                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00058-CV




                IN RE: CHAD DUFFER




             Original Mandamus Proceeding




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Carter
                                         OPINION
       Chad Duffer has filed a petition for writ of mandamus urging that this Court order the

Fifth Judicial District Court to withdraw an order denying Duffer’s request to obtain discovery

from the Texas Department of Family and Protective Services (the Department) and to direct that

certain documents be produced. The underlying lawsuit is a wrongful death action which alleges

that Arron Conkleton, while detailing a vehicle belonging to Duffer, found a pistol in the vehicle

and accidentally shot and killed Semaj Williams. Williams’ mother, Tiffany Smith, filed suit

against Duffer and Conkleton.

       In 2008, Smith agreed with the Department to voluntarily place her son with his

grandmother. By means of a subpoena duces tecum, Duffer attempted to obtain confidential

documents from the Department to determine more specifically the basis for the relinquishment

of the child by Smith. Duffer argues that this information is critical in evaluating damages or, at

the very least, that it could lead to the discovery of essential information.

       The Department filed a motion for a protective order alleging that the information was

confidential and refused to produce the documents without first being ordered by the court. In

the absence of an order requiring production, the Department is required by statute to keep the

contents of such files confidential. TEX. FAM. CODE ANN. § 261.201 (West 2014). The trial

court conducted a hearing, reviewed the documents in camera, and concluded that the records

were not “essential” as that term is used by the Texas Family Code. See id. In denying the

production of the records, the court found that the records might, at most, lead to an ability to

impeach Smith on collateral issues and that they contained no direct allegations of neglect.
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       Production of these confidential documents is controlled by statute. The statute reads, in

relevant part, as follows:

              (b)      A court may order the disclosure of information that is confidential
       under this section 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;
                              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.

TEX. FAM. CODE ANN. § 261.201 (emphasis added).

       This Court has previously found no abuse of discretion when a trial court ordered

disclosure of such records. In re Agers, No. 06-10-00020-CV, 2010 WL 1780133 (Tex. App.—

Texarkana May 5, 2010, pet. denied) (mem. op.) (hospital sued by parents of newborn who

suffered brain injury sought Department’s records relating to parents in attempt to discover if

parents’ conduct caused or influenced medical condition that caused brain injury).

       In this review, we must determine whether the trial court abused its discretion by denying

the discovery request. The standard for production here is that the records are “essential to the

administration of justice”—not merely relevant.
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        The factors that should be considered in assessing damages for loss of companionship are

“(1) the relationship between . . . a parent and child; (2) the living arrangements of the parties;

(3) any absence of the deceased from the beneficiary for extended periods; [and] (4) the harmony

of family relations.” Moore v. Lillebo, 722 S.W.2d 683, 688 (Tex. 1986). Juries may award

wrongful death damages in “an amount proportionate to the injury resulting from the death.”

TEX. CIV. PRAC. & REM. CODE ANN. § 71.010(a) (West 2008).

        The Department Handbook states, among other things, that a parent may temporarily

place their child with a relative when Child Protective Services (CPS) has “determine[d] that the

child is not safe remaining in his or her own home.” Tex. Dep’t of Family and Protective Servs.,

Child     Protective      Services      Handbook        §     2431      (2013),      available      at

www.dfps.state.tx.us/handbooks/CPS/.       CPS may, therefore, utilize a parental-child safety

placement of the sort apparently involved here when a case worker identifies a safety threat in

the home, determines that a child is vulnerable to the threat, and determines that, although the

parent is unable to protect the child from the threat, the parent is willing to abide by a safety plan

and work to eliminate the identified threats. Id. at § 2431.4. A safety threat is defined as,

essentially, anything that presents an immediate danger of serious harm. Id. at § 2312.2.

        Duffer argues that, without the records, the trier of fact cannot assess the amount of time

they lived apart, their living arrangements after the date of the placement, and the “harmony” of

their relationship. See Moore, 722 S.W.2d at 688.

        Mandamus is an extraordinary remedy appropriate only when a trial court has “clearly

abuse[d] its discretion,” and the relator “lack[s] . . . an adequate appellate remedy.” Walker v.
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Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). When a trial court denies

discovery going to the heart of a party’s case, a trial on the merits is considered to be a waste of

judicial resources, and a relator has no adequate appellate remedy. Id. at 843. We review a trial

court’s decision to allow or disallow disclosure of otherwise confidential information pursuant to

the Texas Family Code for an abuse of discretion. See In re Fulgium, 150 S.W.3d 252, 255

(Tex. App.—Texarkana 2004, orig. proceeding) (pointing out discretionary nature of exception

allowing trial court to order disclosure); see also Mason v. Glickman, 408 S.W.3d 691, 693 (Tex.

App.—Dallas 2013, no pet.).

       We have reviewed the documents in question. Many of the records do not pertain to this

child and are irrelevant. Based on our independent review of the documents and in light of the

important considerations stated above, we cannot conclude that the sealed documents contain

information important to Duffer’s defense or to a jury’s determination of a proper level of

damages. We find that the trial court’s determination that disclosure of the information was not

essential to the administration of justice in this case was within the proper exercise of its

discretion.




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      We deny the petition for writ of mandamus.




                                         Jack Carter
                                         Justice

Date Submitted:     July 15, 2014
Date Decided:       July 16, 2014




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