Manitowoc County HSD v. T. H.

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.
July 5, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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 No. 2022AP1631 Cir. Ct. No. 2016JC23

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE INTEREST OF E.J.H., A PERSON UNDER THE AGE OF 18:

MANITOWOC COUNTY HUMAN SERVICES DEPARTMENT,

PETITIONER-RESPONDENT,

V.

T.H.,

INTERVENOR-APPELLANT.

APPEAL from an order of the circuit court for Manitowoc County:
MARK ROHRER, Judge. Affirmed.
No. 2022AP1631

¶1 NEUBAUER, J.1 T.H. appeals from an order denying his motion
for in camera review and disclosure of juvenile records pursuant to State v.
Bellows, 218 Wis. 2d 614, 582 N.W.2d 53 (Ct. App. 1998). The records pertain to
Evan,2 a juvenile for whom T.H. and his wife served as guardians. Evan died in
April 2018 while in their care, and the State has charged T.H. with felony murder
and other crimes in connection with his death. T.H. sought the records, arguing
that they contain information that is relevant to the defense of reasonable
discipline of a child that he wishes to raise in the criminal case. The juvenile court
denied T.H.’s motion after concluding that he had not met his burden to show a
basis for disclosure under Bellows. After careful review of T.H.’s arguments and
the record, this court concludes that the juvenile court did not erroneously exercise
its discretion in denying his motion. Accordingly, this court affirms.

BACKGROUND

¶2 According to his Bellows motion, T.H. and his wife began
discussions with Child Protective Services (CPS) about serving as “a long-term
resource” for Evan and his two siblings in May 2017. Though not stated expressly
in T.H.’s motion or the briefs on appeal, CPS appears to be a division of the
Manitowoc County Human Services Department (the “Department”).

¶3 The children were placed with T.H. and his wife in August 2017. In
January 2018, T.H. and his wife became their legal guardians. During the process

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
We refer to Evan by a pseudonym consistent with the policy set forth in WIS. STAT.
RULE 809.86(1).

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No. 2022AP1631

that culminated with the guardianship, CPS visited the home of T.H. and his wife
multiple times. According to T.H., he “discussed the behavioral issues the
children were having as well as how he was addressing those issues with the CPS
social workers” during these visits. Specifically, T.H. “[told] the social worker
how he had the children burn off that energy, including by carrying wood and
shoveling gravel.”

¶4 On April 20, 2018, Evan was brought to a hospital and pronounced
dead. An investigation revealed that T.H. had decided to punish Evan that day by
having him carry logs and had left another child to supervise the punishment. In
his Bellows motion, T.H. described what happened next:

While [T.H.] was [nowhere] near the residence, [the other
child] took his mandate well beyond the bounds of what
[T.H.] intended. [The other child] “hit, [struck], and
poke[d] [Evan] approximately 100 times, sometimes using
a belt or stick, and rolled the heavy log across [Evan]’s
chest with his foot, before repeatedly shoving [Evan] to the
ground, standing on [Evan]’s body and head while [Evan]
was face-down in a puddle, and burying [Evan] completely
in approximately 80 pounds of packed snow.”

¶5 The State has charged T.H. with multiple offenses in connection
with Evan’s death, including felony murder, intentionally contributing to the
delinquency of a child causing death, child abuse intentionally causing harm as
party to a crime, intentionally contributing to the delinquency of a child, and
battery as party to a crime. The charging document in the criminal case is not part
of the record on appeal, but T.H. describes the allegations against him in his brief
on appeal as follows:

The State is accusing T.H. of utilizing disciplinary methods
that were so unreasonable that he is charged with
contributing to the delinquency of [the other child]
resulting in the death of [Evan] and felony murder, despite
not being present for the incident leading to [Evan]’s

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unexpected death simply because the death occurred while
[Evan] was carrying logs as discipline assigned by T.H.
However, the death was not the result of the discipline that
T.H. employed, it was the result of [the other child]
repeatedly assaulting and abusing [Evan] and burying him
in the snow after beating him until he succumbed to the
cold.

