Opinion
FILE NO. CN14-06353 PET. NO. 17-00927 PET. NO. 17-02713
09-01-2017
C------ Y------, Petitioner, v. A--- B-------- Respondent.
Petitioner, represented by Jennifer K. Ellsworth-Aults, Esquire Respondent, represented by Christine K. Demsey, Esquire
UPON A PETITION FOR TERMINATION OF PARENTAL RIGHTS AND A PETITION FOR CUSTODY
Petitioner, represented by Jennifer K. Ellsworth-Aults, Esquire Respondent, represented by Christine K. Demsey, Esquire BUCKWORTH, Judge
I. INTRODUCTION
This is a written decision on the Petition for Custody ("Custody Petition") filed on January 12, 2017 by C------ Y------ ("Father"), represented by Jennifer K. Ellsworth-Aults, Esq., against A--- B-------- ("Mother"), represented by Christine K. Demsey, Esquire; and a Petition for Termination of Parental Rights ("TPR Petition") filed by Mother against Father regarding N---- Y------ ("the Child"), born June 24, 2009, following a hearing held on August 16, 2017. At the hearing, the Court received testimony from Father; Mother; C------ Y------ ("Paternal Step grandfather'); Father's psychologist, Dr. R----- B--- ("Dr. B---"); J------ Q------ ("Paternal Aunt"); Father's case worker at Connections, D----- B------- ("Mr. B-------"); adoption case manager for Better Chance for Our Children, K---- M----- ("Ms. M-----"); N--- F------ ("Stepfather"); and L---- F------ ("Stepfather's Mother"). The Court also received records from B----- Z--- of Rockford Center and from V------ A-------- of Westside.
II. PROCEDURAL DUE PROCESS
No evidence was presented, nor were there any arguments proffered, from which the Court could conclude that Father had been denied due process. Both parties hired attorneys to represent their interests.
III. BACKGROUND FACTS RELATING TO MOTHER AND FATHER
Father was born May 11, 1985 and is the son of B----- Y------ ("Paternal Grandmother"). Paternal Grandmother married Paternal Step grandfather when Father was a child. Father was diagnosed with paranoid schizophrenia 10 to 12 years ago. He received unemployment for a period of time and now receives SSDI. Father resides in an assisted living facility subsidized by the National Alliance on Mental Illness.
Mother was born on June 14, 1992 in Baltimore, Maryland. Her father passed away when she was seven years old and she was raised by her mother, C---- B-------- ("Maternal Grandmother") alongside three older brothers. Mother and her family were homeless off and on when she was growing up. Mother struggled in school and was often bullied. In 9th grade, Mother dropped out of school, moved in with her friend and her friend's mother, and worked full time at Taco Bell. Mother held various other positions in fast food and pharmacy. Since July 2015, Mother has been employed as a secretary and rehabilitation technician for ATI Physical Therapy.
Mother and Father met when Mother was 16 and Father was 23 while Mother was working at Taco Bell. They dated and Mother became pregnant. Mother and Father moved in with Maternal Grandmother. The Child was born on June 24, 2009 in Elkton, MD. Father and Maternal Grandmother did not get along and he moved back to Paternal Grandparents' home shortly after the Child was born. Mother and the Child also moved into Father's Paternal Grandparents' home for approximately one month from November to December 2010. Mother, Father, and the Child moved to an apartment paid for through Father's SSDI. Mother then got a job at McDonalds. While Mother was working, Father took care of the Child. Mother quit her job at McDonalds after 4 to 5 months due to her concerns about Father watching the Child. Mother would come home and find the Child without her diapers changed, wearing dirty clothes, and with feces all over her crib. Father was usually found playing video games. After Mother quit her job at McDonalds, she never left Father alone with the Child again. Mother started working again toward the end of 2012 when Maternal Grandmother and Maternal Uncles assisted her in caring for the Child.
Mother and the Child moved out of the apartment they shared with Father in August 2013. Mother testified she moved because she was afraid to stay with Father. Mother alleged that Father would bring homeless people to their apartment; be on and off of his medication; yell; and throw objects. Mother testified once, Father threw a rocking chair at the Child and yelled: "do you ever shut the fuck up". Around this time, Mother dated Stepfather.
