981 A.2d 564 (Del.Fam.Ct. 2009), CS08-03931, Division of Family Services v. H.S.

Docket Nº:CS08-03931, CS08-03926.
Citation:981 A.2d 564
Opinion Judge:HENRIKSEN, J.
Party Name:DIVISION OF FAMILY SERVICES, Petitioner, v. H.S., K.B., D.T., M.H., and A.P., Respondents.
Attorney:Kathryn L. Welch, Esquire, Deputy Attorney General, Georgetown, DE, Attorney for the Petitioner. Ashley M. Oland, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for H.S.; Patricia M. O'Neill, Esquire, Law Office of Patricia M. O'Neill, Georgetown, DE, Attorney for K.B.; D.T...
Case Date:June 09, 2009
Court:Family Court of Delaware
 
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Page 564

981 A.2d 564 (Del.Fam.Ct. 2009)

DIVISION OF FAMILY SERVICES, Petitioner,

v.

H.S., K.B., D.T., M.H., and A.P., Respondents.

Nos. CS08-03931, CS08-03926.

Family Court of Delaware, Sussex.

June 9, 2009

Submitted: May 29, 2009.

Page 565

Kathryn L. Welch, Esquire, Deputy Attorney General, Georgetown, DE, Attorney for the Petitioner.

Ashley M. Oland, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for H.S.; Patricia M. O'Neill, Esquire, Law Office of Patricia M. O'Neill, Georgetown, DE, Attorney for K.B.; D.T., Pro Se, Georgetown, DE; M.H., Pro Se, Georgetown, DE; A.P., Pro Se, Georgetown, DE.

OPINION

HENRIKSEN, J.

Pending before the Court is a Motion to Compel, filed by H.S. (" Mr. S." ) on May 19, 2009 against the Division of Family Services (" DFS" ). DFS filed an Answer opposing Mr. S.'s Motion on May 29, 2009. No hearing was held on this matter.

Background

E.B., J.B., and T.B. were all taken in to care by Emergency Order of this Court on December 16, 2008. K.B. is the mother of all of the children involved in this case. H.S. is the father of E.B. and J.B. and, to the best of the Court's knowledge, is currently incarcerated at the Sussex County Work Release Center. D.T., who is believed to be a registered sex offender for an offense which allegedly occurred in Delaware, is T.B.'s father. He had previously been incarcerated in Alabama, but the Court learned that he had been released when the Court phoned the prison to arrange for D.T.'s participation in the Dispositional hearing on May 18, 2009.

L.O. came into DFS emergency care on March 31, 2009. L.O.'s father is L.S.O.

M.H. is the children's maternal grandmother, who is petitioning for guardianship. A.P., along with her husband, A.P., is a maternal aunt and also a guardianship petitioner.

The parties last appeared in court on May 18, 2009, for the beginning of the Dispositional Hearing, which will continue on June 15, 2009. On May 18, the Court was able to review the status of Mother's case plan and heard testimony regarding J.B.'s poor progress in school, neither of which is relevant for the purposes of this Order. At this point, Mr. S. does not have a case plan. He has stated to the Court that he will be requesting a case plan from DFS once he is released from incarceration.

Legal Standard

Family Court Civil Procedure Rule 34 addresses a party's ability to conduct discovery by requesting that the opposing party produce documents or other relevant items. Rule 34 states, in relevant part:

(a) Scope.-Any party may serve on any other party (1) to produce and permit the party making the request, or someone acting on that party's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs ... [telephone records] and

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other data compilations from which information can be obtained ... by the respondent ...) or to inspect and copy, test or sample any tangible things which constitute or contain matters within the scope of Rule 26(g) and which are in the possession, custody or control of the party upon whom the request is served.

(b) Procedure.-The request shall set forth the items to be inspected either by individual item or category, and describe each item or category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts ... The party upon whom the request is served shall serve a written response within 30 days after service of the request ... The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated ... The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.1

Family Court Civil Procedure Rule 37 addresses failure to comply with the discovery process, the award of sanctions, and failure or neglect to file discovery material. Rule 37 states, in relevant part:

(2) Motion.-If ... a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for ... an order compelling inspection in accordance with the request.

(4) Expenses and sanctions.-(A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed...

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