Opinion
FILE NO.: CN15-06732 FILE NO.: 17-08-11TN CPI NO.: 17-01089 CPI NO.: 17-25484
05-17-2018
DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES, Petitioner v. L------ K-----, A------ W-----, Respondents. In the Interest of: A------ W----- (F) (DOB 01/12/17)
Jonathan Harting, Esquire, Department of Justice, Wilmington, Delaware for Petitioner, Division of Family Services Paul Loughman, Esquire, Young Conway Stargatt & Taylor, LLP, Wilmington, Delaware as Guardian ad litem for Child, A------ W-----
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 L------ K----- and DENIED as to A------ W-----. Jonathan Harting, Esquire, Department of Justice, Wilmington, Delaware for Petitioner, Division of Family Services Paul Loughman, Esquire, Young Conway Stargatt & Taylor, LLP, Wilmington, Delaware as Guardian ad litem for Child, A------ W----- 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 L------ K----- (hereinafter "Mother") and A------ W----- (hereinafter "Father") regarding A------ W----- born January 12, 2017 (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; under 13 Del. C. § 1103(a)(2) on the grounds of abandonment; and under 13 Del. C. § 1103(a)(6) on the grounds of a prior involuntary termination of parental rights (hereinafter "TPR") of one of Child's siblings. 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; and under 13 Del. C. § 1103(a)(2) on the grounds of abandonment.
The hearing on the Petition for Termination and Transfer of Parental Rights was held on March 5, 2018. Father was present and self-represented; Paul Loughman, Esquire served as the Guardian ad litem for Child; and, Jonathan Harting, Esquire served as the Deputy Attorney General for DSCYF/DFS. Testimony was taken from DSCYF/DFS treatment worker Hilary Hartnett, DSCYF/DFS permanency worker Andrea Beideman, and foster mother N----- J------.
PROCEDURAL HISTORY
Child was born on January 12, 2017. According to the Dependency/Neglect Petition and Motion for Emergency Ex Parte Order filed by DSCYF/DFS on January 18, 2017, the Division requested custody of Child with regard to the herein case due to, inter alia, Child being born drug positive for cocaine, Mother's use of cocaine throughout her pregnancy, and Mother not having custody of any of her ten other living children, six of whom due to involuntary TPR. The Petition's only mention of Father is that "Father is A------ W-----," that "he is also the father of mother's last child," and that "A------'s parental rights were involuntarily terminated of the last child, along with mothers. [sic]" There is no evidence in the Petition or Motion that DSCYF/DFS attempted to contact Father prior to filing for custody. The Court, through the Honorable Barbara Crowell, granted the Motion for Emergency Ex Parte Order on January 18, 2017 as to Child, noting therein that "Father not [sic] immediately available," and scheduled a Preliminary Protective Hearing for January 25, 2017. The Court appointed Paul Loughman, Esquire as Guardian ad litem for Child on January 24, 2017 and Julie Yeager, Esquire as counsel for Mother on January 27, 2017.
On October 6, 2016, Father was the alleged father in the involuntary TPR of A----- K-----. However, on December 29, 2016, Father was held to not be the father of A----- through genetic testing. Despite that revelation, DSCYF/DFS continued to pursue the termination of Father's parental rights in Child for most of these proceedings, based on the prior involuntary TPR of A-----.
At the Preliminary Protective Hearing held on January 25, 2017 presided over by the Honorable Arlene Coppadge, Mother participated but Father did not. The Court found probable cause to believe Child was dependent and that it was in her best interest to remain in the custody of DSCYF/DFS due to being born positive for cocaine. The Court also found that Mother had exercised a visit with Child on January 24, that Child had been placed in a DSCYF/DFS foster home in Bear, DE, that Child was not manifesting any withdrawal symptoms, and that Mother's current residence was unknown. As to Father, the Court noted that Mother had named him as the father of Child, that Father had not participated in case planning with regard to one other child about whom Mother had also named him as a father, that Father's parental rights as to his one other child with Mother were also terminated involuntarily in October 2016. As to attempts to contact Father, DSCYF/DFS worker Kortney Dibert reported that the Division had attempted to contact Father by phone and at his home, since Child came into DSCYF/DFS custody, but that Father had not responded. Because the Division had not established contact with Father, Ms. Dibert informed the Court that the Division would be pursuing service of process over Father by publication. Ms. Dibert also noted that due to Mother and Father's TPR history, the Division planned to take this case to the Division's Permanency Planning Committee to see if the Division would be exercising reasonable efforts to attempt reunification of Child with Mother. The Court ordered genetic testing to determine whether Father is the biological father of Child and issued a Genetic Testing Referral on January 27, 2017.
Although the Order issued following the Preliminary Protective Hearing notes in paragraph 6 that "Mother had named A------ W----- as the father of some of her other children," this is an incorrect reflection of the testimony at the hearing. The testimony was that Mother had named Father as the father of one other child.
Although the Order issued following the Preliminary Protective Hearing notes in paragraph 6 that "Father's parental rights as to his other children with Mother" had been terminated involuntarily, this is an incorrect reflection of the testimony at the hearing. The testimony was that Mother had only named Father as the father of one other child.
