Dep't of Servs. for Children v. G. S.

Full title: DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES, Petitioner…

Court: FAMILY COURT OF THE STATE OF DELAWARE

Date published: Jul 10, 2019

FILE NO.: CN15-02247 (Del. Fam. Jul. 10, 2019)

Opinion

FILE NO.: CN15-02247 FILE NO.: 17-09-06TN CPI NO.: 16-29934 CPI NO.: 17-28587

07-10-2019

DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES, Petitioner v. G-------- S------, G-------- R----, Respondents. In the Interest of: G------ R-----S------ (F) (DOB 05/--/16)

Janice Tigani, Esquire, Department of Justice, Wilmington, Delaware for Petitioner, Division of Family Services Brian Jordan, Esquire, Jordan Law, Wilmington, Delaware for Respondent Mother, G-------- S------ George Tsakataras, Esquire, Law Office of Tsakataras, Wilmington, Delaware for Respondent Father, G-------- R---- Eliza Hirst, Esquire, Office of the Child Advocate, Wilmington, Delaware for Child, G------ R-----S------

Coonin, J.

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 GRANTED as to G-------- S------ and G-------- R----. Janice Tigani, Esquire, Department of Justice, Wilmington, Delaware for Petitioner, Division of Family Services Brian Jordan, Esquire, Jordan Law, Wilmington, Delaware for Respondent Mother, G-------- S------ George Tsakataras, Esquire, Law Office of Tsakataras, Wilmington, Delaware for Respondent Father, G-------- R---- Eliza Hirst, Esquire, Office of the Child Advocate, Wilmington, Delaware for Child, G------ R-----S------ Coonin, J.

NATURE OF THE PROCEEDINGS

This is the decision on the Petition for Termination and Transfer of Parental Rights ("TPR") filed by the Department of Services for Children, Youth and Their Families/Division of Family Services (hereinafter "DSCYF/DFS") against G-------- S------ (hereinafter "Mother") and G-------- R---- (hereinafter "Father") regarding the minor child G------ R-----S------ born May --, 2016 (hereinafter "Child").

DSCYF/DFS seeks, in its Amended Petition of January 9, 2018, to terminate the parental rights of Mother in Child under 13 Del. C. § 1103(a)(5) on the grounds of "failure to plan" arguing she has been unable to or has failed to plan adequately for Child's physical needs or mental health and development. DSCYF/DFS also seeks to terminate the parental rights of Mother in Child under 13 Del. C. § 1103(a)(7) on the grounds that Mother "has subjected a child to torture, chronic abuse, sexual abuse, and/or life threatening abuse" and under 13 Del. C. § 1103(a)(8) on the grounds that "[a] child has suffered unexplained serious physical, near death or death under such circumstances as would indicate that such injuries, near death or death resulted from the intentional or reckless conduct or wilful neglect of the parent."

DSCYF/DFS seeks, in its Amended Petition of January 9, 2018, to terminate the parental rights of Father in Child under 13 Del. C. § 1103(a)(5) on the grounds of "failure to plan" arguing he has been unable to or has failed to plan adequately for Child's physical needs or mental health and development. DSCYF/DFS also seeks to terminate the parental rights of Father in Child under 13 Del. C. § 1103(a)(7) on the grounds that Father "has subjected a child to torture, chronic abuse, sexual abuse, and/or life threatening abuse" and under 13 Del. C. § 1103(a)(8) on the grounds that "[a] child has suffered unexplained serious physical, near death or death under such circumstances as would indicate that such injuries, near death or death resulted from the intentional or reckless conduct or wilful neglect of the parent."

The hearings on the Petition for Termination and Transfer of Parental Rights spanned three days. Mother and Father were represented by counsel and were provided with Spanish language interpreters at all three days. Day one of the hearing, initially scheduled for January 8, 2018, was continued at the request of Father's counsel, because he did not receive a copy of a professional report issued by an expert retained by DSCYF/DFS until January 2^nd, and rescheduled for April 2, 2018. On April 2, 2018, both Mother and Father were present with their counsel. At the time, Mother was represented by David Holloway, Esquire. Father was and still is represented by George Tsakataras, Esquire. Day one testimony was taken from Belkys Sanchez, Mother's therapist at the time; Lenda Magana-Luna, Children's Choice family interventionist for Mother and Father; R----- M------, foster father for Child; Courtney Penhollow, DSCYF/DFS permanency worker; and Allison Randall, expert on behalf of DSCYF/DFS. Day two of the hearing on the Petition, initially scheduled for June 26, 2018, was continued at the request of DSCYF/DFS, due to planned medical leave, and rescheduled for November 1, 2018 during which additional testimony was taken from Ms. Randall. On November 1, 2018, both Mother and Father were present with their counsel. At that time, Brian Jordan, Esquire replaced Mr. Holloway as Mother's attorney as Mr. Holloway did not renew his parent attorney contract with the Court. Day three of the hearing on the Petition was held on December 31, 2018, attended by Mother and Father and their counsel. At that time, Ms. Randall concluded her testimony, followed by testimony from Dr. Samuel Romirowsky, expert on behalf of Mother and Father; Ms. Penhollow a second time; and Mother. Following the conclusion of testimony, the Court ordered a transcript to be prepared of the day three hearing and then for the parties to file written closing arguments. DSCYF/DFS and the Office of Child Advocate (hereinafter "OCA") filed their closing arguments on February 18, 2019, and Mother and Father filed their closing arguments on March 28, 2019. Then, DSCYF/DFS and OCA filed a joint reply argument on April 12, 2019. Thereafter, on May 15, 2019, while the Court was taking this matter under advisement, DSCYF/DFS filed a memorandum with the Court bringing to the Court's attention an Order on a TPR decision issued by the Delaware Supreme Court on April 22, 2019.¹ At the request of Father's counsel on May 17, 2019, the Court permitted the parties to file responsive memoranda to the recent Delaware Supreme Court decision on or before May 31, 2019. Father's counsel did so on May 31, 2019, thereby concluding the proceedings in this matter.

1 Lindel-Packer v. Division of Family Services, 2019 WL 1769276 (Del. Apr. 22, 2019).

PROCEDURAL HISTORY

As two of the grounds by which DSCYF/DFS seeks to terminate the parental rights of Mother and Father are based on prior findings related to other children of Mother and Father, the Court will initially briefly summarize the procedural history with regard to the DSCYF/DFS matters pertaining to the children S-------- R-----S------ (DOB 4/--/14) and J--- R-----S------ (DOB 3/--/13).² In the Dependency/Neglect Petition of March 30, 2015, DSCYF/DFS alleged that S-------- was admitted to AI duPont Hospital on March 9, 2015 with an "acute subdural hematoma to the head and an old fracture to the left tibia" and again admitted to AI duPont Hospital on March 18, 2015 with "another subdural hematoma." The Petition also alleged that S-------- was in Father's care at the time of the first admission and in Mother's care at the time of the second admission. Following a two-day Adjudicatory Hearing held in October and December 2015, the Court issued a sixteen-page Adjudicatory Hearing Order on December 28, 2015 wherein it found in paragraph 1 as follows:

2 File No. CN15-02247 and Pet. No. 15-08381.

Clear and convincing evidence exists to believe that S-------- R---- S------ (hereinafter "S--------") born April 26, 2014 has been abused pursuant to 10 Del. C. §901(1)(b)(1) by both Gabriela S------ (hereinafter "Mother") and G-------- R---- (hereinafter "Father") based upon S--------'s March 9, 2015 hospital admission for a healing left tibia fracture, a left acute subdural hematoma, and bilateral retinal hemorrhaging while in the care of Father and his March 18, 2015 hospital admission for a left acute subdural hematoma requiring surgical intervention and additional bilateral retinal hemorrhaging while in the care of Mother.

