[Cite as Conrad v. Richland Cty. Children Servs.,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: JERRY CONRAD : W. Scott Gwin, P.J. : Sheila G. Farmer, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 2011 CA 124 : : RICHLAND COUNTY CHILDREN : OPINION SERVICES

Defendant-Appellant

CHARACTER OF PROCEEDING: Civil Appeal from Richland County Court of Common Pleas Case No. 2011 CV 0162

JUDGMENT: Affirmed In Part, Reversed In Part

DATE OF JUDGMENT ENTRY: August 22, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLARD E. BARTEL MARK LANDES GEOFFREY HICKEY MATTHEW S. TEETOR Miller, Stillman & Bartel Isaac, Brant, Ledman & The Hanna Building Teetor, LLP 1422 Euclid Avenue, Suite 800 250 East Broad Street, Suite 900 Cleveland, Ohio 44115 Columbus, Ohio 43215 [Cite as Conrad v. Richland Cty. Children Servs.,

.]

Edwards, J.

{¶1} Appellant, Richland County Children Services, appeals a judgment of the

Richland County Common Pleas Court ordering it to disclose documents to appellees

Jerry and Madison Conrad.

STATEMENT OF FACTS AND CASE

{¶2} On August 27, 2008, Madison Conrad, the four-year-old daughter of

appellee, Jerry Conrad, was a passenger in an automobile driven by her mother,

Christine Conrad. Christine’s car travelled left of center, crashing head-on into another

vehicle. The crash left Madison paralyzed from the waist down.

{¶3} Appellees brought the instant action, alleging that appellant had received

numerous warnings that Christine had a history of abusing drugs and/or alcohol while

caring for Madison and of operating a vehicle while under the influence with Madison as

a passenger. Appellees named appellant and the John/Jane Doe employees of

appellant as defendants in the action, alleging negligence and wanton, willful and

reckless misconduct. Appellees filed a request for documents, seeking records of all

complaints made against Christine related to the safety of Madison. Appellees also

sought to identify the employees involved in the investigation through the records in the

possession of appellant.

{¶4} Appellant refused to provide the requested documents, arguing they were

confidential pursuant to R.C. 2151.421, R.C. 5101.131 and R.C. 5153.17. Appellant

filed a motion for a protective order and a motion to dismiss. The trial court found

appellant to be immune from the instant suit, but found that appellees could maintain

their claim of recklessness against the John/Jane Doe defendants, employees of Richland County App. Case No. 2011 CA 124 3

appellant. The trial court also found that good cause as defined by the best interests of

Madison favored disclosure. The court ordered appellant to deliver the files to the

judge’s office on October 31, 2011. The court conducted an in camera inspection to

determine if the relevancy outweighed the confidentiality concerns. Following an in

camera inspection, the trial court determined that appellees were entitled to discovery of

documents relating to Christine Conrad and generated prior to the August 27, 2008,

accident. The court divided the material into three envelopes: documents previously

produced to appellees, documents discoverable by appellees, and documents not

discoverable by appellees. Appellant has appealed, assigning the following errors:

{¶5} “I. MR. CONRAD HAS FAILED TO ESTABLISH THAT HE FALLS UNDER

ANY OF THE ENUMERATED EXCEPTIONS OF R.C. § 5153.17 TO GENERAL

CONFIDENTIALITY PLACED ON THE DOCUMENTS HE SEEKS.

{¶6} “II. MR. CONRAD HAS FAILED TO ESTABLISH THAT HE QUALIFIES

UNDER THE ‘GOOD CAUSE’ EXCEPTION BASED ON THE CIRCUMSTANCES OF

THIS INSTANT ACTION.

{¶7} “III. MR. CONRAD’S DISCOVERY DEMANDS TO RCCS ARE NO

LONGER VALID UNDER THE OHIO RULES OF CIVIL PROCEDURE.

{¶8} “IV. THE CONFIDENTIALITY REQUIREMENTS OF R.C. § 5153.17 ARE

RENDERED MEANINGLESS IF THE TRIAL COURT’S DECISION IS AFFIRMED.”

