979 A.2d 1138 (Del.Fam.Ct. 2009), CS07-02770, Division of Family Services v. Redman

Docket Nº:CS07-02770.
Citation:979 A.2d 1138
Opinion Judge:HENRISKSEN, J.
Party Name:DIVISION OF FAMILY SERVICES, Petitioner, v. Ramona REDMAN,[1] John Littleton, Respondents.
Attorney:James S. Reichert, Esquire, Deputy Attorney General, Georgetown, DE, for the Petitioner. Ashley M. Oland, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, for Ramona Redman; Patricia M. O'Neill, Esquire, Law Office of Patricia M. O'Neill, Georgetown, DE, for John Littleton.
Case Date:April 15, 2009
Court:Family Court of Delaware
 
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Page 1138

979 A.2d 1138 (Del.Fam.Ct. 2009)

DIVISION OF FAMILY SERVICES, Petitioner,

v.

Ramona REDMAN, 1 John Littleton, Respondents.

No. CS07-02770.

Family Court of Delaware, Sussex.

April 15, 2009

Submitted: Feb. 6, 2009.

Page 1139

James S. Reichert, Esquire, Deputy Attorney General, Georgetown, DE, for the Petitioner.

Ashley M. Oland, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, for Ramona Redman; Patricia M. O'Neill, Esquire, Law Office of Patricia M. O'Neill, Georgetown, DE, for John Littleton.

OPINION

HENRISKSEN, J.

The Division of Family Services has moved to quash a subpoena duces tecum issued at the request of Mother's attorney requiring a Division worker to bring with her to a dependency/neglect review hearing the following information:

1. Any and all records/reports/notices on [Mother] including but not limited to any and all information on contact or contact attempts with [Mother], any and all information pertinent to housing, employment, and any other element regarding [Mother's] case and progress on [Mother's] case plan.

2. Any and all information on visits, when they were scheduled and if they were held. Any and all information on contact with Jana Miller, Gail Beutler, and Officer Cox.1

For the reasons that will follow, the Court is granting the Division's Motion to Quash the subpoena which was issued pursuant to Family Court Civil Rule 45. However, noting the federal and state statutes and Family Court Rules that require dependency/neglect cases to be scheduled on an expedited basis, quite different from the scheduling of a traditional trial, and also noting the paramount interest involved of the safety and permanency for children, and the potential of reunification of those children with their parents, the Court will expect discovery requests for production of documents pursuant to Family Court Civil Rule 34 to henceforth proceed on an expedited basis.

Background

Mother's minor child, hereinafter referred to as " Child" , born 2006, was removed from Mother's care on October 05, 2007, due to a report from a neighbor that Mother was deficient in caring for her other 5 year old minor child. 2 Since that time, both Mother and Father have been working toward reunification with Child. Child is currently in the custody of the Division of Family Services of the State of Delaware, hereinafter referred to as " the Division"

On October 15, 2007, following a brief hearing, the Court determined that there was probable cause to find that the child would be dependent in Mother's care, and that it continued to be in the best interests of the child to remain in the custody of the Division. On December 03, 2007, the Court held its next hearing, where Mother waived her adjudicatory hearing by acknowledging that the Division could prove by a preponderance of the evidence that the children would be dependent if placed back into Mother's care.

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The next hearing on Mother's case was a dispositional hearing held on January 28, 2008. At this hearing, the Court was presented a case plan signed by the Division and by Mother which set in place a course of action needed to be followed by both the Division and by Mother which hopefully would lead to the eventual reunification of the child and Mother when a time could be reached where the child would no longer be dependent or neglected if returned to Mother's care. Basically, the plan provided for visitation between Mother and Child. The plan also required Mother to maintain steady employment, attend parenting classes, undergo a mental health assessment and any recommended treatment, obtain stable housing, and comply with the terms of her probation. 3

The Court brought the parties back to Court on May 05, 2008, for a review hearing. At such hearings, testimony is given by the Division worker or workers about Mother's progress in pursuing her case plan. The parents' attorneys are given the opportunity to cross-examine the worker. In this particular case, the child has been assigned a Court Appointed Special Advocate (CASA) whose attorney also is permitted to cross-examine the worker. The parents and the CASA may also give testimony. At each of these hearings, the Court also inquires about the safety and welfare of the child and what services are being provided to the child. At the hearing on May 05, 2008, the Division worker testified that Mother had completed her parenting course as well as her mental health assessment. Mother's employment was in question. Mother had also obtained a positive drug screen for cocaine, which would likely require Mother to be re-evaluated for her substance abuse as a condition of her probation. The Court also learned that Mother was not taking the opportunity to exercise all of the visitation being offered to her by the Division.

