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Trial court didn’t err in denying parent’s request for new appointed lawyer on morning of trial

Dane County DHS v. J.F., 2021AP1868 & 2021AP1869, District 4, 1/13/22 (one-judge decision; ineligible for publication); case activity

The circuit court properly denied J.F.’s request for a new lawyer on the morning of the first day of her TPR grounds trial.

The court of appeals assumes without deciding that the case law governing a criminal defendant’s request to substitute appointed counsel applies to J.F.’s argument, as the “shared assumption of the parties” is that the criminal case law applies. (¶8 n.3). The leading case is State v. Lomax, 146 Wis. 2d 356, 432 N.W.2d 89 (1988), which says a court should consider the following when reviewing a circuit court’s handling of a request to discharge appointed counsel: 1) the adequacy of the circuit court’s inquiry into the defendant’s complaint about his or her lawyer; 2) the timeliness of the motion; and 3) whether the alleged conflict between the defendant and the attorney is “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.” 146 Wis. 2d at 359.

Applying these factors here, the circuit court’s handling of J.F.’s request easily passes the low bar of exercise of discretion review:

¶19     The court denied J.F.’s request on multiple grounds. The court found that J.F.’s reason for requesting a new attorney was to gain additional time to “allow [her] to improve [her] position in the case.”… The court noted the following as additional factors weighing against granting J.F.’s request: J.F.’s existing counsel, who had just reported that she was ready to try the case, was familiar with the case, having been appointed early on in the case; J.F. did not raise her request until the day of trial; and, in the course of discussing scheduling the grounds trial at the pretrial conference, the guardian ad litem agreed not to exercise her right to demand a jury trial. The court further found that the parties had demonstrated their preparedness for trial through pretrial filings and that “there would be significant prejudice” to other multiple persons if the grounds trial were delayed further.

¶20     Regarding the adequacy of the court’s inquiry, the record reflects that the circuit court employed a plain spoken, direct inquiry on this topic that was more than adequate for the circumstances. The court gave J.F. multiple opportunities to identify “the basis for [her] request” and repeatedly attempted to learn all of J.F.’s possible concerns about counsel. …. This included the court ensuring that it properly understood J.F. to say that delaying the grounds trial was indeed the basis for her request. These patient efforts by the court revealed that she had little or nothing of substance to say regarding any allegations of problems with current counsel.


¶22     Regarding the timeliness of the request, J.F. concedes that this factor weighs in favor of affirming the circuit court. This is a wise concession in a case in which the primary purpose of the request was delay, as J.F. acknowledged in her colloquy with the court. “Eleventh-hour requests are generally frowned upon as a mere tactic to delay the trial.” See Lomax, 146 Wis. 2d at 361-62….


¶25     Regarding alleged conflict between J.F. and counsel, J.F. argues that the hybrid representation that she and her counsel engaged in at trial “itself spoke to the total breakdown in communication between J.F. and trial counsel,” and that this “total breakdown” weighs significantly in addressing the third Lomax factor. She argues that this alleged “total breakdown” demonstrates that, had the circuit court made a “full inquiry” into J.F.’s request when she made it, the court would have discovered the existence of significant conflict. I reject the entire premise of this argument. As the County argues and as noted above, no such conflict was alleged at the time J.F.’s request was made and this settles the third Lomax factor strongly in favor of affirmance.

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