The initial Preliminary Protective Hearing Order issued on January 27, 2017 incorrectly listed the date and time of the upcoming Adjudicatory Hearing as March 17, 2017 at 9:00 AM. As a result, the initial publication sent on January 28, 2017 incorrectly listed the hearing date as March 17 but correctly addressed it to Father in regard to a "Minor Female, DOB: 1/12/17." The Court sent out an Amended Preliminary Protective Hearing Order on January 30, 2017 that corrected the date and time of the upcoming Adjudicatory Hearing as March 7, 2017 at 9:00 AM. Although a revised publication was sent out on February 15, that publication also had incorrect information that the Adjudicatory Hearing was set for March 2, 2017 at 9:00 AM. Finally, on February 20, 2017 publication was again accomplished, this time stating that the Adjudicatory Hearing was scheduled for the correct date and time of March 7, 2017 at 9:00 AM.
On February 24, 2017, the Court notified the parties of the results of the genetic testing which revealed a 99.99% probability that Father was the biological father of Child.
At the Adjudicatory Hearing on March 7, 2017, neither Mother nor Father participated. The Court found by a preponderance of the evidence that Child remained dependent because she was born cocaine positive and both Mother and Father had failed to begin case planning with DSCYF/DFS. The Court also found that Child should remain in DSCYF/DFS custody, that the Division had made reasonable efforts to prevent the removal of Child from her home, and that placement of Child with a relative was inappropriate at the time due to there being no known relatives willing and able to care for Child. Ms. Dibert reported that she had continued to try to reach Father by phone since the last hearing but that she had yet to speak with him. Ms. Dibert also reported that Mother's housing was unstable, that she was not employed, that she had not completed a substance abuse evaluation and that Mother had not visited Child since the last hearing due to Mother's repeat cancellations. Finally, Ms. Dibert reported that Child remained in the same DSCYF/DFS foster home, which was where some of her biological siblings also resided. The Court discharged Mother's Court-appointed attorney due to Mother's failure to appear at the hearing.
On March 10, 2017, DSCYF/DFS filed a Motion for No Reasonable Efforts as to Mother and Father due to their parental rights being previously involuntarily terminated in A----- K-----, a sibling of Child, in October 2016.
A Dispositional Hearing was held on April 21, 2017, in which both Mother and Father did not participate. The Court found that Child continued to be dependent due to both parents' ongoing failure to case plan or contact DSCYF/DFS or visit Child or actively participate in these proceedings. The Court also found that Child should remain in DSCYF/DFS custody and that the Division continued to exercise "reasonable efforts to prevent the removal of Child from her home." Furthermore, based on Mother's long history of involuntary TPRs and Father's involuntary TPR as to A----- K-----, the Court granted the Division's Motion for No Reasonable Efforts as to attempting reunification of Child with parents. The Court's Order contains no mention that DSCYF/DFS had made any renewed efforts to contact Father since the last hearing in this matter other than that "[t]here has been no contact from Father." Child remained in the same DSCYF/DFS foster home, was doing well and exhibited no signs of developmental delays. Finally, the Court adjudicated Father to be the father of Child based on the results of genetic testing and receipt of no opposition from the parties.
On June 21, 2017, DSCYF/DFS filed a Motion to Change Goal as to Child from reunification to termination of parental rights for the purpose of adoption.
A Permanency Hearing was held on July 14, 2017, participated in by neither Mother nor Father, during which the Court found that Child continued to be dependent and should remain in DSCYF/DFS custody, and that there continued to be no known relatives willing and able to care for Child. The Court also found the Division's Motion to Change Goal was appropriate due to the parents' continued absence from these proceedings, their failure to case plan or visit Child, and the Guardian ad litem's support of the Motion. DSCYF/DFS reported at the hearing that Father had called the Division on May 1 and left a voicemail in which he stated it was his wish to speak to DSCYF/DFS treatment worker Hilary Hartnett about Child. Additionally, Mother called DSCYF/DFS on May 26. However, repeated attempts by the Division to call Father and Mother in May and June did not result in any contact with either party. Child remained in the same DSCYF/DFS foster home.
Although the Order issued from this hearing only notes that Father "requested [DSCYF/DFS] call him," the record reflects that Father wanted to speak to DSCYF/DFS about Child.
On August 17, 2017, DSCYF/DFS filed a Petition for Termination and Transfer of Parental Rights as to Father and Mother in Child.