After Mother moved, she testified she tried to contact Father to arrange visits. Twice Father came to her apartment to visit the Child; twice Father cancelled or failed to attend a scheduled visitation. Mother stopped contacting Father in 2013. Paternal Grandmother facilitated visits between Father and the Child in her home. The Child would go to Paternal Grandparents and sleep over. Father did not contact Mother nor the Child again until December 2016, when he asked if he could see the Child while she was at Paternal Grandparents' home. Father did purportedly see the Child from 2013 to 2016 several times while she was visiting Paternal Grandparents. Mother testified once, she and the Child saw Father at a gas station and Father did not recognize them and the Child did not recognize Father.
Mother and Stepfather married in June 2016. In July 2016, Mother informed Paternal Grandmother she intended to pursue stepparent adoption so Stepfather could adopt the Child. On August 25, 2016, Father filed a Petition for Parental Visitation, alleging Mother was not allowing him to see the Child. Father requested monthly visits at his home or at Paternal Grandmother's home. Father's Petition for Parental Visitation was dismissed due to failure to obtain jurisdiction over Mother. Mother testified that she was never served said Petition.
Pet. for Parental Visitation, D.I. 9.
Ord. of Dismissal, D.I. 11.
Father filed his Custody Petition on January 12, 2017, alleging that Mother has consistently sought to prevent Father from seeing or speaking with the Child. Father alleged he last saw the Child in January 2016. Father requested the Court enter a Custody Order confirming shared legal custody and setting forth a regular visitation schedule. Father also moved for Temporary Visitation on January 12, 2017, requesting the Court enter a temporary visitation schedule of a Thursday evening visit every other week plus every other weekend and every other holiday with the Child.
Pet. for Custody, D.I. 12.
Mot. For Temporary Visitation, D.I. 15.
On February 2, 2017, Mother filed her TPR Petition, seeking transfer of Father's parental rights to Stepfather. Mother alleged that Father abandoned the Child; was mentally incompetent; and had failed to plan adequately for the Child's physical needs and/or mental and emotional health and development.
Pet. for TPR, D.I. 1.
Mother filed an Answer to Father's Custody Petition on March 16, 2017. Mother requested that if the Court denies her TPR Petition, the Court grants her sole custody with "limited supervision" between Father and the Child. On March 16, 2017, Mother also filed an Answer to Father's Motion for Temporary Visitation, requesting the Court deny Father's request because it is not in the best interest of the Child as evidenced in her TPR Petition.
Answer. To Pet. for Custody, D.I. 20.
Answer. To Mot., D.I. 21.
On March 31, 2017, the Court entered a Temporary Contact Order, in which Father may have supervised contact with the Child if the Child visits with her Paternal Grandmother. Only Father and Paternal Grandmother may be present for the visits and Paternal Step-Grandfather shall not be present during any contact.
Temporary Contact Order, D.I. 24.
On May 12, 2017, Father filed an Answer to the TPR Petition, requesting the Court deny Mother's request to terminate his parental rights. Father argued that the grounds to terminate had not been met and that it was in the Child's best interest to continue having a relationship with him. On June 5, 2017, the Court consolidated Mother's and Father' Custody Petition and Mother's TPR Petition. A hearing was held on August 16, 2017, where the Court heard testimony and received evidence from the parties.
Answ. To TPR Pet., D.I. 8.
IV. BACKGROUND FACTS RELATING TO THE CHILD
The Child was born on June 24, 2009 in Cecil County, Maryland. She is eight-years-old and entering the 3rd grade at J--- R. D----- Elementary School. The Child indicated that she would like to be a veterinarian when she is older. Naomi had a physical examination on June 6, 2017, which indicated that she is a healthy child.
V. TERMINATION OF PARENTAL RIGHTS
A. Standard for Termination of Parental Rights
The United States Supreme Court has held that a parent's interest in his or her children "undeniably warrants deference and, absent a powerful countervailing interest, protection." Likewise, the Delaware Supreme Court has found that the parental right is sacred that "does not depend on societal standards or mores of lifestyle, age, economic achievement, or sex." It has also held that parental rights arise from a natural relationship, are fundamental liberties and may not be abrogated absent the most compelling reasons.
Stanley v. Illinois, 405 U.S. 645, 651 (1972).
In the Matter of Burns, 519 A.2d 638, 645 (Del. 1986).
See id.; In the Interest of Stevens, 652 A.2d 18, 24 (Del. 1995).
While recognizing the fundamental liberty interest of the parents, the Court also must consider that one of the important objectives of the termination of parental rights statute is to insure that children are not denied the opportunity for a stable family life.