The Court also found in paragraph 4 as follows:

Clear and convincing evidence was shown that Mother and Father have collectively subjected S-------- to chronic abuse pursuant to 13 Del. C. §1103(a)(7) based on the injuries aforementioned. Additionally, both Mother and Father have subjected S-------- to life-threatening abuse as their actions caused S-------- to develop severe life-threatening head trauma pursuant to 13 Del. C. §1103(a)(8).³

The Court continued with a very lengthy analysis of the explanations by Mother and Father of how the various injuries occurred and the analyses of two experts on whether these explanations could account for the injuries to S--------. As to the initial head injury, the Court found in paragraph 8 on page 8 "that the history provided by Mother and Father is inconsistent with the medical findings and that Father abused S-------- either by a shaking mechanism or as a result of a higher fall than that disclosed." As to the healing leg fracture, the Court found in paragraph 9 on page 9 that "[i]t is unreasonable that a parent would have no explanation as to a leg fracture in an infant. Therefore, the Court believes the leg fracture was caused by abuse perpetrated by a parent." Finally, as to the second head injury, the Court found in paragraph 12 on page 13 that "S-------- did suffer a second trauma that was not explained by the history provided [...and...] that because S-------- was in the sole care of Mother at the time of his second hospital admission and additional head injuries [...], Mother caused S--------'s injuries through abuse or neglect." After a November 29, 2016 hearing, Mother's and Father's parental rights in S-------- and J--- were terminated. In its Order of December 29, 2016, the Court found the statutory grounds for termination were met as to both parents by virtue of their voluntary relinquishment of their rights in S-------- and J--- pursuant to 13 Del. C. § 1103(a)(1), and that there was clear and convincing evidence that termination was in the best interest of both boys. As part of the November 2016 termination of parental rights hearing involving S-------- and J---, Mother also consented on the record to the termination of her parental rights in G------, the half-brother of Child, J--- and S--------, which was later memorialized in the Court's Order of May 2017.

3 Although the quoted passage correctly invoked both 13 Del. C. §1103(a)(7) and (a)(8) and both "chronic abuse" and "life-threatening abuse," the Court notes that in issuing that Order it incorrectly referenced the language of "life-threatening abuse" in relation to 13 Del. C. §1103(a)(8) when "chronic abuse" and "life-threatening abuse" are both related to 13 Del. C. §1103(a)(7). Therefore, it was the clear intent of the Court in separating that finding into two distinct sentences that the first sentence was to reference "chronic abuse" and "life-threatening abuse" pursuant to (a)(7) and the second sentence was to reference "unexplained serious physical injury" pursuant to (a)(8).

As to the herein matter regarding Child, in the Dependency/Neglect Petition for Custody and Motion for Emergency Ex Parte Order of September 28, 2016, DSCYF/DFS alleged that Child, who was four and a half months old at the time, was "at risk of serious injury based on the family's substantiated DFS history" as to S--------. The Petition also noted that Mother and Father had taken Child to A.I. duPont Hospital on August 30, 2016 because she was "clenching her hands really tight" for reasons unknown to the parents, but a physical abuse evaluation done at the hospital resulted in no findings of abuse. The Court, through the Honorable Natalie Haskins, granted the Motion for Emergency Ex Parte Order on September 28, 2016 placing Child into the care of DSCYF/DFS. The Court appointed counsel for Child on October 4, 2016. Mr. Tsakataras and David Facciolo, Esquire remained assigned to Father and Mother respectively as they were already representing the parents in the then still pending matter involving S-------- and J---. At the Preliminary Protective Hearing held on October 5, 2016, the Honorable Felice Kerr found probable cause to believe there is a "substantial imminent risk of physical, mental or emotional danger" to Child based on the prior injuries to S--------.

In its ten-page Order following the Adjudicatory Hearing held on December 1, 2016, the Court, acknowledging that there was no evidence that Child had been abused in Mother's and Father's care, noted that the Delaware Code permits the Family Court to give appropriate weight to the dependency, neglect or abuse history of the parties.⁴ Thereafter, it engaged in a lengthy discussion of "anticipatory" or "derivative" dependency. In so doing, it noted that it found Division of Family Services v. J.W., a case involving unexplained serious injury to a sibling prior to the birth of the child at issue and no evidence of injury to the child at issue, to be analogous as to its facts and persuasive as to its finding of neglect as to the later born child, with a key difference being that the child in J.W. was immediately removed from his home at birth whereas Child was removed after four months.⁵ The Court also noted on page 7 that "a limitation must be placed on the extent 'derivative' or 'anticipatory' neglect may be used as a basis for establishing dependency." As a result, the Court cited to New York precedent in support of its conclusion on page 8 that: "derivative dependency findings should require three additional elements: (1) that the prior finding demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in that parents care, (2) that the prior finding is proximate in time to the derivative proceeding and (3) that the Court can reasonably conclude in the aggregate that the conditions resulting in the prior finding likely continue to exist."⁶ Analyzing the facts as applied to these three factors, the Court set out as follows:

4 10 Del. C. § 901(8) and (18) both note in defining "dependent child" and "neglected child" that "[i]n making a finding [...] under this section, consideration may be given to dependency, neglect or abuse history of any party."

5 2013 WL 7761082, at *1 (Del. Fam. Ct. Oct. 30, 2013).

6 See, e.g., In re Hunter YY., 18 A.D.3d 899, 900, (N.Y. App. Div. 2005).

In this case, the underlying finding of dependency of the prior sibling was chronic, life-threatening abuse. The severity of the abuse perpetrated against [S--------] sufficiently demonstrates to this Court such an impaired level of parental judgment as to create a substantial risk of harm to Child. Second, this chronic, life-threatening abuse occurred proximate in time to DSCYF/DFS seeking custody of Child. Third, Mother and Father have never provided a reasonable explanation or otherwise established the underlying conditions which led to their chronic, life-threatening abuse of Brother. Without identifying the underlying cause the Court is left with no assurance of remedy, despite the fact that Mother and Father have both taken parenting classes and engaged in mental health treatment. [...] Additionally, although the medical examination of Child did not result in evidence of abuse, the cause of Child's fist clenching was never determined. In the aggregate, the Court
finds it is reasonable to conclude that the conditions resulting in Mother and Father's chronic, life-threatening abuse of [S--------] have not been remedied.

After concluding its analysis, the Court found on page 9 that DSCYF/DFS had established derivative dependency as to Child by a preponderance of the evidence, the requisite evidentiary standard at that stage. In issuing the Order, the Court also granted DSCYF/DFS's oral Motion for No Reasonable Efforts pursuant to 13 Del. C. §1103(d).⁷

7 Although the Court did not expressly spell out at the conclusion of the Adjudicatory Hearing Order why it was granting the Motion for No Reasonable Efforts, it noted in the later Permanency Hearing Order paragraph 3 that it had granted the Motion "due to the Court's findings that the 'derivative risk' to the Child based on the chronic, life-threatening injuries suffered by her sibling had not been remedied by the parents. The Court's Order noted that the injuries occurred in proximate time to DSCYF/DFS seeking custody of the Child and that Mother and Father have never provided a reasonable explanation for the sibling's severe injuries."

At the Permanency Hearing held on April 21, 2017, the Court found that Child continued to be dependent based on the "severity of injuries" suffered by S-------- while he was in Mother's and Father's care. The Court also found in relevant part in paragraph 11 as follows:

Upon analysis of the facts in this case and the above factors, the Court continues to find that derivative dependency is established with regard to this Child. The Court finds that not enough time has elapsed to determine that the Child is no longer at risk. Mother and Father continue to reside together and no explanation has been provided to the Court or DSCYF/DFS as to how the Child's sibling endured chronic, life-threatening injuries.

Nonetheless, the Court agrees that Mother and Father should not necessarily be barred from exercising their parental rights for an indefinite period of time [...] The Court finds that Mother and Father have a right to have available to them the opportunity to demonstrate that the Child will no longer be dependent in their care.

As a result, the Court directed DSCYF/DFS to increase Mother's and Father's visitation opportunities with Child. Finally, during the April 21^st hearing, DSCYF/DFS initially brought an oral Motion to Change the Goal to TPR/Adoption which it later memorialized in a form of Order that the Court signed on May 17, 2017 under concurrent goals of reunification and TPR/adoption.

At the Permanency Review Hearing held on September 18, 2017, the Court continued to find that Child was dependent based on the injuries suffered by S--------.⁸ In paragraph 4 of the Order issued following the hearing, the Court noted that the parents had engaged in various services that would have been elements of a case plan if DSCYF/DFS had been required to offer them a case plan. However, DSCYF/DFS continued to have concerns about Child's safety in her parents' care because the injuries to S-------- remained unexplained and Mother and Father continued to reside together. As a result, the Court concluded in relevant part in paragraph 6 as follows:

8 The Court notes that David Holloway, Esquire replaced David Facciolo, Esquire at this hearing and continued to represent Mother through day one of the TPR hearing.

Upon analysis of the facts in this case and the above factors, the Court continues to find that derivative dependency is established with regard to Child. While the Court finds that not enough time has elapsed to determine that Child is no longer at risk, Parents should be allowed, where and when appropriate to demonstrate not only that they pose no unreasonable risk to Child, but also that there is a developing parent-child bond. To this end, it is appropriate that DSCYF/DFS consider increasing visitation including visitation in Parent's home, so long as no unreasonable risk to Child is presented.

During the TPR proceeding, the Court took judicial notice of the findings of facts in the prior Court's prior Orders, as recited in summary above.

