Opinion
FILE NO.: CN13-02035 FILE NO.: 18-02-06TN CPI NO.: 17-14946 CPI NO.: 18-04038
03-06-2019
DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES, Petitioner v. C------ B-----D----, R----- D----, Respondents In the Interest of: Z------ D---- (F) (d.o.b. --/--/17)
Victoria Witherell, Esquire, Department of Justice, Wilmington, Delaware for Petitioner, Division of Family Services Brian Jordan, Esquire, Jordan Law, LLC, Wilmington, Delaware for Respondent R----- D---- George Tsakataras, Esquire, The Law Office of George R. Tsakataras, P.A., Wilmington, Delaware for Respondent, C------ B-----D---- Renee Duval, Esquire, Gonser and Gonser, P.A., Wilmington, Delaware as Guardian ad litem for Child, Z------ D----.
DECISION ON PETITION FOR TERMINATION OF PARENTAL RIGHTS Before the HONORABLE ROBERT B. COONIN, JUDGE of the Family Court of the State of Delaware: Petition for Termination of Parental Rights is GRANTED as to C------ B-----D---- and R----- D----. Victoria Witherell, Esquire, Department of Justice, Wilmington, Delaware for Petitioner, Division of Family Services Brian Jordan, Esquire, Jordan Law, LLC, Wilmington, Delaware for Respondent R----- D---- George Tsakataras, Esquire, The Law Office of George R. Tsakataras, P.A., Wilmington, Delaware for Respondent, C------ B-----D---- Renee Duval, Esquire, Gonser and Gonser, P.A., Wilmington, Delaware as Guardian ad litem for Child, Z------ D----. 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 ("DSCYF/DFS") against C------ B-----D---- ("Mother") and R----- D---- ("Father") regarding Z------ D---- ("Child"), born --- --, 2017.
DSCYF/DFS seeks to terminate the parental rights of both Father and Mother in Child under 13 Del. C. § 1103(a)(5) on the grounds of "failure to plan" as they have each been unable to or have failed to plan adequately for Child's physical needs or mental and emotional health and development.
A hearing on the Petition for Termination and Transfer of Parental Rights was held on February 6, 2019. Mother, who appeared thirty minutes late, was represented by George Tsakataras, Esquire; Renee Duval, Esquire served as the Guardian ad litem for Child; and, Victoria Witherell, Esquire, served as the Deputy Attorney General for DSCYF/DFS. Father failed to appear at this hearing and his attorney, Brian Jordan, Esquire, was discharged as counsel prior to the commencement of the hearing. Testimony was taken from DSCYF/DFS treatment worker Aline Harrell, C------- W-------, Child's maternal cousin and caregiver, ("Maternal Cousin"), Mother, and Marlene Zeleny, Child's Court Appointed Special Advocate ("CASA").
PROCEDURAL HISTORY
According to the Dependency/Neglect Petition and Motion for Emergency Ex Parte Order filed by DSCYF/DFS on --- --, 2017, just two days after Child's birth, the Division requested custody of Child in part due to concerns regarding Mother's mental health, which includes previous diagnoses of Bi-Polar and Schizoaffective Disorder, and her non-compliance with her prescribed medication, and both parents' unwillingness to allow DSCYF/DSF to conduct a safety assessment of the home. This Court granted the Motion for Emergency Ex Parte Order on May 22, 2017 and scheduled a Preliminary Protective Hearing for May 31, 2017. Prior to the Preliminary Protective Hearing, the Court appointed Counsel for Father and a Guardian ad litem for Child.
At the Preliminary Protective Hearing held on May 31, 2017, both Mother and Father participated. Mother stipulated to probable cause for dependency of Child due to being hospitalized at Rockford Center. Father stipulated to probable cause for dependency of Child due to his inability to care for Child on his own without Mother in the home to assist him. Therefore, the Court found probable cause to believe Child was dependent and that it was in her best interest to remain in the custody of DSCYF/DFS. The Court also found that placement of Child in the home of a relative was appropriate as Maternal Cousin, C------- W-------, was interested and willing to be a placement resource for Child. The Court ordered that legal counsel be appointed to represent Mother. The Court further ordered that Mother and Father be permitted to visit with Child and that Father undergo genetic testing to establish paternity, as Mother had denied paternity despite being married to Father.
After paternity was confirmed by genetic testing, this Court issued a Paternity Decree as to Father on August 15, 2017.
On June 5, 2017, the Court formally appointed David Facciolo, Esquire, to represent Father and George Tsakataras, Esquire, to represent Mother.
At the Adjudicatory Hearing on July 26, 2017, the Court found, by a preponderance of the evidence, that Child was dependent as to Mother and Father due to their recent hospitalizations for mental health concerns and that both parents had had periods of time where they had no form of mental health treatment. The Court noted, however, that Mother and Father had stable housing, had been overall cooperative with DSCYF/DFS, and could financially care for Child. While the Court commended both parents for eventually seeking inpatient mental health treatment, the Court found it would be necessary to receive confirmation from both parents of their compliance with mental health treatment prior to reunification with Child. Therefore, the Court found it was in the best interest of Child to remain in the custody of DSCYF/DFS and that DSCYF/DFS had made reasonable efforts to prevent the unnecessary removal of Child from the home and to reunify. The Court continued to find that placement of Child in the home of a relative was appropriate as Child remained in the home of Maternal Cousin, where she was placed on May 31, 2017. The Court ordered that Mother and Father were to have supervised visitation at at least twice weekly but granted DSCYF/DFS the discretion to allow unsupervised visits or even place Child with Mother and Father upon receiving confirmation of Mother and Father's mental health treatment. DSYCF/DFS was further directed to work with Mother and Father to develop Case Plans for each parent and assess Mother and Father's home.
A Dispositional Hearing was held on September 8, 2017. The Court found that Child continued to be dependent, that it was in Child's best interest to remain in the custody of DSCYF/DFS, and that the Division continued to exercise reasonable efforts to reunify. DSCYF/DFS submitted Case Plans for both Mother and Father. Under Mother's Case Plan, Mother had to meet her family's financial needs and establish a budget, participate in any medical/developmental appointments for Child, address her mental health concerns by following a referral for a mental health evaluation at Mid-Atlantic Behavioral Health, provide releases for her recent mental health evaluations while at Rockford and MeadowWood, and work on her parenting skills. Regarding her parenting skills, Mother had previously completed a parenting class at Child Inc. for children ages 4-12 but DSCYF/DFS requested that she complete a training for children ages 0-3. Under Father's Case Plan, Father had to meet his family's financial needs and establish a budget, participate in any medical/developmental appointments for Child, complete a mental health evaluation at Mid-Atlantic Behavioral Health and follow any recommendations made, maintain consistent visitation with Child, complete a substance abuse evaluation and follow any recommendations made, and comply with any probation conditions.
Regarding visitation for Mother and Father, although Maternal Cousin had been approved to supervise visitation, future visitation was expected to be supervised by Father's family interventionist and/or Mother's family interventionist because Maternal Cousin's schedule did not always allow visits to occur twice per week, as ordered. Additionally, Maternal Cousin also expressed concerns regarding Mother and Father's behavior during visits and so it was ultimately decided that it would be best for all parties involved to have visitation be supervised by the family interventionists going forward. The Court also found that Mother and Father continued to have stable housing, cooperated DSCYF/DFS, and, although both unemployed, earned adequate income to financially support child through SSDI. DSCYF/DFS further completed a home assessment of Mother and Father's four-bedroom rowhouse and found that the home was in good condition and had many necessary baby care items except for clothing, wipes, and diapers.
