Opinion
FILE NO.: CN11-01822 FILE NO.: 17-12-07TN CPI NO.: 15-38741 CPI NO.: 17-37543
04-18-2018
DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES, Petitioner v. C-------- W-------, R----- J W------, SR Respondents. In the Interest of: R----- W------, Jr. (M) (DOB 01/25/07)
Wendy Danner, Esquire, Department of Justice, Wilmington, Delaware for Petition, Division of Family Services David Holloway, Esquire, Holloway Law, Wilmington, Delaware for Respondent, C-------- W------- Antoinette Hubbard, Esquire, Maron Marvel Bradley Anderson & Tardy LLC, Wilmington, Delaware as Guardian ad litem for Child, R----- W------, Jr.
DECISION ON PETITION FOR TERMINATION OF PARENTAL RIGHTS Before the HONORABLE ROBERT BURTON COONIN, JUDGE of the Family Court of the State of Delaware: Petition for Termination of Parental Rights is DENIED as to C-------- W------- and R----- J. W------. Wendy Danner, Esquire, Department of Justice, Wilmington, Delaware for Petition, Division of Family Services David Holloway, Esquire, Holloway Law, Wilmington, Delaware for Respondent, C-------- W------- Antoinette Hubbard, Esquire, Maron Marvel Bradley Anderson & Tardy LLC, Wilmington, Delaware as Guardian ad litem for Child, R----- W------, Jr. Coonin, J.
NATURE OF THE PROCEEDINGS
This is the decision on the Petition for Termination and Transfer of Parental Rights filed by the Department of Services for Children, Youth and Their Families/Division of Family Services (hereinafter "DSCYF/DFS") against C-------- W------- (hereinafter "Mother") and R----- J. W------, Sr. (hereinafter "Father") regarding R----- W------, Jr. born January 25, 2007 (hereinafter "Child").
DSCYF/DFS seeks to terminate the parental rights of Mother in Child under 13 Del. C. § 1103(a)(5) on the grounds of "failure to plan" as she has been unable to or has failed to plan adequately for Child's physical needs or mental health and development. DSCYF/DFS seeks to terminate the parental rights of Father in Child under 13 Del. C. § 1103(a)(5) on the grounds of "failure to plan" as he has been unable to or has failed to plan adequately for Child's physical needs or mental health and development.
The hearing on the Petition for Termination and Transfer of Parental Rights was held on March 6, 2018. Mother was present and represented by David Holloway, Esquire; Antoinette Hubbard, Esquire served as the Guardian ad litem for Child; and, Wendy Danner, Esquire, served as the Deputy Attorney General for DSCYF/DFS. Testimony was taken from DSCYF/DFS treatment worker Berlinetta Wright, Mother, Devereux Advanced Behavioral Health (hereinafter "Devereux") social service coordinator Kristin Lanza, and Devereux clinician Lisa Smith.
PROCEDURAL HISTORY
According to the Dependency/Neglect Petition and Motion for Emergency Ex Parte Order filed by DSCYF/DFS on December 23, 2015, the Division requested custody of Child and two of his siblings by different fathers with regard to the herein case due to, inter alia, a history of allegations of physical abuse against Child and his half-siblings where Mother's paramour J--- R---- was the alleged perpetrator, and Mother's denial that any such physical abuse had occurred. The Court, through the Honorable Aida Waserstein, granted the Motion for Emergency Ex Parte Order on December 23, 2015 as to all three children and scheduled a Preliminary Protective Hearing for December 30, 2015. The Court appointed Paul Bradley, Esquire as Guardian ad litem for Child on January 5, 2016 and David Facciolo, Esquire as counsel for Mother on January 12, 2016.
At the Preliminary Protective Hearing held on December 30, 2015 presided over by the Honorable Arlene Coppadge, Mother attended but Father did not. The Court found probable cause to believe Child was dependent and that it was in his best interest to remain in the custody of DSCYF/DFS due to, inter alia, Mother's inability to protect Child from physical abuse and her failure to follow through with DSCYF/DFS recommendations, and Father's parents' disclosure that Father had just completed rehab. The Court also found that Child suffers from autism and that Child displays severe anger, aggression and possible ADHD. Child was initially placed in a DSCYF/DFS foster home but was removed after multiple physical outbursts. At the time of the hearing, Child resided at Christiana Hospital due to Child's assigned foster parents' refusal to take placement of Child until his mental health and aggression had been evaluated and Child was placed on medication to address these issues. The Court also ordered that DSCYF/DFS retain custody of two of Child's half-siblings.
At the Adjudicatory Hearing scheduled for January 29, 2016, both Mother and Father participated and Father requested the appointment of counsel. The Court recessed the hearing after, inter alia, finding that Father was eligible for a Court-appointed attorney. The Court appointed George Tsakataras, Esquire as counsel for Father on February 4, 2016. The Court resumed the Adjudicatory Hearing on April 8, 2016 but Father failed to participate. The Court found by a preponderance of the evidence that Child was dependent as to Mother by stipulation due to her inability to meet Child's treatment needs from his severe autism and dependent as to Father because Father had made no contact with DSCYF/DFS or Mr. Tsakataras since the last hearing and was therefore unable to demonstrate a willingness and ability to care for Child's needs. The Court also found that Child and his two half-siblings should remain in DSCYF/DFS custody, that the Division had made reasonable efforts to reunify Child with his parents, and that placement of Child with a relative was inappropriate at the time due to his needs despite Child's paternal grandparents F---- and A----- W------ (hereinafter "Paternal Grandparents") expressing an interest in being a placement resource.