¶6 T.H. has raised the defense of reasonable discipline of a child. See
WIS. STAT. § 939.45(5)(b); WIS JI—CRIMINAL 950 (“The law allows a person
responsible for the child’s welfare to use reasonable force to discipline that child.
Reasonable force is that force which a reasonable person would believe is
necessary.” (footnotes omitted)). In furtherance of that defense, T.H. filed a
Bellows motion in Evan’s child in need of protection or services (CHIPS)
proceeding asking the juvenile court to review in camera and disclose Evan’s
“[CPS] records, including his Department of Human Services file.” T.H. asserted
that CPS’s involvement in placing the children in T.H.’s home covered the period
between May 2017 and January 2018. T.H. specifically sought disclosure of the
following information in the records: (1) “information related to the behavioral
issues the children exhibited prior to being placed in [T.H.’s] home”;
(2) “information about CPS’s awareness or approval of the discipline methods and
chores the children had to complete”; and (3) “information regarding the
behavioral improvements that were seen in the children after being placed in
[T.H.’s] home.”

¶7 The juvenile court denied T.H.’s motion at a hearing on
September 8, 2022. In its oral ruling, the court gave three reasons for its decision.
First, the court faulted T.H. for not submitting “an affidavit stating that [the
information he sought] exists and how he knows it existed.” Next, the court noted
that the records sought by T.H. contained information regarding Evan’s siblings.
This raised two issues in the court’s view: (1) the information pertaining to the

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siblings was not relevant to the issues in the criminal case; and (2) counsel had not
been appointed to represent the siblings in regards to T.H.’s motion. Finally, the
court concluded that T.H. had not shown that the information he was seeking was
relevant to the criminal case. The court stated that the first and third categories of
information T.H. was seeking—behavioral issues before the children were placed
in T.H.’s home and behavioral improvements observed after the children were
placed in T.H.’s home—were not relevant to T.H.’s reasonable discipline defense.
With respect to the second category—CPS’s awareness or approval of T.H.’s
disciplinary methods—the court concluded that the request “lack[ed] specificity”:

Specificity is required from my standpoint in terms of the
first element of the information being requested, because
him saying – well, I had kids carrying logs or I had kids
shoveling gravel as a means of discipline – and that being
told to a social worker, I don’t see how that in turn, turns
into tacit approval for child abuse….

Again, chores can be given to children that are
reasonable and permitted as far as non-abuse is concerned.

The court also commented that T.H.’s request lacked specificity with respect to a
timeframe; T.H. sought all CPS records over the time period from May 2017 to
January 2018, a period that ended four months before Evan’s death.

DISCUSSION

¶8 Wisconsin law mandates that records of an “agency” regarding “an
individual who is or was in its care or legal custody” be kept confidential and
permits their disclosure only under limited circumstances, including by court
order. See WIS. STAT. §§ 48.78(2)(a), 938.78(2)(a). (The Department is an
“agency” for the purpose of these statutes. See WIS. STAT. §§ 46.23, 48.02(2g),
48.78(1), 938.02(2g), 938.78(1)). This court has previously recognized that these
and other statutes “mandate confidentiality as the general rule and disclosure as

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No. 2022AP1631

the exception, thus expressing the legislature’s determination that the best interests
of the child and the administration of the juvenile justice system require protecting
the confidentiality of police, court and social agency records relating to juveniles.”
Courtney F. v. Ramiro M.C., 2004 WI App 36, ¶29, 269 Wis. 2d 709, 676
N.W.2d 545.

¶9 When presented with a request to disclose agency records related to
a juvenile, the juvenile court “must balance the [requesting party’s] need for the
information requested against society’s interest in protecting the confidentiality of
[the] records.” State ex rel. Herget v. Circuit Ct. for Waukesha Cnty., 84 Wis. 2d
435, 452, 267 N.W.2d 309 (1978). Confidentiality, as the Herget court
recognized, “encourage[s] the juvenile, parents, social workers and others to
furnish information which they might not otherwise disclose in an admittedly
adversary or open proceeding.” Id. at 451. To demonstrate a need for the records,
the requesting party must identify the following:

(1) the type of information being sought; (2) the basis for
the belief that the information is in the juvenile records;
(3) the relevance of the information to the cause of action;
(4) the probable admissibility of the information as
evidence; (5) the efforts that have been made to obtain the
information from other sources; and (6) any hardship to the
requesting individual should the discovery order not issue.

