IN THE INTEREST OF A.T. and T.P., Minor Children, S.R.P., Mother, Appellant, L.A.P., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-525 / 07-0998
Filed December 28, 2007
IN THE INTEREST OF A.T. and T.P.,
Minor Children,
S.R.P., Mother,
Appellant,
L.A.P., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joe E. Smith, District
Associate Judge.
A mother challenges a juvenile court’s refusal to appoint a guardian ad
litem for her older daughter. REMANDED.
Thomas Graves of Jackowski & Graves, L.L.P., Clive, for appellantmother.
Andrea M. Flanagan of Sporer & Ilic, P.C., Des Moines, for appellantfather.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd and Janet L.
Hoffman, Assistant Attorney Generals, John P. Sarcone, County Attorney, and
Chris Gonzales, Assistant County Attorney, for appellee.
Michael Bandstra, Des Moines, guardian ad litem for minor children.
Heard by Sackett, C.J., and Vaitheswaran and Baker, JJ.
2
SACKETT, C.J.
In this appeal from the juvenile court’s order terminating the parental rights
of two children the issues are whether (1) the role of guardian ad litem and
attorney for both children should have been assumed by the same person where
the older child, contrary to the guardian ad litem’s recommendation, did not want
her parental rights terminated; (2) termination of the mother’s parental rights were
in the best interest of the children; and (3) there was clear and convincing
evidence supporting the termination of the parental right of the father of the older
child. We find the juvenile court abused its discretion in not appointing a separate
attorney for the older child and remand.
BACKGROUND. On May 30, 2007, the juvenile court ordered termination
of the parental rights of the parents of Taylar, born in October of 1994, and
Angelina, born in July of 2003. Petitions on appeal were filed by Sherrie, the
children’s mother, and Lynn, the father of Taylar, seeking relief from the
termination order.
Leonel, the father of Angelina, did not file a petition on
appeal. 1 We remanded for full briefing on two issues. We now have received full
briefs from Sherrie and Lynn, the State, and the guardian ad litem and attorney
for the children and heard oral arguments on the issues.
The two children, who have different fathers, have twice been removed
from their mother’s care primarily because she has a serious substance abuse
problem, and during the times she is drinking alcohol or ingesting drugs she is an
inadequate parent. The latest removal was in September of 2005. The matter
1
The juvenile court found Leonel was in Mexico but made no finding that he was
served with notice of the proceeding or that he was within the jurisdiction of the Iowa
juvenile court.
3
initially came before the juvenile court in August of 2005, and the juvenile court
allowed Sherrie an additional six months to prepare herself for her daughters’
return. Sherrie continued to have issues with substance abuse. The State filed a
petition to terminate parental rights in June of 2006.
A hearing on the petition to terminate was again held in April of 2007. The
juvenile court ordered termination of all parents’ parental rights.
The court
terminated Sherrie’s rights to the two girls under Iowa Code sections
232.116(1)(f) and (l) (2007), and also terminated Sherrie’s parental rights to
Angelina under section 232.116(1)(h). The court terminated Lynn’s parental right
to Taylar under section 232.116(1)(b), and Leonel’s parental rights to Angelina
under section 232.116(1)(b).
SHERRIE’S CLAIMS.
Sherrie does not contest the juvenile court’s
findings that the State proved grounds to terminate her parental rights to the two
children nor does she argue that her children can be returned to her at this time.
Sherrie’s appeal focuses, rather, on (1) her concern that Taylar’s wishes not to
have Sherrie’s parental rights terminated were not properly represented or given
adequate weight, (2) that termination is not in the children’s best interest, and (3)
that Mike Bandstra, who represented both girls both as their guardian ad litem
and their attorney, should not serve Taylar in both capacities. Sherrie argues
Bandstra sought termination though Taylar did not want her mother’s parental
rights terminated. Sherrie also contends the juvenile court should have given
more weight to her decision to take up residence in the House of Mercy, a
program for substance dependent parents.
4
Lynn, Taylar’s father, contends (1) there was insufficient evidence to prove
the necessary elements of section 232.116(1)(b) as the State failed to show he
abandoned or deserted Taylar, and (2) termination of his parental rights was not
in Taylar’s best interest.
