In the Interest of A.T.

744 N.W.2d 657, 2007 Iowa App. LEXIS 1329
CourtCourt of Appeals of Iowa
DecidedDecember 28, 2007
DocketNo. 07-0998
StatusPublished
Cited by15 cases

This text of 744 N.W.2d 657 (In the Interest of A.T.) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of A.T., 744 N.W.2d 657, 2007 Iowa App. LEXIS 1329 (iowactapp 2007).

Opinion

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 [659]*659attorney 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 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(l)(f) and (,l) (2007), and also terminated Sherrie’s parental rights to Angelina under section 232.116(l)(h). The court terminated Lynn’s parental right to Taylar under section 232.116(l)(b), and Leonel’s parental rights to Angelina under section 232.116(l)(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.

Lynn, Taylar’s father, contends (1) there was insufficient evidence to prove the necessary elements of section 232.116(l)(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 Tay-lar’s wishes to the court and, as guardian ad litem, presented what he determined to [660]*660be 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 (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, Tay-lar 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 foster 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 Tay-lar’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 Tay-lar’s wishes and as a guardian ad litem advocating what he determined to be Tay-lar’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, 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:

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Bluebook (online)
744 N.W.2d 657, 2007 Iowa App. LEXIS 1329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-at-iowactapp-2007.