IN THE INTEREST OF T.P. and A.T. , Minor Children, S.P., Mother, Appellant, T.P., Minor Child, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-589 / 08-0908
Filed August 27, 2008
IN THE INTEREST OF T.P. and A.T.,
Minor Children,
S.P., Mother,
Appellant,
T.P., Minor Child,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joe E. Smith, District
Associate Judge.
A mother and child appeal from the district court’s order terminating the
mother’s parental rights to her daughters. AFFIRMED.
Thomas Graves, Des Moines, for appellant mother.
Nichole Mordini of Mordini Law Office, Des Moines, for appellant minor
child.
Andrea Flanagan of Sporer & Ilic, P.C., for appellee father of T.P.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Chris Gonzales,
Assistant County Attorney, for appellee State.
Michael Bandstra, Des Moines, guardian ad litem for minor children.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
2
VOGEL, J.
Sherri, the mother of Angelina (born in 2003) and Taylar (born in 1994),
appeals from the district court order terminating her parental rights to the two
girls. Taylar separately appeals. We affirm.
I. Background Facts and Proceedings
In January 2005, Angelina and Taylar were removed from Sherri’s custody
due to Sherri’s methamphetamine use, which resulted in a founded child abuse
assessment of denial of critical care. Subsequently, Angelina and Taylar were
adjudicated to be children in need of assistance pursuant to Iowa Code sections
232.2(6)(b), (c)(2), & (n) (2005). The children were returned to Sherri’s care in
May 2005, but were once again removed in September 2005 and have remained
out of Sherri’s care since that time.
Although Sherri was offered numerous services, her participation was
sporadic and she did not follow through with substance abuse treatment. In June
2006, the State filed a petition seeking to terminate Sherri’s parental rights. In
August 2006, following the close of evidence in the termination hearing, the
district court declined to terminate Sherri’s parental rights. It granted Sherri an
additional six months to work toward reunification, partly to give her time to
address her recent diagnosis of bipolar disorder, stating:
At this time, I conclude it is in the best interests of the children to
allow [Sherri] a final chance to demonstrate that treatment of her
mental illness will allow her to overcome the deficiencies in her
parenting that have been demonstrated in this case.
Unfortunately, Sherri soon stopped participating in mental health counseling and
did not comply with the recommended substance abuse treatment.
3
In May 2007, following the second termination hearing, the district court
terminated Sherri’s parental rights to Angelina and Taylar.
Sherri appealed
asserting the district court erred in allowing the same attorney, Mike Bandstra, to
serve both as Taylar’s attorney and guardian ad litem. She argued Bandstra
could not serve in that dual capacity as Taylar’s preference to be returned to
Sherri’s custody conflicted with Bandstra’s recommendation that Sherri’s parental
rights be terminated. This court examined Bandstra’s dual role as attorney and
guardian ad litem for Taylar. We found that although an attorney may act in both
capacities, in this case, Taylar’s age and maturity necessitated separate counsel
be appointed to give voice to her wishes apart from the position advocated by her
guardian ad litem. See Iowa Code § 232.116(3)(b) (2007) (stating that a court
need not terminate the parent-child relationship if the child is over ten years of
age and objects to the termination).
We remanded for the district court “to
appoint a separate attorney for Taylar” and to hold a new hearing on the petition
to terminate Sherri’s parental rights. In re A.T., 744 N.W.2d 657, 665-66 (Iowa
Ct. App. 2007).
Following remand, Nicole Mordini was appointed as Taylor’s attorney.
Bandstra continued as guardian ad litem for Taylar and as attorney and guardian
ad litem for Angelina. Upon Sherri’s application, a hearing was then held to
determine whether visitation should resume. In March 2008, the district court
ordered that semi-supervised visitation resume between Sherri and Taylar.
However, in light of the case workers’ and Taylar’s therapist’s concerns regarding
Sherri’s inappropriate behavior and statements during visits, only supervised
visitation resumed between Sherri and Taylar. In April 2008, a third termination
4
of parental rights hearing was held, and in May 2008, the district court terminated
Sherri’s parental rights to Angelina and Taylar pursuant to Iowa Code sections
232.116(1)(d), (f), and (l) (2007).1 Sherri and Taylar separately appeal from the
district court’s order.