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."⁹ 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."¹⁰ 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."¹¹ 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."¹² 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.¹³

9 Stanley v. Illinois, 405 U.S. 645, 651 (1972).

10 In re Burns, 519 A.2d 638, 645 (Del. 1986) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)).

11 See id.; In re Stevens, 652 A.2d 18, 24 (Del. 1995).

12 Shepherd v. Clemens, 752 A.2d 533, 538 (Del. 2000).

13 In re K.L.T., 2001 WL 493113, at *10 (Del. Fam. Jan 22, 2001).

A parent's strong interest in his/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. § 722.¹⁴ The Court must also find that the State has exercised reasonable efforts to reunify the family and provided meaningful efforts to case plan with the parents except where for statutorily-created reasons the Petitioner has been excused from making such efforts.¹⁵ 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.¹⁶

14 Id.; see also In re Hanks, 553 A.2d 1171, 1179 (Del. 1989).

15 In re K.L.T., 2001 WL 493113, at *10.

16 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 Child on the grounds of chronic and life-threatening abuse pursuant to 13 Del. C. §1103(a)(7), unexplained serious injury pursuant to 13 Del. C. §1103(a)(8), and failure to plan pursuant to 13 Del. C. §1103(a)(5).

1. Chronic and Life-Threating Abuse

In an Adjudicatory Hearing Order of December 28, 2015, the Court previously found that clear and convincing evidence existed that a sibling of Child had been abused pursuant to 10 Del. C. §901(1)(b)(1) by both Mother and Father. The Court also found that there was clear and convincing evidence pursuant to 13 Del. C. §1103(a)(7) that a sibling of Child had suffered chronic and life-threatening abuse. Because 13 Del. C. §1103(a)(7) references "a child" rather than "the child" as seen in other provisions of 13 Del. C. §1103(a), the Court concludes that it can consider the previous finding of chronic and life-threatening abuse to a sibling of Child as a possible basis for the present termination of Mother's and Father's rights in Child.¹⁷ However, the key issue, as the Court set out in its Adjudicatory Hearing Order as to Child of December 29, 2016, is whether Child is still dependent in Mother's and Father's care under the principle of derivative dependency based on those chronic and life-threatening injuries suffered by a sibling in 2015. As such, the Court will consider the three elements of derivative dependency discussed on page 6 supra.

17 Prior to May 2009, 13 Del. C. §1103(a)(7) referenced "the child" until the General Assembly amended the provision to read "a child."

a. The prior finding demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in that parent's care

As noted above, in the prior Adjudicatory Hearing Order of December 2016, the Court found that "[t]he severity of the abuse perpetrated against [S--------] sufficiently demonstrates to this Court such an impaired level of parental judgment as to create a substantial risk of harm to Child." Unlike the two elements of derivative dependency discussed infra, this finding focuses only on the prior act and not on any later occurring acts by parents or any subsequent remedial steps taken by the parents. Although the December 2016 finding was under the lower preponderance of the evidence standard, the Court finds that there is clear and convincing evidence that the injuries suffered by S-------- in March 2015 demonstrate such an impaired level of parental judgment as to create a substantial risk of harm for Child. While in Father's exclusive care, S-------- suffered a left acute subdural hematoma, and bilateral retinal hemorrhaging. Less than two weeks later, while in Mother's exclusive care, S-------- suffered another left acute subdural hematoma, which required surgical intervention, and additional bilateral retinal hemorrhaging. Whatever the cause of S--------'s injuries, when an 11-month-old child suffers such severe injuries within such a short span of time while in the care of his parents, this is a clear and convincing example of sufficiently impaired parental judgment.

b. The prior finding is proximate in time to the derivative proceeding

As noted above, in the prior Adjudicatory Hearing Order of December 2016, the Court found that S--------'s "chronic, life-threatening abuse occurred proximate in time to DSCYF/DFS seeking custody of Child." In its subsequent Permanency and Permanency Review Hearing Orders, the Court continued to find that "not enough time has elapsed to determine that the Child is no longer at risk." The questions for review before the Court are first, from what point in time to what point in time it should measure proximity of time in this case and second, how much time must pass before a prior finding is no longer proximate in time. S--------'s head injuries occurred in March 2015. In December 2015, the Court found there was clear and convincing evidence that S-------- had been abused by his parents. Child was born in May 2016 and removed from her parents' care in September 2016. Finally, in December 2016, Mother's and Father's parental rights in S-------- were terminated. That same month, in a separate proceeding, Child was found to be derivatively dependent based on S--------'s injuries.

OCA argues that, although there is no bright line rule used by courts, proximity in time should be measured from the termination of parental rights in the prior child to the birth or commencement of the derivative proceeding of the later born child, rather than from the date of the prior child's injuries to the TPR proceeding of the later born child. In support of its position, OCA cites to a two-page New York decision.¹⁸ However, OCA also cites to an Arizona decision on another issue that weighs in differently on this issue. In Mario G. v. Arizona Dept. of Economic Sec., the Court considered both the time span between the "prior incidents of abuse" and the current proceeding and between the prior TPR proceeding and the current proceeding in making a proximate time finding.¹⁹ As to the second issue, OCA concedes that five years would be sufficient to demonstrate that the prior finding is no longer proximate, but not necessarily less than that span. Whereas, one New York court found that prior findings were "too remote in time" to apply to another child born five years later,²⁰ another New York court found that prior findings were "sufficiently close enough in time" to apply to another child born about two or three years later.²¹ Furthermore, in Mario G., the Arizona court found the prior and current matters to be proximate in time where the prior serious abuse was less than three years prior to removal at birth of the later born child, and the prior TPR proceeding was about nine months prior to the removal.²²

18 In re Dana T, 896 N.Y.S.2d 545, 546 (N.Y. App. Div. 2010) (noting that it was measuring time from "prior adjudication of neglect" to removal of later child at birth).

19 257 P.3d 1162, 1167 (Ariz. Ct. App. 2011).

20 Id. at 546.

21 In re Hunter YY, 795 N.Y.S.2d 116, 116 (N.Y. App. Div. 2005) (only noting the birth year of the later born child and not birth month).

22 257 P.3d at 1167 n.6.

For his part, Father argues, without citing to any case law for support, that there should not be a proximate in time finding because the Court should measure time from the date of the prior injury to present, and it has been over four years since any child has sustained harm while in Mother's and Father's care to present. However, Father does cite to a two-page New York decision that measured time from the date of the prior child's injuries to the birth/removal of the later born child in reaching its conclusion that the events were not proximate in time.²³ As to the second issue, Father argues that, instead of setting a fixed amount of time after which events are no longer proximate, the Court should consider the totality of circumstances. In support of his position, he cites to In re P.E.G., which found that the totality of circumstances supported terminating the parental rights in a child who was born/removed only five months after a prior TPR, but almost five years after the older siblings were removed from the parents' care, due to the severe and long-term mental illness of the parents.²⁴

23 In re Monica C.M., 968 N.Y.S.2d 143, 144

24 2004 WL2921862 at *3, 5, 8, 10 (N.Y. Fam. Ct. Dec. 13, 2004); See also In re Monica C.M., 968 N.Y.S.2d at 144 (considering both "limited duration and nature of the sexual abuse" and the "remoteness of time" to conclude later born child not derivatively neglected).

After considering the positions of the parties, the Court upholds its conclusions of law in earlier Orders that the prior finding is proximate in time to the derivative proceeding. In this matter, the Court counts from December 2015, the date the Court issued its decision that there was clear and convincing evidence that S-------- had been abused by his parents, rather than the March 2015 dates of S--------'s head injuries. The Court finds the December 2015 date to be more appropriate than December 2016, when Mother's and Father's parental rights in S-------- were terminated by consent, because it was in the December 2015 Adjudicatory Hearing Order and not the later TPR Order that the Court first made its finding of abuse under the clear and convincing standard. The Court also only counts to September 2016, and not to present as Father argues, because although Mother and Father have continued to have contact with Child even in the home, no contact has been unsupervised since September 2016. Therefore, it was less than one year from the December 2015 prior finding to the September 2016 derivative proceeding. Employing both Father's totality of the circumstances test and the cases cited by OCA, the facts in this case support a proximate in time finding by clear and convincing evidence due to the severity of S--------'s head injuries and the fact that the parents never provided a reasonable explanation for those injuries. Even if the Court had started counting from S--------'s injuries in March 2015 to September 2016, the passage of 1.5 years from the prior injuries to the derivative proceeding would still have resulted in a proximate time finding under persuasive case law from other states.

c. The Court can reasonably conclude in the aggregate that the conditions resulting in the prior finding likely continue to exist

As noted above, in the prior Adjudicatory Hearing Order of December 2016, the Court found that Mother and Father had never provided reasonable explanations of the prior abuse of S-------- or Child's fist clenching. Therefore, the Court was "left with no assurance of remedy" despite the subsequent steps by the parents to attend parenting classes and by Mother to engage in mental health treatment. In its subsequent Permanency and Permanency Review Hearing Orders, the Court continued to express concern that Mother and Father continued to reside together and provide no explanation of S--------'s injuries. However, the Court permitted the parents to demonstrate that they no longer posed an unreasonable risk to Child and that they had cured the issues that led to the injuries suffered by S--------.

