Opinion
File No.: CN11-05882 File No.: 18-04-11TNPetition No.: 16-15139 Petition No.: 18-10976
04-08-2019
DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES (DSCYF), Petitioners, v. S [Redacted] G [Redacted] AND R [Redacted] D B [Redacted] Respondents.
Islanda Finamore, Esquire, Attorney for Petitioner, Department of Services for Children, Youth, and Their Families Shauna Hagan, Esquire, Attorney for Respondent, [Redacted] Brian Jordan, Esquire, Attorney for Respondent, [Redacted] Alfred Lindh, Esquire, Child Attorney
UPON A PETITION FOR TERMINATION AND TRANSFER OF PARENTAL RIGHTS Date Written Decision Signed: April 8, 2019
Date Written Decision Mailed: April 8, 2019 Islanda Finamore, Esquire, Attorney for Petitioner, Department of Services for Children, Youth, and Their Families Shauna Hagan, Esquire, Attorney for Respondent, [Redacted] Brian Jordan, Esquire, Attorney for Respondent, [Redacted] Alfred Lindh, Esquire, Child Attorney In the Interests of: J [Redacted] G [Redacted] , born [Redacted] Newell, C.J.
INTRODUCTION
Pending before the Court is a Petition for Termination and Transfer of Parental Rights ("TPR") filed by the Department of Services for Children, Youth, and Their Families ("DSCYF"), against S [Redacted] G [Redacted] ("Mother") and R [Redacted] B [Redacted] ("Father") in regards to J [Redacted] G [Redacted] ("J [Redacted] "), born [Redacted] .
The Court held a TPR hearing on February 8 and March 8, 2019. Present for the hearing were: Islanda Finamore, Esquire ("Ms. Finamore"), attorney for DSCYF; Shauna Hagan, Esquire ("Ms. Hagan") , attorney for Mother; Father, represented by Brian Jordan, Esquire ("Mr. Jordan"); and Alfred Lindh, Esquire ("Mr. Lindh") on behalf of J [Redacted] . Also present for the hearing were: K [Redacted] D [Redacted] ("Ms. D [Redacted] "), DSCYF permanency worker; K [Redacted] P [Redacted] ("Ms. P [Redacted] "), DSCYF treatment worker; P [Redacted] A [Redacted] ("Ms. A [Redacted] "), the Court Appointed Special Advocate ("CASA"); M [Redacted] C [Redacted] , the CASA Coordinator; M [Redacted] Z [Redacted] , a CASA intern; M [Redacted] M [Redacted] from Children's Choice; E [Redacted] B [Redacted] ("Ms. B [Redacted] "), Father's wife; and J [Redacted] L [Redacted] ("Ms. L [Redacted] "), J [Redacted] 's counselor.
Mother consented to terminating her parental rights of both J [Redacted] and her other daughter, N [Redacted] S [Redacted] (DOB: [Redacted] ), on May 31, 2018.
Ms. D [Redacted] was assigned to the case in June 2018.
Ms. P [Redacted] has been assigned to the case since November 14, 2016.
Ms. A [Redacted] has been the CASA worker assigned to the case since May 2016 when J [Redacted] entered care.
Ms. B [Redacted] was only present in the courtroom for her testimony, not for the duration of the proceedings.
C [Redacted] M [Redacted] and S [Redacted] W [Redacted] , Padua Academy Legal Shadowing students, were also present and observed the proceeding with no objection from the parties.
DSCYF offered testimony from Father; Ms. L [Redacted] ; M [Redacted] C [Redacted] ("Ms. C [Redacted] "), a Family Services Specialist with [Redacted] , Virginia Division of Social Services ("DSS"), via telephone; C [Redacted] Y [Redacted] ("Ms. Y [Redacted] "), a Family Services Specialist who prepared an Interstate Compact for the Placement of Children ("ICPC") related to J [Redacted] 's placement in Father's home, via telephone; Ms. P [Redacted] ; Ms. D [Redacted] ; and S [Redacted] B [Redacted] ("Ms. B [Redacted] "), J [Redacted] 's foster mother, via telephone. Mr. Lindh called Ms. A [Redacted] to testify on behalf of J [Redacted] . Mr. Jordan offered testimony from Father and Ms. B [Redacted] . Mother was not present and did not testify at the proceeding. Mother submitted her consent to terminating her parental rights of J [Redacted] and her other daughter, N [Redacted] S [Redacted] ("N [Redacted] "), born [Redacted] , at the beginning of the previously scheduled TPR hearing on May 31, 2018 by and through her counsel, Ms. Hagan. The Court accepted Mother's consent as knowingly and voluntarily given. For the reasons set forth below, the Court GRANTS DSCYF's Petition for TPR. Pursuant to this Order, the parental rights of Mother and Father are TERMINATED and TRANSFERRED to DSCYF until J [Redacted] is adopted.
PROCEDURAL HISTORY & FACTUAL BACKGROUND
Ms. Finamore offered the Court's prior dependency/neglect orders in this case into evidence as DSCYF's Exhibit 4, collectively, without objection. A copy of the ICPC report from Virginia related to Father's home was also admitted as DSCYF Exhibit 1, the social report as DSCYF Exhibit 2, and a Caregiver/Child Assessment related to Mother and J [Redacted] as DSCYF Exhibit 3.
DSCYF first received a referral on January 15, 2016 indicating that Mother; J [Redacted] S [Redacted] ("Mr. Sc [Redacted] "), Mother's paramour; J [Redacted] ; and Mother and Mr. S [Redacted] 's two children, G [Redacted] S [Redacted] (DOB: [Redacted] ) and M [Redacted] S [Redacted] (DOB: [Redacted] ), were living in a home that was dirty and contained bed bugs. It was also reported that a sex offender was residing in the home, and the children were walking around the home with no clothing. On March 17, 2016, DSCYF received a second referral from St. Francis Hospital regarding possible sexual abuse of J [Redacted] after Mother brought the children to the hospital for respiratory issues. A criminal investigation was subsequently opened. Mother also had concerning DSCYF history that included untreated mental health issues of bipolar disorder, schizophrenia, and post-traumatic stress disorder ("PTSD"). Mr. S [Redacted] was also believed to be suffering from untreated mental health issues, including schizophrenia, Attention Deficit Hyperactive Disorder ("ADHD"), bipolar disorder, multiple personality disorder, anxiety, and PTSD.
DSCYF received a third referral on April 8, 2016 indicating that the family had been evicted from the home they were renting on March 20, 2016 and moved into a motel. A team decision-making ("TDM") meeting was held on April 22, 2016, and it was agreed that Mother and Mr. S [Redacted] could keep custody of the children if they engaged in mental health treatment. Otherwise, DSCYF would file for custody. The family moved into the YWCA Home Life Management, but DSCYF learned that Mother and Mr. S [Redacted] were going to be asked to leave the program in June due to noncompliance. Further, they had not engaged in mental health treatment and were running out of food stamps. DSCYF filed for custody of all three children on May 25, 2016, and Mother and Mr. S [Redacted] were removed from the YWCA program.
The Court signed an Ex Parte Order awarding temporary emergency custody to DSCYF on May 25, 2016. The children were placed together in the foster home of Ms. B [Redacted] in [Redacted] , Delaware. Father resided out of state in Virginia and had no contact with J [Redacted] . According to the social report admitted into evidence, Father initially denied that J [Redacted] was his child. He later reported to DSCYF that he provided sperm to his neighbors, a homosexual couple who wanted children. Mother then obtained his sample, which is how J [Redacted] was conceived. Mother denied this claim.
A Preliminary Protective Hearing was conducted on June 1, 2016. Mother and Mr. S [Redacted] were present for the hearing, but Father failed to appear. Mother testified that she had moved in with her sister, who also had a Tier 1 registered sex offender living in the home. Mother was four months pregnant and unemployed. DSCYF admitted into evidence several relative notification letters mailed to relatives, including Father. Father told DSCYF prior to the hearing that he could not care for J [Redacted] due to inadequate finances. He also had a prior DSCYF history with Mother concerning their other daughter, N [Redacted] B [Redacted] ("N [Redacted] "), born [Redacted] . The history indicated that Father had issues with impulsivity, anger, and domestic violence between himself and Mother. He had not had any contact with J [Redacted] and believed she should be adopted. Based upon the evidence, the Court found probable cause to believe that J [Redacted] , G [Redacted] , and M [Redacted] were dependent children and that it was in their best interest for custody to remain with DSCYF. The Court also found that DSCYF exercised reasonable efforts to prevent the unnecessary removal of the children from their home and to reunify the family. The children remained in the home of Ms. B [Redacted] .
An Adjudicatory/Dispositional Hearing was held on June 30, 2016. Mother and Mr. S [Redacted] attended the hearing, but Father again failed to appear. Mother and Mr. S [Redacted] stipulated to a finding of dependency due to unstable housing. They met with the DSCYF worker at the time, H [Redacted] Y [Redacted] l ("Ms. Y [Redacted] "), on June 24, 2016 and signed their individual case plans, which were admitted into evidence at the hearing. Mother's case included the following elements: attend mental health therapy regularly and comply with any medication recommendations; resolve all legal issues and abide by a no-contact order; obtain and maintain stable housing for a minimum of four months; complete a parent education course and engage in services with her assigned parent aide; obtain and maintain stable employment or provide verification of income from other suitable sources; and complete a domestic violence and anger management program.
The three children's Child Service Plans were also collectively admitted into evidence at the hearing as DSCYF 3.
Mother was charged with offensive touching as a result of a domestic violence incident with Mr. S [Redacted] . A no unlawful contact order was in place, and the charges were still pending at the time of the hearing.
At the hearing, Ms. Y [Redacted] informed the Court that she reached out to Father via mail on June 1, 2016. Father expressed that he was not interested in case planning with DSCYF towards reunification with J [Redacted] . He indicated that he had not seen J [Redacted] since she was an infant and was incapable of financially providing for her. Father did not support DSCYF's case planning with Mother and expressed that J [Redacted] should be adopted. According to Ms. Y [Redacted] , Father received notices about the court dates but had no intention of appearing. The children remained placed with Ms. B [Redacted] . Based on the stipulations and Father's unwillingness to case plan, the Court found that all three children were dependent by a preponderance of the evidence and that it was in their best interest to remain in the custody of DSCYF. The Court also found that DSCYF made reasonable efforts to prevent the unnecessary removal of the children from their home and was making reasonable efforts towards the permanency plan in effect, which was reunification.
A Review Hearing was conducted on September 7, 2016. Mother and Mr. S [Redacted] were present, and Father failed to appear. Father was still uninterested in reunification with J [Redacted] , and he had made no efforts to contact DSCYF since the last hearing. The Court found that Mother and Mr. S [Redacted] had been "generally cooperative" in working towards completing their case plans but agreed with DSCYF that additional attention was needed to the elements of mental health treatment and counseling. Based on the evidence, the Court found that J [Redacted] , G [Redacted] , and M [Redacted] continued to be dependent children by a preponderance of the evidence and that it was in their best interests for custody to remain with DSCYF. The Court also found that DSCYF was making reasonable efforts towards the permanency plan in effect, which was reunification. The children remained in Ms. B [Redacted] 's home.
