In fact-intensive TPR appeal, COA rejects numerous creative legal arguments and affirms
State of Wisconsin v. D.R.-R.D.J. 2024AP2406, 10/8/25, District II (ineligible for publication); case activity
In an imposingly lengthy opinion involving an interesting choice of counsel claim (among many others), COA rejects arguments that “Diane” was denied her rights to counsel of choice and to the effective assistance of counsel and affirms.
This is Diane’s second appeal of this TPR matter. We covered the first appeal, a defense win, here.
Following an adverse jury verdict and a court order terminating her parental rights, Diane presents the following issues in this appeal:
Right to Counsel of Choice
COA agrees with Diane that she had a “constitutional right to select the counsel of [her] choice” in this TPR action. (¶14). However, given the messy factual record, it ultimately disagrees that right was violated here. (¶3). Most problematically for Diane, “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them.” (¶14). In that circumstance, the trial court has discretion whether to allow substitution of appointed counsel. (Id.).
Following a remand for a new trial, the circuit court appointed a specific local attorney to represent Diane based in large part on its belief that this lawyer had extensive experience in CHIPS and TPR cases and, to that end, expressed its “confidence” in the lawyer’s ability to adequately defend Diane at trial. (¶16). However, two months after the appointment of counsel, Diane’s appellate attorney (who had obtained the victory in COA making these proceedings possible) advised the Court that she “had arranged for a new trial attorney for Diane.” (¶17). The appellate attorney also filed a letter signed by Diane which purportedly expressed Diane’s desire to be represented by a different attorney because that attorney spoke Spanish. (Id.). Diane, as the circuit court observed, spoke K’iché, not Spanish, and the court therefore concluded this was not a good enough reason for allowing a change in counsel. (Id.).
The trial court raised some ethical questions about this letter, which it believed was written for Diane by the attorneys seeking to effectuate a change in counsel, opining that this could have violated the ethics rule regarding contact with represented parties. (¶25). Although COA makes a point of highlighting these critical observations in the body of the opinion, it then avers in a footnote that it “is not implying or holding that the new attorneys violated any SCR’s [sic] in their efforts to secure their participation as counsel for Diane.” (Id.).
The insertion of a footnote effectively leaving the implication of unethical conduct unresolved is unfortunate given that, in fact, the law is quite clear that there is nothing unethical about a lawyer consulting with a represented person who wishes to change lawyers; nor does there seem to be anything improper about that lawyer assisting the person in preparing documents to be filed meant to effectuate that change.
Diane was then personally informed, at a subsequent court date, that while she had a right to hire her own attorney, the court did not find there was a “legitimate basis” to appoint a different attorney. (¶19). Diane appeared to indicate she was “okay” with the court-appointed lawyer. (Id.).
The new attorney selected by appellate counsel then attempted to intervene a second time and informed the court she had been “approached” about representing Diane. (¶20). Although the new attorney proposed to take the case pro bono, given the court’s lack of familiarity with this attorney, who was not on the appointment list, the court did not allow the proposed change in counsel. (Id.). The court explained its reasoning on the record and supplemented that explanation during postdisposition proceedings. (¶23).
Cutting through the factual weeds, COA ultimately holds the court did not violate Diane’s right to counsel of choice when it refused to allow a change in counsel, as Diane was expressly “granted […] the ability to hire any attorney, even the potentially ‘no-cost’ one.” (¶29). In COA’s view, the real issue is that Diane never actually secured new representation, as the lawyers seeking to substitute into the case informed the court that their (as-yet) unrealized plan to provide pro bono representation to Diane was contingent on being county-appointed. (Id.). COA therefore faults the new attorneys for not properly filing a notice of retainer or a motion to substitute counsel, observes that Diane never raised any concerns about her court-appointed lawyer, and implies that Diane failed to adequately manifest her personal desire to change lawyers (and suggests, throughout the decision, that the entire situation was driven by the lawyers seeking to intervene, rather than Diane). (¶27). COA refuses to see this as anything other than a request for a change in appointed counsel and, under the discretionary standard of review applicable to such requests, observes there is nothing erroneous about how the circuit court addressed the situation as it amply explained its reasoning on the record. (¶33).
