DeBoer, J.
Case Summary
J.W. (Father) and T.W. (Mother) [collectively, Parents] appeal an order terminating their parental relationship with their child, A.W. (Child). They raise one dispositive issue: in a proceeding to terminate a parent-child relationship (TPR), whether the Indiana Department of Child Services (DCS) can refuse to answer a discovery request asking it to disclose the names and contact information of the child’s foster parents. We hold that if testimony from the foster parents would be admissible at the termination hearing—or if the foster parents have information that might lead to the discovery of admissible evidence—their names and contact information are discoverable under Indiana Trial Rule 26. Accordingly, DCS cannot refuse to provide that information under such circumstances without infringing on a parent’s entitlement under Indiana Code section 31-32-2-3(b)(2) “to obtain witnesses or tangible evidence by compulsory process[.]”
Here, Parents argue that by denying their motion to compel DCS to disclose the names and contact information of the numerous foster parents with whom Child was placed throughout these proceedings, the trial court “den[ied] [them] the opportunity to investigate, discover, identify, and call witnesses[.]” Mother’s Brief at 31. Because DCS should have been compelled to identify Child’s foster parents under the circumstances of this case, we reverse and remand for further proceedings.
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Here, DCS’s arguments on appeal regarding the relevance and admissibility of information from Child’s current and former foster parents demonstrate that Parents could have discovered admissible evidence from those individuals. In fact, DCS appears to agree with Parents that “Child’s mental health and general wellbeing [were] relevant pieces of information,” not only as of the date of the termination hearing but also “at any given time” throughout the CHINS and TPR proceedings. DCS’s Br. at 40, 41. It further concedes that “evidence about Child’s mental state, testified to by foster parents . . . was relevant to show how Child fared in the foster system and was also relevant to show what course of action DCS and the foster parents took when Child was in crisis[.]” Id. at 42 (emphasis added).
These arguments cannot be squared with DCS’s position that Parents had no right to conduct discovery to determine what information Child’s foster parents might be able to provide regarding Child’s mental state and wellbeing throughout the CHINS and TPR proceedings. Trial Rule 26 provides in no uncertain terms that a party may discover “the identity and location of persons having knowledge of any discoverable matter[,]” T.R. 26(B)(1), which in this case included Child’s numerous foster parents because they could have, as DCS explains, provided “testimony regarding Child’s mental state at various foster placements[.]” DCS’s Br. at 41. DCS therefore could not—without infringing on Parents’ right “to obtain witnesses or tangible evidence by compulsory process” under Indiana Code section 31-32-2-3(b)(2)—refuse to disclose the identity and location of Child’s foster parents.
The dissent contends that the “names and addresses” of Child’s foster placements “have no bearing on Child’s best interest” and “are simply not relevant.” Post at ¶ 44. But it is well-settled that “Indiana’s discovery rules are designed to permit ‘liberal discovery’ in order to provide the maximum amount of information possible to both parties as they prepare their cases and reduce the possibility of surprise at trial.” Minges v. State, 192 N.E.3d 893, 897 (Ind. 2022). Accordingly, a party refusing to identify certain persons under Trial Rule 26(B)(1) must demonstrate those persons “ha[ve] no possible relevance to the subject matter of the claim.” CIGNA-INA/Aetna v. Hagerman-Shambaugh, 473 N.E.2d 1033, 1036 (Ind. Ct. App. 1985) (“[R]elevancy for the purposes of discovery is not the same as relevancy at trial.”), reh’g denied, trans. denied. Here, DCS failed to prove as much regarding Child’s foster parents, particularly since it called two of them as witnesses at the termination hearing even after refusing to identify them in discovery. See infra Section 2(C).
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DCS contends that the Foster Parent Bill of Rights limits the scope of discovery in TPR proceedings. However, this is contrary to the general rule that “[p]arties may obtain discovery regarding any [relevant] matter, not privileged[.]” T.R. 26(B)(1) (emphasis added). DCS effectively argues that the Foster Parent Bill of Rights creates something akin to a privilege that shields foster parents’ information from discovery in TPR proceedings. According to DCS, “[t]here are sound policy reasons for this confidentiality” and “[i]f the foster parents’ information is disclosed to the biological parents, the biological parents could interfere with the safety and security of the foster family, which could disrupt the placement.” DCS’s Br. at 39.