Mother gave birth to N [Redacted] on [Redacted] , and the Court signed an Ex Parte Order awarding temporary emergency custody to DSCYF based on Mother and Mr. S [Redacted] 's mental health issues and the active case with DSCYF concerning the other children. A Preliminary Protective Hearing concerning N [Redacted] was held on November 9, 2016, and the Court found that N [Redacted] continued to be a dependent child and ordered that custody remain with DSYCF.
On November 30, 2016, the Court was scheduled to conduct a Review Hearing in the interests of J [Redacted] , G [Redacted] , and M [Redacted] , as well as an Adjudicatory Hearing in the interest of N [Redacted] . Father appeared in Court for the first time in the matter and requested appointment of counsel. He told the Court that he resided in Virginia and was capable of caring for J [Redacted] as well as Mother's other three children in DSCYF's custody. Father also represented that he had custody of his older daughter-in-common with Mother, N [Redacted] . The Court continued the hearing due to the contested nature of the matter and Father's appearance and request for counsel. In the interim, the children were to remain in DSCYF's custody.
A Second Review Hearing/Adjudicatory Hearing was conducted on February 9, 2017. Mother and Father were present, as well as Ms. B [Redacted] . G [Redacted] and M [Redacted] had been relocated to another foster home as Ms. B [Redacted] was no longer able to manage all four children on her own. J [Redacted] and N [Redacted] remained placed together with Ms. B [Redacted] . An ICPC referral was completed for Father's home in Virginia, and Father and Ms. B [Redacted] were scheduled for fingerprinting. If the ICPC was approved, DSCYF planned to introduce Father into J [Redacted] 's life. J [Redacted] 's therapist, Ms. L [Redacted] , explained to Father that it would be crucial for him to participate in therapy with J [Redacted] in the event that the ICPC was approved. Based on the stipulations and evidence presented, the Court found that J [Redacted] and her three siblings remained dependent children by a preponderance of the evidence and that it was in their best interest to remain in DSCYF's custody. Further, the Court found that DSCYF was making reasonable efforts towards the permanency plan in effect, which was reunification.
The Court notes that the hearing remained a Second Review Hearing related to J [Redacted] as Father had received notice for the prior hearings, expressed to DSCYF that he did not want to case plan, and failed to appear to the proceedings.
DSCYF filed a Motion to Change Goal for J [Redacted] on April 10, 2017. The Permanency Planning Committee ("PPC") reviewed the case on March 21, 2017 and recommended a goal change from reunification to the concurrent goals of reunification and TPR/adoption as reunification efforts had been unsuccessful and both parents failed to plan. While the Child Attorney and CASA were in support of the motion, Mother requested that the motion be denied.
A Third Review Hearing was conducted on May 15, 2017, and both parents attended as well as Ms. B [Redacted] . The ICPC remained pending as backgrounds checks for Father and Ms. B [Redacted] needed to be completed, as well as a psychological evaluation for Father. The Court deferred DSCYF's pending Motion to Change Permanency Goal until the outcome of the ICPC. A [Redacted] R [Redacted] ("Ms. R [Redacted] ") was contacted by DSCYF to conduct a caregiver-child assessment related to Mother, Mr. S [Redacted] , and the four children, and she testified at the hearing regarding her findings. Due to various factors, including consistently untreated mental health needs, extensive history of homelessness due to financial instability, and difficulties in parenting all four children at once, Ms. R [Redacted] testified that she would not recommend reunification with Mother and Mr. S [Redacted] at that time and did not believe reunification would be possible within the next five years. Based upon the evidence presented, the Court found that the children remained dependent children by a preponderance of the evidence and that it was in their best interest to remain in DSCYF's custody. The Court also found that DSCYF was making reasonable efforts towards the permanency plan in effect, which remained reunification.
Ms. R [Redacted] 's report was admitted into evidence at the hearing, as well as at the instant TPR hearing. The Court notes that Ms. R [Redacted] did not address J [Redacted] and Mr. B [Redacted] as the report pertained only to Mother and Mr. S [Redacted] .
A Permanency Hearing was held on July 27, 2017. Mother was present for the hearing, and Father notified the Court that he was unable to attend due to car trouble. Father completed a psychological evaluation on July 19, 2017, but the results were not yet released as of the date of the hearing. DSS in Virginia would render its decision on the ICPC once the results were reviewed. If approved, DSCYF planned to arrange visitation for J [Redacted] in Father's home prior to placement. All parties acknowledged that J [Redacted] would not be dependent as to Father if there were no issues with his psychological evaluation and the ICPC was approved. DSCYF noted that J [Redacted] did not seem to be strongly bonded to Mother and/or Mr. S [Redacted] and stated that if J [Redacted] was placed with Father, contact with Mother and Mr. S [Redacted] should continue only if recommended by Ms. L [Redacted] .
DSCYF also reported that, although they have historically done well when provided with services through DSCYF, there were ongoing concerns for Mother and Mr. S [Redacted] 's ability to provide long-term care for the children when services would be removed. However, because they had been compliant with services throughout the case and nearly satisfied their respective case plans, the Court implemented a 60-day trial reunification of only G [Redacted] and M [Redacted] in Mother and Mr. S [Redacted] 's home. The Court declined to attempt a trial reunification with Mother and J [Redacted] due to the pending results of Father's ICPC and the potential of another placement disruption. The Court found that, if the ICPC was approved, such placement would be appropriate as J [Redacted] would not be dependent as to Father.
DSCYF reiterated its request for goal change related to J [Redacted] from reunification to the concurrent goals of reunification with Father if his ICPC is approved and TPR/adoption. The Court deferred its decision on DSCYF's request until the next hearing when the outcome of the ICPC would be determined. Based on the evidence presented, the Court found that all four children, including J [Redacted] , continued to be dependent children and that it was in their best interests for custody to remain with DSCYF. The Court also found that DSCYF was making reasonable efforts towards the permanency plan in effect, which was reunification.
DSCYF also made a Motion for Goal Change related to G [Redacted] and M [Redacted] to the concurrent goals of reunification and permanent guardianship or TPR/adoption. N [Redacted] 's case was not yet presented to the PPC.
A Post-Permanency Review Hearing was conducted on October 4, 2017. Mother was present for the hearing, and Father participated via telephone. The Court ordered the trial reunification period for G [Redacted] and M [Redacted] to continue for the duration of the 60 days, but DSYCF still expressed concerns regarding Ms. R [Redacted] 's assessment, Mother's missed mental health appointments, the chaotic visits with all of the children, and Mother and Mr. S [Redacted] 's financial difficulties. DSCYF received an approved ICPC for Father's home in Virginia with a full home study assessment, which was admitted into evidence. Ms. P [Redacted] testified that the report was positive towards Father and Ms. B [Redacted] 's home, and the family was working towards preparing the household for J [Redacted] . Both Father and Ms. B [Redacted] were employed full-time and had stable housing. Home-based counseling was implemented, and N [Redacted] was prepared for the possibility of J [Redacted] moving in with them. Because J [Redacted] had never known Father, DSCYF wanted to wait until after the ICPC was approved to introduce him. When it was approved, DSCYF planned for Father and J [Redacted] to initially meet in Delaware, and Father agreed to the arrangement. The family and J [Redacted] would then have additional contact through phone calls and weekend visits if J [Redacted] felt comfortable.
Based on the evidence presented, the Court found that all four children were dependent, and it was in their best interests for custody to remain with DSCYF. Further, the Court found that DSCYF was making reasonable efforts to achieve the permanency goal in effect, which remained reunification. DSCYF did not make any application on the Motion to Change Goal regarding J [Redacted] , G [Redacted] , and M [Redacted] due to Father's approved ICPC and the trial reunification period in Mother and Mr. S [Redacted] 's home.
A Second Post-Permanency Hearing was conducted on November 27, 2017. Mother appeared at the hearing, and Father participated via telephone. DSCYF requested a goal change regarding N [Redacted] from reunification to the concurrent goals of reunification and TPR. Mother and Mr. S [Redacted] were exhibiting some difficulties with G [Redacted] and M [Redacted] in the home, and DSCYF was not comfortable returning another child to the home. Both Mother and Mr. S [Redacted] agreed, and the Court granted the Motion for Goal Change. Since Father's ICPC was approved, J [Redacted] had two weekend visits and spent the Thanksgiving holiday in Father's home in Virginia. DSCYF was working to schedule an official placement date during J [Redacted] 's break from school during the Christmas holiday. The ICPC required DSCYF to retain custody of J [Redacted] for a period of time after the placement occurs. The Court found that all four children, including J [Redacted] , were dependent, and it was in their best interests to remain in DSCYF's custody. Further, the Court found that DSCYF was making reasonable efforts to finalize the permanency plan in effect, which was reunification for all of the children at the time of the hearing.
J [Redacted] was placed with Father in Virginia on December 23, 2017. On February 24, 2018, DSCYF received a message from Ms. B [Redacted] concerning an incident of domestic violence between Father and Ms. B [Redacted] . Their children were allegedly in the home, including J [Redacted] , and were witnesses to the incident. The police were called, and protective orders were issued. After the incident, Father initially stayed at a neighbor's home with the children. The DSS workers in Virginia had concerns regarding the incident, as well as Father's potential substance abuse and untreated mental health issues. Father agreed to a drug test and tested positive for marijuana, Tricyclic antidepressants ("TCA"), and benzodiazepines ("benzos"). On March 9, 2018, Father reported to Ms. C [Redacted] , the DSS worker monitoring J [Redacted] 's placement, that he had reconciled with Ms. B [Redacted] and moved back into the home with the children. J [Redacted] was removed from Father's home and returned to Delaware on March 12, 2018 as DSCYF had concerns regarding Father's untreated mental health issues, possible substance abuse, and his relationship with Ms. B [Redacted] . J [Redacted] a was again placed in the foster home of Ms. B [Redacted] with N [Redacted] .
The Court had previously scheduled a Third Post-Permanency Review Hearing related to J [Redacted] on May 31, 2018. Immediately following the hearing, the Court scheduled a TPR Hearing for N [Redacted] . On April 4, 2018, DSCYF filed a TPR Petition against Mother and Father related to J [Redacted] . It then filed a Motion to Consolidate the TPR hearings of both J [Redacted] and N [Redacted] on May 7, 2018, and a Motion for the Telephonic Testimony of Ms. C [Redacted] on May 9, 2018. In an order dated May 14, 2018, the Court granted the motions and scheduled a TPR hearing for both J [Redacted] and N [Redacted] on May 31, 2018.
Following that hearing, the Court scheduled a separate Third Post-Permanency Review Hearing related to G [Redacted] and M [Redacted] .
On the day of the TPR hearing, Mother was present and consented to the TPR petitions for J [Redacted] and N [Redacted] by and through her counsel, Ms. Hagan. Mr. S [Redacted] also consented to the TPR petition of N [Redacted] by and through his counsel, Julie Yeager, Esquire ("Ms. Yeager"). Father contested the TPR petition related to J [Redacted] by and through his counsel at the time, David Holloway, Esquire ("Mr. Holloway"). The Court accepted Mother and Mr. S [Redacted] 's consents as knowingly and voluntarily made. By request of the parties, the Court also continued the TPR for J [Redacted] to allow more time for the parties to contact the necessary individuals from DSS in Virginia to testify. The hearing was rescheduled for July 27, 2018.
Mr. Holloway was initially appointed as Father's attorney when Father appeared in the matter. Mr. Jordan was appointed as Father's attorney following the expiration of Mr. Holloway's contract with the Family Court.