DSCYF/DFS and OCA argue that the conditions resulting in the prior finding continue to exist because the parents have not provided a reasonable explanation for S--------'s injuries or accepted responsibility for his injuries, they continue to reside together, they are now also working together, they have no plans to alter their relationship status, and they have a limited support system to rely on to ensure Child is protected if she is returned to their home. In support, they cite to case law from other states that upholds removing a later born child from the home in order to protect that child from suffering the same abuse/neglect as suffered previously by older siblings. For example, they rely on an Arizona Court of Appeals decision where that court terminated the parents' rights in a child born nine months after the parents' rights in older siblings had been terminated following numerous serious injuries suffered to one of the older children during three separate occasions.²⁵ However, the Court disagrees that the facts in that case are sufficiently analogous to be helpful under this factor. In the Arizona case, the parents did not plan to co-parent if the child was returned to their care, the parents had engaged in services following the first injuries but that did not prevent subsequent injuries from occurring, and the subsequent injuries had been explained.²⁶

25 In re Mario G., 257 P.3d at 1167-68.

26 Id.

DSCYF/DFS also cites to two cases that support finding one parent culpable for the acts of the other parent. For example, the Supreme Court of Connecticut has found that "if a parent continues to expose a child to the risk of serious physical injury by associating with a dangerous individual, after the child has been inflicted with a nonaccidental or inadequately explained serious physical injury while in the care of that individual, termination of the parent's rights may be warranted so as to protect the child."²⁷ In that case, the five-week-old child came into care after suffering life-threatening injuries and the mother testified that, despite seeing the father be aggressive with the child, she continued to let him remain alone with the child.²⁸ Additionally, in April 2019 the Delaware Supreme Court upheld a Family Court decision to essentially impute the mother's substance abuse issues on father because they continued to live together, and find that it was not in the child's best interest to rescind custody to the father.²⁹ Although the Court has no reason to dispute the validity of this legal principal as applied to TPR matters, the Court declines to find that either Mother or Father has a glaring untreated issue that if it was imputed to the other parent would significantly weight the case in favor of TPR. Rather, the Court's main concerns regarding this case are with issues shared by the parents collectively.

27 In re Jorden R., 979 A.2d 469, 483 (Conn. 2009).

28 Id. at 473-75.

29 Lindel-Packer, 2019 WL 1769276 at *4 (finding that "the Family Court could not grant [father] custody of [the child] until the court could make a finding that the mother's issues with substance abuse were resolved or that the father no longer lived with the mother.")

Father and Mother argue that conditions resulting in the prior finding no longer exist. They both rely on all the progress that Mother and Father have made on what would have been their case plans had DSCYF/DFS been required to plan for reunification with them. For example, Mother has engaged in individual and group counseling, the parents have completed a parenting course and are engaged with a family interventionist, Father is attending domestic violence classes, and they have stable housing and employment. In addition, a DSCYF/DFS case note from September 2017 sets out that the parents were then "compliant w/ their case plan." Furthermore, Child was properly cared for during the four months that she was in parents' care and there were no suspicions of abuse during any of the seven well checks that Child had while she was in her parents' care. Father also argues that placing substantial weight on the unexplained nature of the injuries and the absence of a parent admitting responsibility for S--------'s injuries is an unconstitutional violation of Mother's and Father's fifth amendment privilege against self-incrimination.

After considering the positions of the parties and the evidence presented at the hearings, the Court finds that there is clear and convincing evidence that the conditions resulting in the prior finding likely continue to exist. S-------- suffered chronic and life-threatening abuse when in Mother's and Father's care in 2015. Since that abuse occurred, Mother and Father gave birth to Child in 2016. For all times since 2015 to present, Mother and Father have remained living together and in a romantic relationship. According to Mother's December 2018 testimony, they have all intention to maintain their relationship. In December 2016, the Court found Mother's and Father's explanations of how S-------- suffered his injuries to be inconsistent with the persuasive medical testimony. Since then, Mother and Father have not provided the Court with any different accounts of what happened. As a result, the Court is still in the same position it was in in December 2016 when it found it had no assurance of a remedy. Without knowing if the injuries were due to lack of supervision, domestic violence, unsafe living conditions or something else, it is very difficult to identify and plan out the optimal remedy. Therefore, rather than focusing on what Mother and Father have done to change their conditions since December 2015, the Court believes it is more helpful to look at what the parents have not done since that time to address the serious and unexplained injuries to S-------- and create an environment in their home wherein Child or any future child would not be at risk of similar injuries as those suffered by S--------. After all, it must be the safety of Child which remains the central consideration in the Court's analysis.

As the Delaware Supreme Court found in Lindel-Packer, this Judge cannot ignore the fact that Mother and Father have not separated. Furthermore, the Court agrees with DSCYF/DFS and OCA that it is important to note, although not dispositive alone,³⁰ that the parents continue to fail to provide a reasonable explanation for S--------'s injuries, even if for no other reason than as stated by A.I. duPont social worker, Doris Temple, in her expert testimony at April 2017 Permanency Hearing that "she would be more concerned about trying to provide medical oversight in a case of unexplained injury than explained injury because in unexplained injury cases there is no opportunity of remediation of the caregivers who cause the injury." Furthermore, there was no evidence that either Mother or Father have focused any services on learning how to protect young children from unsafe environments. Although Mother and Father have both received services related to domestic violence, there was no express testimony that any of those services dealt with anything other than intimate partner violence. Ms. Randall also testified that, after conducting observations of Mother's and Father's caregiving, they have too many weaknesses in their parenting for her to feel comfortable recommending that Child be returned to their care. In her November 2017 report, Ms. Randall also opined that Mother and Father "are both unable to understand, internalize and implement parenting skills to provide a consistent and predictable environment, a safe and nurturing parent child relationship and responsive interactions." Finally, the Court rejects Father's argument that by virtue of Child now being three years old and verbal that she has outgrown the prior conditions that resulted in S--------'s injuries when he was 11 months old. Although three year olds are not vulnerable in the exact same way as 11 month olds, they are still extremely vulnerable and in need of protection. Even if S-------- had been verbal at the time of his two head injuries, it is illogical that somehow by being verbal the injuries would not have occurred or the extent of the injuries would have been mitigated. Being a verbal three-year-old does not insure abuse will not occur, only perhaps there may be some explanation as how it occurred after the fact.

30 See e.g., J.J. v. Dep't of Child. & Fam., 994 So.2d 496, 502 (Fla. Dist. Ct. App. 2008) (noting that "[i]t is not appropriate to base termination of parental rights on testimony that a parent has failed to admit to abuse").

Additionally, the Court disagrees with Father that the parents have fifth amendment rights at stake in this case. This is not a criminal proceeding and therefore the fifth amendment does not apply. Furthermore, if the parents are more interested in making sure their rights are protected than that one of their children is protected from future harm, the Court expresses the same concern as voiced by the Arizona Court of Appeals in Mario G that the parents are primarily concerned with their own best interests and not Child's in defending against this matter.³¹

31 257 P.3d at 1167.

2. Unexplained Serious Injury

In an Adjudicatory Hearing Order of December 28, 2015, the Court previously found that clear and convincing evidence existed that a sibling of Child had been abused pursuant to 10 Del. C. §901(1)(b)(1) by both Mother and Father. The Court also found that there was clear and convincing evidence pursuant to 13 Del. C. §1103(a)(8) that Child had suffered unexplained serious physical injury (see footnote 2 supra). Because 13 Del. C. §1103(a)(8) references "a child" rather than "the child" as seen in other provisions of 13 Del. C. §1103(a), the Court concludes that it can consider the unexplained serious injury to a sibling of Child as a possible basis for the termination of Mother's and Father's rights in Child.³² Even if the Court does not expressly rely on the prior findings in December 2015 due to the absence in that order or subsequent orders regarding S-------- to the phrasing "unexplained serious physical injury," the Court can establish that by clear and convincing evidence at this stage. It has previously found by clear and convincing evidence that S-------- was abused. It has also been found that the explanations previously given by Mother and Father were not reasonable. Therefore, the causes of the injuries to S-------- remain unexplained, and there is clear and convincing evidence that S-------- suffered unexplained serious physical injury. It is not necessary for the Court to determine which parent caused a specific injury to a child in order to establish this ground for TPR, only that the injuries occurred.³³ Whether that finding was established in December 2015 or now, the key issue, as the Court set out in its Adjudicatory Hearing Order as to Child of December 29, 2016, is whether Child is still dependent in Mother's and Father's care under the principle of derivative dependency based on those unexplained injuries suffered by a sibling in 2015. As such, the Court adopts the above analysis of the three elements of derivative dependency discussed on pages 10-16 supra and finds that Child is still derivatively dependent as to her parents under this "unexplained serious physical injury" ground as well.

