text:
    2004 ND 229
    SPECTRUM CARE, L.L.C., Appellant v. WORKFORCE SAFETY and INSURANCE, Appellee.
    No. 20040171.
    Supreme Court of North Dakota.
    Dec. 17, 2004.

      Lynn M. Boughey, Boughey Law Firm, Minot, N.D., for appellant.
    Lawrence E. King, Special Assistant Attorney General, Zuger Kirmis & Smith, Bismarck, N.D., for appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Spectrum Care, L.L.C., appealed from a judgment affirming a Workforce Safety and Insurance (“WSI”) decision classifying Spectrum’s employees for purposes of establishing Spectrum’s insurance premiums. We conclude WSI’s classification of Spectrum’s employees is supported by a preponderance of the evidence, and we affirm.

I

[¶ 2] Spectrum operates Somerset Court, an assisted living retirement facility in Minot. About seventy-six residents live in apartments at Somerset Court, and the facility provides meals in a dining room for its residents. According to Kathy Klein, the director at Somerset Court, the residents:

have to be able to walk themselves down to the dining room. They need to be able to dress themselves for the most part. We do assist with simple items, buttons, shoes, TED hose, things that are difficult with arthritic fingers, things like that. They need to operate pretty much independently within their own apartment area. We’re there just to provide services to them, you know, as far as things that they would like to have, transportation, activities, meals.

Spectrum provides activities for the residents, including “day trips to the park, to the casino .... different activities in the courtyard, Bocchi ball, horseshoe, different things like that .... scavenger hunts, we play cards, we shoot pool, golfing.”

[¶ 3] Spectrum- is an employer subject to the insurance requirements of N.D.C.C. Title 65, and during the time relevant to this proceeding, employed about thirty-three individuals at Somerset Court, including about sixteen to eighteen “resident service aides” and two “activity aides.” After receiving a claim for benefits and conducting a field audit, WSI classified Spectrum’s “resident service aides” and “activity aides” as “9040 Hospitals” with a designated composite rate of 1.91 for purposes of establishing Spectrum’s insurance premiums. Spectrum requested reconsideration of WSI’s decision, claiming its facility provided no health care for its residents and its employees should have been classified either in a different or a new classification. After further meetings and consideration of Spectrum’s job descriptions, WSI classified Spectrum’s resident services aides and activity aides as “9002 Domestics” with a designated rate of 3.31 for purposes of establishing Spectrum’s insurance premiums.

[¶ 4] Spectrum requested' and received a formal hearing, after which an administrative law judge recommended affirming WSI’s decision regarding resident service aides and recommended that WSI review the duties and activities of Spectrum’s activity aides for purposes of establishing insurance premiums for them. WSI adopted the administrative law judge’s recommendation, and after Spectrum appealed, the district court affirmed WSI’s decision.

II

[¶ 5] Chapter 65-04, N.D.C.C., authorizes WSI to classify employments with regard to their degrees of hazard, to determine the risks of the different classifications, to fix the rate of premium for each classification, and to determine the amount of premium to be paid by each employer. N.D.C.C. §§ 65-04-01 and 65-04-04. See In re S.A. Healy Co., 109 N.W.2d 249, 250 (N.D.1960). Section 65-04-32, N.D.C.C., was enacted in 2001 to provide employers with a procedure to challenge decisions under N.D.C.C. ch. 65-04, and parallels the procedure for challenging claims decisions in N.D.C.C. § 65-01-16. Hearing on SB 2157 Before Senate Industry, Business, and Labor Comm., 57th N.D. Legis. Sess. (Jan. 17, 2001) (written testimony of Julie Leer, General Counsel for WSI). Section 65-04-32, N.D.C.C., outlines the procedures for challenging a WSI decision under N.D.C.C. ch. 65-04, and those procedures include an informal decision by WSI, an employer’s right to petition for reconsideration, and a party’s right to request a rehearing. Under N.D.C.C. § 65-04-32(5), rehearings must be conducted as hearings under N.D.C.C. ch. 28-32, to the extent that chapter does not conflict with N.D.C.C. § 65-04-32. WSI may request a hearing officer to conduct a rehearing and issue recommended findings, conclusions, and orders. Within sixty days after receiving the administrative law judge’s recommendation, WSI must serve the parties with its posthearing administrative order, and an employer may appeal to the district court under N.D.C.C. ch. 65-10. Section 65-10-01, N.D.C.C., authorizes appeals of WSI decisions issued under N.D.C.C. ch. 65-04, and any appeal under that section must be taken in the manner provided by N.D.C.C. ch. 28-32. Those provisions contemplate review of decisions classifying employees for purposes of insurance under the same standard of review for decisions on claims for benefits.

[¶ 6] Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further review, must affirm a WSI decision on a claim for benefits if: its findings of fact sufficiently address the evidence and are supported by a preponderance of the evidence; its conclusions of law and order are supported by its findings of fact; its decision is supported by its conclusions of law; its decision is in accordance with the law and does not violate the claimant’s constitutional rights; its rules or procedures have not deprived the claimant of a fair hearing; its conclusions of law and order sufficiently explain its rationale for not adopting a contrary recommendation by an administrative law judge; and the provisions of N.D.C.C. ch. 28-32 have been complied with in proceedings before the agency. In reviewing an agency’s findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency. Elshaug v. Workforce Safety & Ins., 2003 ND 177, ¶ 12, 671 N.W.2d 784. Rather, we decide only whether a reasoning mind reasonably could have determined the agency’s factual conclusions were supported by the weight of the evidence from the entire record. Id. An agency’s decision on a question of law, including the interpretation of a statute, is fully reviewable by this Court. Id. Our review under those provisions is consistent with the deferential standard that this Court has historically applied to rate decisions by the predecessor to WSI. See State v. Hughes Elec. Co., 51 N.D. 45, 57, 199 N.W. 128, 132 (1924) (“court may not substitute its judgment for that of the bureau as to what is a reasonable rate or just premium”). Moreover, in other contexts, we have specifically observed that we give deference to administrative agencies in complex areas like rate setting. See St. Benedict’s Health Ctr. v. North Dakota Dep’t of Human Servs., 2004 ND 63, ¶ 9, 677 N.W.2d 202. We apply those principles of deference to our review in this case.

Ill

[¶ 7] In its appellate brief, Spectrum argues WSI failed to issue a final order in this matter, because WSI’s decision required further analysis of the appropriate classification for Spectrum’s activity aides. WSI responds that it has completed its classification of activity aides and has supplemented the record accordingly. During oral argument to this Court, Spectrum conceded that issue has been finally resolved and this appeal is properly before us.

rv

[¶ 8] Spectrum argues WSI improperly classified Spectrum’s resident service aides. Spectrum argues resident service aides do no heavy lifting or other types of physical activity, and WSI misinterpreted and misapplied Spectrum’s job description and disregarded the evidence submitted by Spectrum as to the actual duties and risks for resident service aides. Spectrum argues WSI refused to consider and compare the rates and risks of other classifications as an indication of the rate and risk that exists for resident service aides. Spectrum claims its resident service aides should have been classified as “9090 Athletic Club” with a rate of 1.48 for purposes of establishing Spectrum’s insurance premiums, or WSI should have adopted a new rate classification for Spectrum’s employees.

[¶ 9] WSI’s July 2002 Classification Manual includes 141 employment classifications and explains that those classifications and rates were established with the assistance of an actuarial consultant. As relevant to this proceeding, WSI’s Classification Manual describes “9002 Domestics” as:

• Employees engaged in household or domestic work performed principally inside the insured’s residence. This would include a cook, housekeeper, laundry worker, maid, butler, companion, or baby sitter. The classification contemplates employees who may perform various services for the private residents. Principal duties pertain to the general operations of the household.
• Also contemplated by this classification are those individuals performing home help services or providing personal assistance or home care for persons who are convalescent, aged, acutely or chronically ill, or disabled.
—Home services providing principally nursing care by licensed nurses' rated separately under 9040.
—Does not include farm activities.
—Lawn and garden service employees rated separately under 9007.
—Commercial janitorial services, cleaning services, or contractors providing workers who specialize in cleaning operations only rated separately under 9007.
—Group homes for the developmentally disabled rated separately.

