Opinion
No. 2-744 / 02-0705
Filed October 30, 2002
Appeal from the Iowa District Court for Marshall County, Victor Lathrop, Associate Juvenile Judge.
A juvenile and members of her family appeal a dispositional order transferring her legal custody to the Department of Human Services. AFFIRMED.
Barry Kaplan and Melissa Nine of Fairall, Fairall, Kaplan, Hoglan, Condon Frese, Marshalltown, for appellant-grandmother.
Reyne See of Johnson, Sudenga, Latham, Peglow O'Hare, Marshalltown, for appellant-father.
Thomas Grabinski, Grinnell, Iowa, for appellant-child.
John Haney of Hinshaw, Danielson, Kloberdanz Haney, Marshalltown, for appellee-mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, James DeTaeye, County Attorney and Paul Crawford, Assistant County Attorney, for appellee-State.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Ashley, her father, and her paternal grandmother appeal a juvenile court dispositional order transferring her legal custody to the Department of Human Services for placement in an inpatient residential care facility. We affirm.
I. Background Facts and Proceedings
Ashley, born in 1987, initially lived with her father who, in the Department's words, had "a violent and criminal history." Eventually, the father began serving a ten-year prison sentence and Ashley was transferred to the care of her mother.
Ashley refused to obey her mother or follow the rules of her new home. She snuck out of the home, used alcohol and marijuana, and was charged with third and fifth-degree theft.
Ashley was adjudicated a child in need of assistance based on her escalating problems with authority. The juvenile court appointed one attorney to serve both as her personal attorney as well as the guardian ad litem. The court also granted Ashley's paternal grandmother leave to intervene in the proceedings for purposes of seeking custody of Ashley. Following a dispositional hearing, the juvenile court granted the Department of Human Services legal custody of Ashley and ordered her placed in an appropriate inpatient residential treatment program. This appeal followed.
The two issues we must address are: (1) whether the juvenile court should have placed Ashley with her grandmother, and (2) whether Ashley's attorney provided ineffective assistance by advocating a position contrary to hers in his dual role as guardian ad litem.
II. Placement with Grandmother
Following a dispositional hearing, a court is required to make "the least restrictive disposition appropriate considering all the circumstances of the case." Iowa Code § 232.99(4) (2001). Possible dispositions include the transfer of legal custody to a relative or to the Department. Iowa Code § 232.102(1)(a), (c). A relative placement is considered less restrictive than placement with the Department. In re N.M., 528 N.W.2d 94, 97 (Iowa 1995).
In electing to transfer legal custody of Ashley to the Department, the juvenile court noted that placement with her grandmother "will not be successful." On our de novo review, we agree with this assessment.
Although a service provider initially stated it would not be "fair to Ashley to recommend residential treatment," she noted Ashley would, at a minimum, need to participate in a day treatment program with "high structure and guidelines" and a tracking and monitoring program. Ashley declined to participate in either until the date of the originally scheduled dispositional hearing. She told more than one worker that she wished to live with her grandmother because she would get to do whatever she wanted. While at a shelter,she displayed manipulative and dangerous behavior, including running away and self-mutilation. In light of this behavior, the Department recommended Ashley be placed in "a group care facility in a highly structured setting to address her behaviors immediately and consistently." We believe this evidence is sufficient to support the juvenile court's dispositional order.
III. Ineffective Assistance of Counsel
Ashley's attorney also was appointed by the juvenile court to serve as guardian ad litem. In making this appointment, the court stated, the attorney had "an obligation to represent the child and will put forth whatever evidence as far as her position." The court further stated the attorney had "an obligation to put forth his position as guardian ad litem."
The record reflects that the attorney performed both functions. As attorney for Ashley, he elicited testimony that she wished to be placed with her grandmother. In argument, he argued the State had not satisfied its reasonable efforts mandate, there was no evidence to support a recommendation for drug treatment, the State had presented conflicting recommendations concerning the need for residential placement, and his client had expressed a sincere desire to change. As guardian ad litem, the attorney stated, "it's her best interests for her own safety and well-being that she should be placed in a residential facility where she can have the structure and the constant counseling that she needs." Ashley contends the attorney rendered ineffective assistance in espousing these two apparently conflicting positions.
In analyzing this type of claim, we generally apply the same ineffective assistance standards adopted for counsel in a criminal proceeding. In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988). Ashley must show counsel's performance was deficient and actual prejudice resulted. Id. Where the alleged ineffectiveness stems from a conflict of interest, prejudice is generally presumed. Id. However, in a juvenile setting, our highest court has expressed an unwillingness to presume prejudice "even if under ordinary criminal standards a substantial possibility of conflict would be shown." Id. at 391.
Assuming counsel's dual role amounted to a conflict of interest, there was no reasonable probability the court would have ordered a different disposition had Ashley's counsel not expressed conflicting opinions. The evidence presented by the State overwhelmingly established that Ashley required a more structured and supervised environment to address her self-destructive and antisocial behaviors. Given this evidence, there was no actual prejudice and Ashley's ineffective assistance of counsel claim must fail.
We affirm the juvenile court's dispositional order.