                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1512
                              Filed October 14, 2015


IN THE MATTER OF D.B.,
ALLEGED TO BE SERIOUSLY MENTALLY IMPAIRED,

D.B.,
     Respondent-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Des Moines County, Cynthia J.

Danielson, Judge.



        D.B. appeals the district court’s order involuntarily committing him to a

treatment facility following its finding D.B. suffered serious mental impairment.

AFFIRMED.



        William C. Glass, Keosauqua, for appellant.

        Thomas J. Miller, Attorney General, Gretchen Witte Kraemer, Assistant

Attorney General, and Amy K. Beavers, County Attorney, for appellee State.



        Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
                                          2


POTTERFIELD, Judge.

       D.B. appeals the district court’s order involuntarily committing him to a

treatment facility following its finding D.B. suffered serious mental impairment.

       I. Factual and Procedural Background

       D.B. was found to be seriously mentally impaired on September 20, 2011.1

He was diagnosed as paranoid schizophrenic. He was committed to inpatient

treatment on the day of his adjudication and again on several occasions when he

failed to comply with his outpatient treatment requirements.

       On August 18, 2014, D.B.’s social worker and doctor filed a report with the

Des Moines County Clerk of Court pursuant to Iowa Code section 229.15(2)

(2013) requesting D.B.’s return to inpatient treatment. The letter stated:

              [D.B.] has a chronic and persistent mental illness. His
       condition appears to be deteriorating. He has recently begun [to]
       act more on apparently delusional beliefs; according to his mother,
       he believes people are breaking into his home and poisoning his
       food; she says he is doing things like installing alarms, video
       cameras at his home, and he was recently arrested for public
       nuisance charges involving this kind of behavior.
              [D.B.] has not been able to abide by a behavioral contract.
       He reported to Sgt. Zahn, Burlington Police: “I’m afraid I’ll snap.”
       Additionally, his mother says he recently hit her and broke her
       glasses.
              [D.B.] did not keep his last [two] out[patient] appointments.
       He is not responding to our efforts to communicate w[ith] him.
              [D.B.] does not have the insight and/or awareness
       re[garding] his illness and for all of these reasons, we feel he is a
       potential danger to himself and/or others at this time.

The same day, the district court issued an order for immediate custody, for

evaluation, and for hearing. It scheduled the hearing on the matter to take place




1
 D.B. appealed the adjudication, and this court affirmed. See In re D.B., No. 11-1836,
2013 WL 2145767, at *2–3 (Iowa Ct. App. May 15, 2013).
                                         3


on August 26, 2014. D.B. was taken into immediate custody and admitted to

University of Iowa Hospitals and Clinics (UIHC).

       On August 26, D.B. appeared for the hearing with his appointed counsel,

Alan Waples. D.B. interjected before Waples was able to address the court and

demanded Waples not be permitted to represent him. The district court asked

D.B. if he was requesting a continuance in order to find new counsel. D.B. did so

request, and a continuance was granted until September 9, 2014. Waples was

to remain D.B.’s appointed counsel until new counsel filed an appearance.

       On September 8, D.B. refused to be transported for the hearing the next

morning.   He instead appeared by telephone on September 9.             He had not

retained a new attorney.2 As a result, Waples appeared at the hearing. Once

again, D.B. interjected before Waples could address the court. He adamantly

insisted Waples not be permitted to advocate on his behalf. He accused Waples

of “fraud” and of being involved in a “scandal,” affecting D.B.’s treatment options.

The hearing proceeded with D.B. conducting all cross examination and

presenting his own testimony and the direct examination of his witness. The

transcript of the hearing shows Waples was not able to make even a single

statement on the record without interruption and objection by D.B.

       A doctor from UIHC testified at the hearing. He explained D.B. had been

diagnosed with paranoid schizophrenia, though an unspecified psychotic disorder

may have been a more appropriate diagnosis.           He testified D.B. had been

refusing medication while at UIHC, had become more tangential, and had


2
 D.B. claimed he had found an attorney to take his case. However, he stated he had
not paid the attorney’s retainer. No attorney had filed an appearance with the court.
                                            4


displayed paranoid delusions. He stated he believed “that if [D.B.] were to be

released or provided no treatment at this time that he would be a danger to

himself or others.”