Between the December 2015 and April 2016 hearing, Child was transferred to the Rockford Center Children's Psychiatric Hospital, then to a foster home and then back to the Rockford Center following an incident in the home. In addition to severe autism, Child was also diagnosed with bipolar disorder and aggressive disorder. Also during this time, both Mother and Paternal Grandparents were exercising visits with Child at the Rockford Center, and Mother completed a budget, was employed and had appropriate housing. Additionally, Mother had completed a mental health evaluation providing a diagnosis of borderline intellectual functioning, and had begun receiving in-home counseling services. At the April 2016 Adjudicatory Hearing, the Court ordered Mr. Tsakataras discharged as Father's attorney due to Father's failure to appear.
A Dispositional Hearing was held on May 19, 2016, participated in by Mother but not Father. The Court found that Child and his two half-siblings continued to be dependent, that they should remain in DSCYF/DFS custody, and that the Division continued to exercise reasonable efforts to reunify. Due to Father's lack of involvement in the proceedings, DSCYF/DFS was only able to submit a Case Plan for Mother. Mother's Case Plan included maintaining employment and a budget, completing a parenting education program, engaging in mental health treatment and following all recommendations, participating in Child's education and mental health treatment, maintaining regular visits with Child, and maintaining appropriate housing. As of the hearing, DSCYF/DFS reported that Mother remained employed, she was attending a parenting course and engaging with her parent aide, she completed a mental health evaluation and was engaging in counseling. However, as Child had been transferred on April 14, 2016 to a Devereux facility for children in West Chester, PA, transportation issues were limiting Mother to only having weekly phone contact with Child. Additionally, the Court found that Mother failed to comprehend the extent of Child's disabilities establishing his need to be placed in the Devereux program.
A Review Hearing was held on July 26, 2016, participated in by Mother but not Father, during which the Court found that Child continued to be dependent but that his two half-siblings could be returned to Mother's care where another sibling was already residing. The Court also found that of the three children initially involved in this case only Child, due to his disabilities and Mother's inability to manage his needs, should remain in DSCYF/DFS custody and that the Division had exercised reasonable efforts to reunify him with family. Although the Court found that Child was showing progress at Devereux, he nonetheless should not be placed back in Mother's home because it would be inappropriate for Child and his ongoing mental health needs if he did not have his own room to provide him with "refuge" space, and he was on track to remain at Devereux at least until the completion of his 18-month program.
On December 21, 2016, DSCYF/DFS filed a Motion to change the permanency plan of Child from reunification to concurrent goals of reunification and permanent guardianship/guardianship. However, the Motion would not be considered until the June 15, 2017 hearing because the Division filed it too late to be considered at the December 30, 2016 hearing.
The Court held a Permanency Hearing on December 30, 2016 participated by Mother but not Father. The Court found that Child continued to be dependent and should remain in DSCYF/DFS custody, and that the Division had exercised reasonable efforts at achieving permanency. The Court also found that Child was doing well at Devereux, but that he continued to benefit from having his own room and therefore it would be inappropriate to place Child in Mother's two-bedroom apartment where Mother's five other children already resided. DSCYF/DFS reported that Mother had met most of the elements of her Case Plan aside from exercising visits with Child, at least in part due to ongoing transportation issues and inability to work visits into her schedule, and having housing appropriate for Child's particular needs. DSCYF/DFS also reported that Paternal Grandparents expressed interest in guardianship and that the Division continued to have no contact with Father. The Court ordered DSCYF/DFS to contact Devereux so that Mother could reestablish her visits with Child.
A Permanency Review Hearing was held on June 15, 2017, during which Mother appeared but Father did not. The Court found that Child remained dependent and should stay in DSCYF/DFS custody, that the Division continued to exercise reasonable efforts at permanency, and that placement of Child with a relative continued to be inappropriate due to his mental health needs. As of the hearing, Child remained at Devereux with no expected discharge date, and Devereux staff reported that while Child was making progress in some behavioral areas and communication skills he still exhibited physical aggression at times. Devereux staff also reported that Mother was sometimes not available for her weekly scheduled calls with Child and she had only visited Child three times to date during the first five and a half months of 2017. Mother blamed her lack of regular visits to her inability to afford the train ride necessary to exercise visits at Devereux. The Court chose to postpone ruling on the December 2016 Motion to change goal after DSCYF/DFS informed the Court that Paternal Grandparents had not said they were willing to become guardians and there were no other possible candidates for guardianship at the time. The Court ordered Mother to visit Child at least twice per month and to engage in training sessions with Devereux staff to know how to better manage Child's behaviors.
On July 19, 2017, DSCYF/DFS filed a Motion to change the permanency plan of Child to concurrent goals of reunification and termination of parental rights for purposes of adoption (hereinafter "TPR").
The Court held a second Permanency Review Hearing on December 11, 2017 which was again attended by Mother but not Father. Antoinette Hubbard, Esquire participated in the hearing as Guardian ad litem in place of Mr. Bradley, and David Holloway, Esquire took over representation of Mother from Mr. Facciolo. The Court found that Child remained dependent and should stay in DSCYF/DFS custody, and that the Division continued to exercise reasonable efforts at permanency. The Court also granted the Division's goal change to concurrent goals of reunification and TPR/Adoption. DSCYF/DFS reported that Child was still at Devereux and would likely remain there until the Division locates a placement resource that can meet Devereux's requirements for providing appropriate care for Child. DSCYF/DFS also reported that although Child is verbal he cannot articulate basic concepts as simple as what he likes to do. Although a schedule that accommodated Mother's work was set for Mother to have weekly visits with Child and receive training from Devereux staff, Mother had only exercised one visit since the middle of June 2017. However, Mother reported that she participated in numerous phone meetings regarding Child but she was not receiving weekly calls initiated from Child. The Court again ordered Mother to work with DSCYF/DFS and Devereux to find a new visitation schedule that would accommodate her work hours.
