Opinion
File No.: CN14-04533 File No.: CN17-03-07TN Petition No.: 15-37031 Petition No.: 17-06903
11-27-2017
DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES, ("DSCYF/DFS") Petitioner, v. N------ M-------, UNKNOWN FATHER Respondents IN THE INTEREST OF: J------ M------- (DOB 04/--/09)
Victoria Witherell, Esquire, Department of Justice, Wilmington, Delaware for Petitioner, Division of Family Services David Holloway, Esquire, Holloway Law, Wilmington, Delaware for Respondent, N------ M------- Paul Fioravanti Jr., Esquire, Prickett, Jones & Elliot, PA, Wilmington, Delaware as Guardian ad litem for Child, J------ M-------
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 N------ M------- and Unknown Father. Victoria Witherell, Esquire, Department of Justice, Wilmington, Delaware for Petitioner, Division of Family Services David Holloway, Esquire, Holloway Law, Wilmington, Delaware for Respondent, N------ M------- Paul Fioravanti Jr., Esquire, Prickett, Jones & Elliot, PA, Wilmington, Delaware as Guardian ad litem for Child, J------ M------- 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 N------ M------- (hereinafter "Mother") and Unknown Father regarding J------ M------- born April --, 2009 (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 and Child has been in the care of DSCYF/DFS for a period of almost two years. DSCYF/DFS seeks to terminate the parental rights of Unknown 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.
A hearing on the Petition for Termination and Transfer of Parental Rights was held on September 19, 2017. Mother was present and represented by David Holloway, Esquire; Paul Fioravanti, Jr, Esquire served as the Guardian ad litem for Child; and, Victoria Witherell, Esquire, served as the Deputy Attorney General for DSCYF/DFS. Testimony was taken from Mother; P----- F---, foster mother to J------ M------- (hereinafter "Foster Mother"); Yahna Talley, Mother's family interventionist at Wrap Around Delaware; Jeanette Applewhaite, Child's current DSCYF/DFS treatment worker; and, Fred Conkey, Child's previous DSCYF/DFS treatment worker.
PROCEDURAL HISTORY
The record reflects that Mother initially consented to Guardianship of Child going to K---- P----, mother of H---- S-----, one of several men alleged by Mother to be Child's father, on December 18, 2012 when Child was three and a half (3.5) years old. In Ms. P----'s Petition for Guardianship of Child filed that same day, Ms. P---- noted that Mother had requested that Ms. P---- take Child "due to [Mother's] recent homelessness" and "until suitable housing is obtained for Mother and Child." On November 27, 2013, J------ M-------, Sr (DOB 07/--/74), husband to Mother at the time of Child's birth, was excluded as the father of Child by genetic testing. Child was returned to the care of Mother on September 9, 2015 following Mother's filing of a Petition to Rescind Guardianship of K---- P---- on March 27, 2015 in which Mother attested that she had secured a two-bedroom apartment and that Ms. P---- was not allowing her to see Child. In its September 9, 2015 Order Rescinding Ms. P----'s Guardianship of Child, the Court noted that Ms. P---- had consented to rescinding her Guardianship in her answer to Mother's March 2015 Petition and that Child had been living with Mother for the past month.
According to the Dependency/Neglect Petition and Motion for Emergency Ex Parte Order filed by DSCYF/DFS, Child came into the care of DSCYF/DFS with regard to the herein case on December 4, 2015, due to domestic violence perpetrated by A----- R-------, another of Child's alleged fathers, against Mother in the presence of Child, domestic violence perpetrated by Mr. R------- and Mother against Child, and Mother's permitting Mr. R------- access to the family home despite Mr. R------- being under a no contact order. The Court, through the Honorable Barbara Crowell, granted the Motion for Emergency Ex Parte Order on December 4, 2015 and scheduled a Preliminary Protective Hearing for December 9, 2015. The Court appointed counsel for Mother and Mr. R------- on December 9, 2015 and a Guardian ad litem for Child on December 14, 2015.
At the Preliminary Protective Hearing (PPH) held on December 9, 2015 presided over by Judge Crowell, Mother stipulated to probable cause for dependency of Child based on her failure to adequately protect Child and Mr. R------- agreed that probable cause for dependency existed as to Child because Mr. R------- was incarcerated at least until January 7, 2016. Therefore, the Court found probable cause to believe Child was dependent and that it was in his best interest to remain in the custody of DSCYF/DFS. The Court also found that attempts to reach relatives were unsuccessful and that placement of Child in foster care was appropriate at that time. The Court ordered genetic testing to determine if Mr. R------- was Child's biological father and that DSCYF/DFS arrange visits between Mother and Child.
At the combined Adjudicatory/Dispositional Hearing on January 12, 2016, the Court found by a preponderance of the evidence that Child was dependent as to Mother because she stipulated to dependency and dependent as to Mr. R------- because he remained incarcerated at that time. The Court also found that it was in the best interest of Child to remain in the custody of DSCYF/DFS and that DSCYF/DFS had made reasonable efforts at reunification of Child with Mother. DSCYF/DFS submitted a Case Plan for Mother but not for Mr. R------- pending the results of genetic testing as to his paternity of Child. Mother's Case Plan included obtaining adequate financial support/employment and financial management skills, engaging in mental health treatment and domestic violence training, receiving parenting assistance, securing additional caregivers for Child, and participating in Child's medical care. DSCYF/DFS reported that Child had his up and his down moments in foster care. The Court ordered that Mr. R------- not have any visitation with Child and that if he was adjudicated to be Child's father that he would also receive a Case Plan.
A Review Hearing was held on April 19, 2016 during which the Court ordered the dismissal of Mr. R------- from the case after genetic testing revealed that he was not Child's biological father. The Court also continued to find Child to be dependent and that DSCYF/DFS had exercised reasonable efforts to reunify the family. As of that time, Mother had made minimal progress on her Case Plan. While she was attending mental health counseling, had received medication for her mental health needs and was developing a relationship with her DFS case worker, she was not employed, and had not engaged in domestic violence counseling. DSCYF/DFS reported that Child was continuing to adjust to foster care, his school and his therapist, but still exhibited disruptive and violent behavior. The Court ordered that DSCYF/DFS attempt to determine whether J------ M-------, Mother's former husband, had previously been adjudicated as Child's father in proceedings in Maryland. Visitation between Mother and Child was to remain supervised.
The Court held another Review Hearing on July 12, 2016 in which the Court found that Child continued to be dependent and that DSCYF/DFS had exercised reasonable efforts at reunification. DSCYF/DFS reported that Mother was working on supplementing her limited income and had been attending therapy but needed to reengage with domestic violence counseling. Child appeared stable in his foster care placement and was opening up with his therapist, but was still struggling with defiance and respect issues. The Court again ordered supervised visitation between Mother and Child.
On November 17, 2016, DSCYF/DFS filed a Motion to change the permanency goal of Child from reunification to termination of parental rights for the purpose of adoption (hereinafter "TPR") due to Mother's failure to complete her case plan. However, because the Motion was filed too late to be considered at the November 18, 2016 hearing, it would be considered at the following March 23, 2017 hearing.
The Court held a Permanency Hearing on November 18, 2016. The Court heard testimony from Mother regarding her progress, if any, toward the completion of the elements of her Case Plan. Mother reported that she had been approved for a state rental assistance program voucher but that she had not moved into her new home yet. Mother also reported that she had been having issues paying her electric bill but was working on a resolution of that debt. She said she was still looking for a job and a steady source of income, and that she was presently relying on food stamps, welfare benefits and sporadic gifts from her parents. Mother admitted that she had missed scheduled visitations with Child and that she did not know of Child's current medication regimen. The Court also found based on Mother and Foster Mother's testimony that Mother failed to meaningfully participate in any of Child's medical appointments. Mother also testified that she was actively engaged with her parent aide and the terms of her mental health treatment plan, and that she had not lapsed with her substance abuse treatment plan. Mother attributed her inaction as to some elements of her Case Plan to her mental and physical condition.