While these policy considerations are well-taken, “a grant of privilege and the scope of that privilege are policy choices of the Legislature[,]” not the judiciary or administrative departments like DCS…
In any event, to the extent the Foster Parent Bill of Rights confers an enforceable confidentiality interest on foster parents, it does not promise unfettered confidentiality. Instead, it provides that “[f]oster parents have the right to . . .[h]ave information concerning the foster family kept confidential, except when release is required by law[.]”…
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An appropriately tailored protective order, rather than outright refusal to produce discoverable information, is the proper remedy when DCS raises legitimate concerns that “biological parents could interfere with the safety and security of [a] foster family[.]” DCS’s Br. at 39. This approach properly balances the rights of parents to compel testimony and tangible evidence pursuant to Indiana Code section 31-32-2-3(b)(2) with any interest foster parents may have to protect their information from disclosure.
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In fact, DCS’s fluid position as to the relevance and admissibility of information from Child’s foster placements resulted in a fundamentally unfair presentation of evidence. When Parents sought to compel DCS to disclose the names and contact information of those placements so that they could investigate whether any of Child’s foster parents could provide relevant testimony or evidence, DCS took the position that Parents’ request was “wholly irrelevant[.]” Mother’s App. Vol. 2 at 111. But DCS asserted the contrary position when it decided to present testimony from two of Child’s foster placements at the termination hearing and in defending the trial court’s overruling of Parents’ objections to that testimony on appeal. See DCS’s Br. at 41 (“[T]he trial court [] did not abuse its discretion when it allowed testimony regarding Child’s mental state at various foster placements because [her] general condition [was] relevant . . . , and her wellbeing at any given time [was] relevant to the actions DCS and the foster families took at various instances[.]”)
In light of these considerations, DCS’s conduct in this case created a significant risk of error, in that Parents were foreclosed from pursuing pre-trial discovery that could have led to testimony or other evidence from Child’s foster parents that Parents would have been entitled to present at the termination hearing pursuant to Indiana Code section 31-32-2-3(b)(2). See G.P., 4 N.E.3d 1158, 1166 (Ind. 2014) (explaining the balance struck by the Mathews factors “must provide ‘the opportunity to be heard . . . in a meaningful manner.’” (quoting Mathews, 424 U.S. at 333)). We agree with Mother that “absent a reversal, we will never know what additional information could have been presented by [Parents] in defense of their parental rights.” Mother’s Br. at 28. Given the precious and fundamental nature of these rights, the risk of error here warrants reversal. See In re E.P., 653 N.E.2d 1026, 1032 (Ind. Ct. App. 1995) (recognizing that in “a termination proceeding, . . . an erroneous result obviously would be disastrous”) (emphasis added).
Conclusion
For the foregoing reasons, Parents’ due process rights were violated by the trial court’s failure to compel DCS to disclose the names and contact information of Child’s foster parents because that information could have led to the discovery of admissible evidence Parents would have been entitled to present pursuant to Indiana Code section 31-32-2-3(b)(2). As such, we reverse and remand for further proceedings consistent with this opinion. [Footnote omitted.]
Reversed and remanded.
Weissmann, J., concurs.
Bradford, J., dissents with separate opinion.
Bradford, dissenting.
Because I believe that the discovery sought by Parents is simply not relevant to the determination of whether their parental rights to Child should be terminated, I respectfully dissent.
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Again, Parents did not challenge any of the above-quoted factual findings, which we accept as true. See Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind. Ct. App. 2020) (providing that unchallenged findings must be accepted as true), trans. denied. The findings clearly demonstrate that Parents had failed to remedy the reasons for Child’s removal from their care and that termination of Parents’ parental rights is in Child’s best interests. As such, I vote to affirm the judgment of the juvenile court.