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recognizing a claim of ineffective assistance of counsel in a guardianship proceeding
Summary of this case from In re VierkantOpinion
No. 3-980 / 03-0865
April 14, 2004.
Appeal from the Iowa District Court for Scott County, David H. Sivright, Jr., Judge.
The petitioners, the aunt and uncle of a child, appeal, and the respondent, the father of the child, cross-appeals, from a district court ruling that permanently fixed the custody of the child in the respondent, ordered the petitioners to turn over items of personal property to the respondent, and awarded the petitioners visitation with the child. AFFIRMED IN PART AND REVERSED IN PART ON APPEAL; REVERSED ON CROSS-APPEAL.
Clemens Erdahl of Nidey, Peterson, Erdahl Tindal, P.L.C., Cedar Rapids, for appellants.
William Davis, Davenport, and Carol Davis, Bettendorf for appellees.
Catherine Alexander of Zamora, Taylor, Alexander, Woods Frederick, Davenport, for minor child.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
John and Wendy, the aunt and uncle of Brianna, appeal following a district court ruling that permanently fixed the custody of Brianna in her father, Karter, and awarded John and Wendy visitation. John and Wendy contend they are entitled to a new trial based on certain alleged errors by the trial court, as well as the ineffective assistance of Brianna's attorney. They also request that this court vacate a supplemental order requiring them to turn over to Karter any items of personal property in their possession that Brianna might request. Karter cross-appeals, arguing the court acted without authority and in contravention of Brianna's best interest when it allowed John and Wendy visitation. While we affirm the court's decision to permanently fix custody with Karter, we reverse the court's order concerning personal property, as well as the award of visitation to John and Wendy.
I. Background Facts and Proceedings.
Karter and Judy were the parents of two children: Kristopher and Brianna. Judy died suddenly and unexpectedly, from natural causes, on September 4, 1997. Kristopher was two years old, and Brianna was one month old. Finding it difficult to care for a baby at that time, Karter agreed to let Judy's brother and sister-in-law, John and Wendy, assume temporary care of Brianna. Karter began providing John and Wendy with financial assistance after about a year.
John and Wendy quickly became attached to Brianna, and viewed and treated her as their own child. The evidence as to how much time Karter spent with Brianna during the first two and one-half years of her life is disputed. Karter contends he visited his daughter an average of once to twice a month, as well as on holidays and other family occasions. According to Karter, John and Wendy would deny him visitation when it did not fit within their schedules, and Wendy in particular became extremely upset over things she perceived as signs that Karter intended to reassume care of Brianna. John and Wendy claim Karter visited less often, and deny they deliberately withheld visitation.
Eventually Karter broached the issue of returning Brianna to his care. Karter was in a stable relationship with Janet, and wished to reunite his family. During the summer of 2000 the parties initially agreed to a gradual transition, with Karter exercising increasing levels of visitation. However, tensions and difficulties between the parties soon developed. Eventually, Karter informed John and Wendy that he was reversing their roles: Brianna would remain in his care, and John and Wendy would receive visitation. This prompted John and Wendy to file a petition to be appointed Brianna's guardians.
The November 2000 petition included a request for an appointment of a guardian ad litem. Attorney James Ottesen was appointed pursuant to Iowa Code § 633.561 (1999). Although the order stated attorney Ottesen was being appointed as a guardian ad litem, section 633.561 in fact provides for an appointment of an attorney. In his preliminary reports Attorney Ottesen stated that, regardless of the ultimate merits of the petition, the abrupt change in Brianna's primary care and residence was potentially damaging. He recommended the court exercise its jurisdiction to reestablish a shared care arrangement.
Citing concerns over Brianna's alleged behavioral problems following the abrupt transition, John and Wendy also requested that the court order a mental examination for Brianna, to be conducted by Dr. Charles Hayes. The court approved the request, but specifically stated that Dr. Hayes was the court's expert witness.