See Shepherd v. Clemens, 752 A.2d 533 (Del. 2000).
A parent's strong interest in his or her child can be terminated only upon a showing, by clear and convincing evidence, that one or more of the statutory grounds in 13 Del. C. §1103(a) has been established and that severing the parental ties would be in the best interests of the child. The clear and convincing standard of proof requires greater certainty about the factual conclusions than a preponderance of the evidence standard, underscoring the important liberty interest at stake and the special loss that occurs with the termination of a parent's rights in a child.
Id.; see also In re Hanks, 553 A.2d 830, 833 (Del. 1982).
See Patricia A.F. v. James R.F., 451 A.2d 830 (Del. 1982).
The Court also notes it makes no assumptions on Father's ability to safely care for the Child based on his diagnoses. Any Court determination of a person with disabilities' ability to safely parent must be made case-by-case consistent with facts and objective evidence and not on generalizations or stereotypes. B. Grounds for Termination of Father's Parental Rights
See 28 C.F.R. § 35.130(b); U.S. Dep't of Justice & U.S. Dep't of Health and Human Services, Protecting the Rights of Parents and Prospective Parents with Disabilities 4 (2015).
The grounds on which Mother is seeking to terminate Father's parental rights are set forth in 13 Del. C. §1103(a)(2), that he abandoned the child; 13 Del. C.§1103(a)(3), that he is mentally incompetent and therefore cannot discharge parental responsibilities in the foreseeable future; and 13 Del. C. §1103(a)(5), that he is not able, or has failed, to plan adequately for the Child's physical needs or mental health and development.
1. Abandonment
Under 13 Del. C. §1103(a)(2)(a)(2), the Court may order a termination of parental rights based upon intentional abandonment if it is in the best interest of the child and the Court finds the following:
In the case of a minor who has attained 6 months of age at the time a petition for termination of parental rights is filed, the respondent for a period of at least 6 consecutive months in the year preceding the filing of the petition has failed to:
A. Communicate or visit regularly with the minor; and
B. Manifest ability and willingness to assume legal and physical custody of the minor, if during this time, the minor was not in the physical custody of the other parent.
Mother filed the Petition for Termination of Parental Rights on February 2, 2017. Mother must provide by clear and convincing evidence that Father: (1) failed to communicate or visit regularly with the child; and (2) failed to manifest an ability and willingness to assume legal and physical custody of the children for a period of at least six (6) consecutive months between February 2, 2016 and February 2, 2017.
Father contends that he has been a presence in the Child's life since her birth and continued to visit with the Child until Mother remarried in 2016. However, the Court does not find this an accurate depiction of what occurred. Father did not contact the Child nor contact Mother to see the Child from the end of 2013 until December 2016. He did not Petition the Court for visitation alleging Mother was withholding the Child from him until August 2016, shortly after Mother indicated to Paternal Grandmother she intended to pursue stepparent adoption. Father had Mother's telephone number available to him if he wanted to see or talk to the Child. The Child would see Paternal Grandparents 1 to 2 times monthly. Mother stated that Paternal Grandparents would typically make her aware if Father would be in attendance for these visits. Mother estimates that Father saw the Child every other month or so.
For approximately 3 years of the Child's 8 years of life, Father did not try to communicate or visit regularly with the Child. This included the period from February 2, 2016 until August 25, 2016, spanning over 6 months in the year prior to Mother filing the TPR Petition. Father proffers that his disability prevented him from visiting the Child as often as a non-disabled person. However, his disability did not prevent him from communicating with the Child nor Mother. This is evident by the e-mails and texts he sent after December 2016. While Father has recently attempted to resume communication with Mother regarding the Child, this does not cure the prior abandonment. And while Father may have seen the Child occasionally while she was in Paternal Grandparents' care, this does not establish that Father has communicated or visited regularly with the minor. As the Child was in the physical custody of Mother during this time period, the Court finds, by clear and convincing evidence, that Father intended to abandon the child under 13 Del. C. §1103(a)(2)
2. Mental Incompetence
Under 13 Del. C. §1103(a)(3) the Court may order a termination of parental rights if the parent is found to be mentally incompetent and, from evidence of 2 qualified psychiatrists selected by the Court, found to cannot discharge parental responsibilities in the foreseeable future.
