text:
    Debora Sue WISE, Appellant, v. STATE of Iowa, Appellee.
    No. 02-1866.
    Supreme Court of Iowa.
    Jan. 6, 2006.

      Linda Del Gallo, State Appellate Defender and David Arthur Adams, Assistant State Appellate Defender, for appellant and Debora Sue Wise, pro se.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and William E. Davis, County Attorney, for appellee.
   LAVORATO, Chief Justice.

In this postconviction relief proceeding, Debora Sue Wise appeals from a district court ruling denying her relief. She contends the district court erred in failing to make sufficient inquiry into her waiver of her right to counsel. She also contends the district court erred in failing to appoint counsel on the court’s own motion. We transferred the case to the court of appeals, which affirmed. We granted Wise’s application for further review. Because we find no prejudicial error requiring reversal, we affirm the court of appeals decision and the district court judgment.

I. Background Facts and Proceedings.

On January 7, 1998, the State filed a four-count trial information charging Wise and Kevin Kilfoy with delivery of a schedule I controlled substance (marijuana) in violation of Iowa Code sections 124.204(4)(m), 124.401(1)(d), and 703.1 (1997) and with failure to affix a drug tax stamp in violation of Iowa Code sections 453B.1(3)(&), 453B.3, 453B.7(1), 453B.12, and 703.1. The State alleged each of these offenses occurred on two separate dates, November 19, 1997 and November 24, 1997, resulting in the four-count trial information.

The State and Wise entered into a plea agreement. The agreement proposed dismissing the drug tax stamp violations provided Wise would plead guilty to the charges of delivery of a schedule I controlled substance. The agreement reflected an open plea, which the court accepted.

On the same day of the agreement, Wise entered her guilty plea. She also stated that she understood the rights she was giving up by pleading guilty and that she was satisfied with the advice and counsel given by her privately retained attorney, David Treimer. She further stated that there had been no threats or promises made to induce her to plead guilty and that there had been no predictions made concerning her sentence. Finally, she stated that the minutes of testimony were substantially correct. After establishing a factual basis for her plea and determining that Wise was entering her plea knowingly and voluntarily, the court accepted it and advised her of her right to file a motion in arrest of judgment. Wise never filed the motion.

Later, the district court sentenced Wise to two indeterminate five-year sentences to run concurrently and a fine of $1000 on each count. The court denied Wise’s request for a deferred sentence. Instead the court suspended the sentence and fine on both counts and placed Wise on four years of supervised probation.

Wise personally filed a notice of appeal, stating her intent to appeal the denial of a deferred sentence. Attorney James M. Stein was appointed to represent Wise on her appeal. Stein filed a motion to withdraw, stating the appeal was frivolous. Stein sent Wise a copy of the motion and a letter. In the letter, Stein instructed Wise to write to our court within thirty days if she believed the appeal should go forward and that her failure to do so would result in dismissal of the appeal.

We granted Stein’s motion and dismissed the appeal as frivolous. In our order we noted that Wise had filed no response.

Wise then filed a pro se application for postconviction relief, raising a number of issues. Before the hearing on her application, Wise filed several amendments to her application adding additional issues. In the application, Wise stated that she “[was] able to pay court costs and expenses of representation and [did] NOT desire to have counsel appointed to represent [her].”

The State filed a motion to dismiss Wise’s application. The State alleged that Wise not only failed to file a motion in arrest of judgment but had failed to preserve in an appeal many of the issues she raised in her application for postconviction relief. In addition, the State alleged that by pleading guilty, Wise waived all defenses and objections except those not intrinsic to the plea. The State maintained the record reflected no defects in the plea. For all of these reasons, the State argued that Wise had no cognizable claim to support her application. The court treated the motion to dismiss as a motion for summary judgment and overruled it because it was not filed in a timely manner.

At the hearing, Wise appeared pro se and testified. Treimer also appeared and testified. At the conclusion of the hearing, the State requested that its previously filed motion to dismiss be considered its final argument, which the court accepted.

Following the hearing, the court denied Wise’s application for the following reasons: Wise failed to preserve issues in a motion in arrest of judgment and direct appeal. She waived defenses and objections not part of the plea itself when she pleaded guilty. She said she was not pressured, coerced, or promised anything in connection with the plea and she was satisfied with her representation. In addition, the court denied the postconviction relief application on its merits.

Wise personally filed a notice of appeal. The State Appellate Defender’s office was appointed to represent her. Her appellate counsel raised two issues. First, the district court erred in failing to make sufficient inquiry into Wise’s waiver of her right to counsel. Second, the district court erred in failing to appoint counsel for Wise on its own motion once the court understood that Wise was not capable of acting as her own attorney. Wise did not personally file a brief.

We transferred the case to the court of appeals, which affirmed. The court held that Wise was not entitled to appointment of postconviction relief counsel because she did not establish her indigence.

Wise’s appellate counsel sought further review, which we granted.

II. Issues Raised.

On further review, Wise’s appellate counsel again contends the district court erred in failing to make sufficient inquiry into Wise’s waiver of her right to counsel and in failing to appoint counsel for her when it realized she was not capable of acting as her own attorney.

Wise personally filed an application for further review. Two of the issues she lists relate to the appointment of counsel on the basis of financial need. One issue listed is a restatement of her appellate counsel’s issues as stated above. Finally, Wise contends the district erred by failing to address any of the grounds for relief contained in her postconviction relief application.

III. Appointment of Counsel in Post-conviction Relief Cases.

A. Applicable law. Wise concedes, as she must, that an indigent’s right to counsel in a postconviction relief proceeding is statutorily based; no state or federal constitutional grounds for counsel exist in such proceedings. See Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988). Iowa Code section 822.5 (2001) provides that the costs of legal services shall be made available to an indigent applicant. In interpreting this section, this court has said that “an attorney need not always be appointed to represent an indigent post-conviction applicant.” Furgison v. State, 217 N.W.2d 613, 615 (Iowa 1974). The determination whether to appoint counsel rests in the district court’s sound discretion. Id.

However, this court also noted in Furgi-son that “trial judges would ordinarily be well advised to appoint counsel for most indigent postconviction review applicants” because such appointment “benefits the applicant, aids the trial court, is conducive to a fair hearing, and certainly helpful in event of appeal.” Id. On the other hand, the court in Furgison cited with approval the following:

“If an application, in light of the state’s response, raises no claim cognizable in a post-conviction proceeding, it is wasteful to appoint counsel to determine solely if the applicant has some grounds for relief not stated in his original application.”

Id. (quoting ABA Standards, Post-Conviction Remedies § 4.4 cmt., at 66 (Approved Draft 1968)).

Drawing on these principles, the court in Furgison set out the following guidelines for trial judges to follow in determining whether counsel should be appointed:

[Tjrial judges should inceptionally read the often inartfully drawn application in a light most favorable to the applicant. In event it thus appears a substantial issue of law or fact muy exist, then counsel should be at once appointed.

Id. at 615-16.

In Fuhrmann, the State filed a motion to dismiss based on the applicant’s failure to file the postconviction relief application within the applicable statutory three-year limitation period. 433 N.W.2d at 722. The applicant requested the appointment of counsel. Id. at 721. The applicant resisted the State’s motion, emphasizing his need for counsel regarding the hearing on the motion to dismiss. Id. at 722. The court dismissed the action without addressing the motion for counsel. Id. We noted that the failure of the district court to address the motion may indicate that the court did not exercise its discretion. Id. Nevertheless, we held such failure to exercise discretion was not prejudicial error requiring reversal. Id. at 722-23. Our reasoning was that on its face the application showed the application was not filed within the applicable statutory three-year period. Id.

B. Analysis. Here, based on the record before the district court at the time the State filed its motion to dismiss, the court could easily have dismissed Wise’s application. Our reasons for saying so follow.

