Not Reported in A.2d, 2004 WL 2334168 (Del.Fam.Ct.)
(Cite as: Not Reported in A.2d)


UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

 

Family Court of Delaware.

DIVISION OF FAMILY SERVICES OF THE DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES Petitioner,

v.

S R, J B and Q H, Respondents.

No. 02-11-04TN.


June 10, 2004.


Patricia Dailey, Deputy Attorney General on behalf of Petitioner.

David J. Haley, on behalf of Q S H.

Vivian A. Houghton, on behalf of S R.

Darryl Rago, on behalf of J B.

Tania A. Culley, Guardian Ad Litem.


DECISION REGARDING PETITION TO TERMINATE PARENTAL RIGHTS

COONIN, J.


NATURE OF THE PROCEEDINGS


*1 This matter is before the Court on the Petition of the Division of Family Services of the Department of Services for Children, Youth and Their Families herein after (“DFS”) seeking to terminate the parental rights of S R (“Mother”) and Q S. H (“Hunter”) in their minor son, K A H(“K”) born October 11, 2000 as well as Mother and J B(“B”) in their minor son, E B(“E”) born September 24, 2001. In its' Petition, DFS alleges “failure to plan” FN1 as to Mother and both fathers and alternatively, “abandonment.” FN2 A third ground for Termination of Parental Rights was alleged as to B, his conviction for Unlawful Sexual Intercourse in which the victim was a child. FN3 After initially opposing termination of his parental rights, B executed a voluntary consent. Both Mother and H oppose the termination of their parental rights as to K.FN4


FN1. Tit. 13 Del.C. Ann. Sec. 1103(a)(5).


FN2. Tit. 13 Del.C. Ann. Sec. 1103(a)(2).


FN3. Tit. 13 Del.C. Ann. Sec. 1103(a)(4)(a).


FN4. Mother's position at trial was to support the termination of her parental rights conditioned upon K and E being adopted by their Maternal great-grandmother, M S. H supported the termination of his parental rights in K provided K be adopted either by a member of Mother's family, or H's sister, K E. Inasmuch as neither Mother nor H executed voluntary consents to the termination of their parental rights coupled with the opposition of DFS to the adoption of either child by these two relatives, the Court treats the positions of both Mother and H as being opposed to TPR.


Trial on this matter was held on May 15 and 16, 2003, followed by the submission of post-trial memorandum. This is the Court's decision with regard to the Petition to Terminate Parental Rights in these two children.


CONTENTIONS OF THE PARTIES


DFS contends that the evidence supports a finding that the statutory ground of failure to plan FN5 has been established with regard to Mother in both boys and H as to his son K, as well as abandonment,FN6 by both K's parents and a finding of the ground of voluntary consent to termination of parental rights by B. With regard to both boys, DFS contends it is in their best interests that Mother and their respective Fathers' parental rights be terminated so that the boys may be freed for adoption by a family deemed appropriate by DFS. That family has been identified by DFS as the boys' current foster parents.


FN5. Tit. 13 Del.C. Ann. Sec. 1103(a)(5).


FN6. Tit. 13 Del.C. Ann. Sec. 1103(a)(2).


Respondent Mother concedes that from the time that the boys were first taken from her and placed in foster care, she requested that DFS not plan for their reunification with her, but rather, with her maternal grandmother, the boys' maternal great-grandmother, M S (“MGGM”), with the intention that the boys be adopted by Ms. S.


Hunter initially raised as affirmative defenses (1) that the proceedings to terminate his parental rights were subject to the Indian Child Welfare Act, FN7 and (2) that the termination of his parental rights while he was incarcerated at a Federal Prison in Wisconsin violated that Equal Protection and Due Process Clauses of the Fifth and Fourth Amendments to the United States Constitution as well as the Constitution of the State of Delaware. In his response to the Court's directive that he provide a post-trial memorandum on these issues, his counsel conceded that there was in fact no constitutional bar to this proceeding, and that notwithstanding the opportunity to provide additional evidence in support of his claim to the protections of the Indian Child Welfare Act, no further evidence would be presented beyond the testimony at trial. H through his counsel, did argue however that it would be in K's best interest if he were to be adopted by his half sister in Missouri, K E, notwithstanding that such adoption would result in the separation of K from E.


FN7. 25 U.S.C. § 1901 et seq.


*2 The Guardian ad litem for K and E supports DFS' Petition for Termination and Transfer of Parental Rights so that they may be freed for adoption by their current prospective adoptive resource foster parents. The Guardian ad litem asserts that it is not in either boys' best interest that they be raised by their Maternal great-grandmother, nor that they be separated so that E be raised by his Paternal aunt, K E.


CASE HISTORY


K A H (d.o.b.10/11/00) and E B (d.o.b.9/24/01) came into DFS foster care under an Emergency Ex Parte Order dated March 1, 2002. A Preliminary Protective Hearing was conducted on March 5, 2002 at which time the Court found that there was probable cause to believe that the boys were dependent as all three Parents were incarcerated at that time.FN8 In its March 8, 2002 decision, the Court noted that while the boys had been residing in the New Castle trailer of Maternal great-grandmother, M S, that during the year 2001 alone, 10 incidents of domestic violence among various family members at that residence had been reported to the police. As a result, the family, including Maternal great-grandmother had entered into a safety plan with DFS promising that no further such incidents would occur at the trailer. On two subsequent occasions when problems arose, Maternal great-grandmother instructed family members not to call the police in order prevent DFS from learning of such incidents.


FN8. 10 Del.C. Anno. § 901(8).


In the Court's decision of March 8, 2002, the Court found that while Maternal great-grandmother appeared to be capable of caring for the children and while the evidence suggested that they were well fed, properly clothed and in need of no medical attention, DFS had expressed concern at that time that Maternal great-grandmother was not capable of preventing individuals who might pose threats to the children from coming to the residence. The Court concluded at that time that Maternal great-grandmother's need to rely upon other family members to assist her in caring for her great-grandsons, coupled with the extensive history of domestic violence among various family members and maternal great-grandmother's reluctance to call the police to report such incidents made placing the children in the home of Maternal great-grandmother inappropriate.