At this November 18 hearing, the Court also heard testimony from Foster Mother regarding Child's well-being and access to services. She reported that Child's behavior in her home and at school had moderately improved but that he was still inflicting harm on himself, that Child had been prescribed medication and was seeing a psychiatrist, and that Child enjoyed his outings with Foster Mother.
Based on Mother's testimony, the Court ordered Mother to secure appropriate housing, attend Child's visitation and medical appointments, and obtain a source of adequate, reliable income to appropriately care for Child. The Court also found that custody of Child should remain with DSCYF/DFS because of his ongoing dependency, that Child was engaging in age-appropriate activities, and that visitation with Mother and Child should remain supervised.
The Court held a Post-Permanency Review Hearing on March 23, 2017. The Court heard testimony from Mother regarding her updates, if any, on her progress toward the completion of the elements of her Case Plan. Mother reported that she had moved in to her new house and she was receiving assistance in securing furnishings, but that she continued to have difficulty in paying her utilities. Mother also reported that she continued to be unable to find a job or secure a steady source of income, but claimed a family member had pledged to help her financially. Mother further testified that she continued to work with her parent aide, and participate in her mental health and substance abuse treatment programs. However, the Court noted that Mother had consistently missed about half of her scheduled weekly supervised visits with Child during the last six months and many of Child's health and education appointments. The Court was concerned with Mother's limited progress towards meeting her Case Plan requirements such as her consistent failure to attend visitation and Child's appointments, and her inability to secure finances by which she could appropriately care for Child.
Based on the testimony and facts presented at the Permanency Hearing, the Court found that Child continued to be dependent, that custody should remain with DSCYF/DFS, and that TPR was an appropriate goal in this case. Therefore, the Court granted DSCYF/DFS's Motion to change the goal from reunification to concurrent goals of reunification and TPR. The Court also instructed Mother to work diligently toward completing her Case Plan.
The Court held a consolidated Review and TPR Hearing on September 19, 2017. During the hearing, the Court took judicial notice of the findings of fact in the Court's prior Orders with regard to this case and a prior case involving Child, as recited in summary above, and with regard to other cases involving four of Mother's other children, as recited in summary below.
The prior Orders in this matter include: 1) Ex Parte Order dated December 4, 2015; 2) Preliminary Protective Hearing Order issued by Judge Crowell dated December 9, 2015; 3) Adjudicatory/Dispositional Hearing Order dated January 12, 2016; 4) Review Hearing Order dated April 19, 2016; 5) Review Hearing Order dated July 12, 2016; 6) Permanency Hearing Order dated November 8, 2016; 7) Permanency Review Hearing Order dated March 23, 2017. The prior Orders in the matter of file number CN 12-06869, petition numbers 15-08946 and 15-18653 include: 1) Consent Order - Guardianship to K---- P---- dated December 18, 2012; 2) Notice of Exclusion - Of J------ M------- as Father dated November 27, 2013; 3) Order to Rescind Guardianship dated September 9, 2015.
The prior Orders in the matter of file number CN 07-03811, petition number 07-20016 include: 1) Interim Guardianship Order dated July 11, 2007; 2) Consent Order - Guardianship to E---- H----- dated September 4, 2007. The prior Orders in the matter of file number CN 04-09109, petition number 04-25042 include: 1) Ex Parte Order dated July 28, 2004; 2) Preliminary Protective Hearing Order dated August 9, 2004; 3) Adjudicatory Hearing Order dated September 14, 2004; 4) Dispositional Hearing Order dated November 5, 2004; 5) Review Hearing Order dated January 31, 2005; 6) Review Hearing Order dated April 22, 2005; 7) Order Granting Custody to J---- & L---- H------ dated August 4, 2005.
1. Previous Case Regarding C----- O
On July 19, 2004, maternal grandmother D----- O----- filed a Dependency/Neglect Petition and a Motion for an Emergency Ex Parte Order as to Mother's eldest child by an unknown father, C----- O----- (DOB 06/--/97). On July 27, 2004, the Court found that there was probable cause to believe that C----- was in actual physical, mental or emotional danger or that there was substantial imminent risk thereof. As a result, the Court issued an interim Order placing C----- in the custody of DSCYF/DFS, permitting her to reside with Ms. O----- pending the completion of an investigation into Ms. O-----'s housing and of her involvement in substance abuse counseling, and instructing DSCYF/DFS to submit a Dependency/Neglect Petition. On July 28, 2004, DSCYF/DFS filed the requested Dependency/Neglect Petition and Motion for an Emergency Ex Parte Order as to C-----. The Court granted DSCYF/DFS's Motion for Emergency Ex Parte Order on July 28, 2004.
At a Preliminary Protective Hearing regarding C----- held on August 4, 2004, the Court continued custody with DSCYF/DFS and found that placement of C----- with Ms. O----- was appropriate at that time. At an Adjudicatory Hearing regarding C----- held on September 13, 2004, the Court found that while the goal for that child was to remain reunification with Mother, that until Mother obtained stable residence that placement with Ms. O----- remained in that child's best interest. At a Dispositional Hearing regarding C----- held on November 3, 2004, Mother's whereabouts were then unknown and Mother's non-participation in that child's life continued.
At a Review Hearing regarding C----- on January 26, 2005, the Court continued to find C----- to be dependent, that custody should remain with DSCYF/DFS, and that DSCYF/DFS had exercised reasonable efforts to reunify the family. DSCYF/DFS reported that it had had little contact with Mother since the last hearing and that Mother failed to attend C-----'s Individualized Education Program meeting at school. Mother reported that she had moved into temporary housing and that she had only attended one visitation with C----- since the last hearing because she did not have her own phone to arrange for visits and she was dependent on her then husband for transportation to visits.
The Court held another Review Hearing on April 20, 2005 where DSCYF/DFS reported that Mother had obtained a new apartment and a phone number, that Mother was attending her scheduled visitations and that C----- was now residing in the care of her maternal great-grandmother, J---- H------. DSCYF/DFS also reported that the Division were considering increasing Mother's visitation to overnights at her new apartment and that the Division wished to maintain the goal of reunification with Mother. However, that goal was not achieved by Mother.
At the consolidated Permanency and Custody Hearing on August 1, 2005 regarding C-----, the Court granted guardianship to J---- and L--- H------, C-----'s maternal great-grandparents. In support of this finding, the Court noted that C----- had been residing with maternal great-grandparents since January 2005, that she had not missed any school, that J---- H------ was very involved in C-----'s schooling and the administration of her medication. The Court further noted that Mother's housing size and furnishings continued to be inadequate, that her inability to drive continued to be a problem, and that she had not been able to provide sufficient food or clothing for her other children. After C-----'s thirteen months in DSCYF/DFS care, Mother was still not able to effectuate the return of that child.
2. Previous Case Regarding J------, M-------, and A------ M
Two years later, on July 11, 2007, in response to E---- H-----'s Petition for Guardianship over Mother's three children by J------ M-------, J------ (DOB 12/--/99), M------- (DOB 10/--/01), and A------ (DOB 10/--/05), the Court found that there was probable cause to believe that all three children were dependent or neglected because, by their own admission, neither Mother nor Mr. M------- could care for the children. As a result, the Court issued an interim Guardianship Order placing the children in the custody of their paternal grandfather Mr. H-----. On September 4, 2007, the Court issued a final Consent Order granting Guardianship of J------, M------- and A------ to Mr. H----- based on the signed consent of Mother, Mr. M------- and Mr. H-----.