While Mother indicated this was a basis for her TPR Petition, there was no evidence presented to indicate that a competency hearing took place in which Father was deemed mentally incompetent. The Court does not find this is a basis for the termination of his parental rights.
3. Failure to Plan
Under 13 Del. C. §1103(a)(5), the Court may order a termination of parental rights based upon failure to plan if it is in the best interest of the child and the Court finds that the parent is not able, or has failed, to plan adequately for the child's physical needs or mental and emotional health and development
Father could not safely care for the Child when she resided with him. He has not been alone with the Child nor a caretaker for the Child since she was an infant. Although Father stated that he loves the Child, he went over 3 years without attempting to contact her, has not contact Mother to check on the Child, has no involvement in her school or activities, and only began petitioning for visitation and custody after Mother informed Paternal Grandmother she planned to pursue stepparent adoption. Father offered no reason on why he did not contact the Child for so long. While a portion of his SSDI check goes toward the Child, he has provided little if any clothing, toys, or necessities for the Child
While Father alleges that he visits the Child when she is with his parents, he and the Child did not recognize one another when they saw each other at the gas station. Mother recently informed the Child about Father being her biological parent, and she has not asked questions or requested to see him. Father has no demonstrated bond with the Child and has not demonstrated that he has provided for her physical, emotional, and mental well-being.
Besides that findingwith a child in the home of a stepparent, guardian, permanent guardian or blood relative, the statute requires there be a finding of :
1. The child has resided in the home of the stepparent, guardian, permanent guardian or blood relative for a period of at least 1 year, or for a period of 6 months in the case of an infant; andParental responsibilities, under 13 Del. C. § 1101(10) is defined as:
2. The Court finds the respondent is incapable of discharging parental responsibilities, and there appears to be little likelihood that the respondent will be able to discharge such parental responsibilities in the near future.
the care, support and control of the child in a manner that provides for the child's necessary physical needs, including adequate food, clothing and shelter, and that also provide for the mental and emotional health and development of such child.
The Child has resided with Mother and Stepfather since December 2014. Father has been minimally involved in the Child's life since 2013. Father cannot plan adequately for his own needs. His parents help him with housing, bills, doctors' appointments, maintaining his house, and shopping for food. Father has not expressed an ability nor a willingness to assume legal and physical custody of the Child. Instead, Father is requesting that his parents have the right to visitation with him having the ability to occasionally attend. Father has been incapable of discharging his parental responsibilities and he likely will not be in a position to discharge any of his parental duties soon. The Court finds by clear and convincing evidence that Father has failed to plan adequately for the Child's needs. C. Best Interests of the Child
1. Statutory Factors
After concluding that one or more of the statutory grounds for termination of parental rights exist, the Court must then determine by clear and convincing evidence that the termination is in the child's best interests. In making this determination, the Court must consider all relevant factors set forth in 13 Del. C. § 722.
See Division of Family Services v. Hutton, 765 A.2d at 1267 (Del. 2001).
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother seeks termination of Father's parental rights because he has abandoned the Child and failed to plan for the Child's needs. And Mother and Stepfather have established a family together and Mother strongly desires that Stepfather adopt the Child. Mother does not think it is in the Child's best interest to have contact with Father because they have no bond.
Father does not consent to Mother's request. Father believes it is in the Child's best interest to continue having a relationship with him. Father does not request that the Child live with him nor does he request a set visitation schedule. He would like an open visitation policy where he and the Child can see each other when they wish, supervised by Paternal Grandparents. Father also wishes to have joint custody so he may determine what school the Child attends and make sure she has what she wants and needs.
2. The wishes of the child as to his or her custodian(s) and residential arrangements;
Although the Court did not interview the Child, testimony was provided regarding her wishes. As discussed, the Child has resided with Mother for the entirety of her life and has no memory of Father. During the home study conducted by Ms. M-----, the Child conveyed that she was glad she had a dad now. The Child conveyed that she was learning what adoption means and that she wants Stepfather to adopt her. Mother also testified that the Child is excited to be adopted by Stepfather.
Therefore, this factor weighs in favor of granting Mother's petition to terminate Father's parental rights.