An Adjudicatory Hearing was held on April 12, 2002. By stipulation of the parties, the Court found that the boys remained dependent and that it was in their best interest for custody to remain with DFS. The Court further found that in light of the Parents' incarceration, DFS was not required to plan for reunification with any of the three at that time. Additionally, no case plan was required with regard to J B due to his conviction of a felony involving a sex offense against a child. The parties stipulated at that hearing that at such future time as an appropriate safety plan was in place to protect the boys, placement of the boys in the home of Maternal great-grandmother might be appropriate.


*3 A Dispositional Hearing was conducted on May 15, 2002, in order to review and approve Case Plans for great-grandmother and the boys. DFS offered at that time a Case Plan with a goal of custody to Maternal great-grandmother, a plan opposed by the Guardian ad litem due to continuing questions regarding the ability of Maternal great-grandmother to care for the boys and her failure at that time to identify other individuals who would be appropriate to assist her in caring for them or take over their care if she were unable. Maternal great-grandmother had at that point in time, suggested several family members, each of whom either declined to assist or was rejected by DFS due to having histories of domestic violence, mental health issues or having personally needed DFS services in the past. Maternal great-grandmother was granted visitation of 2 times per week with a direction by the Court that prohibit other family members from being present when the children were visiting her and in her care. The purpose of this condition was to enable Maternal great-grandmother to demonstrate appropriate caregiving on her own, without the assistance or interference of others. Once DFS was satisfied of Maternal great-grandmother's abilities and the availability of appropriate assistance, if necessary, the Court authorized DFS to permit Maternal great-grandmother to exercise overnight visitation.


On July 30, 2002, the Court conducted a Review Hearing and addressed the Guardian ad litem's Motion that the Court direct that no further reasonable efforts to plan for reunification be undertaken with regard to Mother or with regard to B or H, the fathers of the two boys. With regard to H, after consideration of the fact that he was and expected to remain incarcerated in Federal prison in Wisconsin until October 2006, the Court found that both distance and longevity of time rendered it unfeasible for DFS to plan with him for reunification, directing that no further effort in this regard need be undertaken. The Court deferred rendering a decision with regard to the exercise of reasonable efforts at reunification with either Mother, or B until October 9th pending completion of genetic testing with regard to B and the appointment of legal counsel to represent him. By that time, Maternal great-grandmother, M S, having completed a required parent education class and participating domestic violence counseling had requested an increase in visitation. DFS opposed that request as it had not yet determined whether Maternal great-grandmother was an appropriate adoptive resource, and therefore felt that increasing her visitation would send the improper message to the children that they were going to be returned to her home in the near future. The Guardian ad litem argued that since DFS could only be under a legal obligation to plan with Parents, and that planning with relatives, such a Maternal great-grandmother, occurred only where it appeared to be in the best interest of the children to do so, that further planning with Maternal great-grandmother, including increasing visitation with the children, served no useful purpose in serving the children's best interest, until such time as a determination was made that Maternal great-grandmother would be an appropriate adoptive resource. Accordingly, the Guardian ad litem suggested that an independent agency undertake an adoptive home study to determine whether Maternal great-grandmother, M S would be recommended as an adoptive resource for these children, should parental rights be terminated. After hearing argument, the Court ordered an adoptive home study be performed by Catholic Charities with regard to maternal great-grandmother, M S. Additionally, the Court entered a visitation schedule for Maternal great-grandmother which allowed for incremental increases as well as monitoring of her visitations to determine appropriateness of her care and safety of the children and authorized overnight visitation conditioned upon maternal great-grandmother's approval as an adoptive resource in the home study.


*4 On October 23, 2002, the Court conducted a Permanency Hearing and, in addition, addressed the issue of whether DFS was to remain under an obligation to provide reasonable efforts at reunification to Mother and B. The Court found that as Mother had, from the time the boys entered foster care, continually advised the Court that DFS need not exercise efforts to reunify the children with her, DFS was not obligated to do so. With regard to B, the Court found that as he had been convicted on December 18, 1997 of unlawful sexual intercourse, 3rd degree, a crime in which the victim was a child, that no efforts at reunification need be undertaken with regard to B.FN9 Evidence was presented at that hearing that pursuant to the Court's prior order, Leonore Dauphin of Catholic Charities had performed the adoption home study, which had rejected Maternal great-grandmother as an acceptable adoptive resource. As a result of the negative home study, visitation with maternal great-grandmother had not been increased by DFS. As previously ordered, the boys continued to exercise one hour per month visitation with Mother at the trailer, supervised by maternal great-grandmother, and 7 hours per week of visitation with maternal great-grandmother of which 6 hours per week were exercised by maternal great-grandmother with no other family members present. Notwithstanding such conditions, the evidence established that maternal great-grandmother had violated the conditions of her visitation on two occasions in which the boys grandmother, M R was allowed to be present. At the conclusion of that hearing, the Court entered a written order dated October 25, 2002, approving a Permanency Plan of Termination of Parental Rights for purposes of adoption and modified visitation for both Mother and maternal great-grandmother. Under the Court's order Mother was permitted visitation only at the Children's and Families First office for one hour per month. Maternal great-grandmother's visitation was reduced to one day per week of four hours at a time, with the restriction that no other family members were to be present during such visitation. DFS was given the authority to withhold visitation if it determined that maternal great-grandmother had violated the Court's prohibition against the presence of any other family members during MGGM's visitation. In order to determine compliance by MGGM, DFS was granted the authority to randomly monitor the visits.


FN9. Titl. 13 Del.C. Anno. § 1103(b).


On November 21, 2002, DFS filed a Petition to Terminate Parental Rights.


On May 8, 2003, the Court conducted a hearing by telephone at the request of the Guardian ad litem to suspend MGGM's visitation on the basis that an investigation had determined that she was in violation of the Court's order of October 25, 2002 by allowing Mother to appear during visitation sessions with the boys and permitting Mother unsupervised visitation with one of the boys who she removed from the home. As the Court's prior order had granted DFS' authority unilaterally to suspend such visitation upon evidence of such a violation by MGGM, and upon it being represented by DFS that it intended to immediately exercise the authority granted by the Court to suspend M S's visitation, the Court denied the Guardian ad litem's motion as premature.