FINDINGS OF FACT
The Court will not restate all of the testimony and evidence presented at the Termination of Parental Rights hearing, but will note the relevant evidence in support of its findings.
1. Social Report Regarding Mother and Child
DSCYF/DFS submitted a Social Report concerning Mother and Child. Pet. Ex. # 1. The Report notes that DSCYF/DFS became aware in 1998 that Mother has a learning disability that causes her to struggle with mathematics. DSCYF/DFS received their first report regarding Mother as a parent in September 2001 following allegations that she neglected and slapped her then two children. That case was closed when those allegations were not substantiated. DSCYF/DFS received more allegations of Mother's neglect in January 2002 that were also not substantiated.
Then in July 2004, DSCYF/DFS became aware of allegations that Mother was not providing for her daughter C-----'s medical needs and that C----- was not receiving proper nutrition or shelter. Mother was substantiated for dependency as to C----- and DSCYF/DFS closed their case on this child in February 2006 after the Court granted maternal great-grandmother's petition for guardianship. Then in June 2007, DSCYF/DFS became aware of allegations of Mother's neglect of J------, M-------, and A------. Mother was substantiated for neglect as to these three children and DSCYF/DFS closed this case in August 2007 following guardianship of the children going to paternal grandfather.
In January 2012, DSCYF/DFS received its first report regarding Child and found him to have significant burns on his face for which Mother had not sought medical assistance. As a result of this incident, Mother was substantiated for lack of supervision and medical neglect. DSCYF/DFS closed this case in March 2013 after Ms. P---- received guardianship of Child. In April 2014, DSCYF/DFS received another report of Mother's neglect of Child which was this time unsubstantiated. Between October and December 2015, DSCYF/DFS received multiple allegations as to Mother and Mr. R-------'s abuse and neglect of Child that precipitated Child's present and ongoing placement into care.
In December 2015, DSCYF/DFS began to seek custody of Child and explore relative resources. Maternal grandfather, maternal grandmother and Ms. P---- were all determined to not be available placement options. At a December 2015 Team Decision Making meeting, Mother informed DSCYF/DFS that she thought H---- S----- or Alfonso R------- might be Child's biological father but not J------ M-------. During a September 2016 DFS meeting regarding Child, it was noted that Mr. R------- and Mr. M------- had both been ruled out as Child's father.
The Social Report further catalogues the various meetings with Mother, unsuccessful attempts at such meetings, visitations between Mother and Child, and unsuccessful attempts at such visitations that have occurred from December 2015 to present. The Report also notes the various efforts made to assist Mother with achieving the elements of her Case Plan such as providing her with regular bus passes and setting Mother up with a family interventionist (parent aide) through Wrap Around Delaware. The Report further notes that during a September 2016 Permanency Planning Committee meeting, DSCYF/DFS decided to seek a goal change from reunification to TPR.
2. Mother
Mother testified that she was present at the previous November 18, 2016 hearing where DSCYF/DFS communicated the desire to change Child's goal from reunification with Mother to TPR, and therefore knew about the TPR plan for the ten months preceding this TPR hearing. Mother testified that she wants Child to live with her and that she believes she has made progress since the last hearing in March 2017, by getting furniture for her apartment, securing a job, and having more food in her home. She also stated that she believes her earnings are sufficient to take care of Child and that her participation in counseling has put her in a better position to care for Child's needs, all while admitting that she did not know how much it would cost to provide Child with clothes, shoes, medicine and transportation among other costs.
a. Visitation with Child
Mother knew that maintaining regular visitation with Child was part of her Case Plan. However, she provided various excuses for why she has missed recent Wednesday visits such as that she had to work, blaming her manager for forgetting that she was supposed to get Wednesdays off. Although she made her two scheduled September visits in the weeks prior to this hearing, she missed 4 of 5 visits in August and was late to the only visit she attended that month. Mother admitted that she missed her August 2 visit but denied that it was because it was raining. Instead, she claimed she was working that day even though her work schedule reflected that was supposed to be her day off. Mother missed her August 9 visit because, according to her testimony, that was the only day that she could have her "rent-to-own" furniture delivered and the delivery did not end up occurring until the evening. Mother was 15 minutes late to her August 16 visit blaming the bus and explained that she has tried to catch earlier buses in the past but they were still getting her to her desired destination late. Mother admitted to missing her August 23 visit but denied that it was because she was sick from the heat and did not recall the specific reason. Finally, Mother admitted to missing her August 30 visit claiming she did not have money for the bus. In July, Mother admitted to missing one scheduled visit due to alleged illness and to being 13 and 30 minutes late, respectively, to two of the other visits again blaming the bus and because she had stopped to pick up lunch for her and her son to eat during the visit.
Mother described the activities she and Child engage in during their visits together in the DFS visitation room. She said she believes the visits have been going well, that she can calm Child down when necessary, that she enjoys the visits and that Child acts affectionately toward her and seems happy to see her. However, she admitted that she was not aware that Child was sometimes angry and showed negative behavior after visits with her. She also said that they have played with the toys in the room and on games on her cell phone. Mother denied taking a toy frog from the DFS visitation room so that Child could play with it when he returned to living at her home and testified that she does not know why Child would tell Foster Mother that she took it. Mother admitted that Child has a problem taking things that do not belong to him but denied that Child ever had such a problem when he was under her custody. According to Mother, she sometimes read to Child in the visitation room. When questioned about two missing books that were observed in her home, Mother denied that she took two books from the room, explaining that two matching books in her home were ones she bought from the Wilmington Library.
b. Employment
Mother testified that she had to work hard on applying and interviewing for open positions, before she finally secured a job with Rainbow USA, Inc. on June 12, 2017 and has not missed a full week of work yet. According to her testimony, her hours have varied from as little as twenty (20) hours per week to as many as forty (40) hours but that she always works Monday, Tuesday, Thursday, Friday and Saturday. Despite reviewing seven paystubs from between July and September 2017 which reflected that Mother's hours ranged between 24 to 28 hours per week, she maintained her testimony that she actually worked 40 hours most weeks such as during the August 6 to August 12 pay period. For proof that she worked 40 hours most weeks, Mother relied on her handwritten weekly work schedules which she stated she received the Saturday prior to the week reflected on each schedule. She explained the discrepancy between her work schedules reporting that she worked 32-40 hours per week in August and her paystubs reporting that she worked 25-28 hours per week as because sometimes she was sent home early from work if the store was not busy. According to Mother, since she has been working at Rainbow she has not had time to prepare for Child's physical, mental and emotional needs if he were to be returned to her home. Mother failed to explain how she will rectify this situation if Child were to actually be placed in her care.
c. Housing
Mother testified that Child has not been to her new apartment, but that she has procured a bed, dresser and some toys for him. She also stated that she is paying $85 per week for the couch and love seat set that she obtained from Rent a Center. Mother also testified that she currently smokes in her apartment with the window open but stated that she could smoke outside if Child lived with her since Child suffers from asthma.
d. Finances and Budgeting
Mother does not have a bank account, and her paychecks from Rainbow are deposited directly onto a debit card. Mother testified that while it is required as part of her Case Plan, she has not found time to talk to DSCYF/DFS about budgeting because she is busy working. Mother is not presently responsible for paying rent and claims her utilities are also covered by the State. When presented with a copy of her current apartment lease, she claimed that despite the language on the lease to the contrary, the State is paying $147 per month for her utilities, but had no physical proof of that arrangement with the State. Mother also testified that because she does not have to pay for rent or utilities at this time and gets $41 per month in food stamps that she has accumulated about $3000 in savings stashed away in her apartment, all from her earnings while working for Rainbow. However, Mother could not account for the more than $700 discrepancy between her reported savings of $3000 and her year to date net pay after taxes from Rainbow of only $2275 as of September 14, assuming that she had saved every dime she had earned. Her only explanation, despite the fact that her only reported source of cash from 2017 is from working at Rainbow, was that she knows how to save money and she has limited other expenses except the $85 per week for her rent-to-own furniture. The Court finds her testimony not credible as to having saved some $3000 while earning significantly less and also having paid expenses weekly.
