text:
    OFFICE OF CONSUMER ADVOCATE, Appellant v. IOWA UTILITIES BOARD, Appellant. MCI Worldcom, Inc., Appellee, v. Iowa Utilities Board, Appellant.
    No. 06-0541.
    Supreme Court of Iowa.
    Feb. 15, 2008.

      John R. Perkins, Consumer Advocate, and Craig F. Graziano, Des Moines, for appellant Office of Consumer Advocate.
    David Lynch, General Counsel, and Mary F. Whitman, Assistant General Counsel, Des Moines, for appellant Iowa Utilities Board.
    Krista K. Tanner and Bret A. Dublinske of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellee.
   WIGGINS, Justice.

The Iowa Utilities Board (Board) interpreted Iowa Code section 476.103 (2003) and Iowa Administrative Code rule 199-22.23 (1999) to require the verification of a change in telecommunications service and a verification of the terms and conditions the customer consented to when agreeing to the change. On judicial review, the district court reversed the decision of the Board finding these provisions only required the carrier to obtain the customer’s verification of a change in service, not a verification of the terms and conditions of the change in service. Because we agree with the district court’s interpretation of section 476.103 and rule 199-22.23, and because we find the Board’s interpretation of rule 199-22.23 irrational, illogical, or wholly unjustifiable under Iowa Code section 17A.19(10)ffi, we affirm the decision of the district court.

I. Background Facts and Proceedings.

On November 16, 2002, a telemarketer contacted Dr. Syam Kilaru on behalf of MCI Worldcom. According to Kilaru, the telemarketer told him if he changed his telephone service to MCI he would receive an international long distance rate of 37 cents per minute for calls to India on any day of the week, at any time. The telemarketer also informed Kilaru he would receive one hour of free calling to India per month for the first three months of MCI’s service and 200 minutes of domestic long distance minutes for a monthly fee of $12.95.

Kilaru agreed to switch his telephone service to MCI. The telemarketer transferred Kilaru’s call to a third-party verification company hired by MCI. Kilaru verified that he agreed to transfer his phone service to MCI. The verification call was recorded but the original call describing the rates was not.

Five or six business days later, MCI sent Kilaru a welcome packet explaining his rates. Kilaru did not review it. The welcome packet stated the rate for calls to India was 49 cents per minute on weekdays and 42 cents per minute on weekends. The welcome packet made no mention of the free calls to India. Kilaru first discovered he was being charged more than what the telemarketer represented when he received his first bill.

On January 8, 2003, Kilaru filed an informal complaint with the Board alleging MCI did not honor the rate it offered him to switch long distance carriers. Kilaru alleged he switched long distance carriers from AT & T Communications of the Midwest to MCI in response to MCI’s offer. Pursuant to its rules, the Board forwarded Kilaru’s complaint to MCI on January 10.

MCI responded, stating its records indicated Kilaru was to be billed 49 cents per minute for weekday calls to India and 42 cents per minute on the weekends, and the sign-up bonus was a free month of domestic long distance calling, not free international long distance. MCI’s response pointed Kilaru to the welcome packet, which indicated the 42 and 49 cent per minute rates. In its response MCI agreed to credit Kilaru $219.27 for the first month of calls to India that were not billed in accordance with the 37 cent per minute rate. Future calls would be billed at the higher rates.

On March 10 the Board issued a proposed resolution and concluded MCI complied with the Board’s and the federal communication commission’s rules by using a third-party verification company. Therefore, the Board found MCI obtained the required authorization to switch Kila-ru’s service and billed him the correct rate. The Board informed Kilaru that he could request a formal proceeding if he did not agree with the proposed resolution.

On March 24 the Office of Consumer Advocate (OCA) filed a petition with the Board contesting the March 10 proposed resolution. The OCA requested the Board impose civil penalties against MCI for committing an unlawful slam in violation of Iowa Code section 476.103.

Oh July 14, 2004, a hearing was held before an administrative law judge (ALJ), at which Kilaru and a representative from MCI testified. The ALJ found Kilaru’s testimony credible and found MCI violated section 476.103 and rule 199-22.23.

As a remedy, the ALJ reasoned because there was no meeting of the minds, there was no valid contract, and MCI should zero out Kilaru’s account. However, the ALJ found because there was no evidence MCI intended to mislead Kilaru, a penalty would have no deterrent effect and would therefore be inappropriate.

Both the OCA and MCI appealed the ALJ’s decision to the Board. The Board affirmed the ALJ. The OCA petitioned for judicial review, challenging the Board’s determination that civil penalties should not be awarded. MCI filed a cross-appeal/motion to intervene. The district court treated MCI’s motion as a petition for judicial review.

The district court reversed the Board’s decision and dismissed the OCA’s petition. The Board and the OCA appeal the district court’s decision.

II. Issue.

We must decide whether the verification provisions contained in the statute and rules only require the verification of a change in carriers or whether the statute and rules also require verification of the terms and conditions of service.

III. Discussion.

Rules promulgated by an agency represent the agency’s interpretation of the Iowa Code provisions the legislature gave it to administer. Iowa AG Const. Co. v. Iowa State Bd. of Tax Review, 723 N.W.2d 167, 173 (Iowa 2006); see also Iowa Code § 17A.3(l)(c) (requiring an agency to adopt rules “embodying appropriate standards, principles, and procedural safeguards that the agency will apply to the law it administers”). The legislature requires us to “give appropriate deference to the view of the agency with respect to particular matters that have been vested by a provision of law in the discretion of the agency.” Iowa Code § 17A.19(11) (c). When the legislature has clearly vested the interpretation of a law in the discretion of the agency, the court only reverses the agency if its ruling is “[b]ased upon an irrational, illogical, or wholly unjustifiable interpretation of a provision of law....” Id. § 17A.19(10)(Z). However, when the legislature has not clearly vested the interpretation of a law in the discretion of the agency, the court applies a clearly erroneous standard. Id. § 17A.19 (10) (c).

The legislature’s requirement that the Board “adopt rules prohibiting an unauthorized change in telecommunication service” evidences a clear legislative intent to vest in the Board the interpretation of the unauthorized-change-in-service provisions in section 476.103. See, e.g., Thoms v. Iowa Pub. Employees’ Ret. Sys., 715 N.W.2d 7, 11 (Iowa 2006) (holding section 97B.4, which provides IPERS with authority to make rules and take other action “ ‘necessary for the administration of the retirement system in conformity with the requirements of this chapter,’ ” vested the interpretation of the statute in the agency’s discretion) (quoting Iowa Code § 97B.4(2)(a) (1995)); Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004) (holding section 123.21, which grants the agency power to adopt rules “necessary to carry out this chapter,” vested the interpretation of section 123.45 with the agency). Therefore, we will only reverse the Board’s decision if it is based upon an irrational, illogical, or wholly unjustifiable interpretation of section 476.103.

Regardless of the standard of review the legislature requires courts to use when reviewing agency action, the interpretation and final construction of a statute, or an agency rule interpreting a statute, is an issue for the courts to decide. Hollinrake v. Iowa Law Enforcement Acad., 452 N.W.2d 598, 601 (Iowa 1990). We have applied nearly identical rules for the construction of statutes to the construction of administrative rules. Id.

When a statute or rule is plain and its meaning is clear, the rules of statutory construction do not permit courts to search for meaning beyond its express terms. State v. Snyder, 634 N.W.2d 613, 615 (Iowa 2001). Courts generally presume words contained in a statute or rule are used in their ordinary and usual sense with the meaning commonly attributed to them. Am. Home Prods. Corp. v. Iowa State Bd. of Tax Review, 302 N.W.2d 140, 142-43 (Iowa 1981). Moreover, courts construe a term according to its accepted usage when a statute does not define it. Id. Courts only resort to rules of statutory construction when the explicit terms of a statute or rule are ambiguous. City of Waukee v. City Dev. Bd., 590 N.W.2d 712, 717 (Iowa 1999). A statute or rule is ambiguous if reasonable minds could differ or be uncertain as to the meaning of the statute. Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996).

The legislature required the Board to “adopt rules prohibiting an unauthorized change in telecommunication service.” Iowa Code § 476.103(3). The legislature required the rules to “be consistent with federal communications commission regulations regarding procedures for verification of customer authorization of a change in service.” Id. The legislature defined a “change in service” as:

the designation of a new provider of a telecommunications service to a consumer, including the initial selection of a service provider, and includes the addition or deletion of a telecommunications service for which a separate charge is made to a consumer account.

Id. § 476.103(2)(a). At a minimum, the legislature required the rules to provide:

a. (1) A submitting service provider shall obtain verification of customer authorization of a change in service before submitting such change in service.
(2) Verification appropriate under the circumstances for all other changes in service.
(3) The verification may be in written, oral, or electronic form and may be performed by a qualified third party.
(4) The reasonable time period during which the verification is to be retained, as determined by the board.
b. A customer shall be notified of any change in service.
c. Appropriate compensation for a customer affected by an unauthorized change in service.
d. Board determination of potential liability, including assessment of damages, for unauthorized changes in service among the customer, previous service provider, executing service provider, and submitting service provider.
e. A provision encouraging service providers to resolve customer complaints without involvement of the board.
f. The prompt reversal of unauthorized changes in service.
g. Procedures for a customer, service provider, or the consumer advocate to submit to the board complaints of unauthorized changes in service.

Id. § 476.103(3)(u)-(p).

In enacting section 476.103, the legislature required the Board to make rules prohibiting an unauthorized designation of a new telecommunications service provider to a consumer. The legislature required the rules to be consistent with the federal communications commission’s regulations regarding the procedures for verification of customer authorization to change service. The legislature also required the rules to contain certain minimum requirements regarding verification, notification, compensation, and complaint resolution. The legislature did not define what constituted an unauthorized change in service, but left that decision up to the expertise of the agency.