On July 23, 2018, DSCYF filed a Motion for a Continuance indicating that counsel recently received records from the State of Virginia pertaining to the case and required additional time to review the records and determine how to proceed. With no opposition from any parties, the Court rescheduled the TPR hearing for October 30, 2018. DSCYF filed another Motion for a Continuance on October 26, 2018 requesting additional time to work with Father. With no opposition from the parties, the Court granted the motion but conducted a teleconference on October 30, 2018 with counsel only. During the teleconference, Ms. Finamore reported that Father had changed residences to a different county in Virginia, and DSCYF was working to obtain his new address. Therefore, it was uncertain whether a new ICPC would need to be completed, and DSCYF was working to obtain additional records from Virginia. Ms. Finamore told the Court that the intent was to proceed with a TPR, but DSCYF wanted to ensure that all the necessary information was received before proceeding. On behalf of Father, Mr. Jordan indicated that Father still intended to oppose the TPR. The Court rescheduled the TPR hearing for February 8, 2019.
On behalf of J [Redacted] , Mr. Lindh filed a Motion to Interview J [Redacted] on January 16, 2019 regarding her preferences as to her custodial and residential placement. With no opposition from the parties, the Court granted the motion and interviewed J [Redacted] on February 5, 2019.
This TPR Hearing was conducted on February 8 and March 8, 2019. Mother submitted her consent to terminating her parental rights of J [Redacted] on May 31, 2018, and the Court accepted the consent. Father was present at the instant hearing and contested the TPR petition by and through his counsel, Mr. Jordan. Therefore, the Court's analysis of the evidence and the parties' positions related to Father is as follows.
Positions of the Parties
DSCYF believes there is clear and convincing evidence that it is in J [Redacted] 's best interest for the parental rights of Mother and Father to be terminated and transferred to DSCYF on the grounds of failure to plan pursuant to 13 Del. C. § 1103(a)(5). DSCYF argued that a second ICPC was requested after J [Redacted] was removed from Father's care and returned to Delaware. The State of Virginia denied the request and indicated that J [Redacted] cannot be placed with Father. Other than his and Ms. B [Redacted] 's testimony, Father has not provided any information, witnesses, exhibits, or documentation that he has completed any mental health counseling, substance abuse services, or domestic violence counseling, which were DSCYF's main concerns that resulted in J [Redacted] 's removal from his home. DSS in Virginia provided assistance to maintaining J [Redacted] 's placement in Virginia, and DSCYF contacted the family monthly regarding its concerns and expectations for reunification.
DSCYF also argued that a TPR is in J [Redacted] 's best interest. DSCYF emphasized J [Redacted] 's wishes and how she has consistently verbalized and demonstrated that she does not want to return to Father's home. According to DSCYF, a change in placement at this time would be detrimental to her emotional health.
Father wishes to be reunified with J [Redacted] . On behalf of Father, Mr. Jordan argued in closing that DSCYF did not meet its burden indicating that Father has failed to plan by clear and convincing evidence. He stated that Father sufficiently prepared his home in anticipation of J [Redacted] 's arrival, which included schooling and counseling services in Virginia. Both Father and Ms. B [Redacted] are employed and can financially provide for J [Redacted] . According to Mr. Jordan, Father's other child, A [Redacted] , was brought into Father's care suddenly, which put a strain on Father and Ms. B [Redacted] 's relationship. The subsequent stress led to the domestic dispute that resulted in J [Redacted] 's removal from the home. However, since that time, Father and Ms. B [Redacted] have engaged in marriage counseling and improved their relationship. Mr. Jordan further argued that DSCYF did not provide Father with a case plan.
According to Mr. Jordan, it is in J [Redacted] 's best interest to return to Father's care. While in Virginia, J [Redacted] attended school, engaged in activities, received counseling services, and had a loving relationship with her other siblings in the home, especially her sister, N [Redacted] .
On behalf of J [Redacted] , Mr. Lindh echoed DSCYF's position that it is in J [Redacted] 's best interest for the parental rights of Father to be terminated at this time. He emphasized that Father chose not to engage in case planning for reunification when J [Redacted] was initially in DSCYF's custody and had no role in her life until she was placed with him, which constitutes abandonment. However, Mr. Lindh agreed with the Court that DSCYF's TPR petition pled that Father's parental rights should be terminated on the grounds of failure to plan, not abandonment. Regardless, Mr. Lindh argued that Father was given an opportunity to be J [Redacted] 's primary caregiver, and she was removed from his home less than three months later. J [Redacted] has experienced significant uncertainty and instability in her life, and if the Court denies the TPR petition, J [Redacted] would once again be removed from a home where she has prospered and will be denied permanency. Therefore, it is in J [Redacted] 's best interest for Mother and Father's parental rights to be terminated and transferred to DSCYF.
DISCUSSION
A. Legal Standard for Termination of Parental Rights
The United States Supreme Court has held that a parent's interest in his or her children is one of the "oldest of the fundamental liberty interests recognized by [the] Court." In addition, the Supreme Court has found that so long as a parent is fit, "there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Likewise, the Delaware Supreme Court has found that parental rights are "fundamental liberties" which may not be abrogated absent compelling circumstances.
Troxel v. Granville, 530 U.S. 57, 65 (2000).
Id. at 68-69.
In re Stevens, 652 A.2d 18, 24 (Del. 1995). See also Daber v. Div. of Child Protective Srvs., 470 A.2d 723, 726 (Del. 1983).
Although parental rights are important liberty interests, both the United States Supreme Court and the Delaware Supreme Court have acknowledged that the State has the power to limit parental rights to protect a child's health and welfare. In addition, the federal Adoption and Safe Families Act of 1997 ("ASFA") emphasizes the importance of child safety and a child's need for permanency by placing limits on the amount of time in which parents may rehabilitate themselves and assume their parental responsibilities, provided that the State has developed a meaningful case plan for the parents and made reasonable efforts to reunify the family. In accordance with Court rules, a hearing addressing permanency for children in foster care must be "held not later than 12 months from the time the child has 'entered foster care.'"
See Prince v. Massachusetts, 321 U.S. 158, 166-167 (1944); In the Matter of Burns, 519 A.2d 638, 645 (Del. 1986); See also Daber, 470 A.2d at 726 ("A society which arrogates to itself the power to intervene and disrupt [the parent-child relationship] can do so only for the most compelling reasons necessary to correct or protect a child from circumstances which directly threaten or affect the minor's physical or emotional health.").
In re K.L.T., 2001 WL 493113 (Del. Fam. Ct. Jan 22, 2001).
Del. Fam. Ct. Civ. R. 216 referencing Del. Fam. Ct. Civ. R. 209(d).
In Delaware, the statutory standard for terminating parental rights consists of a two-part analysis. First, the Court must be satisfied that one or more of the enumerated statutory grounds set forth in 13 Del. C. §1103(a) has been established. If the statutory basis is failure to plan, the Court must review whether the State developed a meaningful case plan and made reasonable efforts to reunify the family or avoid out of home placement. Second, the Court must find that severing the parental ties is in the best interests of the child as that term is defined in 13 Del. C. § 722.
See Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
Id. See also In re Hanks, 553 A.2d 830, 833 (Del. 1982).
D.F.S. v. N.S. and R.T., 2009 WL 5206720, at *18 (Del. Fam. Ct. Dec 11, 2009).
In re Hanks, 553 A.2d at 833.
A clear and convincing standard is required for terminating parental rights due to the permanent nature of the proceedings and the importance of the parental rights at stake. The clear and convincing standard requires greater factual certainty than a preponderance of the evidence standard, thereby striking a fair balance between the rights of the parent and the State's legitimate concerns. The Delaware Supreme Court has described the clear and convincing standard of proof as "evidence that 'produces in the mind of the trier of fact an abiding conviction that the truth of [the] factual contentions [is] 'highly probable.'" In addition, clear and convincing evidence "means to prove something that is highly probable, reasonably certain, and free from serious doubt."
See Patricia A.F. v. James R.F., 451 A.2d 830, 832 (Del. 1982).
Id.
Hudak v. Procek, 806 A.2d 140, 147 Del. Supr. (2002). Citing Cerberus Int'l v. Apollo Mgmt., 794 A.2d 1141 (Del. Supr. 2002) (quoting In re Rowe, 566 A.2d 1001, 1003 (Del.Jud.1989)). See also Shipman v. Division of Social Services, 454 A.2d 767, 769 (Del.Fam.Ct.1982) (holding that clear and convincing means the degree of proof that will produce in the mind of the fact-finder "a firm belief or conviction as to allegations sought to be established"), aff'd, Betty J.B. v. Division of Social Services, 460 A.2d 528 (Del. Supr.1983). Accord 29 Am. Jur.2d Evidence § 157 (1994) (collecting cases); 2 John W. Strong, Mccormick On Evidence § 340 (5th ed. 2001) ("It has been persuasively suggested that [the clear and convincing standard] could be more simply and intelligibly translated to the jury if they were instructed that they must be persuaded that the truth of the contention is 'highly probable.'").
Clark v. Clark, 994 A.2d 744 (Table) *3 (Del. Supr. 2010).
The Court makes the following findings of fact and conclusions of law under the clear and convincing standard described above. Due to Mother's consent, the Court will make its determination as it relates to Father.
B. Statutory Grounds for Termination of Parental Rights
Pursuant to 13 Del. C. § 1103(a)(5), DSCYF seeks to terminate and transfer the parental rights of Father to DSCYF on the ground of failure to plan.
The Court finds that there is clear and convincing evidence showing that Father has failed to plan for J [Redacted] a's physical and mental needs, as well as her emotional health and development. Furthermore, J [Redacted] has been in DSCYF care for almost three years as of the date of the hearing, and the failure to terminate Father's parental rights would lead to additional instability in J [Redacted] 's life.
13 Del. C. §1103(a)(5). The Court notes that the statutory ground of failure to plan can be established if the parent(s) "are not able, or [emphasis added] have failed, to plan adequately." Here, the Court finds that there is clear and convincing evidence establishing that Father has failed to plan for J [Redacted] 's needs.
The Court finds that Father has failed to plan for J [Redacted] 's physical and emotional needs, as well as her emotional health and development. Father initially expressed that he was uninterested in case planning for reunification and wished for J [Redacted] to be adopted. Therefore, DSCYF prepared case plans for Mother and Mr. S [Redacted] with the goal of reunification in their home. When Father appeared in the matter, DSCYF initiated an ICPC request in Virginia, which was approved. J [Redacted] was placed in Father's home on December 23, 2017.
J [Redacted] was removed from Father's home and returned to Delaware in March 2018 following a domestic dispute between Father and Ms. B [Redacted] , which will be discussed further. J [Redacted] remained in Father's care for an additional two and a half weeks after the incident to provide Father with the opportunity to address the concerns of DSCYF and DSS in Virginia. When J [Redacted] returned to Delaware, Ms. P [Redacted] was in contact with Father to inform him of the concerns that needed to be addressed for reunification, which included mental health counseling, domestic violence counseling, substance abuse services, stable employment, and the resolution of all pending legal issues, including the protective orders issued after the incident. Father informed DSCYF that he was participating in individual and marriage counseling with J [Redacted] H [Redacted] ("Mr. H [Redacted] ") and that the protective orders filed by Father and Ms. B [Redacted] had been dissolved. However, to this date, Father has not provided DSCYF, DSS in Virginia, CASA, Ms. L [Redacted] , or the Court with any written verification, records, or documentation that he has engaged in any of the recommended services since the date of the domestic incident.