II. Standard of Review
We review termination of parental rights cases de novo. In re J.E., 723
N.W.2d 793, 798 (Iowa 2006). We give weight to the factual findings of the
district court, especially when considering the credibility of witnesses, but are not
bound by them.2 Id.; Iowa R. App. P. 6.14(6)(g). The grounds for termination
must be proved by clear and convincing evidence. J.E., 723 N.W.2d at 798. Our
primary concern is always the best interests of the children. Id.; Iowa R. App. P.
6.14(6)(o).
In seeking out those best interests, we look to the child’s longrange as well as immediate interests. This requires considering
what the future holds for the child if returned to the parents. When
making this decision, we look to the parents’ past performance
because it may indicate the quality of care the parent is capable of
providing in the future.
J.E., 723 N.W.2d at 798 (quoting In re C.K., 558 N.W.2d 170, 172 (Iowa 1997)).
1
The juvenile court also terminated Taylar’s father’s and Angelina’s father’s parental
rights. Their rights are not at issue in this appeal.
2
Sherri also claims the district court improperly relied on her body language during the
hearing. However, we find no error as the district court makes credibility assessments
based on a variety of common sense observations. Long v. Long, 255 N.W.2d 140, 143
(Iowa 1977) (discussing that such things as the “demeanor of the parties, candor or lack
thereof on the part of the witnesses, attitudes, real and assumed, and apparent motives
of those testifying, are all entitled to much weight in making findings”).
5
III. Best Interests of the Children
A. Sherri’s Appeal
Sherri claims that termination of her parental rights was not in the best
interests of Angelina and Taylar.3 In January 2005, the family became involved
with the Iowa Department of Human Services (DHS) due to Sherri’s
methamphetamine use. Sherri was offered numerous services, including inhome services, mental health counseling, substance abuse evaluation,
substance abuse treatment, drug testing, and supervised visitation. However,
Sherri’s participation in these services was sporadic, as she has continued to
struggle with her drug addiction and has not followed through with appropriate
treatment. Sherri has not been able to maintain independent or stable housing
arrangements for nearly two years. Additionally, Sherri has not addressed her
mental health issues, nor has she been forthcoming with DHS workers as to
critical information throughout the case.
Prior to the first termination hearing in August 2006, Sherri tested positive
for methamphetamine, refused many required drug tests, and was discharged
unsuccessfully from outpatient substance abuse treatment.
After Sherri was
granted an additional six months to work towards reunification, she stopped
attending mental health counseling, was jailed twice,4 and admitted to using
methamphetamine with her oldest daughter, who is not a party to this case.
3
Sherri raises a claim asserting insufficiency of the evidence, but her argument is
predominately that termination is not in the best interests of her children. She does not
allege that the State failed to prove by clear and convincing evidence any of the
elements under Iowa Code sections 232.116(1)(d),(f) or (l) (2005).
4
Throughout the pendency of this case, Sherri was involved in criminal activities,
resulting convictions and probation violations.
6
Additionally, Sherri did not enter a residential treatment facility until just prior to
the May 2007 hearing and was unsuccessfully discharged shortly thereafter.
In May 2007, the district court terminated Sherri’s parental rights. Sherri
appealed the district court’s order, and while her appeal was pending, she
entered into and was unsuccessfully discharged from two additional residential
programs.5 She was also offered visitation with Angelina and Taylar as long as
she sought treatment in a residential facility, but as she did not comply, visitation
was denied. Subsequently, the case was remanded to the district court and
Sherri resumed supervised visitation with Taylar. Finally, in April 2008, five days
before the third termination hearing, Sherri entered into a residential treatment
program for the fourth time in approximately one year.
Angelina and Taylar have been out of Sherri’s custody for nearly three
years. Sherri claims she has been clean from drugs since February 2007, but
that is not bore out by the record as she stopped using DHS services, did not
submit to drug tests, and has not completed a substance abuse treatment
program.