John and Wendy's guardianship petition came on for trial July 17, 2001. Following Dr. Hayes's testimony, the parties agreed to a settlement that implemented Dr. Hayes's recommendations. The guardianship petition was dismissed. Brianna's custody was restored to Karter subject to the continuation of the present shared care arrangement, wherein John and Wendy had care of Brianna for three days a week. The arrangement was to remain in place until further court order. The court retained jurisdiction to oversee implementation of counseling and the transitional arrangements recommended by Dr. Hayes. On August 23 and September 4, 2001, the court entered supplemental orders that modified the current shared care arrangement to five days with Karter and two days with John and Wendy, and directed the schedule to continue until further order. The court also ordered Brianna into play therapy with Dr. Hayes, and Karter, his then fiancée Janet, and John and Wendy to participate in family counseling. Dr. Hayes was directed to file a progress report on October 29, 2001. These orders were never appealed from.
Although the parties initially cooperated, the relationship between Karter on the one hand and John and Wendy on the other soon deteriorated. On February 28, 2002 Karter filed a motion to dismiss the guardianship petition, which he later amended to a motion to terminate the court's continuing jurisdiction. On April 5, 2002, attorney Ottesen filed an application to modify visitation, requesting the parties comply with Dr. Hayes's recommendation of transitioning to a six/one shared care arrangement as of April 5, 2002. On April 11, 2002 John and Wendy filed a motion for modification of the settlement order, requesting that transition efforts be ceased and that joint custody be established.
Dr. Hayes had further recommended that by early summer John and Wendy's visitation be reduced to one twelve-hour visit each week, and by the time Brianna began kindergarten that fall, further reduced to a minimum of four hours every weekend.
All issues came on for a contested hearing on May 20 and 21, 2002. The district court noted the petition for guardianship had been dismissed, and labeled the proceedings as "an initial proceeding to determine the permanent custody of Brianna." The court concluded the determining factor was Brianna's best interest, as considered in light of the protected parental interest, and the rebuttable presumption of parental preference created by Iowa Code § 633.559 (2001). The court found the presumption was not rebutted, awarded permanent sole custody of Brianna to Karter, and awarded John and Wendy reasonable visitation to be determined by Karter. It once again dismissed the guardianship petition. Two days later the court entered a supplemental order, adding the "inadvertently omitted" provision that John and Wendy deliver to Karter any items of personal property in their possession or control requested by Brianna through Karter or Dr. Hayes.
John and Wendy then sought to have attorney Ottesen removed as guardian ad litem and moved for a new trial, based on allegations that attorney Ottesen was subject to a conflict of interest and had otherwise provided ineffective assistance to Brianna. After an evidentiary hearing, which included a limited stipulation of fact, the court denied the motion for new trial. Clarifying that attorney Ottesen was Brianna's attorney, and "not merely a guardian ad litem," the court found John and Wendy had not established that attorney Ottesen was subject to a conflict of interest. The court also concluded, in regard to certain of its evidentiary rulings at trial, that John and Wendy had failed to demonstrate any resulting prejudice. John and Wendy appealed, and Karter cross-appealed.
Karter had filed a motion to reconsider pursuant to Iowa Rule of Civil Procedure 1.904(2), contending the visitation award was without authority and contrary to Brianna's best interest. However, Karter's motion was not ruled on by the court.
II. Scope of Review.
As a general matter, petitions for the appointment of a guardian are at law and therefore review of guardianship proceedings is on error. See Iowa Code § 633.33. However, when a case turns on the best interests of a child, and may involve overturning presumptive parental rights, principles of equity must be applied. See In re Guardian and Conservatorship of Reed, 468 N.W.2d 819, 826 (Iowa 1991). As such, our review is de novo. In re Guardianship of Knell, 537 N.W.2d 778, 780 (Iowa 1995). However, when an evidentiary ruling by the district court is at issue, our review is limited to determining whether the district court abused its discretion. In re Estate of Rutter, 633 N.W.2d 740, 745 (Iowa 2001).