In response to the legislature’s mandate, the Board adopted rules prohibiting service providers from making an unauthorized change in telecommunications services. Iowa Admin. Code r. 199-22.23. The Board’s rules defined three acts consistent with the legislature’s definition of “change in service” — cramming, jamming, and slamming. Id. r. 199-22.23(1). The alleged violation in the present suit is that MCI engaged in slamming when it switched Kilaru’s service to MCI.

The Board’s rules define “slamming” as “the designation of a new provider of a telecommunications service to a customer, including the initial selection of a service provider, without the verified consent of the customer.” Id. The Board defined “verified consent” as “verification of a customer’s authorization for a change in service.” Id.

Rule 199-22.23(2) contains the Board’s rules regarding the prohibition of unauthorized changes in telecommunications service. Id. r. 199-22.23(2). Rule 199-22.23(2)(a) sets forth the verification required before a carrier can change a customer’s service. It states:

Verification required. No service provider shall submit a preferred carrier change order or other change in service order to another service provider unless and until the change has first been confirmed in accordance with one of the following procedures....

Id. r. 199-22.23(2)(a).

MCI used a qualified independent third party to verify Kilaru’s authorization before it changed service. Rule 199-22.23(2)(a)(3) deals with the verification required from a third party as follows:

An appropriately qualified independent third party has obtained the customer’s oral authorization to submit the preferred carrier change order that confirms and includes appropriate verification data (e.g., the customer’s date of birth or social security number).... The content of the verification must include clear and conspicuous confirmation that the customer has authorized a preferred carrier change....

Id. r. 199-22.23(2)(a)(3). The first sentence of rule 199-22.23(2)(a)(3) incorporates the definition of verified consent by requiring the independent third party to obtain the customer’s oral authorization to submit to the preferred carrier change. It defines the verification data needed from the customer to confirm the customer’s authorization for a change in service. The verification only needs to confirm that the customer was the person who authorized the change. The independent third party verifies the identity of the customer by obtaining the birth date or social security number of the customer.

The last sentence of the rule requires the independent third party to verify that the customer authorized a preferred carrier change. The rule does not define “authorize.” Black’s Law Dictionary defines “authorize” as “to formally approve” or “to sanction.” Black’s Law Dictionary 129 (7th ed. 1999). The general dictionary definition is similar: “to endorse, empower, or permit by.” Merriamr-Webster’s Collegiate Dictionary 164 (10th ed. 2002). Applying the common meaning given to the word “authorize,” the customer is only required to approve, sanction, endorse, empower, or permit a preferred carrier change. The rule does not require verification of the terms of the authorization. Accordingly, we find the rule as written by the Board is unambiguous. The rule does not require a verification of the terms and conditions that the customer consented to when agreeing to the change. Therefore, the Board’s interpretation of the rule requiring such verification is irrational, illogical, or wholly unjustifiable.

We also note this holding is consistent with the other verification provisions in rule 199-22.23. A carrier may obtain a verification of a change in service by a written authorization from the customer, an electronic authorization from the customer, or a customer-originated change. Iowa Admin. Code r. 199-22.23(2)(n)(l), (2), (4). The rules governing each one of these methods of verification describe the information needed from the customer in order to change service. Id. In fact, the rule dealing with a written authorization is very specific as to what needs to be included in the verification. Id. r. 199-22.23(2)(a)(l). A written authorization requires clear and unambiguous language that confirms: (1) the customer’s billing name, address, and telephone number; (2) the decision to change from one provider to another; (3) the designation of the new provider; (4) the customer understands that only one service provider may be designated for certain services; and (5) the customer may incur a charge for changing service providers. Id. r. 199 — 22.23(2)(6)(5).

None of the permissible verifications require the customer to verify the terms and conditions the customer consented to when agreeing to change service carriers. Had the Board wanted to require such a verification it could have done so by writing that requirement into its rules. After all, one of the purposes of rulemaking is to express the policy of an agency in a rule in order to give any affected persons fair notice of the law before they engage in conduct, which may be governed by those rules. Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 16 (1998). Making policy by ad hoc decisions on a case-by-case basis is contrary to the legislative intent of Iowa Code section 17A.3(c). Id. 16-19.

IV. Disposition.

Finding the Board’s interpretation of rule 199-22.23 to be irrational, illogical, or wholly unjustifiable, we affirm the judgment of the district court reversing the Board’s decision.

AFFIRMED.

All justices concur except APPEL, J., who takes no part.


source: Caselaw Access Project

author: APPEL, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Anthony Lamont JOHNSON, Appellant.
    No. 06-0468.
    Supreme Court of Iowa.
    Feb. 15, 2008.

      Anthony Lamont Johnson, Anamosa, pro se, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, and William E. Davis, County Attorney, for appellee.
   APPEL, Justice.

In this case, a prisoner appeals a nunc pro tunc order clarifying a 1998 order of restitution. In 2006, the district court determined that the 1998 restitution order applied only to victim restitution, leaving petitioner responsible for other restitution, including court costs and attorneys’ fees. The court of appeals agreed. For the reasons set forth below, we reverse.

I. Factual and Procedural Background.

In 1989, Anthony Lamont Johnson was convicted of one count of burglary in the first degree, one count of sexual abuse in the second degree, and two counts of robbery in the first degree. The Scott County district court sentenced Johnson to twenty-five years on each of the four counts- — the sentences for robbery to run concurrently, but the remainder to run consecutively. As part of his sentence, petitioner was additionally ordered to pay court costs, attorneys’ fees, and victim restitution. Thereafter, a supplemental order of restitution was filed, establishing the amount of restitution for court costs and attorneys’ fees. Subsequently, the Iowa Department of Corrections (IDOC) filed a restitution plan for Johnson in late 1989.

Although the record on appeal is incomplete, in 1993 Johnson challenged the IDOC’s forfeiture of funds from his prison account. The district court granted Johnson’s request for a restitution hearing, but denied his simultaneous request to be represented by counsel. No hearing ever took place. The record suggests that several scheduled hearings had to be postponed when the State failed to secure Johnson’s availability by phone. In early 1998, presiding judge David Schoenthaler issued an order declaring that “if a telephone hearing is not held within 60 days, it is the ORDER of the Court that the defendant shall not be responsible for restitution in this matter.” Four months later in July, in the absence of a hearing, Judge Schoenthaler ordered, “Accordingly, the Defendant is not responsible for any restitution in this matter.” (Emphasis added).

Johnson subsequently filed an Application for Order to Show Cause Why Plaintiff is Not in Contempt, alleging that the IDOC had failed to reimburse him several hundred dollars in violation of the July order. Thereafter the record before us is silent until July 2005, when the IDOC filed a new restitution plan. This plan showed an original balance of $3656.55 for attorneys’ fees and $32.16 for court costs. A total of $703.02 had been repaid, leaving an outstanding balance of $2985.69. The petitioner filed a motion to compel, seeking to have $714.12 (plus interest) returned to him.

In January 2006, Johnson filed a Motion for Order Nunc Pro Tunc, once again seeking the return of his funds. On January 30, 2006, the district court issued an order nunc pro tunc. The order, however, found that the prior restitution order in 1998 referred to victim, restitution only. As no funds were forfeited for victim restitution, the court determined that the IDOC properly seized funds as restitution for court costs and attorneys’ fees.

Johnson appealed. We transferred the matter to the court of appeals. The court of appeals sustained the nunc pro tunc order. The court determined that the July 1998 restitution order dealt solely with victim restitution because that was the only issue before the court — the IDOC had not yet filed a restitution plan for court costs and attorneys’ fees. We granted further review. Because we believe that the nunc pro tunc order exceeds the district court’s authority, we reverse.

II. Standard of Review.

We review actions at law, including nunc pro tunc orders, for correction of errors at law. Freeman v. Ernst & Young, 541 N.W.2d 890, 893 (Iowa 1995).

III. Discussion.

The thrust of Johnson’s appeal is that the 2006 order requiring him to pay restitution for his court costs and attorneys’ fees is not a proper nunc pro tunc order as it amounts to an impermissible modification of the 1998 order, which extinguished any restitution obligation that he may have otherwise had arising out of his prosecution and conviction of various crimes in 1989.

The State responds with two independent arguments. First, the State contends that the 2006 order is a proper nunc pro tunc order because it merely clarifies the judicial intent behind the 1998 order. Second, the State argues that even if the 2006 order does not qualify as a nunc pro tunc order, applicable law allows the State to seek to modify the restitution obligations of an incarcerated defendant at any time.

Turning first to the nunc pro tunc issue, the parties agree that nunc pro tunc orders are limited to situations where there is an obvious error that needs correction or where it is necessary to conform the order to the court’s original intent. Graber v. Iowa Dist. Ct., 410 N.W.2d 224, 229 (Iowa 1987). This court has emphasized that the function of a nunc pro tunc order is “to make the record show truthfully what judgment was actually rendered — ‘not an order now for then, but to enter now for then an order previously made.’ ” Gen. Mills, Inc. v. Prall, 244 Iowa 218, 225, 56 N.W.2d 596, 600 (1953) (quoting Chariton & Lucas County Nat’l Bank v. Taylor, 213 Iowa 1206, 1208, 240 N.W. 740, 741 (1932)). A court may not use a nunc pro tunc order “for the purpose of correcting judicial thinking, a judicial conclusion or a mistake of law.” Headley v. Headley, 172 N.W.2d 104, 108 (Iowa 1969). In reviewing a nunc pro tunc order, this court has declared that the intent of the trial judge is critical. McVay v. Kenneth E. Montz Implement Co., 287 N.W.2d 149, 151 (Iowa 1980).

