Opinion
File No. CK01-04494 Petition No. 15-04921
08-16-2017
A------- H----- Petitioner, v. T----- R------- and S----- R------- Respondent.
CUSTODY ORDER
In the Interest of: N----- H----- (DOB: --/--/--) Before the HONORABLE LOUANN VARI, JUDGE of the Family Court of the State of Delaware:
Pending before the Court is a Petition to Rescind Guardianship filed by A------- H----- ("Father") concerning his son, N----- H----- ("N-----"), born ---- --, ----. The Court held an initial hearing on the Petition on December 12, 2016, entered a Temporary Order concerning N-----'s custody on December 22, 2016, and reconvened for a final hearing on April 12, 2017. Father appeared for both hearings without legal representation. So did N-----'s mother, Respondent Sharon R------- ("Mother"), and his maternal grandmother, Respondent T----- R------- ("Grandmother"). William Pepper, Sr., Esquire, appeared for both hearings in his role as N-----'s guardian ad litem ("GAL").
Mother and Grandmother live together in Dover, Delaware with N-----. Grandmother objects to Father's request to rescind her guardianship. Mother's position shifted somewhat between the hearings. She initially agreed that N----- should remain in her mother's guardianship. By the second hearing, Mother asked that N----- be returned to her and Father's joint custody, continue to live with her and Grandmother, and visit with Father every other weekend. Father agrees that he and Mother should have joint legal custody of their son, and requests that his time with his son be expanded to primary placement, particularly during the school year.
At the conclusion of the final hearing, the Court announced its decision on the record with a comprehensive decision to follow. An Order memorializing that ruling was issued on April 17, 2017. This Decision includes the full findings supporting the bench ruling and more permanently establishes N-----'s placement and care arrangements.
Harris v. Robinson, File No. CK01-04494, Petition No. 15-04921 (Del. Fam. Ct., Apr. 17, 2017) (Vari, J.).
FINDINGS OF FACT
Grandmother was awarded guardianship of N----- on November 21, 2006, when N----- was five-years-old. Before guardianship was awarded to Grandmother, Father and Mother had shared joint legal custody of their son, and N----- lived mostly with Father. Father had much less contact with N----- from 2007 through 2015.
Harris v. Robinson, File No. CK01-04494, Petition No. 06-25077 (Del. Fam. Ct. Nov. 21, 2006). (Nicholas, J.).
Background
Father's filed the pending Petition to Rescind Guardianship on February 23, 2015. It was accompanied by a motion for emergency relief, which was denied. In December 2015, Father filed a second motion for emergency relief, asserting that that the condition of Grandmother and Mother's home made it unsafe. Father also provided a report card showing that N----- was in danger of failing 8th grade. The Court referred Father's Petition to the Division of Family Services ("DFS" or "the Division") for investigation, but again denied Father's request for emergency changes to N-----'s living arrangements. Two months later, in March 2016, Father filed his third application for emergency relief explaining that Grandmother remained under a Safety Plan with DFS because of the condition of her home. The Court again denied Father emergency relief.
Harris v. Robinson, File No. CK01-04494, Petition No. 06-25077 (Del. Fam. Ct. Dec. 23, 2015). (Fowler, C.).
DFS confirmed it became involved with Grandmother's care of N----- early in 2016 because Grandmother's mobile home was in significant disrepair and its condition was affecting N-----'s health, particularly, his asthma. Father credibly testified that N----- became very ill in December 2015, and was prescribed several medications for his asthma with little improvement to his condition. With the support of the Division, Grandmother, Mother and N----- moved to a new apartment in May 2016. DFS ended its treatment case with Grandmother not long after.
In July 2016, the Court held a brief hearing on the Petition to Rescind and appointed Mr. Pepper to serve as N-----'s guardian ad litem. As noted, the Court held its first evidentiary hearing on Father's Petition on December 12, 2016, almost two years after it was filed. It maintained Grandmother's guardianship of N-----, but awarded Father and Grandmother joint legal custody so that Father could make educational and other decisions for his son. After interviewing N-----, and with significant input from him, the Court also placed N----- in Father's primary care, maintaining his contact with Grandmother and Mother with every other weekend visitation. This arrangement remained in place until the final evidentiary hearing, when the Court, again with input from N-----, directed that he spend most of the school week with Father and Thursday night and weekends with Grandmother and Mother.