32 Prior to May 2009, 13 Del. C. §1103(a)(8) referenced "the child" until the General Assembly amended the provision to read "a child."

33 Div. of Fam. Servs v. A.L., 2012 WL 4861426, at *12 (Del. Fam. Ct. May 23, 2012).

3. Failure to Plan - Parents

The Court has previously found that there is clear and convincing evidence supporting TPR on the basis of both 13 Del. C. §1103 (a)(7) and (a)(8). The Delaware Code only requires that a finding that "1 or more" of the grounds exist. Therefore, the Court need not also find that Mother and Father have both failed to plan in order to establish a basis for TPR. However, the Court will still engage in a brief analysis under this ground as well, establishing why there is clear and convincing evidence that both Mother and Father have failed to plan adequately for Child's physical needs or mental and emotional health and development.³⁴

34 Mother's and Father's attorneys both argued at length that Mother and Father should not be held at fault for not completing mental evaluations or for Father's long delay in finding a Spanish-language domestic violence course because neither DSCYF/DFS nor Ms. Magana Luna were even aware of any such services offered in Spanish. None of the Court's analysis under this ground relies on the fact that Mother and Father are Spanish language speakers.

Since the time that Child entered DSCYF/DFS custody in September 2016, Mother and Father have taken many active steps toward completely what would have been a case plan had DSCYF/DFS been required to case plan with them. They have completed a parenting class. Mother has engaged in mental health treatment. Father is engaging in a domestic violence course. They have sufficient income and appropriate housing, and have consistently engaged with Child during supervised visitation sessions. But, despite all that Mother and Father have done, there was no testimony during the three-day proceeding from any professionals involved in the case that the parents are ready to have Child returned to their care.

Ms. Randall, the expert for DSCYF/DFS and OCA, testified in favor TPR. Although Ms. Randall reached this decision in part out of concern that Father, unlike Mother, had denied a need to engage in Spanish-language mental health treatment, the Court does not believe either she or Dr. Romirowsky faulted Mother or Father for not completing a mental health evaluation where no known Spanish-language options existed in Delaware. Even Mother's and Father's expert, Dr. Romirowsky, testified that he believes the best option in this case would not be to return Child to Mother's and Father's care but to set up Child's foster parents as her permanent guardians in order to maintain Mother's and Father's legal connection with Child, a legal impossibility. The Delaware Code does not permit permanent guardianship in such foster care cases because Child is not at least 12 years of age, her foster parents are not the permanent guardians of one of Child's siblings, and Child does not receive substantial government benefits for a serious physical and/or mental disability.³⁵ The Court refuses to destine Child to remain in foster care for another nine years so that she can be eligible for permanent guardianship. After spending almost three years in DSCYF/DFS custody, Child is entitled to permanency.

35 See 13 Del. C. §2353 (a)(6).

Father argues that rather than finding that there is sufficient evidence that the parents have failed to plan, the Court should find as a Florida court did in J.J. v. Department of Children & Families that the correct recourse is not to terminate parental rights at this stage but to offer a case plan and time to comply with the plan.³⁶ Whereas the Court has, in other instances, previously denied TPR and ordered DSCYF/DFS to offer a parent a case plan and time to comply with the plan, the Court declines to follow J.J. in this particular case because the Court believes that the facts in this case are sufficiently distinct from J.J. In J.J., twins were born to two parents four-and-a-half years after a previous TPR to an infant sibling based on serious injuries.³⁷ Immediately at their birth, the twins were removed from the mother's care and the case was expedited such that the initial TPR hearing occurred when the twins were only ten months old.³⁸ Additionally, the mother had separated from the father, she had completed the terms of her five-year probation related to the older sibling's injuries, and the mother was living with a support person who offered to help her care for the twins.³⁹ Here, the parents are still together, they are not living with a support person who can help protect Child, and there is limited evidence that the parents have focused any services on addressing the past injuries to the older sibling. Additionally, and perhaps most importantly, the first TPR hearing in this matter did not commence until after Child had been in DSCYF/DFS custody for over twenty months and the last TPR hearing did not conclude until Child had been in care for almost thirty months. Furthermore, although the Court granted the Motion for No Reasonable Efforts, the Court also consistently ordered, as highlighted in the Permanency and Permanency Review Orders, that the parents in this case be given opportunities to show that they can appropriately care for Child. Therefore, the Court declines to deny TPR and offer Mother and Father a formalized case plan and time to comply with that plan.

36 994 So.2d at 503.

37 Id. at 497-98.

38 Id. at 498.

39 Id. at 498, 502.

B. Reasonable Efforts

In December 2016, the Court granted DSCYF/DFS's oral Motion for No Reasonable Efforts pursuant to 13 Del. C. §1103(d). Because the grounds for termination of parental rights include life-threatening injuries and chronic abuse under 13 Del. C. §1103(a)(7) and unexplained serious physical injury under 13 Del. C. §1103(a)(8), DSCYF/DFS is statutorily "not required to perform, but is not prohibited from performing, reunification and related services." Therefore, the Court is relieved from determining if the State exercised reasonable efforts to reunify the family and provided meaningful efforts to case plan with the parents. Mother and Father argue that their constitutional rights have been violated as a consequence of the no reasonable efforts finding. However, the Court disagrees that any due process or equal protection rights are implicated when Child was not placed in a Spanish language foster home or given a Spanish language tutor, or the parents' were not provided with a language interpreter during Ms. Randall's two Marschak Interaction Method (MIM) parenting assessments. The parents were always provided Spanish language interpreters during the in-Court hearings. Their entitlement to interpreters during a court proceeding does not extend to out-of-Court matters like the MIMs. Furthermore, there was no evidence, prior to Mother's December 2018 testimony, that Mother and Father ever informed Ms. Randall that part of their difficulty during the MIMs was because Child could not understand them when they spoke to her in Spanish.

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.⁴⁰ 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. §722.⁴¹ The Court has also held that some factors may be given more weight than others in the Court's analysis.⁴² The Court will engage in a factor by factor analysis as to both Father and Mother below.

40 See Div. of Family Services v. Hutton, 765 A.2d 1267, 1272 (Del. 2001) (citing in re Burns, 519 A.2d 638, 643 (1986)).

41 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."

42 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;

Father never testified during the TPR proceeding. However, Mother testified on his behalf that he wants Child returned to their home. Therefore, the Court can reasonably conclude that Father opposes the termination of his parental rights. Mother also opposes the termination of her parental rights and expressly testified that she wants to be "given an opportunity" to raise Child. Mother also stated that if Child were returned to their home, Mother would support maintaining future contact between Child and her foster parents, R----- and C-------- M------ (hereinafter "Foster Parents").

Therefore, the Court finds that this factor favors denying the Petition as to both parents.

2. The wishes of the child as to his or her custodian or custodians and residential arrangements;

Due to the very young age of Child at the time of the TPR trial, the Court did not interview her in order to ascertain her wishes. Furthermore, there was no testimony during the trial about Child's express preference going forward, and the Court declines to consider under this factor the opinions of others who report to speak on what they believe to be Child's wishes or her best interests. Therefore, the Court finds this factor to be inapplicable.

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; ⁴³

43 OCA and DSCYF/DFS both believe that the Court is permitted to consider Mother's and Father's interactions with their other children under this factor. However, the Court disagrees and will only focus on their interactions with Child. The express focus of this factor is not on the interactions of the parents with other relatives but rather on "the child" and his/her interactions/interrelationship with others.

Child was removed from Mother's and Father's home in September 2016 when she was four-and-a-half months old. Since that time, Mother and Father have been afforded regular supervised contact with Child, but DSCYF/DFS exercised its discretion in never offering any unsupervised contact. Mother has not missed a visit. Father has only missed occasional visits because of work and other reasons, but he has also been late fairly regularly. Initially, the supervised visits were for one hour weekly. In December 2016, the visits temporarily increased to twice a week for one hour, but later were reduced by DSCYF/DFS back to once a week for one hour from January 2017 through April 2017. In May 2017, the visits extended to 90 minutes once per week following the Court's direction to increase visits. In June 2017, the 90-minute visits increased to twice a week at which time Ms. Magana Luna became the primary supervisor. The visits then transitioned into the home in December 2017 after DSCYF/DFS found the home appropriate. In 2018, at some time between the first and third day of TPR hearings, the visits temporarily changed to three hours once a week but went back to 90 minutes twice a week at the request of the parents.