The State and Bandstra contend Sherrie failed to preserve error on the
issue of the refusal to appoint a separate attorney and guardian ad litem for
Taylar. They also contend that (1) a separate attorney was not necessary for
Taylar, (2) Taylar was mature enough to participate in the decision not to have a
separate attorney and guardian ad litem, and (3) Taylar was not entitled to dual
representation for she was legally capable of providing information to the court.
A.
Preservation of error. The State and Bandstra contend error was
not preserved on the issue of the dual representation. We disagree. Sherrie filed
a motion asking that Taylar have separate counsel at an August 2006 hearing.
She apparently withdrew the request during that hearing but again made the
request at the April 2007 termination hearing. There was a disagreement at that
time as to whether the issue could again be brought before the court; however,
the court addressed the motion, overruling it and finding that Taylar had waived
the conflict. The court held that a conflict did not prevent an attorney from serving
in both roles if, as Taylar’s attorney, he presented Taylar’s wishes to the court
and, as guardian ad litem, presented what he determined to be her best interest
to the court. The issue was properly preserved for review. Even if it was not
preserved, the lack of an objection to an alleged conflict of interest does not
preclude consideration of the issue on appeal. In re J.P.B., 419 N.W.2d 387, 390
5
(Iowa 1988); see also State v. Neal, 353 N.W.2d 83, 86 (Iowa 1984); State v.
Don, 318 N.W.2d 801, 807 (Iowa 1982). We will address the claim.
B.
Conflict. At the time of trial, Taylar was a twelve-year-old girl who
the court noted “was impressive and demonstrated a maturity beyond her years.”
She recognized her parent’s shortcomings. While in placement she was abused.
She was allowed to express her opinion to the court, but with the assistance of a
guardian ad litem who did not share her goal.
Sherrie claims that, because
Taylar’s wishes did not correspond with the wishes of the guardian ad litem,
Taylar should have had a separate attorney to advocate her wishes. Bandstra
acknowledges that he has served as both attorney and guardian ad litem for
Taylar. He notes that Taylar has always verbalized that she wants to return to
her mother.
He contends he has followed the mandates of In re G.Y., 486
N.W.2d 288 (Iowa 1992), by disclosing there was a conflict between his role as
an attorney advocating for Taylar’s wishes and as a guardian ad litem advocating
what he determined to be Taylar’s best interest. He states that he met with
Taylar and explained the conflict and Taylar indicated she did not want a
separate attorney.
We must start with the proposition that Taylar has a very real stake in the
outcome here.
“[U]ntil the State proves parental unfitness, the child and his
parents share a vital interest in preventing erroneous termination of their natural
relationship.” Santosky v. Kramer, 455 U.S. 745, 760, 102 S. Ct. 1388, 1398, 71
L. Ed. 2d 599, 611 (1982). As in this case where Taylar was abused in the foster
home, it was noted that “even when a child’s natural home is imperfect,
6
permanent removal from that home will not necessarily improve his welfare.” Id.
at 766, 102 S. Ct. at 1401, 71 L. Ed. 2d at 614 n.15.
In this case, Taylar sought to have her wishes represented and stay with
her mother. The Iowa legislature has statutorily provided for the appointment of
both an attorney and guardian ad litem for a child in Taylar’s position in Iowa
Code section 232.89, which provides in applicable part:
2.
Upon the filing of a petition, the court shall appoint
counsel and a guardian ad litem for the child identified in the petition
as a party to the proceedings.
...
4.
The same person may serve both as the child’s
counsel and as guardian ad litem. However, the court may appoint
a separate guardian ad litem, if the same person cannot properly
represent the legal interests of the child as legal counsel and also
represent the best interest of the child as guardian ad litem . . . .
(Emphasis supplied).
The legislature has also defined the guardian ad litem’s role in section
232.2(22), which provides in relevant part:
a.
“Guardian ad litem” means a person appointed by the
court to represent the interests of a child in any judicial proceeding
to which the child is a party, and includes a court appointed special
advocate . . . .
b.