See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“[I]n
considering the impact of a drug addiction, we must consider the treatment
history of the parent to [determine] the likelihood the parent will be in a position to
parent the child in the foreseeable future.”). Further, because Sherri has not
complied with recommended mental health services, it is clear Sherri cannot care
for Angelina and Taylar either now or in the foreseeable future. The children
need a safe and permanent home. J.E., 723 N.W.2d at 801 (Cady, J., concurring
5
In our last opinion, we acknowledged that Sherri had entered into a residential
treatment program weeks before the termination hearing. We then gave Sherri the
benefit of the doubt by stating “we cannot assume that her current program will fail.”
7
specially) (stating children’s safety and their need for a permanent home are the
defining elements in determining a child’s best interests). Taylar and Angelina
are very fortunate to have found a safe and stable home with their foster parents,
who are willing to adopt them. Both girls have thrived in this home, and Taylar’s
therapist reported that her foster parents provide her with “all her physical and
emotional needs, which Sherri has not been able to provide for Taylar.” We have
stated many times that “[a]t some point, the rights and needs of the [children] rise
above the rights and needs of the parents.” In re J.L.W., 570 N.W.2d 778, 781
(Iowa Ct. App. 1997). Therefore we agree with the district court that it is in
Angelina and Taylar’s best interests that Sherri’s parental rights be terminated.
B. Taylar’s Appeal
Separately, Taylar asserts that termination is not in her best interests.6
Taylar testified that she wanted to return to her mother’s custody, regardless of
whether that would require separation from Angelina. She acknowledged that
she would be very sad if she was separated from Angelina, but could cope with
that situation as long as she was able to maintain contact with Angelina.
However, Taylar’s therapist reported that it would be detrimental to Taylar if she
was separated from Angelina. All of the case workers recognized not only the
bond between Taylar and Sherri, but also the bond Taylar has with her foster
parents and Angelina.
Taylar also admitted that her foster parents were
supportive and that she would “end up in a good place” if Sherri’s parental rights
were terminated.
6
Furthermore, the case workers were all in agreement that
Taylar concedes that the State has met its burden of proof for termination of Sherri’s
parental rights.
8
Taylar needs permanency and recommended termination of Sherri’s parental
rights.
Even if Sherri began to seriously address her mental health and
substance abuse issues, there would be a significant time period before she
would be able to adequately care for Taylar. We agree with the district court that
Sherri cannot provide a healthy and safe environment now, and considering her
many years of substance abuse and mental health problems, it is not a situation
that could be quickly resolved.
Thus, from Taylar’s appeal we additionally
conclude that termination of Sherri’s parental rights is in Taylar’s best interests.
IV. Visitation
Next we turn to Sherri’s contention that the State failed to provide
reasonable efforts because DHS provided only supervised as opposed to the
court-ordered semi-supervised visitation with Taylar from February 2008 to May
2008.
The record indicates that supervised visitation was necessary.
In a
February 2008 report, a DHS worker stated: “Sherri continues to struggle with
what is appropriate to discuss with Taylar and Angelina specifically during
visitation and in the letters she has written.” Taylar’s therapist also advised that
“it is very important for all visits to be supervised.” In its termination ruling, the
district court acknowledged this retroactively by stating: “I will not second guess
the professionals who determined that, in spite of my [March 2008] order
otherwise, the time Taylar had with her mother should be supervised.” We agree
with the district court’s conclusion that supervised visitation was appropriate and
did not deprive Sherri of a reasonable service which prevented her reunification
with her daughters.
9
V. Conflict of Interest
A. Standing
We first note that Sherri also raises a claim, identical to Taylar’s as
discussed below, that Bandstra should not have continued as Taylar’s guardian
ad litem because it conflicted with his previous role as Taylar’s attorney. We
recognize that in our prior decision in this case, we considered Sherri’s argument
that Taylar should be appointed a separate attorney. A.T., 744 N.W.2d at 660.