We conclude that the 2006 order is not an appropriate nunc pro tunc order. Our decision is influenced by several factors. First, the original 1998 order is unambiguous — no obvious error exists. The district court entered an order which in plain language extinguished “any restitution” obligation. The term “any” means “all.” State v. Bishop, 257 Iowa 336, 341, 132 N.W.2d 455, 458 (1965) (“ ‘Any’ means all or every.”). Under Iowa law, restitution obligations include both the repayment of attorneys’ fees and court costs incurred by the victim as well as attorneys’ fees and costs incurred by the State resulting from the defense of the accused. Iowa Code § 910.1(4) (2005). The 1998 order plainly extinguishes all restitution obligations, regardless of their nature. Additionally, the passage of seven years is a factor which mitigates against the finding of obvious error. Under Iowa law, the more time that passes the more evident and manifest the alleged error must be before a nunc pro tunc entry is proper. McVay, 287 N.W.2d at 151.

Second, our interpretation of the 1998 court order is consistent with the aggravated procedural context of the case. At all times relevant to the restitution issue, Johnson was imprisoned by the IDOC. His ability to appear at a court-ordered hearing was completely dependent upon the cooperation of the State. In this type of situation, district courts routinely allow prisoners to appear for court hearings by telephone.

In this case, the State repeatedly failed in the simple task of making Johnson available by telephone to participate in court hearings on his restitution obligations. Aside from failing to make Johnson available, the State has also failed to provide any reason or excuse for its inability to comply with simple court directives. Confronted with the State’s repeated failure to produce Johnson by telephone for the appointed hearings, the district court did not take precipitate action. Instead, the patient district court entered an order advising the State that it had sixty days to produce Johnson for a hearing. If the State did not comply with the court order, however, the district court warned that Johnson’s restitution obligation would be extinguished.

The State inexplicably still did not respond to the court order, and sixty days passed without any action or explanation by the State. Two months thereafter, the district court entered the 1998 order extinguishing any restitution obligation of Johnson. The context of the 1998 order, therefore, demonstrates an objective intent by the court to put an end to the restitution issue. We find that the egregious nature of the procedural context of this case gives strong support to Johnson’s position that the purpose of the 1998 order was to extinguish all restitution obligations.

Third, the language of the district court’s 2006 order reveals that it is interpreting rather than merely correcting its earlier decision. In its 2006 order, the court does not provide any indication of its original intent — almost eight years prior— nor does it indicate that a clerical error was made in 1998. Instead, the court notes that the earlier order stated that Johnson “was not responsible for restitution” and concludes that the 1998 order “referred to victim restitution only.”

We find the district court’s approach problematic. The 1998 order did not state that Johnson was not responsible for “restitution,” which might be ambiguous, but for “any restitution.” An interpretation that the term “any restitution” referred to less than all restitution is simply not supported by the plain language of the order and its procedural history. Further, nunc pro tunc orders are not designed as a vehicle to interpret earlier court orders. Graber, 410 N.W.2d at 229.

The State argues, nevertheless, that even if the district court erred in issuing the nunc pro tunc order, Johnson is not entitled to relief. According to the State, the IDOC and the district court were well within their statutory authority to modify Johnson’s restitution order. Iowa Code section 910.7(1) declares,

At any time during the period of probation, parole, or incarceration, the offender or the office or individual who prepared the offender’s restitution plan may petition the court on any matter related to the plan of restitution or restitution plan of payment and the court shall grant a hearing if on the face of the petition it appears that a hearing is warranted.

Iowa Code § 910.7(1). Further, Iowa Code section 910.7(2) specifically provides for modification of restitution plans at any time prior to the expiration of the offender’s sentence.

We construe sections 910.7(1) and (2), however, to allow for modification only during “the pendency of the restitution plan.” State v. Izzolena, 609 N.W.2d 541, 552 (Iowa 2000). In this case the 1998 court order extinguished the right of the State to collect “any restitution” from Johnson. No plan of restitution thereafter existed which could be modified under sections 910.7(1) and (2).

Furthermore, the State cannot now directly appeal the 1998 order. The supplemental order of restitution was a final order that fully adjudicated the rights of the parties with respect to “any restitution.” See In re T.R., 705 N.W.2d 6, 10 (Iowa 2005) (“A final order or judgment is ‘one that finally adjudicates the rights of the parties, and it must put it beyond the power of the court which made it to place the parties in their original positions. It is a determination which may be enforced by execution or in some similar manner.’ ” (quoting IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 627 (Iowa 2000))). As a final order, the time for direct appeal has lapsed. As a result, the effort to modify Johnson’s restitution obligations under Iowa Code section 910.7 amounts to an impermissible attack on a final court order.

IV. Conclusion.

In summary, we conclude the 1998 order in this matter extinguished the State’s right to any restitution from Johnson, including court costs and attorneys’ fees. The 2006 district court order thus is not a valid nunc pro tunc order. Furthermore, the State may not evade the impact of the 1998 order by collaterally attacking it under the guise of an Iowa Code section 910.7 modification proceeding. As a result, the 2006 nunc pro tunc order is vacated, and the matter is remanded to the district court for further proceedings to enforce the terms of the 1998 order releasing Johnson from any restitution obligation.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED.


author: WIGGINS, Justice.

text:
    Betty D. SCHROEDER, as Executor of the Estate of Homer Schroeder, and Betty D. Schroeder, Individually, Appellants, v. Saadi ALBAGHDADI, M.D., Appellee.
    No. 06-0243.
    Supreme Court of Iowa.
    Feb. 15, 2008.

      William J. Bribriesco and Daniel D. Bernstein of William J. Bribriesco & Associates, Bettendorf, for appellants.
    Jack L. Brooks of Brooks & Trinrud, P.C., Rock Island, Illinois, for appellee.
   WIGGINS, Justice.

A decedent’s wife, individually and as executor of her husband’s estate, received an adverse verdict in a medical negligence action. The wife appealed the verdict claiming the district court failed to submit all the specifications of negligence she requested and erroneously instructed the jury in a way that impermissibly commented on the evidence so as to interfere with the jury’s fact-finding duties. The court of appeals agreed with the wife, reversed the judgment of the district court, and granted a new trial. On further review, we find the district court properly instructed the jury on the specifications of negligence supported by the evidence. We also find the district court properly designed the instructions to reflect the standard of care the physician owed his patient without interfering with the jury’s fact-finding duties. Therefore, we vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Background Facts and Proceedings.

In July 2001 Homer Schroeder underwent open-heart surgery for a blockage of three coronary arteries. Two weeks after his surgery, an ambulance took Homer to Mercy Medical Center in Clinton. His chief complaint was increasing shortness of breath. Homer also complained of nausea and anxiety. The emergency room physician, Dr. Randall Hinrichs, treated Homer. Hinrichs conducted a physical examination and ordered tests to measure the troponin and CPKMB enzyme levels in Homer’s blood. Elevated levels of these enzymes would indicate an injury to Homer’s heart. Hinrichs also ordered a full blood panel, a chest x-ray, an electrocardiogram (EKG), and an INR test, which measures the ability of blood to clot properly.

The blood tests revealed Homer’s potassium, INR, and troponin levels were outside their normal ranges. The radiologist interpreted the chest x-ray to be abnormal with fluid in the lungs and cardiomegaly, an enlargement of the heart. A computer interpretation of the EKG also noted some abnormality. Hinrichs ordered a second EKG, which also indicated abnormalities. Hinrichs then compared this EKG to one taken prior to Homer’s open-heart surgery and noted additional changes.

Hinrichs expressed to Homer’s family, including his wife Betty, that he felt Homer should be admitted to the hospital. However, as an emergency room physician, Hinrichs did not have admitting privileges.

Hinrichs telephoned Dr. Saadi Albagh-dadi, the on-call cardiologist. Albaghdadi was part of a cardiac group that included Homer’s regular treating cardiologist, Dr. Qaiser Rasheed. Albaghdadi had the authority to admit patients.

There is a factual dispute between Hin-richs and Albaghdadi regarding how many telephone conversations took place and the substance of the conversations. Hinrichs testified he called Albaghdadi at home and told him about Homer’s abnormal potassium, INR, and troponin levels. He also testified he told Albaghdadi about Homer’s symptoms and asked that he admit Homer to the hospital. According to Hinrichs, Albaghdadi requested Homer’s EKGs be faxed to his home before he would decide whether to admit Homer. He faxed a prebypass EKG and the July 17 EKG to Albaghdadi. According to Hinrichs, after he faxed the EKGs, he spoke with Albagh-dadi a second time.

Hinrichs testified Albaghdadi convinced him Homer’s troponin and EKG results were due to his recent bypass surgery and that Homer should be released and seen by Rasheed in the next day or two. According to Hinrichs, Albaghdadi had him stop Homer’s Coumadin in order to reduce his elevated INR and prescribed oral vitamin K. Hinrichs recorded his interpretation of this conversation in Homer’s medical records.

Albaghdadi testified he never requested Homer’s EKGs, rather they were sitting in his fax machine when he arrived home on the evening of July 17. Albaghdadi testified Hinrichs only requested an interpretation of Homer’s EKGs. Albaghdadi testified this request was an every day practice, and Hinrichs had requested him to interpret EKGs without examining patients in the past.

Albaghdadi testified Hinrichs’ phone call followed the faxed EKGs, and during their only conversation, Hinrichs explained the abnormal EKGs and Homer’s history, including his recent bypass surgery. He further testified Hinrichs never told him about the abnormal potassium, troponin, or INR levels. Albaghdadi also testified Hin-richs never requested Homer be seen or admitted.