Father's criminal history
Father was convicted of Unlawful Sexual Intercourse 3rd Degree in 1997 for a crime he committed when he was 15-years-old. Father received intensive, inpatient rehabilitation services in a Hennepin County, Minnesota treatment program. He then participated in and completed a multi-year sex offender treatment program through Community Counseling Associates ("CCA") in Milford, Delaware. Father also remained on probation for many years. Father was twice found in violation of his probation—once in 2002, when N----- was about a year old, and again in 2006, when N----- was five-years-old. Father was incarcerated for several months for the second violation. N----- was removed from Father's custody and placed in Grandmother's guardianship not long after.
Father provided a 2013 Treatment Summary from CCA, prepared to support his application for a pardon. CCA concluded that Father is at low-moderate risk to reoffend. On September 23, 2016, Father received a pardon for his 1997 crime and a 2001 misdemeanor conviction for Carrying a Concealed Deadly Instrument. A review of Delaware's criminal justice records confirms these two convictions are the only crimes for which Father has been arrested or charged, including traffic offenses.
Father's ability to provide for N-----'s basic needs
Mother and Grandmother continue to live together in an apartment in Dover. Grandmother is not employed and receives Social Security benefits; Mother and Father are also both under Orders to provide Grandmother financial support for N-----. Mother works full time for Delaware Technical Community College ("DTCC") as a janitor. Father lives in a four bedroom home in Dover, Delaware, with Antoine Julius ("Antoine"), and Mr. J-----'s seven-year old son, K-------. Their home is about four blocks from Grandmother and Mother's residence. Father has a Bachelor's Degree in Business Administration and has worked full-time for Amazon as an Assistant Manager for about 3½ years. He works overnights from early evening until the following morning, Wednesday night to Saturday morning. Mother and Father's communication is sporadic, and Mother explained they often argue. Mother has not filed for custody of N----- due to unspecified "personal issues."
N-----'s other needs
N----- is his parents' only child, and Grandmother's only grandchild. He was almost sixteen-years-old as of the date of the final hearing and completing the ninth grade. N----- enjoys art, cooking, drawing, and basketball. He is close to A------, who is also his god father, and looks up to him as a father figure. N----- also spends time with A------'s son, K-------, when at Father's home and sometimes babysits him. N----- struggles with anger issues; he admits that he gets upset easily especially when provoked. At the same time, N-----'s report cards include comments about how polite and respectful he is—traits he displayed when the Court interviewed him.
N----- has a learning disability and has struggled with academics, particularly math. He has had an Individualized Education Program ("IEP") for several years, but his grades remained poor and he was not promoted to 10th grade. Father became more actively involved in N-----'s education and around the time of the first evidentiary hearing, and was successful in having him placed in an Intensive Learning Center for several of his core classes. N----- confirmed that Father helps him more with his schoolwork and N-----'s report card confirms his grades have improved dramatically since he has been spending more time in Father's home.
LEGAL STANDARD
In determining whether to rescind custody to a child's natural parent, the Supreme Court of Delaware has held that "the guardianship must be terminated at the request of a fit parent unless the guardian proves, by clear and convincing evidence, that the children will suffer physical or emotional harm if the guardianship is terminated." The United States Supreme Court held in Troxel v. Granville that a presumption exists that "fit parents act in the best interests of their children," and a guardian bears the burden of establishing either that the parent is unfit or that rescinding the guardianship would cause the child physical or emotional harm. Consistent with these decisions, Section 2332 of Title 13 of the Delaware Code provides that:
Tourison v. Pepper, 51 A.3d 470, 471-72 (Del.2012).
Troxel v. Granville, 530 U.S. 57, 67 (2000).
