                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                              NOS. 2-09-341-CV
                                   2-09-343-CV


S.C.S. AND K.J.S.                                                 APPELLANTS
                                        V.

TEXAS DEPARTMENT OF FAMILY AND                                        APPELLEE
PROTECTIVE SERVICES

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           FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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I. INTRODUCTION

      Appellants K.J.S. and S.C.S.2 appeal from the trial court’s denial of their

motions for disclosure of information from Child Protective Services (CPS)




      1
          … See Tex. R. App. P. 47.4.
      2
         … Because minors are involved in this appeal, we identify all parties by
initials only. See Tex. Fam. Code Ann. § 109.002(d) (Vernon 2008).
records.3 Appellants contend the trial court erred in finding that the disclosure

of the CPS records is not essential to the administration of justice. We will

affirm.




      3
        … The Texas Public Information Act (“TPIA”) requires public disclosure
of government documents and information upon request, with exceptions. Tex.
Gov’t Code Ann. §§ 552.101–.106 (Vernon 2004), §§ .107–.108 (Vernon
Supp. 2009), §§ .109–.115 (Vernon 2004), §§ .116–.1176 (Vernon Supp.
2009), § .118 (Vernon 2004), § .119 (Vernon Supp. 2009), §§ .120–.131
(Vernon 2004), § .132 (Vernon Supp. 2009), §§ .1325–.136 (Vernon 2004),
§§ .137–.142 (Vernon Supp. 2009), §§ 552.021, 552.221 (Vernon 2004). A
person seeking such documents and information may file suit for a writ of
mandamus or an action for a declaratory judgment against a governmental body
for violating the TPIA. Tex. Gov’t Code Ann. §§ 552.321, 552.3215 (Vernon
2004).
       Section 261.201 of the Texas Family Code excludes CPS documents and
information relating to an investigation of child abuse or neglect from public
release under the TPIA. Tex. Fam. Code § 261.201(a) (Vernon Supp. 2009).
This section establishes a specific procedure by which such documents and
information may be disclosed upon motion and specific findings by a trial court.
See Tex. Fam. Code § 261.201(b) (Vernon Supp. 2009). We find that, in this
case, this procedure was followed, and the trial court had jurisdiction to order
whether the confidential CPS documents and information Appellants requested
should, or should not, be disclosed.
       In addition, an order which purports to dispose of all issues and all parties
is a final appealable order. State v. Owens, 907 S.W.2d 484, 485 (Tex.
1995); Normand v. Fox, 940 S.W.2d 401, 403 (Tex. App.—Waco 1997, no
writ); Jobe v. Lapidus, 874 S.W.2d 764, 765 (Tex. App.—Dallas 1994, writ
denied). In a final judgment, no further action by the trial court will be
necessary to settle and determine the entire controversy. Normand, 940
S.W.2d at 403; Retana v. Tanner, 869 S.W.2d 669, 670 (Tex. App.—San
Antonio 1994, no writ). Here, the trial court’s August 5, 2009 orders denying
Appellants’ motions appear to be final. Thus, we conclude that we have
jurisdiction to consider this appeal. See Tex. Gov’t Code Ann. § 22.220
(Vernon Supp. 2009) (delineating the jurisdiction of appellate courts).

                                         2
II. BACKGROUND

      On June 17, 2009, K.J.S., a self-employed family physician, and his

fiancée, S.C.S., a self-employed, board-certified nurse practitioner, filed

separate motions for disclosure of information from a CPS investigation

conducted shortly after K.J.S. refused his former mother-in-law’s request to

shorten his 2008 Christmas visitation with his four-year-old daughter. The CPS

investigation concerned allegations of sexual abuse of K.J.S.’s daughter and

S.C.S.’s five-year-old son by Appellants, as well as allegations that S.C.S.

negligently supervised her son.4 CPS determined the allegations of abuse and

negligent supervision by Appellants to be “ruled out.”

      CPS also conducted an investigation of Appellants in Carter County,

Oklahoma,5 in which the allegations were “ruled out.”       Both investigations

occurred during K.J.S.’s extended visitations with his daughter.

      At the July 29, 2009 hearing, Appellants testified that they sought the

release of confidential information to determine whether criminal action, civil

action, or both should be taken against the person making these “false reports.”

Both testified that if the allegations became public, it would damage their


      4
       … Appellants lived together at the time of the allegations and the CPS
investigation.
      5
       … Although the record is unclear, we assume that the Oklahoma child
welfare authorities conducted this investigation.

                                       3
medical practices.      Appellants also stated they believed the release of the

information was essential to the administration of justice and was not likely to

endanger anyone involved.

      Following the hearing, the trial court conducted an in camera review of

the CPS records and denied both motions. The trial court’s findings of fact and

conclusions of law included the following:

      3. Disclosure of the report and the identity of the person making
      report is not essential to the administration of justice. 6
      4. Disclosure would not be likely to endanger the life or safety of
      the children, the person who made the report, or any other person
      participating in the investigation.
      5. Disclosure would tend to stifle reports in the future in this case.

Appellants timely filed a notice of appeal.

III. DISCUSSION

      In two points, Appellants contend that the trial court (1) erred by not

finding the disclosure of CPS records essential to the administration of justice

and, thereby, (2) abused its discretion by denying their motions.

      A. Standard of Review

      To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or



      6
          … This statement also appears as the trial court’s sole conclusion of law.

                                          4
unreasonable.   Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v.

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot

conclude that a trial court abused its discretion merely because the appellate

court would have ruled differently in the same circumstances. E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,

221 S.W.3d at 620. An abuse of discretion does not occur when the trial court

bases its decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366

(Tex. 1998) (orig. proceeding). Furthermore, an abuse of discretion does not

occur as long as some evidence of substantive and probative character exists

to support the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d

198, 211 (Tex. 2002).