[¶ 10] Spectrum’s written job description for its resident service aides provides, in part:

Job Summary:
Will complete job duties as assigned by Resident Services Coordinator. Will work closely with RN on staff to ensure medications are distributed to residents who wish, per physician’s orders. Responsible for knowledge of proper procedures to provide personal care services to residents. Will provide requested personal care services to residents. Responsible for the daily cleaning of the common areas of the facility. Responsible for entering notes in daily log. Will complete, as assigned daily, weekly, and monthly reports. Will notify Resident Services Coordinator when additional service needs have been identified for residents. Will coordinate with other agencies coming in to assist residents. Will as’sist in dining room during meal times as server. Will record residents not eating in missed meal log for both lunch and dinner. Will perform laundry duties for residents.
Primary Duties and Responsibilities:
' • Provide personal care services to residents.
• Work .closely with RN on staff to ensure medications are distributed per
. physician’s orders..
• Cooperate with other agencies coming in to assist residents.
• Enter notes in daily log.
• Daily cleaning of common areas in facility.
• Provide input on' resident needs for additional services.
• Assist in dining room during meal times.
• Document resident missed .meals.
• Maintain daily, weekly, and monthly reports.
• Provide laundry service for residents.

[¶ 11] According to Kathy Klein, the director of Somerset Court, a resident service aide’s “day is spent catering to the needs and wishes of our residents,” and an aide’s primary daily duties include “laundry, encouraging activity and participation, assist in the dining room, and then some cleaning around the facility.” Klein testified resident service aides also provide residents some bathing assistance. Tammy Kloehn, a resident service aide at Somerset Court, testified about the amount of time she spends on the various duties and responsibilities identified in Spectrum’s job description for resident service aides. Kloehn testified she spends twenty percent of her time providing personal care service for residents, which includes wellness checks, handing out medication, making appointments, and providing bathing assistance; three percent working with RNs regarding medications; one percent cooperating with other agencies regarding residents; ten percent entering notes in a daily log; fifteen percent cleaning common areas of the facility; one per cent providing input on resident needs for additional services; twenty-five percent assisting in the dining room, which includes offering beverages, taking and filling food orders, and picking up dishes; five percent maintaining daily, weekly, and monthly reports; and twenty percent providing laundry service for residents.

[¶ 12] WSI adopted the administrative law judge’s findings, which recognized that none of WSI’s rate classifications perfectly fit Spectrum’s resident service aides, but concluded “9002 Domestics” was the closest and was a reasonable and logical fit:

24. Specifically, the RSAs work includes such duties as assisting residents with dressing if needed; assisting residents with bathing if needed (washing the back, assisting to lift them, with the help of another RSA, if the resident falls and is not hurt); encouraging residents to participate in activities; handing out medications and giving shots to residents (those that are certified medication aides); responding to resident requests; vacuuming, washing windows, picking up, and other cleaning in the common areas; taking orders, serving food (bring residents their plates), filling juice cups, and pouring coffee in the dining area; carrying resident laundry to the laundry room and washing and drying the laundry; answering telephone calls; giving tours; assisting residents in cooperating with other agencies; providing input to other staff on resident needs; documenting information for residents; and making reports. RSAs do not empty bedpans, transfer residents, or do regular lifting or pulling.
27. The evidence shows that RSAs spend 75% of their time on domestic type duties, specifically on cleaning the commons areas, providing personal care services to residents, assisting residents in the dining room, and doing laundry for residents. Although this work may rarely be heavy labor, it does involve some lifting of residents at times and certainly falls within the work of a domestic and within the description of a Domestic as found in the Bureau’s July 2002 Classification Manual.... The remainder of the RSAs’ time (25%) is spent on less strenuous and, likely, less risky activity such as entering notes in logs, filing reports, providing input to other staff on resident needs, distributing medications, and cooperating with other agencies regarding residents, as well as some time on two new duties, conducting tours on the weekend for prospective residents and their families and answering the telephone for calls to the facility (not calls to individual residents). The evidence is clear that RSAs function some as nurse aides, activity aides, domestics and clerical, but their chief duties are overwhelmingly as Domestics. Again, about 75% of an RSA’s time is spent in domestic duties.

[¶ 13] WSI’s Classification Manual defines “9002 Domestics” to include “cook, housekeeper, laundry worker, maid, butler, companion, or babysitter,” and “performing home help services or providing personal assistance or home care for persons who are ... aged.” We have reviewed the evidence presented at the administrative hearing, and we conclude a reasoning mind could reasonably conclude, as WSI did, that resident service aides spend about seventy-five percent of their time on domestic type duties, including cleaning common areas, providing personal care services to residents, assisting residents in the dining room, and doing laundry for residents. Although this work may not necessarily involve heavy labor, those duties fit within the description of “9002 Domestics” in WSI’s Classification Manual, and we decline to accept any implication in Spectrum’s argument that there must be a perfect fit between the duties of a resident service aide and the description of “9002 Domestics.” We conclude WSI’s findings are supported by a preponderance of the evidence, and WSI’s findings support its conclusions of law and decision.

[¶ 14] We reject Spectrum’s claim that WSI failed to fulfill its statutory obligations by not creating a new rate classification for Spectrum’s facility, or for resident service aides. WSI has a procedure in place for making classifications of employments. See N.D.C.C. § 65-04-01. Contrary to Spectrum’s claims, that statute does not require WSI to adjudicate individual contested claims at the lowest possible scheduled rate. Rather, the statute applies the mix of issues and considerations involved with the actuarial process of establishing classifications and rates at the lowest rate which will enable WSI to comply with other provisions of that section, such as the payment of WSI’s administration expenses, the payment of benefits, and the maintenance of adequate reserves and surplus to keep WSI solvent. See N.D.C.C. § 65-04-01(l)(a), (b), and (c). Any claim for the creation of new classifications or rates must be made in the context of the actuarial process, which is outside the scope of this proceeding.

V

[¶ 15] Spectrum raises numerous procedural and substantive errors that it claims occurred at the administrative hearing and argues WSI refused to consider Spectrum’s claim that WSI acted vindictively and maliciously in establishing Spectrum’s insurance premiums. We have reviewed these claims, and we find they are completely without merit.

VI

[¶ 16] We affirm the district court judgment.

[¶ 17] EVERETT NELS OLSON, S.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

[¶ 18] The Honorable EVERETT NELS OLSON, Surrogate Judge, sitting in place of SANDSTROM, J., disqualified.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2004 ND 228
    STATE of North Dakota, Plaintiff and Appellee v. Randal STEEN, Defendant and Appellant. Randal Steen, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee.
    Nos. 20020343, 20040052.
    Supreme Court of North Dakota.
    Dec. 17, 2004.
    Rehearing Denied Feb. 22, 2005.

      Cynthia Mae Feland and Brandi Sasse Russell, Bismarck, N.D., for plaintiff and appellee.
    Randal Steen, pro se, Bismarck, N.D.
   VANDE WALLE, Chief Justice.

[¶ 1] Randal Steen appealed from a criminal judgment of conviction for possession and manufacture of methamphetamine and possession of drug paraphernalia, and from an order denying his motion for post-conviction relief. We affirm, concluding the trial court did not err when it determined Steen had failed to demonstrate that he received ineffective assistance of counsel at trial.

I

[¶ 2] On January 16, 2002, Deputy Dan Wentz of the Burleigh County Sheriffs Office was attempting to serve civil papers upon Randal Steen and was informed that Steen was staying in Room 55 at the No-Dak Motel in Bismarck. Wentz contacted Deputy Brad Banker of the criminal warrants division, who told Wentz there were outstanding warrants on Steen. After contacting the motel manager to' confirm that Steen was registered in Room 55, Wentz, Banker, and Deputy Charlene Schuh went to the motel. Banker knocked on the door, and there was noise from inside the room. Steen eventually opened the door, and the officers entered. Banker told Steen that they had warrants for his arrest, and Steen was handcuffed.