Albaghdadi testified he only interpreted the EKGs and told Hinrichs they showed postoperative changes and a pacemaker rhythm. Albaghdadi testified he did not think Homer needed to be hospitalized based on the information relayed by Hin-richs; however, had Hinrichs reported the elevated INR and potassium he would have admitted Homer immediately.

Hinrichs discharged Homer from the emergency room, but Homer returned to the hospital by ambulance the next morning. While Rasheed examined Homer, he went into cardiorespiratory arrest. He died later that afternoon.

Betty, individually and as the executor of Homer’s estate, brought an action against Hinrichs and Albaghdadi for medical negligence. She settled her claims against Hinrichs prior to trial. The trial commenced with Albaghdadi as the only defendant.

Betty presented two expert witnesses at the trial to establish the standard of care Albaghdadi should have used when treating Homer. Both of Betty’s experts opined if Hinrichs’ version of the July 17 events were correct, Albaghdadi breached the standard of care by failing to (1) properly interpret the EKGs; (2) examine Homer in the emergency room; (3) properly diagnose Homer in the emergency room; (4) direct that Homer be admitted to the hospital as an inpatient; and (5) properly treat Homer.

One of Betty’s experts was asked what standard of care Albaghdadi should have used when caring for Homer if Albaghda-di’s version of the July 17 events was true. Under that assumption, the expert opined Albaghdadi was only required to properly interpret the EKGs. Neither of Betty’s experts testified Albaghdadi fell below the standard of care if Albaghdadi’s version was true.

Albaghdadi’s expert testified, assuming Albaghdadi’s version was true, the only duty Albaghdadi owed to Homer was to properly interpret the EKGs. He went on to testify Albaghdadi properly interpreted the EKGs, and therefore met the applicable standard of care. The expert did state if Hinrichs told Albaghdadi about Homer’s elevated potassium level, he should have admitted Homer to the hospital.

Throughout the trial, the court struggled with the issue of how to instruct the jury because of the factual dispute regarding the July 17 events. At the pretrial conference Betty’s counsel requested the court to find a patient-physician relationship existed and Albaghdadi owed Homer a duty of care as a matter of law. The court reserved its ruling on this request until the close of the evidence. At the conclusion of the evidence, Betty changed her position and argued the question of whether a patient-physician relationship existed, and whether Albaghdadi owed Homer a duty of care, should be a fact question for the jury.

During the arguments regarding a directed verdict, Albaghdadi conceded that he had a patient-physician relationship with Homer. Albaghdadi argued the only question for the jury to decide was the extent of the duty he owed Homer in light of the expert testimony and the conflict of his testimony with that of Hinrichs.

To resolve the issue the court decided to use two verdict forms. The jury was to use verdict form one if it found that Hin-richs only requested Albaghdadi to interpret Homer’s EKGs, and Hinrichs did not tell Albaghdadi of the elevated potassium level. Verdict form one only allowed the jury to find Albaghdadi negligent for failing to properly interpret the EKGs.

The jury was to use verdict form two if it found Hinrichs sought admission of Homer to the hospital and told Albaghdadi of the elevated potassium level. Verdict form two allowed the jury to find Albagh-dadi negligent for failing to (1) properly interpret the EKGs; (2) examine Homer in the emergency room; (3) properly diagnose Homer in the emergency room; (4) direct that Homer be admitted to the hospital as an inpatient; or (5) properly treat Homer.

Betty’s counsel objected to the instructions claiming the court should not use two verdict forms because the record established as a matter of law a patient-physician relationship existed and Albaghdadi owed Homer a duty of care. He further argued only one verdict form should be used that listed all the acts of negligence alleged by Betty’s experts, and then the lawyers could argue the extent of Albagh-dadi’s duty based on the evidence. He also requested the court to consider using an interrogatory in the verdict form asking the jury: “Has a physician-patient relationship been established, yes or no. If yes, go to the issues of fault.”

The court overruled this objection. Then Albaghdadi moved in limine to prevent Betty’s counsel from arguing in closing arguments that Albaghdadi’s on-call status created a duty greater than that established by the expert testimony. Betty’s counsel stated he believed Albaghdadi owed a “full-fledge duty” to Homer because of Albaghdadi’s on-call status, but in light of the court’s ruling on the instructions, Albaghdadi’s motion was probably correct. The court granted Albaghdadi’s motion in limine.

The jury returned a verdict by using verdict form one. The first question on verdict form one asked: “Was the defendant negligent by failing to properly interpret the electrocardiograms of Homer Schroeder on July 17, 2001?” The jury answered this question in the negative. By using verdict form one, the jury found Hinrichs only requested Albaghdadi to give an interpretation of Homer’s EKGs and did not tell Albaghdadi of the elevated potassium level. In other words, the jury determined Albaghdadi’s version of the facts was correct. By answering the first question in the negative, the jury determined Albaghdadi properly interpreted the EKGs. The district court entered a judgment in favor of Albaghdadi.

Betty appealed. We transferred the case to the court of appeals. The court of appeals reversed the judgment and remanded for a new trial. Albaghdadi asked for further review, which we granted.

II. Issues.

Betty contends the court improperly instructed the jury for two reasons. First, she argues the court should have submitted all the specifications of negligence instructed upon for the jury to consider, including an additional specification that Albaghdadi breached his duty of care by failing to ask Hinrichs questions regarding Homer. Second, she argues the court’s instructions improperly interfered with the jury’s fact-finding duties by impermissibly commenting on the evidence.

Betty’s counsel preserved error on the issue of whether the court should have submitted all the specifications of negligence instructed upon for the jury to consider and that the instructions improperly interfered with the jury’s fact-finding duties. However, her counsel did not object to the instructions for not including a specification that Albaghdadi was negligent for failing to ask Hinrichs questions. A party is required to request an additional instruction designed to remedy a perceived defect when the party claims an instruction does not completely state the law. State v. Smith, 240 N.W.2d 693, 695 (Iowa 1976). Failure to do so precludes us from determining the issue on appeal. Poulsen v. Russell, 300 N.W.2d 289, 294 (Iowa 1981). Therefore, we will not consider Betty’s claim that the court failed to include a specification of negligence that Albaghdadi was negligent for failing to ask Hinrichs questions.

III. Analysis.

The trial court has the obligation to instruct the jury on the law governing the issues it submits. Harrington v. Fortman, 233 Iowa 92, 100-01, 8 N.W.2d 713, 717 (1943); Jakeway v. Allen, 226 Iowa 13, 18, 282 N.W. 374, 377 (1938). For each act of negligence the court submits to the jury, it must tell the jury the legal duty owed by the defendant. Id. We look to legislative enactments, judicial decisions, and general legal principles to establish a legal duty or standard of care. Van Essen v. McCormick Enters. Co., 599 N.W.2d 716, 718 (Iowa 1999).

Albaghdadi holds himself out as a specialist in cardiology. Albaghdadi conceded that a patient-physician relationship existed between himself and Homer. We have established the standard of care a specialist must use when treating a patient. McGulpin v. Bessmer, 241 Iowa 1119, 1132, 43 N.W.2d 121, 128 (1950). In McGulpin, we expressed the standard of care as follows:

A physician or surgeon who is held out as a specialist is required to exercise that degree of skill and care ordinarily used by similar specialists in like circumstances, having regard to the existing state of knowledge in medicine and surgery, not merely the average skill and care of a general practitioner.

Id. The failure of a physician to follow this standard of care constitutes negligence. Id.

In a medical negligence case such as this, expert testimony is required to establish the standard of care and a breach thereof. Sinkey v. Surgical Assocs., 186 N.W.2d 658, 660 (Iowa 1971). At the close of the evidence, the court must instruct the jury on the defendant’s duty when the evidence establishes that duty by a particular set of facts the jury may reasonably find to exist. State v. Gough, 187 Iowa 363, 366, 174 N.W. 279, 280 (1919).

The expert testimony only generated an issue for the jury to decide whether Al-baghdadi was negligent for failing to (1) properly interpret the EKGs; (2) examine Homer in the emergency room; (3) properly diagnose Homer in the emergency room; (4) direct that Homer be admitted to the hospital as an inpatient; or (5) properly treat Homer, if the jury found Hinrichs’ version of the conversations with Albaghdadi took place. On the other hand, if the jury found Albaghdadi’s version took place, the only issue generated by the expert testimony for the jury to decide was whether Albaghdadi was negligent for failing to properly interpret the EKGs.

At trial and on appeal, Betty’s counsel contends he had a right to argue Albaghdadi was negligent for failing to (1) properly interpret the EKGs; (2) examine Homer in the emergency room; (3) properly diagnose Homer in the emergency room; (4) direct that Homer be admitted to the hospital as an inpatient; or (5) properly treat Homer, solely on the basis that Albaghdadi was the on-call cardiologist the evening of July 17. We disagree. Betty presented no expert testimony stating Albaghdadi was negligent in those respects solely because he was the on-call cardiologist. Consequently, the expert testimony did not establish such a duty existed. Therefore, Betty could not argue the case in that manner.

To prevent Betty’s counsel from arguing the case in a manner not supported by the expert testimony, the court chose to use two verdict forms. The jury was to use the first verdict form if it found Hinrichs’ version of the events took place and the second verdict form if it found Albaghda-di’s version occurred.

Betty contends by using two verdict forms, the court impermissibly commented on the evidence. Instructions by the court that comment “on potential factual scenarios in which a standard of care may or may not have been adhered to” are impermissible comments on the evidence. Peters v. Vander Kooi, 494 N.W.2d 708, 712 (Iowa 1993). However, instructions designed to determine a physician’s duty of care do not constitute an impermissible comment on the evidence. Id.

