In the Interest of W.R.C. , 489 N.W.2d 40 ( 1992 )

HAYDEN, Presiding Judge.

The child, W.C., thirteen years old at the time of the incident, appeals an adjudication which determined he is a child in need of assistance as defined by Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(f).

On November 9, 1990, the State filed a CINA petition and a petition for adjudication of delinquency. The juvenile court subsequently granted the State’s motion to dismiss the delinquency petition.

A ruling regarding the CINA adjudication was entered on March 13, 1991. The juvenile court found W.C. to be a child in need of assistance. The court found on October 13, 1990, W.C. enticed S.M., a five-year-old female, into a field adjacent to the apartment complex where W.C. and S.M. lived. Once in the field, W.C. pulled down S.M.’s pants and underwear, as well as his own pants and underwear, and forced S.M. to lay on top of him. W.C. placed his hands on S.M.’s hips and moved her in an up and down motion. The court also found a similar incident had occurred with another female child in late summer or early fall 1990.

W.C. appeals, contending there is no authority under Iowa law to find a child in need of assistance based solely upon a delinquent act. Therefore, W.C. argues his motion to dismiss should have been sustained. W.C. also contends the juvenile court erred in finding the State had met its burden of proof because S.M. was not a credible witness.

In CINA proceedings we review the evidence de novo. In re J.R.H., 358 N.W.2d 311, 317 (Iowa 1984). Of paramount concern is the welfare and best interests of the child. In re D.L., 401 N.W.2d 201, 202 (Iowa App.1986).

W.C. first asserts a child cannot be found in need of assistance based upon a delinquent act. W.C. neither cited authority nor made an argument in his brief to support his assertion. “Failure in the brief ... to argue or to cite authority in support of an issue may be deemed waiver of that issue.” Iowa R.App.P. 14(a)(3). Even assuming W.C. preserved error of this issue, we find it to be without merit. Here, both a CINA petition and a delinquency petition were filed by the State. The State chose to proceed in the alternative of a child in need of assistance and thus dismissed the delinquency petition. Proceeding in this manner required the State to show by clear and convincing evidence one of the statutory grounds enumerated in Iowa Code section 232.2(6). It is irrelevant that the same facts might also have supported a delinquency adjudication. A child can be adjudicated in need of assistance based upon a delinquent act if the facts surrounding the delinquent act establish by clear and convincing evidence one of the statutory grounds enumerated in section 232.2(6).

We must therefore determine whether the State showed by clear and convincing evidence W.C. was a child in need of assistance as defined in sections 232.2(6)(c)(2) and 232.2(6)(f) of the Iowa Code. Section 232,-2(6)(c)(2) defines a child in need of assistance as “an unmarried child ... [w]ho has suffered or is imminently likely to suffer harmful effects as a result of the ... failure of the child’s parent ... to exercise a reasonable degree of care in supervising the child.” Section 232.2(6)(f) defines a child in need of assistance as “an unmarried child ... who is in need of treatment to cure, alleviate, or prevent serious physical injury or illness and whose parent ... is unwilling or unable to provide such treatment.”

Our review of the record reveals S.M.’s report of the incident remained generally consistent. S.M. alleged W.C. enticed her into the field, he pulled down his pants and underwear, and pulled down her pants and underwear. W.C. then had S.M. lay on top of him while he grabbed her hips and moved her in an up and down motion. There was genital to genital contact. Although S.M.’s description of the genital to genital contact varied somewhat on different occasions, the remainder of her narrative was consistent. The juvenile court found S.M.’s recitation of events to be consistent. Although we are not bound by the findings of the juvenile court, we give weight to the juvenile court’s findings of fact because that court has had the unique opportunity to hear and observe the witnesses first hand. In re S. V., 395 N.W.2d 666, 668 (Iowa App.1986). We find no reason to dispute the juvenile court’s finding.

The record also reveals a similar incident had previously occurred with another female child who was six years old. W.C.’s mother had been informed of that incident, yet she failed to take any steps to seek counseling or appropriate help for W.C.

We hold there is clear and convincing evidence establishing W.C. is a child in need of assistance pursuant to Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(f). We affirm.

AFFIRMED.

HABHAB, J., concurs. SACKETT, J., dissents.