...an order of guardianship may be rescinded upon a judicial determination that petitioner has made a preliminary showing that the guardianship is no longer necessary for the reason(s) it was established, unless: (1) the Court finds that the guardian has established, by a preponderance of the evidence, that the child will be dependent, neglected, and/or abused in the care of the parent or parents seeking rescission; or (2) the Court finds that the guardian has established, by clear and convincing evidence, that the child will suffer physical or emotional harm if the guardianship is terminated.
DEL. CODE ANN. tit.13, § 2332(c)(2009 and supp. 2016).
Whether N----- remains dependent turns on Father's ability to resume custody of N-----, which turns, in part, on Father's ability to overcome the presumption against him having custody or unsupervised visitation with his son because of his 1997 sex-based conviction. Otherwise, the Court would determine N-----'s custody, residential placement and visitation arrangements based upon the best interest factors in Section 722 of Title 13 of the Delaware Code.
DISCUSSION
For the reasons below, the Court concludes that Father and Mother are ready to resume custody of their son. They are capable of providing for his basic needs, and Father's criminal conviction and earlier placement on the sex offender's registry does not prevent him from having N----- in his unsupervised care. Finally, N-----'s interests are best served by ensuring that he spends ample time with Father during the school week—to maintain the academic progress he has made—and that he continue to spend significant time in Mother's home with Grandmother, where his strongest emotional attachments continue.
1. Father's sex offender status.
A rebuttable presumption arises under Section 724A of Title 13 of the Delaware Code against a sex offender receiving sole or joint custody of any child, against a child living primarily with a sex offender, and against a sex offender having unsupervised visitation with a child. These presumptions may be overcome if there is no criminal sentencing order prohibiting the contact; there have been no further sexual offenses or criminal acts of violence; the sex offender is in compliance with the terms of probation, if applicable; the sex offender has successfully completed an intensive program of evaluation and counseling designed specifically for sex offenders and conducted by a public or private agency or a certified mental health professional, and as a result, does not pose a risk to children; the sex offender has successfully completed a program of substance abuse counseling if the court determines such counseling is appropriate; and the best interests of the child would be served by giving residential or custodial responsibilities for the child or visitation with the child to the sex offender.
DEL.CODE ANN. tit.13, §§ 724A(a)(2013 and supp. 2016).
Father's 1997 conviction placed him on the sex offender's registry. His 2016 pardon removed him from it. The Court does not need to address whether the pardon, in and of itself, overcomes the presumption against N----- returning to his father's care and custody: the evidence establishes that even if the presumption applies, Father has overcome it. Father successfully completed both a residential sex offender treatment program and a community-based program. According to his community-based provider, Father is at low-moderate risk to reoffend. Father's sex offense was committed many years before N----- was born, and there has never been a criminal sentencing order specifically prohibiting contact between them. Father has completed probation and has committed no additional sex crimes or crimes of violence. In fact, Father has had only one additional arrest and conviction of any sort (Carrying a Concealed Deadly Instrument), and it was over fifteen years ago. There is no evidence that Father every abused substances or required a treatment program for substance abuse. Finally, as developed below, N-----'s best interests are served by continuing the extensive, unsupervised and healthy contact Father has had with him for the last few years. Father has overcome the presumption against him in order for this Court to consider awarding custody.
2. Rescission of Guardianship.
Father has also made a preliminary showing that Grandmother's guardianship of N----- is no longer necessary. N----- was living with Father before he was placed in Grandmother's guardianship. The guardianship was established because Father had recently been incarcerated for violating probation and was on the sex offender's registry. Father has long since completed his incarceration, has completed his probation and has been pardoned for both of his criminal convictions. He has also furthered his education, and is working at a job that permits him to provide a home and other essentials for himself and N-----. The evidence establishes that N----- is no longer dependent. Grandmother has produced no convincing evidence that N----- will suffer physical or emotional harm if her guardianship is rescinded. There is no evidence that Father has ever physically harmed his son, and N----- himself confirmed he feels safe and supported with Father. Grandmother suggests that N----- should be permitted to choose where he lives and she, not Father, has supported and cared for N----- for many years. These observations do not establish that N----- will be emotionally harmed if Grandmother's guardianship ends—particularly if the Court ensures that N----- still has extensive contact with Grandmother.