[¶ 3] The officers noticed what appeared to be drugs’ and paraphernalia in the room, and they asked Steen for permission to search. When Steen declined, Banker contacted Captain Collin Rixen in the warrants division of the • Burleigh County Sheriffs Office. Rixen and an assistant state’s attorney secured a search warrant from the district .court. The resulting search produced additional drugs and paraphernalia.

[¶ 4] Steen was charged with manufacture of methamphetamine, possession of methamphetamine, and two counts of possession of paraphernalia. A jury found Steen guilty on all four counts, and a judgment of conviction was entered. Steen filed a notice of appeal from the judgment.

[¶ 5] While the appeal was pending, Steen filed a motion for post-conviction relief, alleging ineffective assistance of counsel. An evidentiary hearing was held, and the court issued an order denying the motion for post-conviction relief. Steen filed a notice of appeal from that order.

II

[¶ 6] Although Steen filed appeals from both the criminal judgment and the order denying his motion for post-conviction relief, his arguments on appeal all relate solely to the post-conviction proceeding. Accordingly, we address his arguments in that context.

A

[¶ 7]' Steen contends the trial court erred in denying his motion for post-conviction relief based upon his claim that he was denied effective assistance of counsel.

[¶ 8] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454; Ernst v. State, 2004 ND 152, ¶ 6, 683 N.W.2d 891. The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully renewable by this Court. Heckelsmiller, at ¶ 5; Ernst, at ¶ 6. However, a trial court’s findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Heckelsmiller, at ¶ 5; Ernst, at ¶ 6.

[¶ 9] The petitioner for post-conviction relief has the burden of establishing a basis for relief. Ernst, 2004 ND 152, ¶ 6, 683 N.W.2d 891. In Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568, we outlined the “heavy burden” required of the petitioner to prevail on a claim of ineffective assistance of counsel:

The Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel. DeCoteau v. State, 1998 ND 199, ¶ 6, 586 N.W.2d 156. To succeed on a claim for ineffective assistance of counsel, a petitioner must prove counsel’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Robertson, 502 N.W.2d 249, 251 (N.D.1993). “Effectiveness of counsel is measured by an ‘objective standard of reasonableness’ considering ‘prevailing professional norms.’ ” DeCoteau v. State, 2000 ND 44, ¶ 8, 608 N.W.2d 240 (quoting Strickland, at 688, 104 S.Ct. 2052). Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight. Id. (quoting Lange v. State, 522 N.W.2d 179, 181 (N.D.1994)).
The prejudice element requires a defendant to “establish a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different.” Syvertson v. State, 2000 ND 185, ¶ 22, 620 N.W.2d 362. “A criminal defendant has the ‘heavy,’ ‘demanding’ burden of proving counsel’s assistance was ineffective,” Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995), and a defendant claiming ineffective assistance of counsel “must specify how and where trial counsel was incompetent and the probable different result.” State v. Palmer, 2002 ND 5, ¶ 11, 638 N.W.2d 18.
McMorrow v. State, 2003 ND 134, ¶ 10, 667 N.W.2d 577. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, at 694, 104 S.Ct. 2052. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. at 697, 104 S.Ct. 2052.

See also Heckelsmiller, 2004 ND 191, ¶¶ 3-4, 687 N.W.2d 454; State v. Hilgers, 2004 ND 160, ¶ 16, 685 N.W.2d 109; Ernst, at ¶¶ 8-9.

B

[¶ 10] Steen claims that his trial counsel was deficient in failing to challenge Steen’s arrest and the search of the motel room because the arrest warrant for Steen was not issued until January 18, 2002, two days after Steen’s arrest. Steen’s argument is based upon a faulty interpretation of the facts.

[¶ 11] Steen correctly notes that an arrest warrant was issued for him on January 18, 2002, two days after the arrest and search at the NoDak Motel. He asserts that the officers therefore had no basis to arrest him on January 16, and his trial counsel was deficient in not challenging the search resulting from the arrest.

[¶ 12] The arrest warrant of January 18 was issued in conjunction with a criminal complaint, filed the same day, charging Steen under N.D.C.C. § 12.1-08-05 with three counts of failure to appear. The January 18 complaint charged Steen with failure to appear at a January 14, 2002, revocation hearing for criminal mischief; failure to appear at a January 7, 2002, pretrial conference on a DUI charge; and failure to appear on January 8, 2002, for his scheduled jury trial on charges of possession of stolen property, altering a serial or identification number of a motor vehicle, displaying fictitious license plates, and possession of drug paraphernalia. In other words, in the ten days leading up to his January 16, 2002, arrest, Steen had allegedly failed to appear for three separate court proceedings. It was the bench warrants resulting from his prior failures to appear, not the January 18 warrant issued when Steen was separately charged with the crime of failure to appear, which the officers executed on January 16.

[¶ 13] Rule 6.6, N.D.R.Ct., authorizes issuance of a bench warrant when a person fails to appear in court when required:

Whenever a person fails to appear in court as duly required by an order to show cause, subpoena, or other process, the judge, upon being satisfied of the failure to appear, may order the clerk to issue a bench warrant directed to all peace officers of this state to bring the person before the court immediately or at a time and place therein specified. The warrant may be served by any peace officer in any county of this state in the same manner as an arrest warrant.

[¶ 14] The record contains testimony from the officers involved that there were existing warrants for Steen’s arrest on January 16, 2002. At the post-conviction evidentiary hearing, Steen’s trial counsel testified there were outstanding bench warrants for Steen’s arrest and he believed it would have been futile to move to suppress the evidence obtained in the subsequent search.

[¶ 15] We conclude the trial court did not err in determining that trial counsel’s failure to move to suppress evidence did not constitute ineffective assistance of counsel.

C

[¶ 16] Steen argues his trial counsel was deficient when he failed to object to Steen appearing at the jury trial wearing prison clothing and by failing to arrange for Steen to wear normal attire.

[¶ 17] Steen was transported from the state penitentiary to the courthouse for his trial wearing an orange prison jumpsuit with the words “Prison Inmate” on the back. He remained in those clothes for the first day of trial. On the second day of trial he wore a black-and-white striped uniform with the words “Burleigh County Detention Center” on the back. Steen claims counsel’s failure to arrange for other clothing and failure to formally object to proceeding with the trial with Steen in prison clothing was constitutionally deficient.

[¶ 18] At the post-conviction hearing, Steen’s trial counsel testified he was upset that Steen had been brought to the courthouse in prison clothing without other clothes to change into at the courthouse. He further testified, however, that he discussed the situation with Steen before trial, they felt they could deal with it, and they decided to proceed with the scheduled trial.

[¶ 19] In order to prevail on his ineffective assistance of counsel claim, Steen must show not only that counsel’s performance fell below an objective standard of reasonableness, but must also demonstrate prejudice by establishing “a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different.” McMorrow v. State, 2003 ND 134, ¶ 10, 667 N.W.2d 577 (quoting Syvertson v. State, 2000 ND 185, ¶ 22, 620 N.W.2d 362). We have noted that “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Heckelsmiller, 2004 ND 191, ¶ 4, 687 N.W.2d 454 (quoting Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Unless counsel’s error is so blatantly and obviously prejudicial that it would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, resolution of the prejudice issue will ordinarily require the post-conviction court to assess the prejudicial effect of counsel’s alleged error within the context of the overall conduct of the trial and the evidence presented at trial. The Supreme Court of the United States has concluded that a defendant’s appearance at trial in prison attire does not automatically vitiate a conviction, recognizing that there may be valid tactical reasons for the defendant to prefer the prison attire. Estelle v. Williams, 425 U.S. 501, 507-08, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).

