Opinion
No. 506, 2005.
Submitted: February 21, 2006.
Decided: May 31, 2006.
Family Court of the State of Delaware, in and for Sussex County in File No. 03-11-03TS.
Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices.
ORDER
This 31st day of May 2006, it appears to the Court that:
(1) The appellant, Lindell R. Baxter, through his court-appointed trial counsel, has appealed the Family Court's decision of September 16, 2005, that terminated his parental rights in two minor children. The Family Court terminated the parental rights of the children's mother, based on the mother's consent.
See Del. Supr. Ct. R. 26.1(a) (providing for continuing obligation of trial counsel in appeal from termination of parental rights).
The children were ages eight and six when they were removed from Baxter and placed in care.
(2) Baxter's counsel has filed a motion to withdraw on the basis that she is unable to present a meritorious argument in support of the appeal. At the Court's direction, counsel submitted an opening brief presenting Baxter's arguments in support of the appeal.
(3) The appellees, Division of Family Services (DFS) and Court-Appointed Special Advocate (CASA), have each responded to the opening brief and have moved to affirm the Family Court's decision. We agree and affirm.
(4) On December 18, 2002, DFS filed a petition seeking emergency custody of the children. DFS alleged homelessness, lack of parental involvement, lack of employment, lack of medical care, failure to provide appropriate education, and a history of agency involvement in both Delaware and Maryland. The Family Court granted the petition by ex parte order.
(5) Baxter did not appear at the February 2003 preliminary protective hearing. At the conclusion of that hearing, the Family Court concluded that there was probable cause to continue the custody order.
The Family Court attempted to hold the preliminary protective hearing on January 2, 2003; however, the hearing had to be rescheduled when the court determined that the parties had not been served.
(6) Baxter appeared at the March 20, 2003 adjudicatory hearing and was appointed counsel. Baxter stipulated to a finding of dependency based on lack of income and housing, and he agreed to participate in a substance abuse evaluation. The Family Court concluded, after finding that DFS had made reasonable efforts toward reunification, that it was in the best interests of the children to award custody to DFS.
(7) Baxter and DFS entered into a reunification case plan that was formally adopted by the Family Court on April 17, 2003. The case plan required that Baxter (i) obtain appropriate housing and employment; (ii) attend weekly family visits, medical appointments for the children, parenting classes, and anger management classes; and (iii) complete a substance abuse evaluation and follow through on any recommended substance abuse treatment.
(8) Under the case plan, DFS was required to make appropriate referrals to state agencies on Baxter's behalf for housing assistance, financial support, medical and dental care, parenting classes, anger management classes, and substance abuse treatment. DFS was also required to arrange for and supervise the weekly family visits.
(9) Baxter did not attend mandated review hearings that were held in July and October 2003. The Family Court determined at both hearings that DFS had utilized reasonable efforts toward reunification and that continued placement was in the children's best interests.
(10) In November 2003, DFS filed a petition to terminate Baxter's parental rights. DFS sought termination on the basis of Baxter's failure to adequately plan for the children's physical needs or mental and emotional health and development. On January 15, 2004, the Family Court approved a permanency plan of parental rights termination for the purpose of adoption.
(11) The Family Court may terminate parental rights if DFS proves by clear and convincing evidence the existence of a statutory basis for termination, and that termination is in the best interest of the child. When, as here, termination is based on failure to plan, DFS must also prove by clear and convincing evidence the existence of one or more additional statutory elements, and that DFS made bona fide reasonable efforts to reunite the family.
Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
See Del. Code Ann. tit. 13, § 1103(a)(5)(a) (listing additional elements for termination).
In re Hanks, 553 A.2d 1171, 1179 (Del. 1989) (quoting In re Burns, 519 A.2d 638, 649 (Del. 1986)).
(12) The seven-day termination hearing began on May 19, 2004 and concluded on March 10, 2005. Baxter, who had previously been incarcerated in January 2004, remained incarcerated for the duration of the hearing.
