Opinion
File No. 16-32447
06-02-2017
Department of Services for Children, Youth, and Their Families, Division of Family Services Petitioner, v. K---- E---- & A------ B----, Respondents.
Petition No. ORDER - Adjudicatory Hearing DEPENDENCY/NEGLECT PETITION FOR CUSTODY In the Interests Of: K.B. DOB:
ORDER
This is the Court's decision concerning a "Dependency/Neglect Petition for Custody" ("Petition") filed by the Department of Services for Children, Youth, and Their Families, Division of Family Services ("DFS") on October 17, 2016.
BACKGROUND
On October 17, 2016, DFS submitted its pending Petition alleging that K.B. (DOB: ) is dependent and neglected in the care of her parents, K---- E---- ("Mother") and A------ B---- ("Father"). The basis for DFS' Petition was that, following the birth of K. B., Mother indicated to hospital staff that she did not have necessary supplies for the baby or a car seat. That same day, the Court issued an ex parte order granting DFS immediate temporary custody of K.B.
On October 20, 2016, the Court held a preliminary protective hearing. Both Mother and Father were found indigent, appointed counsel, and waived their right to the hearing and requested the scheduling of an adjudicatory hearing. According to DFS worker, Amy Collins, Father is a Tier II registered sex offender and DFS did not want to place the child with Father. The Court continued temporary custody of K.B. with DFS. An adjudicatory hearing was scheduled for December 1, 2016.
On October 25, 2016, DFS filed a Motion to be Relieved of Obligation to Pursue Reunification with Father due to Father's conviction of Rape in the Fourth Degree of a Child under sixteen, a felony offense.
On November 9, 2016, Mother filed an Answer to Petitioner's Motion to be Relieved of Obligation to Pursue Reunification under FCCR 213(C). Mother asserted that though the statute indicates that DFS is not required to pursue reunification with Father due to his conviction, DFS is not prohibited from providing reunification services. Mother claims that the interests of justice support the provision of reunification services to Father because Father's conviction is nearly eighteen years old, he is considered a "moderate risk" offender, Father and Mother are an intact couple, and the family would be at a distinct and unnecessary disadvantage should DFS be relieved of its duty to provide reunification services to Father. Mother further contended that granting DFS' Motion would significantly handicap Mother in her case planning and reunification process.
On December 1, 2016, the Court conducted an adjudicatory hearing. Mother and Father were represented by court-appointed counsel. A Court Appointed Special Advocate ("CASA") represented the interests of K.B. The evidence presented during the hearing is discussed below. At the conclusion of the hearing, the Court directed that counsel submit written legal argument on the effect of Father being a Tier II registered sex offender, and the applicability of 13 Del.C. § 724A, which creates a rebuttable presumption that no child shall primarily reside with a sex offender.
On December 15, 2016, Father filed his Response to Motion be Relieved from Obligation to Pursue Reunification referencing his arguments made on the record at the December 1 hearing.
Upon receipt of counsels' memoranda related to 13 Del.C. § 724A, the Court issued a Letter Order on February 13, 2017, directing that Father had twenty days to submit documentation, or request a hearing to submit evidence, establishing that he had overcome the presumption. Father subsequently requested a hearing and a hearing was scheduled for March 23, 2017.
As a continuation of the Court's December 1 adjudicatory hearing, the Court held a hearing on March 23, 2017, to review K.B.'s status in care and to permit Father an opportunity to show that he had overcome the 13 Del.C. § 724A presumption. Because an individual who had been served with a subpoena to be present for the hearing and to bring appropriate documentation did not appear, the Court rescheduled the hearing for May 12, 2017. In the interim, counsel submitted legal memoranda on the issue of the constitutionality of 13 Del.C. § 724A. Those constitutional arguments are discussed in detail below.
The Court held the continuation of the December 1 adjudicatory hearing on May 12, 2017. The evidence presented is detailed below.
DISCUSSION
In order to grant custody of K.B. to DFS, the Court must find after a hearing on the merits, or accept the agreement of the parties, that: "(1) [a]s to each parent, the child is dependent, neglected or abused; [and] (2) [i]t is in the child's best interests to be in DSCYF custody."
In its Petition, DFS alleges that K.B. is dependent and neglected in the care of Mother and Father. The Court will review each basis for adjudication separately.