During the Dispositional Hearing, DSCYF/DFS also discussed Mother and Father's history of mental health concerns. Mother was most recently discharged from MeadowWood in June 2017, where she was diagnosed with Post-Partum Depression and Schizophrenia Bipolar Disorder. Although Mother had been referred to Connections for medication management, she had yet to start the program and declined to give her consent to release her medical records to DSCYF/DFS for the partial treatment program Mother had begun at MeadowWood on September 4, 2017. Father was most recently discharged from MeadowWood in November 2016 where he was diagnosed with multiple disorders including Schizophrenia and Severe Cocaine Use Disorder. At the time of the Dispositional Hearing, Father was compliant with many medications related to these diagnoses. The Court further noted that while Father has a history of substance abuse, there was no evidence to presented to indicate that Father had any substance abuse concerns. The Court Ordered Mother and Father to comply with the Case Plans, including signing any necessary releases or consents for substance and mental health treatment records to be released to DSCYF/DFS. The Court again ordered that Mother and Father have supervised visitation at at least twice weekly but continued to grant DSCYF/DFS the discretion to allow unsupervised visits or even place Child with Mother and Father upon receiving confirmation of Mother and Father's mental health treatment.
A Review Hearing was held on December 11, 2017 during which the Court found that Child continued to be dependent, that it was in Child's best interest to remain in the custody of DSCYF/DFS, and that the Division continued to exercise reasonable efforts to reunify. Child continued to reside with Maternal Cousin where there were no concerns. DSCYF/DFS reported that contact with Mother had become sporadic. Mother alleged that she was having issues answering phone calls only to later claim she either lost or broke her phone. Mother then called DSCYF/DFS from various phone numbers but informed DSCYF/DFS they could not call her back at those numbers. Mother got a new phone during the week prior to this Review Hearing and provided DSCYF/DFS with her new phone number.
DSCYF/DFS reported that contact with Father had become even more difficult because his home phone number had recently gone out of service and DSCYF/DFS did not have another phone number they could use to reach Father. The only way DSCYF/DFS could communicate with Father was by going to his residence and leaving notes at the door asking Father to contact the DSCYF/DFS.
Mother was assigned to work with P---- R---, a family interventionist at Children's Choice. Despite being assigned to work with Ms.R--- in July 2017, Mother did not meet with Ms.R--- for the first time until late September because Mother advised that she was not ready to engage in services prior to that. Ms. R---, who was directed to supervise Mother's visitation, reported that Mother had only had one visit with Child between late September and November 29, 2017. Ms. R--- stated that while she attempted to work with Mother on budgeting, seeking employment, attending medical appointments for Child, and engaging in parenting skills training, Mother was not cooperating with these services. Children's Choice planned to close their case with Mother due to non-compliance. Similarly, Father's case with Children's Choice was also closed prior to this Review Hearing due to non-compliance.
To increase visitation between Mother and Child, on November 29, 2017, DSCYF/DFS held a team meeting with Mother, Father, their attorneys, Ms. R---, and Father's new family interventionist. During the meeting, it was agreed that Mother and Father would each separately visit with Child twice per week for one hour. Despite arranging this schedule, Mother had only attended one visit and Father had not attended any, largely due to his incarceration following a domestic violence incident with Mother, on December 1, 2017. Mother informed the Court that the only reason she had missed visitation was because her new medication forced her to sleep for longer periods of time and requested that the visitation times be moved to later in the day.
Until this December 11, 2017 Review Hearing, Mother continued to decline to give her consent to release her medical and mental health records to DSCYF/DFS. In addition, despite knowing Child's medical appointments, Mother had attended no appointments up to this Review Hearing. Mother admitted that she could be more engaged in case planning with DSCYF/DFS but was upset because she learned that people at Child's daycare were calling her by the name of "Madison" instead of "Z------." But motherexpressed her willingness to submit to a new mental health evaluation and maintain regular communication with Child's CASA.
Due to the domestic violence incident with Mother, a no contact Order was put into place which precluded Father from returning to the home he shared with Mother. Father became homeless. As of this Review Hearing, Father was still on probation but had yet to complete his required anger management classes and also had not completed the mental health evaluation required by his Case Plan.
The Court reminded Mother and Father of their responsibility to attend visits with Child and informed Mother that oversleeping is not a valid excuse for missing visits. Both parents were again ordered to comply with their Case Plans. DSCYF/DFS was also required to meet with Mother and Father to arrange a new visitation schedule with Child, given the difficulties both parents appeared to have with the set schedule.
On February 7, 2018, DSCYF/DFS moved to change the permanency goal of Child from reunification to termination of parental rights for the purposes of adoption. On March 27, 2018, Ms. Duvall, Esquire and CASA filed a response to support the motion to change goal on behalf of Child. DSCYF/DFS also filed a Petition for Termination of Parental Rights on February 7, 2018. On March 27, 2018, Ms. Duvall, Esquire and CASA filed a response to support petition for termination of parental rights.
A Permanency Hearing was held on June 26, 2018. Neither Mother nor Father participated and, as their attorneys did not know why they failed to appear, the Court discharged both Mother and Father's counsel. The Court found that Child continued to be dependent, that it was in Child's best interest to remain in the custody of DSCYF/DFS, and that the Division continued to exercise reasonable efforts to reunify. Child continued to reside in Maternal Cousin's home and Maternal Cousin informed DSCYF/DFS she was interested in being an adoptive resource for Child.
The DFS treatment worker, Aline Harrell, informed the Court she had had no contact with Mother and Father since early June 2018 and January 2018, respectively. Neither Father nor Mother had had any official visits with Child since the previous Review Hearing, although Ms. Harrell was unaware whether the parents had had any unofficial visits coordinated directly with Maternal Cousin. While Mother interacted with Child during two parenting classes in February 2018, Mother was discharged from these parenting classes due to her sporadic attendance.
Mother reported to DSCYF/DFS she continued to reside in the same home but had been busy with frequent out-of-state travel to visit family members. Father was previously homeless until he was admitted to Rockford Center in January 2018. DSCYF/DFS was unaware of Father's living arrangements following his discharge from Rockford due to having no contact with Father since then. In March 2018, Mother's state financial assistance was cut off and DSCYF/DFS was not aware of Mother having any other alternate sources of income. Mother still had not provided DSCYF/DFS with any evidence demonstrating her completion of a substance abuse assessment and DSCYF/DFS had reason to believe that Mother was still using drugs. Neither Mother nor Father had had any engagement with their respective family interventionists and Father's new case for family interventionist services at Wraparound Delaware was closed in January 2018 due to non-compliance.
Mother began a mental health evaluation with Mid-Atlantic Behavioral Health in March 2018 but failed to complete the evaluation. Based on the partial evaluation, Mid-Atlantic recommended that Mother receive outpatient therapy, that her contact with Child continue to be monitored, that she engage with the Division of Developmental Disabilities Services, and that she participate in an anger management program. Mother also made statements during this partial evaluation which led DSCYF/DFS to suspect that Mother had become pregnant.
In light of the above information, the Court granted DSCYF/DFS's motion to change the permanency goal to termination of parental rights for the purposes of adoption. The Court further ordered that Mother and Father's visitation with Child should be modified to once every other week , upon their request.
A Consolidated Permanency Review Hearing and Termination of Parental Rights Trial was scheduled for October 4, 2018. However, because Father participated by phone and requested to be reappointed an attorney, the termination of parental rights trial was continued to another date and the hearing, instead, proceeded solely as a Permanency Review Hearing.
Father participated by telephone from MeadowWood. He informed the Court he had been admitted ten days prior and was anticipating being released on either October 5, 2018 or October 8, 2018. Father planned to reside at the Sojourner's Place shelter upon his release.