With certain exceptions, a guilty plea pursuant to Iowa Rule of Criminal Procedure 2.8(2)(5) waives all defenses and objections, Speed v. State, 616 N.W.2d 158, 159 (Iowa 2000) (per curiam), even claims of ineffective assistance of counsel, Manning v. State, 654 N.W.2d 555, 561 (Iowa 2002). One of the exceptions is relevant here: irregularities intrinsic to the plea itself. Manning, 654 N.W.2d at 561. Irregularities intrinsic to the plea itself are those that bear on the knowing and voluntary nature of the plea. Id.

Our careful review of Wise’s application and amendments reveals only one claim that falls within this exception. She alleged that Treimer provided ineffective assistance of counsel by telling her she would receive a deferred sentence if she agreed to plead guilty.

This allegation directly contradicts the overwhelming record evidence that no such representation was made. At the plea, there was this colloquy between the court and Wise:

The court: All right. Are you satisfied with the advice and counsel Mr. Treimer has given you? The defendant: Yes, I am.
The court: Okay. Now, have there been any threats or promises made to induce you to plead guilty at this time? The defendant: No.'
The court: Have there been any predictions made by anyone concerning what your sentence will be if you do plead guilty to these charges? The defendant: No.

In' a letter to Treimer she requested that he file the necessary papers to appeal the denial of a deferred sentence in view of the fact that she had never been granted a deferred judgment or similar relief before as Iowa law requires. There was no mention in the letter that Treimer had told her she would receive a deferred sentence if she agreed to plead guilty. In a letter to Stein, her appellate counsel in her original appeal, she states, “The main reason that I have requested to appeal my case ... is that I have otherwise no criminal record and would like to utilize my right to appeal ... in order to attempt to obtain a deferred sentence .... ” Again, there is no mention that Treimer had told her she would receive a deferred sentence if she agreed to plead guilty. In a second letter to Stein, Wise outlined a number of issues she wanted raised in her appeal. She never mentioned that Treimer had told her she would receive a deferred sentence if she agreed to plead guilty.

At the sentencing, Treimer vigorously argued for a deferred sentence, notwithstanding a presentence investigation report that recommended probation. The court simply stated that it would consider Treimer’s request. Although she had the chance, Wise made no mention of the alleged agreement of a deferred sentence in return for the plea. Moreover, the plea agreement mentions no such understanding. Rather than complain, Wise signed the agreement.

In State v. Boge, the defendant filed a posteonviction relief application based on an allegation that he was induced by his attorney to plead guilty, that the plea bargain was illegal, and that there was collusion between his attorney and the county attorney. 252 N.W.2d 411, 413 (Iowa 1977). As here, the defendant at the plea proceeding in Boge acknowledged that there were no threats or promises to induce the plea. Id. at 413-14. Relying on this acknowledgment by the defendant, this court said:

We find no need for trial court to afford petitioner a hearing on allegations which directly contradict the record, unless some minimum threshold question of credibility appears. The bare allegations that petitioner now raises do not overcome the presumption that the colloquy above set out reflects the true state of facts.

Id. at 414 (citation omitted); see also Hedman v. United States, 527 F.2d 20, 21-22 (10th Cir.1975) (per curiam) (holding that postconviction allegation that defendant was promised probation in return for guilty plea was insufficient to require evi-dentiary hearing because such allegation was completely refuted by defendant’s plea statements that he was pleading guilty because he was in fact guilty and that he was “very much” satisfied with advice and services of his counsel).

In addition to Wise’s plea statements, we have recited a number of other matters that directly contradict Wise’s allegation that Treimer told her she would receive a deferred sentence if she pleaded guilty. This allegation does not overcome the presumption that Wise’s plea statements and these other matters reflect the true state of facts.

Although the district court could have sustained the State’s motion to dismiss, nevertheless the court granted Wise a hearing. At the hearing Treimer emphatically denied telling Wise that she would receive a deferred sentence in return for her guilty plea. He also testified that he probably told her that with her criminal history she would likely receive probation and had a good opportunity, but no guarantee, to receive a deferred sentence.

In its ruling, the district court found that Treimer did not promise Wise that she would receive a deferred sentence. The court then aptly summed up the underlying reason for Wise’s allegation to the contrary: ‘Wise is unhappy with her sentence; she wanted a deferred [sentence], but did not get one.”

Under the circumstances here, we conclude the district court’s failure to inquire into Wise’s waiver of her right to counsel and the court’s failure to appoint counsel for Wise on its own motion was not error. We therefore affirm.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    Genevieve Lynn ORUD, Elmer Lee Willers, Dawn Marie Willers, and Connie Alexander, Appellees, v. Nancy A. GROTH, Appellant, and Bruce E. Groth, Terry A. Willers, and Sharon K. Willers, Cross-Appellees.
    No. 03-1525.
    Supreme Court of Iowa.
    Jan. 13, 2006.

      Stephen P. Wing of Dwyer & Wing, P.C., Davenport, for appellant and cross-appellees.
    Jack E. Dusthimer of Jack E. Dusthimer, P.C., Davenport, for appellees.
   TERNUS, Justice.

The appellant, Nancy Groth, appeals an adverse judgment in an action brought by her siblings to obtain their share of the proceeds from the sale of property originally owned by the parties’ mother. The plaintiffs filed a cross-appeal asserting the court erred in failing to enter judgment against the other defendants, in calculating the plaintiffs’ damages, and in failing to order partition of the property. The court of appeals increased the damage award, but otherwise affirmed the district court. Upon our review of the parties’ arguments and the relevant authority, we conclude the judgment entered against Nancy Groth should be reduced. Therefore, we vacate the decision of the court of appeals, modify the judgment entered against the appellant, and affirm the trial court’s judgment in all other respects.

I. Facts and Prior Proceedings.

The appellees, Genevieve Orud, Elmer Willers, Dawn Willers, and Connie Alexander, are siblings of the appellant, Nancy Groth, and the cross-appellee, Terry Wil-lers. The mother of these parties, Candace Dilley, owned a home in LeClaire, Iowa. Nancy and her husband, Bruce Groth, lived in this house with Dilley and Dawn Willers because Dilley could not afford her home without Nancy’s financial assistance. In order to persuade Nancy to remain in the home, Dilley offered to put Nancy’s name on the deed so Nancy could deduct taxes and mortgage interest on her income tax return.

On May 25, 1990, Dilley signed a quitclaim deed in the office of her attorney, giving Nancy joint tenancy ownership in the property with full rights of survivor-ship. Four days later, on May 29, 1990, Dilley returned to her attorney’s office and signed a letter that stated in relevant part: Dear Children:

This letter is written as I undertake to transfer ownership of my home ... into Nancy’s name. I have prepared and am filing a Quit Claim Deed from me, as surviving joint tenant of my husband ... to Nancy and me as joint tenants. This Deed will place the property in joint tenancy with Nancy and me.
The purpose of this transfer of the property to Nancy’s name is so that she can claim a tax deduction for the real estate taxes and mortgage interest payments. She makes them now anyway and I live with her there and her husband.
I consider the true ownership of the property to be mine and, should Nancy at any time sell the property, it is my direction and wish that she divide the property proceeds equally with those of you who are surviving.

Each of the siblings received a copy of Dilley’s letter. The quitclaim deed was recorded on May 30, 1990, the day after the letter was signed.

Dilley died in 1993. Subsequently, in 1997, Nancy sold the house to her brother, Terry Willers and his wife, Sharon, for $64,000. The other siblings demanded their share of the proceeds in an amount that reflected the appraised value of the home, a sum considerably more than the sale price. When payment was not forthcoming, this suit was filed. The plaintiffs asserted Dilley’s letter created a trust, and Nancy, as the trustee, had a fiduciary duty to disburse the sale proceeds to Dilley’s children. In a prior appeal, we held the plaintiffs had stated a viable claim for relief. See Orud v. Groth, 652 N.W.2d 447, 450 (Iowa 2002) (Orud I).