[¶ 20] In this case, the post-conviction court’s ability to assess the prejudicial effect of Steen’s attire was hampered by Steen’s failure to provide a transcript of the trial to the court. The post-conviction court expressly noted that it had not been provided a transcript or other record of the trial proceedings, and was “left with the pleadings of the petitioner and the evidence presented at the time of hearing as a basis for consideration of the petitioner’s application.” On the record before it, the post-conviction court did not err in concluding Steen had failed to establish that counsel’s alleged errors were prejudicial or probably affected the result of the trial.

Ill

[¶ 21] We have considered the remaining issues and arguments raised by the parties. They are either without merit or unnecessary to our decision. The judgment of conviction and the order denying the motion for post-conviction relief are affirmed.

[¶ 22] NORMAN J. BACKES, S.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ„ concur.

[¶ 23] The Honorable NORMAN J. BACKES, S.J., sitting in place of SANDSTROM, J., disqualified.

      . Our decision should not, however, be read as approving the appearance of criminal defendants in obvious prison clothing at a jury trial. See Estelle, 425 U.S. at 504-09, 96 S.Ct. 1691 (criminal defendant may not be compelled to appear at a jury trial in prison attire, but may waive the right by failing to object); see also State v. Hendrick, 164 N.W.2d 57, 59-62 (N.D.1969).


author: GILBERTSON, Chief Justice.

text:
    2004 SD 128
    The PEOPLE of the State of South Dakota in the Interest of L.N., JR., Minor Child, and Concerning M.C.N., Respondent.
    No. 23029.
    Supreme Court of South Dakota.
    Argued Oct. 4, 2004.
    Decided Dec. 1, 2004.
    Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee.
    Douglas N. Papendick, Stiles & Papen-dick, Mitchell, South Dakota, Attorneys for appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] M.N. (mother) appeals the termination of her parental rights over her seven-year-old son, L.N. Jr. (child). We affirm.

FACTS

[¶ 2.] Mother, age 31, is originally from Miller and spent time growing up in Tu-lare, Iroquois and Huron. As a young adult, she lived in Huron. During the course of the abuse and neglect proceedings involving child, she moved to Mitchell. Mother has a long history of mental illness which has, at times, been exacerbated by alcohol and controlled substance abuse. Mother first became pregnant when she was in tenth grade and married the father. Marital difficulties arose, the couple divorced, and custody of the child was awarded to the father with mother relinquishing her parental rights.

[¶ 3.] Mother had a poor employment record as a young adult in Huron and was unable to hold jobs as a dishwasher and housekeeper. She also began drinking and using marijuana and ended up in a chemical dependency treatment program at the Human Services Center in Yankton.

[¶ 4.] Mother returned to Huron and was able to live on Social Security disability and on other assistance programs. She eventually met L.N. Sr. (father) and married for the second time. Child was born to the couple in 1996, but mother’s mental problems resulted in child’s placement in foster care over three different time periods. In January 1997 mother voluntarily placed child in foster care because she was unable to care for child and needed to seek treatment for her depression and to stabilize her medications. Child remained in foster care for sixty days. Child was voluntarily placed in foster care for the second time in February 2000 as a result of mother’s hospitalization at a mental health center in Huron. Child remained in foster care for thirty days. Child was placed in foster care a third time in April 2001 when mother again became unstable mentally and emotionally and the Department of Social Services (DSS) substantiated mother’s neglect in leaving child unsupervised while she was passed out on medication. Child remained in foster care until October 2001.

[¶ 5.] In between the periods of time child spent in foster care, DSS also investigated various referrals for abuse and/or neglect of child. In 1998 mother completed an assessment and received services in response to concerns over her supervision of child and meeting his physical needs. In July 2000 an investigation substantiated physical abuse and neglect of child. In October 2000 an investigation indicated neglect and mother was required to clean her house and take parenting classes. In February 2001 an investigation indicated neglect by mother in not picking child up after school. In March 2001 an investigation again substantiated neglect by mother.

[¶ 6.] The third placement of child in foster care in April 2001 resulted in the commencement of abuse and neglect proceedings in Beadle County. Child was adjudicated abused and neglected in May and father voluntarily terminated his parental rights. Mother completed a case service plan in which she participated in a home-based program, completed parenting classes and a psychological evaluation, cooperated with counseling and took her medications consistently. Over the course of the plan, mother moved from Huron to Mitchell where she received services through Dakota Mental Health Center. Mother received individual counseling and medication-management services and child also received individual and family counseling services and medication-management services.

[¶ 7.] Mother’s problems persisted even after her move to Mitchell and the return of child to her care in October 2001. Mother lived with a boyfriend, T.E., and there were frequent arguments and instances of domestic violence in the home. There were also concerns with mother’s supervision of child and that child was allowed to roam in the community unattended or supervised by acquaintances of questionable capability. Reports of a number of such incidents are contained in the settled record. At one point, mother herself indicated to a therapist that child, then five, would get on his bike and run around town all day long and that she did not know where he was.

[¶ 8.] By early 2002 mother’s mental state was again beginning to unravel. In March she had a manic attack, refused to take her medication, drank alcohol and wrote some $600 worth of bad checks. In June mother was seen by an on-call therapist because she was threatening suicide. In August mother was hospitalized after fighting with her boyfriend and not taking her medication for two days. In September mother reported to her mental health center that she was going to the Human Services Center in Yankton, but then did not make the trip.

[¶ 9.] Events culminated on October 17, 2002. Mother’s boyfriend called the police for assistance with mother and mother told the investigating officer that she was afraid to be alone and was thinking about committing suicide. Mother voluntarily committed herself for treatment at Sioux Valley Hospital in Sioux Falls and child was taken into protective custody and placed in foster care.

[¶ 10.] Child was never returned to the home, but mother was eventually permitted supervised visitations with child. A petition alleging abuse and neglect of child was filed on October 23, 2002 and mother admitted to the petition in December. The dispositional hearing was held in June 2003 and the trial court subsequently entered findings of fact, conclusions of law and an order terminating mother’s parental rights. Mother appeals.

ISSUE

[¶ 11.] Was the trial court clearly erroneous in finding that termination of mother’s parental rights was the least restrictive dispositional alternative?

[¶ 12.] Mother argues that the trial court erred in finding that termination of her parental rights was the least restrictive alternative. Our standard of review of this argument is well-settled.

The trial court may terminate parental rights if it is in the best interest of the child and if termination is the least restrictive alternative available. The best interest of the child must be viewed from the child’s, rather than the [parents’], perspective. We reverse only if the trial court was clearly erroneous in finding that termination was the least restrictive alternative.

People ex rel. D.T., 2003 SD 88, ¶ 18, 667 N.W.2d 694, 699-700 (citations omitted).

[¶ 13.] The parties’ respective positions as to error in the finding concerning the least restrictive alternative are represented by two competing psychological evaluations of mother contained in the settled record. One evaluation was performed at mother’s behest in May/June 2003 by Dr. Matthew Christiansen, and one was performed by Dr. Frank Dame in June 2001 in connection with the earlier abuse and neglect proceedings. The doctors essentially agreed on mother’s diagnosis. Dr. Dame diagnosed a major depressive disorder, recurrent; bipolar type 2 disorder; provisional alcohol dependence; borderline IQ and borderline personality disorder. Dr. Christiansen diagnosed bipolar disorder with recent episodes mixed; borderline personality disorder and borderline intellectual functioning. Based upon mother’s statement that she had not consumed alcohol for a number of years, Dr. Christiansen disagreed with Dr. Dame’s diagnosis of alcohol dependence. However, Dr. Christiansen conceded that he had not assessed mother’s substance abuse thoroughly and that further evaluation in that area would be helpful.