Neither DSCYF/DFS nor Ms. Magana Luna reported any major issues during any of the visits related to the parents' supervision or care of Child, and Ms. Magana Luna felt that the visits were "strong/adequate." Ms. Magana Luna only voiced concern that Mother once offered Child a sip of a coffee drink, and that Mother and Father bought Child a bike for which she was not developmentally ready to take outside. Before the visits moved to the home, the parents brought snacks and drinks, diapers and wipes, and a backpack full of toys to the visits for Child's use. Mother would do the caregiving, like diaper changes, but both parents would play with Child. Initially, Child gravitated toward Mother but then around February 2018 Child showed an increased connection with Father, according to Ms. Magana Luna.

Despite having visits in the home since December 2017, parents have been unable to establish a bathing or napping routine for Child, to demonstrate that they can do more than feed Child, teach her Spanish, and play with her. Ms. Magana Luna only noticed one bathing attempt, as of April 2018, that Mother aborted after Child manifested she was scared of the water. Ms. Randall testified that the three-hour visits in 2018 were returned to twice a week for 90 minutes because Mother and Father struggled with implementing naps and baths and found the longer visits more stressful. Ms. Randall also testified that she believes it was ideal to schedule the three-hour visits during Child's typical naptime in order to see if the birth parents could meet her daily needs. The Social Report, issued in December 2017, also notes no other concerns about the supervised visits, except Mother's and Father's propensity to offer Child sugary drinks and snacks, and praises Mother for her high degree of attentiveness to any potential medical issues for Child such as scratches and mosquito bites. Furthermore, the Social Report reads that Child "appears to enjoy visiting with her parents each week and she often greets them with a smile and hug." Parents' interactions with Child have always been for limited time duration and always supervised. No evidence exists as to how they would interact if Child was left in their care for longer periods of time, which they rejected, or overnights, or if unsupervised. Nevertheless, based on the observations testified to by Ms. Magana Luna alone and noted in the Social Report, there would be no basis by which the Court could find that this factor favored granting the Petition.

However, Ms. Randall observed two supervised visits at the DSCYF/DFS office, one in October 2017 and one in October 2018, and came away with a largely negative assessment of the parent-child relationship. Regarding the October 2017 visit, Ms. Randall noted that Father stayed at a bench where there was food for Child and Child only interacted with Father just enough to get food from him. Between the two parents, Child primarily interacted with Mother but she sometimes openly rejected Mother and seemed more interested in playing with the toys than Mother, despite Mother's clear love for Child. Ms. Randall expressed concern that Child avoided physical contact with either parent, and that Father did not seem to know how to interact with Child.

Regarding the October 2018 visit, Ms. Randall noted that Father tried to engage Child in part by intermittently teasing her. Although Ms. Randall opined that teasing can be okay if a child has a strong relationship with a parent, she does not believe the parents have a strong relationship with Child. Ms. Randall also noted that Child clearly did not want to be teased, and rejected Father by pushing him away and telling him to stop. Despite that, Father continued to tease Child, such as by taking her toys and hiding them, and laugh at Child. Instead of intervening on behalf of Child, Ms. Randall noted that Mother also laughed at Child. Father's and Mother's responses only made Child angrier. Because of the teasing, Child vacillated between having fun and being stressed by the October 2018 visit. There were times that she permitted Mother to nurture her but Ms. Randall believes that Child primarily rejected Father. In her written report following the observed visit, Ms. Randall expounded on the teasing by calling Father's apparent desire to provoke Child to anger or frustration as "negative and ineffectual parenting." She also added that "if the child is returned to birth father's care and he continues these interactions with her, it will only create a relationship which is difficult, unhealthy, stressful and unpredictable for the child."

In addition to observing the two supervised visits, Ms. Randall also conducted two MIM assessments with Mother and Father, first in November 2017 and then again in September 2018. The MIM tests caregivers in four domains (structure, engagement, challenge and nurture) over ten different age-appropriate activities. Mother and Father were both provided an interpreter and Ms. Randall testified that Mother and Father indicated that they understood the directions for each activity, which were interpreted to them from English.

In the November 2017 MIM, neither parent completed all ten activities, which led Ms. Randall to opine that they lack structure in their lives. According to Ms. Randall, Mother was also unable to set limits or boundaries to keep Child safe such as when she let Child (who was 18 months old at the time) put a water bottle cap in her mouth and said "no" but also laughed as Child repeatedly put it in her mouth. Ms. Randall was also critical of how Mother sometimes used physical force, such as grabbing Child's elbow, and food to gain Child's compliance. However, Mother later testified that she used food because food was used with her in Mexico as a child in order to gain her compliance. Ms. Randall found Father's weakness in this domain even more problematic as sometimes he even engaged in activities that were not part of the MIM and he passed authority over to Child for most of the MIM such that she would reject activities and throw tantrums, and Father did not know how to respond. Child also did not listen to Father when she put lotion in her mouth despite Father saying no. Ms. Randall expressed concern in response to this domain about how effectively the parents could protect Child if they ever had unsupervised contact with Child.

Under the engagement domain, Mother was so playful with Child that Ms. Randall observed that it became a weakness because Mother struggled to maintain control or be able to move from one task to the next. Father also failed to engage Child but for a different reason. Ms. Randall testified that Child would push Father away, throw toys at Father, and hit and pinch his face. Father tried different methods to calm her but was only successful when he used food. As to nurture, Mother tried and succeeded at times to nurture Child, whereas Father was only successful when food was involved. However, Child also sometimes did not receive Mother's nurture such as by not wanting to sit on Mother's lap during a book or becoming stiff when Mother touched her, causing Ms. Randall to conclude that Child does not accept Mother as a nurturing caregiver. Finally, as to challenge, Ms. Randall observed that Mother appeared to be aware of Child's developmental level but Father did not. In her concluding comments regarding the 2017 MIM, Ms. Randall testified that Mother seemed overwhelmed in the domains but clearly loved Child, and Father's deficits in the domains overshadowed any strengths.

In the September 2018 MIM, Ms. Randall testified that Mother did worse in the structure domain than before because she spent too much time on each activity and Child would lose focus and engage in tantrums. The written report noted "increased verbal defiance and rejection by child toward mother, lack of willingness for child to accept mother's parental role and a parent who appears unable to guide the child." According to Ms. Randall, Father again struggled in this domain because he did not complete all the tasks and tried to gain compliance through pleading and pulling on Child's body, which was not always successful. As to engagement, Mother's playfulness was again a strength but this time Child consistently rejected Mother's attempts to engage. Father's attempts to engage were also sometimes met with open rejection. As to nurture, Mother was unable to calm Child at times when she became frustrated, and Father struggled to give nurture and Child struggled to receive it. Finally, both parents struggled in the challenge domain. Whereas Mother praised Child but Child did not receive Mother's praise, Father primarily pleaded with Child rather than encouraged her.

In her concluding comments regarding both MIMs and her observed visits, Ms. Randall testified that she believes even if Child was not abused or neglected in the months that she was in her parents' care as an infant that Mother and Father exhibit "obvious deficient parenting" which can lead to abuse and/or neglect of a child. Following the second MIM, Ms. Randall also noted in her report that the parents "continue to struggle within the domains and continue to be unable to understand, internalize and implement parenting skills to provide a consistent and predictable environment." Ms. Randall also wrote that she believes that Child views her biological parents as akin to her playmates who teach her Spanish, and that the supervised interactions appear to benefit Mother and Father more than Child. Finally, in December 2018, Ms. Randall testified that she believes that Child's lack of attachment with Mother and Father is at least in part due to their "inability to parent" and their "significant deficits" in the MIM domains, and due to Foster Parents' strengths. She also expressed concern that these weaknesses in Mother's and Father's parenting places Child at risk.

Based on her observations, Ms. Randall's recommendation is to terminate Mother's and Father's parental rights in Child but keep the relationship between Child and her birth parents alive to minimize the negative impact of the primal wound and to allow for some cultural amelioration. However, she also recommends significantly reducing the amount of contact that they now have from three hours per week down to occasional supervised dinners and attendance at events like birthday parties at Foster Parents' discretion, instead of maintaining visits on a fixed schedule. Ms. Randall reported that Foster Parents are supportive of keeping this relationship open as long as they believe it to be in Child's best interest. To ease any possible stress to Child, Ms. Randall opined that the supervised visits be gradually reduced from every week to every other week to monthly until they are no longer on a fixed schedule. However, she added that she thinks Child is experiencing more stress at present with the continuation of the visits than she would experience if they were removed completely.