However, at that point, Taylar did not have an attorney to raise the claim for her
and we did not reach the issue of whether Sherri had standing. In the present
case, we conclude that Sherri does not have standing to assert the conflict of
interest argument on appeal, as Taylar was equipped with her own attorney to
represent and protect her separate interests. See In re D.G., 704 N.W.2d 454,
459 (Iowa Ct. App. 2005) (noting one parent does not have standing to join in on
another parent’s best interests claim); see also In re J.V., 464 N.W.2d 887, 89192 (Iowa Ct. App. 1990) (raising but not deciding whether the parents had
standing to assert the guardian ad litem provided ineffective assistance to the
children in a parental termination case).
B. Error Preservation
Following remand, Mordini was appointed as Taylar’s attorney and
Bandstra continued as Taylar’s guardian ad litem. A.T., 744 N.W.2d at 665-66
(remanding for the appointment of a separate attorney but not a new guardian ad
litem); but see Iowa Code § 232.89(4) (stating that the same person may serve
as both the child’s attorney and guardian ad litem, but the district court may
appoint a separate guardian ad litem when a conflict arises between these two
10
roles). Taylar contends that Bandstra should not have continued to serve as her
guardian ad litem because he previously served in the dual role of her guardian
ad litem and attorney and was therefore representing interests adverse to those
of a former client. See Iowa R. of Prof’l Conduct 32:1.9 (stating an attorney shall
not represent another person whose interests are adverse to those of a former
client). All parties were aware of Bandstra’s previous role as Taylar’s attorney,
yet none of the parties raised this alleged conflict of interest prior to or during the
subsequent hearing.
“The right of a former client to object to his or her attorney’s subsequent
representation of an adverse interest may be expressly or tacitly waived.” 7 Am.
Jur. 2d. Attorneys at Law § 193, at 245 (2007). “[I]t has been widely held that in
attorney disqualification matters the failure to raise a timely objection may result
in waiver.” In re Marriage of Batchelor, 570 N.W.2d 568, 570 (Wis. Ct. App.
1997); see Hall v. Hall, 421 So. 2d 1270, 1271 (Ala. Civ. App. 1982) (finding that
an ex-wife waived any objection to her former attorney representing her exhusband in a modification of a dissolution); see also In re V.M.K., 460 N.W.2d
191, 193 (Iowa Ct. App. 1990) (discussing that issues not presented to the
district court, even constitutional issues, are waived on appeal). In our previous
opinion, we determined that Taylar, as a minor, was incapable of waiving any
conflict of interest issue. However, on remand and with an attorney appointed to
represent Taylar’s interests, no objection was made to allowing Bandstra to
continue serving as Taylar’s guardian ad litem.7
7
Bandstra appeared at the
No objection was made to Bandstra continuing to serve as Angelina’s attorney or
guardian ad litem and no resulting conflict of interest is raised on appeal.
11
February 2008 visitation hearing and the March 2008 termination hearing serving
in that capacity without objection. At the opening of the termination hearing, the
district court made the following statement:
This matter comes before the court on remand from the Iowa Court
of Appeals, which found that I had erred when I allowed Mr. Mike
Bandstra to proceed as both attorney and guardian ad litem for
Taylar . . . . I’ve appointed a new attorney for Taylar, Nicole
Mordini.
Bandstra’s prior role was well known to Taylar’s newly appointed attorney, which
was made clear during the proceedings, as is evidenced in the record. With no
objection lodged, the alleged conflict was waived. Additionally, Taylar concedes
that she did not preserve error on this issue.
C. Conflict of Interest as Ineffective-Assistance-of-Counsel Claim
In spite of the waiver, Taylar argues that on appeal we may address the
alleged conflict and cites to In re J.P.B., 419 N.W.2d 387 (Iowa 1988). In that
case, a mother and daughter appealed a district court order terminating the
parent-child relationship between the mother and her daughter and son. The
district court had appointed an attorney for the mother, an attorney for the
children, and a separate guardian ad litem for the children. Id. at 389. The
daughter argued she was denied effective assistance of counsel because the
attorney appointed to represent both her and her brother could not effectively
serve both clients when she opposed termination while her brother favored
termination.
Id. at 388.
