. However, the detail and 

explicit description [S.K.] does provide to the trained hospitalemployed [Child Advocacy Center] [(CAC)] investigator, to the [child 

protective services] [(CPS)] investigator, and in her depositions

regarding the sexual acts is significant. See [In re] E.H. III, 578

N.W.2d [243,] 246 [(Iowa 1998)] (probative value of CAC interview 

substantially outweighs danger of unfair prejudice to father); Iowa 

Code section 232.96(6). The amount of detail and description 

provided by [S.K.] support a finding that she was sexually abused at 

the age of 13. Sexual talk between [S.K.] and a paramour and her 

friends do not alter the court’s findings. The sharing of information 

and concerns with peers and associates leading up to the report to

law enforcement do not negate the significance of the accusation.

The Department of Human Services Child Protection Abuse 

Assessment Summary concerning [S.K.], dated March 25, 2019, 

conducted and prepared by a trained DHS protective worker was 

founded as to the allegation of sexual abuse, sexual abuse third

degree, with [the father] as the responsible party. CPS investigative 

findings and CAC interviews are entitled to substantial weight. 

Although [S.K.] did not testify, the court has reviewed the written 

reports from DHS who interviewed her, the written reports from a 

child protective investigator, the written reports from CAC, and 

[S.K.]’s depositions. Compare to In [re] A.D.L., 497 N.W.2d [178,]

179 [(Iowa Ct. App. 1992)]. The CAC and DHS reports are credible 

and substantiated.

We give deference to the juvenile court’s credibility findings. See In re A.M., 

84 N.W.2d 100, 110 (Iowa 2014) (noting we give weight to the juvenile court’s 

credibility determinations). The juvenile court found S.K. and those who 
11

interviewed her to be credible even when considering inconsistencies in her 

recollection of events over time. The core of S.K.’s claims remained the same

throughout a Mercy CAC interview, a CPS abuse assessment, and her 

depositions. S.K consistently said that when she was thirteen years old, the father 

held her down, had vaginal intercourse with her, “finished” on her stomach, and 

told her to clean it off with a towel. So like the juvenile court, we find S.K. to be 

credible. The father points out S.K. lied about sending someone a nude photo. 

But that is a collateral issue. And we will not assume S.K. lied about the abuse 

simply because she lied about an unrelated issue.

Because the father only challenged S.K.’s adjudication as CINA on 

credibility grounds and we find her credible, we find the all grounds authorizing 

S.K.’s adjudication satisfied.

IV. Conclusion

The juvenile court did not delegate its power to determine visitation. 

Permitting DHS to establish the terms of visitation in consultation with the GAL and 

children’s therapists is in N.K.’s best interest. The juvenile court did not abuse its 

discretion by ordering the father to produce S.K.’s phone or associated expert 

report. The father waived his challenge to the statutory grounds authorizing 

adjudication of N.K. We defer to the juvenile court and find S.K. credible and affirm 

her adjudication as CINA under section 232.2(6)(b), (c)(1), (c)(2), (d), and (l).

AFFIRMED.