      B. Trial Courts Have Limited Discretion to Order Disclosure of Records

of Alleged Child Abuse or Neglect

      Section 261.201(a) of the Texas Family Code designates the following

information as confidential:

      (1) a report of alleged or suspected abuse or neglect made under
      this chapter and the identity of the person making the report; and
      (2) except as otherwise provided in this section, the files, reports,
      records, communications, audiotapes, videotapes, and working
      papers used or developed in an investigation [of alleged abuse or
      neglect].

Tex. Fam. Code. Ann. § 261.201(a).



                                       5
      Section 261.201(b) of the Texas Family Code provides that a court may

order the disclosure of confidential information if:

      (1) a motion has been filed with the court requesting the release of
             the information;
      (2) a notice of hearing has been served on the investigating agency
             and all other interested parties; and
      (3) after hearing and an in camera review of the requested
             information, the court determines that the disclosure of the
             requested information is:
             (A) essential to the administration of justice; 7 and
             (B) not likely to endanger the life or safety of:
                   (i) a child who is the subject of the report of alleged or
                           suspected abuse or neglect;
                   (ii) a person who makes a report of alleged or
                           suspected abuse or neglect; or
                   (iii) any other person who participates in an
                           investigation of reported abuse or neglect or who
                           provides care for the child. 8

Tex. Fam. Code Ann. § 261.201(b).

      The exception allowing the trial court to disclose confidential information

under section 261.201 is discretionary. In re Fulgium, 150 S.W.3d 252, 253

(Tex. App.—Texarkana 2004, orig. proceeding).          The word “may” creates



      7
          … This term is not defined by statute.
      8
       … Section 261.201(b) also requires that a motion is filed with the court
requesting the release of the information and that a notice of hearing is served
on the investigating agency and all other interested parties. Here, the parties
do not dispute that a motion was filed seeking the release of the CPS records,
that a proper notice was given to the investigating agency and all interested
parties, and that a hearing was held to determine whether or not, and to what
extent, the CPS records should be disclosed.

                                         6
discretionary authority. Tex. Gov’t Code Ann. § 311.016 (Vernon 2005). If

a hearing determines that the disclosure of the information is essential to the

administration of justice and there is no danger to the child or another person,

a court may order the disclosure at its discretion. Fulgium, 150 S.W.3d at

255.

       C. Trial Court Did Not Abuse Its Discretion

       Appellants contend that the trial court erred in finding that the disclosure

of the report and the identity of the person making the report is not essential

to the administration of justice. Specifically, Appellants contend that disclosure

is essential to determine if civil or criminal action should be taken against the

person who made these “false reports.” However, Appellants point us to no

case law or statute providing that dismissed or “ruled out” complaints of child

abuse are automatically deemed false and without merit. Plus, the family code

merely requires that suspected, not confirmed, child abuse be reported. See

Tex. Fam. Code Ann. § 261.101(a) (Vernon 2008) (“A person having cause to

believe that a child’s physical or mental health or welfare has been adversely

affected by abuse or neglect by any person shall immediately make a report as

provided by this subchapter.”).




                                         7
      Citing Frost v. State, 9 Appellants argue that this information should be

disclosed because this is a false report, making a false report is a crime, and

“CPS does not want to be used as a tool for false and vindictive actions.” 2

S.W.3d 625, 631 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). In Frost,

CPS conducted a thorough investigation, CPS concluded no basis for the report

existed, and a jury convicted appellant of making a false report. Id. at 626,

628. However, neither Frost nor the record supports Appellants’ contention

that this case involves a false report. CPS conducted an investigation and,

unlike in Frost, evidently determined that a basis for the report existed because

the record is devoid of evidence of pending criminal prosecution. Agreeing with

Appellants that CPS’s “resources are limited and they do not need or want to

spend their resources on false allegations,” we further note that the aggrieved

agency, CPS, saw no need to prosecute in this instance.

      Confidentiality is central to the family code provisions governing the

reporting of child abuse, and the State has a compelling interest in protecting

the confidentiality of information used or obtained in an investigation of alleged

or suspected child abuse. Doe v. Tarrant County Dist. Attorney’s Office, 269




      9
       … We note that Appellant’s reliance on this case is questionable because
Frost does not even mention the release of confidential information under family
code section 261.201.

                                        8
S.W.3d 147, 155 (Tex. App.—Fort Worth 2008, no pet.); see Pennsylvania v.

Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 1001 (1987) (describing compelling

interest in protecting child-abuse information).

      After holding a hearing and conducting an in camera review of the

confidential information, as required by section 261.201(b) of the Texas Family

Code, the trial court made a finding of fact that “[d]isclosure of the report and

the identity of the person making the report is not essential to the

administration of justice.”   Tex. Fam. Code Ann. § 261.201(b)(3) (Vernon

Supp. 2009). Having reviewed the briefs, the record, and the materials from

the CPS investigation, we find that the trial court could have reasonably

determined that the disclosure of the CPS records was not essential to the

administration of justice. With the required due deference to the trial court’s

findings of fact and conclusions of law, as well as the restrictions on the

disclosure of the confidential information contained in the CPS records, we

decline to cite specific facts and find that the trial court did not err in

determining that the disclosure of the information is not essential to the

administration of justice.

      Because we find no error in the trial court’s disclosure determination, we

cannot say that the trial court abused its discretion in denying Appellants’




                                       9
motion for disclosure of the CPS records under section 261.201 of the Texas

Family Code. Thus, we overrule Appellants’ two points.

IV. CONCLUSION

     Having overruled Appellants’ two points, we affirm the trial court’s

judgment.




                                         ANNE GARDNER
                                         JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

WALKER, J. concurs without opinion.

DELIVERED: July 22, 2010




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