Dependency
According to 10 Del. C. § 901(8), "dependency" or "dependent child" means that a person:
a. Is responsible for the care, custody, and/or control of the child; and
b. Does not have the ability and/or financial means to provide for the care of the child; and
"Necessary care" means a type and degree of personalized attention that will tend to advance a child's physical, mental, emotional, moral and general well-being."'1. Fails to provide necessary care with regard to: food, clothing, shelter, education, health care, medical care or other care necessary for the child's emotional, physical or mental health, or safety and general well-being; or
2. The child is living in the home of an "adult individual" who fails to meet the definition of "relative" in this section on an extended basis without an assessment by DSCYF, or its licensed agency; or
3. The child has been placed with a licensed agency which certifies it cannot complete a suitable adoption plan.
As K.B.'s biological parents and legal custodians, Mother and Father were responsible for K.B.'s care, custody, and control since she was born on October 13, 2016.
DFS argues that K.B. is dependent in Mother's care because Mother is financially unable to provide for the child and did in fact fail to provide for the child when she indicated to hospital staff, following the birth of K.B., that she did not have necessary supplies for the baby or a car seat. Furthermore, DFS asserts that K.B. is dependent in Mother's care because of Mother's lack of income, unstable housing, lack of parenting experience, potential anger issues, and a potential drug problem.
Mother testified at the December 1 hearing that she was unemployed because she was on medical leave from giving birth to K.B. At the May 12, 2017 hearing, Mother testified that she continues to be unemployed because she is currently pregnant. Prior to giving birth to K.B., Mother was working two jobs cleaning hotels. Mother plans to return to work after she gives birth in October. Until then, Mother plans to continue to financially rely on Father.
At the December 1 hearing, Mother and Father testified that they were residing with Mother's cousin, her cousin's husband, and an aunt. As of the May 12, 2017, hearing, Mother and Father are now residing with Father's mother in a mobile home in Millsboro, Delaware. A DFS worker and the CASA visited the home. Concerns that were raised regarding the home were that the home had some weak spots in the flooring and there was a small hole in the ceiling. Father testified that he can, and intends to, fix these issues in his mother's house. Mother informed the DFS worker that she intended to obtain a Pack 'N Play where K.B. can sleep in the bedroom with Mother and Father. The home has two bedrooms, one bathroom, a kitchen and a living room. Father's mother sleeps in the other bedroom. The DFS worker testified that she would not currently approve the home as a placement for K.B. because of the issues with the floor, ceiling, and the parents' need to obtain a Pack 'N Play for K.B. to sleep in. At the same time, the worker admitted that similar issues are not normally enough to remove a child from a home where the child is already living.
At the December 1 hearing, Mother testified that she had clothing for the baby, bottles, wipes, diapers, a crib, a bathing tub, and formula. Mother was able to purchase these supplies through her WIC assistance. Mother continued that she also had money saved from when she was employed. At the May 12 hearing, Mother and the DFS worker testified that Mother continues to have the necessary supplies for K.B., aside from the Pack 'N Play. It is unclear to the Court what happened to the crib Mother testified she obtained for K.B. on December 1.
As to her lack of parenting experience, DFS raised concerns that Mother does not have custody of her two other children, D----- and A--. Rather, those children are being cared for by Mother's mother ("Grandmother"). DFS has established a case plan for Mother and pursuant to that case plan Mother and Father have attended and completed parenting classes with K.B.
Finally, DFS is concerned that Mother has anger problems because she incurred an Offensive Touching conviction in February 2016. Grandmother testified that the Offensive Touching conviction arose from an incident between her and Mother. According to Grandmother, Mother was trying to eat and was holding a hot plate of food over A--'s head while A-- was laying on the couch underneath the plate of food. Grandmother offered to hold the child while Mother ate but Mother refused. An argument between Grandmother and Mother ensued. Grandmother called the police.
Additionally, on December 1 Grandmother testified that she believed Mother was "on drugs" after D----- was born. Grandmother testified that she has not seen Mother under the influence of drugs recently. Mother testified that she does not abuse drugs and has never been diagnosed with any mental health issues.
As of the December 1 hearing, Mother had attended two out of four of K.B.'s doctor's appointments. Mother testified that she was not informed of the other appointments. Evidence was presented that Mother and Father have transportation limitations and are often late to appointments and visitations because they depend on public transportation. Mother has a driver's license but does not have a vehicle. Father does not have a driver's license.
Mother and Father participate in visitations with K.B. every week for approximately two hours at McDonalds. The DFS worker and CASA testified that the parents' interactions with the child during those visits have been observed to be appropriate. Specifically, Mother was able to change K.B.'s diapers and feed her.
DFS alleges that K.B. is also dependent in Father's care due to unstable employment, unstable housing, lack of parenting experience, a potential anger issue, and Father's Rape in the Fourth Degree conviction which implements the prohibition of 13 Del.C. § 724A that K.B. cannot be placed in Father's care.
