Opinion
FILE NO.: CN17-05153 FILE NO.: 18-07-11TN CPI NO.: 17-27550 CPI NO.: 18-21948
07-01-2019
DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES, Petitioner v. L----- M. J----, J----- W----, Respondents. In the Interest of: T------ W---- (F) (DOB 11/--/14)
Islanda Finamore, Esquire, Department of Justice, Wilmington, Delaware for Petitioner, Division of Family Services Jessica Markowski, Esquire, Gonser and Gonser, Wilmington, Delaware for Respondent Father, J----- W---- L----- J----, Mother Alfred Lindh, Esquire, Office of the Child Advocate, Wilmington, Delaware for Child, T------ W----
DECISION ON PETITION FOR TERMINATION OF PARENTAL RIGHTS Before the HONORABLE ROBERT BURTON COONIN, JUDGE of the Family Court of the State of Delaware: Petition for Termination of Parental Rights is GRANTED as to L----- J---- and J----- W----. Islanda Finamore, Esquire, Department of Justice, Wilmington, Delaware for Petitioner, Division of Family Services Jessica Markowski, Esquire, Gonser and Gonser, Wilmington, Delaware for Respondent Father, J----- W---- L----- J----, Mother Alfred Lindh, Esquire, Office of the Child Advocate, Wilmington, Delaware for Child, T------ W---- Coonin, J.
NATURE OF THE PROCEEDINGS
This is the decision on the Petition for Termination and Transfer of Parental Rights ("TPR") filed by the Department of Services for Children, Youth and Their Families/Division of Family Services (hereinafter "DSCYF/DFS") against L----- J---- (hereinafter "Mother") and J----- W---- (hereinafter "Father") regarding the minor child T------ W---- born November --, 2014 (hereinafter "Child").
DSCYF/DFS seeks to terminate the parental rights of Mother in Child under 13 Del. C. § 1103(a)(5) on the grounds of "failure to plan" arguing she has been unable to or has failed to plan adequately for Child's physical needs or mental health and development. DSCYF/DFS seeks to terminate the parental rights of Father in Child under 13 Del. C. § 1103(a)(5) on the grounds of "failure to plan" arguing he has been unable to or has failed to plan adequately for Child's physical needs or mental health and development.
In the July 30, 2018 Petition for Termination and Transfer of Parental Rights, DSCYF/DFS also sought to terminate the parental rights of Mother in Child under 13 Del. C. § 1103(a)(2) on the grounds of abandonment. However, there was no testimony at the TPR trial related to intent to abandon and Child was in the care of Mother less than twelve months from filing of the Petition. Therefore, the Court believes DSCYF/DFS determined only to pursue failure to plan.
The Court held the hearing on the Petition on April 18, 2019. Father was present and represented by Jessica Markowski, Esquire. Mother failed to appear. Testimony was taken from Father; Eileen Gentile, DSCYF/DFS permanency worker; Monta Macer, Children's Choice foster care caseworker; Alison Randall, Child's therapist; and Debra Hartnett, Child's CASA worker.
PROCEDURAL HISTORY
On September 8, 2017, DSCYF/DFS filed a Dependency/Neglect Petition for Custody and Motion for Emergency Ex Parte Order wherein it alleged that Mother's whereabouts were unknown, Father was incarcerated at Howard R. Young Correctional Center, and Child's only known adult relative was an 18-year-old half-sister, T-----, who was still in high school at that time. The day prior, on September 7th, the Court, through the Honorable Mary Much, granted emergency temporary custody of Child to DSCYF/DFS. At the Preliminary Protective Hearing held on September 13, 2017, Mother failed to appear, because she was arrested the day prior to the hearing and the Court had insufficient notice of her incarceration to request her transport. Father was transported from his place of incarceration and assigned Michelle Skoranski, Esquire as his counsel. The Honorable Jennifer Ranji found probable cause that Child was dependent due to both parents being incarcerated at the time of the hearing and due to Mother leaving Child in the care of another individual for multiple days and failing to return. The Court noted that the circumstances surrounding Child's entry into DSCYF/DFS custody were that on September 6, 2017, a caller informed Child's daycare provider that Mother had left Child with the caller four days prior and that Mother had not returned to retrieve Child from the caller's care. The Court also noted that Mother had an issue with substance abuse, especially of Percocet. At that time, DSCYF/DFS had initiated a request under the Interstate Compact for the Placement of Children ("ICPC ") request for T-----'s 21-year-old paramour in Virginia who had expressed interest in caring for Child. An attorney for Child was appointed on September 27, 2017.