DSCYF/DFS reported that Mother had "on and off" communication with the Division since the last hearing. Mother had not had an official visit with Child since November 2017, except for seeing Child during parenting classes in February 2018. While Father had not had an official visit with Child since September 2017, he reported that he had seen Child twice in 2018 without the involvement of DSCYF/DFS.
Since the last hearing, Maternal Cousin moved to Texas and Child began residing in Maternal Cousin's daughter's home here in Delaware during that time. DSCYF/DFS had begun the ICPC process for placing Child in Texas with Maternal Cousin but Maternal Cousin later informed them she planned to move back to Delaware. DSCYF/DFS expected to return Child to Maternal Cousin's home upon her return to Delaware.
At DSCYF/DFS's request, the Court reappointed George Tsakataras, Esquire, to represent Mother in these proceedings. At Father's request, the Court also reappointed counsel to represent Father in these proceedings. Mother and Father continued to be permitted to have separate supervised visitation with Child every other week.
The Court held a Termination of Parental Rights hearing on February 6, 2019. During the hearing, the Court took judicial notice of the findings of fact in the Court's prior Orders regarding this case, as recited in summary above, to be considered under the higher standard of clear and convincing evidence required for Termination of Parental Rights cases.
The prior Orders in this case include: 1) Ex Parte Order dated May 22, 2017; 2) Preliminary Protective Hearing Order dated June 1, 2017; 3) Adjudicatory Hearing Order dated August 7, 2017; 4) Dispositional Hearing Order dated September 18, 2017; 5) Review Hearing Order dated December 15, 2017; 6) Permanency Hearing Order dated June 29, 2018; and 7) Permanency Review Hearing Order dated October 4, 2018.
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 to support its findings. 1. Social Report Regarding Mother , Father , and Child
DSCYF/DFS submitted a Social Report about Mother, Father, and Child. Pet. Ex. #1. Besides Child, Mother has eight other children known to the Division, none of whom are in her care.
DSCYF/DFS first became involved with Mother when Mother was a child. Mother's mother struggled with mental health issues and Mother was often left with many caregivers for months at a time. Mother had her first child when she was fifteen years old and has three children by the time she reached the age of majority.
DSCYF/DFS first became involved with Mother as a parent in July 2005 when Mother was arrested for shoplifting. Later that month, Mother contacted DSCYF/DFS and referred herself and requested assistance with obtaining housing. Ultimately, these allegations were unsubstantiated when Mother moved into the home of her children's father's mother.
DSCYF/DFS again became involved with Mother in July 2006 when Mother was substantiated for dependency due to being incarcerated. In October 2008, DSCYF/DFS received another report about Mother and her newborn child which indicated that Mother was experiencing a psychotic episode and having delusions. However, upon taking her medication, Mother's delusions ceased and the allegations were ultimately deemed unsubstantiated, although DSCYF/DFS remained concerned about Mother's mental health. In June 2012, DSCYF/DFS received two more reports about Mother, including one report involving Father. The allegations indicated that Mother had been arrested for shoplifting while her children were present, had left at least one child home alone unsupervised, and had left all the children with relatives for extended periods of time while she allegedly was using drugs with Father in Philadelphia. The allegations were ultimately deemed unsubstantiated but DSCYF/DFS remained concerned about Mother's substance abuse. In November 2012, DSCYF/DFS received another report that Mother was experiencing a psychotic episode during which she had reportedly picked up her one-year-old daughter, shook her, and threw her across the room. Mother was substantiated for abuse following this incident.
Besides the above mentioned DSCYF/DFS report involving Father in June 2012, the Philadelphia child protection agency also had involvement with Father in January 2013 when it was reported that Father was under the influence of drugs and/or alcohol and went to the emergency room but did not know the whereabouts of his child, R------. Ultimately, it was discovered that R------ was with Mother and the allegations were therefore marked as unsubstantiated with concerns regarding Mother's untreated mental health issues, her failure to engage in continued mental health treatment, her history with DSCYF/DFS and Mother's "possible inability to have any child in her care without appropriate supervision." Due to these concerns DSCYF/DFS began an open treatment case with the family in February 2013 and two of Mother's children were removed from the home through an Ex Parte Order. During the open treatment case, DSCYF/DFS received several additional reports involving the family, which were unsubstantiated with concerns regarding Mother's inappropriate behavior. The treatment case was closed as successful in December 2015.
The family again had an open treatment case beginning in February 2016 after DSCYF/DFS received another report involving Mother. These allegations were also unsubstantiated with concerns regarding Mother's mental health. During the investigation of these claims, however, DSCYF/DFS received another report involving the family following an incident of domestic violence between Mother and Father. Father was charged with four counts of endangering the welfare of a child, offensive touching, and interference with a 911 call. The allegations in the report were deemed by DFS to be unsubstantiated with concerns regarding substance abuse and mental health issues. Following this incident, three of Mother's children were placed in the care of a maternal relative who later was granted guardianship of these children by Order of this Court. All of Mother's other children were in DFS's custody or placed in the care of other relatives. The treatment case was ultimately closed in December 2016.
On May 17, 2017, DSCYF/DFS received its first report involving Child which alleged that, shortly after Child's birth, Mother presented with behaviors which led hospital staff to suspect that Mother was schizophrenic. Both Mother and Father were uncooperative during the investigation of these allegations, and Mother and Father were substantiated for dependency and the Division obtained custody of Child through Ex Parte Order of this Court. Mother did eventually provide DSCYF/DFS with the name of Maternal Cousin and Child was soon after placed in Maternal Cousin's home, where she remains to this day.
In June 2018, DSCYF/DFS received another report involving Mother and her youngest child. Mother tested positive for cocaine during this child's birth and appeared to suffer from schizophrenia as Mother stated she was having visual and auditory hallucinations. Mother was ordered a twenty-four-hour committal and DSCYF/DFS obtained custody of this child.
The rest of the Social Report details efforts made by DSCYF/DFS to assist Mother and Father in reunifying with Child including providing numerous bus passes for visits and making referrals for family interventionist services to assist Mother and Father. The Social Report also outlines the many attempts DSCYF/DFS made to remain in regular communication with both parents, often without success. 2. Mother's Delaware Criminal History
DSCYF/DFS submitted a copy of Mother's Delaware criminal history. Pet. Ex. #2. As of October 27, 2018, Mother was under a no contact Order with Walter D. Davis as an active bail condition. As of the day of this hearing, Mother has a pending charge for unauthorized use of a motor vehicle. Mother has not been convicted of any crimes but has a delinquency adjudication for shoplifting from 2005. In addition, Mother has several other felony and misdemeanor charges all either dismissed or rendered nolle prosequi, including theft of a motor vehicle, theft under $1500, harassment, assault, malicious interference with emergency communications, terroristic threatening, and endangering the welfare of a child. 3. Father's Delaware Criminal History
DSCYF/DFS submitted a copy of Father's Delaware criminal history. Pet. Ex. #3. Father's only criminal conviction in Delaware was in 2015 for one count of terroristic threatening. Father was also charged with offensive touching, burglary, terroristic threatening, criminal mischief, criminal impersonation and malicious interference with emergency communications between 2016 and 2018, which were either dismissed or rendered nolle prosequi. 4. Prior Court Orders in this Matter
Besides the Court taking judicial notice of the findings of fact of the Court from its prior Orders in this matter, DSCYF/DFS submitted a copy of each Order. Pet. Ex. #4. 5. Aline Harrell , DSCYF/DFS Treatment Worker- Testimony on Mother and Father
Ms. Harrell testified regarding Mother and Father's involvement and their progress with their respective Case Plans.