As to her failure to meet the budgeting requirement of her Case Plan, Mother testified that she cancelled an in-home September 13 budgeting meeting because she had a prior commitment to attend a group poetry session. She defended this decision because she said that the poetry session had been planned since two weeks prior and that she did not learn about the budgeting meeting until the morning it was supposed to happen.
e. Mental Health
Mother testified that she is now supposed to be attending mental health treatment once a month through Connections but that she has found it difficult to schedule appointments now that she is reportedly working from 9:30 AM to 7:30 PM. She testified that she missed last month's appointment but was supposed to see someone again the day after the TPR hearing. Mother admitted that she was diagnosed with intermittent explosive disorder in the past and took medication to address this condition but, based on her self-diagnosis, she stopped taking her medication last month because she believes that she no longer has the disorder since she feels better and is no longer in an environment that triggers it. She stated that her next meeting with her therapist will clarify whether this is true. Similarly, Mother has been diagnosed with bipolar disorder which she also claims she no longer has but still takes medication for it. Mother explained that there are no entries of her having any visits with Lisa Shaffer at Connections since March 2017 because Ms. Shaffer does not work there anymore and that Mother claims she has since been seeing Rashida Johnson monthly. No records were proffered to verify this assertion.
f. Participation in Child's Appointments
While aware she was supposed to attend Child's medical appointments as part of her Case Plan, Mother admits that it has been more than two years since she talked to a professional about Child's health or attended any of his appointments. Claiming that she was only aware of one appointment and that she had wanted to go to that appointment, Mother claims she was unable to attend because she did not find a bus that would take her there and no one else offered to take her. Despite her professed transportation issues, Mother testified that if Child was in her care that she could use LogistiCare to take him to future appointments and that she would arrange her work schedule so that she could get off work on those days, something she apparently has been unable or unwilling to do to date. Mother also testified that she had not gone to any of Child's mental health appointments and had only been told about one of them. Mother further stated that she has not talked to or met with Child's therapist to hear how Child is doing nor does she even know the therapist's name or the name of the facility where he receives treatment. As a result, Mother admits that she is not aware of his current medication regimen.
Neither has Mother contacted or visited Child's current school, Richey Elementary, because Mother claiming that her DFS treatment worker had informed her that she was not allowed to contact or visit the school. Additionally, Mother testified that she was not aware until last week that Child had even switched from Bancroft to Richey Elementary and therefore does not know Child's current teacher's name. Although Mother had not attended Child's school meetings or appointments, she testified that she is aware of Child's disruptive behavior at school, that she talked to him about it during a visit, and she is aware he has been diagnosed with ADHD and disruptive behavior disorder for which he has been prescribed medication. However, she was unaware of his current medication regimen.
g. Parenting Classes and Assistance from Family Interventionist
Mother admits that she understands that she needs to complete parenting classes in order to reunify with Child which she has not done in the almost two years Child has been in DSCYF/DFS care but she entirely placed the blame on her work schedule or others for her failure to do so thus far. She now claims that she is still waiting for someone to call her with more information about going and she denied that she had refused to take the course without her son. She recalled when her family interventionist contacted New Behavior Network (hereinafter "NBN") in her presence on September 6 to coordinate individual sessions that accommodated her new work schedule and transportation issues, but said she is still waiting for someone from NBN to contact her directly. She added that she has not tried to contact NBN herself because her family interventionist never provided her a phone number at which to call someone at NBN.
Mother added that she knows that she is supposed to meet with her family interventionist Yahna Talley one-on-one to go through her Case Plan and that Mother remains willing to do so.
h. Domestic Violence Counseling
Mother testified that she went to small group meetings last year at Child Inc. where they talked about past experiences in abusive relationships but did not provide a certificate of completion as proof or the name of her group leader. According to Mother, she has talked to her Connections counselor about domestic violence issues too. She stated that she believes that she does not have to go to any more such meetings or counseling sessions because she is not around Mr. R------- anymore.
i. Regarding Mother's History of Care of Child and Her Other Children
Mother admitted that in the past five years she was the caregiver for Child for only a few months, that occurring in 2015. Mother also claimed that she had tried to reunify with her other children in the past but that the Court had denied her requests and that she had lost the documentation showing these attempts. She asserts that she is not working on reunifying with her other three children who are still minors and living with their paternal grandfather because she is presently focusing on trying to reunify with Child. She explained that none of her five children are presently living with her because she was homeless in the past and now she is working on getting her life together, but that "it takes time."
j. Miscellaneous Case Plan Elements
Mother defended not buying Child any clothes in the last year because Child has not been living with her and affirmed that she would buy him some once he returns to living with her. She also attempted to address the fact that she does not drive, by stating that she would walk or take a bus to get Child to any of his extracurricular activities or appointments where using LogistiCare would not be an option, yet blamed public transportation issues on her failure to timely attend visits or appointments.
3. Mother's Paystubs from Rainbow USA , Inc.
DSCYF/DFS submitted seven (7) of Mother's paystubs from Rainbow, spanning the pay periods from July 9, 2017 to August 19, 2017. From July 09 to July 15, the paystub reflects that Mother worked 24.58 hours at $8.25 per hour for a total of $202.79 for that pay period. At the end of that pay period, Mother had earned a year to date taxable gross of $1003.96, or $801.17 prior to July 9. Pet. Ex. # 2. From July 16 to July 22, Mother worked 27.21 hours at $8.25 per hour for a total of $224.48. Pet. Ex. # 3. From July 23 to July 29, Mother worked 24.18 hours at $8.25 per hour for a total of $199.49. Pet. Ex. # 4. From July 30 to August 5, Mother worked for 28.01 hours at $8.25 per hour for a total of $231.08. Pet. Ex. # 5. From August 6 to August 12, Mother worked 27.98 hours at $8.25 per hour for a total of $230.84. Pet. Ex. # 6. From August 13 to August 19, Mother worked 25.61 hours at $8.25 per hour for a total of $211.28. Pet. Ex. # 7. DSCYF/DFS did not submit a paystub for the pay period from August 20 to September 2. From September 3 to September 9, Mother worked 25.03 hours at $8.25 per hour for a total of $206.50. Pet. Ex. # 9. As of September 9, 2017, Mother's net pay after taxes for the preceding two-month period was $2275.69, making it impossible for her to have saved $3000 as she has claimed.
4. Mother's Current Apartment Lease Agreement
DSCYF/DFS submitted Mother's current apartment lease agreement with Hayman Enterprises Inc. dated November 29, 2016. Pet. Ex. # 8. The lease period goes from November 29, 2016 to December 31, 2017. The lease reflects that Mother is to pay $850 in rent to the landlord each month. The lease also reflects that Mother is "to pay all costs for the supply of utilities to the Premises including electricity, gas, hot water heater, telephone and cable television." Mother claims the utilities provision in the lease is incorrect and that the state pays her utilities, but provided no corroboration on this issue.