On May 20, 2003, the matter was tried to the district court. The court ruled that an express trust had been created and that Dilley’s letter satisfied the statute of frauds. In determining the proceeds to be distributed among the siblings, the court used the fair market value of the property as the baseline, and concluded the property’s fair market value at the time of the sale was its assessed value of $94,920. After deducting a $44,000 mortgage on the property, the court divided the remaining $50,920 between the six siblings, awarding each plaintiff $8,487. The court entered judgment against Nancy for this amount in favor of each of the four plaintiffs. The plaintiffs’ claims against Bruce Groth, Terry Willers, and Sharon Willers were dismissed.

Nancy and the plaintiffs appealed, and the case was transferred to the court of appeals. That court affirmed the trial court’s conclusion that Nancy held the property subject to a trust in the proceeds, but it disagreed with the measure of damages. Although the court of appeals concluded the district court correctly relied on the assessed value, it held the district court should not have deducted the entire mortgage amount from that sum. Because only $29,000 of the original mortgage proceeds had been used for property-related purposes (improvements to the house and satisfaction of a prior mortgage on the property), the court of appeals determined only that amount was properly deducted from the sale proceeds to arrive at each sibling’s share. Accordingly, the court of appeals held that each plaintiff was entitled to $10,986.67. It refused to reverse the trial court’s decision that judgment should be entered solely against Nancy, concluding there was no legal basis for imposing liability on the other defendants.

The appeal is now before this court after we granted the applications for further review filed by Nancy and the plaintiffs. As this matter was tried in equity, our review is de novo. See Johnson v. Kaster, 637 N.W.2d 174, 177 (Iowa 2001). Although we are not bound by the trial court’s fact findings, we do give weight to those findings. See In re Estate of Herm, 284 N.W.2d 191, 199 (Iowa 1979).

II. Existence of Express Trust.

The first assignment of error by Nancy on appeal is the trial court’s determination that she took title to the property subject to a trust in the proceeds for the benefit of Dilley’s surviving children. Nancy claims the deed was delivered to her and title transferred before the letter creating the trust was signed. She argues her mother could not retroactively restrict her rights in the property by the creation of a trust after title had passed.

In order for a transfer of title to take place under a deed, there must be actual or symbolic delivery accompanied by the grantor’s intention to transfer title at that time without any reservation of control. Orud I, 652 N.W.2d at 451; Lathrop v. Knoop, 202 Iowa 621, 623, 210 N.W. 764, 766 (1926) (stating “delivery may be made by the grantor to a third person” so long as there is a present intent to pass title without any reservation of control). Nancy claims the deed executed by her mother was symbolically delivered on May 25 because, according to Nancy, Dilley left the deed with her attorney on that date for recording. Nancy also relies on the presumption that delivery occurred on the date the deed was executed, which in this case was May 25. See Conway v. Rock, 139 Iowa 162, 164, 117 N.W. 273, 274 (1908) (stating delivery is presumed to have occurred on date deed was signed). Although this presumption supports Nancy’s argument, it is not conclusive and may be overcome by clear, convincing and satisfactory evidence to the contrary. See Jones v. Betz, 203 Iowa 767, 768, 210 N.W. 609, 609 (1926).

The decisive factual issue in the present case is whether there is clear, convincing and satisfactory evidence that the deed was not delivered until after Dilley restricted Nancy’s right to the proceeds from a sale of the property. As we noted in Orud I, if the deed was delivered before Dilley’s direction to Nancy that the proceeds be divided among the siblings, Dilley could not later impose such a restriction on Nancy’s ownership. 652 N.W.2d at 451; accord Klein v. Klein, 239 Iowa 40, 52, 29 N.W.2d 163, 169 (1947). On the other hand, if delivery took place after Dilley imposed the conditions under which Nancy took title, Nancy’s title was subject to a trust on the proceeds from a sale of the property. Orud I, 652 N.W.2d at 451.

We agree with the district court and the court of appeals that there is clear, convincing and satisfactory evidence that Dilley’s intent that Nancy hold the proceeds from a sale of the property in trust for Dilley’s surviving children was made known to Nancy before delivery of the deed. Nancy testified she accompanied her mother to the attorney’s office on May 25, and there was a discussion about the letter at that time. Dilley signed the deed on May 25, but the letter was not ready on that day. Consequently, Dilley and Nancy returned on May 29 so Dilley could review and sign the letter. Importantly, as the court of appeals observed, Dilley’s letter is written in the present tense, indicating Dilley had not delivered the deed or transferred her interest in the property prior to executing the letter. (Dilley stated in the letter, “I ... am filing a Quit Claim Deed from me ... to Nancy and me as joint tenants. This Deed will place the property in joint tenancy with Nancy....” (Emphasis added.)). Moreover, the deed was not recorded until after Dilley signed the letter. We think this evidence is sufficient to rebut the presumption that delivery occurred on the date the deed was signed. Therefore, Nancy took title to the property subject to the obligation to carry out the terms of the express trust created by Dil-ley’s letter. Nancy argues this result undermines our system of land title examination by permitting a party to challenge the clear terms of a deed with extrinsic evidence. This argument misconstrues the nature of the trust created by Dilley. Dil-ley did not restrict Nancy’s ability to deal with the property during the time that Nancy held title, including Nancy’s right to mortgage the property or to transfer title to a third person. The trust merely required that if Nancy chose to sell the property, the proceeds from the sale should be divided equally among Dilley’s children. Enforcing this obligation in no way undermines the reliability of our land title system. In any event, the restriction on Nancy’s ownership imposed by the trust would not have prevented transfer of title to a bona fide purchaser with no notice of the trust. See Restatement (Second) of Trusts § 284, at 47-48 (1959).

III. Statute of Frauds.

Nancy also asserts the evidence was insufficient to establish a trust because there was no writing that satisfied the requirements of the statute of frauds. She relies on a statement this court made in Orad I that “ ‘[a] letter signed by the trustee whether written to the beneficiary or to another person, and whether mailed or not,’” would be sufficient to meet the requirement of a writing. 652 N.W.2d at 452 (quoting Restatement (Second) of Trusts § 47 cmt. b) (emphasis added). Nancy argues the letter in this case does not satisfy the statute of frauds because it was signed by the trustor, Dilley, rather than by the trustee, Nancy.

The example we gave in Orad I is not the only type of writing that would satisfy the statute of frauds. In pertinent part Restatement (Third) of Trusts section 23 states:

Where the owner of property transfers it inter vivos to another person upon an inter vivos trust for which a statute of frauds requires a writing, a writing evidencing the trust as provided in § 22 is sufficient to satisfy the requirements of the statute if it is signed:
(a) by the transferor before or at the time of the transfer; or
(b) by the transferee
(i) before or at the time of the transfer, or
(ii) after the transfer was made to the transferee but before the transferee has transferred the property to a third person.

Restatement (Third) of Trusts § 23(2) (2003) (emphasis added). Dilley, the transferor, signed the letter creating the trust prior to or at the time of delivery of the deed. Therefore, this writing satisfies the statute of frauds.

TV. Damages.

Nancy’s failure to distribute the proceeds of the sale as required by the trust subjects her to liability to the beneficiaries. See 76 Am.Jur.2d Trusts § 345, at 399 (2005) (stating “a failure to administer the trust in accordance with its terms renders a trustee liable for any injury sustained thereby by ... any person beneficially interested in the trust”). Nancy asserts, however, that the recoverable damages were incorrectly computed by the trial court and the court of appeals. First, she argues that because her mother wanted the property to remain in the family, Nancy could properly sell the land for a below-market-value price if necessary to interest one of her siblings in purchasing the property. Consequently, she contends the court of appeals and district court erred in calculating the proceeds based on the fair market value of the property rather than the actual sale price. Secondly, Nancy claims that even if the fair market value of the property is the correct starting point in determining the proceeds to be distributed, both courts overvalued the house. Finally, Nancy asserts her mother-intended to permit. Nancy to deduct “from the gross sale price all the costs of sale, mortgages, and other items paid out at.the time of closing to determine the proceeds for distribution.” If such deductions are not allowed, suggests Nancy, she will be bankrupted, and that result, she argues, was clearly not intended by her mother. She contends the court of appeals erred in modifying the district court’s judgment deducting the full amount of the mortgage.