A consolidated Permanency Review Hearing and Termination of Parental Rights Trial was scheduled for November 14, 2017, during which Mother failed to appear but Father participated for the first time. However, because Father, for the first time, requested an attorney, the Court only held the Permanency Review Hearing and rescheduled the TPR trial for a later date. The Court found that Child remained dependent and should stay in DSCYF/DFS custody, that the Division need not offer Father a Case Plan for reunification with Child because the goal of TPR was already in place, and that Father was not eligible for a Court-appointed attorney due to his income level at the time. As to Child, DSCYF/DFS reported that the Division moved her to a pre-adoptive foster home on August 29, 2017, but that the foster parents were facilitating continued contact between Child and her biological siblings who resided in Child's prior foster home. Additionally, Child reportedly was developmentally on track and had no medical issues. As to Father, DSCYF/DFS permanency worker Sara Riffe reported that Father had left a voicemail with the Division in August, but due to repeated "phone tag" between Ms. Riffe and Father they did not speak directly with each other until early November. Ms. Riffe also reported that although Father requested a visit with Child in his August voicemail, Father had yet to have a single supervised visit with Child since Child entered DSCYF/DFS custody. Ms. Riffe presented no evidence that she, or anyone else from DSCYF/DFS ever attempted to visit Father's home during the three months that separated the time Father called DSCYF/DFS in August and this hearing. Ms. Riffe also reported that Mother had not had any visits with Child since January. Father reported that he was not sure he was the biological father of Child until he received the results of genetic testing, and that once he received the results he resolved to have custody of Child. The Court ordered that Father receive supervised visitation with Child every other week.
During the November 2017 hearing, Father also stated that he need not become involved in this case earlier because he was waiting for the results of the genetic testing as to his paternity of Child after he found out by genetic testing that "the first child wasn't mine." The Court did not conduct further investigation into this matter, because at the time of the hearing, the Court was not aware with regard to these proceedings that Father's paternity in the prior case of A----- K-----, used as the basis for pursing no reasonable efforts as to Father in these proceedings, was in question. Then at the outset of the March 5, 2018 TPR hearing, Mr. Harting admitted that Father was found not to be the biological father of A----- K----- and therefore that DSCYF/DFS was only relying on the Court's prior TPR Order from October 6, 2016 as to A----- in arguing for Mother's TPR in this case and not as to Father. However, Mr. Harting did not provide the Court with additional information as to when or how DSCYF/DFS became aware of these genetic testing results of Father as to the child A-----. As a result, the Court conducted independent investigation into this matter and found that pursuant to samples gathered from A----- and Father in November and December 2016 (after the conclusion of A-----'s TPR trial) that Father and DSCYF/DFS were notified on December 29, 2016, in the context of a joint Division of Child Support Services and DSCYF/DFS Petition against Father for purposes of child support that was not before this Judge, that there was a 0% probability that Father was A-----'s biological father.
The Court presumes that Father was making reference to A----- K----- subject to involuntary TPR of October 2016 for whom Father was later found to not be the biological father in December 2016.
This Notice of Exclusion/Right to Hearing/Order of Exclusion is located in File No. CN16-03310, Pet. No. 16-14828.
The Court held a rescheduled TPR hearing on March 5, 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 Crowell dated January 18, 2017; 2) Preliminary Protective Hearing Order issued by Judge Coppadge dated January 27, 2017; 3) Adjudicatory Hearing Order dated March 8, 2017; 4) Dispositional Hearing Order dated April 27, 2018; 5) Permanency Hearing Order dated August 2, 2017; and 6) Permanency Review Hearing Order dated November 15, 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. 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. #1.
2. Social Report Regarding Mother , Father and Child
DSCYF/DFS submitted a Social Report concerning Mother, Father and Child. Pet. Ex. # 2. In addition to Child, Mother has ten living children known to the Division, none of whom are presently in her care, and six of whom she lost custody of by way of involuntary TPRs entered in 2009, 2010, 2013, 2014 and 2016. The Report notes that Mother has a history of substance abuse addiction, unstable housing and unemployment. The report also notes that "[t]here is little information available regarding [Father]" other than that he is married to someone other than Mother because "he had minimal communication with the Division."
DSCYF/DFS first became involved with Mother as a parent in 2001 due to concerns about neglect of her second oldest child which case the Division closed as "unfounded." In October 2007, March 2009, October 2011, April 2013 and December 2015, Mother gave birth to children who each tested positive for cocaine, and the Division became involved in the care and custody of each child shortly thereafter.
On January 13, 2017, one day after Child's birth, DSCYF/DFS became involved in Child's case by meeting with Mother at the hospital. The remainder of the Social Report details efforts the Division made to merely establish contact with Mother and Father. On January 17, DSCYF/DFS attempted to meet with Mother at the hospital but she could not secure transportation. On January 18, DSCYF/DFS scheduled a meeting with Mother at her home but had to leave a memo when no one answered the door. One week after Child's birth on January 19, the Division left a voicemail with Father, which is the Report's first recorded attempt to contact Father. On January 23, DSCYF/DFS again left a voicemail with Father and also a memo at his home following an unannounced visit. On January 24, Mother attended a scheduled visit with Child, for what would be the last time, during which Mother stated she used cocaine about three to four times while pregnant. Over the following weeks, Mother cancelled three subsequent scheduled visits with Child and informed the Division she could not attend a scheduled medical appointment. After the attempts on January 23, 11 days after Child's birth, to contact Father, there is no mention in the Social Report of any efforts to reach Father until August, seven months later.
On February 21, 2017, the DSCYF/DFS Permanency Planning Committee met and agreed to seek a goal of TPR based on Mother and Father's TPR history. Mother cancelled two more scheduled visits in March and did not show to a scheduled visit in early April. A voicemail that Mother left with the Division in late May 2017, wherein she expressed frustration, prompted renewed attempts by DSCYF/DFS to contact her by phone in May and June without success.