As Mother's and Father's expert, Dr. Romirowsky wrote his own report wherein he generally discussed the primal wound, the negative long-term impact of termination of parental rights and adoption, and the reality that adopted children often spend the rest of their lives searching for their biological parents from a neurobiological need to feel connected. He also wrote that if adoption is the safest option for the child, that it is still crucial that children are able to maintain contact with their biological parents. Dr. Romirowsky also testified in response to Ms. Randall's testimony and written conclusions, all the while noting that he has never met Mother, Father or Child or seen them interact with each other. As to the MIM results, Dr. Romirowsky was also critical of Ms. Randall's use of the MIMs to make authoritative conclusions about Mother's and Father's capacity to parents, when Dr. Romirowsky believes that a MIM should be used for parental guidance and treatment planning. Instead of promoting TPR, Dr. Romirowsky said that, based on the MIM observations and his review of other documents, he would recommend keeping a legal relationship and visitation open between Child and her birth parents, and providing Mother and Father with coaching and assistance to help in such areas as increasing their attunement and learning how to soothe a distressed child.

Although the Court finds Dr. Romirowsky's testimony to be persuasive that the MIM is not designed to make an authoritative conclusion about whether Mother and Father can ever be effective parents, the Court finds Ms. Randall's testimony and written observations persuasive that Mother's and Father's parenting skills have significant deficits at present. All the while recognizing that Ms. Magana Luna has had far more time to observe Mother and Father with Child, and Ms. Magana Luna (in April 2018) did not share Ms. Randall's opinion as to the glaring weaknesses in Mother's and Father's parenting, Ms. Magana Luna was not recalled to testify as to how parents did during the longer three hour visits implemented after April 2018. Furthermore, the testimony has been that most of the supervised visits focused on free play and doing what Child wanted prior to April 2018, whereas the MIMs required Mother and Father to guide the interactions and sometimes try to get Child to do things she did not want to do. Therefore, the Court finds Ms. Randall's opinion to be more informative on Mother's and Father's parenting skills whereas Ms. Magana Luna's testimony is most helpful for noting that Mother and Father have not placed Child in major harm during any of the visits she observed from June 2017 until April 2018. Furthermore, there was no testimony that Child's attachment with her birth parents will increase if she has more time with them, rather the testimony suggests the opposite and that more frequent or longer visits will cause Child more stress and expose her to risk of harm because of Mother's and Father's deficient parenting. Finally, after almost three years in DSCYF/DFS custody, not one witness advocates for unsupervised contact for Mother and Father, much less returning Child to their primary care. As a result, this factor strongly supports granting the Petition.

4. The child's adjustment to his or her home , school , and community;

Child has been in the pre-adoptive home of Foster Parents since she came into care in September 2016. As such, she spent the first four-and-a-half months of her life in the primary care of Mother and Father and the last almost three years with Foster Parents. Child also has been placed in daycare, first at KinderCare and then at a YMCA facility, for the entire time she has been in care. All reports indicate that Child has adjusted very well. Foster Father testified in April 2018 that Child initially was timid and handled stressful situations badly, such as by clenching her fists, but that those were no longer issues for Child. He also testified that bath time in the home is typically a happy time, and that Child is able to nap at both daycare and home on the weekends.

Also in the home is Foster Parents' biological son, G----, who was seven years old at the outset of the TPR hearings. Foster Father noted that Child and G---- interact very well and like to play together.

Ms. Randall praised Foster Father and Foster Mother for their performance on both the November 2017 MIM and September 2018 MIM. They were successful in all four domains both times. As to Foster Father, Ms. Randall specifically noted that he was able to keep Child engaged and provide clear guidance for her through the tasks. As to Foster Mother, Ms. Randall specifically credited her for her ability to use effective coping skills in helping de-escalate Child's temper tantrums and move on to other tasks. Collectively, Ms. Randall noted in her December 2017 report following the first MIM that Child and Foster Parents have a "very healthy and positive relationship" and Child was already viewing them as her "primary attachment figures" by that time. In her November 2018 testimony, Ms. Randall provided an updated assessment that she believed at that time that Child was developing a much stronger and healthier attachment with Foster Parents than with Mother and Father. Ms. Randall also noted in her October 2018 report following the second MIM that Child appears to have a "genuine, warm, trusting and very positive" relationship with Foster Parents and a "strong, healthy, secure attachment" such that Child "views them as her mother and father."

As discussed above, during the time that Child has been in DSCYF/DFS custody, Mother and Father have maintained regular contact with Child. Since June 2017, they have interacted on average about three hours a week. Since December 2017, those interactions have been almost entirely in Mother's and Father's home. Despite the long period that Child has been in the primary care of Foster Parents and the fact that the birth parents have not had any extended periods of unsupervised contact with Child since September 2016, Ms. Randall opined in April 2018 generally that that fact alone does not account for how Child has adjusted to Foster Parents. Rather, she said that some birth parents are able to interact with their children in such a way that it is not noticeable that the children are not presently in their care. However, here, Ms. Randall believes that Child is not grieving the loss of her birth parents. Instead, Child tolerates her birth parents and views Mother and Father as babysitters. Ms. Randall credited Foster Parents' high functioning parenting skills for the reason Child is so well attached to them rather than the simple passage of time and Child's age at the time she was removed from her home.

Ms. Randall further opined that Child would be at great risk of having attachment issues if she was removed from Foster Parents' care. In both MIM reports, she also noted that removal from Foster Parents could be very traumatic for Child. Dr. Romirowsky also testified that he does not support removing Child from Foster Parents' care as that could cause another primal wound.

Although there is no guarantee how Child will respond in the short-term or long-term if her contact with Mother and Father is significantly reduced and Mother's and Father's parental rights are terminated, the Court is not in the business of speculating what may happen in the future. The Court also cannot speculate what might have happened had the termination of parental hearing gone forward in January 2018 and been completed on the first day. Only the present circumstances are known. Child has claimed Foster Parents as her primary caregivers and no expert is advocating her return to Mother's and Father's primary care on any definite timeline. Therefore, the Court finds that this factor favors granting the Petition.

5. The mental and physical health of all individuals involved;

There was no testimony that Child has any physical or mental health issues at present. However, as discussed above, both Ms. Randall and Dr. Romirowsky opined that Child might experience some emotional trauma in the short and/or long-term future if she is either removed from Foster Parents or her contact with her biological parents is severed.

As to Father, Ms. Randall testified that she had generic concerns about Father's "anger in response to different professionals," such as how he told Ms. Randall "that he had threatened professionals and that he was very angry and upset that his child had been removed," and that she believed Father would benefit from completing an anger management course.⁴⁴ However, such an angry response by a parent is not at all uncommon when his child is removed from his care and placed in DSCYF/DFS custody. The Court declines to ascribe more weight to this testimony than it deserves. Furthermore, the Court declines to consider the documentary evidence included in the Social Report or prior Court Orders regarding Father's alleged anger issues. During the April 2018 TPR hearing, the Court ruled that it would not consider the statements made in the Preliminary Protective hearing or Adjudicatory hearing with regard to Father having made threats towards a worker, workers or the Court absent some additional evidence on that today. No testimony on this issue was provided other than from Ms. Randall. Just as the Court declined to consider prior Orders because it was unclear in the Orders who had been witness to Father's alleged outbursts, so too the Court will block the Social Report statements because neither DSCYF/DFS nor OCA called Father or his wife, K---- R----, to testify about the statements attributed to Father in the Social Report.

44 The Court takes judicial notice of the Permanency Review Hearing Order finding of September 2017 that Father had completed an anger management course by that time. However, there was no testimony during the three-day TPR proceeding about Father's reported participation in this course, in part because Father did not testify. --------

Ms. Randall also opined that Father would benefit from completing an anger management course and engaging with a counselor to address his fears regarding a run-in he had with the Mexican Cartel a few years ago and to address the past injuries to the older children. The Social Report notes that Father suffers from memory loss after he was "kidnapped, beaten and robbed" by the Mexican Cartel when he was in Mexico visiting family. The Social Report also includes an unconfirmed report that Father suffers from Post-Traumatic Stress Disorder. However, Father told Ms. Randall that he does not believe he needs counseling, and he has not engaged in any mental health counseling. However, he was reportedly engaged in domestic violence classes at the time of the December 2018 hearing.