The Court held a consolidated Review and TPR hearing on March 6, 2018. During the hearing, the Court took judicial notice of the findings of fact in the Court's prior Orders with regard to this case, as recited in summary above.
The prior Orders in this matter include: 1) Ex Parte Order issued by Judge Waserstein dated December 23, 2015; 2) Preliminary Protective Hearing Order issued by Judge Coppadge dated January 12, 2016; 3) Adjudicatory Hearing Order dated April 21, 2016; 4) Dispositional Hearing Order and Adjudication of Paternity Order dated May 24, 2016; 5) Review Hearing Order dated July 29, 2016; Permanency Hearing Order dated January 24, 2017; Permanency Review Hearing Order dated July 3, 2017; and Permanency Review Hearing Order dated December 13, 2017.
FINDINGS OF FACT
The Court will not restate all of the testimony and evidence presented at the Termination of Parental Rights hearing, but will note the relevant evidence in support of its findings.
1. Social Report Regarding Mother , Father and Child
DSCYF/DFS submitted a Social Report concerning Mother, Father and Child. Pet. Ex. # 1. In addition to Child, Mother has five daughters, none by Father, with ages ranging from seventeen to seven. The Report notes that Mother has a history with the Division dating back to her childhood due to her mother's homelessness and mental health issues. As a teenager in the foster care system, Mother was diagnosed with Adjustment Disorder and Dystonia. Father has no prior history with the Division other than relating to Child.
DSCYF/DFS first became involved with Mother as a parent in 2001 due to concerns of neglect of her oldest child, then an infant. The Division received additional referrals regarding Mother in 2003, 2004 and 2005 based on allegations of, inter alia, domestic violence and neglect. Mother then entered treatment with DSCYF/DFS in July 2005 and successfully completed treatment in March 2006. The Division first became involved with Child in April 2008 following allegations that Father was physically abusing Mother's children. Following new referrals in July 2010 alleging, inter alia, neglect and inappropriate housing, Mother again entered treatment with DSCYF/DFS from August 2010 to December 2011. The Division opened another treatment plan for Mother from July 2013 to December 2013 following new allegations of physical abuse by a paramour, during which all Mother's children other than Child were removed from her care. Mother again entered treatment from February 2014 to June 2014. Mother's children were in and out of her care during the years leading up to the start of the current treatment plan for Mother in the middle of 2015.
In late 2015, DSCYF/DFS began to seek custody of Child and the other of Mother's children still in her care at the time. The remainder of the Social Report details efforts the Division made to assist Mother in reunifying with Child, including, but not limited to, referring Mother to Wrap Around Delaware, New Behavioral Network, and Mid-Atlantic Behavioral Health for services. In addition, the Report details the Division's attempts at putting Mother in communication with Devereux so that Mother could learn about Child's many needs and establish visits with Child and Mother's failure to actively engage, as well as the Division's provision of Mother with $850 for a security deposit and 12 bus passes valued at $634.
2. Berlinetta Wright , DSCYF/DFS Treatment Worker - Testimony as to Mother
Ms. Wright testified that she was assigned to Mother in February 2015 and that Mother none of Mother's six children were in her care at the time of the TPR hearing. Ms. Wright also testified as to Mother's status on the elements of her Case Plan. Ms. Wright noted that a main concern was Mother's unstable housing since September 2017 after she forfeited both the two-bedroom apartment she was living in for non-payment of rent and a three-bedroom apartment her landlord had offered her, and for which DSCYF/DFS paid the $850 security deposit, due to Mother's failure to move in to the larger unit. In addition, due to Mother's outstanding adverse judgment for back rent from a previous apartment of over $1000 she is limited to only pursuing private housing options as subsidized housing is no longer available to her. Ms. Wright also testified that although Mother was receiving individual and family mental health therapy services from Wrap Around Delaware starting in 2015 under its contract with DSCYF/DFS, those services ended in July 2016 when two of Mother's children returned to her care and Mother had still not located a new provider in order to restart individual counseling sessions at the time of the TPR hearing. Ms. Wright also testified that Mother had been working cooperatively with her parent aides and had completed a parenting course. However, the Division continued to have concerns about Mother's ability to effectively manage the dynamics of having her other children in her home, even without Child present. Finally, Ms. Wright noted that while Mother was maintaining full-time employment at Brandywine Nursing and Rehabilitation Center, she had not completed a new budget based on her current income or provided DSCYF/DFS with a current paystub to verify her income. Mother's income and ability to budget effectively to care for her children could not be established, an element required under Mother's Case Plan.
Ms. Wright also testified to Mother's significant lack of visits with Child since he was placed at Devereux in April 2016. Initially, Mother would visit with Child about once a month in 2016. However, she only visited with Child four times in 2017 and had not yet visited in 2018, with her most recent visit coming on July 3, 2017. Due to such infrequent visits with Child, Mother has also had only minimal interactions with Devereux staff limiting her ability at developing parenting skills tailored to Child's specific needs. Although DSCYF/DFS, at times, attempted to provide Mother with a weekly specific visitation time that accommodated her work schedule, Mother repeatedly either cancelled or failed to show. Furthermore, Mother had not reached out to DSCYF/DFS since August 2017 to seek a new visitation schedule that would fit with her current work schedule. In addition to her failure at having in-person visits with Child, Mother has not demonstrated any consistency in what were supposed to be weekly phone calls with Child, in part due to conflicts with the scheduled call time and Mother's changing work schedule. Based on previous assessments of Mother's budget, Ms. Wright opined that if Mother could afford to spend money of her hair, nails and sneakers, then the cost of a round trip SEPTA train ticket for herself to Devereux should not have been a sufficient hindrance to keep Mother from exercising once a month visits with Child.