A. Sale price. We agree with the court of appeals and district court that Nancy, as the trustee, had an obligation to sell the property for its fair market value. See Johnson v. Johnson, 242 Iowa 27, 31, 45 N.W.2d 573, 575 (1951) (holding trustee with the power to sell trust property “must, however, sell for an adequate price”). Even if Dilley preferred that the property remain in the family, that preference would not automatically allow Nancy to sell the property to a family member at a reduced price. To infer such a power would be inconsistent with the express terms of the trust. If Nancy were allowed to sell the property to one beneficiary below market value, the purchasing beneficiary would in effect receive a larger share of the otherwise available proceeds at the expense of the other beneficiaries. That result would violate Dilley’s express intent that the beneficiaries benefit equally from the sale of the property. See also id. at 29, 45 N.W.2d at 574 (“A trustee must act at all times ... impartially between the several beneficiaries [of the trust].”). Therefore, the trial court properly focused on the fair market value of the property as the baseline for determining the distributable proceeds. We next determine what the fair market value of the property was.

B. Fair market value. There were several items of evidence relevant to the fair market value of this property. The plaintiffs offered the assessor’s records showing the property had .had an assessed value of $94,920 since 1995. In addition, the plaintiffs introduced evidence that the bank financing Terry and Sharon Willers’ purchase of the property had an appraisal done that showed an appraised value of $105,000. Terry testified, however, that this value was erroneous. He stated without contradiction that the appraiser had included boat docks that belonged to someone else in the valuation of the property, which had inflated the appraisal by $10,000. Terry also testified that he made $20,000 of improvements to the property before the appraisal was done. The documentary evidence in the record shows that Nancy accepted Terry’s offer to purchase the property for $64,000 on April 4, 1997, but the closing did not occur until November 13, 1997. Between April and November, Terry made extensive repairs to the house and driveway. The defendants also introduced a videotape showing structural and other problems that remained even after these repairs had been made. Finally, Nancy testified that a realtor had offered to put the property on the market for an asking price of $67,000.

In considering this evidence we place our greatest reliance on the appraisal made prior to the closing as showing the fair market value of the property at that time. We think this sum must be reduced, however, by the value of the boat docks erroneously included in the appraisal, as well as the $20,000 in improvements made by Terry after the purchase price was set. We are persuaded the fair market value of the property at the time Nancy became contractually bound to sell the property to Terry and Sharon was $75,000. We now consider what items are properly deducts ible from the fair market value to arrive at the distributable proceeds.

C. Mortgage deduction. Dilley instructed Nancy to “divide the property proceeds equally.” The word “proceeds” means “the net sum received ... after deduction of any discount or charges.” Webster’s Third New International Dictionary 1807 (unabr. ed.2002). To determine the extent to which the $44,000 mortgage pay off amount is properly deducted from the sum received by Nancy upon sale of the property, we focus on the purpose of the mortgage. The record established that the funds obtained by Nancy when the property was mortgaged were used for several purposes, not all property related. Some of the funds were used to pay off a prior mortgage and make improvements to the house on the property, but the balance of the mortgage funds was used by Nancy to buy a car for Dawn and to pay Nancy’s personal debts and expenses.

“[A]s a general rule trustees are prohibited from engaging in self-dealing transactions with the trust and from obtaining personal advantage from their dealings with trust property.” Harvey v. Leonard, 268 N.W.2d 504, 512 (Iowa 1978); accord Coster v. Crookham, 468 N.W.2d 802, 806 (Iowa 1991) (stating a “ ‘trustee violates his duty to the beneficiary ... whére he uses the trust property for his own purposes’ ” (quoting Restatement (Second) of Trusts § 170 cmt. 1)); 76 Am. Jur.2d Trusts § 471, at 514-15 (stating trustee cannot use or mortgage trust property for his personal interest). Nancy violated this duty when she used the funds obtained by mortgaging the property for her personal benefit. Therefore, to the extent the mortgage was incurred for Nancy’s own purposes, it is not a proper deduction from the sale price. See Coster, 468 N.W.2d at 806 (“‘If the trustee in violation of his duty to the beneficiary uses trust property-for his own purposes and makes a profit thereby, he is accountable for the profits so made.’ ” (quoting Restatement (Second) of Trusts § 206 cmt. j)); 76 Am.Jur.2d Trusts § 468, at 513 (stating trustee is liable to trust for any losses caused by trustee’s self-dealing). Accordingly, the court of appeals properly limited the deduction of the mortgage to $29,000, that portion of the mortgage incurred to improve the home and pay off a prior mortgage on the property. The district court erred in allowing the entire mortgage to be subtracted from the fair market value in determining the proceeds to be distributed to the beneficiaries.

D. Calculation of damages. We have determined that the fair market value of the property at the time it was sold was $75,000. From that amount the mortgage on the property attributable to property-related expenses — $29,000—must be deducted to compute the proceeds to be divided among the six siblings. Thus, the proceeds to be distributed are $46,000 ($75,000 minus $29,000), and each sibling is entitled to $7,666.66 ($46,000 -⅞- 6). We modify the judgment entered against Nancy Groth and in favor of the plaintiffs accordingly.

V. Liability of Other Defendants.

A. Terry and Sharon Willers. The plaintiffs assert in their application for further review that the district court and court of appeals erred in failing to impose liability on Terry Willers and his spouse, Sharon, and in refusing to make the judgment a lien against the property. This court has recognized that a third party may be liable for a trustee’s breach of fiduciary duty. See Coster, 468 N.W.2d at 809. In Coster, we quoted the following rule from the Restatement (Second) of Trusts:

“A third person who, although not a transferee of trust property, has notice that the trustee is committing a breach of trust and participates therein is liable to the beneficiary for any loss caused by the breach of trust.”

Id. (quoting Restatement (Second) of Trusts § 826, at 124) (emphasis omitted). A similar rule exists for a transferee of trust property “who takes with notice of the breach of trust.” Restatement (Second) of Trusts § 288, at 55.

The first issue is whether Terry and Sharon had notice that the sale to them was a breach of trust by Nancy. “A person has notice of a breach of trust if ... he knows or should know of the breach of trust.” Id. § 297, at 74. A transferee knows or should know of a breach of trust if he knows or should know (1) of the existence of a trust, (2) the terms of the trust, and (3) that the trustee is improperly deviating from the terms of the trust. Id. § 297 cmt. c, at 76. Here, Nancy’s breach lay not in the transfer of the property, since it was anticipated in Dilley’s letter that Nancy would at some point sell the property. Nancy’s primary breach was of her fiduciary duty to ensure that all siblings shared equally in the proceeds of the sale. The governing principle of law for this situation is set forth in the Restatement:

If a trustee in the proper exercise of a power of sale sells trust property, and the purchaser pays the purchase price to the trustee without notice that the trustee intends to misapply the purchase price, the purchaser is not liable although the trustee misapplies the purchase price.

Id. § 321 cmt. b, at 113. The plaintiffs have not proved that Terry and Sharon had notice that Nancy did not intend to make the required payments to her siblings. Therefore, the Willers are not liable for the sums received by Nancy, but which she failed to turn over to the other trust beneficiaries. This conclusion does not, however, dispose of possible liability based on the deficient purchase price.