At the Adjudicatory Hearing on November 13, 2017 participated in by Father but not Mother, the Court found by a preponderance of the evidence that Child was dependent as to both her parents. Father remained incarcerated and Mother had limited contact with DSCYF/DFS or the Child since the prior hearing. DSCYF/DFS reported that neither paternal uncle, T------ W---- (hereinafter "Paternal Uncle"), nor Child's paternal grandmother were willing to be placement resources for Child. However, paternal aunt, C------ C------ (hereinafter "Paternal Aunt"), a resident of Florida, was interested in being a placement resource for both Child and Child's half-sister, P------- W---- (DOB 3/--/17). As a result, DSCYF/DFS initiated an ICPC referral for Paternal Aunt. DSCYF/DFS also reported that Mother had only one supervised visit with Child, in September, during which DSCYF/DFS believes she may have been under the influence of drugs. Finally, DSCYF/DFS reported that it had had no contact with T----- or her paramour since the end of September regarding their interest in caring for Child.
At the Dispositional Hearing on December 11, 2017 participated in by Father but not Mother, the Court found by a preponderance of the evidence that Child continued to be dependent as to both her parents. Father remained incarcerated and Mother had only a single several second phone call with DSCYF/DFS and no contact with Child since the prior hearing. ICPC requests for both T-----'s paramour in Virginia and Paternal Aunt in Florida were still pending at that time. Although DSCYF/DFS had prepared draft case plans for both parents prior to this hearing, the Division had not been able to review them with either Mother or Father.
On February 14, 2018, Father's paternity over Child was established by Parentage Decree following receipt of the results of genetic testing.
At the Review Hearing on May 17, 2018 participated in by Father but not Mother, the Court found by a preponderance of the evidence that Child continued to be dependent as to both her parents. DSCYF/DFS reported that the ICPC request in Virginia h been denied but that Child and her half-sister P------- had been placed with Paternal Aunt for a visitation period on March 27, 2018, before their official placement began on April 27, 2018 when the ICPC referral was approved. DSCYF/DFS also reported that Mother only had two video chats with Child prior to her placement in Florida and no in-person visits. At the conclusion of the hearing, the Court ordered DSCYF/DFS to provide a case plan for Father to review since his paternity had been established.
On July 18, 2018, DSCYF/DFS filed an Amended Motion to Change Goal for Child from reunification to concurrent goals of termination of parental rights/adoption and permanent guardianship. Father filed a Response opposing the goal change. Mother did not file a response.
At the Permanency Hearing on November 2, 2018, participated in by Father but not Mother, the Court found by a preponderance of the evidence that Child continued to be dependent as to both her parents because of Mother's non-involvement with DSCYF/DFS or Child, and Father's expected incarceration until May 30, 2026. DSCYF/DFS reported that on October 12, 2018, Paternal Aunt informed the Division that she was no longer able to care for Child in addition to P------- and asked for Child, but not P-------, to be removed from her home. On October 20, 2018, Child was placed in the foster home of R----- and J--- G------ (collectively hereinafter "Foster Parents"). At the hearing, Father requested that Paternal Uncle be reconsidered as a placement resource. However, DSCYF/DFS stated that, after the traumatic removal of Child from Paternal Aunt's home, the Division planned to have Child engage in therapy sessions with Alison Randall starting in November 2018, and the Division was only considering relatives who were willing to be permanent placement options. At the conclusion of the hearing, the Court granted the Motion to Change Goal to concurrent goals of termination of parental rights and permanent guardianship and directed DSCYF/DFS to re-establish contact with Paternal Uncle to see if he was interested in being a permanent placement resource for Child.
From this hearing forward, Ms. Markowski took over the responsibility for representing Father, previously held by Ms. Skoranski, her colleague at Gonser and Gonser.