5. P----- F--- , Foster Mother
Child has been living with Foster Mother since December 2015. Foster Mother stated that Child's behavior has improved over the last twenty-one months. He is acting less defiant with adults and talking back and cursing less. Foster Mother credited some of that improvement to Child's work with her and with his therapist at the Center for Child Development. Child meets with his therapist weekly and that the therapist also comes to Child's school once a week. Foster Mother testified that she had talked about being a permanent resource for Child but that she is trying to break him from his habits of lying and stealing before she decides if she will seek to adopt Child. She admitted that he continues to take items from stores "all the time." For these reasons and because of his learning needs, Foster Mother believes that if Mother ever gets Child back in her care that she will need a lot of help to care for him.
Foster Mother expressed concern that all while she was trying to teach Child not to steal, Child told her that Mother had stolen a toy frog from the DFS visitation room for him. Foster Mother stated that she believed Child was telling the truth about the frog, despite her admission of his tendency to lie at times. She was also concerned at how Child has a terrible attitude after visits with Mother and that it takes several days to get him back on track. She disagreed that this might be because Child did not like leaving his time with Mother. In contrast, during August when Mother only saw Child once, Foster Mother did not notice any of this negative behavior. According to Foster Mother, when Mother missed appointments, that Child did not seem disappointed not to see her and that Mother does not initiate calls to Child when she misses her visitation appointments. However, she did admit that he sometimes mentions to her when he has not seen Mother for a while and that he stated recently that he wanted to stay with both Mother and Foster Mother and that she believes that Child loves Mother and will listen to Mother.
Foster Mother also testified that her fiancé Dennis and a foster daughter Gabrielle, 15 years old, also reside in the home, and that Gabrielle has lived with her for the last six years. She said that Gabrielle and Child get along okay, but was not questioned about Child's relationship with Dennis.
Foster Mother testified that when Child formerly attended Bancroft Elementary School that Mother would, at times, go to the school to visit him unannounced, outside of scheduled meeting times. The school requested that those unscheduled visits stop because Child would act up and could not be controlled. Foster Mother stated that she relayed this message to DFS to tell Mother and that she did not tell Mother this directly. Foster Mother added that Mother was, to her knowledge, never excluded from Bancroft school meetings and that she actually attended one or two of them. Foster Mother also testified that Child changed from Bancroft to Richey Elementary School because he "was not learning anything" at Bancroft and he would get suspended two or three times per week there. She feels that Richey is a better school for Child and that the school staff has been more attentive to his needs.
In response to Mother's allegations that Foster Mother did not communicate well with her, Foster Mother said that Mother has both her cell and home phone numbers but that Foster Mother does not respond to texts or calls during the work day and waits until after work hours to respond. Although she admitted that she did not inform Mother that she had moved Child to Richey Elementary School and when he had physicals, she advises Mother regularly with regard to Child's therapy appointments and medication needs because sometimes Mother's written permission was needed to proceed with treatment and Child's therapist or psychiatrist sometimes asked questions about Child that Foster Mother was unable to answer. Additionally, according to Foster Mother, she offered to take Mother to appointments on multiple occasions. However, Mother usually declined the offers because it was during her dinner times at wherever she was receiving her meals. The one time that Mother accepted an offer, Foster Mother ultimately could not take Mother because there was not enough time to pick up Mother and still get Child to the appointment on time.
With regard to Child's general well-being, Foster Mother said there were no concerns about his weight, vision or hearing. However, he did have two cavities. Foster Mother has signed Child up for hip-hop dance classes and taken him to various tourist destinations in the region. She reported that Child also likes to go to Banning Park and play outside in the backyard all day.
6. Yahna Talley , Mother's Wrap Around Delaware Family Interventionist
Ms. Talley began as Mother's Family Interventionist on June 28, 2017 to assist Mother with completing various aspects of her Case Plan.
As to Mother's employment, Ms. Talley testified that Mother has previously told Ms. Talley that she sometimes works 40 hours per week but she has never provided Ms. Talley with paystubs or other documentation to verify this assertion.
As to Mother's visits with Child, Ms. Talley testified that all the visits for July, August and September have been scheduled at DFS's visitation room. She confirmed Mother's testimony that Mother missed one of four July visits because she said she was sick and was late for another visit because of the bus and her desire to grab lunch to eat during the visit. Ms. Talley testified, contrary to Mother's explanation for her absence on August 2, Mother missed that visit after texting Ms. Talley that she needed a ride because it was going to storm and that she did not want to walk in the rain. Ms. Talley confirmed Mother's cancellation of the August 9 visit in advance because Mother had scheduled furniture to be delivered that day. Ms. Talley also confirmed that Mother was late on August 16. Ms. Talley testified, in conflict with Mother's recollection, that on August 23 Mother cancelled the visit in advance because she was sick from the heat. Finally, Ms. Talley confirmed that Mother cancelled the August 30 visit because she claimed she did not have money for the bus. Mother made both September visits.
As to Child's relationships with Mother and Foster Mother, Ms. Talley said that Child appears very affectionate toward Mother although she has also noted Child's behavioral issues at visits. Specifically, during one visit Child got very frustrated with Mother and during other visits he has acted defiantly toward Mother. Although Child has at times asked to spend more time with Mother and once on August 16 said "I'm really going to miss my mom. I want to go home," referring to Foster Mother's house, Ms. Talley testified that he also seems very attached to Foster Mother and never seems upset to leave Mother at the end of visits. He appears to want Foster Mother to be proud of him and acts very affectionately with her at drop-offs after visits.
As to Mother's participation in a parenting course, Ms. Talley testified that on August 9 Mother initially resisted attending because she was only scheduled to be off work on Wednesdays. However, Ms. Talley informed Mother that there are classes available on Wednesday mornings or afternoons that could be scheduled around her visits with Child and that Ms. Talley could assist Mother with transportation to and from the classes. Ms. Talley stated that she also gave Mother the name and phone number for a person to contact at NBN on both August 9 and 16. During a home visit with Mother on September 6, Ms. Talley called NBN because Mother had not yet done so, despite being provided with the phone number on two prior occasions, and confirmed that someone would try to arrange one-on-one sessions with Mother at her home for Mother's convenience. On September 12, NBN confirmed they could do these sessions with Mother and Ms. Talley again encouraged Mother to contact NBN if they did not reach out to her first. Ms. Talley testified that Mother had not contacted NBN as of the hearing date.
As to Mother's finances and budgeting discussions, Ms. Talley testified that during two prior visits to Mother's apartment that she had neither seen the jar where Mother allegedly has stashed $3000 nor that Mother ever mentioned this savings method or that she withdrew money in general in order to save it. Ms. Talley also testified to two prior attempts with Mother to discuss budgeting on September 6 and 13. Ms. Talley stated, contrary to Mother's account, that they had made the plan on September 12 to meet at Mother's home at 10:30 AM on September 13. However, Mother texted again on September 13 morning asking to change the meeting time to 9:30 AM so that she could attend a poetry session but Ms. Talley could not accommodate this last minute change.
Finally, Ms. Talley testified to her attempts to discuss Mother's progress on her Case Plan in general. Sometimes she tried to talk to Mother about it during her visits with Child. Other than that, they did meet at least on July 27 and August 16. However, three attempted meetings in August failed. On August 2, they did not meet because Mother had gone to Walmart. On August 23, they did not meet because Mother was working that day and claimed she was too busy to meet after work. On August 30, they did not meet because Mother did not show up or call to reschedule.
