                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-1418
                                 Filed May 20, 2015

IN THE INTEREST OF M.L.,
      Minor Child,

M.L., Minor Child,
       Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Cerro Gordo County, Annette

Boehlje, District Associate Judge.



      A juvenile charged with delinquent acts and subject to a consent decree

appeals his residential placement. REVERSED AND REMANDED.




      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.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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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
                                         3



        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.
                                            4



        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



1
 The trial court papers include a court reporter certification indicating a Consent Decree
Review proceeding was reported on January 2, 2014, but a transcription of that
proceeding was not made part of our record on appeal.
                                        5



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
                                         6



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
                                        7



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 termination of

parental rights proceedings, our courts have borrowed the test for effective

assistance of counsel in criminal proceedings from Strickland v. Washington, 466

U.S. 668, 687 (1984). See In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988); In re

D.W., 385 N .W.2d 570, 579 (Iowa 1986); In re D.P., 465 N.W.2d 313, 316 (Iowa

Ct. App. 1990). Because juvenile proceedings are civil not criminal, the right is
                                        8



guaranteed by the due process clause rather than the sixth amendment. D.W.,

385 N.W.2d at 579. We now hold the Strickland test for effective assistance of

counsel should apply in the juvenile delinquency context, and join other state

courts that have explicitly adopted that standard. See, e.g., In re Marquita M.,

970 N.E.2d 598, 602 (Ill. App. Ct. 2012); In re Parris W., 770 A.2d 202, 206 (Md.

2001); In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. Ct. App. 1987); M.B. v.

State, 905 S.W.2d 344, 346 (Tex. Ct. App. 1995).

III.   Scope and Standards of Review

       Juvenile delinquency hearings are special proceedings that provide an

alternative to the criminal prosecution of children where the best interest of the

child is the objective. In re J.A.L., 694 N.W.2d 748, 751 (Iowa 2005). We review

juvenile court orders de novo. Id. We give weight to the factual findings of the

juvenile court, especially when considering the credibility of witnesses, but are

not bound by them. In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996).

       We also review due process claims de novo.         State v. Johnson, 784

N.W.2d 192, 194 (Iowa 2010).         “While it is not necessary that juvenile

proceedings conform with all requirements of a criminal trial, the hearing must

measure up to the essentials of due process and fair treatment.” In re Dugan,

334 N.W.2d 300, 304 (Iowa 1983).

IV.    Analysis of M.L.’s claims

       M.L. alleges his attorney at the juvenile court proceedings was ineffective

in two ways: (1) by allowing M.L. to plead guilty to an amended delinquency

petition following the entry of a consent decree and (2) by not objecting to a
                                          9



change in custody and placement in residential care after he was granted a

consent decree.      Because the entry of the consent decree is the common

building block, we start with that procedure.      The relevant statutory provision

states in pertinent part:

       At any time after the filing of a petition and prior to entry of an order
       of adjudication pursuant to section 232.47, the court may suspend
       the proceedings on motion of the county attorney or the child’s
       counsel, enter a consent decree, and continue the case under
       terms and conditions established by the court.

Iowa Code § 232.46(1).

       A consent decree provides a way for juvenile proceedings to be

suspended short of an adjudication of delinquency. State v. Iowa Dist. Ct., 828

N.W.2d 607, 611 (Iowa 2013). It is “essentially a bipartite arrangement between

the juvenile court and the allegedly delinquent child that is memorialized in a

court order (hence the term ‘consent decree’).” Id. “The result of a successful

probation under a consent decree would be that the case be dismissed without

an adjudication of delinquency against the child.” In re Rousselow, 341 N.W.2d

760, 762 (Iowa 1983).

       In this case, the juvenile court entered a consent decree on January 2,

2014, based on a joint proposal from M.L. and the State. At that time, the only

pending delinquency petition alleged M.L. committed the offense of intimidation

with a dangerous weapon—by threats in violation of Iowa Code section 708.6.