The mother argued she was also denied effective
assistance of counsel because her attorney did not object to the dual
representation. Id. The State asserted that as neither the daughter nor mother
objected to the alleged conflict of interest during trial, the ineffective-assistance-
12
of-counsel claim had not been preserved for appellate review. Id. at 389. Our
supreme court observed that there is no postconviction relief equivalent for a
termination of parental rights action. Id. at 390. Moreover, the failure to object to
a conflict of interest may itself constitute ineffective assistance of counsel. Id.
Thus, the only way to raise the issue is on direct appeal.8 Id. The court found
that “the lack of objection to an alleged conflict of interest did not preclude
consideration of the [ineffective-assistance-of-counsel] issue on appeal.” Id. at
389; see also J.V., 464 N.W.2d at 891-92 (“[I]n the interest of justice and
because the children are by definition legally unable to help themselves, it is our
responsibility to evaluate the performance of the guardian ad litem, sua sponte if
necessary.”). While J.P.B. does not present the precise issues as are before us
in this appeal, the rationale for allowing the conflict of interest issues to be
considered on appeal in that case are persuasive, and we proceed on the merits
of the conflict of interest claim, under the analysis of ineffective assistance of
counsel.
Termination of parental rights cases are civil proceedings. As no Sixth
Amendment protections are implicated, there is no constitutional right to effective
assistance of counsel.
In re D.W., 385 N.W.2d 570, 579 (Iowa 1986).
Nevertheless, due process requires that counsel appointed pursuant to a statute
provide effective assistance. Id. We generally apply the same standards for
counsel appointed in a criminal proceeding to counsel appointed in a termination
proceeding. J.P.B., 419 N.W.2d at 392; see Strickland v. Washington, 466 U.S.
8
It would be difficult for Taylar’s attorney, Mordini, to raise an ineffective-assistance-ofcounsel claim on appeal as the attorney who represents a party in a termination of
parental rights case has a duty to take the appeal. Iowa R. App. P. 6.6(4).
13
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Thus, a juvenile
claiming ineffective assistance of counsel must prove both a deficiency in
counsel’s performance and actual prejudice. J.P.B., 419 N.W.2d at 392.
In the present case, two ineffective-assistance-of-counsel claims could be
made:
(1) that Mordini was ineffective in failing to lodge an objection to
Bandstra’s continuing to serve as Taylar’s guardian ad litem; (2) that Bandstra
provided ineffective assistance of counsel by continuing to serve as Taylar’s
guardian ad litem because of the alleged conflict of having previously served as
Taylar’s attorney.
Only Bandstra’s alleged conflict was raised for our
consideration on appeal.9
An attorney and a guardian ad litem have differing duties. An attorney is
obligated to maintain confidences, but a guardian ad litem may need to disclose
confidential information. 3 Legal Malpractice § 28:10 (2008). “The existence of
the attorney-client privilege can depend on the role in which the information was
received.” Id. However, “[a] client does not lose the [attorney-client] privilege
merely because his attorney serves a dual role.” In re Matter of Grand Jury
Proceeding, 68 F.3d 193, 196 (7th Cir. 1995). In the present case, we conclude
there was a substantial likelihood of a conflict as Bandstra formerly represented
Taylar as her attorney. 7A C.J.S. Attorney and Client § 185, at 173 (Supp. 2008)
(“[An] attorney cannot use any knowledge or information acquired through his or
her former representation if such information is of a confidential or secret nature
or is so regarded by the former client.”); see also Townsend v. Townsend, 474
9
Even if raised, the failure of Mordini to object to Bandstra continuing in his position as
guardian ad litem for Taylar would not be grounds for reversal as we conclude no
prejudice resulted.
14
S.E.2d 424, 428 (S.C. 1996) (finding an attorney had a conflict of interest in
representing a father in a child support action after having previously served as
his daughter’s guardian ad litem in a child custody case).
However, we are mindful of “the inadvisability of mechanically applying
criminal law standards to a civil juvenile proceeding where the resolution turns
not on guilt or innocence, but on the best interest of the child.” J.P.B., 419 N.W.
2d at 390. In a juvenile proceeding, an ineffective-assistance-of-counsel claim
based upon an alleged conflict of interest differs from that in a criminal
proceeding.