Following the domestic dispute, DSCYF requested a second ICPC to be conducted related to Father's home. Ms. Y [Redacted] was the Family Services Specialist in Virginia who prepared the second ICPC and testified at the instant hearing. She met with Father on December 20, 2018, December 28, 2018, and January 11, 2019 and completed the ICPC on January 28, 2019. Ms. Y [Redacted] denied J [Redacted] 's placement with Father and indicated that J [Redacted] cannot be placed with Father at this time. In her report, Ms. Y [Redacted] expressed two main factors that resulted in her decision to deny placement. First, she was concerned how J [Redacted] 's needs would be met in the home while Father and Ms. B [Redacted] were caring for three other children, including one with severe behavioral issues. The family already received intensive home therapy for one child in the home, and Ms. Y [Redacted] believed that J [Redacted] 's transition back to the home, as well as her stability in the household, would likely be affected.
The ICPC report was admitted into evidence as DSCYF 1 without objection. It was added as an addendum to the first report.
Second, Ms. Y [Redacted] was concerned about the domestic dispute between Father and Ms. B [Redacted] . Her records also indicated possible threatening of the children and presence of marijuana in the home. Ms. Y [Redacted] testified that she did not receive any documentation that Father engaged in counseling or completed a domestic violence program. She asked for records and information related to Father's mental health services and only received a verbal report from Mr. H [Redacted] , who indicated that he provides "family services." She requested a mental health statement from a doctor employed by the Virginia Psychiatric and Family Services which would determine whether Father's physical or mental health affected the children's health. The statement was never completed.
On cross examination, Ms. Y [Redacted] reported that she had visited Father's home and did not see any marijuana.
Specifically outlined in the ICPC report that was admitted into evidence, Ms. Y [Redacted] stated that DSCYF had concerns after the domestic dispute between Father and Ms. B [Redacted] , which included Father's mental health status, possible substance abuse, housing and employment stability, and his ability to care for J [Redacted] . The ICPC report also stated that, since J [Redacted] returned to Delaware, DSCYF requested verification of the family's employment and income, participation in mental health treatment, participation in counseling to address the domestic dispute, and documentation regarding the resolution of domestic-related legal charges. Although Father and Ms. B [Redacted] reported that they were receiving marriage counseling services through the C [Redacted] A [Redacted] of Virginia ("CAVA"), Ms. Y [Redacted] never obtained documentation verifying the progress and participation, despite her request.
DSCYF Exhibit 1, p. 1.
DSCYF Exhibit 1, p. 2.
Further, as noted in the ICPC report, Father received recommendations following a psychological evaluation conducted in 2017 prior to J [Redacted] 's placement with him that included the following: participation in outpatient therapy that is trauma-focused; ongoing monitoring of mental health symptoms and medication management; increasing social supports such as a parent support group; and a thorough medical evaluation to assess health concerns and history of high blood pressure. Similarly, a request to obtain documentation verifying progress and participation in these services was made, but a response was never received.
DSCYF Exhibit 1, p. 3.
An additional assessment of Father's home was completed after J [Redacted] returned to Delaware by another Family Services Specialist in Virginia, S [Redacted] P [Redacted] ("Ms. P [Redacted] "). According to Ms. C [Redacted] , a letter following the investigation was sent to the parties. It stated that the children were safe, but Father needed to obtain additional, independent services. To Ms. C [Redacted] 's knowledge, Father did not obtain those services.
According to Father and Ms. B [Redacted] , the domestic incident was caused by the stress of caring for four children, especially Father's son, A [Redacted] , who has severe behavioral difficulties, as well as a need for services. They testified that they are engaged in marriage counseling with Mr. H [Redacted] , and Father also participates in individual counseling with him. According to Father, sessions with Mr. H [Redacted] occur on Saturdays when Mr. H [Redacted] either travels to their home or he and Father go fishing. On the first day of the TPR proceeding, Father indicated that he has had approximately four or five sessions with Mr. H [Redacted] thus far. On the second day of the proceeding just a month later, Father testified that he has had 15 total sessions, which conflicts with his testimony that he engages in weekly counseling.
******
Based upon the evidence outlined above, the Court finds clear and convincing evidence that Father has failed to plan for J [Redacted] 's physical and emotional needs. J [Redacted] 's placement in Virginia lasted less than three months until she was returned after a domestic dispute between Father and Ms. B [Redacted] . Although the family may have been overwhelmed with four children in the home, Father has not taken the required action in addressing the problems and concerns that led to J [Redacted] 's removal, despite extensive time and numerous opportunities to do so.
Besides their testimony, the Court received no evidence, such as counseling records or testimony from Mr. H [Redacted] , to verify Father and Ms. B [Redacted] 's engagement in counseling, the qualifications of Mr. H [Redacted] to conduct such counseling, and the type of counseling itself. Further, DSCYF and DSS in Virginia have consistently and adamantly requested that Father produce any records that Father was engaging in the recommended services. The Court notes that this TPR proceeding occurred over a year from the incident and lasted over the course of one month. Father has been given ample time and opportunities to provide DSCYF, DSS in Virginia, or CASA with records of these services. The Court also finds that Father's testimony was not credible related to the type of counseling he receives from Mr. H [Redacted] , Mr. H [Redacted] 's qualifications, and the frequency of sessions.
Father reported that he and Mr. H [Redacted] have a "personal relationship," which is why they sometimes go fishing.
The Court also notes that individual and marriage counseling was not the only concern raised by DSCYF and expressed to Father over the past year. DSCYF and DSS in Virginia were also concerned with domestic violence and substance abuse, which DSCYF conveyed to Father numerous times in the months leading up to this proceeding. Father failed to engage in or provide verification of his engagement in any of these services.
DSCYF argued that the second request for an ICPC was denied related to Father's home, which supports the claim of Father's failure to plan. The Court notes that a denial of an ICPC from another state is not applicable if the child is not dependent as to the out of state parent. However, the Court agrees with DSCYF that the facts in this case are significantly different than those found in the case that made that finding. In In re DSCYF v. B.T.B. & M.B., the mother had successfully completed the elements of her case plan for the eight months prior to the hearing. The Court found that the mother had taken all steps necessary in order to have the child returned to her care, and the Court received "ample evidence" sufficient for it to conclude that she was able to provide appropriate and necessary care to the child. In the instant case, the placement was denied due to Father's continued, unresolved issues as well as the concern for J [Redacted] to adjust in a home that is overwhelmed with children and needing many services. Therefore, due to Father's failure to submit verification and records that he obtained the recommended services, the Court finds that the denial of the second ICPC is further proof that Father has failed to plan for J [Redacted] 's needs.
In re DSCYF v. B.T.B. & M.B., 2018 WL 2076253 (Del. Fam. Ct. March 14, 2018).
Id. at 13.
Id.
In addition to this finding, the statute requires that the Court find clear and convincing evidence that one or more of the factors listed in 13 Del. C. § 1103(a)(5)a. 1-5 has been met.
1. The child has been in the care of the Department or licensed agency for a period of 1 year , or for a period of 6 months in the case of a child who comes into care as an infant , or there is a history of previous placements of this child;
J [Redacted] has been in DSCYF's care for almost three years as of the date of this hearing.
5. Failure to terminate the relationship of parent and child will result in continued emotional instability or physical risk to the child. In making a determination under this paragraph , the Court shall consider all relevant factors , including:
a. Whether the conditions that led to the child's placement , or similar conditions of a harmful nature , continue to exist and there appears to be little likelihood that these conditions will be remedied at an early date which would enable the respondent to discharge parental responsibilities so that the child can be returned to the respondent in the near future;
DSCYF was granted custody of J [Redacted] in May 2016 due to Mother's financial and housing instability as well as mental health issues. J [Redacted] was placed in Father's care in December 2017 and then returned to the foster home of Ms. B [Redacted] in March 2018 after the domestic incident. As previously indicated, Father was aware of DSCYF's concerns and recommendations needed to reunify with J [Redacted] . However, he has refused to engage in or provide verification of any such services as of the date of the TPR proceeding. If the domestic incident, subsequent protective orders, and housing changes were a result of undue stress on the family as Father and Ms. B [Redacted] testified, the Court finds that those problems still exist in the home without the recommended services.
b. The respondent's efforts to assert parental rights of the child , and the role of other persons in thwarting the respondent's efforts to assert such rights;
Father has made limited efforts to assert his parental rights of J [Redacted] . Father was not involved in J [Redacted] 's life until she was placed in his home in December 2017 when she was six years old. Although his housing and financial status is appropriate, J [Redacted] was removed from the home after approximately two and a half months following a domestic dispute between Father and Ms. B [Redacted] . Since J [Redacted] 's return to Delaware, Father has not addressed any of the concerns that resulted in her removal, including domestic violence counseling, mental health services, and substance abuse services. As previously indicated, Father testified that he is currently receiving individual and marriage counseling with Mr. H [Redacted] , but he has still not produced any evidence of these session, records of his attendance, or Mr. H [Redacted] 's qualifications. Since the domestic dispute, Father has had over a year to provide any verification that he has engaged in the required services to be reunified with J [Redacted] . He has not done so.
Further, the Court finds that Father has acted in a passive role regarding his parental rights of J [Redacted] . Undisputed testimony indicated that Ms. B [Redacted] has been the primary individual communicating with DSCYF, Ms. L [Redacted] , CASA, and Ms. B [Redacted] regarding J [Redacted] . During his testimony, Father could not recall the name of the school J [Redacted] attends in Delaware or her primary care doctor. Additionally, from the time of the previously scheduled TPR hearing in May 2018 to October 2018, DSCYF did not have any contact from Father. Ms. P [Redacted] testified that she only spoke with Ms. B [Redacted] a few times in June, and Ms. B [Redacted] asked what Father needed to do to reunify with J [Redacted] . There is no evidence that anyone has thwarted Father's ability to assert his parental rights.
c. The respondent's ability to care for the child , the age of the child , the quality of any previous relationship between the respondent and the child or any other children;
J [Redacted] is six years old. Father has never served as a caregiver for J [Redacted] until she was placed with him in December 2017 for less than three months. As will be discussed at length, J [Redacted] is adamant in her desire not to return to Father's home or have contact with him due to the physical discipline in the home and frequent fighting between Father and Ms. B [Redacted] . Father and Ms. B [Redacted] testified that caring for four children, including Father's son, A [Redacted] , who has severe behavioral difficulties, was the cause of the domestic dispute in February 2018 because it resulted in extreme stress within their marriage and the household. Since that time, Father has not presented any evidence, besides his own testimony, that he has obtained the necessary services to assist in resolving the issues and preventing it from happening in the future. Therefore, Father's failure to obtain the recommended services has also interfered with his ability to care for J [Redacted] .
d. The effect of a change of physical custody on the child;
J [Redacted] has resided in the foster home of Ms. B [Redacted] since entering DSCYF care in May 2016, except for the brief time she was placed with Father. Ms. L [Redacted] testified that J [Redacted] is thriving in Ms. B [Redacted] 's home and will likely be discharged from her services if she remains there. However, it would be emotionally "detrimental" to J [Redacted] if she were to return to Father's care. J [Redacted] has verbalized that she does not want to return and is scared about what will happen if she does. Ms. L [Redacted] indicated that J [Redacted] would need regular, weekly counseling sessions if she were to return, as well as family therapy with a focus on proper discipline due to J [Redacted] 's disclosures of physical discipline in the home. J [Redacted] is bonded with Ms. B [Redacted] and refers to her as "mom." Ms. L [Redacted] testified that J [Redacted] has not bonded with any other adult, and rupturing that bond would have an emotional impact on her that could affect her home functioning, school functioning, and ability to relate to others. J [Redacted] has relied on Ms. B [Redacted] to take care of her and protect her since she was placed in the home, which has not been the case for Father.
e. The effect of a delay in termination on the chances for a child to be placed for adoption.