Initially, Father was unemployed but was earning approximately $200 to $300 per month performing "odd jobs." At the May 12 hearing, Father testified that he had recently begun working at , a restaurant in Rehoboth Beach, Delaware. At , Father earns $11 per hour and works approximately 40 hours per week. Though the restaurant closes in October, Father plans to be transferred to another nearby restaurant, , which is owned by the same company.
Father and Mother do not have their own transportation. However, Father testified that his mother takes him to Lewes, Delaware, each day on her way to work and then Father has a friend who drives him the rest of the way to work in Rehoboth.
As stated above, Mother and Father recently moved into Father's mother's home. DFS is uncomfortable placing K.B. in the home due to the structural issues detailed above. Father pays his mother $400 per month for Mother and him to reside in the home and testified that he can fix the hole in the ceiling and weak floors. DFS also indicated a concern as to placement in the Father's mother's home because of a statement made by Father that his mother was incarcerated in the 80s for selling marijuana.
DFS alleged that K.B. is dependent in Father's care due to lack of parenting experience given that Father has a fourteen-year-old child that resides in New York that he has not cared for since she was one year old.
DFS has concerns about Father's anger because Father was "very rowdy" and made gestures to the DFS worker at the hospital when DFS took custody of K.B.
Further, Grandmother testified on May 12 that the evening before Mother had called her crying and requesting that Grandmother pick her up because she and Father had gotten into an argument. Grandmother heard Father in the background saying "come get her." Father testified that he never said this. Grandmother did not go to get Mother. Grandmother testified that this is not the first time Mother has called her requesting that she come get her following an argument between Mother and Father. Both Mother and Father testified that they got into an argument regarding the upcoming court hearing and that they were able to make amends. No physical altercation occurred and the police were not contacted.
Finally, DFS raised the issue of Father's paternity at the May 12 hearing and requested genetic testing. This request was based on the fact that Father is not listed on K.B.'s birth certificate.
It is DFS' position that K.B. would be dependent in Mother's care because of Mother and Father's unstable housing and the structural issues in the home they currently reside in; Mother's lack of income; Mother's lack of parenting experience; Mother's potential anger issues; and Mother's financial dependence on Father, along with Mother residing in the same home as Father.
It is DFS' position that K.B. is dependent in Father's care because of his unstable housing; unstable employment, as he just started his current job; lack of parenting experience; and potential anger issue. Furthermore, K.B. is dependent in Father's care because 13 Del.C. § 724A precludes DFS from placing the child with Father.
Based on the evidence presented, the child could be dependent in Mother's care due to her limited financial means as a result of Mother's unemployment. However, Mother has obtained the appropriate supplies for the child and as of December 1 was receiving WIC assistance to aid her in acquiring additional supplies in the future. Additionally, Father is employed and is financially able to care for the child, himself, and Mother. The Court does not find it appropriate to find that a child is dependent because the mother was unemployed for a short period of time after the birth of the child. Nor does the Court find it appropriate to find that because the father is financially providing for the mother and child that the child is dependent in the care of the mother. Further, aside from the minor structural defects, it appears that the home where Mother and Father are residing would be appropriate for the child and has the proper necessities, aside from the Pack 'N Play, for the child to reside in the home safely. Specifically, DFS testified that it would not seek custody of a child solely based on the structural issues with the home. Therefore, the Court does not find K.B. to be dependent in Mother's care due to her unemployment or housing circumstances. Further, K.B. is not dependent in Father's care due to his financial situation as Father has obtained employment and has sufficient income.
The Court does not find that either parent's limited parenting experience is sufficient to support a finding of dependency. If that were the case, many children born to first time parents would be considered dependent in their parents' care. Also, both parents have attended and completed parenting classes with K.B.
The evidence does not support a finding of anger issues or drug abuse on the part of Mother. Furthermore, the Court finds that Father's reaction toward DFS at the hospital following the birth of his child who was taken into custody shortly thereafter was not an unusual reaction given the circumstances. It further appears that any argument between Mother and Father are common disagreements which are likely to occur between any two people in a relationship. There is no history of any domestic violence between Mother and Father.
Mother and Father's limited transportation is not a basis for dependency at this time.
Finally, the Court received no evidence as to Father's mother's criminal record from the 80s. Any such record would be of minimal significance to the Court.