According to Ms. Wright, Child has no discharge date from Devereux at this time and the Division had not identified an adoptive resource for Child at the time of the TPR hearing, but that the Division's long-term goal remains to place him back in the community with a foster or adoptive home that has been adequately trained by Devereux in how to meet Child's specific needs. Until such a home is identified that can meet Child's needs, Child would remain at Devereux or move to another similar appropriate treatment facility.
Ms. Wright also testified to facts going to the various best interest factors under 13 Del. C. §722. First, Mother wants Child back in her home but that Father's express wishes are unclear. Second, Child's wishes are also unclear and Ms. Wright believes that Child does not have the cognitive ability to express his wishes or understand these proceedings. Third, although Child recognizes Mother when he sees her or hears her voice, Ms. Wright stated that she does not believe Child has a meaningful bond with his parents due to Mother's infrequent visits during the almost two years that Child has remained at Devereux and Father's complete lack of involvement in Child's life. Fourth, Father and Mother have no known physical ailments that would prevent them from caring for Child. Fifth, Mother has been paying child support for Child since 2015 but Father has not despite the existence of a support order against him. Sixth, Mother has been the victim of domestic violence with all of her children's various fathers including with Father, but she is no longer in a relationship with Mr. Roane whose physical abuse of Mother's children triggered, in part, Child's entry into DSCYF/DFS care in 2015.
3. Mother
a. Employment and Budget
According to Mother, she has been working as a housekeeper at Brandywine Nursing and Rehabilitation Center since the end of December 2017, working the hours of 7:00 AM to 3:30 PM, Monday through Friday and every other weekend, and earning about $474 every two weeks' net of taxes and deductions. In addition to income from her employment, Mother stated that she previously received $733 per month in social security disability when Child was in her care but that she receives no assistance for her other children.
b. Mental Health Treatment
While conceding she is not presently receiving individual therapy, Mother testified that she does participate in family sessions with a therapist from New Behavioral Network and one of Mother's other children, and that she was waiting for a referral from DSCYF/DFS to resume her own individual sessions. Mother also admitted to stopping her depression medication without medical advice because she believes she has learned to cope with that diagnosis.
c. Participating in Child's Education and Treatment
Mother testified that she has participated in phone conferences with Devereux regarding Child's education and that she has never missed such a call.
d. Visits with Child
Mother testified that she has not had any visits with Child since July 2017 blaming DSCYF/DFS and stating that she expected Ms. Wright to set up a visitation schedule once Mother's new work schedule was straightened out. Additionally, she stated that all of her visits in 2017 have been when DSCYF/DFS assisted her with transportation and that she has not been making the trip by herself because the cost of a round-trip train ticket to visit Devereux is $100 and she would get stuck in Exton, PA after concluding an afternoon visit due to the train's running times through that station. Furthermore, Mother stated her attempts at weekly phone contact with Child have been limited due to an ongoing scheduling conflict with Devereux staff about which she has called and left voicemails without a response.
Mother also stated that several months ago, she informed Paternal Grandmother that she would like to travel to Devereux with Paternal Grandmother whenever she visited with Child but that Paternal Grandmother never responded. Mother further testified that she was not aware of Child having overnight visits with Paternal Grandparents and that she would have tried to see Child during those visits if she had known about them because it would be easier for her to get to Paternal Grandparents' home in Delaware than to get to Devereux in Pennsylvania.
e. Appropriate Housing
Mother is currently residing "here and there" and that she "bounce[s] around." Mother did not move into the three-bedroom apartment that DSCYF/DFS offered her in 2017 claiming she was still residing in and paying rent on the two-bedroom apartment and the landlord of the three-bedroom apartment said it was not ready for her yet. She added that she has been turned down for almost five homes since "forfeiting" the two apartments and that she is setting aside money to pay off the prior adverse judgment that she believes is hindering her ability to secure housing. Mother also reported that she was actively in discussion with a landlord for a four-bedroom unit, and that if Child had been placed with her and her other children when she was residing in her two-bedroom unit she would have given up her room to provide Child with his own space.
f. Other
Mother testified that she last talked to Father a few months prior during which he was residing on the streets in Pennsylvania, and that whenever Mother attempts to discuss Child, Father does not want to talk about Child. Mother also testified that she was a victim of either physical or verbal abuse by all of her children's fathers, including verbal abuse by Father. While Mother does not have any physical issues that would prevent her from caring for Child, she admits that she cannot care for Child at present but wants Child returned to her care and hopes to be in a position to care for him before the end of the summer. Finally, Mother stated that during every conversation that she has had with Child that Child states that "I want to go to your house."
4. Certified Delaware Criminal History of Mother
DSCYF/DFS submitted Mother's Delaware criminal history. Pet. Ex. #3. She has a minimal history. Mother only has one adult charge which resulted in a conviction for entering/remaining in a package store, dating back to 2003. Other than that one adult conviction, the remainder of her criminal record relates to being found delinquent on four misdemeanor charges from the mid-1990s when she was between thirteen and sixteen years old.