The fighting factual issue in this case was the substance of the communication between Albaghdadi and Hinrichs. Betty tried this case on the theory that the jury would believe Hinrichs’ version of the events. According to her expert’s testimony, the jury could have found Albaghdadi negligent for the five specifications to which they testified if Hinrichs’ version of the conversation took place.

Albaghdadi tried this case on the theory that the jury would believe his version of the events. His experts insisted Albagh-dadi’s only duty was to read the EKGs; thus, the jury could only find him negligent if he read the EKGs in a manner that fell below the standard of care.

Betty and Albaghdadi based their theories of negligence on two different sets of facts that were mutually exclusive. The parties tried the case by giving the jury only two alternative ways to decide it. The record did not allow the jury to incorporate parts of each side’s expert testimony in deciding this case. The court did not give the verdict forms to the jury as potential factual scenarios in which a standard of care may or may not have been adhered to by Albaghdadi. The verdict forms provided the jury with a road map to determine the standard of care Albaghdadi owed Homer consistent with the jury’s fact-finding. The verdict forms were also consistent with the manner in which the parties tried the case.

Therefore, we find the court properly designed the two verdict forms to allow the jury to determine the applicable standard of care once it decided the disputed facts. Although there may have been a better way for the court to instruct the jury, such as using special interrogatories rather than verdict forms, the court did not impermissibly comment on the evidence by using these forms.

IV. Disposition.

Because the district court properly instructed the jury on the specifications of negligence supported by the evidence and designed the instructions to determine the standard of care Albaghdadi owed Homer, we vacate the decision of the court of appeals and affirm the judgment of the district court.

COURT OF APPEALS DECISION VACATED; DISTRICT COURT JUDGMENT AFFIRMED.


author: SACKETT, C.J.

text:
    In the Interest of A.T. and T.P., Minor Children, S.R.P., Mother, Appellant, L.A.P., Father, Appellant.
    No. 07-0998.
    Court of Appeals of Iowa.
    Dec. 28, 2007.

      Thomas Graves of Jackowski & Graves, L.L.P., Clive, for appellant-mother.
    Andrea M. Flanagan of Sporer & Ilic, P.C., Des Moines, for appellant-father.
    Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd and Janet L. Hoffman, Assistant Attorney Generals, John P. Sarcone, County Attorney, and Chris Gonzales, Assistant County Attorney, for appellee.
    Michael Bandstra, Des Moines, guardian ad litem for minor children.
    Heard by SACKETT, C.J., and YAITHESWARAN and BAKER, JJ.
   SACKETT, C.J.

In this appeal from the juvenile court’s order terminating the parental rights of two children the issues are whether (1) the role of guardian ad litem and attorney for both children should have been assumed by the same person where the older child, contrary to the guardian ad litem’s recommendation, did not want her parental rights terminated; (2) termination of the mother’s parental rights were in the best interest of the children; and (3) there was clear and convincing evidence supporting the termination of the parental right of the father of the older child. We find the juvenile court abused its discretion in not appointing a separate attorney for the older child and remand.

BACKGROUND. On May 30, 2007, the juvenile court ordered termination of the parental rights of the parents of Taylar, born in October of 1994, and Angelina, born in July of 2003. Petitions on appeal were filed by Sherrie, the children’s mother, and Lynn, the father of Taylar, seeking relief from the termination order. Leonel, the father of Angelina, did not file a petition on appeal. We remanded for full briefing on two issues. We now have received full briefs from Sherrie and Lynn, the State, and the guardian ad litem and attorney for the children and heard oral arguments on the issues.

The two children, who have different fathers, have twice been removed from their mother’s care primarily because she has a serious substance abuse problem, and during the times she is drinking alcohol or ingesting drugs she is an inadequate parent. The latest removal was in September of 2005. The matter initially came before the juvenile court in August of 2005, and the juvenile court allowed Sherrie an additional six months to prepare herself for her daughters’ return. Sherrie continued to have issues with substance abuse. The State filed a petition to terminate parental rights in June of 2006.

A hearing on the petition to terminate was again held in April of 2007. The juvenile court ordered termination of all parents’ parental rights. The court terminated Sherrie’s rights to the two girls under Iowa Code sections 232.116(l)(f) and (,l) (2007), and also terminated Sherrie’s parental rights to Angelina under section 232.116(l)(h). The court terminated Lynn’s parental right to Taylar under section 232.116(l)(b), and Leonel’s parental rights to Angelina under section 232.116(l)(b).

SHERRIE’S CLAIMS. Sherrie does not contest the juvenile court’s findings that the State proved grounds to terminate her parental rights to the two children nor does she argue that her children can be returned to her at this time. Sherrie’s appeal focuses, rather, on (1) her concern that Taylar’s wishes not to have Sherrie’s parental rights terminated were not properly represented or given adequate weight, (2) that termination is not in the children’s best interest, and (3) that Mike Bandstra, who represented both girls both as their guardian ad litem and their attorney, should not serve Taylar in both capacities. Sherrie argues Bandstra sought termination though Taylar did not want her mother’s parental rights terminated. Sherrie also contends the juvenile court should have given more weight to her decision to take up residence in the House of Mercy, a program for substance dependent parents.

Lynn, Taylar’s father, contends (1) there was insufficient evidence to prove the necessary elements of section 232.116(l)(b) as the State failed to show he abandoned or deserted Taylar, and (2) termination of his parental rights was not in Taylar’s best interest.

The State and Bandstra contend Sherrie failed to preserve error on the issue of the refusal to appoint a separate attorney and guardian ad litem for Taylar. They also contend that (1) a separate attorney was not necessary for Taylar, (2) Taylar was mature enough to participate in the decision not to have a separate attorney and guardian ad litem, and (3) Taylar was not entitled to dual representation for she was legally capable of providing information to the court.

A. Preservation of error. The State and Bandstra contend error was not preserved on the issue of the dual representation. We disagree. Sherrie filed a motion asking that Taylar have separate counsel at an August 2006 hearing. She apparently withdrew the request during that hearing but again made the request at the April 2007 termination hearing. There was a disagreement at that time as to whether the issue could again be brought before the court; however, the court addressed the motion, overruling it and finding that Taylar had waived the conflict. The court held that a conflict did not prevent an attorney from serving in both roles if, as Taylar’s attorney, he presented Tay-lar’s wishes to the court and, as guardian ad litem, presented what he determined to be her best interest to the court. The issue was properly preserved for review. Even if it was not preserved, the lack of an objection to an alleged conflict of interest does not preclude consideration of the issue on appeal. In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988); see also State v. Neal, 353 N.W.2d 83, 86 (Iowa 1984); State v. Don, 318 N.W.2d 801, 807 (Iowa 1982). We will address the claim.

B. Conflict. At the time of trial, Tay-lar was a twelve-year-old girl who the court noted “was impressive and demonstrated a maturity beyond her years.” She recognized her parent’s shortcomings. While in foster placement she was abused. She was allowed to express her opinion to the court, but with the assistance of a guardian ad litem who did not share her goal. Sherrie claims that, because Tay-lar’s wishes did not correspond with the wishes of the guardian ad litem, Taylar should have had a separate attorney to advocate her wishes. Bandstra acknowledges that he has served as both attorney and guardian ad litem for Taylar. He notes that Taylar has always verbalized that she wants to return to her mother. He contends he has followed the mandates of In re G.Y., 486 N.W.2d 288 (Iowa 1992), by disclosing there was a conflict between his role as an attorney advocating for Tay-lar’s wishes and as a guardian ad litem advocating what he determined to be Tay-lar’s best interest. He states that he met with Taylar and explained the conflict and Taylar indicated she did not want a separate attorney.

We must start with the proposition that Taylar has a very real stake in the outcome here. “[U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.” Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 1398, 71 L.Ed.2d 599, 611 (1982). As in this case where Taylar was abused in the foster home, it was noted that “even when a child’s natural home is imperfect, permanent removal from that home will not necessarily improve his welfare.” Id. at 766, 102 S.Ct. at 1401, 71 L.Ed.2d at 614 n. 15.

In this case, Taylar sought to have her wishes represented and stay with her mother. The Iowa legislature has statutorily provided for the appointment of both an attorney and guardian ad litem for a child in Taylar’s position in Iowa Code section 232.89, which provides in applicable part:

2. Upon the filing of a petition, the court shall appoint counsel and a guardian ad litem for the child identified in the petition as a party to the proceedings.
4. The same person may serve both as the child’s counsel and as guardian ad litem. However, the court may appoint a separate guardian ad litem, if the same person cannot properly represent the legal interests of the child as legal counsel and also represent the best interest of the child as guardian ad litem....

(Emphasis supplied).