a. Mother
Ms. Harrell described the efforts she has made to speak and work with Mother since the previous Court hearing on October 2018. In November 2018, Ms. Harrell went to Mother's home for an unannounced visit and spoke with Mother. Mother then called Ms. Harrell in December 2018 and left a voicemail but did not leave a number for Ms. Harrell to return the call. In January 2019, Ms. Harrell visited Mother's home but because Mother was not present, Ms. Harrell left a note on Mother's door. Ms. Harrell also tried to contact Mother at another address she had been provided with but found that the address did not exist. Ms. Harrell informed the Court that Mother responded to this note by calling Children and Families First on February 1, 2019. Ms. Harrell acknowledged that Mother usually responds to any notes left at her home but Ms. Harrell has difficulty reaching Mother by telephone. Ms. Harrell confirmed that she had informed Mother and Mother mistakenly believed that the hearing related to her youngest child, I'Meer. While Ms. Harrell explained that a termination of parental rights hearing was scheduled for Child and not I'Meer, Ms. Harrell testified that Mother did not appear to express much interest in the status of this particular case.
Ms. Harrell also testified regarding Mother's progress in her Case Plan, the details of which are described below.
1. Stable Housing
Mother presently resides on 24th Street in Wilmington, Delaware and reportedly shares this home with a roommate. Beginning in summer 2018, Mother's electricity had been turned off for a period of several months, however, as of October 2018, electricity had been restored to Mother's home.
2. Income and Budget
Throughout this case, Mother has depended entirely on SSDI funding to provide financial support for both herself and Child. Mother reported to DSCYF/DFS that her SSDI checks had been cut-off but has since indicated that her request to reinstate these checks is pending. DSCYF/DFS could not confirm or deny this information and Mother has never contacted the Division for assistance with applying for any state benefits.
3. Substance Abuse
Mother continued to struggle with substance abuse throughout the past year. In June 2018, both Mother and her newborn child tested positive for cocaine. In addition, in May 2018, Mother disclosed on her medical paperwork at Wilmington Hospital she had gone to a party and "used everything", referring to drugs. Due to these concerns, DSCYF/DFS informed Mother they would refer for her to receive substance abuse counseling at Brandywine. Mother told DSCYF/DFS this was unnecessary as she would go on her own and obtain the services. Ms. Harrell later followed-up with Brandywine counseling only to learn that Mother never began substance abuse counseling. Mother still has provided no documentation or proof she has received substance abuse counseling.
4. Parenting Classes
In an open DFS case involving her other children, Mother successfully completed a parenting class for children between the ages of four and eleven years old. Because Child is much younger than this intended age group, DSCYF/DFS requested that Mother complete a parenting class for Child's age group. In January 2018, Mother began parenting classes with Children and Families First. After missing three classes, Mother was discharged from the parenting class and failed to complete the course.
Besides the parenting classes, Ms. Harrell also referred for Mother to have a family interventionist worker at both Children's Choice in July 2017 and Wraparound Delaware in February 2018. Both cases were ultimately closed due to Mother's non-compliance and unwillingness to engage in services.
Ms. Harrell testified that she remains concerned about Mother's ability to parent a young child. Mother has reported that her medications cause her to sleep late into the afternoon and Ms. Harrell worries that Child would not have proper supervision during the day while Mother is sleeping. Ms. Harrell also expressed concerns that Mother often speaks to Child as if she were an adult, which Ms. Harrell believed to be inappropriate.
5. Visitation with Child
From September 2017 through the end of 2017, Mother had three official visits with Child, the last of which occurred on November 30, 2017. Ms. Harrell testified that, since then, Mother has had one official visit with Child on February 15, 2018, and two unofficial visits with Child which occurred during Mother's parenting classes on February 21, 2018 and February 28, 2018. Mother has not had a visit with Child since February 2018.
6. Physical and Mental Health
Ms. Harrell testified that Mother's mental health has been an ongoing issue, both in this case and in Mother's previous cases involving her other children. In 2017, Mother was admitted to in-patient treatment programs at MeadowWood and Rockford four separate times. Mother was again admitted to MeadowWood in July 2018 following the birth of her youngest child. During this hospitalization, Mother was diagnosed with Schizo-affective Disorder Bi-Polar type, Impulse Control Disorder (Cluster A and B personality traits), and Cocaine Use Disorder-Moderate (without withdrawal). The only medication that DSCYF/DFS was aware Mother was receiving to manage these diagnoses were Abilfy injections through Connections.
In March 2018, DSCYF/DFS referred for Mother to receive a mental health evaluation at Mid-Atlantic Behavioral Health. Ms. Harrell testified that while Mother appeared for the evaluation, she failed to complete the entire evaluation. Mother was contacted on several occasions to complete the evaluation but did not do so. Ms. Harrell stated that DSCYF/DFS has received no documentation or information from Mother to suggest that Mother has been consistent in any mental health treatment, despite her extensive history of mental health concerns.
Regarding Mother's physical health, Mother has reported that she suffered a brain injury in 2007. DSCYF/DFS informed Mother they expected her to follow-up with any medical care associated with this injury and provide proof she was receiving appropriate medical care, however, Mother never provided DSCYF/DFS with any information.
7. Criminal History and Domestic Violence
Ms. Harrell confirmed that Mother has a current pending criminal charge for unauthorized use of a motor vehicle but had no additional information to provide to the Court regarding this charge.
In September 2017, DSCYF/DFS referred for Mother to meet with a domestic violence liaison due to reports that Mother had been the victim of domestic violence incidents. Ms. Harrell testified that Mother never engaged with the domestic violence liaison nor completed an assessment.
b. Father
Ms. Harrell last spoke with Father in October 2018, at which time Father expressed that he had no desire to work on his Case Plan. Father further informed Ms. Harrell he had no place to live and was volunteering at Riverside Thrift Store in exchange for food. Father also reported that he had plans to begin in-patient treatment at MeadowWood soon. Ms. Harrell tried to reach Father at the Riverside Thrift Store twice, in January. Both times, Ms. Harrell spoke to the manager who confirmed that Father was often at the store. The manager assured Ms. Harrell he would pass along any messages or notes to Father but Father did not contact Ms. Harrell prior to this hearing.
Ms. Harrell also testified regarding Father's progress in his Case Plan, the details of which are described below.
1. Stable Housing
Ms. Harrell reported that Father has lacked stable housing throughout much of this case. The last address Father provided to DSCYF/DFS was the Riverside Thrift Shop but the Division could never contact Father at this shop to ascertain his current housing arrangements DSCYF/DFS suspects that Father is currently homeless.
2. Income and Budget
Ms. Harrell testified that Father, like Mother, depended entirely on his SSDI income, which has also recently been discontinued. Because Father has not communicated with DSCYF/DFS, the Division cannot ascertain whether Father is receiving income from any other sources at this time or if Father expects to receive SSDI again soon.
3. Substance Abuse
DSCYF/DFS has had concerns regarding Father's substance abuse, both throughout this case historyand in other previous treatment cases. Father, however, has never provided DSCYF/DFS with any documentation to suggest that he is actively engaging in substance abuse treatment.
4. Parenting Classes
DSCYF/DFS made two family interventionist referrals for Father with Children's Choice and Wraparound Delaware in September 2017 and November 2017, respectively. Ms. Harrell testified that Father was ultimately discharged from both programs due to his non-compliance with services.
5. Visitation with Child
Father has not had an official visit with Child since September 4, 2017 though Ms. Harrell acknowledged that Father may have had unofficial visits arranged directly with Maternal Cousin in 2018.