5. Kristin Lanza , Devereux Social Service Coordinator
Ms. Lanza testified that Child has been doing well in his education program at Devereux and that he has been largely stable behaviorally and shown overall improvement since his admission except for increased non-compliance in the month before the proceeding. She also testified that it is in Child's best interest to continue in his current treatment program, and that there is no current timeline for his discharge. First, Child must show thirty to sixty days of stability before Devereux will consider introducing him to a possible placement resource and then begin slowly integrating him into such a family. If necessary, Child could remain at Devereux until he is 21.
Ms. Lanza also testified as to Child's contact with Mother. She stated that Mother answers less than half of the weekly calls that Devereux staff place to Mother so she can speak with Child, currently scheduled for between 2:30 and 4:30 PM on Tuesdays, requiring staff to leave voicemails. Ms. Lanza stated that she has only ever received one voicemail from Mother in her one-and-a-half years of working with Child.
Finally, Ms. Lanza reported that Child only asks about Mother "on occasion."
6. Lisa Smith , Devereux Clinician
Ms. Smith testified to Child's progress since his admission at Devereux in April 2016. She works with Child weekly on his coping, social and communication skills. She noted that he is now a much clear communicator and is helping with chores, whereas previously receiving directives was a trigger for negative behavior from him. She agreed with Ms. Lanza that it is in Child's best interest for him to continue in his current treatment program at Devereux.
Ms. Smith also testified as to her and Child's limited contact with Mother. She stated that she has tried to call Mother with updates on Child, about every other week without a fixed call schedule, but has been unable to establish regular contact with Mother. Furthermore, she noted that while she tries to participate in the calls between Child and Mother placed by her co-worker Daniel, she has never heard Child tell Mother that he wants to go to Mother's house, contrary to Mother's claim. She also noted that she does not recall a time when Child mentioned Mother when Mother was not on the phone or visiting with Child in person.
7. Berlinetta Wright , DSCYF/DFS Treatment Worker - Testimony as to Father
Ms. Wright testified that Father has had no contact with DSCYF/DFS since the first adjudicatory hearing in January 2016, and Father has had no visits with Child since Child entered DSCYF/DFS custody in December 2015. As a result, Father's current whereabouts are unknown to the Division. Ms. Wright also testified that Father's whereabouts are similarly unknown to Paternal Grandparents. Although Paternal Grandparents continue to visit regularly with Child at Devereux and have had overnight visits with him at their home, they have decided that they cannot be a long-term care option for Child due to their age and overall health.
8. Father
Not only did Father fail to attend the TPR hearing, he also only attended one of the eight previous hearings during the course of this case. Due to his failure to participate in these proceedings, the Court discharged his Court-appointed attorney in April 2016.
9. Certified Delaware Criminal History of Father
DSCYF/DFS submitted Father's Delaware criminal history. Pet. Ex. #4. The history reflects a long list of Title 11 arrests on over thirty charges spanning from 1997 to the present with eight convictions mainly related to shoplifting. On December 27, 2004, Father was found guilty of shoplifting under $1000. On April 20, 2006, he was found guilty of criminal impersonation. On January 11, 2008, he was found guilty of theft under $1000. On February 12, 2015, he was found guilty of shoplifting under $1500 and theft-organized retail crime. On April 2, 2015, he was again found guilty of shoplifting under $1500. On August 29, 2016, he was found guilty of shoplifting under $1500. Most recently, he was found guilty of shoplifting from an establishment on December 2, 2016. Father is also currently wanted on eight outstanding criminal misdemeanor charges from 2016 and 2017, six of which are for shoplifting.
10. Prior Court Orders in this Matter
In addition to the Court taking judicial notice of the findings of fact of the Court from its prior Orders in this matter, DSCYF/DFS submitted a copy of each Order. Pet. Ex. #2.
ANALYSIS
The United States Supreme Court has held that a parent's interest in his or her children "undeniably warrants deference and, absent a powerful countervailing interest, protection." Likewise, the Delaware Supreme Court has found that the parental right is a "sacred one" that "does not depend on societal standards or mores of lifestyle, age, economic achievement, or sex." It has also held that parental rights "arise from a natural relationship," are "fundamental liberties," and "may not be abrogated in the absence of the most compelling reasons." While recognizing the fundamental liberty interest of the parents, the Court must consider that "one of the important objectives of the termination of parental rights statute is to ensure that children are not denied the opportunity for a stable family life." However, the federal Adoption and Safe Families Act of 1997 (ASFA) recognizes the countervailing importance of the child's safety and need for permanency by placing limits on the time in which parents are given to rehabilitate themselves and assume their parental responsibilities, provided the State has met its duties to provide a meaningful process and reasonable efforts to reunify the family.
Stanley v. Illinois, 405 U.S. 645, 651 (1972).
In re Burns, 519 A.2d 638, 645 (Del. 1986) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)).
See id.; In re Stevens, 652 A.2d 18, 24 (Del. 1995).
Shepherd v. Clemens, 752 A.2d 533, 538 (Del. 2000).
In re K.L.T., 2001 WL 493113, at *10 (Del. Fam. Jan 22, 2001).
A parent's strong interest in her child can be terminated only upon a showing, by clear and convincing evidence, that one or more of the statutory grounds set forth in 13 Del. C. §1103(a) has been established and that severing the parental ties would be in the best interests of the child as defined in 13 Del. C. § 722. The Court must also find that the State has exercised reasonable efforts to reunify the family and provide meaningful efforts to case plan with the parents. The clear and convincing standard of proof requires greater certainty about the factual conclusions than a preponderance of the evidence standard, underscoring the important liberty interest at stake and the special loss that occurs with the termination of a parent's rights in a child.
Id.; see also In re Hanks, 553 A.2d 1171, 1179 (Del. 1989).