The legislature has also defined the guardian ad litem’s role in section 232.2(22), which provides in relevant part:

a. “Guardian ad litem” means a person appointed by the court to represent the interests of a child in any judicial proceeding to which the child is a party, and includes a court appointed special advocate....
b. Unless otherwise enlarged or circumscribed by a court or juvenile court having jurisdiction over the child or by operation of law, the duties of a guardian ad litem with respect to a child shall include the following:
(1) Conducting in-person interviews with the child, if the child’s age is appropriate for the interview, and interviewing each parent, guardian, or other person having custody of the child, if authorized by counsel.
(2) Conducting interviews with the child, if the child’s age is appropriate for the interview, prior to any court-ordered hearing.
(3) Visiting the home, residence, or both home and residence of the child and any prospective home or residence of the child, including each time placement is changed.
(4) Interviewing any person providing medical, mental health, social, educational, or other services to the child, before any hearing referred to in subparagraph (2).
(5) Obtaining firsthand knowledge, if possible, of the facts, circumstances, and parties involved in the matter in which the person is appointed guardian ad li-tem.
(6) Attending any hearings in the matter in which the person is appointed as the guardian ad litem.
(7) If the child is required to have a transition plan developed in accordance with the child’s case permanency plan and subject to review and approval of a transition committee under section 235.7, assisting the transition committee in development of the transition plan.
c. The order appointing the guardian ad litem shall grant authorization to the guardian ad litem to interview any relevant person and inspect and copy any records relevant to the proceedings, if not prohibited by federal law. The order shall specify that the guardian ad litem may interview any person providing medical, mental health, social, educational, or other services to the child, may attend any departmental staff meeting, case conference, or meeting with medical or mental health providers, service providers, organizations, or educational institutions regarding the child, if deemed necessary by the guardian ad litem, and may inspect and copy any records relevant to the proceedings.
d. If authorized by the court, a guardian ad litem may continue a relationship with and provide advice to a child for a period of time beyond the child's eighteenth birthday.

An attorney’s responsibility with reference to Taylar is that due a client with diminished capacity because Taylar is not of legal age. This principle is found in Iowa Rule of Professional Conduct 32:1.14, which provides in relevant part:

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority ... the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client’s own interest the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.

(Emphasis supplied).

It has been suggested that role definition and confidentiality issues can arise whenever attorneys are appointed to serve as guardians ad litem; however, they become even more complex when an attorney is appointed to serve as both attorney and guardian ad litem for a child. Ann M. Haralambie, The Role of the Child’s Lawyer In Protecting the Child Throughout the Litigation Process, 71 N.D. L. Rev. 939, 941 (1995). Under ABA standards, one lawyer cannot take on a hybrid role and advocate both for the child’s wishes and his or her best interest. American Bar Association Section of Family Law, Standards of Practice for Lawyers Representing Children in Custody Cases, 37 Fam. L.Q. 131, 134 (2003); see also Nicole A. Demers, Note, An Attorney is an Attorney is an Attorney Except when the Attorney is also a Guardian Ad Litem: An Analysis of the Connecticut Appellate Court’s Decision in Carrubba v. Moskowitz Regarding Immunity, 24 Quinnipiac L.Rev. 847, 866 (2006).

The initial question is whether the juvenile court abused its discretion in finding that Bandstra can properly represent the legal interest of Taylar and also represent her best interest. Is Bandstra’s fundamental and statutory duty as guardian ad litem consistent with his fundamental responsibility as a lawyer to abide by the decisions and objectives of his client? Bandstra’s position is that it is. Bandstra’s argument finds some support from In re J.P.B., 419 N.W.2d 387, 891-392 (Iowa 1988), a parental termination case where the court addressed ineffective assistance of counsel claims against two attorneys, one who represented at trial both children, and the second who represented the children’s mother at trial. The fírst challenge was to the effectiveness of the trial attorney for the children, a boy age nine and a girl age thirteen. Id. at 388. The boy wanted his parental rights terminated while the girl did not want her parental rights terminated. Id. The girl contended she was denied her constitutional right to effective assistance of counsel because her court-appointed attorney also represented her brother who favored termination. Id. The second challenge was to the effectiveness of the attorney for the children’s mother. Id. She contended her attorney was ineffective in failing to object to the conflict of interest inherent in the dual representation of her children. Id.

The Iowa court, in seeking some guidance from In re Marriage of Rolfe, 216 Mont. 39, 699 P.2d 79, 86-87 (1985), did not find either attorney ineffective. J.P.B., 419 N.W.2d at 391-92. The court pointed out that the reasons for contested custody proceedings are that the children involved are not yet mature enough to be self-determining and it is the best interests of the minor children, not their wishes, which determine the outcome of the case. Id. Consequently, their real interests are not inconsistent or mutually exclusive. See id.

The court went on to recognize, citing Iowa Code of Professional Responsibility for Lawyers Rule DR7-101, that in the ordinary lawyer-client relationship, the lawyer’s role is not to determine the client’s interest but to advocate the client’s interest. Id. The court noted that such a duty may present an ethical dilemma in a juvenile proceeding where the objective is always the best interest of the child, not the child’s personal objective, and acknowledged that the unsettled law in this area offers no clear direction to an attorney faced with such a predicament. Id. at 391. The court then recognized that determining a child’s best interests is difficult and a child’s wishes deserve serious consideration. Id. at 392. The court noted that if the court-appointed attorney concludes that the child’s expressed wishes are not in his or her best interest, the attorney must disclose this to the court, as the juvenile court must be clearly informed of the child’s wishes and the basis for the attorney’s determination that the child’s wish is not in the child’s best interest. Id. The court said that this gives priority to the paramount goal of discerning the child’s best interest while enabling the lawyer to advocate an opposing viewpoint without fear of an ethical violation. Id. The court reasoned that such an approach obviates the expensive and burdensome practice of appointing both a guardian ad litem and attorney for each child in a family to ensure that each child’s expressed wishes as well as best interest are advocated. Id. The court then resolved the issue on the prejudice prong, finding it was not persuaded the daughter’s court-appointed counsel’s simultaneous representation of her brother prejudiced the achievement of the girl’s desired result or the primary goal of discerning her best interest. Id. The court found, for the same reason, that the failure of the mother’s counsel to object to the dual representation could not support her claim of ineffective assistance. Id. at 391-92.

In re J.P.B. was followed by In re G.Y., 486 N.W.2d 288 (Iowa 1992). There, the court addressed a mother’s request for both an attorney and guardian ad litem for her child in a juvenile proceeding. In re G.Y., 486 N.W.2d at 289. The court, recognizing in its discussion of the need for independent counsel in juvenile proceedings in In re J.P.B., noted that Iowa Code section 232.89(4) seemed a practical legislative recognition of fiscal necessity because justice does not require duplicitous arguments and it would be a waste of the public treasure to fund them. See In re G.Y., 486 N.W.2d at 289. The court then, apparently recognizing that there may be conflicts between the role of a guardian ad litem and an attorney for a child, went on to say “When conflicts threaten, so that separate counsel becomes appropriate, the court can appoint them.” Id.

Is there a threatening conflict here so that appointment of an attorney to represent Taylar’s interests was appropriate? Is Bandstra’s duty of loyalty as a lawyer for Taylar contrary to his statutory duty as guardian ad litem to the court?

It would appear that the older, more intelligent, and mature the child is, the more impact the child’s wishes should have, and a child of sufficient maturity should be entitled to have the attorney advocate for the result the child desires. See Gary Soloman, Role of Counsel in Abuse and Neglect Proceedings, 192 Prac. Law Inst.Crim. Law and Urb. Prob. 543, 550 (2003). We turn then to look at the manifestation of Taylar’s wishes and her maturity.

Taylar was always vocal in her wishes not to have her mother’s parental rights terminated. She attended the termination hearing contrary to Bandstra’s recommendation. Bandstra called her as a witness. She related that she and her sister visited her mother at the House of Mercy and she felt she understood her mother’s current situation. Taylar testified her mother had changed and her mother now paid more attention to her and to her little sister. Taylar related she loves her mother, her mother loves her, and she believes her mother loves her little sister. Taylar was aware of her mother’s relapses and the fact that her mother should not be using drugs. Taylar did not want to move until school was out, but then hoped to be unified with her mother at the House of Mercy.

Taylar was asked on cross examination by the county attorney:

Q. Do you think at this time that your mother is able to care for you and your sister? A. Yes.
Q. Why do you think that? A. It is because she has proved a lot, and I can see it. And she can’t really go on without us, and I can’t go on without a mom that has given birth to me. And I really think that she deserves the chance to have us back.

The juvenile court found:

Taylar earnestly desired a reunification with her mother. She does not want her parental rights terminated. She believes that her mother can come to successfully address her issues and resume responsibility for parenting her and her sister. She loves her mother and wants to see her succeed. Furthermore Tay-lar believes that her mother can succeed. I don’t doubt Sherri loves her children and would like to see reunification.

Sherrie concedes that Bandstra is experienced and able counsel, but she contends that throughout the proceedings, except for the times he put Taylar on the stand, he worked relentlessly to seek the termination of Sherrie’s parental rights. Sherrie argues that he examined witnesses in a manner to put before the court complaints about her as a parent, never asked questions seeking answers that would bolster Taylar’s position, and that his questioning of every witness except his own client, Taylar, worked assiduously toward termination.

In re J.P.B. is not necessarily instructive on the issues we are asked to address and it can only be considered in concert with In re G.Y. The attorney for the children there, unlike the attorney here, was not also appointed as guardian ad litem. There was no guardian ad litem in In re J.P.B. The question was one of ineffective assistance of counsel which the court decided on a finding there was no prejudice as a result of the dual representation. In re J.P.B., 419 N.W.2d at 392. In re J.P.B. is also factually distinguishable from the case before us. The evidence supporting termination of parental rights in that case was stronger than it is here. In In re J.P.B., the mother had a number of issues, the most serious of which were substantiated allegations of incest and of sexual abuse. Id. at 389. The court found the mother was unwilling or not able to separate both herself and her children from a family plagued by a history of incestuous behavior. Id. Even after the children were placed in foster care, there was continuing abuse by family members and boyfriends during the mother’s visitation period. Id. Consequently, the daughter’s position that her parental rights should not be terminated in lieu of this behavior indicated the child was not competent to have input in this decision, nor could an attorney in good faith argue that she could.