Unless otherwise enlarged or circumscribed by a court
or juvenile court having jurisdiction over the child or by operation of
law, the duties of a guardian ad litem with respect to a child shall
include the following:
(1)
Conducting in-person interviews with the child,
if the child’s age is appropriate for the interview, and interviewing
each parent, 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 courtordered 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.
7
(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.
(7)
If the child is required to have a transition plan
developed in accordance with the child’s case permanency plan
and subject to review and approval of a transition committee under
section 235.7, assisting the transition committee in development of
the transition plan.
c.
The order appointing the guardian ad litem shall grant
authorization to the guardian ad litem to interview any relevant
person and inspect and copy any records relevant to the
proceedings, if not prohibited by federal law. The order shall
specify that the guardian ad litem may interview any person
providing medical, mental health, social, educational, or other
services to the child, may attend any departmental staff meeting,
case conference, or meeting with medical or mental health
providers, service providers, organizations, or educational
institutions regarding the child, if deemed necessary by the
guardian ad litem, and may inspect and copy any records relevant
to the proceedings.
d.
If authorized by the court, a guardian ad litem may
continue a relationship with and provide advice to a child for a
period of time beyond the child’s eighteenth birthday.
An attorney’s responsibility with reference to Taylar is that due a client with
diminished capacity because Taylar is not of legal age. This principle is found in
Iowa Rule of Professional Conduct 32:1.14, which provides in relevant part:
(a)
When a client’s capacity to make adequately considered
decisions in connection with a representation is diminished, whether
because of minority . . . the lawyer shall, as far as reasonably
possible, maintain a normal client-lawyer relationship with the client.
(b)
When the lawyer reasonably believes that the client has
diminished capacity, is at risk of substantial physical, financial, or
other harm unless action is taken, and cannot adequately act in the
client’s own interest the lawyer may take reasonably necessary
protective action, including consulting with individuals or entities that
have the ability to take action to protect the client and, in
appropriate cases, seeking the appointment of a guardian ad litem,
conservator, or guardian.
8
(Emphasis supplied).
It has been suggested that role definition and confidentiality issues can
arise whenever attorneys are appointed to serve as guardians ad litem; however,
they become even more complex when an attorney is appointed to serve as both
attorney and guardian ad litem for a child. Ann M. Haralambie, The Role of the
Child’s Lawyer In Protecting the Child Throughout the Litigation Process, 71 N.D.
L. Rev., 939, 941 (1995). Under ABA standards, one lawyer cannot take on a
hybrid role and advocate both for the child’s wishes and his or her best interest.
American Bar Association Section of Family Law, Standards of Practice for
Lawyers Representing Children in Custody Cases, 37 Fam. L.Q. 131, 134 (2003);
see also Nicole A. Demers, Note, An Attorney is an Attorney is an Attorney
Except when the Attorney is also a Guardian Ad Litem: An Analysis of the
Connecticut Appellate Court’s Decision in Carrubba v. Moskowitz Regarding
Immunity, 24 Quinnipiac L. Rev. 847, 866 (2006).
The initial question is whether the juvenile court abused its discretion in
finding that Bandstra can properly represent the legal interest of Taylar and also
represent her best interest.
Is Bandstra’s fundamental and statutory duty as
guardian ad litem consistent with his fundamental responsibility as a lawyer to
abide by the decisions and objectives of his client? Bandstra’s position is that it
is.
Bandstra’s argument finds some support In re J.P.B., 419 N.W.2d 387,
391-392 (Iowa 1988), a parental termination case where the court addressed
ineffective assistance of counsel claims against two attorneys, one who
represented at trial both children, and the second who represented the children’s
9
mother at trial. 2 The first challenge was to the effectiveness of the trial attorney
for the children, a boy age nine and a girl age thirteen. Id. at 388. The boy
wanted his parental rights terminated while the girl did not want her parental
rights terminated. Id. The girl contended she was denied her constitutional right
to effective assistance of counsel because her court-appointed attorney also
represented her brother who favored termination. Id. The second challenge was
to the effectiveness of the attorney for the children’s mother. Id. She contended
her attorney was ineffective in failing to object to the conflict of interest inherent in
the dual representation of her children. Id.
