Richland County DH&HS v. D.M.K., 2022AP2190, District IV, 11/14/24 (one-judge decision; ineligible for publication); case activity
In a somewhat rare CHIPS appeal, COA upholds the circuit court’s decision to remove adversary counsel but reverses the court’s order modifying that attorney’s request for fees.
This appeal arises from a CHIPS proceeding initiated in 2014. (¶3). Given the unique nature of the case, the circuit court appointed counsel for D.M.K., the child’s mother (as well as for the father, but that situation is not at issue in this appeal). (Id.). Since 2014, Richland County has been making periodic payments to D.M.K.’s lawyer. (Id.). Although new counsel was appointed in 2019 following prior counsel’s retirement, the status remained quo until the retirement of the assigned judge in 2022. (¶6). At that point, the reserve judge raised some concerns about the arrangement, culminating in the termination of appointment of adversary counsel for the father. (¶7). However, it permitted counsel for D.M.K. to remain on the case, finding that she had played an “important role” in helping to maintain contact between mother and child. (Id.).
When a new judge was assigned, that judge scheduled a hearing to address the lawyer’s most recent petition for payment of attorney fees, which totalled roughly $15k. (¶9). At the hearing, the new judge stated it “could no longer justify the expense given that reunification was no longer a goal of the proceeding, the current guardian ad litem had taken a ‘collaborative approach’ and was working well with the parents, and K.L.M. was nearing adulthood.” (¶10). The appointment to represent D.M.K. was terminated, although the attorney continued to represent her client on a pro bono basis. (¶11). Thereafter, counsel submitted her final bill. (¶12). The court reduced the requested amount, finding the fees to be “excessive.” (¶13). D.M.K. appeals both orders.
Termination of Appointment
As parents in CHIPS proceedings do not have a right to counsel, it was within the circuit court’s discretion to remove D.M.K.’s lawyer. (¶15). The court faults D.M.K. for ignoring the deferential standard of review and for making new arguments that it views as forfeited. (¶¶16-18). Here, the circuit court’s 13-paragraph explication, excerpted in the opinion, is sufficient to satisfy the standard. (¶21). COA also holds that consideration of the expense to the County was not an improper factor on which to rely in making the decision to terminate counsel’s appointment. (¶22).
Attorney Fees
COA relies on SCOW’s decision in State v. DeKeyser for guidance. (¶24). Although the circuit court has authority to modify or disallow portions of an itemized billing statement submitted by appointed counsel, it must: (1) allow the attorney in question to develop a record as to the request for reimbursement and (2) provide “reasons for any modifications that are consistent with law and supported by the record.” (¶25). Here, COA finds that the court erred in both the procedure used and in the reasoning given.
With respect to procedure, the circuit court “did not identify any specific entries on the billing spreadsheets that it was modifying or disallowing.” (¶27). Instead, it merely reduced the overall bill based on its conclusion that the total amount was excessive and without giving the attorney an opportunity to contest that modification. Even though COA agrees that some of the attorney’s entries lacked detail, the circuit court was not permitted to “‘eyeball’ the fee request and ‘cut it down by an arbitrary percentage because it seemed excessive to the court.'” (¶28).
As to the court’s reasoning, the court “did not provide any support for its determination that the legal services…provided were ‘excessive or unnecessary’ or ‘beyond the scope’ of” counsel’s appointment. (¶30). And, while the court believed some of those entries constituted work outside the scope, it “did not identify anything in the record” that limited the scope of representation nor does COA’s independent review disclose any such limitations. (¶31).
We realize this case concerns a niche issue probably irrelevant to many of our readers. Yet, it merits note for two reasons. First, discretionary reversals are very hard to come by in the indigent defense world, so most creative litigants will fare better looking for findings of “erroneously” exercised discretion elsewhere. This is one such case. Second, the court’s discussion of the Court’s authority to reduce or modify attorney fees may well be valuable for those readers taking county appointments.