Two months earlier on December 29, 2016, DSCYF/DFS had been made aware that Father had been genetically excluded as the father of the previously TPR'd sibling. Whether the Permanency Committee had not been made privy to this fact or chose to ignore it is unknown.
On August 16, 2017, Father contacted DFS about getting visitation with Child. However, thereafter, Father and the Division engaged in repeated calls back and forth without any successful contact for the following two months. It was through these back and forth calls that Father "was made aware of the scheduled Termination of Parental Rights hearing in November 2017." There is no evidence in the Social Report that the Division ever attempted to visit Father's residence after January 23, 2017.
Although filed on November 7, 2017, nearly one year after the Division became aware that Father was not the biological father of A-----, the Social Report still listed the basis for terminating Father's parental rights in this case as the previous involuntary TPR of A----- as to Father and Mother from October 2016.
3. Prior TPR Order Regarding A----- K
DSCYF/DFS submitted an Order for Termination and Transfer of Parental Rights issued by the Court on October 6, 2016 regarding A----- K----- born December 26, 2015 as it relates to Mother's being the subject of a prior involuntary TPR. Pet. Ex. #3. Additionally, the Court in terminating Mother's parental rights in A----- finds that that TPR Order establishes grounds for TPR of Child.
4. Father
Father participated in the TPR trial but chose not to testify or present any witnesses on his behalf. However, he did state in closing that no DSCYF/DFS worker ever assessed his home or inquired as to who lived with him or if he had any relatives who could be placement resources for Child. Father needs to prove nothing to prevail. The burden of establishing by clear and convincing evidence rests solely on DSCYF/DFS. Even if the Court ignores this information provided by Father, DSCYF/DFS has presented little if any information about him, certainly nothing that approaches the clear and convincing standard. He also added that he has two grown children, one of whom graduated with a Bachelor's Degree from Virginia State University and the other of whom has two children of his own that Father and his wife take care of.
5. Father's Delaware Criminal History
The Court read Father's Delaware criminal history into the record. He has three convictions for non-vehicular criminal offenses, the most recent of which dates from almost twenty years ago. On September 2, 1992, he was found guilty of use of a non-narcotic schedule II controlled substance. On April 7, 1999, he was found guilty of maintaining a dwelling for keeping controlled substances and of conspiracy second degree. In the Court's opinion, Father's criminal record is de minimis as it relates to this child.
6. Hilary Hartnett , DSCYF/DFS Treatment Worker — Testimony as to Father
Ms. Hartnett was assigned to the case from March 2017 until July 2017 when the case entered permanency. During that time, Ms. Hartnett reported that she had limited contact with Father. For example, she reached out to Father in late April by letter after his paternity of Child was adjudicated with no response. Additionally, she sent a second letter in July 2017 after the goal in the case was changed to TPR. Although Father called the Division shortly thereafter, Ms. Hartnett and Father failed to make direct phone contact. Rather, it was not until August 2017, when Sara Riffe had already been assigned the permanency worker, that Father began to engage with DSCYF/DFS. As a result, Ms. Hartnett had very information to provide the Court about Father.
Ms. Hartnett was able to testify that Father lives in Wilmington with his wife, and that he has two adult children. However, Ms. Hartnett admitted that she never visited Father's residence nor had Father's home assessed, and therefore was not even sure who resides there other than Father and his wife. Due to Child being the result of an extra-marital affair between Father and Mother, Ms. Hartnett testified, without supporting evidence, that she is concerned Father's family might harbor some resentment toward Child, but added that she has not spoken to Father's family about Child. This assumption on her part is merely that, an assumption which holds little evidentiary weight. Furthermore, she stated her concern that Father's wife and adult children might not yet know about Child.
Ms. Hartnett also testified that she believes that Father is employed "at the docks" and makes "decent money" but that she does not have any proof of employment or income. Despite his income, the DSCYF/DFS has no knowledge of Father providing financial support for Child to Child's foster family. Furthermore, she stated that she has no knowledge that Father has done anything to get a substance abuse or mental health evaluation or complete a parenting course.
Finally, Ms. Hartnett admitted that she never sought out any relative placement resources for Father because she never had a conversation with Father about his relatives due to Father being non-responsive to attempts by DSCYF/DFS to contact him.
7. Andrea Beideman , DSCYF/DFS Permanency Worker — Testimony as to Father
Ms. Beideman was assigned to the case in mid December 2017 after Sara Riffe, the initial permanency worker, went on maternity leave. Pursuant to the Court's November 14, 2017 Order, Father was to receive supervised visitation with Child every other week. Father's first scheduled visit was moved back from November 22 at noon to December 6 when Father called on November 22 that his supervisor would not let him leave work early that day. Father's December 6 visit occurred but Child cried for most of the visit. Father's second visit was scheduled for December 21 but had to be postponed because N----- J------ (hereinafter "Foster Mother") informed DSCYF/DFS on December 20 that she could not bring Child to the visit and there were no DSCYF/DFS workers available to provide transportation for Child in Foster Mother's stead. Ms. Beideman stated in a voicemail message to Father that he could have an extended visit on December 29 to replace the cancelled visit on December 21, but she and Father could not connect directly prior to December 29 to confirm whether that date worked for Father. Therefore, there was no visitation on December 29. Father and DSCYF/DFS were in correspondence via phone back and forth in January 2018, and a January 23 visit was scheduled for which Father was a no show and no call. After January 23, Ms. Beideman did not hear from Father again and she made no further attempts to schedule visits with Father and Child.