Bellows, 218 Wis. 2d at 630. In balancing the competing interests, courts must
remain cognizant of the statutory directive that “the best interests of the child …
shall always be of paramount consideration.” See WIS. STAT. § 48.01(1).

Standard of Review

¶10 In Courtney F., this court stated that the decision to release juvenile
records “is left to the discretion of the juvenile court” and reviewed that decision

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No. 2022AP1631

under the deferential erroneous exercise of discretion standard. Courtney F., 269
Wis. 2d 709, ¶11; see also Bellows, 218 Wis. 2d at 627-28; State v. A.S.W.,
Nos. 2015AP2119 and 2015AP2120, unpublished slip op. ¶14 (WI App Oct. 5,
2016) (analyzing juvenile court’s denial of disclosure of juvenile court records to
criminal defendant for use in criminal proceeding for an erroneous exercise of
discretion).3 Under that standard, the juvenile court’s decision will stand so long
as it applied the correct law to the facts and used demonstrated logical reasoning to
reach a reasonable conclusion. See Courtney F., 269 Wis. 2d 709, ¶11.

¶11 T.H.’s arguments on appeal rely heavily on the purpose for which he
seeks disclosure of the records. In his view, because he needs the records to
present a defense to criminal charges, his request implicates his constitutional
rights to present a defense and to a fair trial. The involvement of those rights, he
argues, requires this court to review the juvenile court’s decision de novo rather
than for an erroneous exercise of discretion. And, he argues that his constitutional
rights tip the interest balancing analysis decisively in favor of his need for the
records. This court disagrees.

¶12 Regarding the standard of review, T.H. cites State v. Green, 2002
WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, overruled on other grounds by State v.
Johnson, 2023 WI 39, 407 Wis. 2d 195, 990 N.W.2d 174, in which our supreme
court adopted and applied a bifurcated standard of review for circuit court
decisions denying requests for in camera review of privately held counseling or

3
Though unpublished, State v. A.S.W., Nos. 2015AP2119 and 2015AP2120,
unpublished slip op. (WI App Oct. 5, 2016) is a one-judge opinion citeable under WIS. STAT.
RULE 809.23(3)(b).

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No. 2022AP1631

mental health records of witnesses in criminal cases.4 Under Green, the circuit
court’s findings of fact were reviewed for clear error, but whether the defendant
made a showing sufficient to warrant in camera review of the records was
reviewed de novo. Id., ¶¶20-21. The standard of review set forth in Green does
not control here. Bellows, Courtney F., and A.S.W. set forth an erroneous
exercise of review standard for juvenile court decisions regarding the release of
juvenile records, including (as in Bellows and A.S.W.) where the records are
sought for use in a criminal proceeding. This court is bound to follow Bellows and
Courtney F. notwithstanding T.H.’s arguments to the contrary. See Cook v. Cook,
208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997).

The Juvenile Court’s Exercise of Discretion

¶13 Turning to the merits, this court looks first to whether the juvenile
court applied the correct law. See Courtney F., 269 Wis. 2d 709, ¶11. It did. At
the start of its oral ruling, the court recognized that Wisconsin law “mandates
confidentiality as a general principle [and] disclosure as … the exception” in
regards to juvenile records. The court then identified the six criteria that guide the
analysis under Bellows. It also noted the concern this court and our supreme court
have expressed that the juvenile whose records are at issue be given an
opportunity to present his or her view regarding disclosure. See Bellows, 218
Wis. 2d at 630 (quoting Herget, 84 Wis. 2d at 452).

4
The Wisconsin Supreme Court recently rejected the in camera review process for
privately-held, privileged health-care records, overruling State v. Green and other cases that
applied that process. State v. Johnson, 2023 WI 39, ¶1 & n.3, 407 Wis. 2d 195, 990 N.W.2d 174
(overruling State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298 and State v. Shiffra,
175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993)).

