Reported in A.2d, 2004 WL 2334168 (Del.Fam.Ct.)
as: Not Reported in A.2d)
OPINION. CHECK COURT RULES BEFORE CITING.
Court of Delaware.
OF FAMILY SERVICES OF THE DEPARTMENT OF SERVICES FOR CHILDREN,
YOUTH AND THEIR FAMILIES Petitioner,
R, J B and Q H, Respondents.
Dailey, Deputy Attorney General on behalf of Petitioner.
J. Haley, on behalf of Q S H.
A. Houghton, on behalf of S R.
Rago, on behalf of J B.
A. Culley, Guardian Ad Litem.
REGARDING PETITION TO TERMINATE PARENTAL RIGHTS
OF THE PROCEEDINGS
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
in their minor son, E B(“E”)
born September 24, 2001. In its' Petition, DFS alleges “failure
as to Mother and both fathers and alternatively, “abandonment.”
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
Tit. 13 Del.C. Ann.
Tit. 13 Del.C. Ann.
Tit. 13 Del.C. Ann.
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.
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.
OF THE PARTIES
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
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
Tit. 13 Del.C. Ann.
Tit. 13 Del.C. Ann.
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.
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.
25 U.S.C. §
The Guardian ad
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
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.
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.
10 Del.C. Anno.
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.
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.
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
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.
July 30, 2002, the Court conducted a Review Hearing and
addressed the Guardian ad
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
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
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.
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
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.
Titl. 13 Del.C. Anno.
November 21, 2002, DFS filed a Petition to Terminate Parental
May 8, 2003, the Court conducted a hearing by telephone
at the request of the Guardian ad
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
motion as premature.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
the R are permitted to adopt K and E, they
do not plan to adopt any additional children in the
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 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.
McDermott, a special investigator for the Division of Family Services
and retired New Castle County police officer was called by
the guardian ad
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.
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.
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
DR. MICHAEL KHO
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
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.
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.
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
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
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.
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
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.
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.
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.
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, 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
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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
without a connection to his native spiritual ancestors.
E, H's half-sister, age 34 resides in Raymoor, Missouri with
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.
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.
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
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.
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.
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.
CLAIM OF APPLICABILITY OF THE INDIAN CHILD WELFARE ACT
claims that his son, K is entitled to protection under
the Indian Child Welfare Act.FN10
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
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
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
25 U.S.C. §
25 U.S.C. §
25 U.S.C. §
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.
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
25 U.S.C. §
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.
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
of Family Services v. Hutton Del.Supr., 765A.2d1267, 1271(2001); Sheppard v.
Clemmons, Del.Supr., 752A.2d533, 536-537(2000)
32 U.S.C.A. §
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
In re: Kelly
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).
In re: Hanks,
A.F. v. James R. F.,
Del.Supr., 451A.2d830, 831(1982).
this case, DFS seeks to terminate parental rights of Mother
in accordance with 13 Del.
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
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.”
DFS seeks termination of parental rights with regard to H
and K on the grounds of failure to plan in
accordance with 13 Del.
1103(a)(5). Alternatively, DFS seeks termination of parental rights with regard
to H and K on the grounds of abandonment .FN19
has consented to termination of parental rights.FN20
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.
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
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.
DFS provided no viable explanation why it never pursued a
home study through the Interstate Compact for the Placement of
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.
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.
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.
In re: Burns,
Supr. 519A.2d638; Division
of Family Services v. Hutton
Del.Supr., 765 A.2d1267(2001)
722 provides in relevant part:
in determining the best interest of the child, the Court
shall consider all relevant factors including:
the wishes of the child's parents or parent as to
his or her custody and residential arrangements;
the wishes of the child as to his or her
custodian(s) and residential arrangements;
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;
the child's adjustment to his or her home, school and
the mental and physical health of all individuals involved;
past and present compliance by both parents with their rights
and responsibilities to their child under §
701 of this title;
evidence of domestic violence as provided for in Chapter 7A
of this title.”
wishes of the parents.
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.
of the children as to the custodial and residential arrangements.
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
interaction and interrelationship of their children with their parents, grandparents,
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.
to home, school and community.
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.
mental and physical health of all involved.
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.
and present compliance of both parents with their rights and
responsibilities under Section 701 of this title:.
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.
of domestic violence.
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.
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.
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.
IT IS SO ORDERED.
of Family Services of Dept. of Services for Children, Youth
and their Families v. SXXXX
Reported in A.2d, 2004 WL 2334168 (Del.Fam.Ct.)