I

{¶9} In its first assignment of error, appellant argues that requested documents

are confidential and appellees have failed to establish that they are entitled to discovery

of those documents under one of the statutorily-enumerated exceptions. Richland County App. Case No. 2011 CA 124 4

{¶10} R.C. 2151.421(H)(1) provides for confidentiality of certain documents:

{¶11} “(H)(1) Except as provided in divisions (H)(4) and (N) of this section, a

report made under this section is confidential. The information provided in a report

made pursuant to this section and the name of the person who made the report shall

not be released for use, and shall not be used, as evidence in any civil action or

proceeding brought against the person who made the report. Nothing in this division

shall preclude the use of reports of other incidents of known or suspected abuse or

neglect in a civil action or proceeding brought pursuant to division (M) of this section

against a person who is alleged to have violated division (A)(1) of this section, provided

that any information in a report that would identify the child who is the subject of the

report or the maker of the report, if the maker of the report is not the defendant or an

agent or employee of the defendant, has been redacted. In a criminal proceeding, the

report is admissible in evidence in accordance with the Rules of Evidence and is subject

to discovery in accordance with the Rules of Criminal Procedure.”

{¶12} However, R.C. 5153.17 allows disclosure of such documents under

certain circumstances:

{¶13} “The public children services agency shall prepare and keep written

records of investigations of families, children, and foster homes, and of the care,

training, and treatment afforded children, and shall prepare and keep such other records

as are required by the department of job and family services. Such records shall be

confidential, but, except as provided by division (B) of section 3107.17 of the Revised

Code, shall be open to inspection by the agency, the director of job and family services, Richland County App. Case No. 2011 CA 124 5

and the director of the county department of job and family services, and by other

persons upon the written permission of the executive director.”

{¶14} Appellant argues that the court erred in allowing discovery of the

requested documents upon a showing of good cause because there is no provision for

such an exception in the statute.

{¶15} This Court has recognized that the confidentiality promised by R.C.

5153.17 is not absolute. State v. Fuson, 5th Dist. No. 97CA000023,

(August 11, 1998), citing State, ex rel. Renfro v. Cuyahoga County Department of

Human Services,

,

(1990).

{¶16} In Johnson v. Johnson,

,

(1999),

the Third District Court of Appeals noted that while pursuant to R.C. 5153.17, a

children’s services agency has a duty to keep child abuse records confidential, this

confidentiality is not absolute.

. The court noted that pursuant to 1991 Ohio

Atty. Gen. Ops. No 91-003, access to such records will only be granted by the executive

secretary upon a showing of good cause, defined as when it is in the best interests of

the child or when the due process rights of other subjects of the record are implicated.

{¶17} The Johnson court went on to recognize that case law has established

several exceptions to the confidentiality requirements set forth in R.C. 2151.421(H)(1)

and R.C. 5153.17. The United States Supreme Court recognized that under certain

circumstances, records of a children’s services agency must be made available to the

court for in camera inspection when a criminal defendant’s right to a fair trial is at stake.

, citing Pennsylvania v. Ritchie,

,

,

Richland County App. Case No. 2011 CA 124 6

(1987). The Johnson court went on to cite our opinion in Fuson, supra, as well as the

11th District’s opinion in Davis v. Trumbull Cty. Children Serv. Bd.,

,

(1985) and the Ohio Supreme Court’s opinion in

to support the proposition that the confidentiality requirements are not absolute, and the

confidentiality requirements may be overridden by more compelling reasons favoring

disclosure, such as protecting the health and welfare of a child.

.

The court concluded:

{¶18} “For the aforementioned reasons, we find that a court may conduct an in

camera inspection of child-abuse records or reports and also has the inherent power to

order disclosure of such records or reports where (1) the records or reports are relevant

to the pending action, (2) good cause for such a request has been established by the

person seeking disclosure, and (3) where admission of the records or reports outweighs

the confidentiality considerations set forth in R.C. 5153.17 and R.C. 2151.421(H)(1).