6. Physical and Mental Health
Ms. Harrell testified that Father also has an extensive history of mental health concerns which has often required in-patient treatment. In 2017, Father was admitted to Rockford seven times and MeadowWood once. In 2018, Father was admitted to Rockford seven times, MeadowWood twice, and Warwick Manor in Maryland twice. Father was most recently discharged from in-patient treatment at Rockford on January 9, 2019 where he was diagnosed with Bi-Polar Disorder- Mixed Type, Alcohol Dependence, and Cocaine Use Disorder- Mild. Despite these multiple hospitalizations, Ms. Harrell testified that Father has not provided DSCYF/DFS with any evidence to suggest that he has continued to engage in recommended mental health treatment.
Regarding his physical health, Father also reported that he suffered a brain injury in 2016 but, like Mother, has not provided DSCYF/DFS with any documentation to demonstrate that he has appropriately addressed this medical concern.
7. Criminal History and Domestic Violence
Ms. Harrell confirmed that Father has no pending criminal charges. Father was most recently on probation from December 2016 until March 2018, at which time he was discharged as "unapproved".
Father was arrested in December 2017 following a domestic violence incident with Mother. Father was directed to complete anger management classes after this incident but Ms. Harrell testified that she has no reason to believe Father complied with this requirement.
c. Child
Ms. Harrell testified that Child remains in the home of Maternal Cousin. Maternal Cousin has expressed an interest in being an adoptive resource for Child. Ms. Harrell has observed Child in Maternal Cousin's home on several occasions. Ms. Harrell testified that Child appears comfortable in the home and bonded to Maternal Cousin. Although Maternal Cousin has biological children of her own in the home, Ms. Harrell reported that Maternal Cousin has gone above and beyond to meet child's needs and ensure that she is treated like any other child in the home. Ms. Harrell was further unaware of any physical or mental health concerns for Maternal Cousin. Ms. Harrell believes that Maternal Cousin's home remains appropriate for Child and it would be in child's best interest to be adopted by Maternal Cousin.
Ms. Harrell briefly described the other potential relative placements explored for Child. Mother previous named Ms. Wheeler as a potential relative placement. Ms. Harrell stated that Ms. Wheeler was not interested in being a placement resource for Child because she is already caring for Mother's three of Mother's other children as a Permanent Guardian. 6. C------- W-------- , Maternal cousin and caregiver for Child
Maternal Cousin has been caring for Child since late May 2017, shortly after DSCYF/DFS first obtained custody of Child. Maternal Cousin described her relationship with Child as "beautiful" and affectionately called Child "her baby." Maternal Cousin stated that she cares for Child just as much as she cares for any of her own biological children, though admitted that she may actually spoil Child compared to her other children. Maternal Cousin reported that Child is a "happy kid" who acts wiser and older than her age and can already follow along with conversations. Maternal Cousin has three biological children also residing in her home, ages twenty, sixteen, and fourteen years old. Maternal Cousin testified that her children have a loving relationship with Child.
Maternal Cousin also testified that she has helped Child remain connected with her biological family by virtue of being related to Child. For example, Maternal Cousin stated that the day prior to this hearing, Child had a visit and play-date with her cousins, including a cousin who is the same age as her.
Maternal Cousin is employed as a school bus driver and feels she earns more than sufficient income through this position to meet Child's needs. Maternal Cousin denied having any history of mental or physical health concerns, and denied having any criminal or domestic violence history.
Maternal Cousin confirmed that she is interested in being a placement resource for Child and stated that she will do "whatever it takes" to adopt Child. When asked about visitation with Mother and Father if Maternal Cousin adopted Child, Maternal Cousin indicated that she would do nothing to hinder visitation between the parents and Child. Maternal Cousin explained that if there are no safety concerns, she would let Mother and Father visit with Child whenever they want to and reiterated that they are all still family. Maternal Cousin even agreed to provide Mother with written updates about Child if Maternal Cousin had any concerns about in-person visitation with Child. 7. C------ B-----D---- , Mother- Testimony
Mother testified on her own behalf and objected to termination of parental rights. Mother, instead, requested that the Court grant a continuance in this matter to give Mother six additional months to continue working on her Case Plan.
Mother also expressed some disagreement with the testimony presented regarding her progress in her Case Plan. Specifically, Mother stated that she participated in a parenting class in July 2018 but had no certificate demonstrating completion because the class does not give out certificates at the end of the course. Regarding her income, Mother reported that she had an appointment at the Social Security office in October 2018 where she was informed that her SSDI request would be reviewed during an administrative hearing. As of this trial, Mother indicated that she had not been informed of any hearings regarding her SSDI.
Mother further denied having an issue with cocaine or any other illegal drugs. Mother also stated that she has followed her mental health treatment, including medication, throughout the history of this case. Mother reported that, beginning on January 31, 2019, Mother has been seeing a therapist at Brandywine counseling and is working on medication management with this therapist. Although Mother had only her first appointment at Brandywine counseling this past week, they asked her to return later and Mother stated that she plans to follow through with this appointment. Mother further acknowledged that she did not complete her initial mental health evaluation at Mid-Atlantic but reported that she attempted to return to complete the evaluation but was not permitted to do so. Mother also claimed that she met with a domestic violence liaison but they concluded that Mother required no domestic violence services. No witnesses corroborated Mother's testimony on her participation in these programs.
Mother agreed that she had not had a formal visit with Child since November 2017. While Mother has indicated that her medication made it difficult for her to have visits with Child in the early afternoon, Mother did not explain in her testimony why she did not visit with Child regularly after she was given the opportunity to create a new schedule that would work for her. 8. Marlene Zeleny-CASA
Ms. Zeleny has been Child's appointed CASA for this entire case. Ms. Zeleny is well acquainted with this family, having also served as the CASA for Child's three older siblings in a permanent guardianship with Ms. Wheeler.
Ms. Zeleny first met with Mother in this case in August 2017. Ms. Zeleny testified that Mother appeared cooperative and showed Ms. Zeleny her home and all the supplies she had for Child. Father was not as cooperative and informed Ms. Zeleny he preferred not to have contact with her. Despite making this claim, Father then asked Ms. Zeleny for money for his anger management class and for bus passes and Ms. Zeleny explained to Father the proper avenue for obtaining that assistance. Ms. Zeleny reported this was her last contact with Father.
Ms. Zeleny had several phone conversations with Mother after this visit. However, these communications broke down in late August 2017 when Mother told Ms. Zeleny she no longer wanted to involve with her because she "took her other children away." Despite further attempts to speak with Mother, Ms. Zeleny has had no contact with Mother since this conversation.
Ms. Zeleny testified that she has observed Child both at home and at daycare on several occasions. She stated that Child appeared well-cared for and excited about being in daycare. Ms. Zeleny believes that Maternal Cousin is meeting all of Child's basic needs Maternal Cousin's home appears to be a safe, loving, and nurturing environment. Ms. Zeleny agrees that termination of parental rights would be in Child's best interests. While Ms. Zeleny understood Mother's request to have a continuance in this matter to work on her Case Plan, Ms. Zeleny did not think that granting Mother an additional six months would be in Child's best interest because Mother has not demonstrated that she would be able and willing to make a significant turnaround in her engagement with the recommended services.
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 their child can be terminated only upon a showing, by clear and convincing evidence, that one or more of the statutory grounds in 13 Del. C. §1103(a) has been established and that severing the parental ties would be in the best interests of the child as defined in 13 Del. C. § 722. The Court must also find that the State has exercised reasonable efforts to reunify the family and provide meaningful efforts to case plan with the parents. The clear and convincing standard of proof requires greater certainty about the factual conclusions than a preponderance of the evidence standard, underscoring the important liberty interest at stake and the special loss that occurs with the termination of a parent's rights in a child.