[¶ 14.] Dr. Christiansen made the following recommendation concerning the 2003 disposition of child:

Records indicated that [mother] has demonstrated an improved ability to control her anger and mood in general, as well as manage her symptoms of bipolar disorder within the last eight months. Considering her progress to date, it may be worthwhile to explore placing her son ... in her custody, with clearly stipulated conditions for maintaining custody. [Mother] has participated in therapy and medication management services which may have increased her ability to address her problems appropriately and respond to other vicissitudes of life. [Mother] may better be able to care for her son if she understands what is required of her to maintain him in her custody; additionally, [mother] should be informed of the possible consequences for her choices. [Mother’s] history suggests that continued contact with her mental health professionals may facilitate her ability to parent effectively.

[¶ 15.] In contrast, two years earlier Dr. Dame recommended the termination of mother’s parental rights. His recommendation provided in pertinent part:

While [mother] cares greatly for her child, she lacks the emotional stability to consistently put the needs of the child first. In fact, it is common for [mother] to derive her own personal meaning in life, through her role as parent. Unfortunately, this places extreme pressures on the minor child, as he is often made responsible for himself and [mother] as well. He is already very angry about the quality of life he has and the unpredictable behavior of his birth mother. The poor prognosis for improvement suggests that the problems she has experienced in parenting her youngest son are likely to continue and to significantly and permanently damage the child’s development or maturation.
It is the opinion of this examiner that [mother] is severely and persistently mentally ill and is as a result unable to properly parent and provide for her minor child. She is likely to continue experiencing psychiatric crises that disrupt her relationship with the child and which are likely to be damaging to him. It is therefore my recommendation that the parental rights be terminated and that Department of Social Services personnel engage in permanency planning for this minor child immediately, (emphasis added).

Notwithstanding Dr. Dame’s recommendation, the trial court did in 2001 what Dr. Christiansen advocated that the court do yet again in 2003. It returned child to mother’s care. Within a year, the very result foreseen by Dr. Dame came to pass and mother again experienced a psychiatric crisis that required child’s removal from the home on an emergency basis.

[¶ 16.] A review of the record makes clear that, as concluded by Dr. Dame, mother’s problems are cyclical. She is able to function adequately as a parent for periods of time until the pressures of day to day life and, particularly, her poor choices in personal relationships and child’s own psychological problems begin to overwhelm her. At that point, she again suffers a relapse and breakdown. While the DSS worker overseeing mother’s case confirmed that mother was stable at the time of the dispositional hearing, she expressed concern for the future. As the worker summarized the problem:

I think [mother] can show that she can improve her life and make good choices, can follow doctor recommendations for a time; under Child Protection supervision and case management, I think she does well, but I believe when we step out of the picture and she’s not involved in the court system or has any supervision by a social worker, she will back out of the counseling or medication management and not take her medication when she’s supposed to or will skip a few days, and that’s when she starts going back downhill and her son’s needs aren’t being met.

[¶ 17.] These views are entirely consistent with the record in this case and the 2001 diagnosis offered by Dr. Dame. Certainly the trial court could have accepted Dr. Christiansen’s later recommendation and tried placing child back in the home yet again. However, Dr. Christiansen was not entirely familiar with the history of services received by mother and acknowledged that the focus of his evaluation was on mother and not necessarily what was in child’s best interests. Moreover, other than the Christiansen recommendation, the record offered no basis to believe that a different result would occur should child be returned to mother’s care. The DSS worker testified that no services remained that had not already been tried and that, because of mother’s poor record of supervising child, someone would have to be with her twenty-four hours a day seven days a week to make sure child’s needs were being met. The worker did not know of any services that could provide mother with that kind of supervision.

[¶ 18.] This record supports the trial court’s findings that reasonable efforts were made to prevent or eliminate the need for child’s removal from the home and to make child’s return home possible; that requiring child to wait further would not have any likelihood of changing mother’s ability to provide for child and his needs; that there was little likelihood that the deficiencies in the home would be remedied; and, that mother would not be able to meet child’s needs. Although these findings do not quote verbatim the language in SDCL 26-8A-26 outlining the predicate findings necessary to support a termination of parental rights, they are sufficiently analogous to support the termination in this case.

[¶ 19.] Based upon this record and the foregoing findings, we cannot state that the trial court was clearly erroneous in its ultimate finding that termination of mother’s parental rights was the least restrictive alternative. Although mother complains of a lack of services, the record contains a timeline of services provided to mother at least as far back as 2001 that included therapy, psychiatric and psychological evaluations, counseling services, parenting classes, home-based programs, and medication management and supervision. Mother also complains of a denial of increased visitations with child, however the denial coincided with DSS’s decision to seek termination of mother’s parental rights and termination proceedings were delayed in part to permit mother to procure the psychiatric evaluation from Dr. Christiansen that ultimately proved beneficial to her.

[¶ 20.] This is an unfortunate case. where an incapable parent was given multiple opportunities to succeed in developing adequate parenting skills and failed in each instance. Obviously the time came for the trial court to determine that child could no longer wait for mother to develop her parenting skills. See D.T., supra (courts will .not force child to wait for parents to acquire parenting skills they may never develop). Thus, its finding concerning the least restrictive dispositional alternative is not clearly erroneous.

[¶ 21.] Affirmed.

[¶ 22.] SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . Child has attention deficit hyperactivity disorder (ADHD) and takes medication for the problem. Behavioral problems of those who suffer from ADHD are outlined in Meldrum v. Novotny, 2002 SD 15 n. 3, 640 N.W.2d 460, 466 (Gilbertson, C.J. writing on Issue 3). "The key to successful education for a child with ADHD is through as much structure as possible throughout the learning process, both in school and at home. This structure helps overcome the distractions to learning that ADHD creates in [the child's] mind.1’ Id. at ¶ 41, 640 N.W.2d at 467. Obviously such structure was lacking here, lending further credence to the Dame recommendation.

      . SDCL 26-8A-26 provides in pertinent part: If an adjudicated, abused, or neglected child whose parental rights have not been terminated has been in the custody of the Department of Social Services and it appears at a dispositional or review hearing that all reasonable efforts have been made to rehabilitate the family, that the conditions which led to the removal of the child still exist, and there is little likelihood that those conditions will be remedied so the child can be returned to the custody of the child’s parents, the court shall affirmatively find that good cause exists for termination of the parental rights of the child’s parents and the court shall enter an order terminating parental rights.


author: WIGGINS, Justice.

text:
    In re the MARRIAGE OF Dorothy F. GOODMAN and James L. Goodman Upon the Petition of Dorothy F. Goodman a/k/a Dorothy Thurston, Appellant, and Concerning James L. Goodman, Appellee.
    No. 03-1133.
    Supreme Court of Iowa.
    Nov. 10, 2004.
    Rehearing Denied Jan. 4, 2004.

      Patricia A. Shoff and Diane M. Stahle of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellant.
    Barry S. Kaplan of Fairall, Fairall, Kap-lan & Frese, LLP, Marshalltown, for ap-pellee.
   WIGGINS, Justice.

In this appeal, we must decide whether sorority fees and a monthly cash allowance should be included in a postsecondary education subsidy; whether a child support obligation of a party should continue between a child’s high school graduation and her start of college; who is responsible for providing medical insurance for the children; and who pays for unreimbursed medical expenses of the children. We vacate the decision of the court of appeals and affirm the district court as modified by this opinion.

I. Background Facts and Procedure.

James and Dorothy were married on June 9, 1973. Three daughters were born during the marriage — Kellaney (a/k/a Kelly), Abby, and Molly. On May 21, 1992, the district court entered a decree of dissolution. The court awarded James and Dorothy joint legal custody of their three daughters. The decree awarded James physical custody of Kelly and Dorothy physical custody of Abby and Molly. Dorothy has since remarried. James also remarried but divorced in 1999.

The district court ordered James to pay $548 per month in child support. This child support amount was to continue until Kelly graduated from high school. At that time, the court ordered the child support obligation of James to be recalculated based upon the guidelines and circumstances existing at that time. The decree was silent as to who was responsible for college expenses.