7. Jeanette Applewhaite , DSCYF/DFS Current Treatment Worker
Ms. Applewhaite began as Mother's Treatment Worker on June 7, 2017, then took medical leave from June 23 to August 21, and resumed her involvement in Mother's case on August 22. On September 6, Ms. Applewhaite visited with Mother in her home and conducted a full home assessment. She reported that Mother's home has a love seat in the living room, a full or queen bed with a dresser and mirror in Mother's bedroom, and a twin bed and plastic three drawer storage unit in Child's bedroom. There are toys and some books in Child's room but no clothes. Ms. Applewhaite testified that Mother explained that she did not have any clothes for Child because she gave them all to Foster Mother and she believed they would be returned to her when she got Child back. Mother also had not bought Child any new clothes because she did not know his current size. Ms. Applewhaite testified that during her home assessment she noticed two books in Child's room that were the same two books missing from the DFS visitation room, explaining that she recognized them because she is the person who first placed the donated books in the visitation room. However, she stated that she did not ask Mother about the books at that time. Ms. Applewhaite also testified that Mother's refrigerator did not have very much food.
During the September 6 visit, Ms. Applewhaite testified that she also discussed Mother's entire Case Plan with Mother. At that time, Mother stated that she had not attended any domestic violence (one on one) counseling and that she was behind on her furniture payments, but never mentioned that she allegedly had money in savings in a jar in her apartment. Ms. Applewhaite also reported that she has come to learn that Mother is no longer behind on furniture payments.
Ms. Applewhaite also testified to her interaction with Child at his school on August 21. He said he liked Richey Elementary, that his teachers are nice, that his principal has been helping him with anger issues, and that he is not getting bullied at Richey like he was at Bancroft. Child also mentioned that he liked to go on trips with his foster family and he wanted to go on more. She finished by stating that at Foster Mother's home Child has everything he needs, whereas at Mother's home he has nothing in the way of personal items.
8. Fred Conkey , DSCYF/DFS Prior Treatment Worker
Mr. Conkey has been the primary DFS worker on Child's case for most of the time Child has been in care, being first assigned to the case on November 18, 2015. Drawing on his experience, he noted that Mother missed scheduled visitations with Child even before she started working in June 2017. He also commented on Child's repeated practice of shoplifting items while out with Foster Mother.
At a meeting Mr. Conkey had with Mother at the end of June 2017, they discussed her employment, what she needed to do to get visitations with Child in her home, and that she needed to attend therapy. Mr. Conkey also testified that Mother never attended domestic violence classes but only met with a liaison to assist her with getting services, and stated that Mother had told him she did not need to take classes because she was no longer in an abusive relationship. However, Mr. Conkey reported that he had been anonymously informed that Mother was seeing Mr. R------- in or around November 2016, a claim which Mother later told him was false. DSCYF/DFS never excused Mother from completing domestic violence classes.
Mr. Conkey also testified that he does not believe that Mother would be able to successfully parent Child any time in the near future because the same problematic conditions still exist as when Child came into care.
9. Certified Criminal History of Mother
DSCYF/DFS submitted Mother's criminal history. Pet. Ex. # 10. The history reflects that she has several misdemeanor arrests all before 2005 but no convictions. On July 3, 2002, Mother was arrested on two charges of submitting a false police report. Both charges were dismissed on November 27, 2002. On July 4, 2002, Mother was arrested again on a harassment charge and was found not guilty on October 29, 2002. Lastly, on September 2, 2004, Mother was charged on one count of truancy for failing to send a child to school. This charge was dismissed on January 13, 2005.
10. Mother's Work Schedules for Rainbow USA , Inc.
Mother submitted four (4) of her weekly work schedules from her current employer, Rainbow USA, Inc., spanning the work weeks from July 30 to August 19, 2017 and August 27 to September 2, 2017. From July 30 to August 5, the weekly work schedule reflects that Mother was slated to work Monday - Tuesday and Thursday - Saturday at various times for a total of 40 hours. Res. Ex. # 1. From August 6 to August 12, Mother was slated to work Monday - Tuesday and Thursday - Saturday at various times for a total of 40 hours. Res. Ex. # 2. From August 13 to August 19, Mother was slated to work Monday and Tuesday - Saturday at various times for a total of 32 hours. Res. Ex. # 3. From August 27 to September 2, Mother was slated to work Tuesday - Friday at various times for a total of 35 hours. Res. Ex. # 4.
ANALYSIS
The United States Supreme Court has held that a parent's interest in his or her children "undeniably warrants deference and, absent a powerful countervailing interest, protection." Likewise, the Delaware Supreme Court has found that the parental right is a "sacred one" that "does not depend on societal standards or mores of lifestyle, age, economic achievement, or sex." It has also held that parental rights "arise from a natural relationship," are "fundamental liberties," and "may not be abrogated in the absence of the most compelling reasons." While recognizing the fundamental liberty interest of the parents, the Court must consider that "one of the important objectives of the termination of parental rights statute is to ensure that children are not denied the opportunity for a stable family life." However, the federal Adoption and Safe Families Act of 1997 (ASFA) recognizes the countervailing importance of the child's safety and need for permanency by placing limits on the time in which parents are given to rehabilitate themselves and assume their parental responsibilities, provided the State has met its duties to provide a meaningful process and reasonable efforts to reunify the family.
Stanley v. Illinois, 405 U.S. 645, 651 (1972).
In re Burns, 519 A.2d 638, 645 (Del. 1986) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)).
See id.; In re Stevens, 652 A.2d 18, 24 (Del. 1995).
Shepherd v. Clemens, 752 A.2d 533, 538 (Del. 2000).
In re K.L.T., 2001 WL 493113, at *10 (Del. Fam. Jan 22, 2001).
A parent's strong interest in her child can be terminated only upon a showing, by clear and convincing evidence, that one or more of the statutory grounds set forth in 13 Del. C. §1103(a) has been established and that severing the parental ties would be in the best interests of the child as defined in 13 Del. C. § 722. The Court must also find that the State has exercised reasonable efforts to reunify the family and provide meaningful efforts to case plan with the parents. The clear and convincing standard of proof requires greater certainty about the factual conclusions than a preponderance of the evidence standard, underscoring the important liberty interest at stake and the special loss that occurs with the termination of a parent's rights in a child.
Id.; see also In re Hanks, 553 A.2d 1171, 1179 (Del. 1989).
In re K.L.T., 2001 WL 493113, at *10.
See Patricia A.F. v. James R.F., 451 A.2d 830, 831-32 (Del. 1982).
A. Statutory Grounds for Termination of Parental Rights
DSCYF/DFS seeks termination of Mother's parental rights in Child on the grounds of failure to plan pursuant to 13 Del. C. §1103(a)(5). DSCYF/DFS also seeks termination of Unknown Father's parental rights in Child on the grounds of failure to plan pursuant to 13 Del. C. §1103(a)(5).
1. Failure to Plan — Unknown Father
No individual has come forward claiming to be Child's father, so DSCYF/DFS could not plan for reunification with such person.
2. Failure to Plan - Mother
DSCYF/DFS requests the Court find that Mother failed to plan for Child pursuant to 13 Del. C. §1103(a)(5). DSCYF/DFS must demonstrate by clear and convincing evidence that Mother failed to plan adequately for Child's physical needs or mental and emotional health and development and that Child came into the care of DSCYF/DFS over one year ago.
