Appeal by respondent mother from order dated 4 December 2001
by Judge Jeanie R. Houston in Wilkes County District Court. Heard
in the Court of Appeals 12 May 2003.
Peter Wood for respondent-appellant.
No brief filed for petitioner-appellee.
BRYANT, Judge.
Imogene Clayton (respondent) appeals from an order dated 4
December 2001 adjudicating Allen Robert Zachery Clayton (the
juvenile) as neglected and abused.
On 2 May 2001, a petition alleging that the juvenile was
neglected and abused was filed by the Wilkes County Department of
Social Services (DSS). On 30 May 2001, respondent submitted to DSS
a total of four interrogatories and requests for production of
documents asking DSS to provide: (1) names, addresses, and
telephone numbers of any persons DSS believed to have knowledge of
respondent's conduct or of the juvenile's condition; (2) names,
addresses, and telephone numbers of anyone who was believed to
possess documents or other items related to respondent's conduct or
the condition of the juvenile; (3) copies of documents in thecustody or control of DSS that tended to prove or disprove factual
issues in the case; and (4) copies of any of the juvenile's medical
records. After receiving no response from DSS, respondent filed a
motion to compel discovery on 2 July 2001. On 11 July 2001, DSS
filed a motion seeking a protective order and denial of the motion
to compel discovery. On that same day, DSS also submitted
objections to the interrogatories and requests for production on
grounds that “the information sought is confidential and cannot be
provided.”
The transcript from a 16 July 2001 hearing on the respective
motions indicates that the audio recording of the proceedings was
of very poor quality. All that survives of the trial court's
ruling on the motions is the following:
I imagine (inaudible), Mr. Freeman [attorney
for DSS], (inaudible) we had this happen one
time (inaudible) discovery in Yadkin County
one time with DSS and I (inaudible) to answer
[i]nterrogatories and discovery based on the
confidentiality of the record. And I don't --
my guess is the General Assembly intended if
anybody suffered from, for protecting the
child, and that's the only reason I could see
for, or that I had (inaudible). (inaudible)
disclose any evidence. And I'll agree that I
personally would (inaudible). And the person
who keeps the confidentiality of the children
and the medical professionals, the
psychiatrists and social workers and everybody
that they deal with could keep them protected
in a way, I guess. But like you said, nobody
would deal with them if they didn't so
(inaudible). Are we ready to proceed on this?
It appears from the record that the trial court denied the motion
to compel and allowed the protective order, as the adjudication
hearing began immediately afterwards without any discovery takingplace. The trial court recessed at the end of the day, and the
case was not resumed until 31 October 2001, more than three months
later, and was not concluded until 9 November 2001. Respondent's
motion to dismiss the petition, based on the lengthy delay, was
denied.
______________________________
The issues are whether: (I) the trial court abused its
discretion in denying respondent discovery without examining
documents
in camera or making findings of fact and (II) the delay
in the hearing resulted in an improper continuance.
I
The Rules of Civil Procedure generally govern juvenile
proceedings.
In re Bullabough, 89 N.C. App. 171, 179, 365 S.E.2d
642, 646 (1988);
see Thrift v. Buncombe County DSS, 137 N.C. App.
559, 562, 528 S.E.2d 394, 396 (2000); N.C.G.S. § 7A-193 (2001)
.
Rule 26 of the Rules of Civil Procedure allows for
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.
N.C.G.S. § 1A-1, Rule 26(b)(1) (2001). Under N.C. Gen. Stat. §
7B-700 of the Juvenile Code, however, a trial court may, “upon
written motion of a party and a finding of good cause . . . order
that discovery be denied, restricted, or deferred.” N.C.G.S.§ 7B-700(a) (2001). The trial court may also allow the moving
party to submit affidavits or statements for
in camera review.
N.C.G.S. § 7B-700(b) (2001). In this case, due to the trial
court's failure to conduct an
in camera review or make findings of
fact, these areas of concern become a focal point in our analysis
of this issue.
Under N.C. Gen. Stat. § 7B-2901(b), DSS is required to
maintain confidential records of juveniles under its custody or
under placement of the court, including: “family background
information; reports of social, medical, psychiatric, or
psychological information concerning a juvenile or the juvenile's
family; interviews with the juvenile's family; or other information
which the [trial] court finds should be protected.” N.C.G.S. §
7B-2901(b) (2001). These records may only be examined by a
guardian ad litem or the juvenile, unless the trial court orders
otherwise.
See id. When another party seeks to gain discovery of
records held under section 7B-2901, the trial judge is only
“required to order an
in camera inspection [of the records] and
make findings of fact concerning the evidence at issue . . . if
there is a possibility that such evidence might be
material . . .
and favorable to [that party].”
In re Greene, 152 N.C. App. 410,
420, 568 S.E.2d 634, 640 (2002) (citation omitted) (emphasis
added). A trial court's ruling on discovery matters is reviewed
for an abuse of discretion.
See Ritter v. Kimball, 67 N.C. App.
333, 335, 313 S.E.2d 1, 2 (1984).
In this case, respondent broadly requested the names andcontact information of anyone possessing knowledge or documents and
other items related to the juvenile's condition as well as other
records maintained by DSS. The requested records, however, fall
under the ambit of the confidentiality provisions of section
7B-2901(b),
see N.C.G.S. § 7B-2901(b), and are also similar to the
information this Court previously concluded was properly limited by
a protective order in
Ritter, 67 N.C. App. at 334-36, 313 S.E.2d at
1-3 (finding that the purpose of the confidentiality statute “to
encourage reporting of abuse and neglect, provided ample basis for
an exercise of judicial discretion to deny plaintiff access to
names of . . . persons making reports”). Furthermore, respondent
makes no contention that the requested records would otherwise be
material and favorable to her position. Under these facts, we
conclude the trial court was not required to conduct an
in camera
review or make findings of fact under either sections 7B-700(a) or
7B-2901(b). Although the better practice would be for the trial
court to review the documents and make findings supporting its
decision, failure to do so in this case did not constitute an abuse
of discretion. Thus, the trial court did not err in denying
respondent discovery.
II
Respondent also contends the petition should be dismissed as
the trial court improperly continued the case in the middle of the
hearing for over three months. The record, however, does not
reflect that an order of continuance under section 7B-803 was
entered in this case.
See N.C.G.S. § 7B-803 (2001). It insteadappears that the trial court simply adjourned court at the end of
the day on 16 July 2001 and, due to apparent scheduling conflicts
between the parties and the trial court, the hearing was not
resumed until 31 October 2001. Even assuming
arguendo that the
delay in the hearing was a continuance within the meaning of
section 7B-803, a trial court is permitted to continue a hearing,
for good cause “as long as reasonably required to receive
additional evidence.” N.C.G.S. § 7B-803;
see In re Mitchell, 148
N.C. App. 483, 486, 559 S.E.2d 237, 240,
rev'd on other grounds,
356 N.C. 288, 570 S.E.2d 212 (2002) (trial court may grant
continuance for as long as reasonably necessary to receive
additional information in the best interests of the juvenile). In
this case, the trial court had heard only a portion of all of the
evidence and none of respondent's evidence. In order to hear all
the evidence and provide for the proper administration of justice,
it was necessary for the trial court to resume the hearing at a
time when all the parties could be present. Accordingly, the trial
court did not err in denying respondent's motion to dismiss the
petition.
Affirmed.
Chief Judge EAGLES concurs.
Judge LEVINSON concurs in the result only.
Report per Rule 30(e).
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