SUMMARY of TESTIMONY


*5 Fourteen witnesses testified over a two-day period. DFS presented the testimony of Kelly Enslin, Dana Hayes and Marsha Trimper, three caseworkers involved in this matter since the two boys came into foster care. The Guardian ad litem who, like DFS, supports Termination of Parental Rights, presented testimony of six witnesses, Natalie Rickards, the boys foster mother who desires to adopt them, Leonore Dauphin, the social worker from Catholic Charities who performed the adoptive home study of Maternal great-grandmother, Christina Mazzeo, S R' correction's counselor during three periods of incarceration, James McDermott, an investigator employed by the Division of Family Services, Benita Willard, a parent aid assigned to work with Maternal great-grandmother and Dr. Michael Kho, Mother's treating psychiatrist during the year 2001. While the boys' Mother, S R failed to appear at the hearing, Mother's attorney called three people to testify in support of her position that the best interests of the boys would not be served by termination of her parental rights; Maternal great-grandmother, B M, a public health nurse, and M V, Mother's sister. H's attorney, in addition to having H testify by phone from his Federal Prison in Wisconsin, also presented telephone testimony by H's sister, K E.


Kelly Enslin was the case worker assigned to this case in March of 2002. She made contact with H at the prison in Wisconsin where he was serving time for a weapons charge and ascertained that he would not be released for an additional five years. H advised her that he had contacted relatives regarding possible placement of K but Ms. Enslin never received calls from any of H's relatives. At some point becoming aware that H's sister K E was a potential placement resource, Ms. Enslin attempted unsuccessfully to reach her by phone. Ms. Enslin wrote Ms. E a letter advising her that if she is interested in pursuing placement, she should contact Dana Hayes who would be taking over the case from Ms. Enslin.


According to Ms. Enslin, at the time the children came into foster care, they had been residing in MGGM's trailer for approximately a year and a half. Prior to the removal, there had been a number of complaints involving S, S's sister, and S's mother. When Ms. Enslin first met with S R, Mother advised her that her plan was for her children to be raised by MGGM M S, by whom Mother wanted them adopted. From the beginning of her involvement with this case, Ms. Enslin had concerns because of the family history of domestic violence, the home's physical environment, and doubts regarding the ability of Maternal great-grandmother to raise two active young boys. Ms. S's trailer was small. Ms. Enslin felt that this particular trailer park was a poor place to raise the boys. The trailers were crowded together with a lack of outside space in which the boys could play. While M S herself was a loving caring person, as the matriarch of the family, her home was frequented regularly by the several generations of women in her family. It was the presence of these other family members, participants in numerous instances of domestic violence over the years, including some in the presence of the boys, that caused Ms. Enslin concern.


*6 Over time Ms. Enslin determined that a permanency plan in which the boys were to be raised by Ms. S was not in their best interest because Maternal great-grandmother probably would not be able to cut herself off from the disruptive members of her family. Ms. Enslin's concerns were communicated to MGGM who was dismissive of the suggestions. Nevertheless, at Ms. Enslin's request, MGGM attended domestic violence classes as well as met with a domestic violence therapist, Jean Kisser. Ms. Kisser at one point reported to Ms. Enslin that MGGM was also dismissive of the counselor's concerns regarding domestic violence.


Kelly Enslin strongly opposes H's suggestion that K should be separated from E and sent to live with H's sister K E. According to Ms. Enslin, while H did request that he be sent pictures of K, to her personal knowledge, H has never paid any child support, never sent anything to his son nor has he ever seen K. Ms. Enslin believes that separating K and E would be emotionally damaging to the boys. She opined that it would be in the boys' best interest if they stayed together and were to be adopted by the foster parents in whose home they have resided since coming into foster care.


DANA HAYES


Dana Hayes succeeded Kelly Enslin as the case worker. In September of 2002, Ms. Hayes wrote K E a letter requesting that she contact her if she was interested in becoming a placement resource for K. In October, 2002, Ms. Enslin spoke with H's sister K and advised her that an Interstate Compact for the Placement of Children home study would need to be performed in Missouri. When this was never accomplished, they spoke again but Ms. Hayes had no explanation as to why Missouri had never undertaken an ICPC.


According to Ms. Hayes, Ms. E advised her on several occasions that she did not have the resources to care for K and that if she were permitted to adopt K, she would need financial assistance. At that time Ms. E was engaged to be married and was raising four children on her own. When questioned by Ms. Hayes, Ms. E admitted that there had been occasions when Missouri Child Welfare officials had investigated her with regard to her own children.


Ms. Hayes attempted one communication with H by sending him a letter. Throughout the time that she handled the case, she never received any correspondence, phone calls or requests for pictures from H. To the best of her knowledge, H has neither seen his child nor expressed any interest in developing a plan for his child's future.


Ms. Hayes sees the boys weekly. She described K and E as being very close, frequently holding hands while sitting in their car seats. The two boys share a room in their foster home. K acts the big brother role towards E, being protective and seeking adult assistance whenever E appears upset. While Ms. Hayes expressed concern about the boys should they be separated, she acknowledged that in some cases, agreements have been made so that siblings could maintain some contact.


*7 Ms. Hayes is of the opinion that adoption by the R's family is in the boys' best interest. The boys are bonded to their foster parents and are viewed as part of the family. The R have other children who are adopted and are open with their children concerning their birth parents, encouraging those of their children who are interested to communicate with their birth parents. Although Ms. Hayes believes that termination of parental rights and adoption by the R would be in the best interest of these two boys, on cross examinations, she acknowledged that the boys do have a bond with their Maternal great-grandmother and appear excited to visit with her.


At the time of the hearing, S R was reported being pregnant and had recently married in January. She had been taking AZT for treatment of AIDS, but was not taking it at the time of the trial. Once released from her previous incarceration, Mother was placed on probation which, as a condition, prohibited Mother from having any contact with M S's trailer.


MARSHA TREMPER


Ms. Tremper has been employed by DFS for over 20 years. She became assigned to this case after it was designated as being in termination of parental rights status. Throughout the time that she has been involved with the case, she has received no communications of any type from H, although she has had communication with his sister, K E.


In April of 2003, Ms. Tremper received a call from K E who was upset that no one from the State of Missouri had contacted her regarding an ICPC home study. Although Ms. Hayes testified that she mentioned to Marsha Tremper that she had informed K E that an ICPC home study would be done in Missouri, Ms. Tremper advised Ms. E that she wasn't sure from whom she had heard that information. She told K E that she was looking for a family to raise both of the boys and explained how the adoption process worked. She advised Ms. E that if she wished to be considered for adoption of the boys, Ms. E should contact an agency in Missouri and arrange for a home study to be performed and have it mailed to Ms. Tremper. No home study regarding Ms. E was ever received. According to Ms. Tremper, if Ms. E had presented an adoption home study, it would have been presented for consideration to the Permanency Committee along with the home study from the R family. At no time in their conversations did Ms. E raise the issue of visitation with the boys.