The crux of DFS' argument that K.B. is dependent in the care of Father is because Father is a registered sex offender and therefore, the Court is not permitted to place the child with Father under 13 Del.C. § 724A. Furthermore, because Mother resides with Father, the child is not able to be placed with Mother unless Father is able to overcome the presumption of 13 Del.C. § 724A.
13 Del.C. § 724A
DFS' position is that K.B. is dependent in Father's care because 13 Del.C. § 724A prohibits the Court from placing K.B. with Father due to his status as a registered sex offender. Additionally, because Mother resides with Father, K.B. is also dependent in Mother's care unless Father is able to overcome the presumption of 13 Del.C. § 724A.
Pursuant to 13 Del. C. § 724A(a), there is a "rebuttable presumption that no sex offender shall be awarded sole or joint custody of any child, that no child shall primarily reside with a sex offender, and that no sex offender shall have unsupervised visitation with a child." A "sex offender" is, in relevant part, defined as "any person designated by the courts of this State as a Risk Assessment Tier II or III sex offender under § 4121 of Title 11."
As a result of a Rape in the Fourth Degree conviction incurred in 1998, Father is a registered Tier II sex offender. Thus, in order for the Court to rescind temporary DFS custody and permit K.B. to return to Mother and Father's care, Father would need to overcome the presumption set forth in 13 Del. C. § 724A(b). To do so, Father would need to prove: (1) that he has no criminal sentencing order prohibiting him from residing in the same residence as a child; (2) that he has not engaged in further sexual offenses or criminal acts of violence; (3) that he is in compliance with the terms of his probation, if applicable; (4) that he 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; and (5) that the best interests of the child would be served by giving residential responsibilities for the child to the sex offender.
13 Del. C. § 724A(b)(1-6).
Father argues that he has sufficiently overcome the 13 Del. C. § 724A presumption that K.B. may not primarily reside with him.
First, Father has submitted documentation of his prior sentencing orders. None of these orders includes a prohibition that Father may not reside in the same home as a child.
Second, Father is no longer on probation for his 1998 conviction. Thus, prong three is not applicable.
Though the Court finds that Father has successfully satisfied prongs one and three of the statutory presumption, Father is unable to satisfy prongs two and four.
Prong four of the statutory presumption states that the sex offender may overcome the presumption if they successfully complete 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, they no longer pose a risk to children.
On May 12, the Court received substantial evidence regarding the programs that Father participated in during his periods of incarceration. None of the programs Father participated in related to sex offender treatment. A psycho-sexual intake/assessment was performed on Father in January 2015. However, that evaluation did not recommend that Father receive any treatment related to his sex offense.
See Father's Composite Exh. 1.
Heidi Holloway, the director of sexual offender services at Connections in Wilmington, Delaware, testified as a witness for DFS. Ms. Holloway stated that she runs the crisis center outpatient and prison programs related to sex offender counseling. Therefore, if someone was ordered to complete a sex offender treatment program as the result of a conviction she would be in charge of that program. Ms. Holloway testified that none of the documents introduced into evidence by Father indicate that he has completed any sex offender program. Additionally, Ms. Holloway did not agree with the recommendation that Father not be required to participate in any sex offender treatment program. It is unclear to Ms. Holloway why the intake evaluation for a sex offender treatment program was not completed until 2015, 17 years after Father was convicted of the sex offense. Ms. Holloway testified that this delay in time may have been because Father was incarcerated for those entire 17 years, or it was likely Father came back through probation for some other offense and probation ordered the assessment at that time. Ms. Holloway would have recommended treatment for Father if she had been the individual that conducted the evaluation in 2015 because she is of the opinion that if someone has sexually offended they need to complete treatment, regardless of the circumstances surrounding the conviction.
Father argues that he has satisfied this prong of 13 Del. C. § 724A because he underwent an evaluation and the evaluation did not recommend any additional treatment. The Court reads 13 Del. C. § 724A(b)(4) to mean that the offender must complete an evaluation and counseling. The fact that Father completed an evaluation and it did not recommend any further treatment is not dispositive. The statute does not direct that an offender undergo an evaluation and then, if the evaluation recommends treatment, that the offender complete treatment. The statute requires the offender undergo an intensive program of counseling, regardless of the results of the initial evaluation. The Court interprets this as directing that the evaluation is meant to determine the level and type of counseling the offender will need to receive, not whether the offender will need to participate in any counseling at all. Therefore, the fact that Father did not complete counseling, notwithstanding the fact that his evaluation did not recommend any counseling, does not relieve Father of the requirement that he complete an intensive program which includes both evaluation and counseling in order to satisfy this prong of the presumption.