The Iowa court, in seeking some guidance from In re Marriage of Rolfe,
999 P.2d 79, 86-87 (Mont. 1985), 3 did not find either attorney ineffective. J.P.B.,
419 N.W.2d at 391-92. The court pointed out that the reasons for contested
custody proceedings are that the children involved are not yet mature enough to
be self-determining and it is the best interests of the minor children, not their
wishes, which determine the outcome of the case. Id. Consequently, their real
interests are not inconsistent or mutually exclusive. See id.
The court went on to recognize, citing Iowa Code of Professional
Responsibility for Lawyers Rule DR7-101, 4 that in the ordinary lawyer-client
relationship, the lawyer’s role is not to determine the client’s interest but to
2
There is nothing in the opinion to indicate a guardian ad litem was appointed for either
child, though section 232.96 of the 1987 Code of Iowa contains substantially the same
language as those portions of sections 232.89(2) and 232.89(2)(a) of the Code
provisions applicable here.
3
A child whose parents are seeking a dissolution of their marriage will not be orphaned
by the court’s decision as a child in a termination of parental rights case may be. In most
dissolution cases, the court is merely allocating between two adequate parents the
child’s growing up time. The child will continue to have the benefit of both parents and
relationships with both parents and their extended families.
4
Now 32:1.3
10
advocate the client’s interest. Id. The court noted that such a duty may present
an ethical dilemma in a juvenile proceeding where the objective is always the
best interest of the child, not the child’s personal objective, and acknowledged
that the unsettled law in this area offers no clear direction to an attorney faced
with such a predicament. Id. at 391. The court then recognized that determining
a child’s best interests is difficult and a child’s wishes deserve serious
consideration. Id. at 392. The court noted that if the court-appointed attorney
concludes that the child’s expressed wishes are not in his or her best interest, the
attorney must disclose this to the court, as the juvenile court must be clearly
informed of the child’s wishes and the basis for the attorney’s determination that
the child’s wish is not in the child’s best interest. Id. The court said that this gives
priority to the paramount goal of discerning the child’s best interest while enabling
the lawyer to advocate an opposing viewpoint without fear of an ethical violation.
Id.
The court reasoned that such an approach obviates the expensive and
burdensome practice of appointing both a guardian ad litem and attorney for each
child in a family to ensure that each child’s expressed wishes as well as best
interest are advocated. Id. The court then resolved the issue on the prejudice
prong, finding it was not persuaded the daughter’s court-appointed counsel’s
simultaneous representation of her brother prejudiced the achievement of the
girl’s desired result or the primary goal of discerning her best interest. Id. The
court found, for the same reason, that the failure of the mother’s counsel to object
to the dual representation could not support her claim of ineffective assistance.
Id. at 391-92.
11
In re J.P.B. was followed by In re G.Y., 486 N.W. 2d 288 (Iowa 1992).
There, the court addressed a mother’s request for both an attorney and guardian
ad litem for her child in a juvenile proceeding. In re G.Y., 486 N.W.2d at 289.
The court, recognizing in its discussion of the need for independent counsel in
juvenile proceedings in In re J.P.B., noted that Iowa Code section 232.89(4)
seemed a practical legislative recognition of fiscal necessity 5 because justice
does not require duplicitous arguments and it would be a waste of the public
treasure to fund them. See In re G.Y., 486 N.W.2d at 289. The court then,
apparently recognizing that there may be conflicts between the role of a guardian
ad litem and an attorney for a child, went on to say “When conflicts threaten, so
that separate counsel becomes appropriate, the court can appoint them.” Id.
Is there a threatening conflict here so that appointment of an attorney to
represent Taylar’s interests was appropriate? Is Bandstra’s duty of loyalty as a
lawyer for Taylar contrary to his statutory duty as guardian ad litem to the court?
It would appear that the older, more intelligent, and mature the child is, the
more impact the child’s wishes should have, and a child of sufficient maturity
should be entitled to have the attorney advocate for the result the child desires.