In re K.L.T., 2001 WL 493113, at *10.
See Patricia A.F. v. James R.F., 451 A.2d 830, 831-32 (Del. 1982).
A. Statutory Grounds for Termination of Parental Rights
DSCYF/DFS seeks termination of both Mother's and Father's parental rights in Children on the grounds of failure to plan pursuant to 13 Del. C. §1103(a)(5).
1. Failure to Plan - Father
DSCYF/DFS seeks to have Court find that Father failed to plan for Child pursuant to 13 Del. C. §1103(a)(5). In order to do so, DSCYF/DFS must demonstrate by clear and convincing evidence that Father failed to plan adequately for Child's physical needs or mental and emotional health and development and that Child came into the care of DSCYF/DFS over one year ago.
Child came into the care of DSCYF/DFS in December 2015, well over one year ago. Additionally, Father has had no contact with Child since then or with DSCYF/DFS since January 2016. As a result, DSCYF/DFS has never been able to enter into a case plan for reunification with Father. Therefore, the Court finds that DSCYF/DFS has shown by clear and convincing evidence that Father has failed to adequately plan for reunification with Child and the grounds for termination of his parental rights in Child have been met.
2. Failure to Plan - Mother
DSCYF/DFS seeks to have the Court find that Mother failed to plan for Child pursuant to 13 Del. C. §1103(a)(5). DSCYF/DFS must demonstrate by clear and convincing evidence that Mother failed to plan adequately for Child's physical needs or mental and emotional health and development and that Child came into the care of DSCYF/DFS over one year ago.
Child came into the care of DSCYF/DFS in December 2015, well over one year ago. The record reflects that Mother has made some progress on her Case Plan, including, but not limited to, maintaining employment and completing a parenting education program. Nonetheless, DSCYF/DFS alleges that Mother has failed to adequately plan for Child's needs chiefly by losing her housing in September 2017, failing to regularly visit and maintain a relationship with Child and failing to engage in Child's treatment program at Devereux.
The Court will consider each element of her Case Plan in turn.
a. Employment and Budget
Throughout much, if not all, of this case, Mother has remained employed. She most recently completed a budget for a previous job at Amazon. Although she has not completed a budget for her current job at Brandywine Nursing or provided the Division with a current paystub, there is no evidence that her current income is insufficient to meet her previous budget. Furthermore, Mother also received $733 in monthly social security disability checks when Child was in her care thereby bolstering her income if child was in her custody.
b. Parenting Education
Although Mother completed a parenting education course and has worked cooperatively with her parent aides, the Court is concerned because Mother has reportedly struggled to manage the dynamics of caring for her other children, who have been in and out of her care during the life of this case, even without adding Child, with the demands of his high level of required care, to her parental load. Mother fails to understand the dynamics of Child's condition, nor can she provide him with the high level of care he requires.
c. Mental Health Treatment
Mother completed a mental health evaluation in 2016 and was receiving individual treatment until July 2016 from Wrap Around Delaware when she lost access to those services through no fault of her own. Despite her long history of mental health issues dating back to her childhood, Mother, without the advice of her doctor, stopped taking her medication and has yet to resume individual sessions. While Mother is engaging in family therapy sessions from New Behavioral Network along with one of her children, this focuses on that child and Mother's relationship with her and is not designed to address Mother's individual mental health needs which she is currently neglecting.
d. Participating in Child's Education and Treatment
Child was placed at Devereux in Pennsylvania in April 2016. Since that time, Mother has had irregular contact with Devereux staff by phone and has only made sporadic trips to visit with Child and staff in-person. As a result, Mother has repeatedly missed out on opportunities to learn about Child's behavioral and educational progress over the phone and to engage in in-person training sessions on how best to meet Child's needs. Mother, therefore, is currently not equipped to meet Child's needs as of this time.
e. Visits with Child
Although Mother was visiting with Child when he was residing at facilities in Delaware, her visits have almost come to a halt since Child was transferred to Devereux in Pennsylvania in April 2016. For example, Mother only made four visits to see Child at Devereux during the year 2017 and none in the first part of 2018, her most recent in-person contact with Child occurring on July 3, 2017. Although the cost and logistics of making trips to Devereux present real obstacles for Mother exercising regular visits, she has no excuse for making less than one trip every three months since the start of 2017. Mother has been continuously employed and has not been paying rent since September 2017. As such, she should have been able to budget for the cost, which she claims is $100, of a trip to Devereux at least once a month. In addition to her infrequent visits to Devereux, Mother has also failed to establish consistent contact with Child by phone as she has reportedly missed more attempted calls from Devereux than she has answered.
f. Appropriate Housing
Until September 2017, Mother resided in a two-bedroom apartment. However, this unit was never found appropriate for Child because he would not have been provided the quiet, private space that he needs due to his severe mental health issues. Thereafter, Mother has been homeless since September 2017, despite DSCYF/DFS efforts to assist her in securing a three-bedroom unit by providing initial funding. The larger unit, obtained with DSCYF/DFS assistance, was subsequently lost by Mother due to her failure to move in to the unit. Although the Court credits Mother's current efforts to locate housing and pay off a prior adverse judgment, the fact remains that she presently cannot and has not been able to provide appropriate housing for Child during the lifetime of this case.
g. Conclusion
Overall, the record reflects that despite having an appropriate case plan designed to enable Mother to effectuate reunification with Child that Mother has made insufficient progress on her Case Plan since she received it nearly two years ago. Although, there is evidence that demonstrates that Mother is in a better place in some ways to provide for Child's needs than she was previously in the life of this case, she has failed to secure appropriate housing for Child, failed to establish regular visitation with Child at Devereux and failed to adequately participate in Child's treatment in order to educate herself in his special needs. Accordingly, the Court finds that DSCYF/DFS has shown by clear and convincing evidence that Mother has failed to adequately plan for Child's physical needs or mental and emotional health and development. Therefore, the grounds for termination of her parental rights in Child have been met.