In November 2002, DFS's Permanency Committee met and determined that the joint adoption of the two boys was the appropriate goal and that the R were identified as an adoptive resource. The week before the hearing in this matter, DFS approved the R as the adoptive home for the two boys based upon a desire to keep the boys together due to the bond between the boys and the bond that has developed between the boys and their foster parents. The R' experience in adopting other children weighed favorably in the decision, according to Ms Tremper.


N R


*8 In March of 2002, E, then 5 months old and K, 1 year-old, were placed in the R' home. In addition to Ms. R and her husband of 14 years, the family consists of their son, S age 9, and three adoptive children, L age 8, S and A both age 5. She describes L and K as being close buddies who play together a lot. S is viewed as everyone's big brother and he is very protective of the younger children, especially E. S plays “mommy” picking out clothes for the boys. A and K engage in a “love/hate” relationship, frequently vying over who gets to play with certain toys.


B R is very close to the boys. He gets up with them in the morning and when he returns home from work, E is by his side. Her husband loves K and E very much. Both she and her husband view the boys as part of their family and yet at the same time, she recognizes the importance of their connection with their birth parents. The children have pictures of their birth parents which they share with each other. It is important to Ms. R for her to stay in touch with the birth families. As she provided transportation for the boys for visitations at Maternal great-grandmother's trailer, she is familiar with the setting. She went in Maternal great-grandmother's home once and indicated that Maternal great-grandmother treated her with respect. She described the trailer as clean and cozy.


When questioned about H's Indian ancestry, she stated she believed that maintaining a connection with a child's heritage is important. One of her adoptive children is African-American. Her sister has adopted two children who are of Asian extraction. She believes that it is important to encourage the children to recognize and observe their backgrounds.


If the R are permitted to adopt K and E, they do not plan to adopt any additional children in the future.


LEONORE DAUPHIN


Employed for 38 years at Catholic Charities, Leonore Dauphin has performed over 100 home studies she performed the home study of M S which rejected Ms. S. From M S, Ms. Dauphin learned that she would like to care for her great-grandsons. Ms. S, in Ms. Dauphin's opinion, lived an unstable lifestyle. While she personally was very likeable, Ms. Dauphin views Maternal great-grandmother as a pleaser who makes her decisions from her heart, not based on intellect. Ms. Dauphin expressed several reasons for her concern regarding the ability of M S to raise the boys. First, she believes that MGGM lacks the ability to appropriately discipline children. Ms. S's children and grandchildren who gravitate to her home have been involved with issues relating to domestic violence for a number of years. Second, MGGM is dependent upon other family members for transportation for every aspect of her daily life as Maternal great-grandmother does not drive. Third, Ms. S's health and age are also concerns to Ms. Dauphin. While Ms. S describes her health as generally good, she suffers from hypertension and osteoporosis and acknowledged that her health could be affected by stress. Fourth, at 72 years of age, M S is viewed as too old to take on the day to day responsibility of raising active young boys. Fifth, Maternal great-grandmother has financial issues as well. M S's income is not adequate to meet her own daily expenses, let alone the added expense of raising two children. At the present time, M S requires financial assistance from her family to meet current necessities. Sixth, Ms. Dauphin believes that the trailer is too small a space in which to raise two boys, especially when they get older. Because of these concerns, Ms. Dauphin testified that she could not recommend M S for adoption of her great-grandsons.


CRISTINA MAZZEO


*9 Cristina Mazzeo is senior correctional counselor at the Baylor Women's Correctional Institute where she has been employed for 3 1/2 years. She was S R' counselor in 2001-2002. On three occasions during her incarceration, S R threatened or attempted to cause physical harm to herself. During S's incarceration she was on medications prescribed by the prison psychiatrist.


JAMES MCDERMOTT


James McDermott, a special investigator for the Division of Family Services and retired New Castle County police officer was called by the guardian ad litem to testify primarily regarding the history of domestic violence incidents reported to the police, most of which occurred at Maternal great-grandmother's trailer. All told, during the three year period between September of 1999 and December of 2002, there were some 20 reported incidents.


On May 8, 2003, while operating surveillance of Maternal great-grandmother's trailer, McDermott videotaped S R escorting the boys out of the trailer and, for a period in excess of one hour, being left unsupervised with them. Such action on the part of S R constituted two separate violations of this Court's Order of October 25, 2002, (1) Mother's visitation had been restricted to supervised visitation at the Children and Families First office, and (2) Maternal great-grandmother, during her one day per week visitation with the boys was not permitted to allow other family members to be present. DSCYF had been authorized by the Court to “monitor” the visits to ascertain compliance, hence McDermott's surveillance.


BENITA WILLARD


Benita Willard, a Children and Families First's parent aid for 12 years was assigned to work with S R and her family from October 2000 through February 2001, during which time she would visit the home 2 times per week to observe the interaction of Maternal great-grandmother and the boys, and provide instruction in parenting. According to Ms. Willard, there were numerous arguments between S and her sisters at the trailer as they were nasty towards each other. During one occasion in late February, 2001, Mother became verbally threatening towards Ms. Willard who filed criminal charges resulting in a criminal conviction against Mother. These incidents of verbal abuse involving Mother and her family would occur in the presence of the children and Maternal great-grandmother. Maternal great-grandmother was never, herself abusive, according to Ms. Willard. Maternal great-grandmother was described by Ms. Willard as being passive during these incidents. Ms. Willard described Maternal great-grandmother's interaction with the boys during such visits as sitting and watching television. Maternal great-grandmother told Ms. Willard that S had always acted that way towards others and that MGGM just couldn't do anything about it. It was Ms. Willard's impression that MGGM, although not the direct object of Mother's hostility, had no control over S R and was afraid of S.


