Opinion
CK23-02583
03-06-2024
V. H., Petitioner, v. P. H. and R. E., Respondents. In the Interest of: N. H. (DOB --/--/20)
Petition for Permanent Guardianship Petition No. 23-20124
ORDER
JAMES G. McGIFFIN JR., JUDGE.
Before the HONORABLE JAMES G. MCGIFFIN, JR., JUDGE of the Family Court of the State of Delaware:
On February 14, 2024, the Court convened on the Petition for Permanent Guardianship of a Minor filed by V. H. (Maternal Aunt), against P. H. (Mother) and R. E. (Father), in the interest of N. H., born ___ _, 2020. Petitioner appeared with counsel, Candace Holmes. Father appeared self-represented. Mother did not appear, though she filed a form indicating her consent to the Permanent Guardianship.
This petition was filed September 12, 2023.
Father sought a continuance of the trial by motion filed the day of trial. He asserted that he did not have time to prepare for the trial. But Father did not seek a continuance when he learned of the trial while in conversation with the representative of Children's Choice on February 5, 2024. He did not seek a continuance after engaging in a telephone call with Maternal Aunt's counsel on February 6, 2024. He did not seek a continuance when he was in the Family Court building in Dover on February 7 or 8, 2024, to review the record. Maternal Aunt, counsel, and Maternal Aunt's witnesses all appeared in person for the trial. The Court denied Father's request for a continuance.
Our law allows that a Permanent Guardianship order enter upon the Court's finding, after a hearing on the merits, that a petitioner has established by clear and convincing evidence:
• a statutory ground for termination of parental rights or consent of the parents;
• adoption of the child is not possible or appropriate;
• permanent guardianship is in the best interests of the child;
• the proposed guardian meets certain requirements.
FACTS
Mother consented to this guardianship and signed the Permanent Guardianship Affidavit of Consent of a Child's Parent (Form 202P).
Maternal Aunt has been the primary caregiver for the child since the child was discharged from the hospital after her birth.
The staff of Children's Choice performed the study that resulted in the social report required by the statute. The preparer of the report spoke with Maternal Aunt, Mother, and Father. The report includes the information developed in an interview with Maternal Aunt about family history, the health of Maternal Aunt and child, the parenting philosophy and practice of Maternal Aunt, the developmental progress of the child, and reviewed the best interest factors in light of the information developed in this case.
S. H. (Maternal Grandmother) lives in the home with Maternal Aunt and the child. She has observed that Maternal Aunt and the child love each other and play together happily. The home is frequently visited by Mother. The child and Mother have a good rapport. The child's cousin, an eight-year-old boy, also visits frequently and the two children are good playmates.
Maternal Grandmother reported that Father has visited the home five or six times to see the child. Father and child never left the H. home during his visits with the child. Maternal Grandmother noted that the child does not know Father. During visits, Father broke the ice with a candy bar. Father's last visit with the child was a year and a half ago.
Maternal Aunt has cared for the child since the child came to her home in Kenton from the hospital in Dover, while Mother returned to Maryland to live and work. Maternal Aunt is the natural granddaughter of Maternal Grandmother and is the adopted daughter of Maternal Grandmother. She is the child's aunt.
Maternal Aunt estimates that Father has seen the child five to seven times. He last visited with the child in September 2022. She is aware that Father scheduled other visits that were canceled for reasons beyond his control (like Maternal Grandmother's health). Those canceled visits were all scheduled before September 2022. Father never initiated telephone or other electronic means of contact with the child. The child has never met her paternal siblings.
Maternal Aunt noted that Father pays child support regularly and has done so for more than a year and a half.
Father testified that his life was complicated when his home burned down on December 26, 2020. He has moved six times since then and now lives in Dundalk, Maryland. Father acknowledged that he has seen the child a small number of times. He recalled a visit that he set up with Mother in 2021. He expected Mother to develop a plan for his contact with the child. He is now ready to resume visitation with the child. He asked Mother for a visit on April 15, 2023, and on July 15, 2023, but those visits did not take place. He has health insurance available to the child. Father can better address the financial needs of the child now than in the past.
Father's motivation in this litigation is prevention of the loss of his "parental rights," by which he seems to mean his moral or legal entitlement to call himself the father of this child. The practical joys and challenges related to the exercise of parental rights do not move Father to act.
Father does not object to the child continuing to reside with Maternal Aunt and attending school in Delaware. He would be willing to host the child over summers.
Grounds
Maternal Aunt asserts that Father intentionally abandoned the child, unintentionally abandoned the child, and failed to plan for the child.
In addition to the statutory definition of intentional abandonment, Delaware Supreme Court jurisprudence holds that the evidence must indicate the parent had a "settled purpose" to relinquish all parental claims and to forego all parental duties for six consecutive months of the twelve months preceding the petition. A "settled purpose" is established by "a present continuing intent to abandon up to the time the termination proceedings were filed." The relevant twelve-month period began September 12, 2022. There is no evidence in the record that Father made any attempt to see the child during the six months beginning October 1, 2022, and ending March 31, 2023, but Father paid child support regularly during this period of time. I find no evidence of Father's subjective intent necessary to establish a "settled purpose."