The next review hearing occurred on August 25, 2008. At this hearing, the DFS worker informed the Court that Mother had held many different jobs, had not followed through with extra visitation, had taken a long time to get into mental health counseling, violated her probation, had been less than honest with the case worker, and was not returning telephone calls to the case worker or to the CASA. Of special concern was that Mother was residing in a home owned by her own mother and step-father. Although this home had previously been considered to be an appropriate place for Mother to live with the child, concerns had recently been disclosed about possible past inappropriate conduct of the step-father towards Mother when she was a minor.

Also of special note at the review hearing held on August 25, 2008, was the Division worker's lack of ability to apprise the Court of the date of when the mental health evaluation was completed on Mother, when the Division gave Mother information or made referrals on Mother's behalf so Mother could enter counseling, what efforts were made over the time period for Mother to obtain counseling, and why it has taken so long for Mother to get into counseling.

On November 03, 2008, the Court conducted a permanency hearing because of the considerable progress that Father was making on his case plan. The Court found that there were compelling reasons to continue the Division's efforts to attempt to reunify the child, especially with Father, where the Court found that reunification with Father was imminent. Although

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Mother had also made progress on her plan, the Division still had concerns. Contrary to the prior hearing, the Division worker was prepared to provide substantial details on the timeline of dates and opportunities provided to Mother so that she could obtain mental health services. Also, although previously accepting Mother's living arrangements with her mother and step-father, the Division now found that housing to be inappropriate since Mother had disclosed more information about inappropriate advances made to her by her step-father when she was 17 and again when she was 19.

The next hearing occurred on January 05, 2009. It was at this hearing that the issue now before the Court, that being issuing a subpoena duces tecum for the Division worker to bring her records to the hearing, first became relevant. There was a considerable amount of dispute about whether the DFS worker had provided the counseling agency with a copy of the psychological evaluation. Although Mother's attorney had issued subpoenas for the Division worker to bring to the hearing her notes and records, the Division worker did not bring these notes and records. As a result, the Division worker was unable to specifically answer whether or not she had provided the counseling agency with a copy of the psychologist's report. The Court's Order required the Division worker to provide within one week following the hearing to the Court, as well as to all counsel, copies of the Division worker's notes relevant to whether the Division worker ever provided a copy of the psychologist's report to the counseling agency.

At the conclusion of the hearing of January 05, 2009, as is the Court's practice in such cases, the Court established a future hearing date. Mother's attorney caused the subpoena duces tecum to be issued to the Division worker on January 14, 2009. The Division filed a Motion to Quash Mother's subpoena on February 06, 2009, in which the Division set forth several arguments in support of the Division's position. Mother's attorney responded to the motion on February 09, 2009, opposing the motion, and also asking the Court to hold the Division's attorney in contempt and assess monetary sanctions against Petitioner's attorney.4 In response to Mother's request to hold Petitioner's counsel in contempt and assess sanctions, the Division filed a second pleading. It was in this second pleading that the Division set forth its best argument for granting the Division's Motion to Quash the subpoena duces tecum which had been issued to its Division worker.5

Arguments and Reasoning

The Division's Motion to Quash raised several arguments. The Division's attorney has already apologized to Mother's attorney for its suggestions that Mother's attorney had made no attempt to review the Division's file, and that if she had done so, the information would have been available to her. The Division's attorney has already also apologized for his assertion that Mother's attorney had allegedly advised

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him that she would never come to the Division's office to review a file for this matter or any other.

The Division also argued that the case of Law v. Developmental Child Care, Inc., 523 A.2d 557 (Del.Super.1987) prohibits the Division from releasing its records solely in response to a subpoena. Mother's attorney responded that the Law Court held that...

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