DR. MICHAEL KHO


*10 Dr. Michael Kho, the chief psychologist for the Delaware Department of Corrections is employed by First Correctional Medical, Inc. He treated S R from December 2001 until November 2002. During that time period, S engaged in multiple suicide attempts. Mother's diagnosis at that time included AXIS I-Depression and Intermittent Explosive Disorder constituting a danger to both herself and others; AXIS II-Borderline Personality Disorder including unstable self-image, mood swings and instability in relationships, impulsivity, sexual promiscuity and micro-psychotic episodes; AXIS III-HIV Positive, non-compliant with treatment; AXIS IV-Chaotic Family Background. He described her prognosis for recovery as poor, unless she was compliant with a treatment program that included counseling, medication, and some 2 to 3 years in a structured environment.


M S


M S, age 72, is S R' grandmother, and is the maternal great-grandmother of K and E. Her trailer, at South Dupont Highway, Lot, has been her home for 3 years. The trailer was purchased by MGGM and her daughter, M R, who remains obligated on the payment. According to MGGM, M provides her with some $300 to $400 per month from which she pays her bills.


MGGM's trailer has 2 bedrooms. If the boys are permitted to return to her home, MGGM would need to change the backroom into a bedroom, that being the location of their crib and youth bed when they previously lived there. MGGM described her neighborhood as a good one although she acknowledges that even when the boys got to be 5 or 6 years old, they could not be allowed outside unsupervised. Outside play would require travelling to Battery Park in New Castle. As MGGM does not drive, she relies upon family members or neighbors to provide her with transportation. She does however possess a driver's license and opined that “I probably could figure it out in an emergency” although she does not own a car. MGGM loves K and E and would like to raise them. She has complied with DFS's request that she attend parenting classes and domestic violence classes. According to MGGM she believes she has learned the effects of domestic violence and abuse on family members and on the children and has studied techniques for disciplining children.


MGGM is dismissive with regard to the history of domestic violence in her family. According to MGGM, a number of the calls to the police were made by her granddaughters when they got angry at each other. MGGM testified that she would tell the girls not to call the police as such calls were “over silliness” and that the girls just overreacted, although she did acknowledge that the incidents did result in S R going to the hospital on several occasions. One such call to the police resulted in Mother going to the hospital after taking an overdose of aspirin. MGGM described this incident as S merely wanting “to get someone's attention”. MGGM claims that her granddaughter, S never abused her physically, only verbally, dismissing its importance with “I can take it”. Under cross-examination, MGGM admits that notwithstanding her denial that S got physical, S may have slapped her once on the arm. While MGGM testified that she learned in her domestic violence counseling sessions that abuse is not limited to physical consequences and that verbal abuse may be harmful, in practice, she still dismisses those consequences.


*11 When questioned about the incident in which Mother became abusive towards to the parent aid in the presence of both of the young boys, MGGM admitted that she observed the abuse but did not remove the boys from the room, allowing them to remain and witness the incident. MGGM acknowledged that on three occasions she allowed S to stop by the trailer when the boys were there. According to MGGM, S's presence was not a danger to the boys because “I know she wouldn't harm them”. MGGM justified her repeated violations of the Safety Plan and Orders of this Court in allowing Mother to be present as merely being bad judgment, justified because “I did it from the heart”. Even when told directly by S R that she was under a Court Order not to be at the trailer, MGGM professed to not believe S and not understand why S was not permitted to be there. S R continued to stay at MGGM's trailer some nights, but, according to MGGM, does not live there. MGGM described her health as good; she takes medication for blood pressure and osteoporosis.


BARBARA MENGERS


Barbara Mengers is a registered nurse with 22 years experience with the Division of Public Health. She worked with the family when K was a newborn. The reason of her call on the family related to Mother's health, S being HIV positive, suffering from bi-polar disorder and exhibiting uncontrollable anger. As a result of Mother's HIV status, K was placed on a regimen of AZT for the first 6 months of his life. As part of her duties, Ms. Mengers would visit weekly, weigh the baby and help the family deal with parenting issues. She worked with the family from October 2000 through November 2001, during which time all of her interaction occurred at Maternal great-grandmother's trailer.


Ms. Mengers described the appearance of the trailer as clean but the quarters being close. The household dynamic was very difficult, according to the nurse. The boys' Mother, S was disruptive and confrontational. MGGM, the primary caregiver was attentive to the baby's needs, but Ms. Menger believed that even then, caring for an infant and an 11 month-old was very demanding on Maternal great-grandmother. The dynamic between MGGM and her family members was a considerable problem to Ms. Mengers. While Maternal great-grandmother would attempt to be a peacemaker and resolve conflicts in the family, the family rarely listened to her. Notwithstanding MGGM's support for the request that smoking not occur within the trailer, the family members would ignore MGGM, and the trailer was frequently smoky.


S was described by this witness as having a confrontational and abusive personality being vocally aggressive. Her sister R was described similarly. The presence of S's mother, M, was disruptive as well. While Maternal great-grandmother's interaction with M was described as that of a would be “peacemaker”, Ms. Mengers felt that M was controlling of MGGM. On several occasions when M was present to provide transportation, she would enter the trailer in an angry mood because she perceived the children as not being ready when she arrived.


M V


*12 M V, nee M R, age 21, is S R' sister. She is currently married and has a 9 month-old son. At one point in time, around the age of 14 or 15 she lived with Maternal great-grandmother, but went into foster care herself at age 16. She describes herself as having a good relationship with her sister S and frequently takes S to her doctor's appointments and has provided transportation for K and E to and from daycare. Ms. V and her husband live approximately 10 minutes from Maternal great-grandmother, are both employed, and she provides assistance to Maternal great-grandmother. Ms. V herself has voluntarily attended parenting classes and counseling. In addition to providing assistance through transportation for Maternal great-grandmother, she testified that she provides MGGM with financial assistance as well.


Ms. V spoke with her sister S the week before the hearing. She claims that S did not come to Court because she was afraid. Notwithstanding frequent telephone conversations with her sister S, she denies knowing her sister's whereabouts, claiming that S calls from pay phones.


Ms. V completed an adult Level 3 probation of two years in February of 2003. Prior to that she served time at Women's Correctional Institute.


According to M V, S is married to a man named S, although Ms. V does not know his first name. S recently gave birth to a baby, whose father is not S's husband, but one A V, an individual who is of no relation to M V's husband.


