Discretionary appointment of counsel

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Litigation, Abuse/Neglect/Dependency - Accused Parents

In Joni B. v. State, 549 N.W.2d 411 (Wis. 1996), the Wisconsin Supreme Court considered the constitutionality of a Wisconsin statute that barred circuit court judges from appointing counsel for the parents in certain child protection proceedings.  Turning to the federal due process issue (the petitioners apparently did not raise the state due process clause), the court noted that “parents do not have a constitutionally protected right to counsel in all child protective hearings” because “[t]he precedent is clear.  Both the United States Supreme Court in Lassiter and this court in Piper found that there is no absolute right to the appointment of counsel in civil cases carrying no threat of loss of physical freedom.”  549 N.W.2d at 415-17 (citing Lassiter v. Dep't of Soc. Servs.101 S.Ct. 2153, 2161-62 (1981); Piper v. Popp, 482 N.W.2d 353 (Wis. 1992).  However, pursuant to Lassiter, “fundamental fairness requires that a circuit judge be given the discretion to make the determination of what due process requires on a case-by-case basis.”  Joni B., 549 N.W.2d at 417 (citing Lassiter, 452 U.S. at 31-32; Piper, 482 N.W.2d at 358-59).  The court concluded that “a circuit court should only appoint counsel after concluding that either the efficient administration of justice warrants it or that due process considerations outweigh the presumption against such an appointment.”  Id. at 417-18.  The court added that when a circuit court either grants or denies a request for counsel, “it should memorialize its findings and rationale on the record to facilitate appellate review.”  Id. at 418.


Wisconsin appellate courts have sought to clarify the responsibilities of trial courts under Joni B. One such case, In re Xena X.D.-C., 617 N.W.2d 894 (Wis. Ct. App. 2000), involved a child protection hearing in juvenile court where the mother repeatedly requested counsel. Evidence presented to the underlying juvenile court suggested that the mother was psychologically unstable. The juvenile court judge told her that she could retain counsel but that the public defender would not provide representation for her. The appellate court held this sort of response to a request for counsel was not adequate under Joni B.  Instead, "when the parent requests counsel or when the circumstances otherwise raise a reasonable concern that the parent will not be able to provide meaningful self-representation, the court must exercise the discretion conferred by Joni B." and determine whether or not it is necessary to appoint counsel.

Appointment of Counsel: discretionary Qualified: no