As noted above, to establish the liability of a transferee, a beneficiary must prove the transferee knew or should have known the trustee was violating the trust. We cannot find under the present record that Terry and Sharon Willers knew or should have known that the sale to them was a violation of the trust terms. The evidence showed that Terry Willers notified his sister, Connie Alexander, of his impending purchase of the property. Together they went to an attorney to discuss the impact of their mother’s letter on the sale. Shortly after this meeting, Alexander wrote a letter to that attorney, with a copy of the letter sent to Terry, in which she stated that it was satisfactory to the other siblings “that Terry be allowed to purchase this home.” She further emphasized that she did not want the siblings’ efforts to share in the proceeds to in any way cause Nancy to back out of her “signed commitment” to sell the property to Terry. It is opportunistic for the plaintiffs to claim now, after encouraging Terry’s purchase of the property, that he was a joint tortfeasor with Nancy and should be held liable for her breach of trust. The plaintiffs themselves led the Willers to believe that the sale to them was not itself a breach of Nancy’s fiduciary duty to the siblings. Consequently, we agree with the trial court that there is no basis upon which to impose liability on Terry and Sharon Wil-lers. Therefore, we affirm the trial court’s judgment in their favor.

B. Bruce Groth. As noted above, a third party may be liable for a trustee’s breach of duty if the third party “has notice that the trustee is committing a breach of trust and participates therein.” Restatement (Second) of Trusts § 326, at 124. Bruce Groth was not a seller of the property, nor was he a buyer. His only participation in the transfer of the property was releasing any rights in the property he held as Nancy’s spouse. We do not think his involvement in the transaction in this capacity is “participation” so as to subject him to liability for Nancy’s breach of trust. Therefore, we also affirm the judgment entered by the district court in favor of Bruce Groth.

VI. Right to Partition.

The plaintiffs claim they are entitled to the equitable remedy of partition. The trust instrument — Dilley’s letter — did not give the siblings an interest in the property itself; they had only a right to share in the proceeds of a sale of the property. Under these circumstances, partition is not available to the beneficiaries of the trust:

Where a trust instrument contains a positive direction that the trustees sell the trust real estate and divide the proceeds among the persons designated, a beneficiary of the trust may not maintain partition, since the creator of the trust has provided the mode of division or distribution.

59A Am.Jur.2d Partition § 47, at 40-41 (2003). Therefore, we reject the plaintiffs’ request that the property be partitioned to satisfy their right to a share of the proceeds.

VII. Disposition.

Having considered the arguments of the parties, we vacate the decision of the court of appeals. We affirm the judgment of the district court with respect to defendant Nancy Groth, as modified. Upon remand, judgment shall be entered against Nancy Groth and in favor of each of the four plaintiffs in the amount of $7,666.66, plus interest as provided in the original order. We affirm the judgment of the district court in favor of the other defendants. Costs are taxed three-fourths to defendant Nancy Groth and one-fourth to plaintiffs.

DECISION OF COURT OF APPEALS VACATED. JUDGMENT OF DISTRICT COURT AFFIRMED AS MODIFIED ON APPEAL AND AFFIRMED ON CROSS-APPEAL. CASE REMANDED.

      . In addition to suing their sister Nancy and brother Terry, the plaintiffs also named their siblings' spouses as defendants, explaining on appeal that the plaintiffs considered them to be “joint tortfeasors.”

      . Nancy also points to the presumption of proper delivery generated by a signed, acknowledged and recorded deed. See Hodgson v. Dorsey, 230 Iowa 730, 733, 298 N.W. 895, 897 (1941). The plaintiffs do not appear to contest, however, that the deed was properly delivered. The disputed issue is when it was delivered.

      . Nancy complains that the trial court and the court of appeals ignored her testimony that her mother said the letter was simply intended to placate Nancy's sister, Connie, and was not meant to impose an obligation on Nancy to split the proceeds if and when the property was sold. Nancy testified she and her mother had an oral agreement that Nancy would allow Dawn to live in the house and if Nancy sold the house, she would try to keep it in the family. Three of the plaintiffs testified to the contrary, stating Dilley told them prior to execution of the deed that she intended the proceeds from a sale of the property to be divided among the siblings. Of course the actual letter expresses only an intent that Nancy take the property subject to Dilley's desire that any sale proceeds benefit all of Dilley's children. Even though there was evidence to support Nancy’s position, it is up to the fact finder to resolve conflicts in the evidence and to determine which evidence was most credible. More importantly, the existence of contrary evidence does not preclude us from finding that the evidence in support of the plaintiffs' case was clear, convincing, and satisfactory. .

      . Other than contesting the existence of a trust, Nancy has not challenged the underlying assumption of the trial court that she is strictly liable to the beneficiaries for her failure to sell the property at fair market value. See Iowa Code § 633.160 (2005) (stating fiduciary is liable for any "negligent or willful act or nonfeasance” that causes loss); see also 76 Am.Jur.2d Trusts § 363, at 418 (stating trustee has a duty to act in good faith and "within the bounds of reasonable judgment” in exercising discretionary powers). Therefore, we do not consider the propriety of holding Nancy strictly liable for the difference between the sale price and the fair market value of the property. See Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996) (holding that even in appeals of equity cases where review is de riovo, review is limited to those errors specifically identified on appeal).


author: CARTER, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Michael Gerard REILLY, Respondent.
    No. 05-1365.
    Supreme Court of Iowa.
    Jan. 13, 2006.
    Charles L. Harrington and Teresa A. Vens, Des Moines, for complainant.
    Kristopher K. Madsen, Council Bluffs, for respondent.
   CARTER, Justice.

This matter is before us on a review of the findings and recommendation of the Grievance Commission concerning alleged ethical violations by respondent, attorney Michael G. Reilly. The review is undertaken pursuant to the provisions of Iowa Court Rule 35.10. The commission found that respondent was guilty of a conversion of clients’ funds and had perpetrated a check-kiting scheme that caused a substantial loss to one of the banks involved in the transaction. The Grievance Commission recommended that Reilly be suspended from practice for a period of three years. After reviewing the record and considering the arguments presented, we conclude that the Grievance Commission’s recommendation is inconsistent with the discipline that we have imposed in other cases in which clients’ funds have been misappropriated. Consistency with our past decisions and protection of the public warrants the revocation of the offending attorney’s license.

Michael G. Reilly is an attorney who has practiced law in Council Bluffs for many years and has gained a favorable reputation as a diligent lawyer. Respondent represented the parents of Jacob Reid, a child who had sustained a serious eye injury. He diligently represented, the Reids in a claim against persons responsible for the injury, and ultimately a settlement was arrived at under which Jacob Reid was to receive the sum of $137,500. The settlement draft was received by respondent on November 17, 2000, and he immediately deposited it in his firm trust account. A few days prior to receipt of that draft, he had caused a conservatorship to be opened for Jacob Reid and had been designated as attorney for the conservatorship.

Soon after receipt of the settlement funds, checks were issued from the trust account of respondent’s law firm to the firm for the amount of respondent’s contingent fee and the firm’s out-of-pocket expenses in pursuing the case. After those funds had been withdrawn, a balance of $99,736.75 remained in the trust account.

In December 2000 and January 2001, respondent withdrew the entire $99,736.75 balance of Jacob Reid’s funds from his firm trust account. The two checks written in December totaling $9000 were drawn by respondent for cash and signed by him. He has admitted that the proceeds were used for his personal obligations. The January 2001 check was payable to First Star Bank in the sum of $90,736.75. It was drawn by a firm bookkeeper and signed by another member of respondent’s law firm based on respondent’s representation that it was to be remitted to the conservator’s bank account. Instead, respondent deposited that check in his personal banking account.

In August and September 2001, respondent endeavored to make restitution of Jacob Reid’s funds by depositing $96,040 in a conservatorship account for Jacob Reid that had been established at Salomon Smith Barney, Inc. A friend had agreed to loan respondent the funds necessary to accomplish that purpose. Relying on that agreement, respondent wrote a check on a personal bank account for $96,040 to Salo-mon Smith Barney. Unfortunately, respondent’s friend was unable to loan him the necessary funds, and the balance of his personal bank account at Pinnacle Bank was not sufficient to cover the check. It was returned unpaid.'