O S H


In 1996 Q S H was convicted of drug related charges. In 1997 he was re-incarcerated for violating the terms of his probation, and for being a felon carrying a firearm. He has served 5 years on his 1996 sentence. He currently is incarcerated at the Federal prison in Oxford, Wisconsin where he will not be released until sometime between September 2006 and March 2007.


H first learned that he was K's Father in April of 2002 when he received a telephone call from the Office of Child Advocate following paternity testing. He has never seen his son K as he has been incarcerated since April of 2000. H opposes Termination of Parental Rights. While he readily acknowledges that he cannot care for his son, he believes that his son could be raised by his half-sister, K E of Raymoor, Missouri, if K cannot be raised by maternal relatives.


He has received photographs and correspondence relating to K from the Office of Child Advocate, and has sent a birthday card and some presents for K to Mother and Maternal great-grandmother, a total of 7 or 8 letters over the past 15 months. H claims to be native American through his father. His sister, K E is not however because while they share a mother, they have different fathers. H claims to be a card holder in the Maties Potowatome tribe in Canada, part of the Algonquin blood line. His father, one F “F” Ws once told his mother that he was native American, although H cannot verify such a claim. He had never had a relationship with his Father as his parents separated when he was six months old, and except for a chance passing in an apartment building when he was growing up, he has never seen his Father.


*13 He would like his sister, K E to adopt K so that he can meet him and get to know him when he grows up. He believes that if his sister K raises K, she will encourage K to understand his spiritual connection to the native Americans, notwithstanding the fact that K E is herself not of native extraction.


According to H, he and his sister K are very close as the two of them grew up together and helped raise each other. For this reason, he claims to understand the importance of a sibling bond. In spite of the sibling bond between the boys, he would favor separating K and E in order to allow K to be raised by his sister.


K E has not visited H while in jail. He last saw his sister in October of 2001 when she visited him at the Missouri Correctional Center. He and his sister do speak by phone weekly.


H has had no contact with S R since prior to K's birth. K was the product of a six week relationship he had with Mother while he was traveling through Delaware. At that time, H had crossed state lines in violation of his probation and therefore misrepresented his identity claiming to be a man named “C M”, to avoid apprehension. It was by this name that S R knew him. To the best of H's knowledge, he has sired no other children. Since K's birth, he has provided no support, financial, clothing, food, or otherwise.


H's rationale for opposing Termination of Parental Rights at this time in order to allow K to be adopted is that he fears that K will suffer by never having known his Father, much like H himself did. He believes that if adopted, K will feel that he was abandoned by his Father. If K is to be adopted, H wants him adopted by his sister, K E as he believes that that is the only way he will completely avoid being raised in a “white world” without a connection to his native spiritual ancestors.


K E


K E, H's half-sister, age 34 resides in Raymoor, Missouri with her fiancé and her 5 year-old daughter and her 8 year-old son. E has two other children, a 14 year old son and an 18 year-old daughter. Her daughter lives in the home of her boyfriend with whom she had 2 children, ages 1 and 2. E' trailer has two bedrooms one of which is shared by Ms. E and her fiancé and the other by her 8 year-old son and 5 year-old daughter. Ms. E works for a cleaning service and receives food stamps. Part of the cost of the daycare for her 5 year-old is subsidized by the State.


When K was 8 1/2 months old she was visited by K and his Mother who arrived by bus. They remained for several weeks. At that time, E discussed with S R the possibility of E caring for K, but never discussed E caring for E as well. Although this was the only time E has seen her nephew, she did send him a birthday card on one occasion.


In the fall of 2002, E sent a letter to Dana Hayes offering to care for K. Approximately a year ago, in a conversation with Tania Culley, Esq., the guardian ad litem, E was advised that Ms. Culley was recommending that the two boys stay together. They discussed the fact that Missouri officials would need to perform an ICPC home study. Thereafter, for a number of months, E claims to have had discussions with various representatives of DFS regarding the home study that Missouri officials never came to undertake. She recently learned that if she were to seek adoption of one or both of the boys, she would need to obtain an adoption home study at her own expense. E has never filed a petition for custody of K.


*14 Under cross-examination, E acknowledged that she has been investigated by Missouri child welfare officials on several occasions, but denies that she was ever “founded” for neglect or abuse, and asserts she has never charged with any criminal offense.


Under cross-examination, Ms. E admitted that she has no information regarding the relationship of K and E but if they were her two children, she would not want them separated.


H'S CLAIM OF APPLICABILITY OF THE INDIAN CHILD WELFARE ACT


H claims that his son, K is entitled to protection under the Indian Child Welfare Act.FN10 “Indian child” is defined as “any unmarried person who is under age 18 and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”.FN11 “Indian tribe” is defined as “any Indian tribe, band, nation or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary (of the Interior) because of their status as Indians, including any Alaskan Native village as defined in § 1602(c) of Title 43”.FN12 No evidence was presented that K is either a member of an Indian tribe as defined in the statute, or that he is eligible for membership in such an Indian tribe.


FN10. 25 U.S.C. § 1903 et seq.


FN11. 25 U.S.C. § 1903(4).


FN12. 25 U.S.C. § 1903(8).


The only evidence presented on the issue of Native American heritage came from H. H never knew his father as his parents separated when he was 6 months old. As a child, he was told by his mother that his father claimed to be Native American and he began to associate with Native Americans beginning at age 8.


While he professes to be a card carrying member of the Maties-Pattawatame tribe, a tribe he claims is part of the Algonquin blood line, no documentation to this effect was proffered. The Maties-Pattawatame tribe, he concedes, is not recognized by the United States Secretary of the Interior, but is a Canadian tribe recognized by that country's government. H testified that he is in possession of an application for membership in another tribe which is a recognized American tribe, but cannot process the application until such time as he locates his father, verifies his father's membership in a recognized American Indian tribe and enlists his father's assistance in processing his application. This would be challenging task to say the least. According to H, his only encounter with his father was a chance passing when H was 10 years-old. Additionally, it must be noted that H presented no evidence that the said F W was ever adjudicated as or acknowledged H to be his child, a requirement for the establishment of a parent-child relationship for purposes of qualification under the Indian Child Welfare Act.FN13


FN13. 25 U.S.C. § 1903(9).


Having presented no evidence sufficient to establish the eligibility of K to be a member of an Indian tribe, as defined by statute, and therefore qualify for protection under the Indian Child Welfare Act, H's claim in this regard must be denied.


