Green v. DSCYF ( 2017 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
§
1
MARY GREEN, § No. 338, 2016
§
Respondent Below, § Court Below—Family Court of the
Appellant, § State of Delaware in and for New
§ Castle County
v. §
§ File No. 16-01-04TN
DIVISION OF SERVICES FOR § Pet. No. 16-01494
CHILDREN, YOUTH AND THEIR §
FAMILIES, § File No. 16-01-02TN
§ Pet. No. 16-00819
Petitioner Below, §
Appellee, § File No. 16-01-01TN
§ Pet. No. 16-00454
and §
§ File No. 16-01-06TN
GUARDIANS AD LITEM, § Pet. No. 16-01499
§
Appellees. § File No. 16-01-05TN
§ Pet. No. 16-01497
Submitted: December 13, 2016
Decided: February 2, 2017
Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.
ORDER
This 2nd day of February 2017, it appears to the Court that:
(1) The appellant, Mary Green (hereinafter ―Mother‖), has appealed the
Family Court’s June 3, 2016 decision terminating her parental rights to her five
1
By Order dated July 1, 2016, the Court assigned a pseudonym to the appellant. Del. Supr. Ct.
R. 7(d). This Order assigns pseudonyms to the appellant’s children and to the children’s fathers.
children (―the Children‖).2 The four older children—Joseph, Melanie, Donna, and
Daniel—were placed in the care and custody of the Division of Services for
Children Youth and Their Families (―DSCYF‖) in January 2012. The youngest
child, Dennis, was placed in DSCYF’s care and custody in April 2013. The
hearing for termination of parental rights (―TPR‖) took place over four days, in
April and May 2016.
(2) The Family Court’s June 3, 2016 decision terminated Mother’s
parental rights and the parental rights of the Children’s fathers—Donald Walker
(Joseph and Melanie’s father) and Damian Lackman (Donna, Daniel, and Dennis’
father). The decision also denied guardianship petitions filed by Mother’s sister
(hereinafter ―Maternal Aunt‖) and Lackman’s mother (hereinafter ―Paternal
Grandmother‖). The fathers’ parental rights and the rights of the guardianship
petitioners are not at issue in this appeal.
(3) This case began on January 6, 2012, when the Family Court issued an
order granting emergency custody of Joseph age seven, Melanie age six, Donna
age two, and five-month-old Daniel to DSCYF. Earlier that day, DSCYF had
received urgent calls concerning Mother and Lackman. The calls alleged physical
neglect of the children, including no food and electricity in the home, domestic
violence between Mother and Lackman, and Mother and Lackman’s use of drugs.
2
Dep’t of Servs. for Children, Youth & Their Families (DSCYF) v. M.G., 2016 WL 3570192(Del. Fam. Ct. June 3, 2016).
2
(4) In the ensuing dependency and neglect proceedings, Mother was
appointed counsel, and the children were appointed guardians ad litem, one for
Joseph and Melanie (Mother’s children with Walker) and the other for Donna and
Daniel (Mother’s children with Lackman). In March 2012, Mother entered into a
case plan identifying a number of problem areas she needed to remediate to
achieve reunification with the children. The plan’s significant elements addressed
Mother’s mental health, substance abuse, and domestic violence issues and issues
related to her employment, parenting skills, legal matters, and housing, as well as
the medical, educational, and mental health needs of the children.
(5) In August 2012, the children were returned to Mother’s care for a trial
reunification. DSCYF retained custody of the children during this period. Dennis
was born in October 2012.
(6) By April 2013, Mother was having difficulty completing significant
aspects of her case plan and maintaining compliance with her probation.
Moreover, there were ongoing and growing concerns about the Children’s welfare,
especially Joseph and Melanie’s school attendance.
(7) Fearful that the Children would be removed from her care, Mother
took them and fled in April 2013. DSCYF sought and was granted emergency
custody of Dennis and filed a missing person report. In July 2013, law
enforcement located the Children with Mother and Walker in the state of
3
Washington. In July 2013, the Children were returned to Delaware and placed in
foster care, and in August 2013, Mother was extradited to Delaware and
incarcerated. In October 2013, Mother pled guilty to felony interference with
custody and violation of probation and was sentenced to two years at Level V
suspended after six months. When she was released from incarceration, Mother
began working on the elements of her case plan.
(8) In 2014, DSCYF filed a TPR petition against Mother (and the
Children’s fathers). Believing that Joseph and Melanie, then ages nine and eight,
would object to the termination of their relationship with Mother, the Family Court
appointed a Frazer attorney for them.3 Guardianship petitions also were filed by
the Maternal Aunt and the Paternal Grandmother as well as by Walker’s aunt and
uncle (hereinafter ―Paternal Great-aunt and uncle‖) and a childhood friend of
Mother’s (hereinafter ―Mother’s Friend‖). The guardianship petitions filed by the
Maternal Aunt and Mother’s Friend were dismissed in 2014.
(9) Over the course of five days, in April and May 2015, an evidentiary
hearing was held on the TPR petition and the guardianship petitions filed by the
Paternal Grandmother and the Paternal Great-aunt and uncle. Following the
presentation of additional evidence in July 2015, the petitions were submitted for
decision.
3
In re Frazer, 721 A.2d 920 (Del. 1998). A Frazer attorney advocates the expressed wishes of
the children.
