Goff, Justice.
More than half a century ago, the Supreme Court of the United States avowed that a child’s right to counsel is neither “a formality” nor “a grudging gesture to a ritualistic requirement,” but rather “the essence of justice.” Kent v. United States, 383 U.S. 541, 561 (1966). Since then the settled law has been that children enjoy a constitutional due process right to the effective assistance of counsel during juvenile delinquency proceedings.
The law remains unsettled, however, on the standard to evaluate claims from children alleging ineffective assistance of counsel. Here, A.M. asserts that his attorney rendered him ineffective assistance during a disposition-modification hearing. Reflecting the uncertainty in the law, A.M. and the State offer two competing standards for deciding the claim—one founded in the Sixth Amendment’s right to counsel for a criminal proceeding and one founded in the Fourteenth Amendment’s due process clause.
We hold today that a due process standard governs a child’s claim that he received ineffective assistance in a disposition-modification hearing during his delinquency proceedings. In assessing these claims, we consider counsel’s overall performance and determine whether that performance ensured the child received a fundamentally fair hearing resulting in a disposition serving his best interests. Given the facts of this case, A.M. has failed to demonstrate he received ineffective assistance of counsel, so we affirm the trial court.
Born in June 2002, A.M. has a long history with the juvenile justice system. At the age of ten, he had already committed three delinquent acts amounting to Class D felony battery with bodily injury if committed by an adult. …
In July 2017, A.M. and his friends approached a younger boy at the Kosciusko County fairgrounds, forcing him into an abandoned tent so that A.M. could fight him. …
This incident ultimately led to a true finding of disorderly conduct, a Class B misdemeanor if committed by an adult. The juvenile court placed A.M. on supervised probation until the age of eighteen. But in the months that followed, he consistently failed to abide by the terms of his probation—leaving home without permission, threatening his family, skipping school, staying out past curfew, spending time with another juvenile delinquent, and missing his mental-health evaluations. Police also suspected his involvement in the burglary of a classmate’s home.
Because his actions posed a danger to others, and out of concern for A.M.’s safety and best interests, the probation department recommended his placement with the Department of Correction (DOC). In its modification report, the probation department also opined that placement in the DOC would ensure A.M. received the necessary education and services.
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In adopting the probation department’s recommendation, the juvenile court committed fifteen-year-old A.M. to the DOC for an indeterminate period.
A.M. appealed, arguing that he received ineffective assistance of counsel. Our Court of Appeals unanimously denied A.M.’s claim in a published opinion. A.M. v. State, 109 N.E.3d 1034 (Ind. Ct. App. 2018). We now grant transfer, thereby vacating the Court of Appeals opinion in part to decide the following unanswered question of Indiana law: What review standard controls juvenile ineffective-assistance-of-counsel claims?
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… Looking both at the constitutional and statutory origins for a child’s right to counsel, along with the juvenile system in which that right manifests, we see that a child’s attorney assumes a role in a disposition-modification hearing that is altogether different from an attorney in a criminal proceeding. Accordingly, we conclude that a child’s ineffective-assistance-of-counsel claim in a disposition-modification hearing is better evaluated under a Fourteenth Amendment due process standard, not the Sixth Amendment’s Strickland test.
Yet we also conclude that Baum’s standard, which basically asks only whether the attorney was present, provides too low a benchmark for measuring counsel’s performance in juvenile proceedings. So today we apply a due process test assessing the ineffective assistance of counsel that takes into account the distinguishing features of juvenile law. This test considers counsel’s overall performance and then focuses on whether that performance ensured the juvenile received a fundamentally fair hearing that resulted in a disposition serving the child’s best interests.
Though we decline to adopt the Sixth Amendment’s rigorous Strickland standard, we do not believe due process provides juveniles—vulnerable as they are—with “lesser standard[s].” See Baum, 533 N.E.2d at 1201. As the Supreme Court of the United States said in Gault, the child needs counsel’s “guiding hand” to navigate “every step in the proceedings against him.” 387 U.S. at 36 (citation omitted). We do not see Baum’s standard—which essentially asks only whether the attorney appeared to represent her client in a fair proceeding that resulted in a judgment—as an adequate measure of counsel’s performance in juvenile matters. We, therefore, elect to bypass Baum’s test and apply a different due process standard to assess whether counsel rendered the juvenile ineffective assistance in the disposition-modification hearing.
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So, when a juvenile raises an ineffective-assistance-of-counsel claim following a modified disposition, we focus our inquiry on “whether it appears that the [juvenile] received a fundamentally fair [hearing where the] facts demonstrate” the court imposed an appropriate disposition considering the child’s best interests. See id.; I.C. § 31-37-18-6. In assessing fundamental fairness, a court should not focus on what the child’s lawyer might or might not have done to better represent the child. Rather, the court should consider “whether the lawyer’s overall performance was so defective that the . . . court cannot say with confidence that the” juvenile court imposed a disposition modification consistent with the best interests of the child. See Baker, 810 N.E.2d at 1041.
We now turn our attention to the facts before us to determine whether, under this standard, A.M.’s counsel performed ineffectively.
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When the judge sits in a parental role over a collaborative setting, good advocacy may not include adversarial argument that highlights the juvenile’s positive traits alone. In proceedings that turn on the best interests of the child given the past and present circumstances, effective assistance of counsel that ensures fundamental fairness may take different forms and tones. Considering counsel’s overall performance here, we cannot say he performed so defectively that we lose confidence in the juvenile court’s disposition modification. Given A.M.’s inability to rehabilitate in less-restrictive settings, his expulsion from school, and his increasingly violent behavior, placement in the DOC proved consistent with his best interests. In our view, A.M.’s counsel helped ensure A.M. received a fundamentally fair hearing where the court reached an accurate disposition that furthered his best interests.
For these reasons, we affirm the juvenile court’s order that modified A.M.’s disposition to the DOC.
Rush, C.J., and David and Massa, JJ., concur.
Slaughter, J., concurs in judgment with separate opinion.
Slaughter, J., concurring in judgment.
I agree with the Court that A.M.’s ineffective-assistance-of-counsel claim lacks merit. I also agree that A.M.’s claim is not governed by the rigorous standard announced in Strickland v. Washington, 466 U.S. 668 (1984). … Instead, for non-criminal cases, counsel’s effectiveness is subject to the minimal procedural-due-process standard under the Fourteenth Amendment, which requires fundamental fairness. As we have held, counsel meets this standard “if counsel in fact appeared and represented the [client] in a procedurally fair setting which resulted in a judgment of the court”. Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). …
We have previously invoked Baum, or a standard like Baum, in other fundamental-fairness inquiries. … But the Court today announces a heightened “Baum-plus” standard for assessing counsel’s effectiveness in this juvenile, non-criminal proceeding: whether counsel’s overall performance at the disposition hearing “was so defective that . . . [we] cannot say with confidence that the juvenile court imposed a disposition modification consistent with the best interests of the child.” (Internal citation omitted).
My objection to the Court’s approach is that I do not perceive any meaningful difference between the “Baum-plus” standard the Court embraces today and the Strickland standard it purportedly rejects. Strickland asks whether counsel’s performance fell below some minimal level of competence, and whether the sub-par performance was prejudicial. Today’s “Baum-plus” standard also is a two-prong inquiry, asking whether counsel’s performance was deficient and, if so, whether the client was prejudiced. Prejudice under Strickland is straightforward—the result of the proceeding likely would have been different had counsel performed capably. But prejudice under the Court’s “Baum-plus” standard is unclear and prompts more questions than answers, including what “best interests of the child” even means in these proceedings …
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