III. Legal Error.
A. Parental Preference.
Iowa Code § 633.559 provides that, in proceedings for appointment of a guardian, "the parents of a minor . . ., if qualified and suitable, shall be preferred over all others. . . ." The presumption should be applied without reference to the level of the bond between the child and either party. See Zvorak v. Beireis, 519 N.W.2d 87, 88 (Iowa 1994) (recognizing importance of parental preference in case where a child lived with guardian nearly all her life, and where contact from the parent over last five years was only intermittent, and financial support was nearly non-existent). To be appointed Brianna's guardians, and rebut the presumption, John and Wendy must do more than demonstrate they deeply love Brianna and can provide her with a good home. See In re Interest of Rohde, 503 N.W.2d 881, 883 (Iowa Ct.App. 1993), overruled on other grounds by In re Guardianship and Conservatorship of D.D.H., 538 N.W.2d 881, 883 (Iowa Ct.App. 1995). Rather, they must prove Brianna's best interests require that she continue in their care. See In re Guardianship of Knell, 537 N.W.2d 778, 781 (Iowa 1995). We agree with the district court that, based on the record, John and Wendy have not met this standard.
Making implicit credibility findings, the court concluded Karter had not abandoned his child, but rather "acquiesced in a schedule of visits dictated by John and Wendy." The court determined Karter and Janet were appropriate caretakers and noted John and Wendy's only criticism of Karter was a claim that he would deny them contact with Brianna, "an allegation he credibly denies." The court concluded it was John and Wendy who had failed to act in good faith to implement the settlement agreement. We give weight to these findings by the court. See Iowa R. App. P. 6.14(6)( g).
We conclude, as did the district court, that Karter is a suitable and appropriate custodian. Moreover, in his care Brianna will be reunited with her sibling, Kristopher. While Karter certainly could have and probably should have done more to maintain interaction with his child prior to 2000, the evidence indicates that much of the responsibility for the current situation must lie with John and Wendy. It is clear they feel Brianna has become their child, and they appear to be unwilling or unable to accept or adapt to the transition process. This attitude is exemplified by the fact that John essentially ended contact with his parents, Jean and Don, once they decided to support Karter in this matter. As between the two sides, the record demonstrates that Karter will be more willing to facilitate Brianna's relationship with all of her family members than will John and Wendy.
Moreover, the court's expert, Dr. Hayes, maintained that transition to Karter's care was in Brianna's long-term best interest, despite the child's recently expressed preference to stay with John and Wendy. Like the district court we place more weight on Dr. Hayes's testimony than we do on the testimony from Dr. Ann Jensen, John and Wendy's retained expert, who criticized Dr. Hayes's technique, and concluded that transition would probably cause some degree of attachment disorder. As the court noted, Dr. Jensen had gathered most of her data about Brianna's behavioral and other problems from John and Wendy, John and Wendy's descriptions of Brianna's behavior were not corroborated by John's mother, Jean, and Dr. Jensen did not interview other individuals or observe Brianna. Based on the record before the district court, John and Wendy have not established that Brianna's best interest requires they be appointed her guardians.
B. Limitation of Evidence.
John and Wendy contend, however, that the record was not complete because they were prevented by the court from questioning Dr. Hayes about what they categorize as the "relationship of [Karter] to [Brianna] during the critical attachment phase." It appears John and Wendy object to the court's refusal to allow Dr. Hayes to testify as to how much time Karter spent with Brianna when she was very young. The court precluded the testimony, indicating the relevant focus was not upon facts predating the 2001 settlement agreement, but upon whether facts since that time demonstrated the transition plan should be abandoned.