8. Mother
Not only did Mother fail to attend the TPR hearing, she also attended only one of the five previous hearings in this case. Due to her failure to participate in these proceedings, the Court discharged her Court-appointed attorney in March 2017.
9. Mother's Delaware Criminal History
The Court read Mother's Delaware criminal history into the record. She has six adult convictions for non-vehicular criminal offenses, and three adjudications of delinquency from 1992 when she was fourteen years old. On April 20, 2010, she was extradited as a fugitive from another state. On February 23, 2012, she was found guilty on two counts of criminal impersonation. On March 2, 2012, April 7, 2013, and then again on July 19, 2017, she was extradited as a fugitive from another state. She also currently has a capias for her arrest from December 2017 for failure to pay.
10. Hilary Hartnett , DSCYF/DFS Treatment Worker — Testimony as to Mother
Ms. Hartnett testified that following the Court's finding in April 2017 that DSCYF/DFS did not have to exercise reasonable efforts as to Mother, due to her history of involuntary TPRs, the Division did not case plan with Mother. Therefore, she reported no information as to Mother's involvement with Child or the Division.
11. Andrea Beideman , DSCYF/DFS Permanency Worker — Testimony as to Mother
Ms. Beideman testified that she has had no contact with Mother since she was assigned to the case in December 2017.
12. Hilary Hartnett , DSCYF/DFS Treatment Worker — Testimony as to Child
Ms. Hartnett testified that Child is currently in the same foster home as her younger sibling A------ W-----, and in the same daycare as her older half-sibling A----- K----- who Child sees five days a week. In addition, Child's foster parents, A-----'s adoptive parents and the adoptive parents of other of Mother's children are reportedly close and attend church together so that Child has regular contact with her siblings on weekends as well.
13. Andrea Beideman , DSCYF/DFS Permanency Worker — Testimony as to Child
While Child has been in her current home since August 29, 2017, C---------- and N----- J------ (collectively hereinafter "Foster Parents") are very bonded with her because they have known her, through church and their friendship with the former foster family, since Child came into the care of DSCYF/DFS. Child is up to date medically with no developmental concerns.
Ms. Beideman also testified that the Division supports adoption of Child by Foster Parents, and that A Better Chance for Our Children has been contracted to prepare a home study now that Foster Parents have completed their last adoption class.
14. N----- J------ , Foster Mother of Child
Foster Mother testified that she has no concerns about Child's physical health and that she believes Child has transitioned well into her home. Furthermore, Foster Mother testified that Child has a positive relationship with her foster parents and younger sibling A------ who also resides in the home. For example, C---------- J------ (hereinafter "Foster Father") and Child are "best friends," and Child cuddles with and kisses A------.
She also testified that Child's first foster mother (who is also adoptive mother of some of Child's siblings) is a cousin of Foster Father, and that Foster Mother has known the adoptive family of some of Child's other siblings for about fifteen years. As a result, Child and her biological siblings are close and all of them that reside in the two adoptive homes attended Child's first birthday. In addition, Foster Father's family is very involved in caring for Child.
15. Position of Guardian ad litem
At the conclusion of testimony, the Guardian ad litem stated that he supports the Division's TPR Petition as to both Mother and Father with regard to Child.
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 its 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 Child on the grounds of failure to plan pursuant to 13 Del. C. §1103(a)(5) and abandonment pursuant to 13 Del. C. §1103(a)(2), and as to Mother only on the grounds of a prior involuntary TPR of a sibling of Child pursuant to 13 Del. C. §1103(a)(6).
1. Abandonment — Father
DSCYF/DFS seeks to have the Court find that Father abandoned Child pursuant to 13 Del. C. §1103(a)(2). In order to do so, DSCYF/DFS must demonstrate by clear and convincing evidence that Father intended to abandon Child, and that Father, during at least six consecutive months, failed to communicate or visit regularly with Child and failed to manifest an ability and willingness to assume legal and physical custody of Child. The Court has previously held that the "critical question" in establishing an intent to abandon is the subjective intent of the parent to so abandon.
Div. of Fam. Servs. v. Paddington, 822 A.2d 398, 402 (Del. Fam. Apr. 23, 2003).
Child was born on January 12, 2017 and came into DSCYF/DFS care on January 18, 2017, and the Division filed its Petition for termination of parental rights on August 17, 2017. Therefore, Child was older than six months of age at the time that DSCYF/DFS filed its Petition. In addition, the earliest evidence that Father received official notice that he might be the father of Child was on January 28, 2017 via publication of these proceedings, but Father was not definitively adjudicated to be the father of Child until April 21, 2017. The evidence presented also demonstrates that, aside from isolated calls from Father between May and July 2017, Father did not begin communicating regularly with DSCYF/DFS, who held custody of the infant Child, until August 2017, over six months after Father was on notice about his alleged paternity of Child. In addition, Father did not visit Child at any time in between January 18, 2017 and August 17, 2017. As a result, Father failed communicate or visit regularly with Child.
