J.P.B., In Interest of, 86-1495

• Decision Date: 17 February 1988
• Docket Number: No. 86-1495,86-1495
• Citation: 419 N.W.2d 387
• Parties: In the Interest of J.P.B. and C.R.B., Minor Children, A.B., Natural Mother, Appellant. C.R.B., Minor Child, Cross-Appellant.
• Court: Iowa Supreme Court

Page 387

419 N.W.2d 387

In the Interest of J.P.B. and C.R.B., Minor Children,

A.B., Natural Mother, Appellant.

C.R.B., Minor Child, Cross-Appellant.

No. 86-1495.

Supreme Court of Iowa.

Feb. 17, 1988.

Michael T. Hines of McCarthy & Lammers, Davenport, for appellant-mother.

Bobbi M. Alpers, Davenport, for cross-appellant minor child.

Thomas J. Miller, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., and Valencia Voyd McCown, Asst. Atty. Gen., for appellees.

Considered by SCHULTZ, P.J., and LAVORATO, NEUMAN, SNELL, and ANDREASEN, JJ.

NEUMAN, Justice.

This is an appeal by a mother (A.B.) and a cross-appeal by her thirteen-year-old daughter (C.B.) from a juvenile court decision which terminated the parent-child relationship between the mother, her daughter, and nine-year-old son (J.B.). C.B., who opposed the termination, claims that she was denied her constitutional right to effective assistance of counsel because her court-appointed attorney also represented her brother J.B. who favored termination. The mother, A.B., claims that her attorney's failure to object to the conflict of interest inherent in the dual representation of her children severely prejudiced the outcome of the case. We affirm.

I. In April 1986, after years of social service agency involvement with this troubled family, the State petitioned to terminate A.B.'s parental relationship with C.B. and J.B. As grounds for termination, each petition cited Iowa Code section 232.116(5) (1985); that is, the children have previously been adjudicated in need of assistance (CINA), custody of the children had been transferred from the parent for at least twelve of the preceding eighteen months, and the child could not safely be returned to the parent's custody. ¹

The petitions were consolidated for hearing. In accordance with section 232.113, the juvenile judge appointed an attorney for the mother, an attorney for the children (Preacher), and a guardian ad litem for the children.

At the hearing, the parties stipulated to findings concerning the children's CINA status and their foster care placement for longer than twelve months. The only real issue to be tried, therefore, was whether the State could prove by clear and convincing evidence that the children could not be returned to the custody of their mother without suffering harm. See Iowa Code §§ 232.116(5)(c), 232.102(4); In re D.W., 385 N.W.2d 570, 573-74 (Iowa 1986).

In support of the petitions, the State called fifteen witnesses who had professionally evaluated or worked with A.B., C.B. or J.B. at some point since 1980. All were cross-examined by counsel for A.B., Preacher and the guardian ad litem. When the State rested, attorney Preacher presented the opposing views on termination held by his clients C.B. and J.B., but called no witnesses. A.B. then testified on her own behalf, offering the testimony of two lay witnesses with little or no knowledge of her parenting ability. She also called C.B. as a witness. At the insistence of the juvenile judge, and without objection by counsel, C.B. was questioned in camera, but on the record.

This opinion would be unduly lengthened, and our jurisprudence little advanced, by a detailed recitation here of the evidence revealed in support of the petition to terminate. Briefly stated, initial investigations and services furnished by the Department of Human Services ranged from concern about housekeeping, hygiene, child supervision, and confused generational boundaries, to substantiated allegations of incest and other sexual abuse. For example, in 1983 one of A.B.'s boyfriends was convicted and incarcerated for sexually abusing C.B. The record reveals that A.B., who was a victim of her own father's incestuous behavior, suspected the abuse at least a year before it was reported. Even after both children were placed in foster care, continuing abuse by family members and boyfriends during visitation periods was reported. In 1985, and again in early 1986, investigations prompted by J.B.'s disruptive behavior in the foster home and at school led to his candid revelation of being picked up in a car before school by A.B. and her relatives where he became an unwitting participant in a variety of sexual acts which he referred to as "the game." Similarly alarming complaints by C.B., plus nonverbal cues such as vaginal infections and compulsive bathing following extended visits in A.B.'s home, led protective service workers to suspect continuing sexual abuse despite her protestations to the contrary. In summary, the evidence overwhelmingly suggested that despite extensive professional counseling, A.B. was unwilling, or unable, to separate herself and the children from the influence of a family plagued by a history of incestuous behavior.