Id.; see also In re Hanks, 553 A.2d 1171, 1179 (Del. 1989).
In re K.L.T., 2001 WL 493113, at *10.
See Patricia A.F. v. James R.F., 451 A.2d 830, 831-32 (Del. 1982).
A. Statutory Grounds for Termination of Parental Rights
DSCYF/DFS seeks termination of both Mother and Father's parental rights on the grounds of failure to plan under 13 Del. C. §1103(a)(5).
1. Failure to Plan- Father
DSCYF/DFS seeks to have the Court find that Father failed to plan for Child under 13 Del. C. §1103(a)(5). To do so, DSCYF/DFS must demonstrate, by clear and convincing evidence, that Father failed to plan adequately for Child's physical needs or mental and emotional health and development and that Child came into care of DSCYF/DFS at least six months ago.
Child came into care as a newborn infant in May 2017, well over six months ago. DSCYF/DFS created a Case Plan for Father, which he signed in September 2017. During the last conversation DSCYF/DFS had with Father in October 2018, Father expressed that he had no desire to work on his Case Plan. The record reflects that Father has made virtually no progress in his Case Plan and is in even less of a position to care for Child now than he was at the outset.
The first element of Father's Case Plan, required him to meet his family's financial needs and establish a budget. At the beginning, Father primarily relied on SSDI income to meet his family's financial needs, and the Court has found that Father and Mother together earned sufficient income to financially support Child. However, DSCYF/DFS reported that during Father's last conversation with the Division, he stated that his SSDI had been cut-off and DSCYF/DFS has received no documentation or evidence to demonstrate that Father has any other sources of income at this time.
Father was further required to participate in any medical and/or developmental appointments for Child and maintain consistent visitation with Child. DSCYF/DFS reported that Father has had minimal involvement in Child's life. Father has not regularly attended Child's medical appointments and had not even had an official visit with Child since September 2017. While Father informed the Court during the October 4, 2018 Permanency Review Hearing he had two unofficial visits with Child, arranged directly with Maternal Cousin, having only two visits during ten months does not constitute consistent visitation with Child under the Case Plan. In an attempt to further facilitate visitation with Child, and assist Father with fulfilling his Case Plan, Father was referred to a family interventionist in Children's Choice during the summer of 2017. When Father was discharged from Children's Choice due to not cooperating with the assigned parent aide, DSCYF/DFS arranged for Father to have second referral for family interventionist services at Wraparound Delaware in November 2017. A few months later, Father was, again, discharged from these services due to non-compliance. To date, Father has not completed a parenting class nor maintained regular involvement with family interventionist services.
Father was also required to complete a mental health evaluation at Mid-Atlantic Behavioral Health and follow any recommendations made. While Father has been admitted to in-patient mental health treatment eighteen times since 2017, DSCYF/DFS has received no information from Father to suggest that Father is complying with the recommendations made during these hospitalizations nor obtaining regular mental health counseling and treatment. Father has never attended nor completed the required mental health evaluation at Mid-Atlantic Behavioral Health.
Another component of Father's Case Plan was to complete a substance abuse evaluation and follow any recommendations made. While there have been no specific concerns regarding Father's substance abuse during this case, Father has a history of substance abuse concerns in child protective cases involving his other children and Father was recently diagnosed with Alcohol Dependence and Cocaine Use Disorder in December 2018. Despite these concerns, Father has not completed the required substance abuse evaluation nor demonstrated to DSCYF/DFS he has tried to address any substance abuse concerns.
Finally, Father had to comply with any probation conditions. Although Father was discharged from probation in March 2018, he was discharged as "unapproved." One of the primary elements of Father's probation was to complete an anger management course. DSCYF/DFS directed Father to execute a consent allowing them to monitor his progress in his anger management course but DSCYF/DFS has no reason to believe that Father satisfactorily completed this course.
At the outset, Father had stable housing which he shared with Mother and adequate income through SSDI. As Father has reported that he is homeless and has stated that his SSDI income was terminated. While DSCYF/DFS has tried to communicate with Father throughout this case, Father has informed the Division he does not wish to case plan and has been discharged from numerous services referred by DSCYF/DFS due to his non-compliance. Father has had sporadic and minimal involvement in Child's life throughout this case. Father only visited with Child twice in 2018 but did not communicate with DSCYF/DFS to ensure these visits were appropriate and properly supervised. While Father was present at the previous hearing and wished to be represented by counsel during this trial, Father failed to participate and his attorney, who had had no contact with Father, was discharged.
Based on Father's lack of involvement with DSCYF/DFS, his failure to satisfy the required elements of his case plan, and his inconsistent and minimal contact with Child, the Court finds that DSCYF/DFS has shown, by clear and convincing evidence, that Father has failed to adequately plan for Child's physical needs and emotional health and development.
2. Failure to Plan- Mother
DSCYF/DFS also seeks to have the Court find that Mother failed to plan for Child under 13 Del. C. §1103(a)(5). To do so, 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 care of DSCYF/DFS at least six months ago.
Under Mother's Case Plan, Mother had to meet her family's financial needs and establish a budget. Like Father, at the beginning of this case Mother earned SSDI and the Court found this income, combined with Father's, was adequate to financially support Child. Since then, Mother has reported that her SSDI has been terminated. While Mother testified that she began the process of reinstating this income in October 2018, Mother did not know the status of this request and failed to demonstrate that she has any other sources of income which could provide for Child if she were returned to Mother's care.
Mother was also required to participate in any medical/developmental appointments for Child. While Mother attended medical appointments with Child at the beginning, Mother has not seen Child since February 2018, nearly one year ago. Therefore, over the past year, Mother has attended no appointments with Child nor visited with her.
Moher was further required to address her mental health concerns by following a referral to Mid-Atlantic Behavioral Health and provide releases for her recent mental health evaluations while at Rockford and MeadowWood. Mother has been admitted to in-patient mental health treatment five times since 2017. Mother was initially referred to undergo a mental health evaluation with Mid-Atlantic Behavioral Health in March 2018 but failed to complete this evaluation. When Mid-Atlantic contacted Mother to arrange a time to complete the evaluation, Mother did not follow-up. Although Mother has received treatment for her mental health concerns during her several hospitalizations, Mother has not provided DSCYF/DFS with any information or documentation to suggest that she has complied with any recommendations made during these hospitalizations.
Mother testified that she has complied with medication to address her mental health issues. Mother further testified that she counseled at Brandywine for both mental health and substance abuse treatment in late January 2019. Prior to this, Mother had not been seen at Brandywine counseling since July 2018. Although Mother went to Brandywine for an appointment in the week prior to this hearing, she could not engage in any counseling and was, instead, asked to come back later. Mother informed the Court she intends to attend her next scheduled appointment. Mother further indicated that she attempted to complete the evaluation at Mid-Atlantic Behavioral Health but could not do so.
Finally, Mother was directed to work on her parenting skills by attending parenting classes and maintaining consistent involvement and visitation with Child. DSCYF/DFS requested that Mother complete a parenting course which Mother attended in January 2018 until she was discharged from the course in February 2018 after missing three sessions. To date, Mother has not completed a parenting course recommended by DSCYF/DFS. In addition, Mother has not visited with child in almost one year. DSCYF/DFS attempted to assist Mother with visitation by referring Mother to a family interventionist who could schedule and supervise visits with Mother. While Mother helped create the schedule for visitation with Child, Mother still had difficulty attending the visits as scheduled and expressed frustration with the timing of the visits. Mother's case with the family interventionist was closed due to her non-compliance.