DSCYF argued that it is in J [Redacted] 's best interest to attain permanency by way of TPR and placement for adoption due to the amount of time she has been in DSCYF's care, Father's disinterest in case planning for reunification when J [Redacted] entered care, the failed attempt to place J [Redacted] with Father in Virginia, and Father's lack of progress in addressing DSCYF's concerns once J [Redacted] returned to Delaware. Further, the Court emphasizes that, even if it denied the TPR petition, J [Redacted] could not be placed in Father's care due to the denied ICPC. J [Redacted] has resided in the foster home of Ms. B [Redacted] since entering DSYCF custody, which is a pre-adoptive placement, with her sister, N [Redacted] . The Court received testimony from both DSCYF and CASA that she considers Mr. B [Redacted] her mother and does not want to leave the home. If the Court grants the TPR petition, Ms. P [Redacted] testified that there would be no impediment to J [Redacted] being adopted by Ms. B [Redacted] .
* * * * *
The Court finds that DSCYF has established the elements set forth in 13 Del. C. § 1103(a)(5)a.1 and 5, even though only one element would be sufficient. Thus, there is clear and convincing evidence that Father has failed to plan for the J [Redacted] 's needs and that DSCYF has established a statutory ground for terminating her parental rights.
Factor 1 has been met since J [Redacted] has been in DSCYF's custody for almost three years as of the date of the hearing.
As to factor 5, the Court finds that the continued relationship between J [Redacted] and Father will result in emotional instability. J [Redacted] was only in Father's care for less than three months until she was removed from the home and placed back in foster care. Father has failed to engage in any services, or provide any verification, that would address the issues that led to J [Redacted] 's removal from his home. According to Ms. L [Redacted] , a transition back to Father's home would be emotionally detrimental to J [Redacted] , who has consistently and adamantly expressed that she does not want to return to Virginia. J [Redacted] is currently in a pre-adoptive home where she is thriving and feels safe.
For the reasons outlined above, the Court finds that DSCYF has established by clear and convincing evidence that Father failed to plan for J [Redacted] 's physical and emotional needs. The Court also finds that DSCYF has established the elements set forth in 13 Del. C. § 1103(a)(5)a.1 and 5.
Reasonable Efforts for Reunification
Since the Court finds that Father has failed to adequately plan for J [Redacted] , the Court must now consider whether DSCYF has made reasonable efforts to reunify Father with J [Redacted] .
When Father first appeared in this matter and expressed an interest in case planning for reunification, DSCYF immediately made a referral for an ICPC to be conducted related to Father's home in Virginia as well as other necessary requirements, including a psychological evaluation. After the ICPC was approved, DSCYF then began the transition process to Father's home and provided Father with the telephone numbers of Ms. B [Redacted] and Ms. L [Redacted] to begin facilitating phone contact with J [Redacted] . DSCYF wanted to ensure a safe and comfortable transition for J [Redacted] as she did not know Father and thought Mr. S [Redacted] was her biological father. DSCYF arranged visits through October and November 2017 and assisted with transportation to the visits, whether it was transporting J [Redacted] to Virginia, meeting Father halfway, or providing Father with a $50 gas card.
J [Redacted] was placed with Father on December 23, 2017, and Ms. C [Redacted] and Ms. P [Redacted] remained in regular contact throughout January, February, and March 2018. Notably, DSYCF only had contact with Ms. B [Redacted] during that time when she asked for various documentation, such as J [Redacted] 's medical reports and a birth certificate. According to DSCYF, most communication throughout the duration of this case was made through Ms. B [Redacted] , not Father. Neither Father nor Ms. B [Redacted] expressed to DSCYF that they needed services while J [Redacted] was residing in their home.
After the domestic dispute between Father and Ms. B [Redacted] in February 2018, Ms. B [Redacted] filed a protective order against Father, and Father was not permitted to reside in the home. Ms. C [Redacted] provided assistance in finding Father an alternative residence. On March 2, 2018, Father was able to move into a C [Redacted] House that she arranged for him for free, and she believed that J [Redacted] was residing with Father there. Ms. C [Redacted] learned on March 9th that Father had sublet the home to strangers, reconciled with Ms. B [Redacted] , and moved back into the familial home with the children. In the approximately two weeks that J [Redacted] remained in Father's home following the incident, Ms. P [Redacted] testified that she maintained regular contact with the family. However, DSCYF's concerns related to J [Redacted] in the home persisted after the children's daycare in Virginia reported that Father appeared intoxicated when he picked up the children, hit a child twice, and then drove off with the children unsecured in their car seats. J [Redacted] was then removed from Father's care on March 12, 2018.
According to Ms. C [Redacted] , C [Redacted] House is run by a church system. It was free to live for up to three months, and it made special consideration for Father because Ms. C [Redacted] was concerned that DSCYF would remove J [Redacted] from Father's care.
When J [Redacted] returned to Delaware, DSCYF informed Father of its concerns with J [Redacted] being in his care. On the day she returned, Ms. P [Redacted] told Father that there were issues with home stability, domestic violence, and untreated mental health and substance abuse issues. She contacted him again on March 14, 2018 and reiterated those concerns. Ms. P [Redacted] asked Father whether he was engaging in mental health services or marriage counseling. Father was refusing treatment at the time, and Ms. P [Redacted] again expressed that Father needed mental health services. She also asked Father for employment verification as he had gotten a new job. Father consented to two urine tests facilitated by Ms. C [Redacted] following the domestic dispute, and Ms. P [Redacted] asked for the results. Father acknowledged to her that he used marijuana but never around the children.
Ms. P [Redacted] told Father that DSCYF would recommend TPR, but he "had a right to fight for [J [Redacted] ]." Therefore, she informed him that DSCYF expected counseling for domestic violence, individual counseling for mental health and substance abuse, stable employment, and the resolution of any pending legal issues as there were two protective orders filed by Father and Ms. B [Redacted] . The only documentation Father provided to Ms. P [Redacted] was a picture of a letter from his new employer and a legal document indicating that the protective orders were dissolved.
At the time of the first scheduled TPR hearing in May 2018, Father told DSCYF that he was planning to move to Texas and wanted J [Redacted] to come with him. Ms. P [Redacted] informed him that a new ICPC would have to be conducted if he moved. Ms. P [Redacted] inquired about Father's mental health and asked if he was seeing a counselor. Father became agitated and said he was engaged in individual counseling as well as marriage counseling. Ms. P [Redacted] asked Father to provide verification that he was in fact receiving those services. Father never provided any further information.
DSCYF did not have any contact from Father until October 2018, though Ms. P [Redacted] spoke with Ms. B [Redacted] a few times in June when she asked what needed to be done for Father to reunify with J [Redacted] . In October, Ms. P [Redacted] spoke to both Father and Ms. B [Redacted] . Ms. B [Redacted] provided the name of Father's psychiatrist but told her to contact his attorney for any medication prescriptions and diagnoses. Father inquired about J [Redacted] , and Ms. P [Redacted] told him to call Ms. L [Redacted] and Ms. D [Redacted] , the assigned permanency worker, to set up contact. When Ms. P [Redacted] asked whether Father and Ms. B [Redacted] wanted a new ICPC conducted as they had moved to a different county in Virginia, Ms. B [Redacted] replied, "Why? So we should go through this again?" Therefore, Ms. P [Redacted] contacted Father's attorney, who told her to request a new ICPC.
Prior to J [Redacted] being placed with Father, Ms. P [Redacted] testified that the family was involved in family counseling to prepare N [Redacted] for J [Redacted] 's arrival through CAVA. However, DSYCF was unable to obtain those records because Father would not sign a consent. Father also participated in individual services through CAVA and was discharged in June 2018 because he was not consistent in attending the appointments. In March and May 2018, Father and Ms. B [Redacted] told Ms. P [Redacted] that they were participating in marriage counseling through CAVA. Father and Ms. B [Redacted] never informed DSCYF that they needed services, though Ms. P [Redacted] 's notes on March 14, 2018 also indicated that she could not refer Father to marriage counseling in Virginia because she did not live there and therefore had no knowledge of the available services.
The Court notes that, according to the ICPC report, Father and Ms. B [Redacted] also told Ms. Y [Redacted] that they were receiving such services. However, no verification on their attendance or progress in the services was obtained despite her request.
Another ICPC for Father's new home in Virginia was initiated and denied. From May 2018 to the date of the hearing, Father has not provided any documentation that he engaged in domestic violence counseling, mental health services, marriage counseling, or substance abuse services. Ms. P [Redacted] testified that she has emails back and forth from Father and Ms. B [Redacted] . On one occasion, Father provided her with a name of a provider, and she needed to search the internet to find a name and address. When she asked Father to verify the information, she never received a response. Ms. P [Redacted] also scanned a consent form to Father once while J [Redacted] was in Virginia and once after she returned to Delaware, and Father never signed and sent it back.
On cross examination, Ms. P [Redacted] testified that, once the investigation following the domestic incident was concluded, a letter was sent to Father that services were recommended for Father but were to be obtained independently. However, Ms. P [Redacted] reiterated that this letter was sent after J [Redacted] returned to Delaware, and Father chose not to participate. She testified that she spoke to Father over the telephone numerous times once J [Redacted] returned to Delaware to convey DSCYF's expectations, but Father acted angry and emotional. He was frustrated that DSCYF removed J [Redacted] from his home and felt that DSCYF was "crucifying" him. Ms. P [Redacted] reported that she spent most of their conversations trying to calm Father and allow him to understand DSCYF's concerns.
DSCYF also facilitated a three-hour visit in the DSCYF office with J [Redacted] , Father, Ms. B [Redacted] , and Father's children. As will be discussed further, J [Redacted] was very anxious about the visit and expressed fear that she would have to return to Virginia. Another visit was scheduled prior to the second day of this TPR proceeding, but it was canceled due to J [Redacted] 's anxiety.
In closing argument, Father argued that DSCYF did not provide him with a case plan. The Court notes that DSCYF did not prepare a written case plan that was signed by Father and admitted into evidence as was done with Mother. However, pursuant to 42 U.S.C. § 675(1)(B) and 29 Del. C. § 9003(a)(4), DSCYF must prepare and maintain a written case plan for each child under its supervision or custody. The provisions do not state that reunification efforts with the parents must be in writing, only the case plan related to the child. The Court notes that a Child Services Plan related to J [Redacted] was admitted into evidence at the Adjudicatory/Dispositional Hearing on June 30, 2016. The sole requirement related to reunification of the parents is that DSCYF must make reasonable efforts to preserve and unify.