To say that this is an interesting substitution of counsel case is a bit of an understatement. Under well-settled law, requests for changes in counsel proceed on one of two tracks. For those who do not “require appointed counsel” there is “a presumptive right to employ his or her chosen counsel.” State v. Prineas, 2009 WI App 28, ¶14. (emphasis added). Indigent persons have a reduced Sixth Amendment right which corresponds to their comparatively scant purchasing power; they are entitled to substitution of counsel at the discretion of the court only after satisfying specific requirements. State v. Lomax, 146 Wis. 2d 356, 359-60.
Diane’s appeal somewhat scrambles this binary analysis, however, because it involves a request from an indigent person to substitute pro bono counsel of choice. However, presumably because her “pro bono” lawyers wanted access to court-appointed funding for experts and other expenses, the request was still made in context of the court appointment system. In other words, Diane was requesting the court to appoint pro bono counsel of choice, not to substitute a “retained” lawyer, and that distinction makes all the difference to COA. COA therefore suggests that, had Diane clearly articulated her wishes in conjunction with a properly filed motion to substitute “retained” pro bono counsel, then its analysis may have been different. As it is, because her new attorneys only ever attempted to compel the court to modify which lawyer it appointed via its discretionary authority, Diane’s case is solidly placed in a different legal box, one which entails the near-insurmountable deferential standard of review.
Ineffective Assistance of Counsel
Diane raises nine claims of ineffectiveness related to her trial, which COA groups together into six categories of alleged error.
First, Diane alleges that her attorney was deficient for not objecting to the admission of CHIPS orders which were signed by the judge presiding over this TPR trial. ((¶40). While it is well-settled that CHIPS orders are common evidence at TPR trials, Diane’s argument is more nuanced. She suggests that, by introducing orders signed by the judge presiding over this trial, this implied that “the trial court had already decided the ultimate issue before the jury.” (Id.). However, the trial court explained why it would not have sustained an objection on those grounds during postdisposition proceedings. (¶42). COA accepts the judge’s explanation as not clearly erroneous and therefore finds no deficient performance for not objecting. (Id.).
Second, Diane argues that evidence of the child’s gruesome injuries, which led to the CHIPS petition, was irrelevant in this TPR trial. (¶45). The trial court, relying on La Crosse County Department of Human Services v. Tara P., explained during postdisposition proceedings that it would have found the evidence admissible even if there was an objection. (¶46). Moreover, counsel objected to at least some of the more graphic references and gave a strategic reason for not objecting to more. (¶47). COA agrees that the controverted evidence was relevant and admissible and therefore rejects Diane’s arguments on this point. (¶49).
Third, Diane argues that her lawyer should have objected to the testimony of a psychological expert who testified that “Diane could never meet the conditions for return” in the CHIPS case. (¶51). COA disagrees that the testimony was objectionable and holds that Brown County v. Shannon R. permits exactly this type of evidence to be introduced. (Id.). Moreover, to the extent Diane criticizes the reliability of the expert’s testimony, this goes to weight, not admissibility. (¶52).
Fourth, Diane asserts there were improper references to the best interests of the child at the grounds phase of this TPR action, focusing on “a claim that the witnesses spoke about permanence” for the child at issue. (¶58). In context, however, COA sees nothing objectionable about the testimony and, in any case, Diane has failed to overcome the presumption that the jurors properly followed the correct jury instructions in this case. (¶58).
Fifth, Diane avers there were improper references to her immigration status. (¶62). Yet, the phrases “undocumented or illegal alien” were never uttered at this trial. (¶62). While there were references to the circumstances of Diane’s entry into the country, the trial attorney testified that this was part of a conscious strategy to garner sympathy for his client. (¶63). That strategic decision is entitled to deference on appeal. (¶65).
Finally, Diane appears to suggest that she did not understand the proceedings, which were translated for her into her assumed dialect, K’iché. (¶66). While the opinion is somewhat opaque about the alleged deficiency here, the court relied on the overall record to find there was no basis for her lawyer to be ineffective for not raising his client’s alleged inability to understand at some earlier phase of the proceedings. (¶66). Although Diane also argues in this appeal that, apparently, everyone was wrong about which dialect she understood, the record fails to corroborate her factual allegations and COA holds that she has not met her burden of proof on this claim. (¶68).
We recognize that our analysis of at least some of these issues is not as clear-cut as we might ordinarily aspire to. Yet, the lengthy decision omits any discussion of the postdisposition proceedings in the statement of facts other than a scant chronological outline of litigation events. We have no access to the briefs in this confidential case, so we are dependent on COA’s framing of the issues in trying to explain them to our readers.
Having determined there was no deficient performance, the Court sees no need to analyze prejudice and therefore affirms. (¶74).