An additional concern that DSCYF/DFS had regarding Mother was her substance abuse. Despite being diagnosed with Cocaine Use Disorder, and testing positive for cocaine at the birth of her youngest child in July 2018, Mother denied having a substance abuse issue. But Mother indicated this concern would be addressed through her upcoming counseling at Brandywine.
Overall, the record reflects that Mother has made insufficient progress with her Case Plan and has more to accomplish at this time than she did when the case began. While the Court commends Mother for seeking in-patient treatment when necessary, for the majority of this case, Mother has failed to demonstrate that she is trying to address her mental health concerns, which were at the root of not only this case but also previous cases with DSCYF/DFS. Mother counseled at Brandywine in July 2018 but did not begin to re-engage with these services until January 31, 2019, less than one week prior to this hearing. While Mother has a stable residence, as of this hearing she no longer receives SSDI and has not demonstrated that she is earning any other sources of income so she could care for Child. Mother further failed to complete the required parenting education course and was discharged from family interventionist services due to her non-compliance. While Mother has struggled to comply with the services required of her in her case plan, she also has not maintained consistent visitation with Child, which is concerning given Child's young age. At the beginning, Mother maintained regular visitation with Child however, over time, these visits became increasingly sporadic. Even when Mother was given the opportunity to create her own visitation schedule, Mother still failed to attend visits regularly and Mother has not seen Child since February 2018.
Since this case began in May 2017, Mother's engagement and involvement this case has steadily declined. While Mother attended this hearing, she appeared late and did not seem to understand this hearing pertained to Child, despite being reminded by DSCYF/DFS just a few days prior. The Court cannot see how granting Mother additional time, as she has requested, would lead to any change in her compliance with the Case Plan. Therefore, 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 and emotional health and development.
B. Reasonable Efforts
Once the Court concludes that the grounds for termination of parental 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, 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 both Mother and Father were provided with Case Plans in September 2017 and that DSCYF/DFS attempted to work with both parents, over an extended period, on the ongoing issues. DSCYF/DFS has had difficulty communicating with Mother throughout this case. Mother usually reported that her phone had either been turned off or was lost. Often, when Mother would call DSCYF/DFS, she would not provide a phone number for the Division to return Mother's call. At multiple times throughout this case, including most recently in the month leading to this hearing, DSCYF/DFS has had to resort to leaving notes on Mother's door to get in contact with Mother, a method which has typically been effective.
In addition, DSCYF/DFS has referred for Mother throughout this case which Mother has failed to take advantage of. DSCYF/DFS offered to involve Mother in counseling with Brandywine counseling but Mother refused this assistance and, instead, insisted that she would do it on her own but never did. DSCYF/DFS has also referred for Mother to have a parenting class, which Mother was discharged from after missing three sessions. DSCYF/DFS also connected Mother to Mid-Atlantic Behavioral Health to receive a mental health evaluation, which Mother failed to complete. DSCYF/DFS has also provided bus passes to both Mother and Father on several occasions throughout the case to help them have transportation to appointments and visits.
DSCYF/DFS originally allowed visitation to be supervised by Maternal Cousin, a relative of Mother's. However, after Maternal Cousin expressed concerns regarding visitation, DSCYF/DFS relied on Mother's family interventionist, Ms. R---, to supervise and facilitate visitation. When Mother expressed concerns regarding the visitation schedule, DSCYF/DFS held a team meeting with Mother during which she was given the opportunity to create a schedule which would be amenable to her. However, because Mother did not follow through with this schedule, or the services being provided by the family interventionist, Mother's case with Children's Choice was ultimately closed.
Despite Father's lack of cooperation throughout this case, DSCYF/DFS has still attempted to engage Father and connect him with services required by his Case Plan. Like Mother, Father was assigned a family interventionist, however, DSCYF/DFS assigned Father a separate family interventionist from Mother, at Father's request. When Father was discharged from services at Children's Choice due to non-compliance, DSCYF/DFS referred for Father to have a new family interventionist at Wraparound Delaware, which Father was also discharged from due to non-compliance. Although Father stated in October 2018 he no longer wanted to case plan, DSCYF/DFS still attempted to engage Father in services. Specifically, DSCYF/DFS attempted to speak with Father on several occasions in January 2019 at the thrift shop where Father reportedly spent a great deal of time. DSCYF/DFS left notes and messages with the manager of the thrift shop to reach Father but these communications went unanswered. Like Mother, Father was also given the opportunity to devise a visitation schedule with Child but Father never took advantage of this arrangement and has not had a scheduled visit with Child since September 2017.
DSCYF/DFS has attempted to engage both parents in services throughout the history of this case. While Mother and Father have not taken advantage of these services and resources, DSCYF/DFS has still attempted to communicate with Mother and Father and ensure they have every opportunity to be involved in services which would satisfy their Case Plans. Therefore, the Court finds that DSCYF/DFS has made reasonable efforts to reunify both parents with Child through the services, resources, and referrals.
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 relevant factors 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 on both Mother and Father below.
See Div. of Family Services v. Hutton, 765 A.2d 1267, 1272 (Del. 2001) (citing in re Burns, 519 A.2d 638, 643 (1986)).
13 Del. C. § 722(a) mandates that the Court consider all relevant factors including:
(1) "The wishes of the child's parents or parent as to his or her custody and residential arrangements;
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
(3) The interaction and interrelationship of the child and his or her parents, grandparents,
siblings, persons cohabiting in a relationship between a husband and wife with a parent of the child any other residents of the household or persons who significant effect the child's best interest;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
(7) Evidence of domestic violence as provided for in Chapter 7A of this title, and
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense."
See Fisher v. Fisher, 691 A.2d 619, 623 (Del. 1997) (noting that "[t]he amount of weight given to one factor or combination of factors will be different in any given proceeding. It is quite possible that the weight of one factor will counterbalance the combined weight of all other factors and be outcome determinative in some situations.") --------
1. The wishes of the child's parents as to his or her custody or residential arrangements;
Because Father failed to appear at this hearing, Father's wishes on the termination of his parental rights in Child are unknown. While Father indicated that he wanted to have an attorney represent him in October 2018, that same month, Father also expressed that he had no desire to case plan with DSCYF/DFS. Father has not officially visited with Child since September 2017 and only saw Child twice from the beginning of 2018 until October. Therefore, based on Father's lack of involvement with Child, and his unwillingness to engage with DSCYF/DFS to work towards reunification, the Court assumes Father is ambivalent about whether his parental rights are terminated. Accordingly, the Court finds this factor is neutral as to Father.
Mother appeared and expressed that she did not want the Court to terminate her parental rights, but, wanted the Court to continue the matter for six months to give Mother additional time to work on her Case Plan and pursue reunification with Child. However, when Mother entered the courtroom, she did not appear to understand this hearing concerned Child. As Mother has also not had a visit with Child since February 2018, this raises questions on how effective a continuation would be. Regardless, based on Mother's stated wishes, the Court finds this factor favors denying the Petition.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
Child was a newborn when she entered DSCYF/DFS custody and is now less than two years old. Child is too young for the Court to assign any weight to her wishes, if she could articulate them. Therefore, the Court finds this factor is inapplicable as to both Mother and Father.