The hearing took place on May 19-21, 2004, December 9 and 15, 2004, February 24, 2005, and March 10, 2005.
(13) In its decision and order terminating Baxter's parental rights, the Family Court found that DFS had proven by clear and convincing evidence that Baxter had failed to plan for the children's needs despite DFS' bona fide reasonable efforts to reunite the family. The Family Court further found that Baxter was incapable of discharging his parental responsibilities due to extended incarceration, and that the children had been in State care for more than one year. Finally, the Family Court found that DFS had proven by clear and convincing evidence that it was in the best interests of the children that termination take place.
See Del. Code Ann. tit. 13, § 1103(a)(5)(a)(1), (3) (listing state placement of one year and extended incarceration as additional elements for termination).
(14) On appeal from an order terminating parental rights, this Court will uphold the Family Court's factual findings if they are sufficiently supported by the record and are not clearly wrong. To the extent that the Family Court's rulings implicate questions of law, this Court exercises de novo review. The Court will not disturb inferences and deductions that are supported by the record and that are the product of an orderly and logical deductive process.
In re Stevens, 652 A.2d 18, 23 (Del. 1995).
In re Heller, 669 A.2d 25, 29 (Del. 1995).
Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983).
(15) In his opening brief on appeal, Baxter argues that DFS' reunification efforts were unreasonable because the case plan did not adequately address his substance abuse problem. Baxter's claim is not supported by the record.
(16) The record reflects that substance abuse treatment was a key element of the case plan and was crucial to Baxter's successful reunification. According to the case plan, Baxter was to participate in a substance abuse evaluation and follow through with all recommendations for treatment.
(17) After consulting with Baxter, DFS scheduled three separate appointments for his initial evaluation. Baxter, however, failed to appear for any of the appointments. It is clear from the record that Baxter's failure to even show up for the initial evaluation made it impossible for DFS to address his substance abuse problem.
(18) Baxter argues that DFS "proved its intent to break [Baxter's] ties [with the children] by hiding evidence that [he] had taken a urine test." The record does not support Baxter's claim.
(19) It is true that DFS' substance abuse liaison assigned to Baxter's case neglected to bring the results of a urine screen to the termination hearing and thus was unable to testify as to the results. That oversight does not, however, support Baxter's claim that DFS made an orchestrated effort to sabotage reunification.
(20) To the contrary, the record reflects that DFS attempted on numerous occasions and in various ways to assist Baxter in meeting his responsibilities under the case plan so that he could reunite with the children. Unfortunately, Baxter failed to show up for court hearings as well as for important appointments that he had scheduled. He participated in only a small fraction of the weekly visits, did not obtain appropriate housing or employment, and did not attend parenting and anger management classes. In short, despite DFS' efforts to assist him, the record reflects that Baxter took virtually no steps to comply with the case plan.
(21) Third, Baxter argues that termination of his parental rights is not in the best interest of the children. Baxter expresses concern that the children are in different foster homes and will not be adopted by the same family. Baxter contends that it would be in the children's best interest to stay together and to live with him when he is released from prison. He maintains that he was a positive influence on the children before his drug involvement. Baxter states that he behaved appropriately during visits with the children, and that the children were happy to see him.
(22) In determining whether termination of Baxter's parental rights was in the children's best interests, the Family Court carefully weighed the relevant statutory factors as required. The Family Court found that five of the eight factors favored termination. The evidence in the record amply supports those findings.
See Del. Code Ann. tit. 13, § 722(a) (2004) (listing relevant factors for determining best interest of child).
(23) There is clear and convincing in the record that logically supports the Family Court's decision that Baxter failed to plan for the children's physical needs or mental and emotional health and development. The record further supports the Family Court's finding that DFS made bona fide reasonable efforts to reunify Baxter with the children and that, ultimately, the termination of Baxter's parental rights was in the best interests of the children.
NOW, THEREFORE, IT IS ORDERED that the appellees' motions to affirm are GRANTED. The judgment of the Family Court is AFFIRMED. The motion to withdraw is moot.