In re Interest of M.L., 14–1418.

• Decision Date: 20 May 2015
• Docket Number: No. 14–1418.,14–1418.
• Citation: 868 N.W.2d 456
• Parties: In the Interest of M.L., Minor Child. M.L., Minor Child, Appellant.
• Court: Iowa Court of Appeals

868 N.W.2d 456

In the Interest of M.L., Minor Child.

M.L., Minor Child, Appellant.

No. 14–1418.

Court of Appeals of Iowa.

May 20, 2015.

Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Carlyle D. Dalen, County Attorney, and Nichole Benes, Assistant County Attorney, for appellee.

Opinion

Considered by VAITHESWARAN, P.J., and TABOR and MULLINS, JJ.

TABOR, J.

A child challenges the performance of his counsel during juvenile delinquency proceedings. Specifically, the child contends when the juvenile court granted his application for a consent decree under Iowa Code section 232.46 (2013) on a pending delinquency petition for intimidation with a dangerous weapon by threats and suspended the proceedings, his counsel was ineffective in allowing him to be adjudicated for harassment in the first degree under section 232.47 in the same case. Because we agree the child did not receive effective representation, we reverse and remand for further proceedings.

I. Background facts and proceedings

M.L. was a high school sophomore when he sent a series of text messages to two friends on September 24, 2013, expressing disappointment over losing his homecoming date. The messages carried ominous overtones. M.L. texted a photograph of three shotgun shells and wrote he wished he had “more ammo than 3” and “I think I'll go out in a bang” and “Who says I want to go alone?” One of M.L.'s friends called the police. When these messages came to light, the juvenile court issued an order for M.L.'s immediate detention on September 27, 2013. The order stated M.L. was charged with first-degree harassment.

The juvenile court held a detention review hearing on October 3, 2013. In its factual findings issued on October 8, 2013, the court recounted M.L.'s text messages, as well as noting the following circumstances:

[M.L.] has a history at school of having outbursts and aggressive behavior. In his locker were discovered a tactical sling for a gun, a black mesh face mask, airsoft bb's, fingerless shooting gloves and wrist straps. [M.L.] likes to play with airsoft guns with his friends after school. In the home, his mother discovered that the gun [M.L.] owns was in a bag with ammo and the trigger lock was removed without her knowledge.

The court also reviewed a disciplinary report from M.L.'s high school showing that on October 1, 2013, M.L. violated the school's good conduct policy by threatening to bring a gun to school. The court decided M.L.'s full-time detention continued to be necessary, explaining: “It is unclear whether this was a calculated attempt to place students in fear of [M.L.], whether it was a lapse in judgment, or whether [M.L.] has significant mental health and behavior issues that need to be addressed. For [M.L.'s] safety, as well as the safety of the community, detention is necessary.”

Also on October 3, 2013, the Cerro Gordo County Attorney filed a delinquency petition, alleging M.L. committed intimidation with a dangerous weapon or threatened to commit such an act, in violation of Iowa Code section 708.6, a class “C” felony. The petition referred to the events on September 24, 2013.

On October 28, 2013, M.L.'s attorney sought a review hearing. Before a hearing occurred, the juvenile court received a report from juvenile court services (JCS) recommending M.L. be released under certain conditions, including house arrest with GPS monitoring and attendance at the Francis Lauer Youth Services (FLYS) day treatment program through the alternative high school. The court issued that order on November 10, 2013.

M.L. agreed to the court's scheduling of an adjudication hearing for January 2, 2014. On that date, at 1:17 p.m., the juvenile court issued an order of continuance, which stated: “The child desires to enter an admission to a charge of Harassment in the First Degree.” The order set a hearing for February 6, 2014.

Despite continuing the delinquency matter, at 3:40 p.m. on January 2, 2014, the court filed a consent decree.¹ The filing stated that M.L. applied for and the parties proposed a consent decree to the charge of “Intimidation with a Dangerous Weapon—by Threats” in violation of Iowa Code section 708.6. The court granted the application and ordered “these proceedings are suspended and this matter is continued as provided in Section 232.46 of the Code.” As terms of the decree, the court required M.L. to comply with a curfew as set by JCS, attend individual and family therapy as deemed appropriate by JCS, complete 120 hours of community services, undergo random drug screens, and participate in aggression replacement training and other anger management classes as deemed appropriate by JCS. The consent decree was to remain in effect for eighteen months unless the child was discharged sooner.

