Opinion
FILE NO.: CN20-02049 PETITION NO.: 20-06906
04-17-2020
DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES ("DSCYF"), Petitioner, v. M L , E C , D T . Respondents. IN THE INTEREST OF: J L (d.o.b. 08/04/2019)
CASE HISTORY:
Ex Parte Order: 03/12/2020
PPH Hearing Order: 3/20/2020 PRESENT FOR THE HEARING:
Jonathan Harting, Esq., DAG for DSCYF
N S , DSCYF
A P , DSCYF
M L , Mother
Christofer Johnson, Esq., Mother's Atty
Sabrina Hendershot, Esq., Child Attorney
Megan Cascio, Sibling's Attorney
S B , Family Interventionist
(All by Skype Audio due to COVID-19) ADJUDICATORY HEARING ORDER
An Adjudicatory Hearing was held on April 14-15, 2020, in the interest of J L ("J ") (born, August 4, 2019). M L ("Mother") was present with her counsel, Christofer Johnson, Esq. Neither Mr. C nor Mr. T were present. The Court heard testimony from T G , N T , N S ("Ms. S ") and A P ("Ms. P ") on behalf of DSCYF. The Court also heard testimony from Mother, Ms. B and Maternal Grandfather, M E for Mother. Mother opposed the Petition.
The testimony presented by the Division of Family Services through Mr. G , the former treatment worker, and Ms. T , a mobile therapist, was essentially that Mr. D T was regularly residing with or having contact with Justin and the other children in the home. The testimony from all parties was such that the Court can find that Mr. T was having contact with J and his siblings. The question for the Court is whether or not this is sufficient to make a finding that J is dependent, abused or neglected as a result. The Court finds that it is not.
PROCEDURAL BACKGROUND
J has not been the subject of any prior litigation in this Court. Unlike the other children, J has only been in the custody of Mother before the ex parte Order giving DFS custody. There were guardianship proceedings regarding some of his other siblings, which are described in their Orders, but these proceedings did not pertain to J , who was not yet born when they began. The relevant proceedings to J are set forth below.
In October, 2019, K R filed an emergency petition for guardianship of J 's older sister, Z , alleging that Mr. T was around all the children and that he had beaten Z with a belt. The Court ordered DFS to investigate as there were allegations of physical abuse by Mr. T and as Mr. T was not to be around Z pursuant to a Court Order and Mother had previously told the Court that she was not involved with Mr. T . Mother agreed to Z returning to the guardianship of Ms. R in October, 2019. The DFS investigation regarding the alleged beating was closed but referred to treatment.
On March 11, 2020, the Court awarded DFS temporary ex parte custody of J , T and Z (collectively referred to as "the Children"). On March 18, 2020, the Court held a Preliminary Protective Hearing (PPH) and found probable cause that the Children were dependent, abused or neglected as to Mother due to Mr. T being present in the home, combined with hearsay testimony that described Mr. T carrying out drug activities in the home, allegations of abuse by Mr. T toward minors in the home, and Mr. T 's criminal record. The concern was not just that Mr. T was adjudicated delinquent of a felony sex offense when he was 14 years old, but that he had subsequent criminal history including drug offenses and there allegations that he was selling crack and marijuana in the home that Mother lived in. The Court also noted that there were mental health concerns regarding Mother. There was conflicting testimony as to the identity of J 's Father. There was no testimony that Mr. T , who is a potential father, ever harmed J .
FACTUAL FINDINGS
Sometime in October, 2019, following the Court's referral to DFS about Z , Mother and Mr. T both signed a safety plan with the treatment worker Mr. G that Mr. T would not be around the Children. Mr. G indicated that Mother referred to Mr. T as her fiance and that it was apparent that they were a couple. Subsequent to that safety agreement, Mr. T was seen on a regular basis at Mother's home by the mobile therapist, N T , who is related to D T by marriage. At some point in time, Mother's older teen daughters, K and E , came to live with Mother. Due to parent and child conflict between Mother and the older girls, there was a physical altercation and K and E were arrested for assaulting their Mother. K and E currently reside at Murphy School and the charges are still pending.