42 U.S.C. § 675(1): The term "case plan" means a written document which meets the requirements of section 675a of this title and includes at least the following:
(B) A plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents' home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan. With respect to a child who has attained 14 years of age, the plan developed for the child in accordance with this paragraph, and any revision or addition to the plan, shall be developed in consultation with the child and, at the option of the child, with up to 2 members of the case planning team who are chosen by the child and who are not a foster parent of, or caseworker for, the child. A State may reject an individual selected by a child to be a member of the case planning team at any time if the State has good cause to believe that the individual would not act in the best interests of the child. One individual selected by a child to be a member of the child's case planning team may be designated to be the child's advisor and, as necessary, advocate, with respect to the application of the reasonable and prudent parent standard to the child.
29 Del. C. 9003(a): The Department of Services for Children, Youth and Their Families shall have the following powers, duties and functions:
(4) To prepare and maintain a written case plan for each child under its supervision or custody, which shall include but not be limited to a description of the child's problems, the care and treatment of the child, and any other services to be provided to the child and the child's family; each case plan must be designed to achieve any placement of the child outside of the child's home in the least restrictive setting available and in close proximity to the child's home, consistent with the best interests and special needs of the child;
Id.
Therefore, based on the extensive evidence and testimony provided by DSCYF that illustrates its frequent contact with Father in outlining its expectations for reunification, the Court finds that the Federal Regulations and Delaware Code related to DSCYF's responsibilities to Father under the statute are satisfied. A written case plan signed by the parents may be used for the convenience of DSCYF and the parents in planning and outlining expectations, as DSCYF did with Mother and Mr. S [Redacted] . However, it is not required by law.
The Court takes judicial notice of its prior Orders in these proceedings in which it consistently found that DSCYF made reasonable efforts to achieve reunification with Father once he appeared in this matter, and it reviews the Orders now under the clear and convincing standard. The Court finds that DSCYF consistently and sufficiently provided Father with the requirements that would lead towards reunification with J [Redacted] . The Court also notes that the second ICPC report from Virginia outlined DSCYF's concerns and need for verifications of services on three separate pages. Additionally, Father only indicated that he needed services after J [Redacted] was removed from his care and blamed both agencies in Delaware and Virginia for the domestic dispute and J [Redacted] 's removal. However, both DSCYF and DSS in Virginia were involved in the case and maintained regular contact during J [Redacted] 's placement with Father if either Father or Ms. B [Redacted] contacted them for assistance. The Court finds that Father had sufficient and appropriate knowledge of what was required to reunify with J [Redacted] and never indicated that he was unaware of the expectations.
DSCYF Exhibit 1, p. 1, 2, and 6.
Additionally, as previously indicated, the Court finds that DSCYF provided Father with time to both engage in the necessary services and provide verification of those services after J [Redacted] was removed from his home, which he refused to do. Notably, DSCYF filed a Motion to Continue the instant proceeding in order to allow more time to work with Father, which the Court granted. In light of that evidence, and in accordance with the Court's findings in previous hearings conducted in this matter, the Court finds that DSCYF made reasonable efforts to reunify Father and J [Redacted] .
C. Best Interests of the Child
After concluding that the statutory grounds for termination of parental rights exist, the Court must next determine that the termination is in J [Redacted] 's best interests. In reaching its decision, the Court applies the factors set forth in 13 Del. C. §722. The Court balances the § 722 factors "in accordance with the factual circumstances presented to the Family Court in each case." In some situations, the weight of one factor will counterbalance the combined weight of the other factors.
See Division of Family Services v. Hutton, 765 A.2d 1267, 1271 (Del. 2001).
Pursuant to 13 Del. C. § 722:
(a) The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all relevant factors including:
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
(b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.
Ross v. Ross, 992 A.2d 1237 (Table) *3 (Del. Supr. 2010).
Id. at *3 (citing Fisher v. Fisher, 691 A.2d 619, 623 (Del. Supr. 1997)).
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father was present for the hearing and represented his desire to reunify with J [Redacted] and for J [Redacted] to move back into his home in Virginia.
2. The wishes of the child as to his or her custodian(s) and residential arrangements;
By request of Mr. Lindh on behalf of J [Redacted] , the Court interviewed J [Redacted] on February 5, 2019, with Ms. A [Redacted] present, to ascertain her wishes regarding her custodial and residential arrangements. J [Redacted] told the Court that she wants to live with Ms. B [Redacted] because Ms. B [Redacted] loves and protects her. She stated that living with Father was "horrible" because he "beat [her] every time something went wrong." J [Redacted] acknowledged that the other children in the home, including her sister, N [Redacted] , saw Father beat her, and he used his belt and hands. She did not tell anyone about Father's actions until she returned to Delaware and informed Ms. B [Redacted] . She was also required to refer to Ms. B [Redacted] as "Mommy," instead of "Miss E [Redacted] ."
Ms. L [Redacted] testified that J [Redacted] wants to stay with Ms. B [Redacted] in Delaware and does not want to return to Virginia. Father also admitted that J [Redacted] wishes to remain in Delaware. Ms. A [Redacted] testified that she received a phone call from J [Redacted] in December 2018 after J [Redacted] had spoken with Father and Ms. B [Redacted] via telephone. J [Redacted] was crying and indicated that she wanted to tell the judge that she did not want to go back to Virginia. Ms. B [Redacted] also testified that, prior to the visit in January 2019, J [Redacted] repeatedly stated that she did not want to see Father and was scared that she would have to return to Virginia.
3. The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabiting in the relationship of husband and wife with a parent of the child , any other residents of the household or persons who may significantly affect the child's best interests;
Father has never served as a primary caregiver to J [Redacted] , except for the approximately two and a half months she was placed with him. Prior to the placement, J [Redacted] had not known who Father was and thought Mr. S [Redacted] was her biological father. The few visits with Father and Ms. B [Redacted] prior to J [Redacted] 's placement in Virginia went seemingly well. However, when J [Redacted] returned to Delaware, she expressed that she did not want to see Father or Ms. B [Redacted] and was fearful of having to move back to Virginia. Upon her return to Delaware, Father and Ms. B [Redacted] requested a phone conversation with J [Redacted] . Ms. B [Redacted] testified that, before the phone call, J [Redacted] said she did not want to speak with Father. According to Ms. B [Redacted] , the only person J [Redacted] considered a "father figure" was Mr. S [Redacted] .
A visit between J [Redacted] , Father, Ms. B [Redacted] , and their children was arranged in January 2019. J [Redacted] requested that Ms. A [Redacted] and Ms. D [Redacted] be present for the visit. Ms. D [Redacted] and Ms. A [Redacted] testified that J [Redacted] was anxious and expressed worry about what would happen if she failed to refer to Ms. B [Redacted] as her mother. If she failed to do so while living in Father's home, J [Redacted] explained that Father and Ms. B [Redacted] would "beat her." Ms. B [Redacted] and Ms. A [Redacted] testified that J [Redacted] wanted to see her siblings but did not want to see Father or Ms. B [Redacted] . The three-hour visit occurred at the DSCYF office with Ms. D [Redacted] and Ms. A [Redacted] present. According to Ms. D [Redacted] , the visit went well, and the interactions were appropriate. J [Redacted] was happy to see her siblings.
Another visit was scheduled the week prior to the second day of the TPR proceeding. According to Ms. B [Redacted] , J [Redacted] became anxious about the visit. She kept waking up in the middle of the night and wanting to call the Court and Ms. A [Redacted] to tell them she did not want to see Father. Ms. B [Redacted] called Ms. A [Redacted] to inform her of J [Redacted] 's behavior, and the visit was cancelled. J [Redacted] was relieved. Ms. A [Redacted] testified that J [Redacted] initially agreed to a second visit to see her siblings but later became concerned that she would have to return to Virginia.
There was undisputed testimony from all parties that J [Redacted] loved Father's and Ms. B [Redacted] 's children, especially her sister, N [Redacted] . As previously indicated, J [Redacted] was excited to see her siblings when the two visits were scheduled. Further, Ms. A [Redacted] , Ms. L [Redacted] , and Ms. B [Redacted] testified that J [Redacted] has a positive relationship with her other sister, N [Redacted] . N [Redacted] has resided with J [Redacted] in Ms. B [Redacted] 's home since she was born, and J [Redacted] enjoys taking care of her.
Father and Ms. B [Redacted] testified that they have a positive relationship with J [Redacted] . Father informed the Court that he works on cars as a hobby, and J [Redacted] would watch him and ask him questions when she lived with him in Virginia. He also stated that J [Redacted] enjoys climbing on his back and pulling at his ears.
4. The child's adjustment to his or her home , school and community;
Besides the approximately two and a half months that she resided with Father in Virginia, J [Redacted] has resided in the foster home of Ms. B [Redacted] since May 2016. The home consists of Ms. B [Redacted] , J [Redacted] , and N [Redacted] . Ms. L [Redacted] testified that she has observed interactions between Ms. B [Redacted] and J [Redacted] . They are very attached and J [Redacted] refers to Ms. B [Redacted] as "Mom" or "Mommy." According to Ms. L [Redacted] , there will be an impact on J [Redacted] 's mental health if the bond between her and Ms. B [Redacted] is broken. Ms. B [Redacted] 's home has been a sense of security and safety for J [Redacted] for almost three years, and if she moves to another home, it will likely be emotionally difficult and could affect her functioning at home and school, as well as her ability to relate to others. Ms. L [Redacted] has never had any issues with Ms. B [Redacted] in following through with counseling recommendations and ensuring J [Redacted] 's needs are met. If the Court decided to transfer J [Redacted] back to Father's home, Ms. L [Redacted] indicated that J [Redacted] would need preparatory therapy. Ideally, Father and Ms. B [Redacted] would be involved.
J [Redacted] is currently enrolled in the first grade at [Redacted] Elementary School. She is a regular education student with no Individualized Education Program ("IEP"), and she is on track to be promoted to the next grade level. No additional services are required at this time. Ms. L [Redacted] testified that J [Redacted] was previously aggressive in school and had issues with listening when she first entered DSCYF's custody. However, from September to December 2017, J [Redacted] made significant progress.
According to Ms. B [Redacted] , J [Redacted] is interested in gymnastics and signed up for basketball at the local recreation center. She participates in summer camps every year, as well as afterschool activities. J [Redacted] loves to draw and attends before and after care at [Redacted] .
5. The mental and physical health of all individuals involved;
Father testified that he has been diagnosed with PTSD. He also admitted that he told a DSCYF worker that he has bipolar disorder and depression, but those are "old" diagnoses. Father reported that he takes Hydroxyzine and another medication for his PTSD and sees a psychiatrist. Ms. C [Redacted] from DSS in Virginia testified that she had concerns with Father's mental health following the domestic dispute between him and Ms. Ba [Redacted] . Father was adamant that Ms. C [Redacted] view a video that he took of Ms. B [Redacted] in which she told him to give her "weed" and threatened to report to the police that Father had drugs in the home with the children. Ms. C [Redacted] administered a drug test, and Father tested positive for marijuana, TCA, for which he had a prescription, and benzos. Father told Ms. C [Redacted] that he obtained benzos from Ms. B [Redacted] a few days prior after he had a panic attack. Father and Ms. B [Redacted] admitted that Father used marijuana on one occasion when Father smoked with a friend who had returned from a military deployment. They indicated that he has never smoked in the home or around the children. Father testified that he does not have a substance abuse issue. On February 26, 2018, Father told Ms. C [Redacted] that he had a follow-up appointment with a psychiatrist after his panic attack, but she was unsure if he attended.
Father could not recall the name of the other medication.
Father testified at the hearing that he also had a prescription for benzos after a back injury.