It is not evident from the evidence or the Court's prior Orders whether Mother consented to her mother's request for guardianship or whether the Court believed that N----- would be dependent in her care.
As there is no persuasive evidence that N----- will be dependent, neglected or abused in his parents' custody, or will be harmed if the Court rescinds Grandmother's guardianship, Father's Petition must be granted.
3. N-----'s best interests.
In rescinding Grandmother's guardianship, the Court must also establish N-----'s custody and living arrangements between his parents. To do this, the Court considers Section 722 of Title 13 of the Delaware Code, which outlines the "best interests" analysis, and requires the Court to consider "all relevant factors," including these:
DEL.CODE ANN. tit.13, §§ 722(a) and 722(b)(2009). --------
(1) The wishes of the children's parent or parents as to his or her custody and residential arrangements;
Father is sensitive to N-----'s desire to be with Grandmother. Mother (and Grandmother) downplay the important academic progress N----- has made since Father has assumed most of the responsibility for his education. Father's wishes about his son's care are more flexible and accommodating to N-----'s wellbeing.
(2) The wishes of the children as to his or her custody and residential arrangements.
N-----'s wishes have changed while this case has been pending. When the Court first interviewed him, N----- wanted to live with Father and visit with Grandmother and Mother. N----- shared that he enjoyed going places with Father, liked the additional independence he was experiencing (learning to drive, for example), and feels he can be open with Father. N----- also told the Court that Grandmother and Mother have told him that Father raped three children, is a homosexual and that if he resides with Father, N----- himself will be a homosexual. Father and N----- have discussed Father's homosexuality, and N----- accepts it.
N-----'s preferences changed by the second hearing. He confirmed that it was "not too bad" at Father's house, but that he wanted to return to Grandmother's care. According to N-----, he really misses Grandmother and his grades have only improved because he is working harder. It is evident that N----- and Grandmother love each other very much and are very close. The Court shares Father's concerns, however, that N----- may feel too much responsibility for Grandmother and Mother's wellbeing. Finally, the Court also believes that Father's expectations of N-----, particularly concerning school work and N-----'s use of video games, are more demanding than N----- experiences with Grandmother and that this has contributed to his shifting desires. For these reasons, the Court tempers the significant deference it would often give to 16-year-ol N-----'s wishes.
(3) The interaction and interrelationship of the children with his or her parents , grandparents , siblings , persons cohabiting in the relationship of husband or wife with a parent of the child , any other residents of the household or persons who may significantly affect the child's best interest.
N-----'s relationship with Grandmother is extremely important to him and for understandable reasons: he has lived with her most of his life. He has also lived with Mother most of that time, and lived with both of his parents when he was a young child. N----- confirmed he feels safe and comfortable with both Father and his godfather, Julius. It was only after Father began setting more limits and expectations with N----- that N----- decided life was better with Grandmother. In short, the Court concludes that N-----'s interests are best served by a custodial arrangement that ensures he has significant time with Father and with Mother—and Grandmother, through Mother.
(4) The children's adjustment to his or her home , school and community .
Since they live so close to each other, N-----'s school, friends and community are the same whether he is in Mother's or Father's care. His adjustment to his home is captured above, in the discussion about his relationships with his parents and his Grandmother.
(5) The mental and physical health of all individuals involved.
There is no evidence that Mother, Father or Grandmother have mental or physical health conditions that significantly affect their ability to care for N-----. N----- himself suffers a learning disability significant enough for him to require Intensive Learning Center services. The Court finds that Father has a much better understanding of N-----'s learning needs than Grandmother or Mother, and that the school success N----- has experienced since living with Father is directly attributable to Father's attention. This factor strongly supports Father's request for significant time with his son during the school week.
(6) Past and present compliance by both parents with their rights and responsibilities to their children under section 701 of this title.
Mother and Father are both under an Order to provide Grandmother financial support for N-----, and there is no evidence that either has failed to meet that responsibility. Father's duty to care for N----- when N----- was a young child was obviously interrupted by his criminal violation of probation and his sex offender status. That has long since resolved, and Father has repeatedly requested to resume parental responsibilities for the last two years. This factor is neutral; that is, the Court concludes both Mother and Father have largely met their responsibilities to their son.