3. The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interest;
Mother has been the Child's primary caretaker since birth. Stepfather testified that Mother and the Child have a great relationship. The Child also has a parental bond with Stepfather. Mother and the Child have lived with Stepfather since December 2014. Stepfather cares for the Child, takes her to doctors' appointments, and participates in her education and school activities. The Child calls Stepfather "Dad". The Child also has a relationship with Stepfather's Mother; Stepfather's Father; and Mother's Aunt Donna. Stepfather's Mother testified that the Child is the light of her life and that she has a good relationship with Mother. Mother testified that she fears that if something happened to her and the Child entered Father's and Paternal Grandparents' care, Stepfather would be cut out of the Child's life.
Conversely, the Child has minimal or no relationship with Father. As established above, Father has failed to communicate or visit regularly with the Child. Father presented photos of him and the Child, which were prior to 2013. Father did not recognize the Child nor did the Child recognize Father when they ran into one another at a gas station. The Child found out in August 2016 that Father was her biological father. She did not ask questions nor see Father after she found out about him. The Child has had more substantial contact with Paternal Grandparents since Father and Mother's separation. Mother testified there have been sporadic overnight visitation with Paternal Grandparents and that they see the Child once or twice a month. Paternal Grandparents and the Child will play together, watch movies, and go swimming. Once, Paternal Grandparents took the Child to the beach. Mother testified that if Father's parental rights were terminated, the Child would still have continued visitation with Paternal Grandparents because the Child is close to them and Mother wants to maintain that relationship.
R. Ex. 5.
The parental figures in the Child's life are Mother and Stepfather. The Child has no bond with Father and the two do not even recognize one another. The Child has a bond with Paternal Grandparents and Mother testified that she will maintain that relationship no matter the outcome of this Petition. Due to the Child's lack of relationship with Father, this factor weighs in favor of granting Mother's petition to terminate Father's parental rights.
4. The child's adjustment to his or her home, school, and community;
Father is not seeking physical custody; only visitation. Therefore, this factor is irrelevant
5. The mental and physical health of all individuals involved;
Father is diagnosed with schizoaffective disorder, bipolar type. Father testified he has a bad memory and will sometimes be untruthful if he knows no answer. Paternal Step grandfather testified that Father has anxiety and will shut down when stressed. Mother testified that Father appears worse than when they initially separated. Father cannot care for his needs independently and relies on his parents to provide for his basic needs. Father has been historically inconsistent with his medication. An evaluation conducted on November 3, 2016 indicates that Father has poor coping skills and cannot handle stress well, requiring continuous assistance/monitoring. Mother indicated that she has no health problems, but has been in counseling. The Child is healthy.
R. Ex. 1, 2. --------
Father's illness has had a marked effect on his ability to show he can provide adequate care for the Child. This factor weighs in favor of granting Mother's petition to terminate Father's parental rights.
6. Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
As the Court already discussed, Father has not attempted to communicate with the Child let alone attempted to play an active parental role in her life. The Child has resided almost exclusively with Mother. Father has offered no voluntary contributions to help defray the costs of raising the Child, except for the portion of his SSDI withheld. Father has also never been involved in the Child's education, or medical treatment, nor has he ever tried to be involved. The Child has been raised and financially supported by Mother and Stepfather. Father testified that Mother is one of the best mothers around. There is no evidence that Mother prohibited Father from having access to the Child.
Therefore, this factor weighs heavily for granting the Mother's petition to terminate Father's parental rights.
7. Evidence of domestic violence as provided for in Chapter 7A of this title; and
Mother testified that when she was residing with Father, he would yell and throw things; once, throwing a chair at the Child. Mother also testified she witnessed domestic violence in Paternal Grandparents home and has witnessed Father attempt to punch Paternal Step grandfather in front of the Child. No testimony was presented disputing these allegations.
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.
Neither party nor Stepfather have a criminal history except for non-DUI traffic offenses. Therefore, this factor is neutral.
VI. CONCLUSION
Mother has established by clear and convincing evidence that Father's parental rights should be terminated on the grounds stated in 13 Del. C. § 1103 (a)(2) and 13 Del. C. §1103 (a)(5). The Court finds by clear and convincing evidence it is in the child's best interest for Father's parental rights to be terminated. _Therefore, the Court grants Mother's Petition for the Termination of Father's Parental Rights and parental rights of Father are terminated. Father's Petition for Custody is dismissed.
IT IS SO ORDERED.
/s/ _________
Date Written Order Issued /s/ _________
MARK D. BUCKWORTH, JUDGE MDB/jpg 8/31/17
cc: Jennifer K. Ellsworth-Aults, Esq.
Christine K. Demsey, Esq.
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