Father did not prove that he has successfully completed an intensive program of evaluation and counseling designated specifically for sex offenders. Therefore, Father has not satisfied prong four of the statutory presumption.
The Court finds it necessary to address Father's ability to satisfy prong two of the statutory presumption in the event that Father does successfully satisfy prong four in the future by completing a program of evaluation and counseling specifically for sex offenders.
Prong two of the statutory presumption indicates that a child shall not be placed with a Tier II registered sex offender who has incurred any subsequent convictions which may be classified as a sexual offense or a criminal act of violence. Father has incurred two Assault in the Third Degree convictions since his 1998 Rape in the Fourth Degree conviction. Assault in the Third Degree is a misdemeanor and is considered a "criminal act of violence." Therefore, Father is unable to overcome the presumption and K.B. may not be returned to his care.
T.C. v. S.S., 2011 WL 11546684, at *6 (Del. Fam. Ct. Nov. 22, 2011).
Father asserts that subsection (b)(2) of 13 Del. C. § 724A is unconstitutional and requests the Court declare the statute unconstitutional and relieve Father from the effect of that provision. Father argues 13 Del. C. § 724A is unconstitutional because it creates an unlawful mandatory conclusive presumption, violates his constitutional due process right, and violates equal protection. The Court will address each of Father's arguments separately.
a. 13 Del. C. § 724A creates an unlawful mandatory conclusive presumption
Father correctly asserts that "parental rights are fundamental liberties which the law has traditionally recognized and afforded constitutional protections." As such, parental rights may not be abrogated absent compelling circumstances. Father argues that 13 Del. C. § 724A creates an impermissible mandatory or conclusive presumption that violates his constitutional rights to equal protection and due process.
Shephard v. Clemens, 752 A.2d 533, (Del. 2000).
In Interest of Stevens, 652 A.2d 18, 24 (Del. 1995).
A mandatory presumption exists where a statute provides that "proof of a basic fact renders the existence of the presumed fact conclusive." When a mandatory presumption is implicated, "the trier of fact is required to presume the existence of one fact from the proof of another." With mandatory presumptions, the statute commands that, "because one fact is proved, another fact must follow." The use of a mandatory presumption "raises significant concerns because it relieves the State from having to establish certain facts with independent evidence." A "mandatory presumption is proper only if there is a 'rational connection' between the proven fact and the presumed fact."
Helman v. State, 784 A.2d 1058, 1074 (Del. 2001).
Id.
Id.
Id.
Id.
Father's argument is that, the proven fact that Father has committed a subsequent criminal act of violence presumes that he is unfit to exercise his fundamental rights of legal custody, primary placement, and unsupervised visitation, and that he is furthermore, permanently deprived of these rights. Father argues that there is no rational connection between his having committed a misdemeanor assault and his fitness to raise his child. Father asserts that due to this conclusive presumption he is being deprived of his rights without due process of law.
DFS asserts, and the Court agrees, that 13 Del. C. § 724A does not create a conclusive presumption because it does not require the Court to find the existence of any fact.
The Delaware Supreme Court has held that conclusive presumptions are impermissible when the presumed fact is a necessary element of a criminal offense and therefore, improperly relieves the state of its burden of proof. When a mandatory presumption is implicated, "the trier of fact is required to presume the existence of one fact from the proof of another." However, as DFS asserts, if a statute does not require a trier of fact to find any fact, then the statute does not create a presumption of any sort.
Craig v. State, 457 A.2d 755, 760 (Del. 1983).
Helman v. State, 784 A.2d 1058 (Del. 2001).
In the case of Helman v. State, the Delaware Supreme Court determined that a convicted sex offender's statutorily-mandated risk assessment assignment, for purposes of sex offender reporting and notification requirements, was not the result of an unlawful mandatory presumption. In that case, the appellant was adjudicated delinquent of Unlawful Sexual Intercourse in the First Degree. Pursuant to 11 Del. C. § 4121(d)(1)a, the appellant was designated by the Court to a risk assessment Tier III. That statute clearly directs that, unless the Court does not require the juvenile to register, any sex offender convicted of Unlawful Sexual Intercourse in the Third Degree shall be classified as a risk assessment Tier III. The appellant appealed asserting that the classification violated his due process right and created an unlawful mandatory presumption. The appellant contended that 11 Del. C. § 4121 established "a mandatory and conclusive presumption that all individuals convicted of unlawful sexual intercourse in the first degree, irrespective of their age or personal characteristics, must be designated a Tier III sex offender." Specifically, the appellant argued that it was illogical "to presume that a juvenile convicted of unlawful sexual intercourse in the first degree should be subject to the debilitating effects of Tier III designation for the remainder of his or her life."