In contrast to the mother in In re J.P.B., Sherrie has been recognized as being a good mother to her children other than when she has used alcohol or illegal substances. She is bonded with her children. There is no evidence her children have suffered physical harm or sexual abuse while in her care. She has made efforts, which to this point have been unsuccessful, to curb her addiction. Yet she, at the time of the termination hearing, had voluntarily placed herself in a program to assist in her recovery, she had been religiously attending AA meetings, and she had a strong sponsor who testified on her behalf. We do not seek to minimize Sherrie’s addictions, but also we cannot assume that her current program will fail. While we recognize the directives to make these decisions quickly so that children can hopefully go on to a better life, there was no evidence an adoptive home is available for Taylar. Furthermore, Taylar’s strong bond to her biological family may make it difficult for her to accept an adoptive family if one is found.

Taylar was aware of her mother’s addiction yet had visited her during her time in foster care and observed her mother improving in the House of Mercy. The court and counsel at the termination hearing recognized Taylar’s maturity. Taylar has a relationship with both her mother’s and father’s extended family. She is doing well in school. She has assumed substantial responsibility for her young sister.

The juvenile court abused its discretion in denying the motion to appoint separate counsel for Taylar. We disagree with the juvenile court that Taylar was competent to waive the clear conflicts that existed, yet we find she was mature enough to have her interest represented. The potential conflicts between a guardian ad litem’s statutory duty to the court and a lawyer’s duty to his client are blurred. See generally, Ann M. Haralambie, The Role of the Child’s Attorney In Protecting the Child Throughout the Litigation Process, 71 N.D. L.Rev. 989, 941 (1995). The fundamental duty of the guardian ad litem conflicts with the traditional role of the lawyer.

We do not hold that an attorney must always be appointed for a child in a termination. A guardian ad litem can, in some situations, serve a dual role as both the guardian ad litem and the juvenile’s attorney. Iowa Code section 232.89(2). When, however, a guardian ad litem recommends a disposition that conflicts with the juvenile’s wishes, the juvenile court may, under Iowa Code section 232.89, appoint independent counsel to represent the child in situations where a child is of sufficient age and maturity to make an informed decision about a potential termination of a child’s relationship with his or her parents. See In re Williams, 101 Ohio St.3d 398, 805 N.E.2d 1110,1113-14 (2004).

Iowa Code section 232.116.2(b)(2) provides:

In considering whether to terminate the rights of a parent under this section, the court shall give primary consideration to the child’s safety, to the best placement for furthering the long-term nurturing and growth of the child, and to the physical, mental, and emotional condition and needs of the child. This consideration may include any of the following:
(2) The reasonable preference of the child, if the court determines that the child has sufficient capacity to express a reasonable preference.

Only by the appointment of an attorney can the child’s wishes be effectively presented. As the court noted in footnote 65 in Application of Gault, 387 U.S. 1, 38, 87 S.Ct. 1428, 1449, 18 L.Ed.2d 527, 552 n. 65 (1967) quoting the National Crime Commission Report:

The Commission believes that no single action holds more potential for achieving procedural justice for the child in the juvenile court than provision of counsel. The presence of an independent legal representative of the child, or of his parent, is the keystone of the whole structure of guarantees that a minimum system of procedural justice requires. The rights to confront one’s accusers, to cross-examine witnesses, to present evidence and testimony of one’s own, to be unaffected by prejudicial and unreliable evidence, to participate meaningfully in the dispositional decision, to take an appeal have substantial meaning for the overwhelming majority of persons brought before the juvenile court only if they are provided with competent lawyers who can invoke those rights effectively.

In this case, given Taylor’s age and maturity, a separate attorney was required.

We remand to the juvenile court to appoint a separate attorney for Taylar. We do not resolve the other issues on appeal because the resolution of the issue of Tay-lar’s relationship with her mother may have an impact on the other issues. These issues cannot be decided in isolation, for all issues raised must be considered in concert in the final decision. We order a new trial on the petition for termination.

REMANDED.

      . The juvenile court found Leonel was in Mexico but made no finding that he was served with notice of the proceeding or that he was within the jurisdiction of the Iowa juvenile court.

      . There is nothing in the opinion to indicate a guardian ad litem was appointed for either child, though section 232.96 of the 1987 Code of Iowa contains substantially the same language as those portions of sections 232.89(2) and 232.89(2)(a) of the Code provisions applicable here.

      . A child whose parents are seeking a dissolution of their marriage will not be orphaned by the court's decision as a child in a termination of parental rights case may be. In most dissolution cases, the court is merely allocating between two adequate parents the child’s growing up time. The child will continue to have the benefit of both parents and relationships with both parents and their extended families.

      .Now 32:1.3

      . Even in states where the law provides a separate lawyer for the child, this often does not happen either because of the prohibitive cost of appointing a lawyer and a guardian ad litem for one child, or the guardian ad litem simply does not ask the court to appoint a lawyer for the child. Jennifer L. Renne, Legal Ethics in Child Welfare Cases, at 80 (2004).

      . While this was admirable, we do not consider Taylar’s consent to dual representation to be dispositive. If Taylar is not competent to decide that she wants to continue to live with her mother, she certainly is not competent to decide that she is adequately represented.

      . Does In re J.P.B.'s holding that any attorney who is the sole representative of the child has to advocate for the best interest apply to an attorney assuming both roles?

      . While the issue of adoption is not relevant to whether the conduct of a parent is such that termination of parental rights is legally permissible, the evidence is crucial to a decision on final disposition after termination, and appellate courts are interested in knowing of the adoptability factor in their de novo review. In re T.C., 492 N.W.2d 425, 429 (Iowa 1992).


author: ANDERSON, G. BARRY, Justice.

text:
    In the Matter of the Welfare of the Child of B.J.-M. and H.W., Parents.
    No. A07-272.
    Supreme Court of Minnesota.
    Feb. 21, 2008.
    John Michael Jerabek, Niemi, Barr & Jerabek, P.A., Daniel Wade Homstad, Minneapolis, for Appellants.
    Mary Martin Lynch, Asst. Hennepin County Atty., for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

The Hennepin County Human Services Department (the County) filed a petition to terminate parental rights in relation to minor child T.W. The petition listed B.J.M. as the child’s mother and named her as a party to the proceeding, but did not name the child’s father, H.W., as a party. Instead, H.W. was listed as the alleged father and therefore only a participant in the litigation. On the first day of the scheduled trial on the termination of B.J.’M.’s parental rights, however, H.W. appeared in the action for the first time and acknowledged that he and B.J.-M. had previously signed a recognition of parentage form pursuant to Minn.Stat. § 257.75 (2006), and that H.W. was therefore T.W.’s legally recognized father. Although never named as a party, either by amendment to the existing petition or execution of a new petition, H.W. subsequently participated in a full adversarial trial, and the juvenile court ordered the termination of his parental rights. The Minnesota Court of Appeals affirmed. Based on our supervisory power to enforce the rules governing juvenile court proceedings, and in the interests of justice, we reverse the termination of H.W.’s parental rights and remand to the juvenile court for further proceedings.

On January 15, 2006, when she was 40 weeks pregnant, B.J.-M. tested positive for cocaine. Nine days later, on January 24, B.J.-M. gave birth to T.W, who was diagnosed with sepsis (a blood infection) and pneumonia. T.W. was admitted to the neonatal intensive care unit and was placed on a 72-hour health and welfare hold on January 26. On January 27, 3 days after T.W.’s birth, B.J.-M. and H.W. signed a recognition of parentage form affirming that H.W. is T.W.’s father. The Hennepin County Juvenile Court subsequently granted interim legal custody of T.W. to the County and ordered that T.W. continue in out-of-home placement at an emergency protective care hearing. After a lengthy hospital stay, T.W. was discharged to foster care. She is physically and developmentally delayed.

On January 31, 2006, 1 week after T.W.’s birth, the County filed a petition to terminate parental rights or transfer permanent legal and physical custody with respect to T.W. The petition listed B.J.-M. as T.W.’s mother and a party to the proceeding, but listed H.W. as only T.W.’s alleged father. Because alleged fathers are participants — rather than parties — in termination of parental rights proceedings, see Minn. R. Juv. Prot. P. 21.01, subd. 3, 22.01(b), the petition did not name H.W. as a party to the proceeding but instead merely listed him as a participant. The record suggests that the County attempted to serve H.W. with the petition by U.S. mail, but that H.W. did not receive the petition because the County did not have his current address.

On March 14, 2006, the juvenile court held an admit/deny hearing on the termination of parental rights petition. The court also held pretrial hearings on April 26 and June 1, 2006. H.W. did not appear at any of these hearings, but the record suggests that the court did not notify H.W. of these hearings.

Trial on the petition to terminate parental rights was scheduled to take place on June 22 and June 26, 2006. On the first day of the scheduled trial, H.W. appeared in the action for the first time and acknowledged that he signed a recognition of parentage form. Following a discussion in chambers, those present agreed on the record that the trial would be delayed, and the court indicated that a public defender would be appointed to represent H.W. Although both the juvenile court and the County acknowledged that the petition to terminate parental rights needed to be amended to indicate that H.W. is an adjudicated, rather than alleged, father, the petition was never amended on the record, and no amended petition was ever filed with the court or served on H.W.

The juvenile court conducted a trial in this matter on October 9 and November 29, 2006. The court received approximately 73 exhibits into evidence, most of which were admitted by stipulation, and heard testimony from several witnesses. H.W. appeared on both days of trial, was represented by counsel, and actively participated in the proceedings. He testified on his own behalf and, through counsel, objected to the introduction of evidence, cross-examined witnesses, and made a closing argument. On January 5, 2007, the juvenile court ordered termination of B.J.-M.’s and H.W.’s parental rights to T.W. The Minnesota Commissioner of Human Services was appointed guardian and legal custodian of T.W.