When Kelly graduated from high school, James filed an application to modify the decree to recalculate child support and determine James’s and Dorothy’s obligations for Kelly’s college expenses. Prior to the trial, James and Dorothy entered into an agreement to modify the original decree. On September 17, 1996, the court approved the agreement and entered a decree of modification. The district court ordered James to pay $953 per month in child support for Abby and Molly. When Abby reaches her eighteenth birthday or graduates from high school, whichever shall last occur, the court ordered the child support obligation for Molly to be recalculated based upon the guidelines and circumstances existing at that time. As to Kelly’s college expenses, the modification order provided:

As long as [Kelly] attends an accredited Iowa state college or university [in] pursuit of her undergraduate degree, that the petitioner and respondent shall equally share the cost of her tuition, books, room, board, sorority fees, and $200 per month spending money; the respondent and petitioner may disperse this in any manner they see fit and upon which they can agree. In the event that one party expends more than the other for the specified expenses set forth above, they shall reimburse each other so that the effect is that they share equally in the above-enumerated costs. Each May, an accounting will occur to address any inequity in the payment of expenses. No other costs shall be included in this calculation; the parties may further provide additional support for college education to [Kelly] as they mutually consent and agree to.

The district court further ordered, “In all other respects the decree, except as modified herein, remains in full force and effect.”

Before Abby graduated from high school, James filed an application to modify his child support obligation and to have the court determine his contributions toward Abby’s college expenses. James sought to pay one third of the cost of Abby’s college education, pursuant to Iowa Code section 598.21(5A) (Supp.2001). On December 17, 2002, the court issued its decree and concluded James and Dorothy should each be required to subsidize Abby for one-third of her college expenses. The district court also determined Abby’s sorority dues and monthly cash allowance should not be included in computing her college expenses. The court also, set James’s child support obligation for Molly at $878 per month. Both James and Dorothy filed rule 1.904(b) motions to amend, enlarge, or modify the district court order. James sought to have Dorothy responsible for medical and hospitalization insurance and to have the court determine who should claim the children as dependency exemptions. Dorothy sought child support for Molly at $903 per month effective September 1, 2002; to make James responsible for subsidizing Abby for one-half the cost of her college expenses; to include sorority fees and a monthly cash allowance in the computation of Abby’s eligible college expenses; and to have Molly’s child support continue through the summer months between her high school graduation and the start of college. The district court modified its order and determined the appropriate date to begin James’s child support obligation of $878 per month for Molly was September 1, 2001. Additionally, the court concluded Dorothy should continue to have the children covered under her husband’s health insurance policy. It further ordered Dorothy to be responsible for the first $250 per year per child of uncovered medical expenses up to a maximum of $500 per year for all children and for the parties to share any uncovered medical expenses in excess of $250 per child or a maximum of $500 per year for all children in proportion to their respective net incomes. Dorothy and James appealed, but James did not raise any issues in his brief. The court of appeals affirmed the district court on all issues. This court granted Dorothy’s motion for further review.

II. Issues.

Dorothy raises the following issues on appeal and further review: (1) whether James should pay one half of Abby’s eligible college expenses, including sorority fees and a monthly cash allowance; (2) whether James’s child support obligation for Molly should continue during the summer months before she enrolls in college, assuming she is enrolled in college for the fall; and (3) whether James should be responsible for health insurance and un-reimbursed medical expenses.

III. Scope of Review.

Our review of an equitable action is de novo. Iowa R.App. P. 6.4. We review the construction of a dissolution decree as a matter of law. See Sorensen v. Nelson, 342 N.W.2d 477, 479 (Iowa 1984).

IV. Postsecondary Education Subsidy.

The court of appeals held despite Dorothy’s argument that the September 17, 1996, modification order regarding Kelly’s college expenses applied to Abby and Molly, the language in the modification order did not preclude the district court from applying current Iowa law in determining college support for Abby. The court of appeals concluded the 1996 order’s language was clear that the issues before the district court at that time were college support for Kelly and child support for Abby and Molly.

Iowa Code section 598.21(5A) authorizes divorced parents to help finance their child’s postsecondary education under certain conditions and with certain limitations. In re Marriage of Williams, 595 N.W.2d 126, 130 (Iowa 1999). If good cause is shown, a court may order a postsecondary education subsidy. Iowa Code § 598.21(5A). In determining whether good cause exists, the court must consider the age and ability of the child, the child’s financial resources, whether the child is self-sustaining, and the financial situation of the parents. Id. § 598.21(5A)(a). Finally, the amount paid by each parent shall not exceed one third of the total cost of the postsecondary education. Id. § 598.21(5A)(a )(3).

In 2002, the legislature added Iowa Code section 598.21(5A)(e), which allows a court to retroactively apply the provisions of section 598.21(5A). In other words, any decree providing for support of a child in college entered before July 1, 1997, is subject to modification. Id. § 598.21(5A)(e) (2003). The parties, however, can enter into an agreement regarding the future college expenses of their children, which the court may choose to enforce. In re Marriage of Rosenfeld, 668 N.W.2d 840, 848 (Iowa 2003). Dorothy claims this is the case here. Moreover, she argues the court of appeals decision is wrong because it does not enforce the prior agreement of the parties. Dorothy claims she and James agreed to treat Abby’s and Molly’s college expenses in the same manner as Kelly’s college expenses. That is they each pay one half of Abby’s eligible college expenses, including sorority fees and a monthly cash allowance. James contends the prior agreement as memorialized by the September 17, 1996, order of modification did not include an agreement as to Abby’s or Molly’s college expenses.

A. Was there an agreement as to Abby’s or Molly’s college expenses in 1996?

When the court merges an agreement of the parties into a dissolution decree, the court construes and enforces the decree as a final judgment of the court and not as a separate agreement between the parties. In re Marriage of Lawson, 409 N.W.2d 181, 182 (Iowa 1987). In construing a decree of dissolution, we have previously stated:

The decree should be construed in accordance with its evident intention. Indeed the determinative factor is the intention of the court as gathered from all parts of the decree. Effect is to be given to that which is clearly implied as well as to that which is expressed. Of course, in determining this intent, we take the decree by its four corners and try to ascertain from it the intent as disclosed by the various provisions of the decree.

In re Roberts’ Estate, 257 Iowa 1, 6, 131 N.W.2d 458, 461 (1964).

Applying these principles, we think it is clear from the four corners of the decree the provisions dealing with college expenses applied only to Kelly and not to Abby or Molly. The decree contained a number of separate paragraphs covering different issues. One paragraph specifically related to the child support for Abby and Molly. A second paragraph specifically related to college expenses for Kelly while attending an accredited Iowa college or university. This paragraph did not refer to Abby or Molly. Finally, another paragraph of the decree preserved all matters contained in the original decree, except as modified by this decree. Abby’s postsecondary education subsidy must be determined on its own merits.

B. What expenses should be included in Abby’s postsecondary education subsidy?

The district court ordered James to provide Abby with a postsecondary education subsidy equal to one third of the costs as determined by the court. Although the district court included any sorority charges attributable to room and board in its postsecondary education subsidy, it did not include any subsidy for sorority dues or a monthly cash allowance. Iowa Code section 598.21(5A)(1) (Supp. 2001) provides:

The court shall determine the cost of postsecondary education based upon the cost of attending an in-state public institution for a course of instruction leading to an undergraduate degree and shall include the reasonable costs for only necessary postsecondary education expenses.

We have recently interpreted section 598.21(5A)(1) as not limiting college expenses to only tuition, room, board, and books. In re Marriage of Vannausdle, 668 N.W.2d 885, 889 (Iowa 2003). We recognized the reasonable and necessary costs of attending college surpass the costs of tuition, books, room, board, and supplies. Id. A college education is not limited to what is learned in the classroom; it includes social, cultural, and educational experiences outside the classroom. Id. The experiences outside the classroom impose additional expenses on the student. Id.

