Division of Family Services v. H.S.
| Decision Date | 09 June 2009 |
| Docket Number | No. CS08-03931.,No. CS08-03926.,CS08-03931.,CS08-03926. |
| Citation | 981 A.2d 564 |
| Parties | DIVISION OF FAMILY SERVICES, Petitioner, v. H.S., K.B., D.T., M.H., and A.P., Respondents. |
| Court | Delaware Family Court |
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.
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.
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.
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 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, the Court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including the attorney's fees, unless the Court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.2
Mr. S. filed a Request for Production of Documents on May 6, 2009, asking that DFS produce four categories of documents:
(1) Any and all placement information regarding my client's two minor children and anyone who they have been placed with by the Division of Family Services in the past two or three years;
(2) Any information regarding contacts with Mr. S. to the Division of Family Services;
(3) Any efforts that the Division of Family Services has made to contact Mr. S. including but not limited to arranging for visitation or developing case plans;
(4) Any documents of any efforts that the Division of Family Services made to prevent the children from coming into custody including but not limited to contacting any and all available relatives.3
DFS, on May 15, 2009, answered each of Mr. S.'s specific requests with the same objection. DFS argued that each request violated Rule 34(b) in that it did not sufficiently describe each item or category with reasonable particularity, nor did it set forth items to be inspected by category or by individual item. The Court is satisfied that this argument is without merit. In Mr. S.'s Motion to Compel, filed May 19, 2009, Mr. S. responded that his requests are stated with sufficient specificity to put DFS on notice of exactly what kind of information Mr. S. is seeking. The Court agrees.
DFS also argued in its Answer to Request for Production that the requests did not specify a reasonable time, place, and manner of inspection, in violation of Rule 34(b). This argument is also without merit. The Request for Production states, "Ashley M. Oland, Esquire [counsel for Mr. S.] hereby requests that the Division of Family Services produce those items set forth herein to the Office of Edward P. Gill, PA. at 16 North Bedford Street, P.O. Box 824, Georgetown, Delaware 19947, on or before the 15th day after this Request for Production is served."4 The Court finds that this paragraph meets the requirements of Rule 34(b). From this language, a reasonable person would deduce that he or she should produce the documents in question to the address provided on or before May 26, 2009.5
In addition to these two objections, which were raised in response to each of Mr. S.'s requests, DFS also raised a third objection to some of Mr. S.'s requests, each tailored to respond directly to each individual request. In response to Mr. S.'s first request, for information regarding the placement of his children, DFS argues that confidentiality rules protect the privacy of foster parents. While DFS did not cite any support for this assertion, the Court understands that it is the policy of DFS not to divulge the names or addresses of foster parents. The Court agrees with this policy and therefore sustains Respondent's objection. However, if Mr. S. wishes to know other information about the placement of his children, such as where they have been attending school, their educational progress, or information about the status of their health while they have been in placement, he is entitled to such information, as long as the names and addresses of any and all foster parents remain private.
In response to Mr. S.'s third request, for information regarding what efforts DFS has made to contact Mr. S., particularly regarding the arrangement of visitation or the development of a case plan, DFS argues that this information is irrelevant. This objection is overruled. Family Court Civil Procedure Rule 34 allows a party in an action to request that another party produce "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."6 Rule 26(g) states,
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the...
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