       Following the doctor’s testimony the court accepted into evidence a report

written by the doctor that described D.B. as “violent” and stated, “[D.B.] has had

several problems with his family and the police due to his psychosis and

personality vulnerabilities. . . . [He] has assaulted others in the past including

medical personnel and has a long history of arrests and legal action.” The report

notes three convictions for disorderly conduct since 2009.

       D.B. testified on his own behalf. He claimed the medication his doctors

wished to administer was poison. He attempted to call two witnesses, both fellow

patients at UIHC. One of those witnesses testified. The content of the witness’s

testimony established he had never seen D.B. yell at, disobey, or act rudely

towards the UIHC staff.       The other witness was not available during D.B.’s

presentation of evidence, and the hearing concluded without that witness’s

testimony.

       Following the hearing, the court ordered D.B.’s placement with UIHC

remain in force and further ordered “a complete psychiatric evaluation and

appropriate treatment.”

       D.B. appeals,3 asking this court to find “there was insufficient evidence to

support his continued hospitalization” and his “trial counsel was ineffective” for


3
 D.B.’s request for relief asks this court to “release him from inpatient hospitalization.”
D.B. has already been released by the district court’s order dated June 25, 2015. We
nevertheless decline to dismiss the appeal as moot. Our supreme court has held “a
party who has been adjudicated seriously mentally impaired and involuntarily committed
                                            5


failing to call his second witness and for failing to object to the untimeliness of the

August 26, 2014 hearing.4

       II. Standard of Review

       “We review challenges to the sufficiency of the evidence in involuntary

commitment proceedings for errors at law.” B.B., 826 N.W.2d at 428. “The

district court’s findings of fact are binding upon this court if supported by

substantial evidence.” In re B.T.G., 784 N.W.2d 792, 796 (Iowa Ct. App. 2010).

“Evidence is substantial if a reasonable trier of fact could conclude the findings

were established by clear and convincing evidence.” Id. Clear and convincing

evidence “means that there must be no serious or substantial doubt about the

correctness of a particular conclusion drawn from the evidence.”               B.B., 826

N.W.2d at 428.

       We review ineffective-assistance-of-counsel claims de novo.              State v.

Clay, 824 N.W.2d 488, 494 (Iowa 2012).

       III. Discussion

       D.B. first claims the district court’s order was not supported by substantial

evidence. The district court’s order was proper only if the court “[found] by clear

and convincing evidence that the respondent has a serious mental impairment.”


is presumed to suffer collateral consequences justifying appellate review” even if he has
already been released—an exception to our mootness doctrine. See In re B.B., 826
N.W.2d 425, 429–30 (Iowa 2013) (noting one such collateral consequence is the
“potential to use one’s involuntary commitment as evidence in future proceedings”).
4
  The district court ordered immediate custody as provided by Iowa Code section 229.11,
which requires “[a] hospitalization hearing shall be held no more than five days after the
date of the order, except that if the fifth day after the date of the order is a Saturday,
Sunday, or a holiday, the hearing may be held on the next succeeding business day.”
The immediate custody order was entered on Monday, August 18, 2014. Under section
229.11, the hospitalization hearing could occur no later than Monday, August 25.
However, the district court first scheduled the hearing for Tuesday, August 26.
                                           6


Iowa Code § 229.13(1). The district court relied upon the statutory definition of

“serious mental impairment,” which:

       describes the condition of a person with mental illness[5] and
       because of that illness lacks sufficient judgment to make
       responsible decisions with respect to the person’s hospitalization or
       treatment, and who because of that illness . . . [i]s likely to
       physically injure the person’s self or others if allowed to remain at
       liberty without treatment.

Id. § 229.1(17).