A cash allowance is necessary for a college student to participate in the social, cultural, and educational experiences outside the classroom. The parties’ financial statements indicate they have the means to provide Abby with a monthly cash allowance. Accordingly, under the facts of this case, the postsecondary education subsidy should include Abby’s monthly cash allowance. In 1996, the parties agreed Kelly’s allowance would be $200 per month. Abby entered college in the fall of 2001. A reasonable cash allowance for Abby would be $300 per month.

As for Abby’s sorority dues, it is important to note James and Dorothy agreed to split the cost of Kelly’s sorority dues when she attended Iowa State University. This agreement established both James and Dorothy considered Kelly’s participation in sorority life necessary for her college experience. The record supports James and Dorothy wanted Abby to have the same college experience as Kelly. They only disagreed on their respective financial contributions to Abby’s college expense. Under the unique circumstances of this case, we hold Abby’s sorority dues are a necessary expense for Abby to participate in the social, cultural, and educational experiences outside the classroom.

Therefore, we modify the district court’s order to require the postsecondary education subsidy for Abby to include a $300 per month cash allowance and Abby’s sorority dues. These expenses shall be paid one third by James, one third by Dorothy, and one third by Abby.

V. Child Support for Molly.

In 1992, when the district court entered the original decree of dissolution in this matter, the statutes governing child support stated obligations for child support “may include support for a child who is between the ages of eighteen and twenty-two years who ... has been accepted for admission to a college, university or community college and the next regular term has not yet begun.” Iowa Code § 598.1(2) (1991). In the original decree, the district court retained “jurisdiction to consider a further application at the appropriate time to determine whether or not the child support obligation should continue” in accordance with section 598.1(2) of the 1991 Code.

In 1997, the legislature amended section 598.1. 1997 Iowa Acts ch. 175, 185 (codified at Iowa Code 598.1(9) (Supp.1997)). The amendment reduced the period of time over which a court could award child support. It only allowed a party to receive child support for a child who was between the ages of eighteen and nineteen years of age as long as the child was “engaged full-time in completing high school graduation or equivalency requirements in a manner which is reasonably expected to result in completion of the requirements prior to the person reaching nineteen years of age.” Id. The amendment removed the discretion of the court to award child support for a child between the ages of eighteen and twenty-two years who is enrolled or attending a course of study after high school. Id. James filed his application to determine the amount of support for Molly in 2001. Therefore, when the court considered James’s child support obligation for Molly, the court did not have authority to award child support for Molly after she reached the age of eighteen and had graduated from high school.

This does not mean, however, that James and Dorothy do not have an obligation to support Molly after she graduates from high school. If Molly is entitled to a postsecondary education subsidy, the subsidy may begin upon graduation from high school if she is accepted for admission to a college, university, or community college, and the next regular term has not begun. Iowa Code § 598.1(8) (2001).

VI. Insurance and Unreimbursed Medical Expenses.

The original divorce decree ordered James to provide medical insurance for all three girls and directed the parties to divide uncovered expenses equally. James’s wife, who he has since divorced, covered the girls under her insurance policy through her employment. After James and his wife divorced, Dorothy began providing medical coverage for the children under her husband’s medical insurance plan. In its modification order, the district court modified the original decree ordering Dorothy to be responsible for the health insurance. The district court found it was economically prudent for Dorothy to continue to have the children covered under her husband’s medical insurance policy. The court also required Dorothy to pay unreimbursed medical expenses in accordance with the child support guidelines rule 9.10. The rule requires Dorothy to be responsible for the first $250 per year per child of uncovered medical expenses up to a maximum of $500 per year for all children and for the parties to share any uncovered medical expenses in excess of $250 per child or a maximum of $500 per year for all children in proportion to their respective net incomes. Iowa Ct. R. 9.10 (2002).

Dorothy first complains the issue of medical insurance and unreimbursed medical expenses were not before the district court; thus, the court had no authority to modify the original decree and require Dorothy to maintain the health insurance and pay the unreimbursed medical expenses in accordance with rule 9.10. We disagree. James’s application to modify the decree stated there was one minor child remaining for the purposes of child support and that he requested the court to modify the decree in an appropriate fashion. In his prayer, he asked the court to “set forth the child support obligation on behalf of Molly and the court should render other relief as is just and equitable in the premises.”

The issuance of a child support order is governed by Iowa Code section 598.21(4)(u) and provides that all orders of support shall include “as child medical support a health benefit plan ... if available to either parent at a reasonable cost.” Iowa Code § 598.21(4)(a) (2001). By putting child support at issue, the parties put child medical support at issue.

At trial, the evidence confirmed Dorothy was providing medical insurance for the children. The child support guideline worksheets prepared by James and Dorothy both showed Dorothy as taking a deduction for medical insurance premiums in the sum of $7416 from her net income, while showing no such deduction for James. The parties requested and the court used these deductions to calculate child support under the guidelines. Neither party presented any evidence that Dorothy should not continue to pay the medical insurance. The evidence shows a health benefit plan was available to Dorothy at a reasonable cost, and she should therefore continue to provide this insurance. Finally, because Dorothy is the custodial parent, the child support guidelines require Dorothy to be responsible for the first $250 per year per child of uncovered medical expenses up to a maximum of $500 per year for all children and for the parties to share any uncovered medical expenses in excess of $250 per child or a maximum of $500 per year for all children in proportion to their respective net incomes.

VII. Disposition.

We vacate the decision of the court of appeals and affirm the district court decision as modified by this opinion. We modify the district court order to include a $300 monthly cash allowance for Abby and her sorority dues in the calculation of the postsecondary education subsidy for Abby. James and Dorothy shall reimburse Abby for past due amounts within ninety days of the filing of this decision.

Decision of COURT of appeals vacated; DISTRICT COURT JUDGMENT AFFIRMED AS MODIFIED.


author: KLAPHAKE, Judge.

text:
    COUNTY OF ANOKA ex rel Jemal A. HASSAN, Respondent, v. Fatuma D. ROBA, Appellant.
    No. A04-168.
    Court of Appeals of Minnesota.
    Nov. 30, 2004.

      Robert M.A. Johnson, Anoka County Attorney, Dawn R. Nyhus, Kay M. Gavinski, Assistant County Attorneys, Anoka, MN, for respondent Anoka County.
    Fatuma D. Roba, Columbia Heights, MN, pro se appellant.
    Considered and decided by HUDSON, Presiding Judge, KALITOWSKI, Judge, and KLAPHAKE, Judge.
   OPINION

KLAPHAKE, Judge.

Pro se appellant Fatuma Roba challenges a decision by a child support magistrate (CSM) ordering her to pay ongoing child support of $359.97 per month and to reimburse respondent Anoka County $4,550 for public assistance expended from October 1, 2002, to October 31, 2003. Appellant argues that her income is very low and that she cannot afford to pay the child support ordered by the CSM because her income barely meets her necessary monthly expenses. Because appellant submitted evidence to support her claim of inability to. pay and because the CSM failed to make any findings on that issue, we reverse and remand for further proceedings consistent with this opinion.

FACTS

Appellant, a single mother, came to the United States several years ago with four of her children. She speaks Oromo, an Ethiopian dialect, and required an interpreter at the hearing before the CSM. Appellant received public assistance from August 2001 through September 2002. She currently works 37.5 hours per week as a dishwasher and earns $9.00 per hour.

Two of her children, who were 17 and 18 at the time the county initiated this action, live with her 28-year-old son, Jemal Has-san, who is designated as their relative caretaker. Hassan receives public assistance for the two children in the form of a cash grant and Medical Assistance. For the month of July 2003, Hassan received a cash grant of $437; from August 2001 through July 2003, he received a total of $10,973 in cash assistance.

In September 2003, the county initiated this reimbursement action against appellant under Minn.Stat. § 256.87 (2002), to establish ongoing child support and order reimbursement for past public assistance payments. The county submitted a supporting affidavit prepared by a Child Support Officer (CSO). The CSO stated that the father is not involved in this action and that the children live with Hassan, who has physical custody with the consent of one of the parents. The CSO further stated that she “verified ... that [the older of the two children] is in 10th grade and is expected to graduate in 06/2006.” The CSO indicated that the county would waive reimbursement for the period from August 2001 through September 2002, when appellant was receiving public assistance herself.