3. The interaction and interrelationship of the child with his or her parents , grandparents , siblings , person cohabiting in the relationship of husband and wife with a parent of the child , any other residents of the household or person who may significantly affect the child's best interests;
While Mother and Father visited with Child more frequently during the first few months, beginning in September 2017, both parents' had fewer and more sporadic visits with Child. Between September 2017 and the end of 2017, Father had one visit only with Child and Mother had only three visits with Child. In 2018, Father reportedly had two visits with Child, though DSCYF/DFS could not verify if these visits occurred as they were not arranged by DSCYF/DFS nor supervised by the Division or its contracted agency. Mother had one visit with Child in February 2018, but could see Child during two parenting classes, both of which took place in February 2018. Mother has not seen Child since then. Because neither parent has maintained consistent or meaningful visitation with Child, Child has not developed a relationship or bond with either parent, as both parents have been largely absent from Child's life for over half of her life.
Child has resided in the same home with Maternal Cousin for most of her life. While there was a brief period during which Maternal Cousin had relocated to Texas, Child has primarily been in the care of Maternal Cousin since May 2017, just a few weeks after she was born and entered DSCYF/DFS custody. Maternal Cousin and Child have a loving relationship and bond and Maternal Cousin is the only caregiver Child has ever known. Maternal Cousin has also expressed a desire to become an adoptive resource for Child if this Petition is granted. Child also has a bond with Maternal Cousin's children who also reside in the home and Maternal Cousin's children are reportedly very loving and affectionate towards Child. Due to Mother and Father's absence and lack of visitation throughout much of Child's life, and the loving and nurturing environment that Maternal Cousin now provides to Child, the Court finds this factor strong supports granting the Petition as to both Mother and Father.
4. The child's adjustment to his or her home , school , and community;
Child has resided with Maternal Cousin since May 31, 2017. In late 2018, there was a brief period of time during which Maternal Cousin moved to Texas and Child was residing with Maternal Cousin's daughter while DSCYF/DFS obtained an ICPC for Child to be placed with Maternal Cousin in Texas. However, Maternal Cousin soon moved back to Delaware and Child remains in her home to this day. Maternal Cousin has been Child's primary caregiver since Child was two weeks old and Child is reportedly happy, comfortable, and well taken care of in Maternal Cousin's home. Child also attends daycare in Maternal Cousin's community and Child's CASA reported that Child also seems to enjoy attending daycare. Although there is no guarantee that Child can remain in Maternal Cousin's home, she is interested in adopting Child and there is a positive expectancy that Child can continue residing in this home to which she has become so well adjusted.
Maternal Cousin has also ensured that Child spends time with her biological family, particularly her maternal relatives. Maternal Cousin testified that Child regularly has playdates with her cousins and can spend time with other members of her extended family during holidays and family gatherings. Maternal Cousin further expressed her commitment to allow Child to maintain a relationship and visitation with her parents if these visits remain safe and appropriate for Child. In contrast, Child has not lived with Mother and Father since she was less than two weeks old and could not establish a relationship with her parents since then due to their sporadic and minimal visitation. Therefore, the Court finds this factor strongly supports granting the Petition as to Mother and Father.
5. The mental and physical health of all individuals involved;
Both Mother and Father have reported that they sustained brain injuries in 2007 and 2016, respectively. To date, neither DSCYF/DFS nor the Court has received any medical documentation that would demonstrate that either parent has obtained the necessary and appropriate medical care to address these injuries and any potential complications that may arise. This was concerning after the Court observed that Mother appeared to have cognitive limitations during her testimony. However, with no medical documentation to address Mother's history of brain trauma, the Court has no way of assessing how this brain injury would, if, impair her ability to appropriately care for Child.
In addition, both Mother and Father have extensive histories of mental health concerns, which has resulted in each parent being admitted to in-patient treatment numerous times during this case. To date, neither parent has presented any evidence to suggest that they are engaging in appropriate treatment or counseling to address their diagnoses. While Mother has received medication, and expressed that she began mental health counseling in the week prior to this hearing, this is not sufficient to demonstrate that Mother has adequately addressed her mental health needs, an issue which has been prominent and central to these proceedings. One of Mother's diagnoses is Cocaine Use Disorder. Despite receiving this diagnosis, and giving birth to a child who was born positive for cocaine in July 2018, Mother continues to deny that she has any issue with drugs, which raises concerns as to Mother's progress in understanding her the nature or seriousness of her opioid addiction. Therefore, the Court finds this factor favors granting the Petition as to both Mother and Father.
6. The past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
13 Del. C. § 701(a) states that "[t[he father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare and education." The record reflects that both Mother and Father have struggled to comply with their statutory obligations to Child throughout this case. Regarding Mother, Mother has eight other children, besides Child, none of whom are in her care. While Mother earned SSDI, she no longer has this income and has not demonstrated that she has the financial resources to adequately care for Child. Although Mother attended Child's medical appointments early in the case, her involvement in these appointments has decreased, as has her visitation and contact with Child.
Father has expressed reluctance to care for Child since the beginning. During the initial investigations and meetings with DSCYF/DFS, Father was largely uncooperative and did not want to speak with anyone involved. Father also indicated that he could not care for Child without the assistance of Mother and now Father and Mother are separated and have refused to work together for some time. Father has also lost his only source of income during this case and has reported that he is homeless.
Therefore, the Court finds this factor strongly favors granting the Petition as to both Mother and Father.
7. Evidence of domestic violence as provided for in Chapter 7A of this title; and ,
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 under the best interests of the child. The record reflects there is a history of domestic violence by Father against Mother. Mother and Father were involved in an incident of domestic violence during the previous treatment case in 2016 and then again in December 2017. The Court further notes that the criminal charges associated with these incidents were all dismissed. While Mother was referred to domestic violence counseling as a victim, Mother has refused to engage with these services. Therefore, the Court finds this factor supports granting the Petition as to Father but is neutral on Mother.
8. The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Mother and Father have criminal histories in Delaware. Father has only one conviction from 2015 and Mother has a pending charge for unauthorized use of a motor vehicle. Father has a history of somewhat concerning criminal charges, including terroristic threatening and burglary, but these charges have all been dismissed or rendered nolle prosequi. The Court is concerned that both parents have had arrests within the last year and that Mother has a pending charge for her most recent arrest. Therefore, the Court finds this factor only minimally favors or at best is neutral toward granting the Petition as to both Mother and Father.
The Court finds that, with regard to Father, factors 1 and 2 are neutral. However, factors 3, 4, 5, 6, 7, and minimally factor 8, all favor granting the Petition on Father and no factors favor denying the Petition as to Father. Regarding Mother, factor 1 favors denying the Petition to Mother, factors 2 and 7 and eight are neutral, and factors 3, 4, 5, and 6, all factor granting the Petition as to Mother. Overall, the Court finds it is in Child's best interest that the Petition be granted as to both parents.
CONCLUSION
The Court finds that DSCYF/DFS has established, by clear and convincing evidence, that the statutory ground for termination of parental rights exists as to both Mother and Father under 13 Del. C. § 1103(a)(5) for failure to plan, and that DSCYF/DFS has offered reasonable efforts at reunification for both parents. The Court also finds it is in the best interest for Child for Mother and Father's parental rights to be terminated, based on the above analysis utilizing the factors in 13 Del. C. § 722.
Accordingly, the Petition for Termination of Parental Rights is GRANTED as to both C------ D-----B---- and R----- D----. The parental rights of C------ D----- B---- and ----- D---- are TERMINATED and TRANSFERRED to DSCYF/DFS. The Court will schedule a Post-TPR Review Hearing in the interest of Child.
IT IS SO ORDERED.
March 6 , 2019
Date Written Order Issued
/s/ _________
ROBERT BURTON COONIN, JUDGE RBC/jr cc: Counsel
Respondent Father
File