‘Good cause’ is defined as that which is in the best interest of the child.”

.

{¶19} We agree with the reasoning of the Johnson court that case law has

carved out a “good cause” exception to the confidentiality requirements set forth in the

statute and the trial court did not err as a matter of law in applying this exception despite

the fact that it is not specifically set forth in the statute.

{¶20} The first assignment of error is overruled.

II

{¶21} Appellant argues that the court erred in finding that appellees established

good cause for disclosure of the requested documents. Richland County App. Case No. 2011 CA 124 7

{¶22} Appellant first argues that the court made no finding of good cause for

disclosure. This claim is without merit. The court specifically stated in its October 18,

2011, judgment entry, “‘Good cause’ as defined by the best interests of Madison Conrad

favors disclosure.”

{¶23} As to disclosure of the names of the persons making the reports, we find

appellees have not demonstrated good cause. Appellees’ interest in obtaining the

documents lies in determining when and how many reports were made to RCCS and

which employees of appellant were involved in the investigation of the complaints

concerning Christine Conrad and what actions they took or failed to take in regard to the

complaints they received. The names of the persons making the complaints are only

marginally relevant to appellees’ case. Strong public policy considerations favor the

confidentiality of the names of persons making reports of neglect or abuse of children,

and this case, at this point in time, has not produced justification to override those

considerations with regard to the names of the persons reporting concerns about

Christine Conrad’s care of Madison.

{¶24} However, the court did not err in determining that good cause favored

disclosure of the documents concerning the complaints made prior to the accident, if the

court, at this point in time, redacts the names of the persons making said complaints.

Madison was paralyzed from the waist down as a result of the accident and confined to

a wheelchair. She was only four years old at the time of the accident and faces a

lifetime of medical care and expenses as a result of the serious injuries she sustained in

the accident. The best interests of the child favor disclosure of the information in

appellant’s possession regarding the complaints appellant received against Christine Richland County App. Case No. 2011 CA 124 8

Conrad and how such complaints were handled to determine if, in fact, appellant’s

employees acted recklessly and are liable to appellees.

{¶25} The second assignment of error is sustained as to the information

concerning the names of the persons who made complaints against Christine Conrad.

As to all other information the trial court deemed discoverable, the assignment of error

is overruled.

III

{¶26} Appellant next argues that it is not subject to any discovery orders of the

court because it has been dismissed from the action.

{¶27} The trial court’s October 18, 2011, order specifically states, “While RCCS

is immune from plaintiff’s complaint, final judgment has not been entered for RCCS and

it is still subject to discovery orders.”

{¶28} The third assignment of error is overruled.

IV

{¶29} Appellant argues that the court’s judgment renders R.C. 5153.17 and R.C.

2151.421(H)(1) meaningless. We disagree. The court’s ruling is limited to the instant

case, where the appellees have made a showing of good cause for disclosure and the

court has conducted an in camera inspection to determine which documents should be

released in the best interests of the child and which should not be released. This

holding does not render such material discoverable in every case. A determination

must be made on a case by case basis.

{¶30} The fourth assignment of error is overruled. Richland County App. Case No. 2011 CA 124 9

{¶31} The judgment of the Richland County Common Pleas Court is reversed

only as to the disclosure of the identity of the persons who made complaints to appellant

concerning Christine Conrad. In all other respects, the judgment is affirmed. This

cause is remanded with instructions to redact the names of the complainants before

releasing the documents to appellees. Costs to appellant.

By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/r0607 [Cite as Conrad v. Richland Cty. Children Servs.,

.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JERRY CONRAD : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : RICHLAND COUNTY CHILDREN : SERVICES : : Defendant-Appellant : CASE NO. 2011 CA 124

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is reversed only as to the

disclosure of the identity of the persons who made complaints to appellant concerning

Christine Conrad. In all other respects, the judgment is affirmed. This cause is

remanded with instructions to redact the names of the complainants before releasing

the documents to appellees. Costs assessed to appellant.

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JUDGES