B. Reasonable Efforts
Once the Court concludes that the grounds for termination of parental of rights have been met by clear and convincing evidence, the Court must also find by clear and convincing evidence that the State, or DSCYF/DFS in this case, has made "reasonable efforts" to reunify the family. Both the Adoption and Safe Families Act of 1997 and 29 Del. C. §9003 require DSCYF/DFS to "provide reunification services to families and to prepare written case plans and review those plans semi-annually."
Powell v. Dep't of Servs. for Children, Youth, and their Families, 963 A.2d 724, 738 (Del. 2008).
The record reflects that Father has not made contact with DSCYF/DFS or participated in these proceedings since about January 2016. As a result, Father has denied the Division the opportunity to assist Father with reunification. Therefore, the Court finds, under the specific facts of this case, that DSCYF/DFS has been absolved of the requirement to make reasonable efforts to reunify Father with Child.
The record reflects that Mother was provided a Case Plan in May 2016 and that DSCYF/DFS continuously worked with Mother, over an extended period, on the ongoing issues in this case. The Division provided Mother was various referrals to other agencies for, inter alia, mental health treatment and parenting education opportunities. Additionally, when two of the most glaring issues on her Case Plan were visits with Child and appropriate housing, the Division worked at length with Mother in trying to find a visitation schedule that would accommodate her work schedule and also provided Mother with $850 so that she could pay the security deposit on a three-bedroom apartment, an apartment lost through Mother's failure to take possession. Furthermore, the Division provided Mother with over $600 in bus passes so that Mother could make her appointments related to her Case Plan, and Devereux staff have consistently reached out to Mother by phone to facilitate her contact with Child and Child's clinician. Therefore, the Court finds that DSCYF/DFS has made reasonable efforts to reunify Mother with Child in the services offered to Mother.
C. Best Interest of the Child
Even when one or more of the statutory grounds for termination of parental rights has been established, the Petition should not be granted unless the Court determines by clear and convincing evidence that the termination is in the child's best interest. While required to consider all factors relevant to this case in determining the child's best interests, the Court must specifically consider the factors enumerated in 13 Del. C. §722. The Court has also held that some factors may be given more weight than others in the Court's analysis. The Court will engage in a factor by factor analysis as to both Father and Mother below.
See Div. of Family Services v. Hutton, 765 A.2d 1267, 1272 (Del. 2001) (citing in re Burns, 519 A.2d 638, 643 (1986)).
13 Del. C. § 722(a) mandates that the Court consider all relevant factors including:
(1) "The wishes of the child's parents or parent as to his or her custody and residential arrangements;
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
(3) The interaction and interrelationship of the child and his or her parents, grandparents, siblings, persons cohabiting in a relationship between a husband and wife with a parent of the child any other residents of the household or persons who significant effect the child's best interest;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
(7) Evidence of domestic violence as provided for in Chapter 7A of this title, and
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense."
See Fisher v. Fisher, 691 A.2d 619, 623 (Del. 1997) (noting that "[t]he amount of weight given to one factor or combination of factors will be different in any given proceeding. It is quite possible that the weight of one factor will counterbalance the combined weight of all other factors and be outcome determinative in some situations.") --------
1. The wishes of the child's parents as to his or her custody and residential arrangements;
Mother opposes the termination of her parental rights and desires that Child be placed back in her home not at the present time, but hopefully and therefore speculatively by the end of the summer. Father's wishes are unknown. However, based on his almost complete non-involvement with Child, DSCYF/DFS or these proceedings during the life of this case, and Mother's reports that Father does not want to talk about Child, the Court presumes that, at best, he is ambivalent about whether his parental rights are terminated. Therefore, the Court finds that this factor strongly favors denying the Petition as to Mother and is neutral as to Father.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
Due to Child's significant mental health needs and disability, the Court did not interview him in order to ascertain his wishes. However, Mother testified that Child talks about wanting to go to Mother's house whenever they speak to each other. Although none of Child's treatment team could corroborate Child's reported statements, the Court did not hear testimony from the one Devereux staff member personally responsible for facilitating Mother's phone contact with Child. Even if Child has told Mother that he wants to go to her house, the Court also heard uncontroverted testimony that Child is incapable of understanding the nature of these proceedings. Therefore, the Court finds that this factor is neutral as to both Mother and Father.
3. The interaction and interrelationship of the child with his or her parents , grandparents , siblings , person cohabiting in the relationship of husband and wife with a parent of the child , any other residents of the household or person who may significantly affect the child's best interests;
Since Child was placed at Devereux in April 2016, Child's most regular visitors have been Paternal Grandparents. However, they have testified that they are not a placement resource for Child due to their age and health. Therefore, whether interactions between Child and Paternal Grandparents have been positive is inconsequential to the Court's conclusion in this case.
Prior to Child's placement at Devereux, Mother had regular contact with Child. However, she has only had four visits with Child since the start of 2017 and inconsistent phone contact with him. Although this irregular contact may suggest that Mother would have a weak bond with Child, the Court is uncertain whether Child, due to his extensive cognitive limitations, is capable of forming a close bond with a parent like is manifest in traditional parent-child relationships. Furthermore, the Court heard evidence that Child sometimes asks about Mother but no evidence that Child exhibits either positive or negative behavior after visits or phone contact with Mother. In short, there is no clear and convincing evidence that either there exists any significant mother-child relationship nor that such a relationship if lacking, is having any negative impact on Child. Therefore, the Court finds that this factor is neutral as to both Mother and Father.