4
(10) When the Family Court judge considered the evidence and wrote her
decision on the question whether to terminate parental rights, she was bound to
apply settled standards of law. Termination of parental rights in Delaware is based
on a two-step statutory analysis. In the first step, the Family Court must determine
whether there is clear and convincing evidence of a statutory basis for termination.4
When the statutory basis for termination is an alleged failure to plan, the Family
Court must determine by clear and convincing evidence that there is proof of at
least one of five additional statutory conditions,5 and that DSCYF ―made bona fide,
reasonable efforts to reunite the family.‖6 In the second step, if the court finds a
statutory basis for termination, the court must determine whether there is clear and
convincing evidence that severing parental rights is in the best interest of the
child.7
(11) On August 28, 2015, the Family Court issued a decision denying
DSCYF’s TPR petition and the guardianship petitions filed by the Paternal
Grandmother and the Paternal Great-aunt and uncle.8 In the seventy-seven page
decision (hereinafter ―the 2015 TPR Decision‖), the court found that there were
4
13 Del. C. § 1103(a) (Supp. 2016). Shepherd v. Clemens, 752 A.2d 533, 537 (Del. 2000).
5
§ 1103(a)(5).
6
Powell v. Dep’t of Servs. for Children, Youth & Their Families, 963 A.2d 724, 737 (Del. 2008)
(quoting Newton v. Div. of Family Serv., 2006 WL 2852409, at *2 (Del. 2006) citing In re
Hanks, 553 A.2d 1171, 1179 (Del. 1989))).
7
See 13 Del. C. § 722(a)(1)–(8) (2006) (listing best interest factors). Powell v. Dep’t of Servs.
for Children, Youth & Their Families, 963 A.2d at 731.
8
Dep’t of Servs. for Children, Youth & Their Families v. M.G., 2015 WL 6456760 (Del. Fam.
Ct. Aug. 28, 2015).
5
statutory grounds for termination of Mother’s parental rights, but that termination
was not in the best interests of the Children.9 The court found that the Children
were strongly bonded to Mother and were not emotionally prepared to have those
ties severed, despite that they could not be physically reunited with her.10
(12) Following the 2015 TPR Decision, a review hearing was held over
two days, in October 2015 and January 2016. During that period, guardianship
petitions again were filed by the Maternal Aunt and the Paternal Grandmother.
And in January 2016, DSCYF again filed a TPR petition. An evidentiary hearing
on the petitions was held over four days, in April and May 2016.
(13) The Family Court’s June 3, 2016 decision on appeal granted
DSCYF’s TPR petition and denied the Maternal Aunt’s and the Paternal Great-
aunt and uncle’s guardianship petitions.11 In the sixty-five page decision, the
Family Court incorporated its findings and conclusions from the 2015 TPR
Decision regarding Mother’s failure to plan and found ―no significant change in
her circumstances as of the conclusion of the 2016 TPR Hearings.‖12 The court
also found that Mother had not completed any of the requirements of her case plan
despite DSCYF’s efforts for reunification, and that the Children had been in the
custody of DSCYF for well over one year. An excerpt from the decision provides:
9
Id. at *37.
10
Id. at *31.
11
Supra note 2.
12
Id. at *8.
6
[M]other does not appear to have the ability to successfully care for
her five children in a safe and appropriate manner. She was
previously unable to care for all five during the trial reunification
period in late 2012, early 2013. Since the 2015 TPR Decision, there
has been a complete lack of progress in her own underlying mental
health issues, in addition to an inability to provide for basic physical
needs such as stable housing. Mother previously had a very strong
bond with her children, particularly the oldest two children, which has
been weakened by Mother’s failure to engage with the children’s
therapists, as recommended that she do prior to having continued
contact with the children.13
(14) The Family Court then considered and made factual findings on each
of the best interest factors under 13 Del. C. § 722 and concluded that termination
of Mother’s parental rights was in the Children’s best interests. The court
provided:
In the nine months between the issuance of the 2015 TPR Decision
and the conclusion of the 2016 TPR Hearings, the children have
continued to grow and mature. Following the 2015 TPR Decision,
[DSCYF] worked with the children’s therapists to emotionally prepare
the children for the reality that reunification with their parents was no
longer an option, efforts that the Court believed were important for the
children’s emotional welfare and which were lacking before.14
This appeal followed.
(15) On appeal, Mother’s court-appointed counsel (―Counsel‖) has filed a
no-merit brief and a motion to withdraw under Supreme Court Rule 26.1(c).
Counsel asserts that he has made a conscientious review of the record and the law
and can find no arguable grounds for appeal. Mother has not submitted any issues
13
Id. at *11.
14
Id. at *35.
7
for the Court’s consideration. In response to Counsel’s submission, DSCYF and
the Children’s court-appointed guardians ad litem have moved to affirm the Family
Court’s judgment.
(16) This Court’s review of a decision to terminate parental rights requires
consideration of the facts and the law as well as the inferences and deductions
made by the Family Court.15 To the extent rulings of law are implicated, our
review is de novo.16 To the extent issues implicate rulings of fact, we conduct a
limited review of the factual findings of the Family Court to assure they are
sufficiently supported by the record and are not clearly wrong. 17 This Court will
not disturb inferences and deductions that are supported by the record and the
product of an orderly and logical deductive process.18 If the Family Court has
correctly applied the law, our review is limited to abuse of discretion.19
(17) Having carefully considered the parties’ submissions on appeal and
the Family Court record, the Court concludes that the termination of Mother’s
parental rights should be affirmed on the basis of the Family Court’s thorough and
well-reasoned decision of June 3, 2016. We can discern no abuse of discretion in
the Family Court’s factual findings and no error in the court’s application of the
15
Wilson v. Div. of Family Serv., 988 A.2d 435, 439–40 (Del. 2010) (citing cases).
16
Id. at 440.
17
Id.18
Id.19
Id.8
law to the facts. We are satisfied that Counsel made a conscientious effort to
examine the record and the law and properly determined that Mother could not
raise a meritorious claim on appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED. Counsel’s motion to withdraw is moot.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
9