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No. 2022AP1631

¶14 Next, this court considers whether the juvenile court applied the law
to the facts and used logic to reach a reasonable conclusion. See Courtney F., 269
Wis. 2d 709, ¶11. In applying the Bellows criteria, the juvenile court identified
three considerations that weighed against granting T.H’s motion. T.H. challenges
the court’s analysis with respect to each consideration, but none of his arguments
show an erroneous exercise of discretion.

¶15 T.H. first contends that the juvenile court improperly relied on his
failure to submit an affidavit describing the type of information he sought because
WIS. STAT. § 48.396(5) does not require an affidavit. This argument misses the
mark because § 48.396 does not apply in this case. That section addresses access
to records of law enforcement agencies and juvenile courts. Here, the records
sought by T.H. are not those of a law enforcement agency or juvenile court but
rather records of CPS, the disclosure of which is governed by WIS. STAT. § 48.78.
Moreover, though § 48.78 does not expressly require the submission of an
affidavit in support of a motion to disclose agency records, T.H. had the burden to
establish a basis for disclosure. See Courtney F., 269 Wis. 2d 709, ¶31. Because
T.H. volunteered in his motion that he “ha[d] personal knowledge of the contents
of the CPS file” and could “attest to the presence of the sought-after information”
in it, the court could reasonably expect T.H. to provide evidentiary support via an
affidavit for the factual assertions in his motion.

¶16 The juvenile court noted next that the records T.H. sought related not
only to Evan but also his two siblings. This raised two issues in the court’s view:
(1) T.H.’s request was overly broad because any discipline imposed on the siblings
was not relevant to the criminal case, which focused on Evan; and (2) counsel had
not been appointed to represent the siblings in connection with T.H.’s motion.
T.H. contends that the court improperly “faulted T.H. for failing to appoint

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No. 2022AP1631

counsel” for the siblings, but the hearing transcript directly refutes this argument.
In addressing this point, the court stated that it “[was] not saying that [T.H.] had to
appoint[] counsel” but instead that he was responsible for informing the court “that
it needs to be done.” The court reiterated this point after T.H.’s counsel said she
did not know where the siblings were:

And again, the point that’s being missed from my
standpoint is this—is that the law indicates that they have a
right to be heard…. I mean when a motion is scheduled one
would think that that information would be brought to my
attention at the time of the filing so that I would know.

¶17 The juvenile court accurately stated the law on this issue. As T.H.
concedes, this court recognized in Bellows that a juvenile whose records are
sought “should be given the opportunity to present to the court [his or her] position
concerning disclosure of all or part of the records.” Bellows, 218 Wis. 2d at 630
(alteration in original; quoting Herget, 84 Wis. 2d at 452). “Whether the
children’s best interests are served by the release of the information,” this court
wrote, “can only be determined if the children are represented at a hearing and
given an opportunity to respond to the … request.” Bellows, 218 Wis. 2d at
632-33.

¶18 Though T.H. may not have been responsible for obtaining counsel
for Evan’s siblings or ensuring that counsel representing their interests was
present, the court reasonably concluded that T.H. bore some responsibility for, at a
minimum, alerting the Department or the court that the siblings needed to be
represented at the hearing. T.H. filed the motion and crafted his requests to
include information that extended to Evan’s siblings. He cited Bellows in his
motion and thus presumably knew that the siblings had to be represented to enable
the court to balance their interests against T.H.’s need for the records. The court

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No. 2022AP1631

did not act unreasonably in determining that T.H. had some responsibility for
flagging this issue or in relying on his failure to do so as one reason to deny his
motion.