4. The child's adjustment to his or her home , school , and community;
Child is doing well and progressing in his overall treatment plan at Devereux such that it would be an unwelcome adjustment if he were to be moved back into Mother's home. However, regardless of the Court's determination in this case, the testimony indicates that Child should remain at Devereux or a similar facility. Although Child has been at Devereux in excess of the customary 18-month program length, Child has no discharge date. Furthermore, DSCYF/DFS has not identified a possible short- or long-term placement resource nor has the Division indicated that there is any reasonable likelihood of finding a willing placement resource. Even once the Division does identify a willing and adequately trained resource, it will be months before Child will be ready to spend significant time with that person. Whether the Court grants or denies TPR, the impact of that decision is not likely to have any significant impact on the child as circumstances currently exist. Therefore, the Court finds that this factor is neutral as to both Mother and Father.
5. The mental and physical health of all individuals involved;
Mother and Father have no known significant physical health issues, but Mother does have a long history of mental health issues that are currently unmedicated and for which she is receiving inadequate counseling. In addition, although Child has well-documented and extensive mental health needs for which he is receiving treatment at Devereux, there is no plan to discharge Child into Mother or Father's care. Therefore, the Court finds that this factor, at present, is neutral as to both Mother and Father.
6. The past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
13 Del. C. § 701(a) states that "[t[he father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare and education." Father has not complied with his statutory obligations to Child during the entirety of this case. Mother has been paying child support since 2015 but has only provided limited other care or nurture for Child since he was moved to Devereux in 2016. Although the Court recognizes Mother's obstacles to making it to Pennsylvania for visits, the Court does not condone the infrequency with which Mother has engaged Child over the last two years. Mother's home is inadequate and while she disapproves of the distance to Devereux, there appears to be no alternative adequate to meet Child's needs. Therefore, the Court finds that this factor weighs strongly in favor of granting the Petition as to Father but only slightly in favor of granting the Petition as to Mother.
7. Evidence of domestic violence as provided for in Chapter 7A of this title; and ,
Title 13 Del. C. §706A(a) provides that any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the Court in determining the legal custody and residential arrangements in accordance with the best interests of the child. The Social Report notes that the Division received a referral that Father was physically abusive, Child entered care initially due to allegations of abuse at the hands of Mother's paramour at the time, and Mother testified that Father was verbally abusive. However, neither Father nor any of Mother's former abusive partners are currently involved in Mother's life and DSCYF/DFS did not consider domestic violence to be of sufficient concern to recommend that Mother receive any domestic violence counseling as part of her Case Plan. Therefore, the Court finds that this factor weighs in favor of granting the Petition as to Father but is neutral as to Mother.
8. The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Mother has a minimal criminal history in Delaware. Father's criminal history in Delaware is lengthier and includes several pending charges, but is almost entirely related to shoplifting. Although Father's crimes do not suggest that Child would be presently in danger in Father's care, the Court is concerned that Father's charges go up to the present. Therefore, the Court finds that this favor slightly favors granting the Petition as to Father but denying the Petition as to Mother.
In sum, the Court finds, as to Father, that 13 Del. C. §722 best interest factors 1, 2, 3, 4, and 5 are neutral; and factors 6, 7, and 8 favor granting the Petition. As to Mother, the Court finds that best interest factors 1 and 8 favor denying the Petition; factors 2, 3, 4, 5, and 7 are neutral; and factor 6 favors granting the Petition. Giving these factors appropriate weight, the Court finds that it is neither in Child's best interest to grant the herein Petition nor to deny it; granting TPR will neither advance nor impinge on this child's future at this time, and therefore that DSCYF/DFS has failed to prove by clear and convincing evidence that is in Child's best interest to sever his family relations at present. In so doing, the Court gives special weight to factors 3, 4 and 5 due to Child's extensive mental health needs, the present ability of the child staying for an indefinite length of time at Devereux, and the Division's failure to identify even one single possible placement resource for Child in the near future.
CONCLUSION
The Court finds that DSCYF/DFS has established by clear and convincing evidence that the statutory ground for the termination of Mother's and Father's parental rights exists under 13 Del. C. § 1103(a)(5) for failure to plan, and that DSCYF/DFS has offered reasonable efforts at reunification for Parents. However, the Court has not found that it is in the best interest of Child for Mother's and Father's parental rights to be terminated based on an analysis of the factors pursuant to 13 Del. C. § 722. Terminating parental rights at this time, based on the evidence presented, will not result in any change in circumstances for Child. A neutral assessment as to the effects of granting or denying termination of parental rights falls far below the standard of clear and convincing evidence.
Accordingly, the Petition for Termination of Parental Rights is hereby DENIED as to C-------- W------- and R----- J. W------, Sr. The Court has scheduled another Permanency Review Hearing in the interest of Child for September 17, 2018 at 11:00 AM for which the Court has allotted one hour.
In reaching this conclusion, the Court cautions Mother that she will need to do much more than secure an apartment with a bedroom for Child before she can have Child return to her care. First and foremost, in order for her to make progress toward possible reunification, Mother must find a way to engage with Devereux to not only spend regular time with Child but, crucially, also spend time receiving training from Devereux staff so she can better meet Child's current needs.
IT IS SO ORDERED.
April 18 , 2018
Date Written Order Issued
/s/ _________
ROBERT BURTON COONIN, JUDGE RBC/plr cc: Counsel
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