At the Permanency Review Hearing on March 4, 2019, participated in by Father but not Mother, the Court found by a preponderance of the evidence that Child continued to be dependent as to both her parents. Mother's whereabouts remained unknown. DSCYF/DFS reported that Paternal Uncle was no longer interested in being a placement resource for Child, but that the foster parents, the G------s were now a pre-adoptive resource. DSCYF/DFS also reported that, during weekly therapy sessions with Ms. Randall, Child had disclosed that she was threatened with a snake while she resided in Florida, and Child drew a picture of herself locked in a cage, among other troubling disclosures.
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 his/her child can be terminated only upon a showing, by clear and convincing evidence, that one or more of the statutory grounds set forth in 13 Del. C. §1103(a) has been established and that severing the parental ties would be in the best interests of the child as defined in 13 Del. C. § 722. The Court must also find that the State has exercised reasonable efforts to reunify the family and provided meaningful efforts to case plan with the parents. The clear and convincing standard of proof requires greater certainty about the factual conclusions than a preponderance of the evidence standard, underscoring the important liberty interest at stake and the special loss that occurs with the termination of a parent's rights in a child.
Id.; see also In re Hanks, 553 A.2d 1171, 1179 (Del. 1989).
In re K.L.T., 2001 WL 493113, at *10.
See Patricia A.F. v. James R.F., 451 A.2d 830, 831-32 (Del. 1982).
A. Statutory Grounds for Termination of Parental Rights
DSCYF/DFS seeks termination of both Mother's and Father's parental rights in Child on the grounds of failure to plan pursuant to 13 Del. C. §1103(a)(5).
1. Failure to Plan - Mother
DSCYF/DFS requests the Court find that Mother failed to plan for Child pursuant to 13 Del. C. §1103(a)(5). DSCYF/DFS must demonstrate by clear and convincing evidence that Mother failed to plan adequately for Child's physical needs or mental and emotional health and development and that Child came into the care of DSCYF/DFS over one year ago.
The record reflects that Child came into the care of DSCYF/DFS in September 2017, well over one year ago. Additionally, the record reflects that there is no evidence that Mother has made any progress on her proposed Case Plan, much less signed a Case Plan. DSCYF/DFS provided the Court with a proposed Case Plan for Mother during the Dispositional Hearing of December 11, 2017. However, from that point forward, DSCYF/DFS was never able to establish sufficient contact with Mother to have her sign and/or review the proposed Case Plan. According to the Social Report, Mother has had no known in-person contact with Child since September 2017. Additionally, Ms. Gentile reported that she has had no contact from Mother since Ms. Gentile was assigned to the case in March 2018, and the Social Report does not note any contact between Mother and DSCYF/DFS since November 2017. Furthermore, Ms. Gentile reported that Mother has not provided any gifts or clothes for Child since at least March 2018. Ms. Macer and Ms. Randall also both confirmed that they have had no contact from Mother since they have been involved in the case in October 2018 and November 2018 respectively. Finally, Mother has not participated in any of the court proceedings regarding Child. Therefore, the Court finds that DSCYF/DFS has shown by clear and convincing evidence that Mother has failed to adequately plan for reunification with Child, and that the grounds for termination of her parental rights in Child have been met.
2. Failure to Plan - Father
DSCYF/DFS requests the Court find that Father failed to plan for Child pursuant to 13 Del. C. §1103(a)(5). DSCYF/DFS must demonstrate by clear and convincing evidence that Father failed to plan adequately for Child's physical needs or mental and emotional health and development and that Child came into the care of DSCYF/DFS over one year ago.
