In the Interest of the Conservatorship of Dillon W. Vierkant

• Court: Court of Appeals of Iowa
• Decided: October 20, 2021
• Docket: 20-0508
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0508 Filed October 20, 2021

IN THE INTEREST OF THE CONSERVATORSHIP OF DILLON W. VIERKANT,

DILLON W. VIERKANT, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Franklin County, Rustin Davenport,

Judge.

A ward appeals the imposition of a conservatorship. AFFIRMED.

Allan M. Richards, Tama, for appellant

John L. Duffy of Laird Law Firm, P.L.C., Mason City, for appellee.

Considered by Mullins, P.J., and May and Ahlers, JJ. 2

MAY, Judge.

Dillon Vierkant appeals the establishment of a conservatorship. On appeal,

Dillon claims (1) the court failed to comply with Iowa Code section 633.563(1)

(2020); (2) he received ineffective assistance of counsel; and (3) his father,

William, should not have been appointed as his conservator. We affirm.

We review an action establishing a conservatorship for legal error. See

Iowa Code § 633.33; see also Merrill v. Valley View Swine, LLC, 941 N.W.2d 10,

15 (Iowa 2020) (noting appellate review of statutory interpretation is for corrections

of error at law). “Because our review is for errors at law, we affirm only if there is

substantial evidence to support the district court’s findings.” In re Conservatorship

of Leonard, 563 N.W.2d 193, 195 (Iowa 1997). “Evidence is substantial if a

reasonable person ‘would accept it as adequate to reach the same findings.’” In

re Guardianship of B.Z., No. 19-1761, 2020 WL 4499037, at *3 (Iowa Ct. App. Aug.

5, 2020) (citations omitted).

First, Dillon claims the court erred by not ordering the “professional

evaluation” that Iowa Code section 633.563(1) sometimes requires. Section

633.563(1) provides:

At or before a hearing on petition for the appointment of a guardian or conservator or the modification or termination of a guardianship or conservatorship, the court shall order a professional evaluation of the respondent unless one of the following criteria are met: a. The court finds it has sufficient information to determine whether the criteria for a guardianship or conservatorship are met. b. The petitioner or respondent has filed a professional evaluation.

(Emphasis added.) 3

Here, the court found “[a] court-ordered professional evaluation is not required

because the court has sufficient information to determine whether the criteria for a

conservatorship has been met.” In other words, the court found the exception in

section 633.563(1)(a) applies.

To decide whether this finding was correct, we look to section 633.553,

which contains the criteria for establishing a conservatorship. Section 633.553

authorizes appointment of

a conservator for an adult if the court finds by clear and convincing evidence that both of the following are true: a. The decision-making capacity of the respondent is so impaired that the respondent is unable to make, communicate, or carry out important decisions concerning the respondent’s financial affairs. b. The appointment of a conservator is in the best interest of the respondent.

The probate court found both of these criteria were met. See Iowa Code

§ 633.563(1)(a), (b). And we conclude those findings are supported by substantial

evidence, including evidence of Dillon’s failure and refusal to harvest his crops;

Dillon’s threat “to shoot or harm anybody that . . . harvests his crops on his land

even with the proceeds going to him”; Dillon’s commitment for a mental-health

impairment; Dillon’s history of substance abuse; Dillon’s involvement with the

criminal justice system after trying “break down the door” of William’s house and

using a backhoe to destroy William’s landscaping; and Dillon’s threat to kill William,

William’s wife, and the sheriff. Given this record, it was not necessary for the court

to order a professional evaluation of Dillon before ordering a conservatorship. See

id. 4

Next, Dillon claims he received ineffective assistance of counsel. Cf. In re

Guardianship of Fagen, No. 17-0785, 2017 WL 5185449, at *1 (Iowa Ct. App. Nov.

8, 2017) (recognizing a proposed ward is entitled to representation in guardianship

and conservatorship proceedings); In re Guardianship of B.K., No. 03-0865, 2004

WL 792755, at *5 (Iowa Ct. App. Apr. 14, 2004) (recognizing a claim of ineffective

assistance of counsel in a guardianship proceeding). An ineffective-assistance-

of-counsel claim is established when counsel fails to perform an essential duty and

that failure results in constitutional prejudice. Strickland v. Washington, 466 U.S.

668, 687 (1984). Because of the prejudice requirement, “even if . . . counsel made

a professionally unreasonable error, the judgment shall not be set aside unless it

can be shown the error had an effect on the judgment.” Lamasters v. State, 821

N.W.2d 856, 866 (Iowa 2012). So “[i]f the claim lacks prejudice, it can be decided

on that ground alone without deciding whether the attorney performed deficiently.”

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Here, Dillon does not specify

how he believes he was prejudiced by his counsel’s performance or, in other

words, how counsel’s performance impacted the outcome of the proceeding. So

his claim fails on the prejudice prong. See Dunbar v. State, 515 N.W.2d 12, 15

(Iowa 1994) (noting claimant “must state the specific ways in which counsel’s

performance was inadequate and identify how competent representation probably

would have changed the outcome”).

Finally, Dillon argues William should not have been appointed his

conservator because William had a conflict of interest as guarantor of several of

Dillon’s loans and due to Dillon’s hostility toward William. We disagree. 5

Certainly, “[i]t is the role of the court and the conservator to protect the

ward.” In re Guardianship of Radda, 955 N.W.2d 203, 214 (Iowa 2021). The

conservator serves as a fiduciary to the ward. Id. So Dillon argues William cannot

serve as his conservator because William guarantees Dillon’s loans and, therefore,

William would benefit from proper management of Dillon’s financial affairs. We

disagree. Although William benefits from Dillon’s financial success, that doesn’t

mean William cannot or would not protect Dillon’s financial interests. If anything,

the opposite would seem more likely. In any event, William served as Dillon’s

conservator under a temporary order and acted in Dillon’s best interest, staving off

financial ruin. So we do not think William’s financial ties create a disqualifying

conflict of interest. Likewise, Dillon’s hostility toward William has not impeded

William’s ability to handle Dillon’s financial matters in an appropriate manner. So

Dillon’s hostility does not create a disqualifying conflict either.

All things considered, we find no error in the court’s appointment of William

as Dillon’s conservator. We affirm.

AFFIRMED.