Despite the entry of the consent decree, on February 6, 2014, the same delinquency matter came before the juvenile court for an adjudication hearing pursuant to section 232.47. M.L. signed and initialed an adjudication stipulation that indicated he was currently on probation under the consent decree. As the factual basis for his offense, he admitted sending text messages to two friends on September 24, 2013, “threatening to take a gun to school and also a picture showing three bullets.”

The stipulation also stated:

In exchange for State's agreement to enter into a Consent Decree on a related charge, the child has agreed to enter this admission and the parties jointly agree to a term of probation until the child's 18th birthday with successful completion of Francis Lauer Day Treatment and other probation terms prescribed by Juvenile Court Services as conditions of probation.

The disposition order, filed February 7, 2014, stated the parties waived hearing and “[t]he child plead guilty to the offense(s) of Harassment in the First Degree and the parties stipulated that as disposition the child should be placed on formal probation.” The order further stated:

“The child's involvement consisted of sending threatening text messages to a peer.” Among other consequences, the court ordered M.L. to complete aggression replacement training and other anger management classes as deemed appropriate by JCS.

It was not until February 11, 2014, that the State filed an amended delinquency petition alleging M.L. committed the delinquent act of harassment in the first degree by communicating with fellow students on September 24, 2013.

During the 2013–14 academic year, M.L. attended the FLYS day treatment program through the high school. He was not able to meet the program's expectations for demonstrating effective emotional skills, communication, or problem solving, according to a JCS report. In fact, M.L. became so hostile in the program that he called the counselor a “cunt” in the classroom in early June 2014, resulting in his suspension for the last few days of the school year. JCO Michele Olthoff, who supervised M.L., reported M.L.'s “level of open disrespect and veiled aggression” decreased over the summer, with the exception of two incidents in July when he was “extremely argumentative” and exhibited threatening behavior toward her. M.L. also regularly attended individual therapy sessions with Dr. Dale Armstrong during this period.

At the opening of a review hearing on August 25, 2014, the juvenile court recalled “there was a consent decree entered on one charge and then a formal adjudication on a count of harassment in the first degree.” During the hearing, the juvenile court heard testimony on behalf of the State from assistant superintendent Harold Minear. Minear testified M.L., who earned high school credits while attending the FLYS day program, was “a very intelligent young man” and “academically is a very strong student.” Minear testified the alternative high school continued to be an option for M.L., though M.L. “struggles with boundaries” which is an ongoing concern. The State also offered testimony from JCO Olthoff. She testified that for the first time in her twenty years of working for JCS she was unable to make a recommendation as far as placement. Olthoff testified M.L. had “a great deal of anger and aggression” and did not improve his coping skills even after twice completing the aggression replacement training. But she acknowledged sending M.L. to residential treatment could backfire and make matters worse for him.

M.L. offered testimony from Dr. Armstrong, the child's treating psychiatrist. Dr. Armstrong testified M.L. “had a chip on his shoulder,” but the psychiatrist has seen progress in the child. “The whole challenge with any person his age is putting him in the setting that allows him to grow and I believe with every bone in my body that he does not need to be in residential.”

The State asked for “a higher level of care” for M.L. M.L.'s counsel argued against out-of-home placement, but asserted: “if the Court seeks consequence for [M.L.] not following through with Francis Lauer [treatment center], the Court has the ability to revoke the consent decree and then place him on further probation restrictions” including attendance at the alternative high school and outpatient treatment with Dr. Armstrong. At the close of the hearing, the juvenile court ordered M.L. to be placed in group care. M.L. now appeals that disposition.

II. Ineffective Assistance of Child's Counsel

On appeal, M.L. alleges he received ineffective assistance of counsel at the juvenile court proceedings. A child adjudicated to be delinquent has the right to the assistance of counsel at dispositional hearings and hearings to review a dispositional order. Iowa Code § 232.11(1)(e), (f) (2013). The right to counsel necessarily implies that counsel be effective. Cf. Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994) (discussing postconviction relief counsel).

No reported Iowa case expressly addresses the standard for effective assistance of counsel in juvenile delinquency proceedings. In...