The record reflects that Child came into the care of DSCYF/DFS in September 2017, well over one year ago. Additionally, the record reflects that there is no evidence that Father has made progress on his Case Plan while he has remained incarcerated for the entire time that Child has been in the care of DSCYF/DFS. DSCYF/DFS provided the Court with a proposed Case Plan for Father during the Dispositional Hearing of December 11, 2017. However, the Court instructed DSCYF/DFS that they did not need to begin case planning with Father until his paternity was established. At that time, he was still the putative father and his paternity would not be established until February 14, 2018. Thereafter, the Court reminded DSCYF/DFS that it should have started case planning with Father at the Review Hearing of May 17, 2018. On July 27, 2018, DSCYF/DFS provided the Court with an updated proposed Case Plan. However, Father, mainly by virtue of his present incarceration, has not completed any of the elements on the Case Plan. Although he reported at the TPR trial that he hopes to take care of Child upon his release and that he is currently appealing his criminal sentence, he has done nothing to facilitate that reunification. He is not employed and has no source of income by which to support Child while he remains incarcerated. He cannot provide Child with any secure housing at present, and his only family member who previously expressed willingness to care for Child later asked Child to be removed from his home. While Father said he is planning to take parenting classes, he provided no explanation for why he has waited until now to begin classes. Most importantly, he has never taken the initiative to independently reach out to DSCYF/DFS, Children's Choice or Child's therapist to inquire about Child's well-being or provide DSCYF/DFS with any gifts to pass on to Child. Further, there is no evidence that he has attempted to correspond with Child by letter or other communication method to maintain a relationship with her while he has remained incarcerated. Although the Court cannot prejudice Father solely for the absence of any in-person contact with Child since he has been incarcerated, the Court finds he has taken no active steps in preparing for his hoped for reunification with Child other than provide the Court with names of would be relative placement resources. Of those paternal relatives, two of them never gave DSCYF/DFS or the Court any indication that they would be willing to care for Child long-term while Father remains incarcerated. The third relative, Paternal Aunt, requested the removal of Child from her home after eight months and did not testify at the TPR trial demonstrating that she has reconsidered. Therefore, the Court finds that DSCYF/DFS has shown by clear and convincing evidence that Father has failed to adequately plan for reunification with Child, and that the grounds for termination of his parental rights in Child have been met.
B. Reasonable Efforts
Once the Court concludes that the grounds for termination of parental of rights have been met by clear and convincing evidence, the Court must also find by clear and convincing evidence that the State, or DSCYF/DFS in this case, has made "reasonable efforts" to reunify the family. Both the Adoption and Safe Families Act of 1997 and 29 Del. C. §9003 require DSCYF/DFS to "provide reunification services to families and to prepare written case plans and review those plans semi-annually."
Powell v. Dep't of Servs. for Children, Youth, and their Families, 963 A.2d 724, 738 (Del. 2008).
The record reflects that the Court has found that DSCYF/DFS has made reasonable efforts at every hearing in this matter. Furthermore, Father has been incarcerated in Delaware for the entire period that Child has been in DSCYF/DFS custody. He is currently a sentenced inmate with an expected good time-release date of May 28, 2026. As a result, the Court acknowledges that there was little to nothing DSCYF/DFS could have done to facilitate reunification with Father and Child. However, they did travel to his place of incarceration on at least one occasion and help facilitate providing Father with periodic pictures updates of Child. DSCYF/DFS has also expended considerable effort to locate an appropriate paternal relative placement resource for Child. In addition to reaching out to Paternal Uncle and Child's paternal grandmother, DSCYF/DFS initially supported Paternal Aunt in being a placement resource. The Division even worked with a case manager in Florida and provided Paternal Aunt with a childcare subsidy to try to convince Paternal Aunt to keep Child in her home, prior to Paternal Aunt's ultimate decision to ask for the removal of Child from her care in October 2018. Subsequent to Child's removal and Child's disclosures of mistreatment in the home (described in detail below), DSCYF/DFS no longer supports placement of Child back with Paternal Aunt.
As to Mother, DSCYF/DFS prepared a proposed Case Plan for her in December 2017 and was able to engage with Mother in the first few months Child was in care. However, Mother's whereabouts have been unknown since that time, and DSCYF/DFS also has had no working phone number at which it could have reached Mother. According to the Social Report, DSCYF/DFS attempted to call Mother in January 2018 but an unknown person answered the phone and said Mother could not be reached at that number. Even apart from being in contact with Mother, DSCYF/DFS attempted to place Child with her adult sister T-----'s paramour in Virginia but Virginia denied the ICPC referral. Furthermore, according to the Social Report, DSCYF/DFS also has no working phone number for T-----.
C. Best Interest of the Child
Even when one or more of the statutory grounds for termination of parental rights has been established, the Petition should not be granted unless the Court determines by clear and convincing evidence that the termination is in the child's best interest. While required to consider all factors relevant to this case in determining the child's best interests, the Court must specifically consider the factors enumerated in 13 Del. C. §722. The Court has also held that some factors may be given more weight than others in the Court's analysis. The Court will engage in a factor by factor analysis as to both Father and Mother below.