ANALYSIS


A. Statutory Grounds.


*15 In Delaware, in order to terminate parental rights, the Court must perform a two tiered analysis. First, there must be proof of an enumerated statutory basis for termination. Second, there must be a determination that severing the parental rights is in the best interest of the child.FN14 Additionally, the Court must be satisfied that there has been meaningful compliance with the Child Welfare Act of 1980 § 608, 620-629, 670, 676 and the corresponding Delaware statute, 29 Del. C. § 9003(a)(2)(3). These laws require whether the State developed a meaningful Case Plan to guide a parent through the process reasonably designed to help the parent be reunited with the child, and also to be sure that the State has made reasonable efforts to reunify the family or prevent out of home placement.FN15


FN14. Division of Family Services v. Hutton Del.Supr., 765A.2d1267, 1271(2001); Sheppard v. Clemmons, Del.Supr., 752A.2d533, 536-537(2000)


FN15. 32 U.S.C.A. § 675(1) § 671(a)(15).


Because parental rights arise from a natural relationship between parent and child, which the law has traditionally recognized as fundamental liberties, these rights may not be abrogated in the absence of the most compelling reasons.FN16 The process in Delaware requiring proof of both an enumerated statutory ground and a determination of severing the parental tie that would be in the child's best interest has been recognized by our Courts' to require a showing by clear and convincing evidence that the parent is unable to meet the statutory guidelines.FN17 The standard, rather then the traditional “preponderance of the evidence” standard of other civil proceedings ensures that a parent only sacrifices their sacred right to parenthood to their equally sacred obligation owed to the child.FN18


FN16. In re: Kelly Stevens, Del.Supr., 652A.2d18(1995); in re: Burns, Del.Supr., 519A.2d638, 645(1986); Daber v. Division of Child Protective Services, Del.Supr., 470A.2d723, 726(1983).


FN17. In re: Hanks, Del.Supr., 553A.2d1171,1178(1989).


FN18. Patricia A.F. v. James R. F., Del.Supr., 451A.2d830, 831(1982).


In this case, DFS seeks to terminate parental rights of Mother in accordance with 13 Del. C. § 1103(a)(5) on the grounds that she is not able or has failed to plan adequately for said children's physical needs or mental health and development and

“(a) the children have been in the care and custody of the Department or a licensed agency for a period in excess of one year, or, in the case of a child who has entered care of an infant, six months; or there is a history of placement(s) of these children; (b) there is a history of abuse, neglect or lack of care of these or other children by the Respondent; (c) Respondent is incapable of discharging parental responsibilities due to extended or repeated incarceration; (d) Respondent is not able or willing to assume promptly legal and physical custody of the children and to pay for the children's support in accordance with her financial means; or (e) failure to terminate the relationship of parent and children will result in the continued emotional instability or physical risks to their children.”


Similarly, DFS seeks termination of parental rights with regard to H and K on the grounds of failure to plan in accordance with 13 Del. C. § 1103(a)(5). Alternatively, DFS seeks termination of parental rights with regard to H and K on the grounds of abandonment .FN19


FN19. 13 Del. C. § 1103(a)(2)


B has consented to termination of parental rights.FN20


FN20. 13 Del. C. § 1103(a)(1)


*16 The evidence presented at trial both through testimony of witnesses and documents submitted demonstrates by clear and convincing evidence that S R and S Q H have failed to plan and that Petitioner has proven not only the required one, but all five of the enumerated factors by clear and convincing evidence. The evidence is also overwhelming that H has abandoned K. Furthermore, the evidence is clear and convincing that termination and transfer of parental rights is in the best interest of both K and E.


S R, these children's Mother, never sought to plan for them. She requested no services. She requested that planning be done with M S, her grandmother, recognizing that at best she had no ability, and at worst no interest in ever caring for her sons. Her very failure to personally appear at the hearing speaks volumes regarding her lack of commitment to these children seeking to protect herself from possible arrest at the expense of the very parent-child relationship every child deserves.


As to H, the evidence is undisputed that he has never seen his son. He has no bond with this child whatsoever. He has never paid child support. His incarceration prevents him from providing any care to his son until the year 2006. Coming forward with a proposal that his sister, K E adopt and care for his son lacks substance, is a hollow shell of a solution. Ms. E has only seen this child once during K's lifetime. She has never sought visitation or petitioned for custody. She has never spoken to K by telephone nor has she ever sent him cards or gifts. But for her blood relationship to H through there common mother she would be a total stranger to this child.


While DFS provided no viable explanation why it never pursued a home study through the Interstate Compact for the Placement of Children FN21 to determine whether placement with Ms. E would be appropriate, a point seized upon by K E in an effort to bolster her claim that K should be placed with her, the Court finds such claim of K E to be without substance. Assuming such a study had been performed and assuming her home had been found to be appropriate, placement of K would still have required a finding by this Court that separating him from E and sending him halfway across the country was appropriate. The fact that Ms. E when advised of the opportunity to present an Adoptive Home Study failed to avail herself of such opportunity demonstrates the lack of commitment toward this child. Having presented no evidence of demonstrable interest in this child, both she and the child's Father, Q S H would have this Court separate K from E, the brother to whom that he has been bonded throughout his short life. Ms. E would seek to have this done notwithstanding her own acknowledgement that she would not want to see such conduct occur with regard to her own children.


FN21. 31 Del. C. § 381


While counsel for Mother argues that Mother has in fact planned for her children by seeking case plans between M S with DFS, such a plan never achieved success. While DFS was not required to plan with Maternal great-grandmother, it nevertheless did so in good faith. Unfortunately, the evidence points to the inescapable conclusion that Maternal great-grandmother is not a viable adoptive resource for these boys. The reasons are many and vary. They include the inadequency of her home, both its limited space and location in a neighborhood providing inadequate facilities for young children to play, her total dependence on others to provide her with transportation for even the most basic of needs, food and medical care, the continued presence in the home of family members with lengthy and significant histories of domestic violence and mental illness under circumstances where even at the time of the hearing, Maternal great-grandmother still failed to recognize the existence of such problems within her family and the significance that those problems pose to the healthy development of these two children. Notwithstanding the existence of safety plans and very explicit Orders from this Court restricting the presence of others during MGGM's visitations, and a prohibition against Mother having unsupervised contact with the boys, MGGM condoned repeated violations. Maternal great-grandmother's disregard of this Court's Order and her lack of acceptance of the reality of the inadequacies of members of her family does not demonstrate her lack of love or concern for these boys, but rather, her inability to recognize she is unable to provide due to her lind loyalty to the members of her family. MGGM lacks the financial resources to adequately care for herself let alone the financial demands of raising two children. Finally, the Court cannot overlook her age and health. The reality of the circumstance requires the Court consider not merely MGGM's age and health now, but what it would be like in five or ten years, well within the period of minority of both K and E. With an absence of an appropriate caregiver to assume the responsibility of raising these boys if MGGM's health deteriorates as she ages, Mother's plan calling for Maternal great-grandmother to raise the boys is just not a plan that meets these youngsters needs.


