Chapter 7 Discovery and Pretrial Proceedings

LibraryRepresenting Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.)

CHAPTER 7 Discovery and Pretrial Proceedings

Kenneth Krekorian

7.01 Pretrial Proceedings

Pretrial proceedings should be a routine feature in child welfare matters. Depending on the jurisdiction, either the general civil discovery rules apply in dependency proceedings or there are specific discovery rules in the statute or rules governing practice in dependency court. However, in many places, discovery is handled informally. Similarly, motion practice before a trial may be based upon rules for courts of general civil jurisdiction, specific rules applicable only to dependency court, or, most commonly, a combination of general and specific rules.

7.02 Discovery: An Overview

Discovery is an available tool in all legal proceedings including civil, criminal, and juvenile matters. It gives counsel the opportunity to learn the evidence on which the other side is relying and is an essential tool for enabling parties to assess the strength of their case. This information commonly forms the basis for deciding whether to settle the matter, and on what terms, or to take the case to trial. It also allows the parties to make strategic decisions on such basic matters as what witness to call, whether to call an expert witness, and what the trial strategy should be.

Discovery is no less invaluable in child welfare cases and is especially useful to parents' attorneys in determining the strength of the case brought by the Agency. Counsel should be familiar with the rules governing discovery in the state's court of general civil jurisdiction and should make liberal use of the devices they provide. Child protection cases typically proceed very rapidly from the filing of the Petition to the adjudicatory hearing, making the need to engage in discovery promptly all the more imperative. Counsel should give priority to being fully prepared for trial, which often means using discovery techniques available in ordinary civil actions. Most of these can be undertaken without involvement of the court unless the adverse party fails to comply with requests for discovery.

Many states mandate that the Agency provide relevant information to respondents; in practice, however, agencies too often get away with providing incomplete information to parents and their lawyers. In many jurisdictions, much of the information that is given to parents' attorneys and is considered discoverable in child welfare matters comes from the social worker who conducts the initial investigation to determine whether a Petition should be filed and whether or not the child should be removed. In other jurisdictions, parents' counsel needs to take affirmative steps to secure the agency case file. Counsel should always secure this file before making critical strategic decisions. This is particularly true in more complex cases dealing with injuries to children where medical issues are commonly involved and material medical records may not be in the Agency's possession.

Counsel should obtain all relevant documents in the course of preparing for trial. These may include hospital records, police reports, agency investigation records, the notes of any expert who interviewed the parent or child, and court records of any related proceedings or previous cases involving the family. As discussed in Chapter 3, in the first interview with the client, counsel should routinely obtain his or her written permission to enable counsel to examine and copy all documents and records pertaining to the client or the family, with an express waiver of any right to confidentiality as against counsel.

7.03 Meeting with the Agency Attorney

Counsel should arrange to meet with the attorney for the Agency and try to find out as much as possible about the case. This meeting should be conducted informally. Counsel should strive to obtain information about the Agency's objectives and what the attorney for the Agency thinks about the overall direction of the case. The more information counsel can secure from this conversation, including getting access to the records in the Agency's possession, the quicker counsel can be prepared for trial without going through the effort of using formal discovery.

7.04 Formal Discovery Efforts

Pretrial discovery includes the traditional forms of discovery such as interrogatories, depositions, requests for admissions, and requests for the inspection and copying of documents. Pretrial discovery may be initiated by any party in juvenile dependency proceedings but will vary depending on state law. Formal discovery requests should be made on notice to all parties when any party is seeking information. Several states, including Michigan, California, and Pennsylvania, have rules regarding informal requests for discovery. See Cal. R. Ct, 5.546; Pa. R. Juv. Ct. P. 1340; Mich. Ct. R. Prac. § 3.922(A)(1). In these jurisdictions, when the parties are in dispute regarding compliance with the informal request, the filing of motions may follow informal discovery. Other states, including Florida, have a comprehensive and formal discovery process setting forth strict rules of discovery. See Fla. R. Juv. P. 8.245.

Time constraints in dependency cases may limit the type of discovery that can be relied upon. Many jurisdictions regulate the time limits for cases to go to disposition when children are in foster care. In some jurisdictions, the jurisdictional or adjudicatory hearing must be held within fifteen days when the child is in foster care or within thirty days if the child is released to a parent or guardian, unless the parent agrees to extend the time frames. See, e.g., Pa. R. Juv. Ct. P. 1510. Similarly, in many jurisdictions, the dispositional hearing must be held within sixty to ninety days of filing the Petition, unless waived. See, e.g., Cal. Welf. and Inst. Code, § 352 (b) (sixty days); Ohio Juv. R. 34 (ninety days). These extremely attenuated pretrial periods make it difficult to use discovery procedures that, by their nature, take time to resolve. See, e.g., Ore. Rev. Stat., § 419B.305 (2001); Wash. Rev. Code § 13.34.110 (2007). Counsel needs to be prepared for a contested hearing very quickly after the Petition is filed.

Texas uses a formal system of discovery but does so by a "discovery control plan." See Tex. R. Civ. P. 190.1. By using a control plan, the court may limit or expand the manner and amount of discovery conducted. In dependency cases, this allows the court to tailor the discovery to fit the circumstances of dependency cases. Thus, the discovery control plan takes into account the accelerated setting of hearings in dependency cases.

California and Pennsylvania employ an informal discovery process designed to be completed in an accelerated manner so that the mandatory timelines to disposition of the case are accomplished. These discovery processes are also designed to encourage a minimally adversarial process. The California process, for example, places an affirmative duty on the Agency to disclose police reports relevant to the pending matter and any evidence or information within petitioner's possession or control that is favorable to the child, parent, or guardian. Cal. R. Ct. 5.546. Although not all inclusive, this Rule establishes eight categories of information that, unless privileged, must be turned over to the requesting party upon a timely request.

Pennsylvania's process is very similar to California's. In Pennsylvania, discovery and inspection are expected to be informal, but the rules require that the petitioner give to parent's counsel the names of all witnesses in addition to their written statements, scientific evidence, including expert opinions, police reports, physical and mental examinations, and tangible objects, including documents. Pa. R. Juv. Ct. P. 1340.

Whether or not the Court will be willing to extend the time to trial to allow different forms of discovery to be completed will play a role in helping counsel choose which discovery method to use, with the goal of ensuring that counsel obtains all needed information within the time period needed to be prepared for trial. Cost is another variable to keep in mind. Although depositions allow counsel to ask questions of live witnesses—an invaluable aid for trial preparation—it costs both time and money. (Although the capacity to videotape depositions makes it significantly less expensive than it once was when a court reporter was needed for every deposition. When using video, counsel...

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