¶19 The third reason given by the juvenile court for denying T.H.’s
motion was that the records he sought were not relevant to his reasonable
discipline defense. In Courtney F., 269 Wis. 2d 709, ¶21, this court stated that
“the juvenile court must make a threshold relevancy determination by an in
camera review” when asked to disclose agency records under WIS. STAT. § 48.78.5
The parties agree that the question for the juvenile court was whether the records
are relevant for the purpose of discovery in the criminal proceeding. See
Courtney F., 269 Wis. 2d 709, ¶22. T.H. argues that this relevancy analysis
should be governed by WIS. STAT. § 804.01(2)(a), which sets forth the scope of
discovery in civil actions. But as the Department notes, that standard does not
apply in T.H.’s criminal case. This court will evaluate the juvenile court’s
analysis of relevance under the definition set forth in WIS. STAT. § 904.01,
applicable to criminal cases, which defines relevant evidence as that which has
“any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.”

5
It appears the juvenile court did not examine the records sought by T.H. in camera but
instead analyzed their relevance according to the description of the contents provided by T.H.,
who had reviewed them. T.H. does not argue that the court’s failure to examine the records in
camera is grounds for reversal.

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No. 2022AP1631

¶20 WISCONSIN STAT. § 939.45 codifies the defense of reasonable
discipline by recognizing a privilege, which “is a defense to prosecution for any
crime based on [the] conduct”:

When the actor’s conduct is reasonable discipline of a child
by a person responsible for the child’s welfare. Reasonable
discipline may involve only such force as a reasonable
person believes is necessary. It is never reasonable
discipline to use force which is intended to cause great
bodily harm or death or creates an unreasonable risk of
great bodily harm or death.

Sec. 939.45(5)(b). The defense consists of three elements: “(1) the use of force
must be reasonably necessary; (2) the amount and nature of the force used must be
reasonable; and (3) the force used must not be known to cause, or create a
substantial risk of, great bodily harm or death.” State v. Kimberly B., 2005 WI
App 115, ¶30, 283 Wis. 2d 731, 669 N.W.2d 641. The jury instruction for the
defense expands on the concepts of reasonable necessity and reasonable force as
follows:

Whether a reasonable person would have believed that
the amount of force used was necessary and not excessive
must be determined from the standpoint of the defendant at
the time of the defendant’s acts. The standard is what a
person of ordinary intelligence and prudence would have
believed in the defendant’s position under the
circumstances that existed at the time of the alleged
offense.

In determining whether the discipline was or was not
reasonable, you should consider the age, physical and
mental condition and disposition of the child, the conduct
of the child, the nature of the discipline, and all the
surrounding circumstances. It is never reasonable
discipline to use force which is intended to cause great
bodily harm or death or which creates an unreasonable risk
of great bodily harm or death.

WIS JI—CRIMINAL 950 (footnotes omitted). Though the juvenile court did not cite
the statute or the jury instruction in its remarks, it did not erroneously exercise its

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discretion in concluding that the information sought by T.H. was not relevant to
the defense.

¶21 As to the first category of information T.H. sought, the juvenile
court reasonably concluded that the behavior of Evan and his siblings before they
came to live with T.H. would not be relevant to the defense. The jury instruction
states that the reasonableness of discipline is determined, among other things, in
relation to the conduct that prompted it. Id. The charges against T.H. arise out of
events that culminated with Evan’s death on April 20, 2018, more than eight
months after Evan and his siblings began living with T.H. It is reasonable to infer
that any behavior T.H. attempted to correct through discipline occurred close in
time to the date of Evan’s death, not months or years before Evan and his siblings
began living with T.H. Thus, as the court concluded, “[h]ow kids are acting has
no bearing on reasonable discipline, as far as how they were acting before they
came to [T.H.’s] home.” The court’s analysis was premised on a reasonable
application of the law concerning reasonable discipline to the facts presented.

¶22 The juvenile court also did not erroneously exercise its discretion
with respect to the second category of information sought by T.H. T.H. sought
CPS records that would show its awareness of the chores T.H. used to discipline
Evan and his siblings. He argues that CPS not only knew of these methods but
tacitly approved of them because it “did not have concerns at the time.” Thus,
T.H. argues, the records are relevant because they tend to show that the methods
were reasonable and did not give rise to a substantial risk of death or serious
bodily harm.