We first note, as did the district court, that John and Wendy did not make an offer of proof as to what the excluded testimony would entail. As such, they have waived any error. See Brooks v. Holtz, 661 N.W.2d 526, 529 (Iowa 2003). Moreover, John, both directly and through Dr. Jensen, offered his own testimony as to how much time Karter had spent with Brianna. Accordingly, error, if any, in excluding the testimony was harmless. See Associated Grocers of Iowa Co-Op v. West, 297 N.W.2d 103, 109 (Iowa 1980) (providing exclusion of testimony is not prejudicial if the same evidence appears elsewhere in the record).
IV. Ineffective Assistance of Counsel.
To establish a claim of ineffective assistance of counsel, the proponent must demonstrate that the attorney performed below an objective standard of reasonable competence, and that prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). John and Wendy forward two theories as to why Attorney Ottesen rendered ineffective assistance. The first is that he had an actual conflict of interest which resulted in his favoring Karter's counsel, and thus biased his actions in favor of Karter and to the detriment of not only John and Wendy's right to a fair trial, but of Brianna's best interest. The second is that his performance was simply sub-par and thus fell below the standard of reasonable competence. We find no merit in either assertion.
A. Conflict of Interest.
In the criminal context, if there exists an actual conflict of interest then the attorney is deemed to have performed below the standard of reasonable competence, and prejudice can be presumed. See State v. Watson, 620 N.W.2d 233, 236 (Iowa 2000). It appears that, under the Iowa constitution, it is not necessary to definitively demonstrate the existence of an actual conflict; rather it is enough to demonstrate a "substantial possibility" that a conflict actually affected the attorney's representation. See Nichol v. State, 309 N.W.2d 468, 470 (Iowa 1981) cited in In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988).
An actual conflict is one that actually adversely affects counsel's performance. Watson, 620 N.W.2d at 237. An actual, relevant conflict exists "if, during the course of the representation, . . . interests do diverge with respect to a material factual or legal issue or to a course of action." Pippins v. State, 661 N.W.2d 544, 549 (Iowa 2003) (citation and internal quotation marks omitted, emphasis in original). When the interests " may diverge at some point so as to place the attorney under inconsistent duties," there is only the possibility of a conflict. Id.
In the juvenile context, regarding termination of parental rights, the same standards apply with one distinct exception: even if an actual conflict or a substantial possibility of an actual conflict is demonstrated, prejudice will not be presumed:
A juvenile claiming ineffective assistance of counsel in a civil proceeding must prove both prongs of the Strickland test, i.e., deficiency in counsel's performance and actual prejudice. 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.
In re J.P.B., 419 N.W.2d at 392 (emphasis in original).
This distinction is made because, in cases involving custody of minor children, it is their best interests that are paramount. Id. at 391. As this guardianship proceeding involves the best interests of a minor child, we conclude we should adopt the approach taken in juvenile proceedings, and require that the party claiming ineffective assistance of counsel establish both prongs of the Strickland standard. See also id. (noting that even though an attorney for a child is not a guardian ad litem, "Nevertheless his role in a custody dispute is to advocate the child's best interest, not the child's wishes.") (citation and internal quotation marks omitted).
John and Wendy's claim that attorney Ottesen suffered from a conflict of interest is based upon the fact Karter's attorney, William Davis, is also the Scott County Attorney, and that attorney Ottesen, in addition to his position as corporate counsel at Family Resources, Inc., a social service agency, and his appointments to serve as a guardian ad litem or attorney for children, works as a contract service provider with the title of Scott County Special Prosecutor for Domestic Abuse. Attorney Ottesen's role as a special prosecutor is to assist individuals seeking to prosecute violations of domestic abuse protection orders through civil contempt proceedings and/or criminal proceedings. For this he currently receives compensation of $10,000 per year. John and Wendy were aware at all relevant times that attorney Ottesen worked as a special prosecutor. They nevertheless assert they did not learn, until after trial, that he was being compensated for his position. John and Wendy contend it is primarily this fact of compensation that creates the conflict of interest.
Upon review of the record, we conclude John and Wendy failed to establish even a substantial possibility that attorney Ottesen's position as a paid special prosecutor affected his role as Brianna's attorney. Attorney Ottesen denied the position influenced him in any way, and even John and Wendy's trial attorney indicated that he did not believe attorney Ottesen had been improperly influenced. The record supports these views.