See Div. of Family Services v. Hutton, 765 A.2d 1267, 1272 (Del. 2001) (citing in re Burns, 519 A.2d 638, 643 (1986)).
13 Del. C. § 722(a) mandates that the Court consider all relevant factors including:
(1) "The wishes of the child's parents or parent as to his or her custody and residential arrangements;
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
(3) The interaction and interrelationship of the child and his or her parents, grandparents, siblings, persons cohabiting in a relationship between a husband and wife with a parent of the child any other residents of the household or persons who significant effect the child's best interest;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
(7) Evidence of domestic violence as provided for in Chapter 7A of this title, and
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense."
See Fisher v. Fisher, 691 A.2d 619, 623 (Del. 1997) (noting that "[t]he amount of weight given to one factor or combination of factors will be different in any given proceeding. It is quite possible that the weight of one factor will counterbalance the combined weight of all other factors and be outcome determinative in some situations.") --------
1. The wishes of the child's parents as to his or her custody and residential arrangements;
Mother has not participated in any hearing in this matter and her whereabouts are unknown. As a result, her express wishes are unknown. However, due to the circumstances that led to Child's entry into care, and Mother's complete failure to engage with DSCYF/DFS and the Court since the end of 2017, the Court will infer that she is not opposed to the termination of her parental rights.
Father opposes the termination of his parental rights and desires that Child be returned to the home of Paternal Aunt while he remains incarcerated. Upon his release, Father wishes to resume caring for Child himself. In support of returning Child to Paternal Aunt, despite Child's subsequent disclosures about mistreatment in Paternal Aunt's home, Father testified that he does not believe Child would make such disclosures because she has never told Father about such mistreatment or any social workers in Florida while Child remained there. Father also testified he does not believe that Paternal Aunt or Paternal Aunt's husband would mistreat Child in such ways, provided no evidence that Child's disclosures were not accurate.
Therefore, the Court finds that this factor favors granting the Petition as to Mother and denying the Petition as to Father.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
Due to the very young age of Child at the time of TPR trial, the Court did not interview her in order to ascertain her wishes. Furthermore, there was no testimony during the trial about Child's preference going forward. Therefore, the Court finds this factor to be inapplicable.
3. The interaction and interrelationship of the child with his or her parents , grandparents , siblings , person cohabiting in the relationship of husband and wife with a parent of the child , any other residents of the household or person who may significantly affect the child's best interests;
Mother dropped off Child with an unknown caregiver in early September 2017 and did not return for four days, which prompted DSCYF/DFS to eventually become involved with this case. Since that time, Mother has had almost no contact with Child other than one supervised visit in September 2017 and a few video chats prior to March 2018.
Child was in Father's care when he was arrested in June 2017. Child has not had an in-person visit with Father since then. As a result, Father admitted that Child "probably doesn't even know who I am." Ms. Randall further reported that Child does not speak about Father during therapy sessions but only "Florida Daddy," whom Ms. Randall believes to be Paternal Aunt's husband.
Paternal Aunt had Child in her care from the end of March 2018 until the end of October 2018 when she asked Child to be removed from her home because she could not care for both Child and Child's half-sister P-------. In November 2018, Ms. Randall facilitated a birthday call between Child and Paternal Aunt. According to Ms. Randall, Child immediately hid behind foster mother J--- G------ (hereinafter "Foster Mother"), cried and said "no more Crystal" to the point that Ms. Randall decided to end the call. Furthermore, Paternal Uncle and Child's paternal grandmother both refused to be placement resources for Child and the Court is not aware of either relative having any in-person contact with Child either before or after Child was temporarily placed with Paternal Aunt.
Child's half-brother, T----- (DOB 01/--/05), is also in the custody of DSCYF/DFS. However, he is placed in a different foster home. Child and T----- have had no contact since Child's return from Florida at the recommendation of Ms. Randall due to Child's fragile emotional state and the concern that contact with a family member may be detrimental for Child.
Child's younger half-sister, P-------, remains in the guardianship of Paternal Aunt. Ms. Randall reported that Child remains very concerned about P------- but Ms. Randall does not support Child having contact with P------- because having contact with P------- would require additional contact with Paternal Aunt and her husband.