Id. at 1074.
Id.
Where a mandatory presumption is implicated, the trier of fact is required to presume the existence of one fact from the proof of another. A mandatory presumption is only proper if "there is a 'rational connection' between the proven fact and the presumed fact." The appellant in Helman argued that the proven fact was that he was adjudged delinquent of unlawful sexual intercourse in the First degree and the presumed fact was that he must be assigned to Tier III.
Id.
Id.
Id.
The Court detailed that, in Delaware, "after an individual is convicted of or adjudicated delinquent for an offense enumerated in the statute, the trial court must conduct a hearing at which the trial judge is required to designate the defendant as a sex offender." The trial court is then required to assign the individual to one of the three assessment tier levels. The trial court has no discretion in making this determination. Rather, "the statute specifies what offenses will result in designation to each separate Tier Level." An individual designated to risk assessment Tier III is required to comply with community registration provisions for the remainder of his life. Thus, there is no fact to be presumed. The Court explained that an individual is assigned to Tier III if he is convicted of one of the enumerated offenses in that category. There is no fact finding process to which a presumption could apply. Classification is a legal consequence of being adjudged delinquent of Unlawful Sexual Intercourse in the First Degree.
Id. at 1066 (emphasis added).
Id. (emphasis added).
Id.
Id.
Id.
Id. at 1074
Id.
Id.
Father's argument in this case is analogous to the argument asserted by the appellant in Helman. Father claims that the statutory presumption of 13 Del. C. § 724A is a conclusive or mandatory presumption and therefore, unconstitutional. However, like in Helman, no mandatory presumption exists in this case. The Court is not required to engage in a fact finding process determining whether or not Father's status as a sex offender, coupled with his subsequent convictions of Assault in the Third Degree, makes him an unfit parent. The statute, as the statute in Helman, provides a legal consequence for Father's status as a sex offender and subsequent conviction of a criminal act of violence - that the Court is unable to award him custody, placement or unsupervised visitation with his child. No fact finding by the Court is required and no fact is presumed. Therefore, the Court rejects Father's claim that 13 Del. C. § 724A creates a mandatory or conclusive presumption.
b. 13 Del. C. § 724A violates Father's due process rights
Though Father's central argument is that his due process rights are violated by 13 Del. C. § 724A through its creation of a mandatory presumption, Mother raised the argument that the statute unconstitutionally infringes on Father's fundamental right to raise his child and does not satisfy the heightened standard of strict scrutiny.
As indicated above, the right of a parent to direct the upbringing of his child is a fundamental right. The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Where government action infringes a fundamental right, Delaware courts apply a heightened scrutiny analysis. Thus, in order for the Court to determine that the statute at issue in this case is constitutional, the state actor, here the Division of Family Services, has the burden to show that the statute is narrowly tailored to serve a compelling state interest.
Troxel v. Granville, 530 U.S. 57, 59 (2000).
Doe v. Wilmington Housing Authority, 88 A.3d 654, 666 (Del. 2014).
Id.
Mother concedes that the state does have a compelling state interest to protect children from sex offenders by presuming that it is not in the best interests of a child to be placed in a custodial, residential, or unsupervised visitation arrangement with a sex offender. However, Mother argues the subsection (b)(2) of the statute is not narrowly tailored to that interest.
Mother asserts that the statute is overly broad preventing otherwise fit parents from enjoying the well-settled fundamental right to direct their child's upbringing. First, Mother asserts that the statute is not narrowly tailored because it does not define a "criminal act of violence." Therefore, the law works to dissolve a parent's fundamental right regardless of the nature and circumstances surrounding the subsequent act of violence. Secondly, Mother argues the statute is not narrowly tailored because no length of time is specified as to how long the state may hold one's fundamental parental rights in limbo following the commission of a criminal act of violence by a Tier II or III sex offender. A statute which infringes on a fundamental right for a limitless amount of time cannot be narrowly tailored.
As articulated in the brief filed by counsel for K.B., this Court has already held that 13 Del. C. § 724A does not unconstitutionally infringe on a sex offender's due process or equal protection rights. In the case of Department of Services for Children, Youth, and their Families v. S.S. & T.C., this Court determined that 13 Del. C. § 724A did infringe on a fundamental constitutional right and thus, a strict scrutiny analysis applied. In applying strict scrutiny, this Court determined that the state did have a compelling interest "in protecting the welfare of children and ensuring that children are protected from criminal sex offenders." Furthermore, this Court held that the statute was narrowly tailored to serve that compelling interest. The Court determined that the statute was narrowly tailored:
See Dep't of Services for Children, Youth & their Families v. S.S. & T.C., 2012 WL 10100634 (Del. Fam. Ct. Feb. 21, 2012).