Attorney Ottesen was initially one of over sixty local attorneys who, on a voluntary and pro bono basis, rotated in the special prosecutor position. Eventually, attorney Ottesen volunteered to take on sole responsibility for the position. When this fact came to the attention of county attorney Davis, attorney Davis arranged for attorney Ottesen to be compensated through the local bar association with revenue from a forfeiture fund. When revenue from this fund declined, attorney Ottesen's compensation was converted to a line item in the budget of the county attorney's office. The funds were still not paid to attorney Ottesen directly, but to him through Family Resources, Inc. Attorney Ottesen was and is not an employee of the county attorney's office, but a contract service provider. He does not work in the county attorney's office and is not under the direct supervision of county attorney Davis. Although he is allowed access to certain staff resources, such as the county attorney's victim witness coordinator, the county attorney's office does not provide attorney Ottesen with supplies, staff, training, or supervision.
The victim witness coordinator obtains information to assist anyone needing information in domestic abuse protection order violation cases, including not only the special prosecutor but defense lawyers as well.
Even viewed in their most generous light, these facts do no more than raise the mere possibility of a conflict. John and Wendy must therefore show "specific instances to support [their] contention of an actual conflict adverse to [their] interests." United States v. Martin, 965 F.2d 839, 842 (10th Cir. 1992), cited with approval in Watson, 620 N.W.2d at 238. However, the record does not establish that that attorney Ottesen's performance was negatively affected by his relationship with the county attorney's office.
John and Wendy argue that attorney Ottesen's bias is demonstrated by his sudden change in position when attorney Davis appeared on Karter's behalf. However, in his preliminary reports, issued before attorney Davis's appearance, attorney Ottesen stated only that the sudden change in care from John and Wendy to Karter was not in Brianna's best interest. Thereafter he largely followed Dr. Hayes's recommendations as to what would be in Brianna's best interests. Contrary to John and Wendy's assertions, the record does not indicate that attorney Ottesen attempted to influence Dr. Hayes's opinion or recommendations. The documents to which they refer us reveal no more than attorney Ottesen setting forth his positions on some issues.
While we neither endorse nor approve attorney Ottesen's decision to continue in this matter after the appearance of attorney Davis, the question is not simply whether his decision gave rise to the appearance of impropriety. Nor is it, as John and Wendy contend, whether attorney Ottesen proved he "faithfully discharged his duties to" Brianna. It is whether John and Wendy have met their burden to demonstrate at least the substantial possibility of an actual conflict. This they have not done. While the record demonstrates attorney Ottesen regularly took positions contrary to those held by John and Wendy, it does not demonstrate that those positions were motivated by a bias derived from his role as a compensated special prosecutor. The district court properly found that no actual conflict of interest existed.
B. Less than Reasonably Competent.
John and Wendy further claim that attorney Ottesen was ineffective, whether due to a conflict or mere incompetence, because he did not spend enough time interviewing Brianna or the parties, and did not conduct a thorough enough investigation. They reason that had he done so he would have realized the transition to Karter's care was not in Brianna's best interest, as he would have learned that Karter would not in fact support John and Wendy's relationship with Brianna, that John and Wendy were in fact the more compliant and credible parties, and that Dr. Hayes's recommendations should not be followed.
There is some testimony presented through a deposition of a district judge that indicated attorney Ottesen in fact did not perform the type of investigation that one would normally hope to see from a guardian ad litem. However, even if we assume a reasonably competent attorney would have performed a more thorough investigation, John and Wendy must still demonstrate prejudice. As will be discussed below, they have not done so.