B. Best Interests


*17 Having concluded that at least one statutory ground for termination of parental rights has been established in this case with regard to each parent, the Petition for Termination of Parental Rights cannot nevertheless be granted until the Court further finds, by clear and convincing evidence that termination of parental rights is in these children's best interest.FN22 While what constitutes “best interest of the child” depends on the particular facts that any given case, the Court, while considering all relevant factors, must include consideration of the factors set forth in 13 Del. C. § 722. FN23


FN22. In re: Burns, Del. C. Supr. 519A.2d638; Division of Family Services v. Hutton Del.Supr., 765 A.2d1267(2001)


FN23. 13 Del. C. § 722 provides in relevant part:

“(a) in determining the best interest of the child, the Court shall consider all relevant factors including:

(1) the wishes of the child's parents or parent as to his or her custody and residential arrangements;

(2) the wishes of the child as to his or her custodian(s) and residential arrangements;

(3) the interaction and interrelationship of the child and his or her parents, grandparents, siblings, persons cohabiting in a relationship between a husband and wife with a parent of the child any other residents of the household or persons who significant effect the child's best interest;

(4) the child's adjustment to his or her home, school and community;

(5) the mental and physical health of all individuals involved;

(6) past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;

(7) evidence of domestic violence as provided for in Chapter 7A of this title.”


1. The wishes of the parents.


J B has consented to the Termination of Parental Rights and by that consent has acknowledged what is best for his son. His wishes are clear and unequivocal. S R failed to appear at today's hearing and her wishes remain unclear. Throughout the proceedings, she has urged that her children be adopted by her grandmother. Perhaps those wishes have changed. Perhaps not. Certainly, the Court cannot, by her failure to appear at the hearing construe her absence in a manner favorable to her position. H does not oppose Termination of Parental Rights, so long as K is adopted by his sister. These various and conflicting positions will be viewed by the Court as inconclusive on this issue.


2. Wishes of the children as to the custodial and residential arrangements.


The boys are young and cannot verbalize their wishes. However, the Court can consider the bond that the children have with each other and there foster siblings as well as their foster parents as described through testimony of Kelly Enssling, Dana Hayes and N R. The relationship of the boys to each other and their foster family members clearly and convincingly favors termination.


3. The interaction and interrelationship of their children with their parents, grandparents, siblings, etc.


As previously mentioned, the evidence clearly establishes that the boys have a very close bond with each other as well as their foster parents and foster siblings. At the same time, they obviously love their great-grandmother, M S. These boys are happy active boys who have adapted well in the chaos that their family has crated for them prior to placement. The relationship of the boys with their great-grandmother is one that should be maintained and fostered. Every child should have such a relationship with a grandparent or great-grandparent, one that will stay a part of their memory well into their adulthood. The value of that relationship however does not overcome the importance of a child's relationship with his siblings and his immediate caregivers who constitute his “core” family. This factor favors termination.


4. Adjustment to home, school and community.


Both boys are well adjusted in their current home. It is in fact their only home and that the R children are an integral part of their lives. They are happy and well adjusted. They are the subject of affection. This factor favors termination.


5. The mental and physical health of all involved.


*18 S R suffers serious issues from both a mental health and physical health standpoint. She has a substantial history of struggle with of mental illness. She suffers from HIV. Both her medical and physical conditions require regular consistent care and treatment, a pattern of care to which she has not demonstrated a willingness to commit. No evidence was presented with regard to the medical or physical health of S Q H. M S is generally in good health for her age, although, the stress of raising two children could have detrimental effects on both her hypertension and osteoporosis. It is reasonable to assume that MGGM's health will not improve as she ages. This factor favors termination.


6. Past and present compliance of both parents with their rights and responsibilities under Section 701 of this title:.


13 Del. C. § 701 charges a child's parents with that child's support, care, nurture welfare and education. S R has never complied with her rights and responsibilities as a parent to her children. She failed to appear at the hearing, evidencing her continued desire to focus on her own needs, rather then of those of her children. H continues to be unable to discharge his responsibilities due to incarceration. This factor favors termination.


7. Evidence of domestic violence.


There was some substantial evidence presented with regard to the history of domestic violence involving S R. Many of these instances took place at M S's trailer. There was also evidence of instances of domestic violence involving other members of Ms. S's family. Returning these children to that environment could never be in there best interest. This factor favors termination.


When considering the totality of these factors, the Court must conclude that termination of parental rights is in the best interest of these children. Paternal great-grandmother, M S is not only the matriarch and center of this family's existence but she offers the only positive beacon of light for these children in an existence that otherwise spiral downward in darkness. Unfortunately, MGGM cannot do it alone, but alone she must if the Court were to deny Petitioners' request. The fact is that M S has the desire and compassion to raise her great grandsons, but she just does not possess the necessary ability. She lacks the financial and physical resources, the physical ability to meet the boys needs over the next decade and a half, and she lacks an appropriate willing family support network to assume that responsibility at such time she is unable. The evidence is clear and convincing that termination of parental rights would be in these boys' best interest so that they may be freed for adoption by an appropriate family.


CONCLUSION


Petitioner having established by clear and convincing evidence one of the statutory grounds of termination of parental rights and as to each parent that such termination of parental rights is in the best interest of both of these boys, the Court finds that the parental rights of S R, Q H and J B in their children, K and E should be terminated so that these children may be adopted.


*19 IT IS SO ORDERED.


Del.Fam.Ct.,2004.

Division of Family Services of Dept. of Services for Children, Youth and their Families v. SXXXX

Not Reported in A.2d, 2004 WL 2334168 (Del.Fam.Ct.)

Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map