In contrast, Child has a very healthy relationship with Foster Parents, who are a pre-adoptive resource. Therefore, the Court finds that Child lacks any relationship with her parents or any healthy relationship with her adult relatives, and that this factor weighs in favor of granting the Petition.
4. The child's adjustment to his or her home , school , and community;
Child has been in the pre-adoptive home of Foster Parents since October 2018. All reports indicate that Child has adjusted very well. Ms. Macer has been visiting with Child and Foster Parents on a weekly basis, both in the home and in the community, since the placement began. She reported that she has no concerns about Foster Parents' ability to care for Child and that Child has come "a long way" developmentally since she was placed in the home. She also noted that Child trusts Foster Parents, and enjoys spending time with them. Apart from a three-day period when Child was placed in a daycare at the end of March 2019, Child has stayed home with Foster Mother. While Child was at daycare, she regressed in her behavior and manifested fears that Foster Parents would not return to pick her up at the end of the day. As a result, Child was removed from daycare. When she is with Foster Parents, Child goes to play areas with them, plays with dolls and toys, and visits New Jersey with them. Foster Parents have also involved Child in activities with their extended family.
CASA, Debra Hartnett, has been visiting with Child and Foster Parents since November 2018. She noted that she has observed dramatic developmental changes in Child between November 2018 and April 2019. Initially, Child's attention level appeared "very poor" for her age and she could not respond to questions. However, at present, Child is concentrating well, building with blocks, and talking clearly and in full sentences. Ms. Hartnett also reported that Foster Parents show a lot of patience toward Child and they are very encouraging and affectionate toward her.
Ms. Randall testified that Child's brief period attending daycare in March 2019 was "very clearly" a trauma trigger for Child and that she recommends further efforts to stabilize Child before trying to give her further socialization opportunities in a traditional daycare setting. She also testified that Child's attachment to Foster Parents has increased over time such she is "securely attached" now, and that it would be traumatic for Child to remove her from Foster Parents' home. Based on her observations of Child since November 2018, Ms. Randall opined that Child has claimed Foster Parents as her parents and that Child is trying to move away from her connections with her past as evidenced by the visceral negative reaction Child has exhibited when she hears the name "W----." Ms. Randall both praised Foster Parents for Child's developmental progress since she has been in their care and for the level of Foster Mother's commitment to helping Child through therapy. As to her developmental progress, Ms. Randall reported that Child is showing rapid increases in her verbal skills and other areas of learning in part because of all the attention Foster Mother is giving her and in part because Child is in a safe and secure setting.
Therefore, the Court finds that this factor strongly favors granting the Petition so that Child can continue to thrive in a safe and secure setting, and build a deeper attachment with Foster Parents.
5. The mental and physical health of all individuals involved;
There was no testimony as to Father or Mother under this factor. Additionally, Child is up to date medically with no reported concerns. However, Child continues to have therapy sessions with Ms. Randall on a weekly basis due to her emotionally fragile state since her removal from Paternal Aunt's care in October 2018. In light of Child's poor emotional health, Ms. Randall believes Child needs the continued predictability that Foster Parents have provided her to continue the healing process, and that it would be highly detrimental to Child if she were returned to Paternal Aunt's care in Florida. Ms. Randall also testified to the negative consequences that arise when parents, such as Father, do not believe allegations of abuse raised by children, such as that children conclude that they will not make any further disclosures of abuse going forward. Therefore, because Father does not believe Child's allegations and he is requesting that Child be returned to Paternal Aunt, this factor strongly favors granting the Petition.
6. The past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
13 Del. C. § 701(a) states that "[t[he father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare and education." There is no evidence before the Court that either Mother or Father have complied with any of their rights and/or responsibilities under this factor as to Child during the entirety of Child's period in DSCYF/DFS custody. Additionally, according to the Social Report, Mother has none of her five known children in her care, and both parents have extensive investigation histories with DSCYF/DFS. Therefore, this factor strongly favors granting the Petition.