The matter was referred to a CSM. Appellant appeared pro se at the November 2003 hearing; Hassan and the children were not present. According to the minutes of the hearing, appellant claimed that she cannot afford to pay the amount of child support requested. She submitted an exhibit in which she set out her monthly expenses at $1,025, an amount that does not include $50 per month that she is still paying for the airfare necessary to bring the family to the United States from Nairobi. The county submitted an updated child support worksheet that calculated appellant’s net monthly income at $1,199 and her child support obligation at $359.97.

Based on the evidence submitted and the testimony presented at the hearing, the CSM found that appellant’s net monthly income is $1,199 and her monthly living expenses are $1,025. The CSM calculated appellant’s child support obligation under the guidelines at $359.97, and concluded that she had the ability to reimburse the county $4,550, for the 13-month period from November 2002 through October 2003. The CSM ordered appellant to pay ongoing support of $359.97 and “an additional 20% of ongoing child support towards the [$4,550] judgment until paid in full.”

Appellant challenges the CSM’s decision, claiming that she is a single mother with a large family and that her monthly income “is barely [enough] to meet ... my living [expenses],” that she is assisting two of her children with college expenses, and that she cannot afford to pay the amounts ordered by the CSM.

ISSUE

Did the CSM abuse its discretion in ordering appellant to reimburse the county $4,550 and to pay ongoing child support of $359.97 per month for her two children?

ANALYSIS

On appeal from a final order by a CSM, our review is limited to determining whether the evidence supports the findings of fact and whether the findings support the conclusions of law and judgment. See Minn. R. Gen. Pract. 378.01 advisory comm, emt.; Davis v. Davis, 631 N.W.2d 822, 825 (Minn.App.2001). Nevertheless, we will reverse if the CSM has abused his or her discretion by improperly applying the law to the facts. See Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn.App.1998) (stating that reviewing court will not reverse decision under Minn.Stat. § 256.87 absent abuse of discretion, which occurs when law is improperly applied to facts).

Reimbursement and Ongoing Support Obligation

Appellant does not challenge the CSM’s finding that her net monthly income equals $1,199, or that application of the guidelines results in an ongoing child support obligation of $359.97. Rather, she argues that she lacks the ability to pay the amounts ordered by the CSM, because her income barely covers her necessary monthly expenses of $1,025, which includes $725 for rent or house payment; $100 for electric, telephone, clothing, and laundry; and $200 for food.

Under Minn.Stat. § 256.87 (2002), the county may seek reimbursement of public assistance benefits and ongoing support from a parent who has the ability to pay. Ability to pay is determined according to the child support guidelines. Id. at subd. 1; Ver Kuilen, 578 N.W.2d at 792. Any deviation from the guidelines must be supported by written findings that address, among other factors, the earnings, income, and resources of the parent. Minn.Stat. § 518.551, subd. 5(i) (2002). When child support payments are assigned to a public agency, as here, a court “may not deviate downward ... unless the court specifically finds that the failure to deviate downward would impose an extreme hardship on the obligor.” Id., subd. 5(j) (2002). The burden is on the party seeking a deviation to demonstrate why a lower support order is necessary. Rouland v. Thorson, 542 N.W.2d 681, 684 (Minn.App.1996).

Here, the undisputed evidence establishes that appellant earns a net monthly income of $1,199, which slightly exceeds her claimed monthly expenses for herself of $1,025, or $1,075, if the $50 per month that appellant pays on the debt she incurred for airfare to bring herself and her children to the United States is included. Appellant’s ability to pay must be measured by the difference between her income and necessary monthly expenses: here, that difference totals $124 per month, which is substantially less than the amounts that the CSM ordered her to pay.

We recognize that the guidelines demand “consideration” of certain factors only when a court decides “whether” to deviate. Minn.Stat. § 518.551, subd. 5(c) (2002). Nevertheless, where the obligor submits evidence to show that he or she lacks the ability to pay, the fact finder must make findings to show that it has considered whether deviation is necessary. See, e.g., Becker County Hum. Servs. v. Peppel, 493 N.W.2d 573, 576-77 (Minn.App.1992) (reversing order setting support at guideline amount where obligor’s claimed monthly expenses were “absolutely essential” and she had a “running deficit” every month); County of Pine v. Petersen, 453 N.W.2d 718, 721 (Minn.App.1990) (reversing guideline support order for additional findings where obligor’s affidavit “clearly puts before the [fact finder] a claim of reasonable expenses destroying his ability to pay support”), review denied (Minn. May 30, 1990). We therefore reverse and remand for additional findings on appellant’s ability to pay and on whether deviating from the guidelines is warranted.

Duty to Support

Appellant stated at the hearing that she did not believe she should pay any child support. It is unclear whether she made this claim due to the ages of the children or to the fact that they are residing with her adult son.

Issues involving the imposition of liability on a parent under Minn.Stat. § 256.87 are separate from issues involving the parent’s ability to pay and the amount of assistance furnished to and for the benefit of the child. County of Hennepin v. Hernandez, 554 N.W.2d 618, 620 (Minn.App.1996). The burden is on the county to prove its reimbursement claim by a preponderance of the evidence. Id. at 621.

Here, the CSM found that assistance was provided in the form of a Minnesota Family Investment Program (MFIP) cash grant. MFIP is governed by Minn.Stat. §§ 256J.01-.77 (2002). Under Minn.Stat. § 256J.08, subd. 60, “minor child” is defined as a “child who is living in the same home of a parent or other caregiver ... and is either less than 18 years of age or is under the age of 19 years and is a full-time student in a secondary school.” The duty to support a child under chapter 518, however, continues until a child reaches the age of 18 or, if still attending secondary school, until the age of 20. Minn.Stat. § 518.54, subd. 2 (2002).

The CSO stated in her affidavit that the older child, who was born in 1985 and was 18 years old at the time of the hearing, “was in 10th grade and scheduled to graduate in June 2006.” No information was provided on the younger child, who was born in 1986 and was 17 at the time of the hearing. The CSM’s order states as follows:

The child support payments shall continue so long as public assistance is being provided to the children. This order shall remain in effect following termination of public assistance unless the former recipient files an affidavit with the court requesting termination of the order and shall continue until the children covered by the order reach[ ] the age of 18, or age 20, if still in secondary school; or until the children covered by the order become emancipated or die; or until further notice.

Because it appears that the public assistance payments should terminate when the children are 19, regardless of whether they are still in school, it is unclear whether the CSM had the authority in this public assistance reimbursement action to continue child support beyond that time period. On remand, appellant should be given an opportunity to raise any legitimate challenges to the receipt of assistance by her adult son and to her duty to support these two older children, who are now presumably 18 and 19 years old. See Hernandez, 554 N.W.2d at 620-21 (denying parent opportunity to raise challenge to propriety of reimbursement risks violation of due process).

DECISION

The CSM abused his discretion in ordering reimbursement of public assistance and in setting appellant’s child support obligation at the guideline amount, without fully considering appellant’s ability to pay those amounts. On remand, findings must be made to consider appellant’s ability to pay and whether deviation is necessary. Appellant should also be given an opportunity to challenge her duty to support under Minn.Stat. § 256.87.

Reversed and remanded.

      . Appellant also claims that she is unable to pay the amounts ordered because she is assisting her 21-year-old son with college expenses. Because appellant is under no obligation to support her adult son, any assistance she might provide to him should not be considered when determining her ability to pay. See State v. Fuerst, 283 Minn. 391, 392-93, 168 N.W.2d 1, 2 (1969) (stating that child support takes priority over other nonessential expenses); Kuronen v. Kuronen, 499 N.W.2d 51, 54 (Minn.App.1993), review denied (Minn. June 22, 1993).