(7) Evidence of domestic violence as provided for in chapter 7a of this title.
There is no evidence of domestic violence in Father or Mother's households.
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Father's criminal history has been discussed extensively above. Mother and Grandmother each only have a few motor vehicle violations.
4. Summary.
The Court understands Grandmother's hesitations about transferring N-----'s placement to Father. The December 2016 visitation schedule allowed N----- to become acclimated to Father's residence and N-----'s education plainly benefited.
Because Mother and Father live within a few blocks of each other, N----- can have a robust, nearly shared placement arrangement. The Court believes that Father promotes N-----'s relationship and communication with Grandmother and Mother. The rest of the best interest factors are either neutral or support the conclusion that N----- should be with Father during the school week and with Mother when Father is at work on the weekends.
CONCLUSION
Having considered these factors, and for other reasons explained on the record,
IT IS HEREBY ORDERED that Father's Petition to Rescind Guardianship is granted. The Court's November 21, 2016 Order awarding guardianship of N----- to his grandmother, T----- R-------, is rescinded.
IT IS FURTHER ORDERED THAT N-----'s parents, Sharon R------- ("Mother") and A------- Harris ("Father"), shall have joint legal custody of their son, N----- Harris, born ---- --, ----.
IT IS FURTHER ORDERED THAT Mother and Father may mutually agree to modify the care and visitation schedule below. Absent their mutual agreement:
IT IS FURTHER ORDERED THAT during the regular school year, N----- shall be in Father's care each week from Monday after school (or 9:00 a.m. if school is not in session) until Thursday after school (or 4:00 p.m. if school is not in session.) Otherwise, he shall be in Mother's care except as otherwise provided below.
IT IS FURTHER ORDERED THAT during his summer break from school, N----- shall spend one week with Mother and one week with Father on a rotating basis.
IT IS FURTHER ORDERED THAT the following holiday schedule and contact guidelines apply absent mutual agreement of the parties:
1. Holidays: Mother shall have N----- on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Father shall have N----- on the holidays in Column 1 in even-numbered years and the holidays in Column 2 in odd-numbered years:
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holiday | Memorial Day |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving Day |
| Christmas Day | Christmas Eve |
2. Mother's/Father's Day : On Mother's Day and Father's Day, no matter whose turn for contact, N----- shall be with the appropriate parent on those days from 9:00 a.m. to 6:00 p.m.
3. School Breaks (Winter & Spring): Mother shall have N----- on Winter breaks in odd-numbered years and Spring break in the even-numbered years. Father shall have N----- on Winter breaks in even-numbered years and Spring breaks in odd-numbered years.
4. School Work: Mother and Father shall provide time for N----- to study and complete homework assignments, even if the completion of work interferes with the parent's plans for him. Both parents are responsible for providing all of the school assignments and books to the other parent. Summer school which is necessary for N----- must be attended; regardless of which parent has N----- during the summer school period.
5. Extracurricular Activities: Regardless of where N----- is living, his continued participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom N----- is staying shall be responsible for providing transportation to activities scheduled during contact with that parent. Each parent shall provide the other parent with notice of all extracurricular activities, complete with schedules and the name, address, and telephone number of the activity leader, if available.
6. Medical Treatment and Emergencies : If N----- become seriously ill or injured, each parent shall notify the other parent as soon as practicable.
7. Telephone/Mail : Neither parent shall interfere with telephone or mail contact between N----- and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense.
8. Out-of-State Relocation : Prior to relocation of N----- from the State of Delaware, the parents should attempt to agree to a modified visitation schedule. If the parents cannot agree, the parent who is moving shall file a petition asking the Court to modify the visitation schedule. The Court may consider the allocation of transportation expenses.
9. Notice of Change of Address : Both parents shall give written notice to the other parent immediately upon any change of address and/or phone number, unless a restrictive Order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court.
IT IS SO ORDERED this 16th day of AUGUST, 2017.
__________
/s/ Judge Louann Vari LV:mg Date distributed: __________
cc: Parties