Fond Du Lac County Dept. of Social Services v. Irene M.

• Decision Date: 25 January 1995
• Docket Number: No. 94-1283,94-1283
• Citation: 530 N.W.2d 70,191 Wis. 2d 361
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In re the Interest of Taren T.J., Price C.J., Nakia N.J., Anwar F.J. and Marquita M.J., Persons Under the Age of 18: FOND DU LACK COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner-Respondent, v. Irene M., Respondent-Appellant, Charles H.J., Respondent-Co-Appellant.
• Court: Wisconsin Court of Appeals

Page 70

530 N.W.2d 70

191 Wis.2d 361

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

In re the Interest of Taren T.J., Price C.J., Nakia N.J.,

Anwar F.J. and Marquita M.J., Persons Under the Age of 18:

FOND DU LACK COUNTY DEPARTMENT OF SOCIAL SERVICES,Petitioner-Respondent, v.Irene M., Respondent-Appellant,Charles H.J., Respondent-Co-Appellant.

No. 94-1283.

Court of Appeals of Wisconsin.

Jan. 25, 1995.

NETTESHEIM.

Irene M. and Charles H.J. separately appeal from orders involuntarily terminating their parental rights to their five children.Issues common to both appeals concern the juvenile court's discovery rulings.Charles raises a separate issue regarding the juvenile court's rejection of his proposed jury instruction.We affirm both rulings.

FACTS

On September 14, 1993, the Fond du Lac County Department of Social Services filed amended petitions seeking to terminate the parental rights of Irene and Charles to their five children.The petitions alleged that the children were in continuing need of protection and services pursuant to § 48.415(2), Stat.

Relying on the discovery provisions recited in ch. 804 of the Rules of Civil Procedure, the parents filed various discovery requests, including interrogatories, requests for admissions and requests for the production of documents.After the department failed to respond to the requests for admissions within the thirty-day time limit set out in § 804.11(1)(b), Stat., the parents brought motions seeking to compel the discovery or to have the requests deemed admitted.The juvenile court denied these requests, but ordered the department to comply with all discovery requests within thirty days of the hearing.

Thereafter, the department provided certain information in response to the discovery requests.However, the parents contended that these responses were inadequate.Therefore, they renewed their motions, again arguing that the department had not adequately complied with their discovery requests.The juvenile court denied these requests and the matter went to jury trial.

The jury determined that the department had established the requisite grounds for termination of parental rights against both parents.On March 31, 1994, the juvenile court issued an order terminating the parental rights of both parents to all five children.The parents separately appeal.

DISCOVERY REQUESTS

We begin with an important observation.From our reading of the record in this case, it is obvious that the parents, the department, the guardian ad litem and the juvenile court all operated on the premise that the discovery provisions of ch. 804 of the Rules of Civil Procedure applied to these termination of parental rights proceedings.The parents premised their discovery requests on ch. 804, Stat.The department did not object and, in fact, attempted to comply with the discovery requests pursuant to the statutory requirements, including the time limits, set forth in ch. 804.And when the matter came before the juvenile court pursuant to the parents' motions for sanctions, the court litigated the matter on the assumption that ch. 804 applied.

This assumption also pervades the appellate briefs of the parties with the exception of the guardian ad litem who poses the threshold question of whether the discovery rules set out in the Rules of Civil Procedure apply to termination of parental rights cases.However, the guardian ad litem does not further analyze the issue from a statutory or case law standpoint.We will now proceed to do so.

In an early case, our supreme court described juvenile court proceedings as a hybrid proceeding with civil and criminal attributes.See, e.g., Lueptow v. Schraeder, 226 Wis. 437, 444, 277 N.W. 124, 127(1938).However, in a later termination of parental rights case, when deciding whether a newly announced rule of procedure should be retroactive or prospective, the court said that such proceedings were civil in nature.M.W. v. Monroe County Dep't of Human Servs., 116 Wis.2d 432, 442, 342 N.W.2d 410, 415(1984).When making this statement in M.W., the supreme court did not discuss its earlier statement in Lueptow that such proceedings were hybrid in nature.

Nonetheless, accepting arguendo that termination of parental rights cases are civil in nature, it does not follow that all the Rules of Civil Procedure apply to termination of parental rights proceedings.The very first section of the rules themselves throws a cautionary light on their application.Section 801.01(2), Stat., provides:

Chapters 801 to 847 govern procedure and practice in circuit courts of this state in all civil actions and special proceedings whether cognizable as cases at law, in equity or of statutory origin except where different procedure is prescribed by statute or rule.[Emphasis added.]

Section 48.293, Stat., of the Children's Code is entitled "Discovery" and sets out the applicable discovery rules and procedure in ch. 48, Stat., proceedings.It is thus clear that the legislature has prescribed special rules of discovery in ch. 48 proceedings.As such, under the express language of § 801.01(2), Stat., the general provisions of the Rules of Civil Procedure, including the discovery provisions in ch. 804, do not apply.

Case law supports our conclusion.In Waukesha County Dep't of Social Servs. v. C.E.W., 124 Wis.2d 47, 53, 368 N.W.2d 47, 50-51(1985), the supreme court considered whether the provisions of § 805.13(3), Stat., governing objections to proposed jury instructions, applied to termination of parental rights proceedings.The court concluded that § 805.13(3) did apply because the Children's Code was silent on the matter.C.E.W., 124 Wis.2d at 53, 368 N.W.2d at 51.

In David S. v. Laura S., 179 Wis.2d 114, 507 N.W.2d 94(1993), the supreme court reached the opposite result.There, the issue was whether the grandparents could intervene, pursuant to § 803.09, Stat., in a termination of parental rights proceeding.David S., 179 Wis.2d at 143, 507 N.W.2d at 104.The court concluded that intervention pursuant to the civil rules was not appropriate.Id. at 144, 507 N.W.2d at 105.The court acknowledged that ch. 48, Stat., did not expressly address intervention.David S., 179 Wis.2d at 143, 507 N.W.2d at 105.Nonetheless, the court concluded that the notice provisions of § 48.42(2), Stat., functionally advised who was entitled to participate in the proceedings.David S., 179 Wis.2d at 143-44, 507 N.W.2d at 105.

Pursuant to the logic of these cases, it follows in this case that the discovery provisions of ch. 804, Stat., do not apply to ch. 48, Stat., termination of parental rights proceedings because § 48.293, Stat., has preempted the discovery field.

Our conclusion is also supported by the language of § 48.293, Stat., itself.Within this discovery statute, the legislature has chosen to incorporate the discovery provisions contained in other sections of the statutes unrelated to the Children's Code.Specifically, § 48.293(2) provides that the discovery provisions of §§ 971.23,971.25and972.11(5), Stat., of the criminal code are applicable in all delinquency proceedings.Other than this one instance, the legislature has not incorporated any other provisions of the civil or criminal discovery statutes into § 48.293."[T]he enumeration of specific alternatives in a statute is evidence of legislative intent that any alternative not specifically enumerated is to be excluded."...