Father testified that he receives individual and marriage counseling from Mr. H [Redacted] . Father could not remember when he started services with Mr. H [Redacted] and indicated that Mr. H [Redacted] held a degree in mental health therapy but could not provide the institution. For his individual counseling, Father reported that he and Mr. H [Redacted] have a "personal relationship," and they either go fishing or Mr. H [Redacted] comes to the home. Father testified that he sees Mr. H [Redacted] on Saturdays but has never provided the records to DSCYF.
Ms. Le [Redacted] , a licensed clinical social worker of 26 years, has been working with J [Redacted] since 2016. J [Redacted] was initially referred to her due to problems of physical aggression against peers, which included hitting, biting, defiant behavior, and temper tantrums. Therefore, Ms. L [Redacted] initially worked on behavioral issues with J [Redacted] , as well as parent/child interaction therapy with Ms. B [Redacted] . Eventually, Ms. L [Redacted] switched to individual child-centered play therapy.
From April 2018 until the time of the TPR proceeding, Ms. L [Redacted] indicated that she had not been consistently working with J [Redacted] . She reported that J [Redacted] has been doing well since returning from Virginia, and there was no need to continue consistent treatment. Ms. L [Redacted] last saw J [Redacted] on January 8 and January 30, 2019 to prepare her for the visit with Father, Ms. B [Redacted] , and her siblings. According to Ms. L [Redacted] , J [Redacted] is thriving in Ms. B [Redacted] 's home and school, and she currently only offers support services for her and Ms. B [Redacted] . If J [Redacted] continues living with Ms. B [Redacted] , she will likely be discharged from services.
As previously stated, if J [Redacted] a were to return to Father's home in Virginia, Ms. L [Redacted] testified that she would need regular therapy to help with the transition. According to Ms. L [Redacted] , a return to Virginia would be emotionally "detrimental" to J [Redacted] . She has consistently verbalized that she does not want to return and has referred to many fights between Father and Ms. B [Redacted] that occurred in the home. Therefore, weekly therapy sessions, as well as family therapy with a focus on discipline, would be needed because J [Redacted] has indicated that she was spanked by Father and Ms. B [Redacted] .
J [Redacted] 's medications include Methylphenidate and Guanfacine for ADHD, as well as sleep medication. The medications are checked every six months by a neurologist. J [Redacted] does not have any medical, dental, or vision issues at this time.
6. Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
J [Redacted] has been in foster care since May 2016. Father has never served as a caregiver, except for the approximately two and a half months that J [Redacted] was placed with him in Virginia. When J [Redacted] first entered DSCYF's custody, Father informed DSCYF on multiple occasions that he was uninterested in reunifying with J [Redacted] and that she should be adopted. When J [Redacted] was placed with Father, the placement lasted less than three months following a domestic dispute between Father and Ms. B [Redacted] and Father's subsequent failure to address DSCYF's concerns. J [Redacted] returned to Delaware on March 2018, and as previously indicated, Father has failed to engage in or provide verification of the necessary services to be reunified with J [Redacted] . Father has never provided financial support for J [Redacted] prior to her placement with him.
Father testified that he "did not catch the name" of J [Redacted] 's school in Delaware, though Ms. P [Redacted] indicated that she had provided it to him. He did not know who her doctor was but knew that her therapist was Ms. L [Redacted] . Father has not financially provided for J [Redacted] since she has returned to Delaware. However, he testified that her bedroom in Virginia is fully furnished with clothing and toys. Father indicated that he is financially able to care for J [Redacted] as he and Ms. B [Redacted] are both employed. However, he did not provide any documentation of employment or income to the Court. Father has attempted to send letters to J [Redacted] saying that he misses her and wants her to come back.
Ms. L [Redacted] also testified that Father never participated in J [Redacted] 's counseling. Ms. P [Redacted] reported that she provided Ms. L [Redacted] 's name and phone number to Father when he first became involved in the matter to assist in establishing a relationship. Father has never contacted Ms. L [Redacted] to inquire about counseling or to participate. Ms. L [Redacted] had only communicated with Ms. B [Redacted] in October 2017 during J [Redacted] 's transition process to Virginia on approximately four occasions. When J [Redacted] returned to Delaware after being removed from Father's home, Ms. L [Redacted] did not receive any communication from Father.
Testimony was introduced that contact between DSCYF, Ms. B [Redacted] , Ms. L [Redacted] , and Ms. A [Redacted] regarding J [Redacted] was predominantly through Ms. B [Redacted] , not Father. Father admitted that he does not have a relationship with Ms. B [Redacted] and does not contact her. Ms. B [Redacted] and Ms. P [Redacted] indicated that they were mostly in contact with Ms. B [Redacted] because Father claimed he was at work and did not have access to a phone. In response, both Father and Ms. B [Redacted] testified that they "work as a team."
Ms. D [Redacted] testified that, while Father provided J [Redacted] with small toys during the visit in January 2019, he has never provided any financial support. Father contacted her in October 2018 to inquire how J [Redacted] was doing. Shortly after, he asked about having a visit. Ms. D [Redacted] told Father that he could send letters. Father sent J [Redacted] one letter that stated he and Ms. B [Redacted] missed her and were excited for when she returned. He also told her that he wanted to take her on a fishing trip. The letter upset J [Redacted] , and she became scared that she would be returning to Virginia. Ms. D [Redacted] emailed Father and Ms. B [Redacted] explaining why she would give future letters to Ms. L [Redacted] instead of J [Redacted] directly. Ms. D [Redacted] has not received any letters since that time.
7. Evidence of domestic violence as provided for in Chapter 7A of this title;
As previously indicated, J [Redacted] was removed from Father's home in Virginia after approximately two and a half months following a domestic dispute between Father and Ms. B [Redacted] . According to Father and Ms. B [Redacted] , the incident was an "isolated argument" that occurred in their bedroom with the door shut and away from the presence of the children. However, both admitted that the dispute resulted in protective orders being issued. Father testified that he did not cause physical harm to Ms. B [Redacted] and did not threaten physical harm. During the argument, Father attempted to grab Ms. B [Redacted] 's phone from her, but he did not hit or shove her.
According to Ms. B [Redacted] 's testimony, the incident developed from Father's insecurity related to her lack of attentiveness to him in a household with four children. The argument escalated to Father accusing her of cheating, and he started "tugging" at her phone. The police responded to the home, and Ms. B [Redacted] was granted a protective order that ordered no contact to occur between the parties, which expired on February 28, 2018. Father was also granted a protective order that extended the no-contact order until March 2, 2018. Father and Ms. B [Redacted] then appeared in court and requested that the orders be dissolved. Ms. B [Redacted] testified at the instant hearing that they never had an incident like that one before, and it has not happened since that time.
In the days following the incident, Ms. B [Redacted] admitted to contacting Ms. A [Redacted] , Ms. P [Redacted] , and Ms. B [Redacted] . She was "transparent" regarding what happened and sought advice on what to do next. During the conversations, Ms. B [Redacted] expressed that she was concerned about Father's maturity, but he was not a bad father. She admitted that she had concerns about how the argument escalated, and it frightened her. Ms. B [Redacted] also contacted Ms. C [Redacted] and expressed concerns about the children being in Father's care. She asked if he should be admitted to a mental hospital. Ms. B [Redacted] testified that she received a series of phone calls and text messages from Ms. B [Redacted] informing her of the incident. Ms. B [Redacted] told her that Father was enraged and thought Ms. B [Redacted] was cheating on him. He then "attacked her" while the children were present, and the children witnessed it. Ms. B [Redacted] expressed concern about the children being with F [Redacted] . Prior to the incident, Ms. B [Redacted] also received text messages from Ms. B [Redacted] asking about what would happen to the children if she were to leave Father. She stated that he was "like a big child" and was just another responsibility for her in addition to the four children.
Father and Ms. B [Redacted] testified that they receive marriage counseling from Mr. H [Redacted] to address the incident. They now have a "safe word," which is used when conversations begin to get heated. When the safe word is used, Father and Ms. B [Redacted] cease the conversation and discuss the issue at a later time. Ms. B [Redacted] stated that the domestic dispute occurred as a result of not being properly equipped with services, and the stress of caring for a child with severe behavioral issues. According to Father, he and Ms. B [Redacted] received custody of Father's son, A [Redacted] , prior to J [Redacted] 's placement with them. They were unaware of his behavioral issues until they brought him home. The placement resulted in stress on their relationship as a couple, and they did not have the proper resources to help him.
Ms. C [Redacted] spoke with Father following the incident on February 26, 2018. According to Ms. C [Redacted] 's testimony, Father reported that Ms. B [Redacted] started the argument and choked his neck, which he filmed on video. Ms. B [Redacted] then stole his keys, and he was unable to leave the house. During their meeting, Father was adamant that Ms. C [Redacted] view the video, which Ms. C [Redacted] did. As previously described, the video portrayed Ms. B [Redacted] telling Father to give her "weed" and threatening to report to the police that Father had drugs in the home with the children. Father also expressed concerns about Ms. B [Redacted] 's interactions with the children. According to Father, Ms. B [Redacted] would tell the children to "get their f---ing act together or she'll beat their asses." Ms. C [Redacted] administered a drug test during the visit, and Father complied.
Due to Ms. B [Redacted] 's protective order that did not allow Father in the familial home, Father took the children to stay at a neighbor's home. Ms. C [Redacted] immediately assisted Father in obtaining new housing for him and the children. However, without informing DSS or DSCYF, Father reconciled with Ms. B [Redacted] , sublet the acquired housing, and moved back into the familial home with the children. When asked about the video after he returned to the home, Father responded, "What video?" Father also attempted to recant his statements made to Ms. C [Redacted] about Ms. B [Redacted] 's behavior towards the children and even asked her, "What kids in America haven't witnessed domestic violence with their parents yelling at them?" From that point forward, Ms. C [Redacted] testified that Father was aggressive and angry towards the staff at DSS. During his testimony at the TPR proceeding, Father denied having any video of the incident and testified that he did not provide a video to the DSS workers.
DSS in Virginia received another referral on March 12, 2018 regarding Father and his children. An individual called and reported that Father had picked the children up from daycare. Father was stumbling as if he was intoxicated and fell over when he attempted to give his son a hug. When all the children were in the car, Father turned around to the back seat and hit a child twice. He then sped off without checking whether the children were safely buckled in their car seats. This report led to an agency investigation. However, Ms. C [Redacted] indicated that no charges were filed.
Ms. C [Redacted] reported that the agency received three separate reports regarding this incident.
J [Redacted] reported significantly different facts to multiple parties regarding the domestic dispute between Father and Ms. B [Redacted] . Ms. L [Redacted] testified that J [Redacted] shared in detail what had happened during their sessions, and it was particularly distressing to her. J [Redacted] said that there was a physical altercation between Father and Ms. B [Redacted] that involved yelling, name calling and cursing. At one point during the argument, Father was "on [Ms. B [Redacted] 's] back." All the children were crying at the time, and Mother's son, C [Redacted] , attempted to get Father off Ms. B [Redacted] .
J [Redacted] also disclosed to multiple parties that Father and Ms. B [Redacted] would fight often in the home, and she felt sad and scared when it happened. According to Ms. P [Redacted] , J [Redacted] gave the thumbs down gesture when asked about returning to Father's home. When Ms. P [Redacted] asked why, J [Redacted] said Father and Ms. B [Redacted] are mean, fight with each other, use bad words, and smoke inside the house.
