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International Child Custody Case | Columbus Family LawSeptember 15, 2015
In a recent Supreme Court decision regarding confidentiality of Children Services Records, the court held that a parent cannot view records of alleged child abuse investigation. As reported by Kathleen Maloney of the Supreme Court in the Case of State ex rel. Clough v. Franklin Cty. Children Servs., Slip Opinion No. 2015-Ohio-3425, the Ohio Supreme Court ruled that The records of a children’s services agency’s investigation of suspected child abuse are confidential and cannot be released to the child’s parent. The records related to a child abuse investigation by a children’s services agency are confidential, and the mother requesting the documents did not show good cause to override that confidentiality, the Ohio Supreme Court decided today in a case from Franklin County.
The per curiam decision denies the writ of mandamus requested by Stephanie Y. Clough to force Franklin County Children’s Services (FCCS) to give her access to agency files about the investigation of suspected abuse of Clough’s minor daughter.
Clough made verbal and written requests to FCCS in spring 2014 to review records about her daughter. After the agency denied her requests, Clough filed a complaint with the Ohio Supreme Court on July 3, 2014, asking for the writ.
She argued that an FCCS document spelling out the agency’s board policies allows her to access and review the content of case records about her and her children. Noting that an FCCS investigation of possible abuse of her daughter was found to be unsubstantiated, Clough stated she was later told the conclusion was going to be changed to “indicative of abuse.” She wanted to find out why the agency altered its decision.
The court noted in today’s opinion that the agency’s policy does give adults and children who are FCCS clients the right to examine their case records as long as that access is not barred by law. In seeking a writ of mandamus, Clough had to show the agency had a clear legal duty to provide the records. However, the court explained, a duty does not exist in a mandamus action unless the General Assembly has enacted it in statute. The court concluded that the FCCS internal board policy does not reflect a duty that has been created by the legislature.
In addition, the court reviewed whether public records law applied to the case. A children’s services investigatory record generated from a report of suspected child abuse is explicitly made confidential in state law. Kenneth J. Spicer, a retired judge from the Delaware County Common Pleas Court, conducted a private review of the requested materials for the Supreme Court and determined that, with possibly a few exceptions, the file contained investigatory records of a report of possible child abuse. Spicer stated the file showed that a suspected abuse report had been received, was investigated, and was closed after a decision that the allegations were unsubstantiated. The file indicates the parents were notified.
The court concluded that the bulk of these records fall under the state law making them confidential and therefore exempt from disclosure as a public record.
For the documents in the file that might not be confidential, the court explained that another statute, R.C. 5153.17, opens those records only to the agency, the director of job and family services for the state and for the relevant county, and other people given written permission by the children’s services agency’s executive director.
The executive director may provide access if the requester shows “good cause” by showing that disclosure is in the child’s best interest or that the requester’s due process rights are involved. The good cause must outweigh the reasons for confidentiality, the court pointed out.
“Clough’s argument in support of disclosure is that FCCS did not follow its own policies and procedures in denying her request,” the opinion stated. “This does not qualify as good cause. While her case is sympathetic, and she is no doubt concerned about the investigation of her daughter’s possible abuse, she has not alleged that the child is currently in any specific danger, that her due process rights are in jeopardy, or that there is any similarly compelling reason to depart from the statutory mandate of confidentiality.”