C. Prejudice.
To show prejudice John and Wendy must establish that if attorney Ottesen had conducted a more thorough investigation or withheld his analysis or opinion, there is a reasonable probability the court would have found the presumption of parental preference was rebutted and Brianna's best interests required the court to make John and Wendy joint custodians. See State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999) (stating prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different). However, nothing in the court's ruling indicates that it relied on attorney Ottesen's analysis or opinion in reaching its decision. Rather, the court appears to have made independent assessments of both the parties and the evidence. When we engage in the same task we reach the same conclusion as the district court — John and Wendy have not established that any act or lack thereof by Attorney Ottesen resulted in prejudice.
Attorney Ottesen's opinion as to what was in Brianna's best interest coincided with the opinion of Dr. Hayes. As previously noted, we concur in the district court's determination that more weight should be placed on Dr. Hayes's opinion than on Dr. Jensen's. This determination does not change even if we wholly discount attorney Ottesen's opinion and position. We reach the same result regarding witness credibility. Even if we wholly discounted attorney Ottesen's opinion and position, we would still determine, based on the testimony of the parties and the other witnesses, that Karter is a suitable and appropriate custodian, and that he will be more likely to foster Brianna's relationships with other family members than will John and Wendy. John and Wendy simply cannot establish that, but for attorney Ottesen's actions, they would have been appointed guardians and joint custodians of Brianna.
V. Visitation.
Although the district court did not set the terms of John and Wendy's visitation, it did make a formal visitation award. Karter argues that the visitation was neither authorized in law nor in Brianna's best interest. We cannot agree that visitation is not in Brianna's best interest. Clearly, John and Wendy have developed a close and loving relationship with Brianna, and maintaining that tie is indisputably in Brianna's best interest.
However, we must agree with Karter's position that this award was without authority in the law. John and Wendy have no statutory visitation rights, and custodial parents have a common law veto power over visitation between the child and third parties. Petition of Ash, 507 N.W.2d 400, 402 (Iowa 1993). Although the supreme court has recognized the authority of the district court to order grandparent visitation in a guardianship proceeding, that authority is limited to cases where the custodial parent, as guardian, was subject to the power of the guardianship court to enter orders in the best interests of the child. See McMain v. Iowa Dist. Court, 559 N.W.2d 12, 15 (Iowa 1997). However, such a visitation order would not survive the dismissal or denial of the guardianship petition. See id.
Here, the guardianship petition has been dismissed. Karter is not subject to the continuing power of the district court to enter orders in the child's best interest, and maintains a veto power over third-party visitation. John and Wendy have provided no persuasive authority in support of their position that the court nevertheless has the authority to impose visitation because such visitation would be in the child's interest. We conclude the visitation award was entered in error, and reverse that portion of the court's ruling. We nevertheless encourage Karter to continue to provide John and Wendy with reasonable visitation, as such would clearly be in Brianna's best interest.
VI. Supplemental Order.
John and Wendy argue the district court was without authority to require them to give Karter any items of personal property in their possession that Brianna might request. We must agree.
Although not necessary to our decision on this issue, we note that neither the evidence presented nor the district court's order indicates the nature or extent of the personal property items in question, or who the owner or owners of such items are.
The district court did have "plenary jurisdiction to determine matters essential to probate business before it." Estate of Randeris v. Randeris, 523 N.W.2d 600, 604 (Iowa Ct.App. 1994). However, "[i]n determining what constitutes the subject matter of the litigation, it is necessary to examine the prayer of the plaintiff's petition. The supreme court has repeatedly recognized that the relief to be afforded is limited by the prayer of a petition." In re Guardianship and Conservatorship of Cerven, 334 N.W.2d 337, 340 (Iowa Ct.App. 1983) (citation and internal quotations omitted). In addition, an issue may be tried by consent of the parties. Id.
Here the pleadings did not raise the issue of any personal property in John and Wendy's possession. Nor does it appear that the parties agreed to try the issue by consent. While an issue concerning property may arise when the court is considering the physical care of a child, we cannot conclude that disposition of that property is "essential" to the court's guardianship determination. We therefore reverse the district court's supplemental property order.