7. Evidence of domestic violence as provided for in Chapter 7A of this title; and ,
Title 13 Del. C. §706A(a) provides that any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the Court in determining the legal custody and residential arrangements in accordance with the best interests of the child. Although the Court heard no testimony at the TPR trial related to Mother's or Father's treatment of Child, the Court heard additional troubling disclosures of Child's experience in the care of Paternal Aunt and her husband, beyond those detailed at the March 2019 Permanency Review Hearing. Ms. Gentile testified that Child has reported during interviews with the Children's Advocacy Center in Delaware that she was kept in a cage, and that Paternal Aunt's husband has held her down, kicked and hit her and touched vagina. Ms. Gentile also reported that there is an open investigation in Florida related to Child's allegations of abuse. Ms. Randall also testified that Child's disclosures of abuse have been "rapid fire" during the six weeks of sessions leading up to the TPR trial. For example, Child has told Ms. Randall such things as: Paternal Aunt and her husband beat Child with a belt; Paternal Aunt touched Child's vagina; Child and P------- were kept in a dog crate; Child had to clean up after her younger sister when P------- soiled the crib; and, Paternal Aunt hit Child when she was in the bath tub and when she had potty training accidents. Therefore, even though the allegations have not been substantiated, because Father does not believe Child's disclosures and wishes Child to be returned to Paternal Aunt, the Court finds that this factor strongly favors granting the Petition. Parents have a duty to protect their children from abuse. If Father is willing to return Child to Paternal Aunt's care despite the egregious allegations, before all investigations are even concluded, then the Court has grave concerns about Father's ability to protect Child from future harm if his parental rights are not terminated.
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.
Father has a long and ongoing criminal record in Delaware. Father has eight Title 11 felony convictions and five Title 11 misdemeanor convictions, and he is currently in the early years of a ten-year sentence. He is held at Howard R. Young Correctional Center and his good time expected release date is not until May 28, 2026. In addition to his three adult felony convictions for Possession of a Firearm by a Person Prohibited for which he is incarcerated, Father also has drug possession and Resisting Arrest convictions from 2015, Assault Third Degree and Resisting Arrest convictions from 2007, Assault First Degree and Possession of a Deadly Weapon by Person Prohibited convictions from 2003 for which he was twice found in violation of probation, and drug distribution and Carrying a Concealed Deadly Weapon convictions from 1999. Father also has two findings of delinquency as a juvenile.
Mother has an active capias for her arrest issued on September 5, 2018 for failing to appear at a hearing on child support arrears. She is also listed as a sentenced inmate on "weekender or staggered sentences" with an effective date of October 13, 2017. Mother also pled guilty to Resisting Arrest in 2013, and Disorderly Conduct in 2009. In 2001, she was ordered to participate in the First Offender Option after being arrested for a DUI.
This factor strongly favors granting the Petition as to Father. Although the Court is concerned about Mother's criminal record. It does not go to the level of preventing her from exercising her parental rights in Child. As a result, this factor is neutral as to Mother.
In sum, the Court finds that 13 Del. C. §722 there is overwhelming evidence to find that it is in Child's best interests that the herein Petition be granted. Only factor 1 favors denying the Petition as to either parent. In contrast, factors 4, 5, 6, and 7 all strongly favor granting the Petition as to both parents, and factor 8 also strongly favors granting the Petition as to Father. In so finding, the Court gives special weight to how well Child has adjusted to her pre-adoptive home, the severity of the abuse allegations raised by Child at the hands of Paternal Aunt and her husband, and that it is Father's desire that Child be returned to the home of Paternal Aunt where all the abuse allegedly occurred, until such time as Father is released from incarceration.
CONCLUSION
The Court finds that DSCYF/DFS has established by clear and convincing evidence that the statutory ground for the termination of Mother's and Father's parental rights exists under 13 Del. C. § 1103(a)(5) for failure to plan for both Mother and Father, and that DSCYF/DFS has offered reasonable efforts at reunification for the parents. The Court has also found that it is in the best interest of Child for Mother's and Father's parental rights to be terminated based on an analysis of the factors pursuant to 13 Del. C. § 722.
Accordingly, the Petition for Termination of Parental Rights is hereby GRANTED as to L----- J---- and J----- W----. The parental rights of L----- J---- and J----- W---- as to T------ W---- are hereby TERMINATED and TRANSFERRED to DSCYF/DFS. The Court will schedule a Post-TPR Review Hearing in the interest of Child.
IT IS SO ORDERED.
July 1 2019
Date Written Order Issued
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/s/ ROBERT BURTON COONIN, JUDGE RBC/plr cc: Counsel
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