The application for the consent decree referenced that charge. In granting the

consent decree, the court declared: “these proceedings are suspended and this

matter is continued as provided in Section 232.46.”
                                       10



        Despite that order suspending the proceedings and with no other

delinquency petition filed, M.L. appeared before the juvenile court on February 6,

2014, for an adjudication hearing pursuant to section 232.47.        The parties

stipulated that M.L. be placed on formal probation for the offense of harassment

in the first degree. Without any explanation for the timing, five days later the

State filed an amended delinquency petition alleging M.L. committed the

delinquent act of harassment in the first degree. Both the harassment charge

and the intimidation charge cited to the same acts occurring on September 24,

2013.

        M.L. contends his counsel performed below constitutional standards by

allowing him to plead to an amended petition after previously entering a consent

decree. On the prejudice prong, M.L. argues: “Had trial counsel insisted that the

consent decree be enforced, the matter never would have come for a disposition

review hearing under section 232.54.” The State argues on appeal that trial

counsel provided competent representation because the proceedings involved

M.L.’s commission of “two separate crimes and not the substitution of one crime

for the other.”

        The record does not support the State’s position.    Neither the original

delinquency petition filed October 1, 2013, nor the amended petition filed

February 11, 2014 alleged two separate counts against M.L. Both petitions are

filed under the same juvenile court number and both refer to M.L.’s actions on the
                                         11



same date—without differentiating specific acts to satisfy separate provisions of

the criminal code.2

       We acknowledge the parties’ stipulation presented to the court on

February 7, 2014, stated that M.L. agreed to admit to the harassment charge “in

exchange” for the State’s agreement to enter into a consent decree on “a related

charge.”3   But we are persuaded by M.L.’s argument that trial counsel was

ineffective in allowing M.L. to go forward with the adjudication for harassment

under section 232.47 when the court had suspended the case in the order

granting the consent decree on January 2, 2014.

       After the juvenile court suspended the proceedings on January 2, the child

should have been given the opportunity to comply with the terms and conditions

of the consent decree before an adjudication proceeding in the same case was

commenced under section 232.47. See Iowa Code § 232.46(5), (6). In addition,

at the time M.L. applied for and received the consent decree on the intimidation

charge on January 2, 2014, the terms and conditions authorized by section

232.46 did not include transfer of custody and placement at a residential facility.

See Iowa Dist. Ct., 828 N.W.2d at 612; but see 2014 Iowa Acts ch. 1141, § 74

(effective July 1, 2014).4 Accordingly, M.L.’s trial counsel was ineffective in not




2
  The parties do not address the question whether harassment in the first degree is a
lesser included offense of intimidation with a dangerous weapon by threats.
3
  We note a consent decree does not require the blessing of the county attorney. Iowa
Code § 232.46(3); In re J.J.A., 580 N.W.2d 731, 741 (Iowa 1998) (affirming juvenile
court’s entry of consent decree over State’s objection). We also note M.L.’s consent
decree did not mention any agreement that M.L. would admit responsibility for another
offense.
4
  We presume the statute is to be prospective in its operation. See Iowa Code § 4.5.
                                           12



objecting to M.L.’s placement in residential care after he was granted a consent

decree under section 232.46.

       We agree with M.L. that he was denied due process by virtue of the

deficient performance of his attorney in the juvenile court proceedings.            Trial

counsel breached a material duty by allowing M.L. to be adjudicated delinquent

for the offense of first-degree harassment when no petition was pending on that

charge and after the court had granted M.L.’s request for a consent decree on

the pending petition alleging intimidation for the same acts.            See State v.

Halverson, 857 N.W.2d 632, 638 (Iowa 2015) (holding counsel’s error in not

preserving claim could not be attributed to reasonable tactics or strategy). M.L.

suffered prejudice as a result of counsel’s errors because the juvenile court

adjudicated him delinquent after suspending the proceedings and without

allowing M.L. an opportunity to comply with the terms of the consent decree, and

placed him in residential treatment when that placement was not an available

consequence under section 232.46.

       We vacate the February 7, 2014 disposition order and the August 26,

2014 review order.5 We remand to the juvenile court for a determination whether

M.L. has complied with the terms and conditions of the January 2, 2014 consent

decree.

       REVERSED AND REMANDED.




5
  Because we grant M.L. relief on his ineffective assistance of counsel claims, we do not
need to address his contention that the State failed to prove residential treatment was
the least restrictive alternative and in his best interest.