“Because of the unique nature of juvenile proceedings, we are
unwilling to presume prejudice even if under ordinary criminal standards a
substantial possibility of conflict would be shown.” Id. at 392; see Nichol v. State,
309 N.W.2d 468, 470 (Iowa 1981) (stating that where an ineffective-assistanceof-counsel claim stems from an alleged conflict of interest, “[w]e must decide if
. . . there was a conflict of interest and, if so, whether it raised a substantial
possibility of prejudice to petitioner.”). Thus, in a juvenile proceeding, it must be
proved that an actual conflict existed and actual prejudice resulted. J.P.B., 419
N.W. 2d at 392.
Even with a finding of a conflict, rooted in Bandstra’s continuing to serve
as Taylar’s guardian ad litem and advocating a position contrary to her wishes as
a former client, we are not convinced this resulted in actual prejudice.
A
guardian ad litem is appointed to represent the interests of a minor child. Iowa
Code § 232.2(22)(a). As Taylar’s guardian ad litem, Bandstra’s duties included:
(1) Conducting in-person interviews with the child, if the child’s age
is appropriate for the interview, and interviewing each parent,
15
guardian, or other person having custody of the child, if authorized
by counsel.
(2) Conducting interviews with the child, if the child’s age is
appropriate for the interview, prior to any court-ordered hearing.
(3) Visiting the home, residence, or both home and residence of
the child and any prospective home or residence of the child,
including each time placement is changed.
(4) Interviewing any person providing medical, mental health,
social, educational, or other services to the child, before any
hearing referred to in subparagraph (2).
(5) Obtaining firsthand knowledge, if possible, of the facts,
circumstances, and parties involved in the matter in which the
person is appointed guardian ad litem.
(6) Attending any hearings in the matter in which the person is
appointed as the guardian ad litem.
...
Iowa Code § 232.2(22)(b). All parties agree that Bandstra was an exceptional
guardian ad litem and pursuant to his duties, among other things, he visited
Taylar in her foster homes, conducted interviews with Taylar, and maintained
contact with the in-home workers.
At the termination hearing, Bandstra’s
questioning did not reveal any information that was known to him as her former
attorney, but not known to him as her guardian ad litem and then used adverse to
her position opposing termination. In fact, he even elicited Taylar’s preference
that Sherri’s parental rights not be terminated. As Bandstra points out, “[n]o
example is given of how this purported conflict issue may have played out in this
case.” Following our review of the record, and unwillingness to apply a per se
rule, we agree.
See J.P.B., 419 N.W.2d at 392 (stating that in juvenile
proceedings, we will not presume prejudice results from a conflict of interest).
Moreover, for Taylar to demonstrate prejudice she would need to show
that but for the alleged conflict, the result of the termination of parental rights
proceedings would likely have been different. See Strickland, 466 U.S. at 694,
16
104 S. Ct. at 2068, 80 L Ed. 2d at 698 (“The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.”). In this case, Sherri’s parental rights
were terminated under Iowa Code sections 232.116(1)(d), (f), and (l).
Facts
supporting each element were established by clear and convincing evidence as
discussed generally above and are not challenged by Taylar. While Taylar’s
desire to have her mother’s parental rights remain intact was a consideration of
the district court, her wishes do not take precedence over her best interests. In
re L.P., 370 N.W.2d 839, 843 (Iowa Ct. App. 1985); see also J.V., 464 N.W.2d at
890 (discussing that Iowa Code section 232.116(3) is permissive).
The
overarching consideration in all termination of parental rights cases is the best
interests of the child, a decision the district court made after assessing all the
evidence and positions advocated by the parties. We conclude Sherri’s rights
would have been terminated regardless of the former role attorney Bandstra
served as Taylar’s attorney and guardian ad litem. Thus, because there was no
prejudice from Bandstra continuing as Taylar’s guardian ad litem, Taylar’s claim
of ineffective assistance of counsel must fail.
We have considered all of the arguments on appeal and affirm the district
court’s order terminating Sherri’s parental rights.
AFFIRMED.
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