Neither of the appellants claim that the evidence presented is insufficient to support the juvenile court's decree terminating parental rights by the requisite standard of proof. Appellants' sole claim on appeal is that the conflict of interest inhering in Preacher's dual representation of the children's opposing interests led to a trial that cannot be relied upon as having produced a just result. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).

II. Before considering appellant's substantive challenge, we must address a preliminary question concerning preservation of error.

The State argues that the question of ineffective assistance of counsel premised on dual representation has not been properly preserved for review on appeal because neither counsel for C.B. or A.B. objected to the appointment before the trial court. Counsel for A.B. points out, however, that in previous cases we have held that the lack of objection to an alleged conflict of interest did not preclude consideration of the issue on appeal. See State v. Neal, 353 N.W.2d 83, 86 (Iowa 1984); State v. Don, 318 N.W.2d 801, 807 (Iowa 1982).

We find the rationale of those cases equally applicable here. Since there is no procedural equivalent to postconviction relief for proceedings to terminate parental rights, and because counsel's failure to object might in itself constitute ineffective assistance, direct appeal is the only way for appellants to raise the issue. Finding no merit in the State's contrary argument, we proceed to a discussion of the standards for measuring the adequacy of counsel's performance.

III. We have only recently had our first opportunity to consider a claim of ineffective assistance of counsel in the context of a proceeding to terminate parental rights. In In re D.W., 385 N.W.2d 570, 579 (Iowa 1986), we noted that because the proceedings were civil, not criminal, no sixth amendment constitutional protections were implicated. Id. Nevertheless, because due process requires counsel appointed under a statutory directive to provide effective assistance, we applied the same standards adopted for counsel appointed in a criminal proceeding:

The Strickland principles require the party claiming ineffective assistance of counsel to show (1) that counsel's performance was deficient, and (2) that actual prejudice resulted. 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. Our scrutiny of the CHINA counsel's performance must "be highly deferential," 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.

D.W., 385 N.W.2d at 579-80. Where the alleged ineffectiveness of counsel derives from a conflict of interest, prejudice is presumed. Strickland 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 689, (citing Cuyler v. Sullivan, 446 U.S. 335, 345-50, 100 S.Ct. 1708, 1716-19, 64 L.Ed.2d 333, 344-48 (1980)). The presumption is justified by the difficulty in measuring precisely the effect of a defense corrupted by conflicting interests. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. Even so, a per se rule is not applied. In Cuyler, the Supreme Court held that in order to demonstrate a violation of sixth amendments rights, a defendant must establish that an actual conflict of interest adversely affected the lawyer's performance. 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 348 (emphasis added). In Iowa we have adopted a less stringent standard, stating "it is enough if there is a 'substantial possibility' that a conflict of interest affected the lawyer's representation." Nichol v. State, 309 N.W.2d 468, 470 (Iowa 1981); Jackson v. Auger, 239 N.W.2d 180, 183 (Iowa 1976); Bumgardner v. State, 401 N.W.2d 211, 213 (Iowa App.1986).

With these principles in mind, we address C.B.'s contention that Preacher's simultaneous representation of J.B. constituted a conflict of interest sufficient to create a substantial possibility that C.B.'s representation was adversely affected. Appellant claims that because J.B. favored termination and C.B. wanted to return to her mother's home, Preacher could not represent both of them with the full loyalty and zeal necessary for effective assistance. Under the standard established in Cuyler v. Sullivan, she claims prejudice need not be shown.

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