J [Redacted] reported physical discipline by Father and Ms. B [Redacted] during the time she was placed in Father's home. According to Ms. A [Redacted] , Father and Ms. B [Redacted] told J [Redacted] that they missed her during a phone call after J [Redacted] returned to Delaware. J [Redacted] told Ms. A [Redacted] that she said she missed them too because if she did not say it back, they would beat her. J [Redacted] also said that if someone made a mistake in the home, all four of the children would be beat with a belt or hand. Ms. L [Redacted] testified that J [Redacted] said she was "spanked" by Father and Ms. B [Redacted] . Ms. A [Redacted] recently learned that J [Redacted] had written "911" on her hand while she was in Father's home, so if someone came into the house, they would be able to see.
Father and Ms. B [Redacted] denied using any physical discipline or threats of physical discipline on the children. Ms. B [Redacted] testified that they use "time outs" and loss of privileges, such as playing outside, as methods of discipline. Father denied that J [Redacted] a had written "911" on her hand. Both were unsure why J [Redacted] was fearful of returning to their home. Ms. B [Redacted] indicated that she thinks J [Redacted] feels torn between their family and Ms. B [Redacted] .
Father also has domestic violence history with Mother. When asked if there had ever been domestic incidents between him and Mother, Father responded, "I can't remember." On cross examination, he then admitted to domestic violence history with Mother. Father also denied any related issues with his other paramours.
8. The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
According to his Delaware certified criminal history, Father was convicted of three felonies, including two counts of theft under $1,500 and conspiracy in the second degree in 2013. He was also convicted of resisting arrest at that time and two motor vehicle violations in 2012. Father has no pending charges to the Court's knowledge. Although he initially could not recall any domestic violence history between himself and Mother, Father pled to a probation before judgment related to an offensive touching charge in 2012 that involved a domestic dispute with Mother. Father was required to engage in domestic violence counseling and obtain a substance abuse evaluation.
Ms. B [Redacted] does not have any criminal history in Delaware, and no evidence was presented regarding her criminal history in Virginia.
§ 722 Conclusion
The Court finds clear and convincing evidence under § 722 to establish that it is in the best interest of J [Redacted] to terminate Father's parental rights. Factors (2), (3), (4), (5), (6), (7), and (8) support a finding that termination of parental rights is in J [Redacted] 's best interest. Although Father's own expressed desire under factor (1) favors his position against TPR, that factor is outweighed by the evidence under factors (2), (3), (4), (5), (6), (7), and (8).
Factor (1) supports Father's position in light of his expressed desire to reunify with J [Redacted] . However, despite that contention, the Court notes that J [Redacted] has been in DSCYF's custody for almost three years now, and her placement in Father's home lasted only two and a half months.
Upon the request of Mr. Lindh, the Court interviewed J [Redacted] on February 5, 2019 to determine her wishes in regards to custodial and residential arrangements. It is clear and undisputed that J [Redacted] wishes to remain in the home of Ms. B [Redacted] in Delaware and does not wish to return to Father's home in Virginia. J [Redacted] told the Court that living with Father was "horrible" because he "beat her" every time something went wrong, and she enjoys living with Ms. B [Redacted] because she loves and protects her. The Court also received testimony from DSCYF, Ms. A [Redacted] y, Ms. B [Redacted] , and Ms. L [Redacted] that J [Redacted] has consistently said that she does not want to return to Virginia, and the possibility causes her fear and anxiety. The Court recognizes J [Redacted] 's young age and maturity when considering this factor; however, the Court also finds that J [Redacted] 's statements and behavior regarding her wishes not to return to Father's home have been expressed to numerous individuals and remained consistent. Thus, factor (2) supports granting the TPR in the Court's analysis.
Under factor (3), the evidence suggests that Father's relationship with J [Redacted] is minimal. Prior to her recent placement with him, J [Redacted] had no relationship with Father and believed Mr. S [Redacted] to be her biological father. Upon her return to Delaware after her placement in Virginia, J [Redacted] had only one visit and phone conversation with Father because the contact caused her distress and anxiety that she would have to return to his home.
There is undisputed evidence that J [Redacted] has developed a close bond with her sister, N [Redacted] , who resides in Father's home. However, despite this relationship, J [Redacted] has remained adamant that she does not want to return to Virginia or have contact with Father and Ms. B [Redacted] . Further, Ms. B [Redacted] and Ms. L [Redacted] testified that J [Redacted] maintains a close relationship with her other sister, N [Redacted] , who has resided in Ms. B [Redacted] 's home since she was born. For these reasons, the Court finds that factor (3) supports a finding that it is in the J [Redacted] a's best interest to terminate Father's parental rights.
The evidence under factor (4) suggests that J [Redacted] has adjusted very well to Ms. B [Redacted] 's home. J [Redacted] has resided with Ms. B [Redacted] since May 2016, and as previously indicated, expressed the desire to remain there. DSCYF, CASA, and Ms. L [Redacted] all testified to J [Redacted] 's relationship with Ms. B [Redacted] as loving and supportive. J [Redacted] refers to Ms. B [Redacted] as her mother. Ms. B [Redacted] also expressed interest in being an adoptive resource for J [Redacted] as she is for N [Redacted] . According to Ms. L [Redacted] , despite J [Redacted] 's past difficulties in school, she is now "thriving" in the first grade. For those reasons, the Court finds that the evidence under factor (4) supports a finding that termination of parental rights is in J [Redacted] 's best interest.
The Court notes that Father does not have any physical health issues that would affect his ability to parent J [Redacted] under factor (5). However, Father testified that he was diagnosed with PTSD, bipolar disorder, and depression, though he indicated that the bipolar disorder and depression were "old diagnoses." According to Father, he has been receiving individual and marriage counseling by Mr. H [Redacted] as recommended by DSCYF, but he has never provided any records about the sessions or how often he participates. Further, Father indicated on the first day of the TPR proceeding that he sees Mr. H [Redacted] on Saturdays and has had approximately four or five sessions. However, on the second day of the proceeding just a month later, Father testified that he has had 15 sessions. To this day, Father has still not provided DSCYF with any records of attendance or further information about his counseling with Mr. H [Redacted] .
DSCYF does not have any major concerns regarding J [Redacted] 's physical health. According to Ms. L [Redacted] , J [Redacted] is thriving in Ms. B [Redacted] 's home since returning to Delaware and will likely be discharged if she remains there. However, if J [Redacted] returns to Father's home in Virginia, Ms. L [Redacted] testified that the transition will be emotionally detrimental to her, and she will need weekly therapy. Therefore, the Court finds that factor (5) weighs in favor of DSCYF's request for TPR in the best interest analysis.
Father is not in compliance with his parental rights and responsibilities under factor (6). J [Redacted] has been in the custody of DSCYF for almost three years, and Father initially expressed that he did not want to case plan for reunification and that adoption was in her best interest. He had no contact with J [Redacted] until she was six years old and was placed in his home. Further, as discussed above, J [Redacted] 's placement with Father was brief, and he has failed and refused to address or provide evidence of any of DSCYF's concerns after J [Redacted] was removed from his care, including mental health, domestic violence, and substance abuse services. As previously mentioned, Father has never provided any financial support for J [Redacted] since she has been in DSCYF custody, except for the time she was placed with him. The testimony was undisputed that DSCYF, CASA, Ms. B [Redacted] , and Ms. L [Redacted] primarily had contact with Ms. B [Redacted] , not Father, regarding J [Redacted] . Despite their claims that they "work as a team," the Court finds it most significant that Father could not provide the name of J [Redacted] 's school and primary care doctor in Delaware. For those reasons, factor (6) supports a finding that it is in J [Redacted] 's best interest for Father's parental rights to be terminated.
The Court considers evidence that DSCYF had significant domestic violence concerns regarding Father under factor (7). As discussed at length, J [Redacted] was removed from Father's home in March 2018 following a domestic dispute between Father and Ms. B [Redacted] that resulted in two protective orders and J [Redacted] being moved to various homes. Although Father and Ms. B [Redacted] described the incident as an "isolated argument," J [Redacted] reported to multiple individuals that they fought often. The Court finds that Father's and Ms. B [Redacted] 's testimony is not credible regarding their descriptions of the incident and that the children were not present during the dispute. Father recanted his statements made to Ms. C [Redacted] after the pair reconciled regarding his concerns about Ms. B [Redacted] and an alleged video of the incident. Father also "could not remember" whether he had any domestic violence history with Mother but then admitted to an incident on cross-examination. Further, Ms. B [Redacted] admitted to contacting multiple individuals from Delaware following the incident, including Ms. B [Redacted] , where she described what had happened and expressed concerns for the children while they were in Father's care.
The Court also has significant concerns regarding physical discipline being used in Father's home. Although both Father and Ms. B [Redacted] testified that they do not use physical discipline, J [Redacted] reported to DSCYF, CASA, Ms. L [Redacted] , Ms. B [Redacted] , and the Court that Father and Ms. B [Redacted] "spanked" her, "beat" her with either a hand or belt, and threatened to "beat" her if she did not refer to Ms. B [Redacted] as her mother. Testimony was also presented related to J [Redacted] 's apparent fear and anxiety when presented with the possibility that she could return to Father's home in Virginia due to Father and Ms. B [Redacted] 's consistent fighting and their use of physical discipline towards her and the other children in the home. Therefore, factor (7) heavily weighs in favor of DSCYF's request for TPR in the best interest analysis.
Under factor (8), Father was convicted of three felonies in 2013 that included two counts of theft over $1,500 and conspiracy in the second degree. He was also convicted of resisting arrest at that time. In 2012, Father pled to a probation before judgment related to an offensive touching charge following a domestic dispute with Mother. Accordingly, the Court finds that factor (8) supports a finding that termination of parental rights is in J [Redacted] 's best interest.
Based upon the analysis above, the Court finds that it is in J [Redacted] 's best interest for the parental rights of Father to be terminated. Factors (2), (3), (4), (5), (6), (7), and (8) all support a finding that it is in her best interest for Father's parental rights to be terminated. Although factor (1) favors his own position with respect to reunification, that factor is outweighed by the evidence presented under factors (2), (3), (4), (5), (6), (7), and (8).
CONCLUSION
DSCYF has established clear and convincing evidence that Father's parental rights should be terminated on the grounds stated in 13 Del. C. § 1103(a)(5) (failure to plan) and that DSCYF has made reasonable efforts to reunify Father with J [Redacted] .
The Court further finds clear and convincing evidence under 13 Del. C. § 722 that it is in J [Redacted] 's best interests to terminate the parental rights of Father.
The Court accepts Mother's consent to terminate her parental rights of J [Redacted] that was entered on May 31, 2018.
Therefore, the Court GRANTS DSCYF's Petition for the Termination and Transfer of Parental Rights. The parental rights of S [Redacted] G [Redacted] and R [Redacted] B [Redacted] are TERMINATED and TRANSFERRED to DSYCF until J [Redacted] is adopted.
IT IS SO ORDERED.
/s/_________
MICHAEL K. NEWELL Chief Judge MKN/bab cc: Islanda Finamore, Esquire (by email)
K [Redacted] P [Redacted] , DSCYF (by email)
K [Redacted] D [Redacted] , DSCYF (by email)
Shauna Hagan, Esquire (by email)
Brian Jordan, Esquire (by email)
Alfred Lindh, Esquire (by email) Date emailed: 4/8/2019