Id. at *3.
to protect children only from those sex offenders who pose the highest risk to them, i.e. Tier II or III sex offenders under § 4121 of Title 11 who (1) have a criminal sentencing order prohibiting unsupervised contact with any child; (2) have committed another sexual offense or criminal act of violence; (3) are not in compliance with the terms of probation; (4) have not completed an intensive program of evaluation and counseling designed specifically for sex offenders and does not pose a risk to children; (5) have not completed a program of substance abuse counseling if appropriate; and (6) the best interest of the child would not be served by giving residential or custodial responsibilities to the sex offender.
Contrary to Mother's argument, "there is no 'blanket prohibition' against all sex offenders asserting parental rights." Those sex offenders who prove that they have overcome the presumption are entitled to their full parental rights. The statute only inhibits those who pose the highest risk to children from receiving custody, placement, or unsupervised visitation - those who cannot overcome the presumption.
Based on the foregoing, the Court concludes that 13 Del. C. § 724A, and specifically subsection (b)(2), does not unconstitutionally violate Father's due process right by impermissibly infringing on his fundamental right to parent his child. The statute survives the strict scrutiny analysis and is constitutional.
c. 13 Del. C. § 724A violates equal protection
Father's final argument is that he is being deprived of equal protection of the law because as a parent who committed a misdemeanor assault he is being deprived of exercising his fundamental parental rights. Yet, another sex offender-parent who violates other criminal laws designed specifically to protect children, such as endangering the welfare of a child and contributing to the delinquency of a minor, is not deprived of their parental rights because those offenses are not sexual offenses or criminal acts of violence.
Father's claim that 13 Del. C. § 724A(b)(2) violates equal protection is rejected. This argument was also addressed by this Court in Department of Services for Children, Youth, and their Families v. S.S. & T.C. In line with the reasoning developed in that case, Father is being treated the same as all sex offenders in the same circumstances, i.e. the same as all sex offenders with an Assault in the Third Degree conviction. The State has "drawn a line differentiating sex offenders who can rebut the presumption from those who cannot." This line "does not reflect 'invidious discrimination' but rather reflects a narrowly tailored legitimate State interest in protecting children from offenders posing the highest risk to them." Therefore, Father's equal protection rights are not violated under 13 Del. C. § 724A.
S.S. & T.C., WL 10100634, at *3.
Id.
Because Father has failed to overcome prong two of 13 Del. C. § 724A(b), the Court does not find it necessary to address whether it would be in K.B.'s best interests that Father be given residential or custodial responsibilities or visitation with the child.
Conclusion
The Court concludes that K.B. is dependent in the care of both parents. K.B. is dependent in Father's care because he has failed to overcome the presumption of 13 Del. C. § 724A. K.B. is dependent in Mother's care because Mother resides with Father and the Court is unable to place the child in the same home as Father.
Neglect
The Court now turns to DFS' contention that K.B. is neglected in the care of Mother and Father. "Neglect" or "neglected child" means that a person:
a. Is responsible for the care, custody, and/or control of the child; and
b. Has the ability and financial means to provide for the care of the child; and
1. Fails to provide necessary care with regard to: food, clothing, shelter, education, health, medical or other care necessary for the child's emotional, physical, or mental health, or safety and general well-being; or
2. Chronically and severely abuses alcohol or a controlled substance, is not active in treatment for such abuse, and the abuse threatens the child's ability to receive care necessary for that child's safety and general well-being; or
3. Fails to provide necessary supervision appropriate for a child when the child is unable to care for that child's own basic needs or safety, after considering such factors as the child's age, mental ability, physical condition, the length of the caretaker's absence, and the context of the child's environment.
In making a finding of neglect under [Section 901], consideration may be given to dependency, neglect, or abuse history of any party.
Again, '"[n]ecessary care" means a type and degree of personalized attention that will tend to advance a child's physical, mental, emotional, moral and general well-being."
10 Del. C. § 901(17). --------
As discussed above, the evidence supports a finding that Mother and Father were responsible for K.B.'s care, custody, and control. However, as addressed above Mother and Father do not have the ability to provide for K.B.'s care, custody, and control. Father is unable to provide for K.B. due to his inability to overcome the presumption of 13 Del. C. § 724A. Mother is unable to provide for K.B. because K.B. is unable to be placed with Mother due to Mother's continued residence with Father.