On September 24, 2001, respondent wrote a second check on his personal bank account at Pinnacle Bank to Salomon Smith Barney, this time in the amount of $96,070. Because he had deposited a check in Pinnacle Bank in an amount sufficient to cover that withdrawal, the Pinnacle Bank check cleared, and the conserva-torship account received the funds. The check deposited in respondent’s Pinnacle Bank account also cleared, but First Star Bank, which had paid that check, was saddled with a $96,000 overdrawn account based on respondent’s deposit of an insufficient-funds check in that bank.

Respondent did not make restitution of First Star Bank’s loss for over a year. In the meantime, First Star Bank had notified federal law enforcement authorities of its loss. The resulting investigation resulted in a letter from the United States attorney to our client security and disciplinary commission revealing the facts that we have recited in this opinion. Further investigation by the Iowa Supreme Court Attorney Disciplinary Board confirmed those facts.

Respondent has at all times conceded the conversion of Jacob Reid’s funds that had been paid into his firm’s trust account. He has not conceded any illegality with respect to the check overdraft at First Star Bank based on his assertion that he believed he would have funds forthcoming to cover the First Star Bank check before it was returned to that bank for payment.

Based on the transactions we have recited, the Grievance Commission found that respondent had violated DR 9 — 102(A), which provides: “All funds of clients paid to a lawyer or law firm ... shall be deposited in one or more identifiable interest-bearing trust accounts maintained as set forth in DR 9 — -102(C).” We have previously held that this disciplinary rule is violated in situations in which an attorney has deposited client funds into his trust account and then withdrawn them for his personal use without client permission. Comm. on Prof'l Ethics & Conduct v. Silver, 395 N.W.2d 877, 879 (Iowa 1986). The commission further found that respondent had violated Disciplinary Rules 1— 102(A)(1) (a lawyer shall not violate a disciplinary rule), (8) (a lawyer shall not engage in illegal conduct), (4) (a lawyer shall not engage in conduct involving dishonesty), and (6) (a lawyer shall not engage in conduct that adversely reflects on his fitness to practice law). The facts as agreed to by respondent establish a violation of each of these disciplinary rules by a convincing preponderance of the evidence.

This court gives respectful consideration to the Grievance Commission’s recommendation concerning the appropriate sanction for an attorney’s ethical violations. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Waples, 677 N.W.2d 740, 743 (Iowa 2004). However, on review of those recommendations under Iowa Court Rule 35.10, we are free to impose a lesser or greater sanction than the discipline recommended by the Grievance Commission. Id.

We have considered the misappropriation of a client’s funds by a lawyer as being particularly reprehensible and, almost universally, calling for a revocation of license. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Anderson, 687 N.W.2d 587, 590 (Iowa 2004); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 652 (Iowa 2002); Comm. on Prof'l Ethics & Conduct v. Ottesen, 525 N.W.2d 865, 866 (Iowa 1994); Comm. on Prof'l Ethics & Conduct v. Shepherd, 431 N.W.2d 342, 344 (Iowa 1988). Instances in which revocation has not been ordered for the taking of a client’s funds have involved situations in which the attorney had a col-orable future claim to the funds or did not take the funds for his own use. See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Allen, 586 N.W.2d 383, 391 (Iowa 1998); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hansel, 558 N.W.2d 186, 192 (Iowa 1997); Comm. on Prof'l Ethics & Conduct v. Rauch, 486 N.W.2d 39, 40 (Iowa 1992). We have not been dissuaded from ordering revocation of license in situations in which the embezzled funds have been returned prior to the discovery of the misappropriation. Anderson, 687 N.W.2d at 590; Comm. on Prof'l Ethics & Conduct v. Pappas, 313 N.W.2d 532, 533-34 (Iowa 1981). Revocation of the offending attorney’s license has been imposed in a situation involving a substantially smaller misappropriation than those occurring in the present case. Comm. on Prof'l Ethics & Conduct v. Rowe, 225 N.W.2d 103, 104 (Iowa 1975) (client funds totaling $1500 placed in attorney’s personal checking account — license revoked).

Several highly regarded members of the local bar have attested to respondent’s character, including his reputation for truth, veracity, and honesty. Similar endorsements have been received from the local judges before whom respondent has regularly practiced. We have no reason to doubt that, before embarking on the downward spiral that produced the transgressions now under consideration, respondent was all that these proponents attest he was. His fall from grace was precipitated by an uncontrollable gambling habit that left him constantly in need of funds. Unfortunately, that is a matter which, although regrettable and cause for sympathy, does not obviate the seriousness of the improper attorney conduct that has occurred. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 143 (Iowa 2004) (revocation ordered as sanction for misappropriation of funds motivated in part by gambling addiction). Nor does the fact that respondent has sought and successfully received counseling to alleviate his gambling addiction. Cf. Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Schatz, 595 N.W.2d 794, 796 (Iowa 1999) (successful treatment for depression subsequent to misappropriation of funds does not preclude revocation of attorney’s license).

The misappropriation of client funds of which respondent has been guilty would by itself warrant a revocation of his license. The reckless check-kiting scheme undertaken in an effort to replace the funds that had been taken is an aggravating factor. Even if respondent sincerely believed that he would be able to obtain the necessary funds to cover the checks that he had written, this was a reckless disregard for his true financial position. That disregard caused a very substantial loss for the First Star Bank, which was not repaid for more than a year. It is fortunate that respondent has been able to make restitution to both Jacob Reid and the First Star Bank. Circumstances may have been otherwise so as not to permit him to do so. He was not free to take this gamble.

After fully considering the matter now before us, we order that the license of respondent, Michael G. Reilly, is revoked effective with the filing of this opinion. Costs are assessed to respondent as provided in Iowa Court Rule 35.25(1).

LICENSE REVOKED.

All justices concur except LARSON and WIGGINS, JJ., who take no part.

      . Respondent contends that the difference between this amount and the total amount of funds that had been misappropriated equals the amount of Jacob Reid’s medical expenses that were paid by respondent.


author: SACKETT, C.J.

text:
    In the Interest of A.A.G., S.M.G., and M.D.M., Minor Children, D.D.S., Mother, Appellant.
    No. 05-1172.
    Court of Appeals of Iowa.
    Oct. 12, 2005.

      Shawn M. Harden, Independence, for appellant.
    Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Allan' W. Vanderhart, County Attorney, and Karl Moorman, Assistant County Attorney, for appellee State.
    Kelly Smith of Kelly J. Smith, P.C., Waterloo, guardian ad litem for minor children.
    John Rausch of Rausch Law Firm, Waterloo, for father of A.G.
    C.G., Waterloo, pro se, father of S.G.
    Robert Rausch of Rausch Law Firm, Waterloo, for father of M.M.
    Timothy J. Luce of Anfinson & Luce, P.L.C., Waterloo, for intervenors.
    Rick Morris of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for intervenors.
    .Considered by SACKETT, C.J., and MAHAN and MILLER, JJ.
   SACKETT, C.J.

Denise, the mother of Steven, Michael, and Aliah, appeals from the juvenile court permanency order placing Steven in the sole custody of his father, Michael in the guardianship of his maternal aunt and uncle, and Aliah in the sole custody of her father. The mother-raises six issues on appeal that generally relate to -the sufficiency of the evidence and the State’s provision of reasonable services for reunification. She also asserts.the court should have given her another six months before establishing permanency for the children. On de novo review, we affirm the juvenile court’s permanency order.

I. Background facts and proceedings.

Denise, aged thirty-seven at the time of the order on appeal, first used illegal drugs at age fifteen. In January 2004 the Department of Human Services (Department) investigated allegations of unsafe and unsanitary conditions in the home, including the presence of illegal drugs and drug paraphernalia. A child abuse assessment completed in February was founded for denial of critical care. Michael and Aliah tested positive for exposure to methamphetamine. In April Denise, her adult daughter, and two others were arrested for possession of methamphetamine and possession of precursors for manufacturing methamphetamine. The Department removed the children from Denise’s home. Steven, born in 1987, was placed initially with his maternal grandmother. Michael, born in 1997, and Aliah, born in 2002, were placed with their maternal aunt and uncle.