The record reflects that Mother has made some progress on her Case Plan, including but not limited to securing employment and appropriate housing. Nonetheless, DSCYF/DFS alleges that Mother has failed to adequately plan for Child's needs by repeatedly missing scheduled visitation, medical and school appointments, and by failing to engage with service providers' offers of parenting skills training, budgeting assistance and domestic violence counseling, among others.
The Court will consider each element of her Case Plan in turn.
a. Secure Income to Support Her Family and Develop a Budget
Although Mother received her Case Plan in January 2016, she did not begin working until June 2017. Despite Mother's belief to the contrary, actually working about twenty-five hours per week is not full time employment regardless of how many hours an employee is tentatively scheduled. Furthermore, the Court is concerned that Mother offers the excuse that she has been too busy to make speedier progress on her nearly two-year-old Case Plan even while only working part-time since June.
Mother is not aware how much it will cost to provide for Child's needs if he returns to her care, perhaps in part because Mother has failed to meet with her family interventionist Ms. Talley to establish a budget because, among others, she has prioritized a poetry session over a Case Plan meeting. As a result, although her securing an independent source of income, of about $215 per week before taxes, is progress toward planning for Child's needs and may be sufficient to support her family based on her current expenses, it is unclear to the Court how much progress her current employment establishes without Mother first creating a budget and being forthcoming with DSCYF/DFS about whatever savings she has set aside. Based on Mother's testimony alone and her inability to account for the source of the savings, the Court cannot find it credible that Mother has $3000 saved in a jar in her current residence. If she in fact has such a substantial savings, that savings in turn undercuts Mother's excuse, for not making better progress on other Case Plan elements, that she has at times not had enough money to afford bus fares.
b. Participate in Mental Health Treatment
Whatever past progress Mother made to address this issue, she has recently demonstrated some degree of backsliding. Not only has she has stopped taking her medication based on her self-diagnosis that she no longer has intermittent explosive disorder, but also, depending on which account is believed, she is either only seeing a therapist once a month because Mother is too busy to meet more often or she has not seen a therapist to address her mental health since March 2017. Mother's personal decision to stop taking her medication is particularly troubling considering her Case Plan specifically instructs her to take her medication as recommended by her doctor.
c. Meet with Family Interventionist and Develop Parenting Skills
Mother has inconsistently engaged with her family interventionist and has not started parenting skills classes although Ms. Talley has expended considerable energy to get Mother into even one-on-one classes at Mother's home and tailored to her availability. Additionally, Mother has a poor record of attending her scheduled visits with Child. The Court is concerned about how furniture delivery times, weather, bus delays and any number of other excuses seem to get in the way of Mother developing her parenting skills and having opportunities to apply them by spending quality time with Child. Although the visits that have occurred have largely been positive, the consistency with which Mother has been either late to or missed the visits demonstrates a clear failure to plan by Mother. Inconsistent attendance at weekly one-hour visitation sessions over a two-year period is inadequate to prepare a person to be a full-time parent especially one who has a demonstrable failure to parent any of her children.
d. Maintain Appropriate Housing
The Court commends Mother for finally securing appropriate housing for herself and Child wherein Child could have his own room and utilities are covered at present. However, the Court is concerned that Mother has not prepared for Child's return by stocking the residence with clothing, adequate food and other necessities, and about allegations that Mr. R------- may again be residing with Mother.
e. Secure a Social Support System
Mother has provided little evidence of a family or friend support network upon which she could rely to care for Child's needs. Although Child's siblings are in the care of others, there is no evidence of those same relatives desiring to engage with Child. Additionally, although Mother attested that she could work her schedule around Child's school hours, she has thus far been unable to control her work schedule enough to consistently attend weekly visits with Child or medical appointments, much less provide for his daily needs if he was in her care.
f. Attend Child's Medical and School Appointments
Mother blames Foster Mother and others for her failure to attend Child's medical and school appointments, alleging that she has not been told about them or not been able to secure transportation, and that she has been told that she could not attend school meetings. While the record reflects the possibility for confusion as to what Child's former school prohibited Mother from doing and that Foster Mother and others have not told Mother about each and every of Child's appointments, the Court finds Foster Mother's testimony more credible that as a general rule the communication lines as to Child's appointments have remained open. Furthermore, the Court is concerned that Mother has such a poor ability to find ways to utilize her transportation resources to get where she needs to go, even with DSCYF/DFS providing her with bus passes. This history calls into question her ability to ensure Child gets to his future appointments if he is in her care. It is also troubling how little Mother knows about Child's school and physical and mental health providers and how long it has been since Mother has talked to a professional about Child's medical needs.
g. Address Domestic Violence Issues
Mother testified that she has attended group and individual sessions during which the topic of domestic violence has been addressed. However, her DSCYF/DFS case workers had no knowledge of her progress on this element and Mother had no completion certificate to provide the Court as verification. Even if the Court credits Mother's testimony that she attended group sessions in the past that have addressed domestic violence and that she has spoken to her Connections counselor about such issues, the Court is concerned about Mother's belief these actions have satisfied this Case Plan element and that she does not need to continue to seek such services because she is allegedly no longer living in a situation where she might be a victim of domestic violence from a particular past perpetrator.
h. Conclusion
Overall, the record reflects that Mother has made insufficient progress on her Case Plan since she received it nearly two years earlier. Although, Mother presented evidence that demonstrates that she is in some ways in a better place to provide for Child's needs now that she was in earlier in 2017 or 2016, she has consistently failed to prioritize other areas of her Case Plan. Accordingly, when considering Mother's overall lack of demonstrable progress on her Case Plan over the last almost two years, the Court finds that DSCYF/DFS has shown by clear and convincing evidence that Mother has failed to adequately plan for Child's physical needs or mental and emotional health and development. Therefore, the grounds for termination of her parental rights in Child have been met.
B. Reasonable Efforts
Once the Court concludes that the grounds for termination of parental of rights has been met by clear and convincing evidence, the Court must also find by clear and convincing evidence that the State, or DSCYF/DFS in this case, has made "reasonable efforts" to reunify the family. Both the Adoption and Safe Families Act of 1997 and 29 Del. C. §9003 require DSCYF/DFS to "provide reunification services to families and to prepare written case plans and review those plans semi-annually."
Powell v. Dep't of Servs. for Children, Youth, and their Families, 963 A.2d 724, 738 (Del. 2008).
The record reflects that Mr. R------- and Mr. M------- have been adjudicated to not be the father of Child by genetic testing. Therefore, the Court finds that DSCYF/DFS has made reasonable efforts to reunify the family by attempting to determine the identity of Unknown Father.
The record reflects that Mother was provided a Case Plan in January 2016 and that DSCYF/DFS continuously advised Mother, over the period of many months, of the ongoing issues in this case. Although Mother completed some of the services requested of her by DSCYF/DFS, including securing employment and adequate housing, Mother continuously failed to prioritize addressing other areas of her Case Plan despite repeated invitations for assistance from her family interventionist or DSCYF/DFS case workers. Since well before she secured part-time employment in June 2017, Mother has consistently missed weekly visits with Child. Despite attempts by Ms. Talley to set her up with transportation assistance or in-home parenting sessions, Mother has not progressed on that Case Plan element. Despite attempts by Ms. Talley to meet to discuss a budget or a general Case Plan overview, Mother missed several appointments in July and August for a variety of reasons such that Ms. Talley at times resorted to trying to discuss Mother's Case Plan during her visits with Child for lack of other in-person contact with Mother.
Therefore, the record reflects that Mother was made aware of the ongoing concerns of DSCYF/DFS and her family interventionist multiple times and refused to set aside sufficient time to address and make progress on these concerns, to the detriment of Child. Therefore, the Court finds that DSCYF/DFS has made reasonable efforts to reunify the family in the services offered to Mother.
