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TPR – IAC Claim; Request for Substitute Counsel; Request for Self-Representation

Sheboygan County DH&HS v. Wesley M., No. 2010AP2946, District 2, 6/15/11

court of appeals decision (1-judge, not for publication); for Wesley M.: Leonard D. Kachinsky; case activity

¶7        A parent is entitled to the effective assistance of counsel in termination of parental rights proceedings, and the applicable standards are those which apply in criminal cases.  See A.S. v. State, 168 Wis. 2d 995, 1004-05, 485 N.W.2d 52 (1992).  Whether trial counsel provided ineffective assistance is a mixed question of law and fact.  See State v. Johnson, 133 Wis. 2d 207, 216, 395 N.W.2d 176 (1986).  To prevail, Wesley must show both that his trial counsel’s performance was deficient and that this deficient performance prejudiced his defense against the Department’s TPR petition.  See A.S., 168 Wis. 2d at 1005.  The trial court’s findings regarding what counsel did and did not do, and counsel’s reasons for the challenged conduct, are factual matters that we will uphold unless clearly erroneous.  Johnson, 133 Wis. 2d at 216.  Whether the attorney’s performance was deficient and prejudicial, however, are questions of law we decide de novo.  Id.

Where the theory for termination was the parent’s alcohol abuse, counsel’s failure to object to PBT results was deficient, given absence of any preferred strategic reason for this failure; however, no prejudice resulted:

¶11      Given the testimony heard by the jury both as to the circumstances surrounding the PBTs, not to mention relating to numerous other incidents of alcohol abuse, we are unconvinced that allowing the Department to “quantify” Wesley’s intoxication through the admission of PBT results undermines confidence in the outcome.  Contrary to Wesley’s contention that the PBT results informed the jury of his high level of intoxication, the record reflects that the PBT results were cumulative to what was already apparent from the testimony.  Nor did the PBT results permit the County “to argue that Wesley’s failure to maintain absolute sobriety was not just technical in nature but a condition likely to persist.”  Again, the record is replete with testimony as to Wesley’s alcohol use.  We conclude, as did the trial court, that Wesley failed to demonstrate that counsel’s deficient performance with respect to the admission of the PBT results prejudiced his defense against the Department’s TPR petition.  See A.S., 168
Wis. 2d at 1005.

¶19      In determining whether withdrawal of counsel and the appointment of new counsel were warranted under the circumstances of this case, we employ the factors set forth in Lomax.  State v. McDowell, 2004 WI 70, ¶72, 272 Wis. 2d 488, 681 N.W.2d 500.  These factors include:

(1) the adequacy of the court’s inquiry into the defendant’s complaint; (2) the timeliness of the motion; and (3) whether the alleged conflict between the defendant and the attorney was so great that it likely resulted in a total lack of communication that prevented an adequate defense and frustrated a fair presentation of the case.

Lomax, 146 Wis. 2d at 359 (citation omitted). …

¶20      In its postdisposition decision, the trial court addressed its denial of Wesley’s request for new counsel.  The court stated:

The Court knew that the situation between Wesley and Mr. Falk was not good.  But the Court also knew that Mr. Falk was certified by the State Public Defender to handle [TPR] cases; that he was experienced in defending these types of cases; and that despite his problems with Wesley, [Falk] would do his best for Wesley.

It is clear from the court’s decision that, consistent with Lomax, it considered Wesley’s concerns, it did not view the requests as timely in light of the strict time limits under Wis. Stat. ch. 48, and it did not view the relationship between Falk and Wesley as preventing Falk from providing an adequate defense and fair presentation of the case.  See Lomax, 146 Wis. 2d at 359.  We conclude that the trial court did not err in denying Wesley’s request for new counsel.

Parents in TPR cases have the same right to self-representation as criminal defendants, but that right is limited by a standard of competency. Trial court denial of Wesley M.’s request for self-representation is upheld in light of demonstrable concerns, including but not limited to: “(1) Wesley’s diagnosis of schizoaffective disorder, (2)  four hospitalizations in 2008 for mental health or alcohol-related issues, (3) many instances of alcohol abuse throughout the course of the Department’s supervision, and (4) the complexity of the case, including the number of witnesses (thirty-seven), the length of the trial (four days), and the quantity and type of evidence presented (police reports, social worker reports, psychological evaluations and alcohol and drug assessments),” ¶¶21-24.

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