Kinder v. Doe
| Decision Date | 28 June 1989 |
| Docket Number | No. 47A04-8802-CV-00054,47A04-8802-CV-00054 |
| Parties | Jeff KINDER and Marge Kinder, Appellants (Defendants), v. John DOE and/or Jane Doe, Appellees (Defendants). |
| Court | Indiana Appellate Court |
Karon E. Perkins, Dalmbert, Marshall & Perkins, Columbus, for appellants.
Linley E. Pearson, Atty. Gen., Gordon E. White, Jr., Deputy Atty. Gen., Indianapolis, for appellee Lawrence County Dept. of Public Welfare.
On June 5, 1987 Jeff and Marge Kinder brought an action against John and/or Jane Doe alleging the defendant(s) had maliciously made false statements in a letter to the Lawrence County Department of Public Welfare (Welfare) which caused Welfare to investigate them for possible child abuse and to initiate a CHINS proceeding which was later dismissed. The Kinders bring this interlocutory appeal alleging the trial court erred in denying their Motion to Compel Production of Documents and Records to a Non-Party. The request for production was directed to Welfare and requested the original letter which precipitated the investigation.
We restate the issue as follows: whether the trial court abused its discretion in denying the motion to compel, and improperly interpreted IND.CODE Secs. 31-6-11-7 and 31-6-11-18, 1 which address immunity from We conclude the trial court properly interpreted the statute, however because this is a case of first impression we remand with instructions to hold an evidentiary hearing to allow the Kinders to present evidence to rebut the presumption the author of the letter acted in good faith.
civil liability for persons who report child abuse or neglect, and the confidentiality of such reports.
The Kinders are the parents of two minor children. A person whose identity is unknown to the Kinders sent a letter to Welfare which apparently contained allegations of child abuse or neglect against the Kinders. As a result of the letter, Welfare initiated an investigation of the Kinders and filed a CHINS petition with the Lawrence County Juvenile Court. The CHINS petition was dismissed with no action being taken against the Kinders. 2 The Kinders asked Welfare to refer the matter to the prosecutor for possible action on the allegedly false report. The record is unclear but it appears the prosecutor chose not to pursue the matter.
The Kinders filed suit against the person who sent the letter designating the defendant as John and/or Jane Doe, then sought to determine the identity of the party through discovery, by a request to Welfare for production of the letter. Welfare filed an Affidavit in Opposition to Motion for Production, in which it alleged Welfare was prohibited by statute from releasing the requested document. 3 The Kinders filed a motion to compel. After hearing argument on the motion, the trial court denied the motion as follows:
1/21/88 The Court having had the Plaintiff's Motion to Compel the Welfare Department to divulge the identity of an Informant under advisement, the Court now denies the Plaintiff's Motion to Compel.
In support of the Court's finding that said Motion to Compel should be denied, the Court notes that the statute that provides for information regarding the abuse or neglect of minor children provides that such persons giving information to the Welfare Department shall remain anonymous; that their identity only has to be divulged if it becomes apparent that such reporting is in bad faith.
Because the Plaintiff is the moving party requesting that Welfare Department be compelled to deliver that information to it, the burden of proving that the information given to the Welfare Department was given in bad faith must therefore fall on the Plaintiff.
Plaintiff could arguably call Welfare Department officials to testify as to why after there was a finding of probable cause to believe that the children were children in need of services they made the decision to dismiss the original petition to find the children in need of services.
Plaintiff has the burden of making at least a prima facie showing that the information received by the Welfare was given to the Welfare Department in bad faith before the Court will grant any motion to compel the disclosure of the identity of the complainants.
The Kinders assert the trial court improperly construed IND.CODE Sec. 31-6-11-7, which provides:
A person, other than a person accused of child abuse or neglect, who:
(1) makes or causes to be made a report of a child who may be a victim of child abuse or neglect;
* * * * * *
is immune from any civil or criminal liability that might otherwise be imposed because of such actions. However, immunity does not attach for any person who has acted maliciously or in bad faith. A person making a report that a child may be a victim of child abuse or neglect or assisting in any requirement of this chapter is presumed to have acted in good faith.
IND.CODE Sec. 31-6-11-18 provides that reports of child abuse or neglect shall be confidential and reads in pertinent part:
(a) Reports made under this chapter and any other information obtained, reports written, or photographs taken concerning such reports in the possession of the department, the county department of public welfare, or the local child protection service are confidential and shall be made available only to those persons authorized by this chapter and to:
* * * * * *
(7) a parent, guardian, custodian, or other person responsible for the welfare of a child named in a report or record with protection for the identity of reporters and other appropriate individuals.
(8) a court, upon its finding access to the records may be necessary for a determination of an issue before the court, but access is limited to in camera inspection, unless the court determines that public disclosure of the information contained in the records is necessary for the resolution of an issue pending before it.
The Kinders cite Sturgill v. State (1986), Ind.App., 497 N.E.2d 1070 for the proposition I.C. 31-6-11-18 is not a bar to the release of information in a report made to the welfare department. In Sturgill, the defendant was charged with molesting his stepdaughter, T.S. T.S. reported the molestation to the county welfare department and testified at trial. The defendant sought discovery of T.S.'s statement to the welfare department. The trial court denied the defendant's motion to compel production of the statements. This court on appeal held the statute was unconstitutional as applied to the facts of the case and the trial court abused its discretion in denying the motion. The court noted: "the defendant's interest in discovery must be balanced against the state's interest in non-disclosure." Id. at 1072. The court further noted one of the factors weighing against non-disclosure was the fact T.S. had testified and therefore there was no need to protect her identity. Sturgill is not dispositive of this case. Constitutional considerations of due process clearly tipped the balance in favor of Sturgill. In addition, the identity of the reporter...
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