C. Best Interest of the Child
Even when one or more of the statutory grounds for termination of parental rights has been established, the Petition should not be granted unless the Court determines by clear and convincing evidence that the termination is in the child's best interest. While required to consider all factors relevant to this case in determining the child's best interests, the Court must specifically consider the factors enumerated in 13 Del. C. §722. The Court has also held that some factors may be given more weight than others in the Court's analysis. The Court will engage in a factor by factor analysis as to Mother below and conclude by default that it is in the best interest of Child that Unknown Father's parental rights be terminated due to Unknown Father's lack of involvement in Child's life.
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 parent as to her custody and residential arrangements;
Mother opposes the termination of her parental rights and desires that Child be placed back in her home. However, her actions since December 2015 are not aligned with her words as she has repeatedly failed to prioritize the tasks she has needed to accomplish to get Child back in her care among them failing to prioritize attending the weekly visits she has with Child. Regardless, based on Mother's words alone, the Court finds that this factor favors denying the Petition.
2. The wishes of the child as to his custodial and residential arrangements;
Due to Child's being eight and a half (8.5) years old at the time of the hearing, the Court did not interview Child in order to ascertain his wishes. However, both Foster Mother and Ms. Talley testified that he recently expressed an interest in going "home" and at least splitting time between Foster Mother and Mother. Respecting that Child expressed those interests, the Court notes that Child has spent very little time in the last twenty-two months with Mother, and only then in a DSCYF/DFS visitation room, that he has never been to Mother's current residence or seen his current home, and that he in all likelihood has reflected little on how much his present life would change if he moved back in with Mother. Therefore, the Courts will afford this factor lessened weight but still note that it slightly favors denying the Petition.
3. The interaction and interrelationship of the child with his parent , 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;
The record reflects that Child has resided with Foster Mother for nearly two years and that they have a very healthy relationship. Foster Mother is actively engaged in both Child's school and medical appointments, and Child appears to want to make Foster Mother proud of him. Foster Mother is also working on Child's negative in-home and in-school behaviors. As a result, it would be detrimental to Child's wellbeing for him to be removed from this placement. In contrast, although Child and Mother have had positive though inconsistent interactions in the DSCYF/DFS visitation room, that is the full extent of their interactions since December 2015 aside from surprise visits by Mother to Child's former school. Mother has failed to support Child by attending only one or two school meetings and none of his medical appointments. Additionally, Child has exhibited negative behaviors after recent visits with Mom at the DSCYF/DFS visitation room and at his former school, perhaps triggered by Mother's presence. Furthermore, for a child who already has a troubling pattern of shoplifting during outings with Foster Mother that she is trying to correct, the Court is concerned that Child believes that Mother stole a toy frog from the visitation room for him. Finally, there is no evidence that Child has a relationship with any of his siblings or maternal relatives, or that such interactions would increase if he was back in the care of Mother. Therefore, the Court finds that this factor favors granting the Petition.
4. The child's adjustment to his home , school , and community;
The record reflects Child has resided in Foster Mother's home since December 2015 whereas he has never been to Mother's current residence and she has not been his primary caregiver, but for a few months in 2015, since 2012. Additionally, Foster Mother testified that Child was "not learning anything" at his former elementary school, located close to Mother's current residence, and that Child is more attended to at Richey Elementary School where he is currently enrolled. Ms. Applewhaite also testified that Child told her that he likes Richey and that he does not get bullied there like he did at Bancroft. If Child was placed back with Mother, it is possible that Child would have to return to Bancroft because Mother would not be able to drive Child to Richey each day. Uprooting an eight-and-a-half-year old from his home and community of the last two years and his current school, and placing him in a residence that he does not know and that does not have many of the amenities he has become used to at Foster Mother's, and with a Mother he has spent only little time with would be a huge adjustment for Child. Therefore, the Court finds that this factor favors granting the Petition.
5. The mental and physical health of all individuals involved;
Child has extensive mental health needs which have been addressed by medication and visits with therapists. Foster Mother has been fully engaged in Child's mental health treatment, whereas Mother has no present knowledge of his mental health needs nor has she participated in his appointments. Furthermore, Child's asthma would likely be aggravated if Mother continued to smoke after Child was returned to her care, but there are no known concerns for Child's physical health if he continued to reside with Foster Mother. Mother also has extensive mental health needs, chiefly her intermittent explosive disorder diagnosis. However, without medical consultation, she recently took herself of medication. Therefore, the Court finds that this factor favors granting the Petition.
6. The past and present compliance by parent with her rights and responsibilities to the child under §701 of this title;
13 Del. C. § 701(a) states that "The 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." The record reflects that Mother has continuously had issues with meeting her responsibilities as a parent, both now and in the past. The Court notes that this is the second time that children by Mother have been in the custody of DSCYF/DFS. Previously, Child's older sister came into care in 2004 and never returned to the custody of Mother. Additionally, including Child, none of Mother's five children are currently in her care, and Mother has not been Child's primary caregiver, but for a few months in 2015, since 2012. She has struggled through long periods of unstable housing and unemployment, during which she could not provide for her children's basic needs. She has also failed to adequately participate in Child's school or health care. Although she has made some small progress in recent months by securing appropriate housing and a stable job, it is not clear, as mentioned earlier, whether her present income is sufficient to meet Child's basic needs. As a result, this recent progress is not enough to completely erase her past failings with Child and his siblings. Therefore, the Court finds that this factors favors granting the Petition.
7. Evidence of domestic violence as provided for in Chapter 7A of this title; and ,
Title 13 Del. C. §706A(a) provides that any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the Court in determining the legal custody and residential arrangements in accordance with the best interests of the child. The record reflects that Child was originally taken into care, in part, due to issues of domestic violence between Mother and Mr. R------- and by Mother and Mr. R------- against Child. Additionally, there has been reports, that Mother has denied, that Mr. R------- has been residing with Mother again. Mother has not, however, been found to be a perpetrator of domestic violence. Therefore, the Court finds that this factor is neutral.
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 only possesses four (2) misdemeanor criminal charges, none of which led to convictions. Additionally, all of the charges are from 2004 or prior. Even though Mother has a truancy charge that might go to her ability to care for a child, because the charge was dismissed and it dates back to Mother's alleged conduct from 2004 with a different child, the Court finds this factor is inapplicable as to Mother in the present case all while restating the problem of reunifying a child with a tendency to shoplift with a mother who on occasions has allegedly stolen items from the DFS visitation room.
As a result, the Court finds that best interest factors 1 and 2 favor denying the Petition; factors 3, 4, 5, and 6 favor granting the Petition; and factor 7 and 8 are neutral or inapplicable. Overall, the Court finds that it is in Child's best interests that the herein Petition be granted.
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 Unknown Father's parental rights exists under 13 Del. C. § 1103(a)(5) for failure to plan, and that DSCYF/DFS has offered reasonable efforts at reunification for the parents. The Court has also found that it is in the best interest of Child for Mother's and Unknown Father's parental rights to be terminated based on an analysis of the factors pursuant to 13 Del. C. § 722.
Accordingly, the Petition for Termination of Parental Rights is hereby GRANTED as to Natalie M------- and Unknown Father. The parental rights of Natalie M------- and Unknown Father are hereby TERMINATED and TRANSFERRED to DSCYF/DFS. The Court will schedule a Post-TPR Review Hearing in the interest of Child.
IT IS SO ORDERED.
November 27 , 2017
Date Written Order Issued
/s/ _________
ROBERT BURTON COONIN, JUDGE RBC/plr cc: Counsel
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