In August the Department sought a modification of the dispositional order asking for Aliah to be placed with her father. The juvenile court found there was no material and substantial change in circumstances to justify the requested modification. In October, pursuant to a grant of concurrent jurisdiction, the district court modified the decree of dissolution between Denise and Steven’s father to place Steven, who turned seventeen in October, in his father’s primary physical care -with liberal visitation for Denise.

The Department offered Denise family-centered services, substance abuse treatment, and a psychological evaluation. It also recommended that she participate in stress management, marital therapy, individual counseling, and drug testing. Denise and her husband tested positive for methamphetamine use in October. She also tested positive for marijuana and cocaine. In mid-October, Denise’s husband, Danny, had her committed to the psychiatric ward at a hospital.

A November review order found:

While the department has attempted to provide reunification services to the children’s mother, she has not been availing herself of the same. Additionally, her mental health has deteriorated. It is reported that she had two recent psychiatric hospitalizations. She had not participated in substance abuse treatment since her release from the hospital. She had been refusing drug testing until November 28 when she tested positive. She and her husband Danny are not participating in marriage counseling. Visits now have been temporarily suspended. The children’s mother has not done those things necessary to show by a preponderance of the evidence that return of the children to her custody would not subject them to adjudicatory harm. It remains contrary to the children’s welfare to be placed with their mother.

A January 2005 ninety-day progress report from Families First Counseling Services in Waterloo reported:

Denise has been absent from providers since October of 2004. Denise refuses to work with any providers and continues to struggle with participating in random U.A. drops. When Denise has dropped she has been dirty for drugs.... Due to Denise’s refusing to participate in family therapy services with said providers, there have been no visits between herself and her children. Denise was sent a letter stating the minimum requirements for her to complete in order for visitation to continue. Denise is currently attempting treatment at MECCA in Iowa City in hopes of fighting her drug use.
Denise continues to place herself at risk and the future of having her children return to her care.... Denise continues to locate various other “avenues” in order to escape the issues and concerns at hand, which include her drug use and mental health.
Denise has made little progress due to refusing to work with the various providers that have been assigned to the case. Denise continues to place blame on everyone else except herself. Denise continues to refuse any services that involve DHS involvement.

In February 2005 the district court, pursuant to a grant of concurrent jurisdiction, placed Aliah in the sole custody of her father. The February ninety-day progress report noted Denise “is currently seeking substance and mental health counseling .... [but] continues to not cooperate with DHS and is constantly dodging the expectations set forth.” Denise requested a different family-centered services provider, so the Department engaged another provider for her in February. Denise, however, did not keep any appointments set by the agency between February and April, so no services or visitation were provided.

In its final permanency recommendations before the permanency hearing in April, the Department advised the court:

Denise and Danny ... have not participated in family centered services since October of 2004. Denise has refused a variety of times to sign releases to the Department for a variety of agencies to include Horizons, Covenant Hospital, Allen Hospital, and MECCA. Denise has not contacted DHS for approved visitation with her children and there has been a lack of participation in services to include substance abuse, mental health, marriage counseling as well as therapy and skill development. Numerous letters have been sent to Denise to have releases signed and/or arrange for her and Danny’s participation in services and visitation however Denise has failed to respond to DHS and provider’s requests.

The hearing on permanency took place in mid-April and late June. Denise produced evidence she had completed phases I and II of the chemical dependency treatment at Horizons in mid-April. The certificate of completion indicated ninety days of sobriety. She had four clean drug screens in May. Danny completed an outpatient chemical dependency treatment program in mid-April. Denise and Danny were participating in marriage counseling at their church. Denise had completed five sessions of mental health counseling. She attended scheduled visitation with the children in May and June.

The juvenile court found:

On the surface, it would appear the children’s mother has accomplished a number of the things necessary for her to regain custody of her children or at least to recommence visitation with them. Her progress occurred, however, only over the last two months and immediately prior to the permanency hearing and whether this can be sustained over the long-term is unknown. Without any recent random drug test results, the court is not clear whether the chemical dependency of the children’s mother has been fully remediated. Her continued minimization and rationalization of her past use is not a positive prognosticator of future sobriety.

The court acknowledged Denise’s recent positive work in substance abuse, mental health, and marriage counseling. It carefully considered the ages, circumstances, and district court actions concerning Steven and Aliah in determining whether to allow Denise an additional six months to work toward reunification.

Concerning Steven, the court noted he was doing well living with his father and step-mother and would reach the age of majority in mid-October, 2005. “Allowing his mother an additional six months prior to a permanency decision will merely allow the child to reach his majority.” The court found “remaining in his father’s custody while having regular contact with his younger siblings” was best for Steven.

Michael had been in his maternal aunt and uncle’s care for a year. Michael’s father did not seek custody of his son, indicating he works long, unpredictable hours, frequently away from home. He favored establishing a guardianship with the aunt and uncle, but had not taken any steps to do so despite a plan for a guardianship arrived at during a family team meeting in January. Michael had indicated a preference to live with his father, but found staying with his aunt and uncle acceptable. The court found the aunt and uncle had provided excellent care and had established a strong bond with Michael. Considering all the changes Michael had endured, some of which were causing some emotional upset, the court found “Michael requires a permanent placement and such is available with the [aunt and uncle].”

Aliah presented the most difficult decision for the court because the aunt and uncle had provided excellent care, but when her father sought custody of her, “a substantial custody battle” ensued between him and the aunt and uncle. The Department recommended that Aliah be placed with her father, and as noted above, had sought that placement initially in August 2004. The district court granted him sole custody in February 2005 and Aliah lived with him but visited the aunt and uncle on alternating weekends. The juvenile court made detailed findings about the father’s past failures in prior relationships, in supporting his other children, and abusing alcohol. The court found he had made substantial changes and improvements, was in a stable and healthy marital relationship, was not abusing alcohol, was employed and would be able to provide for Aliah, and had made arrangements to pay child support arrearages. Aliah is emotionally attached to him. He and his wife were cooperative with the Department and service providers. The court found:

Given Aliah’s age of only three and continued problems in transitioning between the homes of the [aunt and uncle] and her father, it is critical that a permanent placement decision be made for her. It is not in her best interest to allow her mother an additional six months to remedy the problems that required her removal. Too many unanswered questions remain regarding the ability and motivation of the child’s mother and step-father ... to parent the child exist. Were the juvenile court case to close, Aliah would be placed in the custody of her father by virtue of the District Court custody order.

The court further found the Department provided reasonable reunification services. It noted Denise’s progress had been minimal and extremely late. It expressed concern with Danny’s lack of cooperation with services.

The court transferred sole custody of Steven and Aliah to their -fathers under Iowa Code section 232.104(2)(d)(2) (2005) and transferred guardianship and custody of Michael to the aunt and uncle under section 232.104(2)(d)(1) with twice-monthly visitation with Denise. It also ordered visitation between the children, finding “continued contact with each other through visitation is critical.”

II. Scope of review.

Our review of permanency orders is de novo. In re K.C., 660 N.W.2d 29, 32 (Iowa 2003). We review both the facts and the law and adjudicate rights anew on the issues properly presented. In re H.G., 601 N.W.2d 84, 85 (Iowa 1999). We give weight to the juvenile court’s findings, but are not bound by them. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995).

III. Claims on appeal.

Denise presents six claims for our review: (1) the State did not meet its burden of proof for a permanency order because it did not present any testimony or evidence; (2) Denise showed by a preponderance of the evidence that the children could safely be returned to her home; (3) the State did not provide reasonable reunification services; (4) because of the progress Denise made toward remedying the problems that led to the children’s removal, either they should have been returned to her care or she should have been given an additional six months for reunification; (5) the State did not present convincing evidence the children could not be returned home, so the court was required either to return them or give Denise an additional six months for reunification; and (6) the State did not present convincing evidence that services were offered to correct the situation that led to the children’s removal.