On appeal, H.W. argued that the juvenile court erred because (1) the court terminated his parental rights on a basis that was not pleaded, (2) the court wrongly considered certain evidence, (3) the record did not support termination, (4) the County failed to adequately investigate transferring legal custody of T.W., and (5) the record did not support the finding that termination is in T.W.’s best interests. See In re the Welfare of the Child of B.J.-M. and H.W., Parents, No. A07-272, 2007 WL 2472572, at *1 (Minn.App. Sept. 4, 2007). Although the absence of a petition naming H.W. as a party to the termination proceeding was not raised in the juvenile court or by the parties on appeal, the court of appeals noted in its opinion:

This termination proceeding, like all others, involves sad and disturbing facts. But this case is also disturbing because of apparent procedural irregularities. Specifically, the district court file contains a petition to terminate mother’s parental rights, but there is no petition to terminate father’s rights. In addition, the file lacks any indication that father was served with a petition to terminate his parental rights, nor is there a copy of father’s case plan.

Id. But the court of appeals concluded that H.W. had “waivfed] any procedural argument he may have had” regarding the pretrial proceedings by agreeing to a trial on the termination of his parental rights. Id. The court ultimately affirmed the juvenile court order. Id. at *1-6. On November 6, 2007, we granted H.W.’s petition for review.

Minnesota Statutes § 260C.301, subd. 1(b) (2006), provides that “[t]he juvenile court may upon petition, terminate all rights of a parent to a child * * * if it finds that one or more of the [statutory grounds for termination] exist.” The “paramount consideration” in termination of parental rights proceedings is “the best interests of the child.” Minn.Stat. § 260C.301, subd. 7 (2006). But as the United States Supreme Court has recognized, the termination of parental rights also implicates substantial and fundamental liberty interests of the parents:

Lassiter declared it “plain beyond the need for multiple citation” that a natural parent’s “desire for and right to the companionship, care, custody, and management of his or her children” is an interest far more precious than any property right. When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it. “If the State prevails, it will have worked a unique kind of deprivation .... A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.”

Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (quoting Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)) (internal citations omitted).

Termination of parental rights proceedings are governed by the Minnesota Rules of Juvenile Protection Procedure. Minn. R. Juv. Prot. P. 1.01, 2.01(k). Under the rules, a termination of parental rights proceeding “is commenced by filing a petition with the court.” Minn. R. Juv. Prot. P. 32.01. This petition must contain, inter alia, (1) a statement of the facts supporting termination; (2) the names and addresses of the child’s parents, when known; (3) the statutory grounds supporting termination; (4) “the names and address of the parties identified in Rule 21, as well as a statement designating them as parties”; and (5) “the names and addresses of the participants identified in Rule 22, as well as a statement designating them as participants.” Minn. R. Juv. Prot. P. 33.02, subd. 1. After the summons and petition are served, see Minn. R. Juv. Prot. P. 32.02, the juvenile court must hold an admit/deny hearing. Minn. R. Juv. Prot. P. 34.02(b). At this hearing, the court must determine whether the petition establishes a prima facie case supporting the termination of parental rights, Minn. R. Juv. Prot. P. 34.03, subd. 3, and the parents who are parties to the proceeding must “admit or deny the statutory grounds set forth in the petition or remain silent,” Minn. R. Juv. Prot. P. 35.01, subd. 1. After the pretrial proceedings are complete, the juvenile court must conduct a trial “to determine whether the statutory grounds set forth in the petition are or are not proved.” Minn. R. Juv. Prot. P. 39.01. “If the court finds that the statutory grounds set forth in the petition are proved, the court may terminate parental rights.” Minn. R. Juv. Prot. P. 39.05, subd. 3.

Although we have not directly ruled on the issue, we have previously suggested that the termination of parental rights may only be based on a statutory ground listed in a petition. See In re Welfare of Staat, 287 Minn. 501, 505, 178 N.W.2d 709, 712 (1970) (“[W]e express doubt that this is a ground upon which the court’s conclusion could be based. There is no evidence upon which termination under this ground could be justified. It was not even stated as a statutory ground in the welfare department’s petition for termination of parental rights.”). But the court of appeals has expressly held that a court cannot base the termination of parental rights “on a ground that is not stated in a petition to terminate rights.” In re the Welfare of the Child of T.D., 731 N.W.2d 548, 556 (Minn.App.2007). We believe that the Rules of Juvenile Protection Procedure unambiguously condition the termination of parental rights on a finding “that the statutory grounds set forth in the petition are proved,” Minn. R. Juv. Prot. P. 39.05, subd. 3(a), and therefore agree with the court of appeals’s conclusion in T.D. that the termination of parental rights cannot be based on a statutory ground that was not included in a petition to terminate parental rights.

There is no dispute that the proceedings in the present case did not follow these procedural rules. Despite the fact that B.J.-M. and H.W. had already signed a recognition of parentage form, thereby establishing a legally recognized father and child relationship between H.W. and T.W., no petition to terminate parental rights identified H.W. as T.W.’s legally recognized father or as a party to a termination proceeding. Indeed, the only petition in the juvenile court file merely listed H.W. as T.W.’s alleged father and a participant in the termination proceedings. Moreover, there is no evidence in the record that H.W. was served with the petition or that the juvenile court determined whether the petition established a prima facie case supporting the termination of H.W.’s parental rights. Finally, because H.W. was not identified as T.W.’s legally recognized father or named as a party in a petition to terminate parental rights, there were not any statutory grounds set forth in a petition upon which the termination of his parental rights could be based.

H.W. argues that because of these failures to follow the Rules of Juvenile Protection Procedure, the juvenile court violated his due process rights by terminating his parental rights. Although the amount of process due in a particular case varies with the unique circumstances of that case, In re the Welfare of the Children of Coats, 633 N.W.2d 505, 514 (Minn.2001); In re the Welfare of HGB, 306 N.W.2d 821, 825 (Minn.1981), prejudice as a result of the alleged violation is an essential component of the due process analysis, see Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 415-17 (Minn.2007); see also HGB, 306 N.W.2d at 825. But because we conclude, based on our supervisory power to enforce the Rules of Juvenile Protection Procedure and in the interests of justice, that the failure to name H.W. as a party in a petition requires reversal of the juvenile court order terminating his parental rights, we need not address H.W.’s due process claim.

The authority to regulate the procedures governing judicial proceedings is an inherent judicial power. See State v. Willis, 332 N.W.2d 180, 184 (Minn.1983); see also Minn.Stat. § 480.0595 (2006) (authorizing this court to “promulgate rules to regulate the pleadings, practice, procedure and the forms thereof in juvenile proceedings”). We have previously exercised our supervisory power “prophylactieally or in the interests of justice” to enforce the procedural rules governing an action by granting a new trial, even where no prejudice was suffered by the complaining party. See State v. Salitros, 499 N.W.2d 815, 820 (Minn.1993); see also Stale v. Clifton, 701 N.W.2d 793, 799 (Minn.2005); State v. Kaiser, 486 N.W.2d 384, 387 (Minn.1992).

Under the Minnesota Rules of Juvenile Protection Procedure, the petition to terminate parental rights is the document that classifies interested individuals as parties or participants, thereby defining their rights in the proceeding. The filing of the petition also commences the action itself and triggers procedural safeguards, such as .the pretrial admit/deny hearing, intended to protect the fundamental rights of parents to the custody and companionship of their children from undue interference by the government. There is no dispute that the rules governing this vital document were not followed in the present case. Based on the importance of the petition under the rules, we conclude, in the exercise of our supervisory power and the interests of justice, that a parent’s parental rights cannot be terminated in the absence of a petition naming the parent as a party to the proceedings. Accordingly, we reverse the juvenile court order terminating H.W.’s parental rights and remand the matter to the juvenile court for further proceedings consistent with the Minnesota Rules of Juvenile Protection Procedure.

Reversed and remanded.

      . Minnesota Statutes § 257.75, subd. 1, provides:
      The mother and father of a child born to a mother who was not married to the child's father nor to any other man when the child was conceived nor when the child was born may, in a writing signed by both of them before a notary public and filed with the state registrar of vital statistics, state and acknowledge under oath that they are the biological parents of the child and wish to be recognized as the biological parents.
      This recognition of parentage procedure is one means of establishing a legally recognized father and child relationship, Minn.Stat. § 257.54(b) (2006), and "has the force and effect of a judgment or order determining the existence of the parent and child relationship," Minn.Stat. § 257.75, subd. 3.

      . The Minnesota Rules of Juvenile Protection Procedure distinguish between parties and participants. While parties have extensive rights to actively take part in the proceedings, Minn. R. Juv. Prot. P. 21.02, participants are only entitled to notice, to receive a copy of the petition, and to attend hearings, Minn. R. Juv. Prot. P. 22.02, subd. 1. In termination of parental rights proceedings, the parties include, inter alia, "the child's parents, including any noncustodial parent and any adjudicated or presumed father.” Minn. R. Juv. Prot. P. 21.01, subd. 3. Alleged fathers, on the other hand, are merely participants. Minn. R. Juv. Prot. P. 22.01(b).

      . Although it does not appear that H.W. received official notice of the admit/deny or pretrial hearings from the court, the social worker assigned to T.W.’s case testified at trial that he had told H.W. about the pretrial hearings during H.W.’s supervised visits with T.W.

      . The evidence adduced at trial, including T.W.’s physical and developmental delays and H.W.’s own physical disabilities and history of domestic violence, raises concerns about the continuation of H.W.’s parental rights. Because we decide this case on procedural grounds, we do not reach these issues and express no opinion as to whether the evidence adduced thus far supports termination of H.W.’s parental rights or as to whether termination of H.W.'s parental rights is in the best interests of T.W.