See Gary Soloman, Role of Counsel in Abuse and Neglect Proceedings, 192
Prac. Law Inst. Crim. Law and Urb. Prob. 543, 550 (2003). We turn then to look
at the manifestation of Taylar’s wishes and her maturity.
5
Even in states where the law provides a separate lawyer for the child, this often does
not happen either because of the prohibitive cost of appointing a lawyer and a guardian
ad litem for one child, or the guardian ad litem simply does not ask the court to appoint a
lawyer for the child. Jennifer L. Renne, Legal Ethics in Child Welfare Cases, at 80
(2004).
12
Taylar was always vocal in her wishes not to have her mother’s parental
rights terminated. She attended the termination hearing contrary to Bandstra’s
recommendation. Bandstra called her as a witness. She related that she and her
sister visited her mother at the House of Mercy and she felt she understood her
mother’s current situation.
Taylar testified her mother had changed and her
mother now paid more attention to her and to her little sister. Taylar related she
loves her mother, her mother loves her, and she believes her mother loves her
little sister. Taylar was aware of her mother’s relapses and the fact that her
mother should not be using drugs. Taylar did not want to move until school was
out, but then hoped to be unified with her mother at the House of Mercy.
Taylar was asked on cross examination by the county attorney:
Q.
Do you think at this time that your mother is able to care for
you and your sister? A. Yes.
Q.
Why do you think that? A. It is because she has proved a
lot, and I can see it. And she can’t really go on without us, and I
can’t go on without a mom that has given birth to me. And I really
think that she deserves the chance to have us back.
The juvenile court found:
Taylar earnestly desired a reunification with her mother. She does
not want her parental rights terminated. She believes that her
mother can come to successfully address her issues and resume
responsibility for parenting her and her sister. She loves her mother
and wants to see her succeed. Furthermore Taylar believes that
her mother can succeed. I don’t doubt Sherri loves her children and
would like to see reunification.
Sherrie concedes that Bandstra is experienced and able counsel, but she
contends that throughout the proceedings, except for the times he put Taylar on
the stand, he worked relentlessly to seek the termination of Sherrie’s parental
rights. Sherrie argues that he examined witnesses in a manner to put before the
court complaints about her as a parent, never asked questions seeking answers
13
that would bolster Taylar’s position, and that his questioning of every witness
except his own client, Taylar, worked assiduously toward termination. 6
In re J.P.B. is not necessarily instructive on the issues we are asked to
address and it can only be considered in concert with In re G.Y. The attorney for
the children there, unlike the attorney here, was not also appointed as guardian
ad litem. There was no guardian ad litem in In re J.P.B. The question was one of
ineffective assistance of counsel which the court decided on a finding there was
no prejudice as a result of the dual representation. 7 In re J.P.B., 419 N.W.2d at
392. In re J.P.B. is also factually distinguishable from the case before us. The
evidence supporting termination of parental rights in that case was stronger than
it is here. In In re J.P.B., the mother had a number of issues, the most serious of
which were substantiated allegations of incest and of sexual abuse. Id. at 389.
The court found the mother was unwilling or not able to separate both herself and
her children from a family plagued by a history of incestuous behavior. Id. Even
after the children were placed in foster care, there was continuing abuse by family
members and boyfriends during the mother’s visitation period. Id. Consequently,
the daughter’s position that her parental rights should not be terminated in lieu of
this behavior indicated the child was not competent to have input in this decision,
nor could an attorney in good faith argue that she could.
In contrast to the mother In re J.P.B., Sherrie has been recognized as
being a good mother to her children other than when she has used alcohol or
6
While this was admirable, we do not consider Taylar’s consent to dual representation
to be dispositive. If Taylar is not competent to decide that she wants to continue to live
with her mother, she certainly is not competent to decide that she is adequately
represented.
7
Does In re J.P.B.’s holding that any attorney who is the sole representative of the child
have to advocate for the best interest apply to an attorney assuming both roles?
14
illegal substances. She is bonded with her children. There is no evidence her
children have suffered physical harm or sexual abuse while in her care. She has
made efforts, which to this point have been unsuccessful, to curb her addiction.