No evidence of chronic alcohol or drug use by Mother or Father was presented. No evidence that either Mother or Father failed to supervise K.B. during the few hours they had physical custody of her was presented.
The Court declines to find that K.B. is neglected in Mother or Father's care as neglect is defined under 10 Del. C. § 901(18) because Mother and Father do not have the ability to provide necessary care for K.B.
Best Interests Factors
Having found that K.B. is dependent in the care of Mother and Father, the Court must now determine whether it is in K.B.'s best interests to remain in DFS custody. In assessing K.B.'s best interests, the Court looks to the eight factors under 13 Del. C. § 722(a), as follows:
1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother and Father want K.B. to be returned to their care. This factor merely demonstrates the wishes of the parents and supports a return of the child to her parents.
2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
Given her young age, K.B. is unable to articulate her thoughts regarding her custodial or residential arrangements. This factor does not assist the Court.
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 interests;
K.B. has been residing with Mother's parents for most of her life thus far. Both Mother and Father have been visiting with K.B. once per week for approximately two hours at McDonalds. In addition, Mother and Father attended parenting classes with K.B. The parents' interactions with K.B. have been observed to be appropriate.
Also residing in Mother's parents' home are Mother's two other children, D----- and A--. The Court did not receive evidence as to these children's interactions with K.B.
Because K.B. is currently developing positive relationships with all family members, this factor favors K.B. remaining in DFS custody.
4) The child's adjustment to his or her home, school and community;
According to Grandmother and the CASA, K.B. is doing well in Grandmother's home. K.B. is growing, meeting her milestones, and is generally happy.
No evidence that K.B. is enrolled in any child care or day care was presented.
Because K.B. is doing well in her current placement at Grandmother's home, this factor favors K.B. remaining in DFS custody.
5) The mental and physical health of all individuals involve
There is no evidence that K.B. currently suffers from any physical or mental health issues.
Evidence of potential drug use by Mother was insufficient. Further, the Court does not find that either Mother or Father have any concerning mental health concerns. The evidence presented was insufficient to conclude that either parent has anger issues.
This factor favors Mother and Father receiving custody of K.B.
6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
The Court has already found that K.B. is dependent in the care of her parents. This factor favors continuing DFS custody.
7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
There is no evidence of domestic violence between Mother and Father in this case. There is no evidence of any domestic violence occurring in Grandmother's home. This factor favors returning custody of K.B. to Mother and Father.
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.
As detailed above, Mother incurred an offensive touching conviction in February 2016 arising from an incident between her and Grandmother. Mother has no other relevant criminal history.
Father has a significant criminal history. Of importance in this case, and as articulated within this Order, Father incurred a Rape in the Fourth Degree conviction in 1998. This conviction implicates the presumption of 13 Del. C. § 724A precluding the Court from placing K.B. in Father's care unless he overcomes that presumption. Additionally, Father incurred an Assault in the Third Degree conviction and an Endangering the Welfare of a Child conviction on June 19, 2000. Father incurred a second Assault in the Third Degree conviction on March 20, 2001. Father's Assault convictions preclude the Court from placing K.B. in his care pursuant to 13 Del. C. § 724A(b)(2). Additionally, Father incurred convictions for failing to re-register as a sex offender on June 4, 2012 and on September 16, 2013. Father has additionally incurred various drug charges and two Offensive Touching convictions.
Father's criminal history and its implication of 13 Del. C. § 724A favor custody of K.B. remaining with DFS.
Based upon the foregoing factors, the Court finds that it is in K.B.'s best interests for her to remain in the custody of DFS. Factors three, four, six, and eight all support this decision. Factors one, five and seven favor custody of K.B. being returned to Mother and Father. However, 13 Del. C. § 724A precludes the Court from doing so.
CONCLUSION
The Court finds by a preponderance of the evidence that K.B. is dependent in the care of Mother and Father and that it is in the best interests of K.B. that custody be awarded to DFS. Therefore, the Court ORDERS that K.B. (DOB: ) shall remain in the custody of the Delaware Division of Family Services. It is the finding of the Court that DFS has made reasonable efforts toward the permanency plan in effect with Mother, which in this case is reunification.
Because the issue was raised at the May 12 hearing, the Court further ORDERS that Father undergo genetic testing to determine the paternity of K.B. The Court had scheduled genetic testing for K.B., Mother and Father to occur at LabCorp in Georgetown, Delaware, on
A Dispositional Hearing is hereby scheduled for
IT IS SO ORDERED this 2d day of June 2017.
/s/_________
PETER B. JONES, JUDGE PBJ cc: