Opinion
CN22-03281 23-08-04TN
11-20-2023
DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES (DSCYF), Petitioners, v. T. S. AND D. T., JR. Respondents.
Courtney McGregor, Esquire, Attorney for Petitioner, Department of Services for Children, Youth, and Their Families Christofer Johnson, Esquire, Attorney for Respondent, T---- S---- F. Phillip Renzulli, Esquire, Attorney for Respondent, D ----- T ------ Elizabeth C. Fillingame, Esquire, Child Attorney In the Interests of: O ----- P ------, born ------- -, 2022
Date Submitted: October 24, 2023
Date Written Decision Signed: November 20, 2023
Date Written Decision Mailed: November 20, 2023
Petition Nos. 22-12661, 23-17400
UPON A PETITION FOR TERMINATION AND TRANSFER OF PARENTAL RIGHTS
Courtney McGregor, Esquire, Attorney for Petitioner, Department of Services for Children, Youth, and Their Families
Christofer Johnson, Esquire, Attorney for Respondent, T---- S
F. Phillip Renzulli, Esquire, Attorney for Respondent, D ----- T
Elizabeth C. Fillingame, Esquire, Child Attorney
In the Interests of: O ----- P ------, born ------- -, 2022
MICHAEL K. NEWELL, CHIEF JUDGE
INTRODUCTION
Pending before the Court is a Petition for Termination and Transfer of Parental Rights ("TPR") filed by the Department of Services for Children, Youth, and Their Families ("DSCYF"), against T---- S---- ("Mother") and D ----- T ------ ("Father") in regard to O ----- P ------ ("O ----- "), born ------- -, 2022.
The Court held a TPR hearing on October 24, 2023. Present for the hearing were: Courtney McGregor, Esquire ("Ms. McGregor"), attorney for DSCYF; Joseph Wester, Esquire, assisting Ms. McGregor ("Mx. Wester"); Christofer Johnson, Esquire ("Mr. Johnson"), attorney for Mother; attorney for Father, F. Phillip Renzulli, Esquire ("Mr. Renzulli"); and Elizabeth Fillingame, Esquire ("Ms. Fillingame") on behalf of O ----- . Also present for the hearing were: B------ A-- ("Ms. A--"), the Division of Family Services ("DFS") permanency worker; J---- S ------("Mr. S ------ "), DFS treatment worker; B ------ M ----- ("Ms. M ----- "), the Court Appointed Special Advocate ("CASA"); J ------- F -------- ("Ms. F -------- "), the CASA Coordinator; and D ----- J----("Ms. J----"), O ----- 's foster parent.
Ms. A-- was assigned to the case in June 2023.
Mr. S ------ has been assigned to the case for approximately one year as of the date of the instant hearing.
Ms. M ----- has been assigned to the case since July 2022.
Father failed to appear for the present hearing and has not appeared since September 21, 2022. He has failed to appear for the following hearing dates: October 13, 2022, February 3, 2023, June 23, 2023, and October 24, 2023. At the October 24, 2023 TPR Hearing, Mr. Renzulli represented to the Court that he had a conversation with Father, that Father was aware of the hearing, and that he had been presented with all of his legal options. DSCYF offered testimony from Ms. A--, Mr. S ------, and Ms. J----. Mother did not testify.
At the outset of the TPR hearing, Mr. Johnson stated that Mother wished to consent to the termination of her parental rights. The Court recessed to allow Mr. Johnson and Mother to confer and execute a written consent. Mother submitted her consent to the termination of her parental rights to O ----- by and through her counsel, Mr. Johnson. The Court, after a detailed colloquy with Mother, accepted her consent as being knowingly, voluntarily, and intelligently given.
For the reasons set forth below, the Court GRANTS DSCYF's Petition for TPR. Pursuant to this Order, the parental rights of Mother and Father are TERMINATED and TRANSFERRED to DSCYF until O ----- is adopted.
PROCEDURAL HISTORY & FACTUAL BACKGROUND
Ms. McGregor offered the Court's prior dependency/neglect Orders in this case into evidence as DSCYF Exhibit 1, collectively, without objection. A copy of DSCYF's social report was admitted as DSCYF Exhibit 2 without objection. Ms. McGregor also requested that the Court take judicial notice of Father's Delaware criminal history report. Pursuant to Powell v. DSCYF, the Court reviews these prior orders under a clear and convincing standard.
Powell v. Dep't of Servs for Child., Youth & Their Fams., 963 A.2d 724, 737 (Del. 2008).
DSCYF received a referral on April 28, 2022, indicating that O ----- had a sock lodged deeply into his throat. Mother and Father could not remove the sock. Due to the life-threatening nature of O ----- 's injury, he was taken to Nemours Alfred I. duPont Hospital ("Nemours"). Neither the Emergency Medical Services ("EMS") team nor parents indicated how the sock became lodged in O ----- 's throat. Still, the report written by EMS stated that it was due to the child being unsupervised. After performing imaging at the hospital, doctors also found fractures to O ----- 's left tibia and fibula.
The Care Team at Nemours informed the DFS worker that O ----- was brought to the hospital early on March 6, 2022, after Mother fell down the stairs with O ----- in her arms. O ----- sustained a left femur fracture at that time. Doctors reported that O ----- 's imaging in March 2022 did not reveal tibia or fibula fractures when O ----- was assessed for the femur fracture. O ----- 's pediatrician, Dr. S -------- A--- D -----, MD ("Dr. D ------ ") also evaluated O ----- . She stated that O-----'s tibial and femur injuries likely occurred at different times and that it was unusual for a sock, on its own, to be lodged in a child's throat of O ----- 's age.
The Wilmington Police Department was contacted contemporaneously with O ----- 's hospital visit. The responding detectives, Detective P--- S ------ ("Mr. S ------ ") and Detective B--- --- ("Mr. B ------ "), investigated O ----- 's injuries. According to the DFS worker assigned to the matter, E--- U ------ ("Mr. U ------ "), Mother and Father relayed that during the morning of April 28, 2022, Mother was asleep in a different room in the home from Father and O ----- . According to Mother, it was Father's responsibility to care for O ----- that night. While Mother slept, Father left O ----- unattended for approximately fifteen minutes. When he returned, Father found O ----- with the sock lodged in his throat, woke Mother, and called 911. O ----- remained at the hospital until May 5, 2022. Following this incident, a no-contact safety plan was put in place for O ----- . The no-contact safety plan also applied to Mother's older sons, D ----- and D ------ . The two boys, ages 4 and 5 respectively at the time of O ----- 's removal from Mother's home, went to stay at their biological father's home during this period.
Per DSCYF's social report, Father reported that O ----- had socks on his hands to prevent him from scratching himself.
Mother's son D ------ is referred to as "D ------" in all previous Court orders but is referred to as "D----" in DSCYF's social report.
On May 9, 2022, O ----- was placed with Mother's father, C---- S---- ("Maternal Grandfather") and his wife, J ----- S---- ("Ms. S----"). O ----- 's placement with Maternal Grandfather and Ms. S---- went well until June 27, 2022. On June 28, 2022, Ms. S---- informed DFS that she could no longer serve as a placement for O ----- due to rising tension between her and Mother. Mother and Father provided DFS with the name of a possible alternate safety person, K----- P ------ ("Ms. P ------ "). However, DFS did not deem Ms. P ------ as an appropriate resource because she had multiple child abuse charges and was substantiated at Level II for an incident with one of her children. The Court signed an Ex Parte Order awarding temporary emergency custody to DSCYF on June 28, 2022. O ----- was initially placed in a foster home with "exceptional" parents approximately thirty minutes from Mother's home.
The Preliminary Protective Order refers to Ms. P ------- 's first name as "K -----," while DSCYF's social report refers to her first name as "K--." In any event, both names refer to Ms. P ------ .
On June 29, 2022, Mr. U ------ followed up with the Wilmington Police Department regarding the incident. Mr. U ------ was informed that Mother and Father had completed their follow-up interviews but that there was still no explanation as to how the sock became lodged in O ----- 's throat. The Wilmington Police Department told Mr. U ------ that Mother and Father would perform a reenactment with a doll.
On July 6, 2022, the Court held a Preliminary Protective Hearing. Mother and Father were both present. Mr. U ------ testified that on July 6, 2022, the parties, along with his supervisor, K--- - M---- ("Ms. M----"), and a facilitator, conducted an in-person team decision-making meeting. While affirming that the meeting was productive and Mother's involvement was evident, Mr. U------ noted Father's disinterest in the matter. He stated that Father had nothing to add and seemed more concerned with his cell phone during the meeting.
By Order dated July 11, 2022, the Court found probable cause existed to believe that O----- was a dependent, neglected, or abused child, as to each parent, and there was substantial imminent risk of harm to O -----, as defined by 10 Del. C. § 901(8). Further, the Court found that it was in O ----- 's best interest to remain in DSCYF custody. Lastly, the Court found that DSCYF made reasonable efforts to prevent the unnecessary removal of O ----- from his home and that the agency had acted with due diligence in identifying appropriate and adequate placement of the child with relatives.
10 Del. C. § 901(8) defines "dependency" or "dependent child" to mean that a person: "Dependency" or "dependent child" means that a person:
a. Is responsible for the care, custody, or control of the child; and
b. Does not have the ability or financial means to provide for the care of the child; and
1. Fails to provide necessary care with regard to: food, clothing, shelter, education, health care, medical care or other care necessary for the child's emotional, physical or mental health, or safety and general well-being; or
2. The child is living in the home of an "adult individual" who fails to meet the definition of "relative" in this section on an extended basis without an assessment by DSCYF, or an agency licensed by the Department of Education, Office of Child Care Licensing; or
3. The child has been placed with a licensed agency which certifies it cannot complete a suitable adoption plan.
The Court ordered that Father appear for genetic testing to confirm that he was O ----- 's biological parent. Father failed to appear for genetic testing, first on July 20, 2022, and then on August 10, 2022. The Court issued a Rule to Show Cause to be addressed at the Adjudicatory Hearing as to why Father should not be held in contempt of Court for his failure to comply with this Court's Order regarding genetic testing.
On July 11, 2022, DSCYF conducted a home assessment of Ms. J----' residence. Regarding the potential placement of O ----- with Ms. J----, Mother stated that Ms. J---- was "like a mother to her" but that the two are not biologically related. Ms. J---- is the mother of Mother's half-brother. On July 22, 2022, O ----- was placed in Ms. J----' care.
Prior Orders reflect that O ----- was placed with Ms. J---- on July 11, 2022. DSCYF's social report indicates that the home assessment occurred on July 11, 2022, and that O ----- was subsequently placed with Ms. J---- on July 22, 2022. The discrepancy is inconsequential to this Order.
On September 21, 2022, the Court held an Adjudicatory Hearing. Both parents appeared for the hearing, but neither testified. At the outset of the hearing, Mother and Father knowingly and voluntarily stipulated that O ----- was a dependent child in their care. At that hearing, then attorney for the Petitioner, Jonathan Harting, Esquire ("Mr. Harting"), stated that DSCYF would accept the stipulations and that although they have concerns about abuse and neglect, DSCYF did not ask the Court for these findings during the present hearing. On behalf of O -----, Mark Hudson, Esquire ("Mr. Hudson"), stated that the Office of the Child Advocate ("OCA") was unwilling to accept anything less than a stipulation to abuse.
Dr. D ------ testified to O ----- 's medical care at the Adjudicatory Hearing. Dr. D ------ was admitted as an expert witness. She is board-certified in general pediatrics and child abuse pediatrics. Dr. D ------ stated that she became involved as a result of the April 28, 2022 incident but that her partner had attended to O ----- 's femur fracture during the March 22, 2022 hospital visit. Dr. D ------ explained that O ----- 's treatment for respiratory distress required suctioning and steroid therapy. Most notably, Dr. D ------ stated that O ----- received epinephrin and dexamethasone to reduce the swelling in his airway. Dr. D ------ recalled reading the EMS report, which required the team to use forceps to remove the sock from O ----- 's throat. Because of the lodged sock, O ----- was nearly asphyxiated.
Dr. D ------ also spoke about the left leg fractures found during O ----- 's skeletal imaging. She discovered two fractures on O ----- 's left leg: one on the tibia and one on the fibula. She found that these fractures were new but were partially healed. She estimated that the fractures likely occurred ten days before the present asphyxiation, meaning that they were also not present during the March 22, 2022 femur fracture. Dr. D ------ stated that the tibia and fibula fractures can occur due to pulling or yanking on the leg. Further, she opined that regular caregiving is unlikely to result in these types of fractures.
Dr. D ------ saw O ----- next on May 16, 2022. She noted the progression in the healing of O ----- 's femur, tibia, and fibula fractures and reaffirmed the seriousness of O ----- 's injuries from the lodged sock. Dr. D ------ informed the Court that O ----- should have a full recovery and normal mobility because the oxygenation to his brain remained stable during the incident despite a concerningly elevated glucose level.
As to her opinion on how the sock became lodged, Dr. D ------ stated that it was not unusual for babies to put things in their mouths. However, because of the size of the object and O ----- 's head, and that the sock was wedged so far down his throat that tools were required for its removal, it was far more likely that the sock was placed there by an adult than accidentally by O ----- . By Order dated October 10, 2022, the Court made a finding by a preponderance of the evidence of abuse because of O ----- 's multiple unexplained injuries. As such, the Court ordered that DSCYF continue to have custody of O ----- . Regarding genetic testing, Father completed his genetic testing following the hearing. The results came back on October 4, 2022, that Father was the biological parent of O ----- . The Court issued a Parentage Decree on October 13, 2022.
"Abuse" or "abused child" means that a person has care, custody, and control of a child, and causes or inflicts physical injury through unjustified force as defined in § 468 of Title 11; 10 Del. C. § 901(1)(b)(1).; 11 Del. C. § 468(1)(c) defines unjustified force when the defendant is the parent, guardian, foster parent, legal custodian or other person similarly responsible for the general care and supervision of a child, or a person acting at the request of a parent, guardian, foster parent, legal custodian or other responsible person, to "include[], but is not limited to, any of the following: Throwing the child, kicking, burning, cutting, striking with a closed fist, interfering with breathing, use of or threatened use of a deadly weapon, prolonged deprivation of sustenance or medication, or doing any other act that is likely to cause or does cause physical injury, disfigurement, mental distress, unnecessary degradation or substantial risk of serious physical injury or death.
The Court scheduled the Dispositional Hearing for October 13, 2022. Prior to this date, DSCYF filed a Motion for No Reasonable Efforts. On the date of the Dispositional Hearing, Mother appeared, but Father did not. Mr. Renzulli and Mr. Johnson together requested a deferral of the Court's ruling on DSCYF's motion and more time to investigate and appoint medical experts to contest Dr. D ------ 's conclusions. Mr. Renzulli indicated that because DSCYF now sought a finding of abuse under a clear and convincing standard, the case path would move "too quickly." Similarly, Mr. Johnson argued that had he known the record from the Adjudicatory Hearing would be used to make a future finding of abuse pursuant to a clear and convincing standard, he would have changed his line of questioning for Dr. D ------ .
Considering due process concerns and the weighted significance of making the finding of No Reasonable Efforts, the Court deferred ruling on the Motion pending expert testimony on the matter by Order dated November 1, 2022. The Court ordered a joint status report from Mr. Renzulli and Mr. Johnson to identify their defense experts within seven days of receipt of the Order. A case management conference was scheduled for November 10, 2022, to set a trial date and to address any potential discovery disputes.
On November 10, 2022, the Court conducted the case management conference. Counsel for Mother and Father identified S ----- S ----------, MD, FAAP ("Dr. S ---------- ") and L--- H. H---- ----, MD, FAAP, FACR ("Dr. H -------- ") as their medical experts, and Ms. Fillingame confirmed that Dr. D ------ would likely be recalled in rebuttal. A six-hour Dispositional Hearing was scheduled for February 3, 2023.
Dr. S ---------- is board-certified in pediatrics and has practiced pediatric medicine since 1985. He was admitted as an expert witness. Dr. H --------- is board-certified in diagnostic radiology and pediatric radiology. She was admitted as a pediatric imaging expert.
On February 3, 2023, the Court conducted the Dispositional Hearing. Mother appeared for the hearing, but Father did not. At that hearing, Dr. S ---------- opined as to the possible cause of O ----- 's injuries. He stated that given his knowledge and experience, a child of O ----- 's age could not have placed a sock in their own throat, as was done in this case. In his only disagreement with Dr. D ------ 's report, Dr. S ---------- purported that because Mother was asleep, she could not have been the person to lodge the sock down O ----- 's throat. Dr. D ------ stated that because she was not there that night, she could not give an opinion as to who placed the sock in O ----- 's throat. Mother then testified as to her recollection of the incident, as detailed in the factual background.
At that hearing, DSCYF moved for a directed verdict based on a finding of abuse or unexplained serious physical injury that occurred under 13 Del. C. § 1103(a)(8) and (9). Mr. Hudson, on behalf of O -----, supported the motion. They believed that the testimony provided by Dr. D ------ and Dr. S ----------, as well as Mother's and Father's further inability to explain O -----'s asphyxiation or fractures, supported a finding of abuse by clear and convincing evidence. Mr. Johnson and Mr. Renzulli opposed the motion. By Order dated February 20, 2022, the Court deferred the motion for a directed verdict until the completion of the Dispositional hearing. A second day to complete the Dispositional Hearing was scheduled for March 31, 2023.
By Stipulation and Order dated March 30, 2023, counsel agreed to continue the March 31, 2023 hearing to allow the availability of Dr. H -------- to testify. A new hearing date was scheduled for June 23, 2023.
In the months following the February 3, 2023 Dispositional Hearing date, DSCYF filed a Motion in Limine: Motion to Exclude on June 5, 2023. DSCYF moved to have any reports not prepared by March 31, 2023, to be excluded. On June 16, 2023, DSCYF motioned to change the permanency plan to Termination of Parental Rights/Adoption because of the unexplained fractures and sock incident. Additionally, DSCYF alleged that Mother's lack of cooperation with the police investigation went against her ability to plan and care for O ----- 's needs. Ms. Fillingame joined in support of the motion. Mother and Father opposed the motion. Mr. Renzulli argued, on behalf of Father, that it has not been shown by clear and convincing evidence that the statutory ground for termination of parental rights exists. Further, he asserted that O ----- 's injuries fell outside of the definition of serious physical injury necessary to make a finding. Mr. Johnson, on behalf of Mother, opposed the motion for the same reasons.
On June 23, 2023, the Court held the second day of the Dispositional Hearing. Dr. H ------- gave testimony regarding O ----- 's fractures. She stated that after reviewing O ----- 's imaging, she confirmed Dr. D ------ 's report that the tibia and fibula fractures occurred separately from the femoral fracture. Further, she noted that although tibia and fibula fractures of this kind could happen accidentally, they can also come from abuse, and it was unlikely that O ----- caused these injuries to himself.
Mother appeared pregnant on the first day of the Dispositional Hearing; however, by the second hearing date in June 2023, she had given birth to a daughter, N---- P ------ . Mother reported to Mr. S ------ that Father is also this child's father. Mr. S ------ testified that a safety plan was put into place for the new baby. He informed the Court that the parties had violated the safety plan when, after conducting an unannounced visit following the birth of parties' daughter, he observed Father in the home. This violation occurred one day after the newborn's birth. The child was subsequently placed with Maternal Great-Grandmother.
Mr. S ------ favored Termination of Parental Rights/Adoption as the new goal. Ms. J---- confirmed that if adoption became a goal, she was willing to be an adoptive resource for O ----- .Mx. Wester requested that DSCYF be excused from case planning and that the Court find by clear and convincing evidence that there is serious unexplained physical injury or abuse. Ms. Fillingame joined in support of this motion. Mr. Johnson opposed the motion. Because of Father's inability to correspond with Mr. Renzulli, he could not take a position as to Father. However, Mr. Renzulli still noted a dispute over the definition of a serious physical injury.
The Court concluded that O ----- continued to be a dependent child as defined by 10 Del. C. § 901(8). Additionally, the Court held that O ----- would remain in DSCYF custody. By Order dated July 28, 2023, the Court made a finding of unexplained serious physical injury under 10 Del. C. § 1103(9) for both the lodged sock injury and the tibial and fibular fractures. Because of these findings, the Court granted DCYSF's Motion for No Reasonable Efforts and the Motion to Change Permanency Plan. Subsequently, on August 17, 2023, DSCYF filed its Petition to Terminate and Transfer Parental Rights. The Court scheduled the Termination of Parental Rights hearing for October 24, 2023.
Positions of the Parties
DSCYF argues there is clear and convincing evidence that it is in O ----- 's best interest for the parental rights of Father to be terminated and transferred to DSCYF in accordance with 13 Del. C. § 1103(a)(9), the ground of termination being that a child has suffered an unexplained serious injury under the circumstances indicating the injuries resulted from either parental intentional conduct or parental willful neglect. Further, Mother's parental rights of O ----- should be terminated because she has consented to the termination.
On behalf of Father, Mr. Renzulli did not oppose or support a termination of Father's parental rights. Citing that Father has not appeared for proceedings on this matter in a year, Mr. Renzulli requested that the Court discharge him from his service as Father's attorney. The Court deferred ruling on Mr. Renzulli's oral motion in the event that Father appeared during the hearing.
On behalf of O -----, Ms. Fillingame supported DSCYF's position that it is in O ----- 's best interest for Father's parental rights to be terminated.
DISCUSSION
A. Legal Standard for Termination of Parental Rights
The United States Supreme Court has held that a parent's interest in his or her children is one of the "oldest of the fundamental liberty interests recognized by [the] Court." In addition, the Supreme Court has found that so long as a parent is fit, "there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Likewise, the Delaware Supreme Court has found that parental rights are "fundamental liberties" which may not be abrogated absent compelling circumstances.
Troxel v. Granville, 530 U.S. 57, 65 (2000).
Id. at 68-69.
In re Stevens, 652 A.2d 18, 24 (Del. 1995). See also Daber v. Div. of Child Protective Srvs., 470 A.2d 723, 726 (Del. 1983).
Although parental rights are important liberty interests, both the United States Supreme Court and the Delaware Supreme Court have acknowledged that the State has the power to limit parental rights to protect a child's health and welfare. In addition, the federal Adoption and Safe Families Act of 1997 ("ASFA") emphasizes the importance of child safety and a child's need for permanency by placing limits on the amount of time in which parents may rehabilitate themselves and assume their parental responsibilities, provided that the State has developed a meaningful case plan for the parents and made reasonable efforts to reunify the family. In accordance with Court rules, a hearing addressing permanency for children in foster care must be "held not later than 12 months from the time the child has 'entered foster care.'"
See Prince v. Massachusetts, 321 U.S. 158, 166-167 (1944); In the Matter of Burns, 519 A.2d 638, 645 (Del. 1986); See also Daber, 470 A.2d at 726 ("A society which arrogates to itself the power to intervene and disrupt [the parent-child relationship] can do so only for the most compelling reasons necessary to correct or protect a child from circumstances which directly threaten or affect the minor's physical or emotional health.").
In re K.L.T., 2001 WL 493113 (Del. Fam. Ct. Jan 22, 2001).
Del. Fam. Ct. Civ. R. 216 referencing Del. Fam. Ct. Civ. R. 209(d).
In Delaware, the statutory standard for terminating parental rights consists of a two-part analysis. First, the Court must be satisfied that one or more of the enumerated statutory grounds set forth in 13 Del. C. § 1103(a) has been established. Second, the Court must find that severing the parental ties is in the best interests of the child, as defined by 13 Del. C. § 722.
See Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
Id.; See also In re Hanks, 553 A.2d 830, 833 (Del. 1982).
In re Hanks, 553 A.2d at 833.
A clear and convincing standard is required for terminating parental rights due to the permanent nature of the proceedings and the importance of the parental rights at stake. The clear and convincing standard requires greater factual certainty than a preponderance of the evidence standard, thereby striking a fair balance between the rights of the parent and the State's legitimate concerns. The Delaware Supreme Court has described the clear and convincing standard of proof as "evidence that 'produces in the mind of the trier of fact an abiding conviction that the truth of [the] factual contentions [is] 'highly probable.'" In addition, clear and convincing evidence "means to prove something that is highly probable, reasonably certain, and free from serious doubt."
See Patricia A.F. v. James R.F., 451 A.2d 830, 832 (Del. 1982).
Id.
Hudak v. Procek, 806 A.2d 140, 147 Del. Supr. (2002). Citing Cerberus Int'l v. Apollo Mgmt., 794 A.2d 1141 (Del. Supr. 2002) (quoting In re Rowe, 566 A.2d 1001, 1003 (Del.Jud.1989)). See also Shipman v. Division of Social Services, 454 A.2d 767, 769 (Del.Fam.Ct.1982) (holding that clear and convincing means the degree of proof that will produce in the mind of the fact-finder "a firm belief or conviction as to allegations sought to be established"), aff'd, Betty J.B. v. Division of Social Services, 460 A.2d 528 (Del. Supr.1983). Accord 29 Am. Jur.2d Evidence § 157 (1994) (collecting cases); 2 John W. Strong, Mccormick On Evidence § 340 (5th ed. 2001) ("It has been persuasively suggested that [the clear and convincing standard] could be more simply and intelligibly translated to the jury if they were instructed that they must be persuaded that the truth of the contention is 'highly probable.'").
Clark v. Clark, 994 A.2d 744 (Table) *3 (Del. Supr. 2010).
The Court makes the following findings of fact and conclusions of law under the clear and convincing standard described above.
B. Statutory Grounds for Termination of Parental Rights
Pursuant to 13 Del. C. § 1103(a)(9), DSCYF seeks to terminate and transfer Father's parental rights to DSCYF on the grounds of unexplained serious injury or death.
The Court finds that there is clear and convincing evidence showing that O ----- has sustained unexplained serious injuries under the circumstances, indicating the injuries resulted from either parental intentional conduct or parental willful neglect.
The Court first rendered these findings by Order dated July 28, 2023, following the conclusion of the Dispositional Hearing. At that time, the Court made two findings of unexplained serious injury: first, for the sock lodged in O ----- 's throat; second, for the fractures to his left tibia and fibula found during imaging when O ----- was in the hospital for the sock injury. Mother and Father have yet to provide the Court with an explanation for any of these injuries.
Under 13 Del. C. § 1103(a)(1), the Court finds that Mother's knowing and voluntary consent to terminate her parental rights to O ----- has satisfied the statutory ground for termination of parental rights. Mother has not withdrawn her consent pursuant to 13 Del. C. § 1106B.
Pursuant to 13 Del. C. § 1103(a)(1), the consent of a "parent of the child, or a person or organization holding parental rights over the child desires to relinquish parental rights for the purpose of adoption, and the Court in its discretion, accepts the consent or the parent has satisfied the requirements under § 907A of Title 16."
13 Del. C. § 1106B, "Revocation of consent to termination and transfer of parental rights: (a) A consent may be revoked if any of the following occur:
(1) Within 14 days of executing the consent, the parent who executed the consent delivers written notification of revocation to the agency or individual to which the parental rights are to be transferred.
(2) The parent complies with another instruction for revocation which was specifically stated in the consent under § 1106A(b)(2)c. of this title.
(3) The individual who executed the consent and the agency or individual that accepted the consent agree to its revocation.
As such, the Court finds that the statutory grounds for termination are satisfied as to Father, under 13 Del. C. § 1103(a)(9), and Mother, under 13 Del. C. § 1103(a)(1), C. Best Interests of the Child
After concluding that the statutory grounds for termination of parental rights exist, the Court must next determine that the termination of Mother and Father's parental rights is in O -----'s best interests. In reaching its decision, the Court applies the factors outlined in 13 Del. C. § 722. The Court balances the § 722 factors "in accordance with the factual circumstances presented to the Family Court in each case." In some situations, the weight of one factor will counterbalance the combined weight of the other factors.
See Division of Family Services v. Hutton, 765 A.2d 1267, 1271 (Del. 2001).
Pursuant to 13 Del. C. § 722:
(a) The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all relevant factors including:
(1) The wishes of the child's parent or parents 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 with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests;
(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.
(b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.
Ross v. Ross, 992 A.2d 1237 (Table) *3 (Del. Supr. 2010).
Id. at *3 (citing Fisher v. Fisher, 691 A.2d 619, 623 (Del. Supr. 1997)).
Best Interests Analysis - Father
(1)The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father has failed to appear for any hearings since September 21, 2022. Of the proceedings he has attended, he has appeared disinterested and unengaged.
(2)The wishes of the child as to his or her custodian(s) and residential arrangements;
O ----- is still very young and cannot speak to his preferences. The Child Attorney supports termination of parental rights.
(3)The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabitating in the relationship of husband and wife with a parent of the child, any other residents of the household, or persons who may significantly affect the child's best interests;
Ms. J---- testified that it has been at least one year since Father's last supervised visit with O ----- . She relayed that Father sent O ----- an outfit and saw him briefly when the parties and Ms. J---- celebrated Mother's birthday in March.
Ms. J---- has safety concerns about Father's interactions with O ----- . Given the unexplained serious physical injuries, Ms. J---- is hesitant to have Father around O ----- . Further, she stated that due to his history of violence with Mother, she wants to limit O ----- 's interactions with Father. Ms. J---- reported that Father hit Mother when she was seven months pregnant with their daughter, N---- P ------ . Mr. S ------ corroborated this, stating that during his monthly contact with Mother on February 8, 2023, he observed Mother's black eye. Mother would not expressly provide who perpetrated the violence.
DSCYF Exhibit 2, Social Report at 7.
Ms. A--, Mr. S ------, and Ms. M ----- share Ms. J----' concerns. Ms. A-- stated that she was unaware of Father's last visit with O ----- but has regarded Father as unengaged and non-participatory in any of O ----- 's activities or medical appointments. Mr. S ------ echoed Ms. A-- and stated that although he maintains contact with Father, the communication is sporadic and occurs later at night, during non-business hours. He believes that Father's last visit with O ----- was a year ago, and he knows that Father has not yet been to Ms. J----' home to visit with O ----- . Ms. M ----- added that during her limited observations of Father and O -----, Father was "not very present" or seemed like he "want[ed] to be there."
(4)The child's adjustment to his or her home, school and community;
O ----- has adjusted well to living with Ms. J----. Ms. J---- reports that he is happy in her home and care. Based on her observations, Ms. A-- relayed that O ----- is doing great in Ms. J----' care. She informed the Court that O ----- attends ------ ---- ------- . Ms. M ----- 's testimony supports Ms. A--'s testimony.
(5)The mental and physical health of all individuals involved;
O ----- is up to date on his medical appointments and is in good health. Ms. A-- stated that Ms. J---- takes O ----- to all of his appointments. She noted that while O ----- is too young to start formal dental care, he has been prescribed a fluoride treatment regimen. O ----- had a wellness visit in July with no concerns reported. Ms. A-- stated that because of O ----- 's age, he is being placed on Child Development Watch. She relayed that O ----- will soon undergo an evaluation for autism. O ----- is further described in DSCYF's Social Report as "full of energy and has an infectious laugh. O ----- is hitting developmental milestones promptly." Father has not participated in O ----- 's medical care.
See DSCYF Exhibit 2, Social Report at 8.
Throughout the proceedings, there existed little to no testimony regarding Father's mental health and well-being. Father was not known to have any previous mental health or substance abuse concerns. Ms. McGregor offered that Father's decision-making skills are at issue.
See DSCYF v. S---- & T , No. CN22-0328, at 5, ¶ 17 (Del. Fam. July 6, 2022); DSCYF v. S---- & T , No. CN22-0328, at 10, ¶ 23 (Del. Fam. September 21, 2022).
Under Mother's and Father's care, O ----- suffered from three fractures and a near-fatal asphyxiation, all within the first four months of his life. Of those injuries, three are unexplained. By comparison, in the fifteen months that he has been in Ms. J----' care, O ----- has had no medical emergencies and is being continually monitored for his growth and development. Neither Mother nor Father have supplied plausible reasonings for the unexplained fractures and asphyxiation or taken ownership of causing O ----- 's injuries. The contrast between O ----- 's health while under Mother and Father's care versus care under Ms. J---- is significant. As such, this factor weighs significantly towards terminating Father's parental rights to O ----- .
(6) Past and present compliance by Father with his rights and responsibilities to the child under § 701 of this title;
O ----- has been in foster care since May 2022. Mother and Father only served as caregivers during the first four months of O ----- 's life. During that time, O ----- suffered three separate fractures and a near-fatal asphyxiation. Father attended a handful of supervised visits but has stopped in the last year.
Father has failed to participate in O ----- 's life. He has not attended O ----- 's medical appointments nor completed supervised visits with him. When Father did visit with O -----, he was noticeably uninterested and detached from the situation. Ms. A--, Mr. S ------, and Ms. M ----- had corroborating testimonies regarding Father's disengagement. As previously mentioned, all three individuals witnessed Father's lack of interest in O ----- and these proceedings.
(7)Evidence of domestic violence as provided for in Chapter 7A of this title;
There was testimony that Father hit Mother during her pregnancy with their daughter, N-- -- P ------ . Ms. J---- recalled that Father gave Mother a black eye when she was seven months pregnant. Mr. S ------ affirmed Mr. J----' testimony. Upon an unannounced visit to Mother's home, Mr. S ------ noticed that Mother had a black eye. Mr. S ------ relayed that although Mother did not expressly tell him who hit her, Mother said to him that "he knew what had happened." Mr. S ------ inferred this statement to mean that Father had hit Mother in the eye.
This incident concerns the Court and weighs against reunification between Father and O-----.
(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.
According to his Delaware criminal history report, Father was convicted of four misdemeanor Title 11 crimes, three of which were domestic-related. On December 12, 2020, Father pled guilty to Assault Third for a September 26, 2020 domestic-related incident. The original charge was strangulation. On the same day, Father pled guilty to offensive touching for an April 23, 2020, domestic-related incident.
At the Termination of Parental Rights Hearing, the Court took judicial notice of Father's DELJIS report.
Father also has pending charges connected to two domestic-related incidents involving a different mother of his children on November 9, 2022, and April 17, 2023. On July 22, 2023, Father was charged with two counts of theft under $1500, endangering the welfare of a child, malicious interference with emergency communications, and offensive touching. As of the date of this Order, Father has an active warrant.
Presently, Father's criminal history does not reflect any charges instituted as they pertain to O ----- . However, the Dispositional Hearing Order reflects that Mr. S ------ believed that a criminal investigation was still pending against Father and Mother but that he had not been updated on the status of the case.
DSCYF v. S---- & T , No. CN22-0328, at 11, ¶ 24 (Del. Fam. July 28, 2023).
Considering Father's multiple convictions and pending charges, this factor weighs toward terminating Father's parental rights to O ----- .
Best Interests Analysis - Mother
As previously stated, the Court found that DSCYF established by clear and convincing evidence that Mother consented to the termination of her parental rights to O ----- . Before granting the termination, the Court must also find that it is in O ----- 's best interest that Mother's parental rights are terminated based on a § 722 analysis.
See Dep't of Servs. for Child., Youth & Their Fams./Div. of Fam. Servs. ("DSCYF/DFS") v. G.S., G.J.H., No. CN160603TNCN1502245, 2017 WL 3493857, at *14 (Del. Fam. Ct. May 22, 2017) (although Mother consented to terminate her parental rights, the Court must also find that it is in the child's best interest to terminate a parent's parental rights to the child).
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother consented knowingly and voluntarily to the termination of her parental rights of O----- at the outset of the hearing. She understood that she would no longer have any legal relationship to O ----- . Further, Mother did not revoke her consent within the statutory fourteen-day period. Therefore, the Court finds that this factor favors terminating her parental rights to O ----- .
(2) The wishes of the child as to his custodial and residential arrangements;
O ----- cannot relay his wishes as to his custodial and residential arrangements as he is less than two years old. Given Mother's consent, this factor favors termination of parental rights.
(3) The interaction and interrelationship of the child with his 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;
Mother sees O ----- during supervised visits at Ms. J----' home. Ms. J---- previously testified that Mother's interactions with O ----- during these supervised visits are "appropriate." Mother has appeared engaged and cooperative with the Court and DSCYF in devising a plan for O ----- 's long-term care. Nevertheless, there were serious unexplained injuries while O ----- was in Mother's care. While Mother's interaction with O ----- was appropriate, the unexplained serious injuries cause the Court to weigh this factor in favor of termination of Mother's parental rights.
Ms. J----' testimony from the Dispositional Hearing is detailed in the Court's Dispositional Hearing Order. See DSCYF v. S---- & T , No. CN22-0328, at 9 (Del. Fam. July 28, 2023).
(4) The child's adjustment to his home, school, and community;
The Court noted, supra, that O ----- is well-adjusted to his current placement with Ms. J--- -. This factor weighs towards terminating Mother's parental rights.
(5) The mental and physical health of all individuals involved;
The Court previously found that O ----- is doing very well in Ms. J----' care. He is attending all medical appointments and receiving appropriate services from DSCYF regarding his growth and development.
As to Mother, DSCYF reported Mother's history of postpartum depression and her diagnosis of Major Depressive Disorder. At the Preliminary Protective Hearing, Mother stated that she had received counseling for her postpartum depression. At the time of the second day of trial for the Dispositional Hearing, Mother reported that she sees a therapist twice a week and that she was in good health and not taking any prescription medication.
Id. at 1.
Mother's testimony from the Preliminary Protective Order Hearing is detailed in the Court's Preliminary Protective Hearing Order. See DSCYF v. S---- & T , No. CN22-0328, at 5, ¶ 16 (Del. Fam. July 6, 2022).
See DSCYF v. S---- & T , No. CN22-0328, at 10, ¶ 19 (Del. Fam. July 28, 2023).
Mother tested positive for marijuana at the time of O ----- 's birth. She stated that she used marijuana to cope with the insomnia and stress-related third-trimester pregnancy with O ----- . At the Preliminary Protective Order Hearing, Mother stated that she continued to use marijuana after O ----- 's birth to alleviate her anxiety. She has not received a prescription for medical marijuana.
DSCYF Exhibit 2, Social Report at 2.
See DSCYF v. S---- & T , No. CN22-0328, at 5, ¶ 16 (Del. Fam. July 6, 2022).
In the four months that Mother and Father were O ----- 's caregivers, O ----- suffered unexplained injuries with no accountability taken by Mother or Father. Though adamant that O----- could not have sustained those injuries by her actions, Mother was unwilling to accept the possibility that Father harmed O ----- . Unequivocally, O ----- 's health was compromised when he was in Mother's care. Therefore, the Court weighs this factor toward terminating Mother's parental rights.
(6) The past and present compliance by Mother with her rights and responsibilities to the child under § 701 of this title;
Presently, the record reflects that Mother has been generally compliant with her rights and responsibilities as they relate to O ----- . At the Preliminary Protective Hearing, Mr. U ------ stated that Mother had appropriate parenting skills and confirmed that Mother had suitable housing. Additionally, at the Adjudicatory Hearing, Mr. U ------ commended Mother's engagement and input, noting that Mother was good at communicating and regularly called for updates. Dr. D--- --- confirmed that Mother and Father "demonstrated a history of presenting O ----- for care when they believed a serious medical issue was present." Further, Mother has consistently engaged in supervised visitations with O ----- since his placement with Ms. J----.
DSCYF v. S---- & T, No. CN22-0328, at 5, ¶ 15, 18 (Del. Fam. July 11, 2022).
DSCYF v. S---- & T, No. CN22-0328, at 9, ¶ 18 (Del. Fam. September 21, 2022).
Id. at 9, ¶ 19.5.
However, O ----- 's tibial and fibular fractures were not attended to until ten days after they were sustained. Though Mother asserted that O ----- 's demeanor during the dates in which the fractures are likely to have been sustained was not indicative that he was in pain, the seriousness of the injuries cannot be ignored. As such, this factor weighs toward termination.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and, The Court found, supra, that Father committed at least one act of violence against Mother when she was seven months pregnant with their newborn daughter. The record is absent as to any other incidents of domestic violence against Mother. At the Dispositional Hearing, Mr. S ------ informed the Court that he was concerned about domestic violence in Mother's home after he observed Mother's black eye at their February 2023 monthly contact.
As to Mother, there were no domestic violence concerns disclosed in either the Preliminary Protective Hearing Order or Adjudicatory Hearing Order. Therefore, this is neutral in the Court's eyes.
DSCYF v. S---- & T, No. CN22-0328, at 5, ¶ 19 (Del. Fam. July 11, 2022); DSCYF v. S---- & T, No. CN22-0328, at 10, ¶ 25 (Del. Fam. September 21, 2022).
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
The Court's review of Mother's criminal history does not reflect that any charges have been instituted regarding O ----- . However, due to O ----- 's unexplained injuries, a criminal investigation was undertaken for child abuse. As previously stated, Mr. S ------ informed the Court at the Dispositional Hearing that there were no status updates regarding the criminal investigations, but he believed they were still being considered as to Mother and Father. Mother testified that she had never visited the police station to obtain more information about the case and that the last contact with the police occurred in late April 2023. Thus, the Court finds that this factor is neutral as to Mother.
DSCYF v. S---- & T, No. CN22-0328, at 11, ¶ 24 (Del. Fam. July 28, 2023).
Id.
§ 722 Conclusion
The Court finds by clear and convincing evidence under § 722 to establish that it is in the best interest of O ----- to terminate Mother and Father's parental rights. Factors (1), (2), (3), (4), (5), (6), (7), (8) weigh towards the termination of Father's parental rights while factors (1), (2), (3), (4), (5), and (6) weigh towards the termination of Mother's parental rights.
Factor (1) weighs against Father because of his inability to engage in the instant matter. Further, Father has not participated in any hearings for over a year. Factor (1) conclusively weighs against Mother because she consents to the termination of her parental rights to O ----- . On behalf of O -----, Ms. Fillingame believes it is in O ----- 's best interest to terminate Mother and Father's parental rights. Thus, factor (2) weighs against Mother and Father. Factor (3) weighs heavily against Father because of the corroborating testimony that Father is disengaged from O ----- 's life. He has not made any efforts to maintain a relationship with O ----- since his removal from Father's custody. Factor (3) also favors termination of Mother's parental rights.
Factor (4) does not support reunification between Mother, Father, and O ----- because O--- has adjusted well to Ms. J----' home. Ms. J---- has tended to all of O ----- 's needs since he was placed in her care. Similarly, factor (5) favors terminating Mother and Father's parental rights because of the apparent improvements in O ----- 's life since his placement with Ms. J----. O ----- has not experienced any serious physical injuries while in her care and attends all of his regular medical visits. Further, testimony by DSCYF workers shows that Father is sporadic in his communication, disengaged, and lacks "decision-making skills."
Factor (6) weighs against Father for all of the above reasons. Father is uninterested and disengaged from O ----- 's well-being and welfare. Factor (6) must also weigh against Mother because of the seriousness of O ----- 's multiple unexplained injuries.
Father's history of domestic violence, as it relates to both Mother and the mother of his other children, and Father's criminal history concern the Court. Thus, factors (7) and (8) weigh significantly against reunification between Father and O ----- . Factors (7) and (8) are neutral as to
Mother.
Based upon the analysis above, the Court finds that it is in O ----- 's best interest for Mother and Father's parental rights to be terminated.
CONCLUSION
The Court finds that under the clear and convincing standard, all evidence supports the termination of Mother's and Father's parental rights. Prior to this hearing, DSCYF established clear and convincing evidence that Father's parental rights should be terminated on the grounds stated in 13 Del. C. § 1103(a)(9), unexplained serious physical injury. Additionally, DSCYF established clear and convincing evidence that Mother's parental rights should be terminated on the ground of consent as stated in 13 Del. C. § 1103(a)(1). As such, DSCYF was not required under 13 Del. C. § 1103(d) to perform reunification services between Mother, Father, and O ----- .
Further, the Court accepted Mother's consent to terminate her parental rights to O -----, entered on October 24, 2023.
For the reasons set forth in this Order, the Court finds that it is in the best interests of O----- to terminate the parental rights of Mother and Father. Supervised visitation may continue between Mother and O ----- at Ms. J----' discretion until O ----- is adopted.
Therefore, the Court GRANTS DSCYF's Petition for the Termination and Transfer of Parental Rights. The parental rights of T---- S---- and D ----- T ------ are TERMINATED and TRANSFERRED to DSCYF until O ----- is adopted.
The Court GRANTS Mr. Renzulli's application to Withdraw as Counsel to Father.
IT IS SO ORDERED.