¶23 The juvenile court disagreed, concluding that CPS’s purported
knowledge of T.H.’s disciplinary methods would not constitute “tacit approval”

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No. 2022AP1631

for child abuse and that T.H.’s request for all of the agency’s records over the
eight-month period between May 2017 and January 2018 was overly broad. This
court agrees that, without specificity, T.H.’s description of discussions with CPS
officials identifying the type of tasks he was using to discipline Evan and his
siblings do not show that CPS tacitly approved of those methods, much less their
use in a manner that constituted child abuse. As the juvenile court observed,
disciplining children through chores is “reasonable and permitted” so long as it
does not cross the line into child abuse. But the criminal case against T.H. does
not appear to be about whether T.H.’s discipline of Evan with the unspecified use
of chores, such as carrying logs, was reasonable. As T.H. himself argues,
reasonable chores are not what killed Evan. Instead, it appears from T.H.’s
description of the charges against him that the State’s case focuses on his conduct
in directing another child to supervise Evan and allowing the other child to
mistreat Evan to such an extent as to cause his death. CPS’s discussions with T.H.
in 2017 about how, in his words, “he had the children burn off [extra] energy,
including by carrying wood and shoveling gravel,” do not show that CPS tacitly
approved the conduct by T.H. that is alleged by the State to constitute child abuse
and is simply not relevant to the evaluation of that conduct.

¶24 In addition, the records at issue pertain to a time period that ended
four months before Evan’s death. By contrast, T.H.’s defense will necessarily
focus on the conduct that forms the basis of the charges against him, and the
reasonableness of that conduct will be determined by the circumstances
surrounding it. Those circumstances will necessarily focus on the events
immediately leading up to Evan’s death. As this court has already stated, CPS’s
awareness in the summer of 2017 that T.H. was using physical labor as a form of

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No. 2022AP1631

discipline is not relevant to determining the reasonableness of his conduct in
April 2018.

¶25 The same conclusion applies to the third category of information
sought by T.H.—how the behavior of Evan and his siblings improved after they
began living in T.H.’s home. T.H. argues the improvements in behavior noted in
the CPS records are relevant to establishing the reasonableness of his disciplinary
methods. The juvenile court disagreed, and though it did not explain its reasoning,
this court’s review of the record supports the juvenile court’s decision. See
Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737
(“Although the proper exercise of discretion contemplates that the circuit court
explain its reasoning, when the court does not do so, we may search the record to
determine if it supports the court’s discretionary decision.”). That CPS personnel
may have noted improvements in the behavior of T.H. and his siblings months
before the events at issue in the criminal case in response to T.H.’s disciplinary
methods is not relevant to determining the reasonableness of T.H.’s conduct vis-à-
vis the children prior to Evan’s death.

Other Arguments

¶26 T.H. raises two additional arguments, neither of which he raised
before the juvenile court. This court could deem his failure to do so as a
forfeiture. See Kolupar v. Wilde Pontiac Cadillac, Inc., 2007 WI 98, ¶23, 303
Wis. 2d 258, 735 N.W.2d 93 (“Generally, arguments raised for the first time on
appeal are deemed waived.”). However, the Department does not argue forfeiture,
and therefore this court will exercise its discretion to briefly consider T.H.’s
arguments. See State v. Kaczmarski, 2009 WI App 117, ¶9, 320 Wis. 2d 811, 772
N.W.2d 702 (“Whether we address forfeited arguments is left to our discretion.”).

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¶27 First, T.H. contends that because the CPS records “pertain to the
same facts at issue in the criminal case,” his constitutional right to present a
complete defense outweighs society’s interest in maintaining the confidentiality of
the records “as a matter of law.” In support, he cites Davis v. Alaska, 415 U.S.
308, 319 (1974), in which the United States Supreme Court rejected Alaska’s
contention that its interest in maintaining the confidentiality of a witness’s prior
juvenile record was outweighed by Davis’s confrontation right under the
Sixth Amendment6 to cross-examine the witness about his record to suggest that
he was biased.