Yet she, at the time of the termination hearing, had voluntarily placed herself in a
program to assist in her recovery, she had been religiously attending AA
meetings, and she had a strong sponsor who testified on her behalf. We do not
seek to minimize Sherrie’s addictions, but also we cannot assume that her
current program will fail.
While we recognize the directives to make these
decisions quickly so that children can hopefully go on to a better life, there was no
evidence an adoptive home is available for Taylar. 8 Furthermore, Taylar’s strong
bond to her biological family may make it difficult for her to accept an adoptive
family if one is found.
Taylar was aware of her mother’s addiction yet had visited her during her
time in foster care and observed her mother improving in the House of Mercy.
The court and counsel at the termination hearing recognized Taylar’s maturity.
Taylar has a relationship with both her mother’s and father’s extended family.
She is doing well in school. She has assumed substantial responsibility for her
young sister.
The juvenile court abused its discretion in denying the motion to appoint
separate counsel for Taylar. We disagree with the juvenile court that Taylar was
competent to waive the clear conflicts that existed, yet we find she was mature
8
While the issue of adoption is not relevant to whether the conduct of a parent is such
that termination of parental rights is legally permissible, the evidence is crucial to a
decision on final disposition after termination, and appellate courts are interested in
knowing of the adoptability factor in their de novo review. In re T.C., 492 N.W.2d 425,
429 (Iowa 1992).
15
enough to have her interest represented.
The potential conflicts between a
guardian ad litem’s statutory duty to the court and a lawyer’s duty to his client are
blurred. See generally, Ann M. Haralambie, The Role of the Child’s Attorney In
Protecting the Child Throughout the Litigation Process, 71 N.D. L.Rev. 939, 941
(1995).
The fundamental duty of the guardian ad litem conflicts with the
traditional role of the lawyer.
We do not hold that an attorney must always be appointed for a child in a
termination. A guardian ad litem can, in some situations, serve a dual role as
both the guardian ad litem and the juvenile’s attorney. Iowa Code section
232.89(2). When, however, a guardian ad litem recommends a disposition that
conflicts with the juvenile’s wishes, the juvenile court may, under Iowa Code
section 232.89, appoint independent counsel to represent the child in situations
where a child is of sufficient age and maturity to make an informed decision about
a potential termination of a child’s relationship with his or her parents. See In re
Williams, 805 N.E.2d 1110 1113-14 (Ohio 2004).
Iowa Code section 232.116.2(b)(2) provides:
In considering whether to terminate the rights of a parent under this
section, the court shall give primary consideration to the child's
safety, to the best placement for furthering the long-term nurturing
and growth of the child, and to the physical, mental, and emotional
condition and needs of the child. This consideration may include
any of the following:
...
(2) The reasonable preference of the child, if the court determines
that the child has sufficient capacity to express a reasonable
preference.
Only by the appointment of an attorney can the child’s wishes be effectively
presented. As the court noted in footnote 65 in Application of Gault, 387 U.S. 1,
16
38, 87 S. Ct. 1428, 1449, 18 L. Ed. 2d 527, 552 n.65 (1967) quoting the National
Crime Commission Report:
The Commission believes that no single action holds more potential
for achieving procedural justice for the child in the juvenile court
than provision of counsel. The presence of an independent legal
representative of the child, or of his parent, is the keystone of the
whole structure of guarantees that a minimum system of procedural
justice requires. The rights to confront one’s accusers, to crossexamine witnesses, to present evidence and testimony of one’s
own, to be unaffected by prejudicial and unreliable evidence, to
participate meaningfully in the dispositional decision, to take an
appeal have substantial meaning for the overwhelming majority of
persons brought before the juvenile court only if they are provided
with competent lawyers who can invoke those rights effectively.
In this case, given Taylor’s age and maturity, a separate attorney was required.
We remand to the juvenile court to appoint a separate attorney for Taylar.
We do not resolve the other issues on appeal because the resolution of the issue
of Taylar’s relationship with her mother may have an impact on the other issues.
These issues cannot be decided in isolation, for all issues raised must be
considered in concert in the final decision. We order a new trial on the petition for
termination.
REMANDED.
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