Unlike Father, Mother has engaged in counseling for much of the time Child has been in care. Mother met with Ms. Sanchez for individual counseling sessions from January 2017 until December 2017 when Ms. Sanchez successfully discharged Mother. Mother also participated in group sharing sessions with Ms. Sanchez until April 2018. Mother reported that she engaged with Ms. Sanchez because she was feeling sad after Child was removed from her care. Ms. Sanchez testified she diagnosed Mother with Post-Traumatic Stress Disorder and subsequently discharged her when she was not exhibiting any symptoms of the diagnosis. Ms. Sanchez also testified that Mother discussed issues related to the grief she was experiencing following the removal of her children from her care, her being a victim of trauma in a previous romantic relationship, and child safety/abuse/neglect among others, in group and/or individual sessions.

After the April 2018 hearing and Ms. Randall's testimony that she thought Mother would benefit from additional counseling, Mother took the initiative to begin seeing Mary Davis for counseling sessions in April or May 2018. Mother could not recall how many sessions she had with Ms. Davis (and Ms. Davis was not called as a witness) but Mother believes she met with Ms. Davis about one or two times per month until October 2018 when Ms. Davis reportedly successfully discharged Mother. Mother testified that see met with Ms. Davis to talk about this proceeding and about her stress and aggression. However, Ms. Randall's second MIM report indicates that Mother said in September 2018 that she had not seen Ms. Davis since the end of May 2018 due to transportation issues but that Mother and Ms. Davis had maintained some phone contact since May.

Finally, Ms. Sanchez testified that she never engaged in parent-child interactive therapy with Mother and Child, or even observed Mother interact with Child during a supervised visit. There is also no evidence that Ms. Davis ever facilitated or observed any interactions between Mother and Child.

Therefore, the Court finds that there is little to no evidence that Father has engaged in any services to specifically address how the prior injuries to the older boys have had an impact on him, and the focus of Mother's counseling engagement has not been squarely on the impact the prior injuries have had on her. However, the Court credits Mother for being proactive in seeking out general professional services to address her PTSD and there is limited admissible evidence that Father is in need of mental health services at this time. As a result, the Court finds that this factor is neutral as to the Petition.

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." Mother and Father have appropriate housing and sufficient income to meet Child's needs. Ms. Magana Luna testified that she has never had any concerns about any of the homes Mother and Father have lived in since Child came into care or that they have moved several times. Additionally, the Court is not concerned that they had a minor budget shortfall in March 2018 of $69. Both parents have remained employed throughout these proceedings and the Court credits Father's argument that if the parents only slightly reduced the monthly remittance of $240 to family in Mexico that even that March 2018 shortfall would become a surplus. Mother and Father also have regularly provided diapers, wipes, clothing, food, toys and other items for Child during the period she has been in DSCYF/DFS care. Furthermore, they completed a parenting class in August 2017, and they have been attending Child's medical appointments, and they remain attentive to her medical needs during the supervised visits.

However, the Court is concerned that despite the fact that Mother's parental rights in three children and Father's parental rights in two children have already been terminated, there is no evidence that Father and Mother are voluntarily seeking out help to improve their parenting skills and to make sure Child is safe in their care. Mother testified that she has never sought out Ms. Magana Luna for parenting help during the supervised visits despite Ms. Magana Luna working with them since June 2017. Mother said she did not go over the first MIM report with Ms. Davis to see how she could improve in her parenting skills because it was in Spanish, and there is no evidence that either Mother or Father went over the results of the first or second MIM with any other professional. Additionally, although Mother said that she and Father have relatives who reside in the area who could be part of their childcare support system, Mother also confirmed that they do not have a large support system because they do not trust very many people. At no point during the three-day TPR proceeding did the parents call anyone to testify that they would support Mother and Father going forward if Child was returned to their home or even that the parents had a plan for whom they would rely on for such support. The Court finds that the positive and negative evidence under this factor largely balances itself out. Therefore, this factor only slightly favors denying the Petition.

7. Evidence of domestic violence as provided for in Chapter 7A of this title; and ,

Pursuant to 13 Del. C. § 706A, "(a)ny 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." Although there is no evidence to suggest that there is a history of domestic violence in Mother's and Father's relationship history, Mother was a victim of "horrific" domestic violence in a prior relationship according to Ms. Randall. Mother engaged with Ms. Sanchez, in individual and group sessions, on issues related to her experiences as a victim of domestic violence. Furthermore, Father was charged with Offensive Touching in 2012 following an alleged incident with his wife. Although Mother reported that Father was engaging in a domestic violence course at the time of the final hearing in this matter, neither Father nor Mother provided documentary evidence of Father's participation.

However, even more significant to the Court under this factor than the reports of domestic violence between adults are the reports of injuries to Child's siblings. Under 13 Del. C. § 703A(a) domestic violence "includes but is not limited to physical or sexual abuse or threats of physical or sexual abuse and any other offense against the person committed by 1 parent against the other parent, against any child living in either parent's home, or against any other adult living in the child's home." Therefore, the Court may consider the past findings and any present testimony of injuries to Child's siblings in analyzing her best interests under this factor. As discussed in detail above, S-------- suffered chronic and life-threatening abuse in Mother's and Father's care in March 2015 when he was only 11 months old. Furthermore, Ms. Randall testified that both G------ and J--- had unexplained injuries while in Mother's and Father's care. G------ suffered a broken wrist and J--- suffered a broken leg.

As discussed supra, there is little evidence that Mother and Father have specifically addressed these past injuries to Child's siblings in their efforts to reunify with Child upon which the Court could conclude that this past issue has been remedied. They have not admitted culpability, they remain together and they was no express testimony that any of their participation in counseling, domestic violence classes or parenting classes has addressed how to ensure that such injuries do not happen again to children in their care. Ms. Sanchez testified that she never really discussed the reasons for S--------'s injuries with Mother, and Ms. Sanchez and Ms. Randall both reported that the parents told them that they do not know how S-------- suffered his injuries.

Finally, there is no evidence that Child was ever abused in the four-and-half-months following birth that she was in Mother's and Father's care, or in any subsequent supervised contact with Child while she has remained in DSCYF/DFS care. In August 2016, after Child was admitted to the hospital to examine her unexplained fist clenching, she was discharged back to her parents without any finding of abuse.

Therefore, although there is no evidence that in Mother's and Father's six-year relationship that there has ever been any domestic violence between them or to Child in the short period that Child was in their care, the Court concludes that the injuries to Child's siblings amount to abusive domestic violence, at worst, and medical neglect, at best. Whatever the cause of the injuries, the fact remains that all three children suffered unexplained injuries in their care. This factor favors granting the Petition.

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.

The Court conducted an independent investigation into Mother's and Father's limited criminal records in Delaware. In September 2018, Mother was found guilty of a Dog Running at Large violation. In 2012, Father was arrested on an offensive touching charge based on allegations that he grabbed his ex-spouse by the hair and arm. That charge was later discharged upon his completion of probation before judgment. In 2002, he pled guilty to a Reckless Driving Alcohol Related charge. In 2001, he was found guilty of Resisting Arrest. In 1994, he was charged with a DUI and sentenced to participate in the First Offender program. Therefore, this factor favors denying the Petition as to Mother. Although the Court is concerned about Father's criminal record, it is fairly old and does not go to the level of preventing him from exercising his parental rights in Child. As a result, this factor also favors denying the Petition as to Father.

In sum, the Court finds that there is clear and convincing evidence that it is in Child's best interests that the herein Petition be granted. Although factors 1, 5 and 8 all favor denying the Petition or are neutral, the Court gives the most weight to factors 3, 4, and 7. Child has adjusted very well to her pre-adoptive home and she is becoming increasingly attached to Foster Parents. In contrast, her connection with Mother and Father appears to be straining more and more with the passage of time due to her birth parents' deficient parenting. Furthermore, the life-threatening and still unexplained injuries to S-------- factor heavily against returning Child to her birth parents. For these reasons and more, no one is advocating that Child be returned to Mother's and Father's home or even that they increase to unsupervised contact. After almost three years in care, it is time for Child to have some permanency.

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, 13 Del. C. § 1103(a)(7) for chronic and life-threatening abuse to a sibling, and 13 Del. C. § 1103(a)(8) for unexplained serious physical injury to a sibling for both Mother and Father. The Court has also found that DSCYF/DFS has not been required to offer reasonable efforts at reunification for the parents, that DSCYF/DFS has exercised reasonable efforts at permanency for Child, and 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.

Accordingly, the Amended Petition for Termination of Parental Rights is hereby GRANTED as to G-------- S------ and G-------- R----. The parental rights of G-------- S------ and G-------- R---- as to G------ R---- S------ are hereby TERMINATED and TRANSFERRED to DSCYF/DFS. The Court will schedule a Post-TPR Permanency Review Hearing in the interest of Child.

IT IS SO ORDERED.

July 10 , 2019
Date Written Order Issued
RBC/plr

__________

/s/ ROBERT BURTON COONIN, JUDGE cc: Counsel, File