However, DSCYF/DFS has presented insufficient evidence that Father has failed to manifest an ability or willingness to assume custody of Child, or that it was Father's subjective intent to abandon Child. Father left a voicemail with Ms. Hartnett on May 1, 2017 asking to speak to her about Child. There is no evidence that Father was ever not willing or able to take custody of Child, once his paternity was established. DSCYF/DFS has no knowledge of the condition of Father's home or if Father's wife would be opposed to having Child in their home, and admits that Father makes "decent money." In addition, at every point during Father's participation in these proceedings, when asked, he has manifested a willingness and ability to care for Child. As a result, Father's subjective intent throughout the proceeding, since he was adjudicated to be Child's father, has been to take custody of Child and not to abandon Child.
Therefore, the Court cannot find by clear and convincing evidence that Father has intentionally abandoned Child.
2. Failure to Plan — Father
DSCYF/DFS also seeks to have the 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 six months ago.
Child came into the care of DSCYF/DFS in January 2017, well over six months ago. The record reflects that Father never received a case plan due to the Court granting the Division's Motion for No Reasonable Efforts based on the belief, at the time, that Father had a history of a prior involuntary TPR of a sibling of Child, which the Division now admits was in error. As a result, the Court will consider some of the standard elements of a reunification case plan in considering whether Father failed to plan.
Although Father did not complete very many elements that would exist under a typical case plan, DSCYF/DFS failed to provide evidence that requiring Father to complete such elements, if he had a case plan, would have been appropriate. First, based on the evidence presented in the Petition for Custody of Child filed in January 2017, Child came into care through no fault of Father. Second, there is no evidence that Father's parenting skills have ever been found lacking or that he should be required to take a parenting course. He has raised two adult sons, is caring for his grandchildren, has no prior involvement with DSCYF/DFS as to his parenting of his now adult children, and neither Child nor any of his other children have ever been removed from his care. Third, the Division has never presented evidence that Father's mental health or substance abuse history is an issue that would prevent him from appropriately caring for Child. Fourth, the Division admitted that Father made "decent money" at his current place of employment and this Court found him ineligible for a Court-appointed attorney based on his current income, thereby causing the Court to conclude Father is financially able to support Child. Fifth, DSCYF/DFS having never assessed Father's home or determined who lived with him, cannot establish Father to lack housing appropriate for the care of Child.
Nonetheless, Father has failed to sufficiently visit and support Child during the time Child has been in DSCYF/DFS custody. Father stated in November 2017 that he waited to become involved in these proceedings until after his paternity in Child was adjudicated following his prior experience with being falsely labeled as the father of Mother's child A-----. Although this is a reasonable position for Father to take, he was adjudicated the father of Child in April 2017 yet failed to participate in the July 2017 proceeding in this matter. In addition, he did not reach out to the Division about visiting Child until August 2017. Furthermore, he has only successfully exercised one visit with Child between April 2017 and early March 2018. Although some of this lack of visitation is, no doubt, due to admitted communication challenges between Father and DSCYF/DFS and not reflective of Father's lack of attempts to establish contact with Child, Father should have exerted more effort to establish contact. A father who is sufficiently attempting to reunify with his child must take more initiative than Father did in establishing contact with Child. Furthermore, Father has not once provided financial support for Child to her foster parents, purchased baby care items for Child or sent Child gifts during the year since Father was adjudicated to be Child's father.
Accordingly, based on Father's failure to establish contact with Child or provide for her care and development, the Court finds that DSCYF/DFS has shown by clear and convincing evidence that Father has failed to adequately plan for Child's physical needs and emotional health and development. Regular contact with Child at her tender age is crucial in assisting Child in both her physical and emotional development. Therefore, the grounds for termination of his parental rights in Child on the basis of failure to plan have been met.
3. Prior Involuntary Termination of Parental Rights — Mother
DSCYF/DFS seeks to have the Court find that there is a prior involuntary TPR of one of Child's siblings as to Mother pursuant to 13 Del. C. §1103(a)(6). On October 6, 2016, the Court issued an Order terminating Mother's parental rights in A----- K-----. A----- is a half-sibling of Child, with both children having the same mother. Accordingly, the Court finds that DSCYF/DFS has shown by clear and convincing evidence that Mother's parental rights have been involuntarily terminated in a sibling of Child. Therefore, the grounds for termination of her parental rights in Child have been met. As such, it is not necessary for the Court to consider whether Mother has abandoned Child pursuant 13 Del. C. §1103(a)(2) or failed to plain as to Child pursuant to 13 Del. C. §1103(a)(5).
