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Parents are not entitled to an initial appearance or discovery of ADA’s emails in TPR cases

State v. D.C., 2017AP1635, 3/20/18, District 1 (one-judge opinion; ineligible for publication); case activity

The circuit court terminated D.C.’s parental rights to his child, A.D.C.  On appeal, D.C. argued that the trial court (1) lost competency to proceed when it failed to conduct an initial appearance in the case, and (2) erred in denying his request for discovery of emails between the ADA and the Child Protective Services case manager.Must trial courts conduct an initial appearance in a TPR case?

The court of appeals held that while conducting an initial appearance may be a “best practice,” it isn’t the law:

¶21 D.C.’s argument may be based on the procedure often used in Milwaukee County trial courts at initial appearances on TPR petitions. That procedure involves the trial courts explaining to the parties the grounds set forth in the TPR petition and the facts alleged in the petition to support those grounds. The trial courts also explain the two phases of a TPR proceeding, the right to a jury trial in the first phase, the State’s burden of proof and numerous other rights beyond the rights referred to in WIS. STAT. § 48.422(1). At the hearing’s end, the trial courts ask if the party is preserving his or her right to a jury trial and what the party’s posture is in the case. Although that may be a best practice, it is not required by the statute.

¶24 WISCONSIN STAT. § 48.422 does not prescribe the nature (or the name) of the hearing in which the trial court must determine whether a parent is contesting the petition and advise the parent of his or her right to a jury trial. It merely states that it must be done at a hearing on the TPR petition. We hold that under the statute the trial court must, during a hearing on the petition, determine whether any party wishes to contest the petition and inform the party of his or her right to a jury trial and, if applicable, to a hearing on paternity. Here, the record shows that the trial court complied with the statute albeit over several adjourned hearing dates.

¶30 The hearing on the petition required by WIS. STAT. § 48.422(1) was adjourned to the trial date. At the first hearing that D.C. appeared, and at several others, D.C. was advised of his right to contest the petition and his right to a jury trial. Throughout the hearings, he exercised his right to a jury trial, which reflected his contest posture. In fact, in his April 2016 motion to dismiss filed with the trial court, D.C. asserted that he had been in a contest posture as to the grounds phase for the first nine months of the TPR case. In other words, D.C. acknowledged that he had been in a contest posture from August 4, 2014, when the TPR petition was filed, until May 18, 2015, when he stipulated to the TPR grounds.

Discovery of emails.

When A.D.C.’s case manager appeared for a deposition, she brought along various emails she had exchanged with the ADA. This prompted D.C. move to dismiss or to withdraw his stipulation to grounds for a TPR, arguing that the State had withheld discovery. Apparently, (the briefs are confidential) the State argued , among other things, that the undisclosed emails were protected by the attorney work product privilege. The court of appeals held that A.D.C.’s failure to respond to this argument conceded the point and thus affirmed the circuit court’s decision to deny D.C.’s discovery request. Note to appellants: Always file a reply.

¶40 However, D.C. has not addressed the State’s (and the GAL’s) work product arguments. Because D.C. has not attempted to refute those arguments, we conclude that D.C. has conceded that the emails in the DA’s file constitute work product. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (holding that failure to refute an argument constitutes a concession.)

¶41 Relying on D.C.’s concession, we conclude that the trial court examined the relevant facts, applied a proper standard of law, and used a demonstrative rational process and reached a conclusion that a reasonable judge could reach.

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