       D.B. first challenges the district court’s finding that he “lacks judgment to

make a responsible decision regarding his hospitalization or treatment.” We find

there is substantial evidence to support the district court’s conclusion.       The

record shows both before and during his hospitalization, D.B. refused to follow

his doctors’ treatment recommendations or medication regimen. In refusing his

medication, D.B. was susceptible to the paranoid delusions observed by his two

doctors.

       D.B. next challenges the district court’s finding that “he is likely to

physically injure himself or others.” “The threat the patient poses to himself or

other must be evidenced by a recent overt act, attempt or threat.” B.T.G., 784

N.W.2d at 798. We find there is substantial evidence in the record of such overt

acts, supporting the district court’s finding.

       The August 18, 2014 report from D.B.’s doctor and social worker indicates

his behavior deteriorated while he resided outside a treatment center and refused

to follow his medication regimen. The report describes an incident in which D.B.

allegedly struck his mother. The August 27, 2014 report admitted into evidence

5
 D.B. does not contest the finding he suffers from a mental illness. His diagnosis is
well-documented throughout the record.
                                           7


at the September hearing notes D.B.’s “non-compliance with med[ication]” and

that he is “violent.” The report asserts D.B. threatened that “these piece of shit

doctors are gonna fucking pay for this.” It also refers to several criminal charges

from recent years involving D.B.’s violent behavior. These facts taken together—

particularly the evidence of the overt acts of D.B. striking his mother and

threatening his doctors—constitute substantial evidence to support the district

court’s finding, contrary to D.B.’s assertion on appeal that “no evidence in the

record [shows] that he was a danger to himself or others.”

       The district court’s findings of fact are supported by substantial evidence,

and we therefore affirm the district court’s order.

       D.B. next claims Waples rendered ineffective assistance.6 “To prevail on

a claim of ineffective assistance of counsel, a claimant must . . . [show]

(1) counsel failed to perform an essential duty; and (2) prejudice resulted.” State

v. Clay, 824 N.W.2d 488, 495 (Iowa 2012) (citations and internal quotation marks

omitted). Both elements must be shown by a preponderance of the evidence,

and an ineffective-assistance claim may be disposed of if either element is

lacking. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). “[W]e begin

with the presumption that the attorney performed competently.”                Id.   “We

scrutinize each claim in light of the totality of the circumstances.” Id.




6
  It is not definitively established that the right to effective assistance of counsel is
implicated in chapter 229 proceedings. See In re J.H., No. 12-1133, 2013 WL 1760183,
at *2–3 (Iowa Ct. App. Apr. 24, 2013) (citing In re Detention of Crane, 704 N.W.2d 437,
438–39 n. 3 (Iowa 2005); In re Detention of Willis, 691 N.W.2d 726, 730 (Iowa 2005)). In
consideration of our ultimate conclusion on the merits of D.B.’s ineffective-assistance
claims, we “assume the right to effective assistance of counsel exists under chapter 229
for the purposes of this appeal.” See id. at *3.
                                         8


      With these principles in mind, we conclude D.B. cannot prevail on his

claim Waples failed to perform an essential duty when D.B. himself prevented

Waples from performing those duties.         D.B. immediately and aggressively

interjected his refusal to accept Waples’s representation at the beginning of the

first scheduled hearing on August 26; counsel was cut off and given no

opportunity to object to any procedural defect.        The same is true for the

September 9 hearing, when D.B. demanded the court not permit Waples to

advocate on his behalf. D.B. therefore cannot “show [Waples’s] performance fell

outside the normal range of competency.” State v. Dudley, 766 N.W.2d 606, 620

(Iowa 2009). No attorney—no matter how skillful—could have done more for

D.B. than Waples because counsel was never given the opportunity to assert a

claim or make an argument.       The court, at D.B.’s insistence, conducted the

hearings without giving counsel an opportunity to speak.

      D.B. has not overcome our presumption that Waples acted competently in

light of the totality of the circumstances, and we therefore reject his ineffective-

assistance claims.

      IV. Conclusion

      The record contains substantial evidence supporting the district court’s

findings. D.B. has not established his appointed counsel was ineffective in light

of the circumstances of this case. We affirm.

      AFFIRMED.