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, at least as to Father in this case. 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 the Court granted the Division's Motion for No Reasonable Efforts as to Father and Mother on April 21, 2017 on the basis of the prior involuntary TPR of Mother's child A----- in October 2016. Therefore, the Court finds that DSCYF/DFS was not required to exercise reasonable efforts to reunify Mother with Child. However, as previously noted in this decision, this Judge was not aware at the time of granting the Motion that Father was found to not be the biological father of A----- in December 2016, and that DSCYF/DFS failed to inform this Judge of that fact until the March 5, 2018 TPR hearing notwithstanding that it had knowledge of such fact as early as December 2016. The Court also expresses concern that despite the December 2016 genetic testing results that showed the Father was not the biological father of A-----, DSCYF/DFS continued to pursue Father's incorrect association with the TPR of A----- as a basis for the TPR of Child throughout much of this case, as evidenced by the Division's August 2017 Petition for TPR and November 2017 Social Report. Therefore, despite the Court's prior ruling in April 2017 that the Division was not required to exercise reasonable efforts, the Court will examine whether DSCYF/DFS exercised reasonable efforts to reunify Father with Child. A refusal to do so would not be in the interest of justice. Where the Division has information available to it that a prior TPR against a parent was obtained in error yet nevertheless seeks to rely upon that prior TPR in obtaining an order relieving it of responsibility to provide that parent with an opportunity to have a meaningful case/reunification plan, the Division cannot be allowed to profit from this defalcation. The burden of proof rests on the Division and that burden cannot be established upon a foundation of misinformation, even if innocently proffered. Parental rights are too sacred to be so lightly cast aside.
Prior to Child's entry into DSCYF/DFS custody on January 18, 2017, there is no evidence that the Division ever attempted to contact Father or determine whether Father was willing and capable of caring for Child. The Division's first recorded attempt at contacting Father was by phone on January 19. Following that attempt, DSCYF/DFS made subsequent phone calls and a single unannounced home visit later in January. Although a prior DSCYF/DFS worker testified to making more attempts to establish contact with Father by phone in February, there is no evidence that anyone from the Division reached out to Father again until late April when it sent him a letter after he was adjudicated, for the first time, to be the biological father of Child. Following the issuance of that letter, Father and DSCYF/DFS exchanged phone voicemails but never established direct contact. The Division sent another letter to Father in late July after the Court changed the goal in his case to TPR, which prompted another string of voicemail exchanges between Father and DSCYF/DFS between August and November.
Although based on the testimony at the proceeding in this matter, there is evidence of attempts to contact Father in the months following January, there is no mention of Father again under the Reasonable Efforts section of the Social Report until August.
Although Father began reaching out to the Division in May, shortly after he was adjudicated to be the father of Child, there is no evidence that DSCYF/DFS ever attempted to visit his home after the initial attempt in January 2017. Additionally, DSCYF/DFS never attempted to provide any services for Father after he became involved in the case other than attempting to provide Father with weekly visitation beginning in late November 2017. The only efforts that the Division made as to Father were to attempt to correspond with him via phone. No case/reunification plan was ever prepared for or mentioned to Father. However, it is arguable that the Division did not exert reasonable efforts even in how it responded to Father's phone calls. Father reached out in May and repeatedly in August. The Court cannot place full blame on Father for the "phone tag" that resulted in Father not getting any visits with Child until December, when he first requested visitation in August.
Therefore, despite finding at each hearing leading up to the granting of the Motion for No Reasonable Efforts that DSCYF/DFS had been exercising reasonable efforts based on the preponderance of evidence standard, the Court finds that DSCYF/DFS has failed to establish by clear and convincing evidence that it has made reasonable efforts to reunify Father with Child in the services offered to Father. Throughout these proceedings, from the Preliminary Protective Hearing through the Permanency Review Hearing, Father was falsely black-marked by DSCYF/DFS as if he had a prior involuntary TPR against him. As a result, he has been prevented from receiving the assistance with reunification to which he is entitled, and the interests of justice demand that Father be provided a fresh start and renewed opportunity to case plan with DSCYF/DFS to work toward reunification with Child. Based on this finding, the Court need not engage in a best interest analysis as to Father, and will deny the Division's Petition as to Father on the basis of this finding of no reasonable efforts.
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 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's wishes as to the termination of her parental rights in Child are unknown. However, based on her almost complete non-involvement with Child, DSCYF/DFS or these proceedings during the life of this case, the Court presumes that, at best, she is ambivalent about whether her parental rights are terminated. Therefore, the Court finds that this factor is neutral as to Mother.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
Child was a newborn when she entered DSCYF/DFS custody and is only now less than one-and-a-half years old. As such, Child is too young for the Court to assign any weight to her wishes, if she could articulate them. Therefore, Court finds that this factor is inapplicable as to Mother.
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 came into DSCYF/DFS custody in January 2017 as a newborn, Mother has only exercised one visit with Child, on January 24, 2017. During the following months, Mother repeatedly cancelled scheduled visits with Child. As a result, Child has no bond with Mother. In contrast, Child has a strong and affectionate bond with her current foster parents. Furthermore, Child's interactions with her younger sibling, who also resides with Foster Parents, and her older siblings who have been adopted by close friends or family of Foster Parents also appear to be positive. Therefore, the Court finds that this factor strongly supports granting the Petition as to Mother.
