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Division I: Burnet Factors Still Apply to Exclusion of Testimony and Witnesses; State has to Expressly and Understandably Offer Services in Guardianships.

In re: Dependency of M.P.

This is a dependency case, which means the State was seeking to remove the children from their parents permanently. Here, this starts with a guardianship proceeding (temporary - lets try to fix the family), which can later lead to a termination proceeding (this is unfixable). Your Prof had the opportunity to work on a few of these cases when h was at the supreme court. I can tell you, if it gets these far, these people are generally not the best of parents, and by not the best, I mean the worst.

In this case, the parents were alleged to have mental health problems, substance abuse problems, and domestic violence issues. Not exactly the ideal place to be raising one’s children. 

So, before you can exclude a witness in a case, you generally have to go through a list of factors, commonly known as the Burnet factors. The Court did not do that here, striking two of the parents’ witnesses. Now, under the discovery rules, exclusion is a fairly harsh sanction, especially when a continuance or a monetary sanction (or both) could cure the defect. Courts are reticent to decide cases based on less than the truth, and inclusion is always favored over exclusion, if it meets the evidence rules. 

Here is one of the issues I have with regard to Burnet’s application in the courts these days. The court here considered a continuance a lesser sanction. I’m sorry, but a continuance of the case is not a sanction on the party that engaged in the discovery violation. If anything, it is a windfall to them, as they have not adequately prepared their case and need more time:

Additionally, while the trial court correctly found the State's and the CASA's ability to prepare for trial would be substantially prejudiced if Bramlett’s witnesses testified, itfailed to adequately consider whether the lesser sanction of continuing the trial would be a sufficient remedy. The trial court concluded, without explanation, that it "would prejudice the [SJtate ... to continue the trial again." CP at 1147. But there is no indication in the record that the court considered the length of any continuance necessary to allow the State to prepare for Bramlett's late-disclosed witnesses.

The other problem with this reasoning, is that a continuance 99% of the time be a possibility. This reading essentially renders the court rule as to discovery violations moot. Does this make a big difference in the long run? Not really, as the supreme court is charged with making the civil rules anyhow, so they get a lot of leeway as to how those are interpreted. It really sounds like a change to the rule is in order, however, rather than watering down the current rule until all teeth are lost. All this does is encourage the parties to engage in gamesmanship, knowing that the worst that will happen is a continuance and a potential monetary sanction.

Anyhow, I digress. The Court found that the trial court needed to go back and look at the Burnet factors.

Turning to the offering of services, the termination statute says services must be expressly and understandably offered. The guardianship statute just says offered, without the expressly and understandably language. The Court read that language into the guardianship statute, essentially saying that the offered always has to be expressly and understandable. This is a great holding for parents. However, its a bit of a stretch as far as statutory construction, especially given that the legislature is presumed to know the difference when it has similar statutes but includes different wording. 

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