Vernon County DHS v. K. F.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 26, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2018AP863 Cir. Ct. Nos. 2017JC12
2017JC13
2018AP864 2017JC14
2018AP865 2017JC17
2018AP866

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE AWARD OF GUARDIAN AD LITEM FEES IN:

VERNON COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

K. F. AND M. F.,

RESPONDENTS-APPELLANTS.

APPEALS from orders of the circuit court for Vernon County:
WILLIAM ANDREW SHARP, Judge. Affirmed.
Nos. 2018AP863
2018AP864
2018AP865
2018AP866

¶1 NASHOLD, J.1 In these consolidated pro se appeals, K.F. and M.F.
appeal the circuit court’s decision ordering them to reimburse Vernon County for
guardian ad litem costs. K.F. and M.F. also appeal the order denying their motion
to modify the order for reimbursement. The circuit court’s orders are affirmed.

BACKGROUND

¶2 Vernon County Department of Human Services filed a Petition for
Protection or Services under WIS. STAT. ch. 48 against K.F. and M.F.
(collectively, appellants) with respect to each of their four minor children, A.H.,
H.H., W.F., and A.F. See WIS. STAT. § 48.13(10). K.F. requested the
appointment of counsel due to indigency. The circuit court appointed counsel for
K.F. and for M.F.2

¶3 The circuit court subsequently appointed a guardian ad litem (GAL)
to represent the children. The court ordered that the GAL’s costs be paid by
Vernon County, to be reimbursed by the parents. K.F. and M.F. were ordered to
each pay 50% of the GAL costs, for a total of $6,870.50.

1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-
18). All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
Although the records contain requests for the appointment of counsel and orders
appointing counsel with respect to K.F., no such order is in the record with respect to M.F.
However, as set forth below, the circuit court concluded that both parties were found indigent and
were appointed counsel. Likewise, the appellants assert on appeal that counsel was appointed for
both of them. Although it makes no difference to the outcome of these cases, I assume that the
circuit court and the appellants are correct that both K.F. and M.F. were found indigent and had
counsel appointed to represent them.

2
Nos. 2018AP863
2018AP864
2018AP865
2018AP866

¶4 The appellants filed a pro se motion in the circuit court to modify the
order. The circuit court denied the appellants’ motion, stating: “The parties were
found indigent to qualify them for court-appointed attorneys that they would
repay. There has been no showing of long term, total indigen[]ce.”3

DISCUSSION

¶5 The appellants filed these appeals contesting the circuit court’s order
requiring them to reimburse the county for GAL fees and the court’s
corresponding denial of their motion to modify. They contend that the court erred
when it denied their motion to modify without giving them the opportunity to
demonstrate their continued indigence. For the reasons set forth below, the
appellants’ arguments are unavailing.

¶6 The appellants’ motion to modify the GAL reimbursement order was
premised on the assertion that they had been found indigent for purposes of
appointing an attorney and that they were still indigent. As a preliminary matter, I
note that a past finding of indigency for purposes of appointment of counsel need
not bind a court with respect to a subsequent determination regarding
reimbursement of GAL fees.

¶7 Circuit courts have broad discretion to order or not to order parties to
reimburse counties for GAL fees. The relevant statute reads, in pertinent part:

3
Aside from this statement by the court, the records do not include any documentation
indicating that the appellants were ordered to reimburse the county for court-appointed counsel.
However, the outcome would be the same in these cases, regardless of whether reimbursement
was ordered or not.

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Nos. 2018AP863
2018AP864
2018AP865
2018AP866

[T]he court may order either or both of the parents of a
child for whom a guardian ad litem is appointed under this
chapter to pay all or any part of the compensation of the
guardian ad litem.... If one or both parents are indigent or
if the court determines that it would be unfair to a parent to
require him or her to pay, the court may order the county of
venue to pay the compensation and fees, in whole or in
part. If the court orders the county of venue to pay because
a parent is indigent, the court may also order either or both
of the parents to reimburse the county, in whole or in part,
for the payment.

WIS. STAT. § 48.235(8)(b) (emphasis added). As stated in the italicized language
above, even where a parent is determined to be indigent and the county has been
ordered to pay GAL fees, the circuit court may nevertheless order one or both
parents to reimburse the county for GAL fees. Thus, even if the appellants had
shown they were indigent, they have not shown that this fact would have
exempted them from being ordered to reimburse the county.

¶8 The appellants cite Michael T. v. Briggs, 204 Wis. 2d 401,
555 N.W.2d 651 (Ct. App. 1996), for the proposition that circuit courts must order
the county to pay GAL fees if a parent is indigent. However, Briggs was decided
under a previous version of the statute that required the county to pay GAL fees
and did not provide for reimbursement to the county except in specific
circumstances that are inapplicable here. See WIS. STAT. § 48.235(8) (1995-96)
(“On order of the court, the guardian ad litem appointed under this chapter shall be
allowed reasonable compensation to be paid by the county of venue ....” (emphasis
added)). The statute has been amended since the Briggs decision to allow for
reimbursement to the county, at the discretion of the court, even where the court
has ordered the county to pay the GAL due to a parent’s indigency.

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Nos. 2018AP863
2018AP864
2018AP865
2018AP866

¶9 Based on the foregoing, the appellants have failed to demonstrate
that the circuit court erroneously exercised its discretion in ordering them to
reimburse the county for GAL fees and in denying their motion to modify that
order.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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