The State views these issues basically as raising claims in two areas, the reasonableness of efforts made at reunification and the proper placement of the children (whether they could be returned immediately or Denise should be given an additional six months). It contends error was not preserved on the reasonable-efforts issues because Denise did not request any additional or different services before the permanency order.

IY. Analysis.

Reasonable efforts. We address claims three and six together because they relate to the provision of reasonable services for reunification. Following an uncontested review hearing in late November 2004 the court listed services offered to Denise, including: family-centered services including family therapy and skill development, stress management, marital therapy, individual mental health treatment and medication monitoring, substance abuse evaluation and treatment, psychological and psychosocial evaluations, random drug tests, and visitation. No appeal was taken from this order. Denise did not request different or additional services at that time, but rather either refused services or refused to sign releases needed to monitor the provision of services and compliance with case permanency plan requirements. She made one request for a different service provider in January 2005 and the Department ordered the change in February. Denise did not attend any appointments with the new provider. Instead of requesting different or additional services, Denise and Danny sought out their own services for substance abuse treatment, marital counseling, and mental health treatment. They provided some evidence to the court at the permanency hearing concerning these services, but provided no means for the Department or the court to verify progress toward meeting the case permanency plan requirements. The Department has an obligation to make reasonable efforts toward reunification, but a parent has an equal obligation to demand other, different, or additional services pri- or to a permanency or termination hearing. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App.1999); In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App.1997). We conclude Denise has not preserved these claims for our review on appeal.

Returning the children to Denise’s care. Claims two and five both address whether or not the children could safely be returned to Denise’s care. She contends both that she provided evidence they could be returned and that the State did not prove they could not be returned.

Iowa Code section 232.102(9) provides for the return of a child from out-of-home placement “if the court finds by a preponderance of the evidence that the child will not suffer harm in the manner specified in section 232.2, subsection 6.” The adjudicatory harm requiring continued removal does not need to be the harm that necessitated the initial removal from the home. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). The statute places the burden of proof on the party seeking to have a child returned to the home. Iowa Code § 232.102(9). Denise argues she presented evidence she and Danny had addressed their substance abuse problems and no contrary evidence was presented. She provided a letter from a person at her church that described the marital counseling she and Danny are participating in at church. She attended some mental health counseling sessions in late 2004. She did not mention her pending felony drug charges. She asserts she “made substantial progress toward remedying the problems which led to her children’s removal from the home.”

The State has the duty to see every child within its borders receives proper care and treatment and must intercede when parents abdicate that responsibility. In re I.L.G.R., 433 N.W.2d 681, 689 (Iowa 1988). In circumstances such as those before us, we consider what the future likely holds for the children if they are returned. Insight for that determination may be gained from evidence of a parent’s past performance, for that performance may be indicative of the quality of the future care the parent is capable of providing. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990); In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Case history records are entitled to much probative force when a parent’s record is being examined. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993).

Although Denise provided evidence she has made some progress at addressing the concerns that led to the children’s removal, this progress is very recent and she has not demonstrated any changes will last. Her participation in substance abuse treatment is commendable, but her unwillingness to submit to random drug screens or to give the Department the authority to verify she is remaining drug free concerns us. Given her admission she was addicted to methamphetamine, her past failure to complete treatment successfully, and the recency of her treatment, we cannot find the children would not be at risk if returned to her care. The statutory provisions are preventative as well as remedial. See In re Dameron, 306 N.W.2d at 745. We also are concerned about the resolution of the felony drug charges against her. They could result in her imprisonment. This potential for her removal from the home and her resulting inability to care for the children is another risk that prevents us from finding the children would not be at risk if returned to her care. We, like the juvenile court, find the children’s continued removal from Denise’s care is in their interest and protects them from adjudicatory harm.

Continuation of the placement. Denise’s claim number four is that, because of her continued substantial progress in remedying the problems that led to the children’s removal, their placement should be continued for another six months and she should receive services to continue to work toward reunification. Iowa Code section 232.104(2)(b) sets forth the option of continuing placement for six months after a permanency hearing, allowing the court to,

[e]nter an order pursuant to section 232.102 to continue placement of the child for an additional six months at which time the court shall hold a hearing to consider modification of its permanency order. An order entered under this paragraph shall enumerate the specific factors, conditions, or expected behavioral changes which comprise the basis for the determination that the need for removal of the child from the child’s home will no longer exist at the end of the additional six-month period.

In order to continue placement for six months, the statute requires the court to make a determination the need for removal will no longer exist at the end of the extension. Id. The juvenile court was unable to make such a finding in part because of all the uncertainty caused by Denise’s only recent progress and the court’s inability to confirm her progress. Under some circumstances extensions could be appropriate. “The judge considering them should however constantly bear in mind that, if the plan fails, all extended time must be subtracted from an already shortened life for the children in a better home.” In re A.C., 415 N.W.2d 609, 613-14 (Iowa 1987), cert. denied sub nom. A.C. v. Iowa, 485 U.S. 1008, 108 S.Ct. 1474, 99 L.Ed.2d 702 (1988).

From our de novo review of the record, we also are unable to make a finding the need for removal would no longer exist after a six-month extension. Because the children had already been out of the home for over twelve months at the time of the permanency hearing, we view the proceedings with a sense of urgency. See Iowa Code § 232.104(1) (setting a twelve-month period); see also In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (discussing urgency in the context of termination proceedings). Denise’s resistance to the services offered, her last-minute improvement, her pending criminal charges, the uncertainty of her continued sobriety, and the uncertainty concerning Danny’s sobriety and their continuing relationship, all militate against a finding another six months would eliminate the need for the children’s removal.

Evidence supporting a permanency order. Denise’s claim number one is that the State did not meet its burden of proof for entry of the permanency order because it “presented no testimony or evidence at the Permanency Hearing.” We address this general claim of insufficient evidence last so that we could set forth above the evidence required to address her more specific claims. Contrary to her assertion the State presented no evidence, juvenile court received the State’s exhibits “A” through “J,” consisting of several hundred pages including numerous reports and letters from service providers, court orders, reports and recommendations from the Department, and miscellaneous other documents.

Iowa Code section 232.104(3) enumerates the conditions that must be shown by clear and convincing evidence before the court can enter a permanency order:

3. Prior to entering a permanency order pursuant to subsection 2, paragraph “d”, convincing evidence must exist showing that all of the following apply:
a. A termination of the parent-child relationship would not be in the best interest of the child.
b. . Services were offered to the child’s family to correct the situation which led to the child’s removal from the home.
c. The child cannot be returned to the child’s home.

Our discussion above of this case and Denise’s claims concerning reasonable efforts and the return of the children to her care detail the clear and convincing evidence supporting conditions “b” and “c,” and we will not repeat it here. The juvenile court found termination was not in the best interest of the children “because they continue to have substantial visitation and contact with their parents through their current parental and relative placements.” We also find clear and convincing evidence supports condition “a.” The permanency order provides for Steven and Aiah to be with their fathers and for Michael to be with his maternal aunt and uncle. It also provides for an ongoing relationship between Denise and her children and for visitation among the children.

V. Summary.

Clear and convincing evidence supports the juvenile court’s decision to enter a permanency order. The State offered reasonable services to reunify Denise with her children. Under the circumstances before us, we find the children could not be returned to Denise’s care at the time of the permanency hearing. Given the uncertainty that the children could be returned to Denise’s care at the end of a six-month extension, the juvenile court correctly refused to continue the dispositional order. Through a grant of concurrent jurisdiction, the district court granted sole custody of Steven and Aliah to their fathers. Transferring guardianship of Michael to his aunt and uncle is the least restrictive placement for him under the circumstances. The permanency order provides for the stability and safety of the children, their continued relationship with each other, and their continued relationship with their parents. We affirm the juvenile court.

AFFIRMED.

      . Denise has other children who are not involved in this appeal.