Mitchell v. Thayer, 2024 WL 319991, at *4 (Del. Sup. Jan. 29, 2024).
Barr v. Div. of Family Services, 974 A.2d 88, 94 (Del. 2009).
Teachem v, Terry, 56 A.3d 10411047, 1049 (Del. 2012).
Maternal Aunt argues, in the alternative, that Father unintentionally abandoned the child. To establish this ground, the evidence must be clear and convincing that Father failed to communicate or visit regularly with the child, to file or pursue a petition to establish a right to contact or visitation with the child, and to manifest the ability and willingness to assume legal and physical custody of the child. The relevant period began March 12, 2022. Father visited with the child one time in that period. He did not provide evidence of attempts to visit at any other time during the relevant period. Father never attempted to communicate with the child. And before this hearing there is no evidence that he ever manifested and ability and willingness to assume legal and physical custody of the child. The evidence is clear and convincing that Father unintentionally abandoned the child.
The statute references a petition to establish paternity, but I assume paternity was establish in the context of the Maryland child support action.
Maternal Aunt also argues, in the alternative, that Father failed to plan for the child. A finding of failure to plan requires a concurrent finding that the child is dependent or neglected.There is no suggestion in this record that the child has ever been dependent. The statutory definition of "neglect is this (in relevant part):
13 Del. C. § 1103(a)(6).
"Neglect" or "neglected child" means that a person:
a. Is responsible for the care, custody, and/or control of the child; and
b. Has the ability and financial means to provide for the care of the child; and
1. Fails to provide necessary care with regard to: food, clothing, shelter, education, health, medical or other care necessary for the child's emotional, physical, or mental health, or safety and general well-being;
10 Del. C.§ 901(18).
Although Father may have neglected the child in the colloquial sense, he paid child support regularly during the relevant period. The child is not neglected by Father as required by the statute describing a failure to plan.
Defined by Merriam-Webster to mean "to give little attention or respect to" and "to leave undone or unattended to especially through carelessness." https://www.merriam-webster.com/dictionary/neglect.
Maternal Aunt established by clear and convincing evidence that Father unintentionally abandoned the child.
Best Interests
The Court determines the best interests of the child by considering all relevant factors including:
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother supports the permanent guardianship. Father opposes the permanent guardianship. He is content to allow the child to live with Maternal Aunt for most of each year. He is open to caring for the child over the summer school breaks, but he does not assert that position with any conviction. Factor 1 favors the petition.
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
The child's young age prevents the Court from eliciting meaningful evidence on this question. This factor is neutral.
(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;
The child has bonded with Maternal Aunt and Maternal Grandmother. Her relationships with those women are positive and loving. Mother often visits the home and the child. The child has no relationship with Father. When she has encountered Father, she has warmed up to him, with the help of the candy he gives her. The child has indicated she likes Father's wife more than she likes Father. This factor favors the petition.
(4) The child's adjustment to his or her home, school and community;
The child attends pre-kindergarten at N. S. E. School. She loves school. She has friends at school and friends in the neighborhood. She is visited by her 8-year-old cousin C.. The child enjoys swimming at various pools and engaging in activities at K. S. in M. (a self-described "milestone accelerator" for kids to age 11). This factor favors the petition.
(5) The mental and physical health of all individuals involved; There is no evidence of health issues in this case. This factor is neutral.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
The father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare and education. 13 Del. C §701.
Maternal Aunt has functioned as the only parent for this child. Father has been absent. This factor favors the petition.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
There is no evidence of domestic violence clouding this case. This factor is neutral.
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
There is no issue of criminal history in this case. This factor is neutral.
I find clear and convincing evidence that the permanent guardianship serves the best interests of the child.
IT IS HEREBY ORDERED that V. H. (Maternal Aunt) is awarded permanent guardianship of N. H. Mother's visitation shall be as she and guardian agree. Father's visitation shall take place two days each month, form 9:00 a.m. to 6:00 p.m. to be scheduled as he and the guardian agree. Father and the guardian may agree to other visitation arrangements.
The Court understands that Mother has freely visited with the child before the entry of this order.
V. H. is hereby granted all the powers and duties of a Guardian pursuant to 13 Del. C. § 2340, including but not limited to:
(1) The Guardian is entitled to custody of the child and may establish the child's place of abode within or without this State.
(2) The Guardian shall provide the child with:
a) A physically and emotionally healthy and safe living environment and daily care;
b) Education; and
c) All necessary and appropriate medical treatment including, but not limited to medical, dental and psychiatric examinations, treatment and/or surgery.
(3) The Guardian shall make decisions regarding:
a) Education;
b) Travel;
c) All necessary and appropriate medical treatment, including but not limited to medical, dental and psychiatric examinations, treatment and/or surgery;
d) The child's right to marry or enlist in the armed forces;
e) Representation of the child in legal actions; and
f) Any other matter that involves the child's welfare and upbringing.
(4) The Guardian shall:
a) Be responsible for the health, education and welfare of the minor child; and
b) Comply with all terms of any Court Order to provide for the child's parents with visitation, contact or information.
IT IS SO ORDERED.