During the Preliminary Protective Hearing, the Court permitted hearsay testimony about statements made by the older girls regarding Mr. T . The statements included descriptions of illegal drug activity in Mother's home, including the sale of crack and marijuana, and potential abuse of K by Mr. T . The Court did find on the record that probable cause existed that the Children were dependent or neglected due to Mr. T being present, Mr. T 's criminal record, and the hearsay allegations made by the girls. Based on the testimony, the Court had concerns about Mother's judgment and also about her mental health treatment which appeared to have lapsed. The Court did not find Mother's statements that Mr. T was out of the picture to be credible as she had made similar statements under oath in the past and he was still involved. Mr. T had recently been incarcerated on drug charges in 2019 and the allegations of drug activity in the home were therefore concerning.
At the Adjudicatory Hearing, DFS relied solely on the testimony that Mr. T was around the Children to demonstrate a finding that the children were dependent, abused or neglected. There was no evidence presented at the adjudicatory hearing regarding the drug activity or the allegations involving abuse of K or the other children, which made up a significant portion of the original Petition for Custody filed by DFS. As the original testimony on these factors was hearsay, the Court cannot take judicial notice in the Adjudicatory hearing where the Court cannot rely upon hearsay and where DFS needs more than probable cause.
There was no evidence that Mother was unable to provide for the Children's needs or that her mental health needs were not being met. Mother testified that she was receiving mental health treatment. Mother also testified that she was employed part-time and had housing. While T and Z had some issues at school, these issues were being addressed as part of the treatment plan. While Mother was also lacking structure after having the Children returned to her care, Mother was cooperating with the Family Interventionist. Additionally, while the maternal grandfather moved in with Mother due to the pandemic, there was nothing in Grandfather's record that would preclude him from being in the home.
LEGAL ANALYSIS
As noted in Division of Family Services v. O'Bryan , the presumption against having children reside with sex offenders applies in custody cases where the Court is placing a child in a residence. In this case, the Court is not "placing" a child, the Court is making a determination about whether or not to remove a child from a parent's residence. A person's status as a sex offender cannot by itself be the basis for the dependency. In the present case, there was not a no contact order in place regarding J when DFS became involved and in fact there had been no prior proceedings regarding J at all. There was no evidence that Mr. T was forbidden from having contact with children and he was child himself when he was convicted of the sex offense. Based on Mother's agreement, there was a no contact provision in the order rescinding guardianship of Z to Mother, and Z was the child alleged to have been abused by Mr. T back in October, 2019. DFS did not file for custody of J or his siblings in the home at that time. There was no testimony of any finding that Z was abused by Mr. T . Mother did sign a safety plan which she broke but there was no testimony presented that J or any of his siblings were harmed. Mother had been working with DFS and DFS was providing services to Mother including counseling for the children and providing beds. DFS also assigned a family interventionist to help with parenting, including putting structure in place to assist with schooling. The Court looks at the timing of the various incidents and the filing of the ex parte Petition for Custody and the precipitating factor appears to be not that Mr. T had contact with the children, but the allegations made by K and E , which were not part of the evidence at the adjudicatory hearing. The Court cannot take judicial notice of hearsay testimony from the PPH as that proceeding does permit hearsay and has a lower burden of proof.
164 A. 2d 58 (Del. 2017). --------
While the Court is dismissing the Petition as the burden was not met, the concerns which caused Mother to come into treatment are still present and DFS is to continue to provide assistance to Mother through the treatment unit. The Court notes that Mother was overwhelmed having all the younger Children returning to her care and then having two teenagers also placed in her care. Additionally, if the investigation regarding the allegations made by K and E results in a finding against Mr. T , and Mr. T is having contact with the Children, Mother should be aware that there could be another Petition and she must use good judgment regarding any unsupervised contact with the Children.
IT IS ORDERED THAT:
(a) The Petition is DENIED.
(b) DFS will keep the treatment case open.
SO ORDERED.
__________
Date Written Order Issued
/s/ _________
FELICE GLENNON KERR, JUDGE FGK/gg xc: File, Parties, Counsel
Counsel and DFS via e-mail
Respondents via regular mail
Date e-mailed: __________
Date mailed: __________