Opinion
No. 3-059 / 02-1129
Filed February 12, 2003
Appeal from the Iowa District Court for Scott County, Michael W. Liebbe, Associate Juvenile Judge.
A mother and father appeal the permanency order. AFFIRMED.
Benjamin Yeggy of Gomez, May, Cartee Schutte, Davenport, for appellants.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, William E. Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee-State.
Christine Frederick of Zamora, Taylor, Alexander, Woods Frederick, Davenport, guardian ad litem for minor child.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
A mother and father appeal the permanency order. Specifically, they contend their respective attorneys were ineffective in failing to advise them of the consequences of entering into a stipulation at the permanency hearing. We affirm.
Background Facts and Proceedings. Mike and Shari are the parents of Michelle, born in 1985; Angela, born in 1986; and Matthew, born in 1992. In June 2001 the children were adjudicated children in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(n) (2001). The basis for this adjudication was the inability or failure of the parents to provide appropriate care and supervision for their children due to a drug overdose and a serious past history of substance abuse.
On April 12, 2002, an uncontested permanency hearing was held and Mike and Shari, each represented by counsel, stipulated to a permanency plan. According to the plan, Matthew was to be placed in the custody of his current foster parents, Angela was to be placed in the custody of DHS for placement in foster care, and Michelle was to be placed in the custody of DHS for independent living. Also, the guardian ad litem requested a dismissal of the contempt motion against Shari for violating a no-contact order. The juvenile court granted the guardian ad litem's request and incorporated the permanency plan in its order. The juvenile court did not terminate the parents' rights because the court felt this was not an appropriate option due to the age of the children and their relationship with their parents.
On April 16, 2002, Mike and Shari filed a motion to reconsider contending they did not understand the consequences of the permanency order and they felt they were coerced into stipulating to the plan. They allege that if they did not agree to said plan the guardian ad litem would pursue a contempt charge against Shari. They also requested new counsel be appointed to represent them. The juvenile court denied the motion to reconsider; however, it granted the motion to appoint new counsel to jointly represent them. Mike and Shari, represented by new counsel, filed a motion for new trial in an attempt to set aside the permanency order. The juvenile court denied the motion for new trial and upheld the permanency order. Mike and Shari appeal.
Standard of Review. We review termination of parental rights de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). In these cases, especially when considering the credibility of the witnesses, we give weight to the fact findings of he juvenile court, but are not bound by them. Iowa R.App.P. 6.14(6)( g).
Ineffective Assistance of Counsel. The test for ineffective assistance of counsel in termination cases is generally the same as in criminal proceedings. In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992); In re D.W., 385 N.W.2d 570, 579 (Iowa 1986). In order to establish an ineffective assistance claim, it must be shown that (1) counsel's performance is deficient, and (2) actual prejudice resulted. D.W., 385 N.W.2d at 580; see Strickland v. Washington, 466 U.S. 668, 687-98, 104 S.Ct. 2052, 2064-70, 80 L.Ed.2d 674, 693-700 (1984). Unless both showings are made, the claim must fail. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; J.P.B., 419 N.W.2d at 389. Our scrutiny of the trial attorney's performance must "be highly deferential," see id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694, and must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [party] must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689, 104 S.Ct. at 2066, 80 L.Ed.2d at 694-95; J.P.B., 419 N.W.2d at 389; D.W., 385 N.W.2d at 579-80.
Both Mike and Shari contend their respective attorneys were not competent at the permanency hearing because they were not advised about the consequences of entering into a stipulation. We disagree. At the hearing, only testimony from Mike and Shari was presented to support their allegations. Neither party offered testimony from their respective attorneys. Thus, Mike and Shari's credibility was at issue. The juvenile court concluded:
The Court has had the opportunity to view the advocacy of the attorneys for the mother and the father and the presentations and testimony of the mother and the father. The Court does not accept the opinion or position that they were coerced, uninformed, or involuntarily entered into an agreement on this case. They did so knowing full well they were agreeing to the permanency order and the terms that were specified by and were agreed by their attorneys.
This court has consistently said the district court is in a better position to view the parties and their demeanor at trial. SeeIowa R.App.P. 6.14(6)( g) ("when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them.") Accordingly, we reject the claim that each counsel's performance was deficient. As for Mike and Shari's claim they were coerced into agreeing to the stipulation, the record suggests the contrary. The record lacks any evidence suggesting Mike and Shari knew at the time they entered into the stipulation that the guardian ad litem would subsequently withdraw her contempt motion. For these reasons, we reject Mike and Shari's ineffective assistance of counsel claim.