¶28 This argument is fundamentally at odds with the balancing test
required under Herget. Requiring disclosure as a matter of law any time a
criminal defendant seeks juvenile records that purport to support a defense would
eliminate the need for any balancing of interests and subordinate the juvenile’s
interest in confidentiality. Both results are contrary to Wisconsin law. In Herget,
84 Wis. 2d at 451-52, the supreme court recognized a “strong public interest” in
WIS. STAT. § 48.78 and related provisions “in promoting the best interests of the
child and the administration of the juvenile justice system by protecting the
confidentiality of … social agency records relating to juveniles.” Even in cases
where a criminal defendant seeks disclosure or in camera review of juvenile
records, Wisconsin courts must still balance the strong interest in confidentiality
against “the exigencies of the circumstances.” Herget, 84 Wis. 2d at 452. The
defendant’s right to present a defense does not exist outside the balancing analysis;
rather, the defendant’s need for juvenile records to present a defense is considered

6
U.S. CONST. amend VI.

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No. 2022AP1631

in the balancing analysis because the defendant must explain to the juvenile court
“any hardship to the requesting individual should the discovery order not issue.”
See Bellows, 218 Wis. 2d at 630. The impact of nondisclosure on the defendant’s
constitutional rights in a criminal proceeding is simply one factor the juvenile
court must consider, not the dispositive factor that will always prevail as a matter
of law.

¶29 T.H.’s other argument is that the Department records he sought
contain “exculpatory and impeachment evidence,” and thus he would be entitled to
them under Brady v. Maryland, 373 U.S. 83 (1963) and Kyles v. Whitley, 514
U.S. 419 (1995), as well as Wisconsin’s criminal discovery statute, WIS. STAT.
§ 971.23, even if he had not filed a Bellows motion. Specifically, T.H. points to
statements in the records “by the Department that the methods utilized by T.H.
were not thought to be concerning or inappropriate at the time of their use, and
that the children exhibited positive behavioral changes in response to these
methods.” The State’s obligation to turn over these records, in T.H.’s view,
“overrides” the Bellows criteria that examines efforts to obtain the requested
information from other sources.

¶30 This argument fails for three reasons. First, T.H. has not explained
how raising a Brady challenge in this proceeding is appropriate. In addition, T.H.
has not shown that the prosecutor responsible for his criminal case or any law
enforcement officer involved in the investigation of Evan’s death had possession
or even knowledge of the CPS records. Nor has T.H. offered anything to suggest
that CPS has had any involvement in the investigation of Evan’s death or the
criminal charges against T.H. This is important because, as a case cited by T.H.
recognizes, Brady’s disclosure obligation “is limited to that information which is
then known to the government” and does not require a prosecutor “to learn of

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No. 2022AP1631

information possessed by other government agencies that have no involvement in
the investigation or prosecution at issue.” United States v. Morris, 80 F.3d 1151,
1169 (7th Cir. 1996). Similarly, our supreme court has stated only that the State’s
disclosure obligation under WIS. STAT. § 971.23 “may extend to information in the
possession of law enforcement agencies but not personally known to the
prosecutor.” State v. DeLao, 2002 WI 49, ¶21, 252 Wis. 2d 289, 643 N.W.2d 480
(emphasis added). Nothing in T.H.’s Bellows motion suggests that the prosecuting
attorneys or law enforcement officials involved in his criminal case possess or
even are aware of the CPS records. Thus, he has not shown that the records are
subject to disclosure under Brady or § 971.23.

¶31 Finally, under Brady, the State must turn over to a defendant
evidence that is material to either guilt or punishment. State v. Harris, 2004 WI
64, ¶12, 272 Wis. 2d 80, 680 N.W.2d 737. “[E]vidence is material only if there is
a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” Id., ¶14 (citation
omitted). WISCONSIN STAT. § 971.23(1)(h) similarly requires a district attorney to
disclose upon demand “[a]ny exculpatory evidence.” This court has already
explained why the information T.H. seeks in the records is not relevant to his
reasonable discipline defense. Because the information is not relevant, it is not
material for the purpose of Brady or exculpatory evidence subject to disclosure
under § 971.23(1)(h).

¶32 For these reasons, this court rejects T.H.’s arguments and concludes
that the juvenile court did not erroneously exercise its discretion in denying his
Bellows motion.

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No. 2022AP1631

By the Court.—Order affirmed.

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

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