4. The child's adjustment to his or her home , school , and community;
Child is doing well in her current placement where she has been since August 29, 2017. Prior to coming into their care, Child and Foster Parents developed a positive relationship due to Child's prior foster care placement from January 2017 to August 2017 with relatives of Foster Father. Furthermore, Foster Parents continue to facilitate Child's interactions with her former foster parents and her older sibling who resides in their home through weekday contact in the in-home daycare of Child's former foster mother and through weekend contact at church. In contrast, Child has never lived with Mother. Therefore, the Court finds that this factor strongly supports granting the Petition as to Mother.
5. The mental and physical health of all individuals involved;
Although Child was born drug positive due to Mother's use of cocaine during pregnancy, Child has no present known medical issues or developmental delays. Although there was no testimony as to Mother's current physical or mental health, years of substance abuse with no evidence that Mother is in treatment or maintaining sobriety permit the Court to reasonably infer that Mother is not in a position to physically care for Child. Therefore, the Court finds that this factor supports granting the Petition as to Mother.
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 has not complied with her statutory obligations to Child during the entirety of this case. She has only visited Child once and has never provided financial support for Child. Additionally, she has a history of unstable housing and substance abuse, and does not have custody of any of her ten living children. Therefore, the Court finds that this factor strongly supports 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. There is no evidence of any domestic violence history in this case. Therefore, the Court finds this factor inapplicable.
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 six adult convictions in Delaware, most recently in 2017, as well as an active capias from 2017. Although none of Mother's convictions go directly to her ability to provide care for Child, the Court is concerned that they are present and ongoing and may result in periods of incarceration. Therefore, the Court finds that this factor slightly favors granting the Petition as to Mother.
In sum, the Court finds, as to Mother, that none of the 13 Del. C. §722 best interest factors favor denying the Petition, and many strongly favor granting the Petition for the termination of Mother's parental rights. Therefore, DSCYF/DFS has proven by clear and convincing evidence that it is in Child's best interest to terminate Mother's parental rights.
D. Finding of Harm to the Child
Pursuant to 13 Del. C. §1103(b), the Court may not terminate the parental rights of one parent and leave only one parent holding parental rights, unless the Court finds that the continuation of the rights to be terminated would be harmful to the Child. In this case, the Court has found, supra, that DSCYF/DFS has established grounds for the termination of Mother's parental rights on the ground of a prior involuntary TPR and that it is in the Child's best interest that Mother's parental rights be terminated. However, the Court has also found that DSCYF/DFS has not exercised reasonable efforts at reunifying Father with Child, and therefore that the Court cannot, at this time, terminate Father's parental rights. These findings would leave parental rights in only one parent.
The Court finds that not terminating Mother's parental rights would be harmful to Child. Mother has only participated in one proceeding in this matter, has not visited with Child since January 24, 2017, and has not been in contact with DSCYF/DFS since May 2017. In addition, Mother has a long history of abuse of cocaine, unstable housing and unemployment, and Child was born drug positive due to Mother's use of cocaine during pregnancy. Finally, Mother has had six prior involuntary TPRs and has four additional children none of whom are in her custody. Allowing Mother to maintain parental rights as to this child, having repeatedly demonstrated a complete failure and unwillingness to exercise parental responsibility in the past, only maintains the risk to Child that she could at some point in the future come under the care of this totally incapable and dangerously irresponsible parent. Therefore, the Court finds that it would be harmful for Mother to continue to hold parental rights in Child.
CONCLUSION
The Court finds that DSCYF/DFS has established by clear and convincing evidence that statutory ground for the termination of Mother's parental rights exists under 13 Del. C. § 1103(a)(6) for the prior involuntary TPR of a sibling of a child and for Father's parental rights under13 Del. C. § 1103(a)(5) for failure to plan. The Court also finds that DSCYF/DFS has not been required to exercise reasonable efforts at reunification for Mother but has not exercised reasonable efforts at reunification which are required for Father. Finally, the Court finds that it is in the best interest of Child for Mother's parental rights to be terminated based on an analysis of the factors pursuant to 13 Del. C. § 722.
However, although the Court is not terminating Father's parental rights, the Court nonetheless continues to find that Child is dependent as to Father pursuant to 10 Del. C. § 901(8), and that it would be detrimental to Child's emotional well-being for her to be taken away from her current caregivers, with whom Child is closely bonded, and placed with Father, whom she does not know at this time. Therefore, it would be contrary to her welfare to be placed in Father's home and it is in Child's best interest to remain in the custody of DSCYF/DFS and the care of her current foster family at this time.
Accordingly, the Petition for Termination of Parental Rights is hereby GRANTED as to L------ K----- and DENIED as to A------ W-----. The parental rights of L------ K----- are hereby TERMINATED. The Court shall schedule a Permanency Review hearing to consider other permanency options for Child. DSCYF/DFS shall prepare to offer Father an appropriate case/reunification plan consistent with his rights as a parent.
In reaching this conclusion, the Court cautions Father that he will need to engage in case planning and establish better communication channels with the Division if he wants to reunify with Child at some reasonable point in the future. First and foremost, in order for him to make progress toward possible reunification, Father must have consistent visitation with Child so that Child can adjust to Father's presence in her life, something to which she is not as yet accustomed.
IT IS SO ORDERED.
May 17 , 2018
Date Written Order Issued
/s/ _________
ROBERT BURTON COONIN, JUDGE RBC/plr cc: Counsel/Father
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