Dep't of Servs. for Children, Youth, & Their Families v. Simpson

Full title: DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES (DSCYF)…

Court: FAMILY COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Date published: Jul 30, 2012

File No.: CN11-01239 (Del. Fam. Jul. 30, 2012)

Opinion

File No.: CN11-01239 File No.: 12-0305TN Petition No.: 11-02137 Petition No.: 12-08925

07-30-2012

DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES (DSCYF), DIVISION OF FAMILY SERVICES (DSF), Petitioner, v. SHIRLEY SIMPSON AND THOMAS CHURCH, Respondents.

Craig R. Fitzgerald, Esquire, Attorney for Petitioner, Department of Services for Children, Youth, and their Families, Division of Family Services Julie Yeager, Esquire, Attorney for Respondent, Shirley Simpson David Facciolo, Esquire, Attorney for Respondent, Thomas Church Michael Arrington, Esquire, guardian ad litem for Max Simpson

Newell, J.

UPON A PETITION FOR TERMINATION AND TRANSFER OF PARENTAL RIGHTS Date Written Decision Signed: July 30, 2012
Date Written Decision Mailed: July 30, 2012 Craig R. Fitzgerald, Esquire, Attorney for Petitioner, Department of Services for Children, Youth, and their Families, Division of Family Services Julie Yeager, Esquire, Attorney for Respondent, Shirley Simpson David Facciolo, Esquire, Attorney for Respondent, Thomas Church Michael Arrington, Esquire, guardian ad litem for Max Simpson Newell, J.

INTRODUCTION

Pending before the Court is a Petition for Termination and Transfer of Parental Rights ("TPR Petition") filed by the Department of Services for Children, Youth, and their Families, Division of Family Services ("DFS") against SHIRLEY SIMPSON ("Mother") and THOMAS CHURCH ("Father") in regard to their son, MAX SIMPSON ("Max"), born [Redacted] . This Court held a hearing on May 22, 2012 and July 6, 2012 ("TPR Hearing"). Present for the TPR hearing were: Craig R. Fitzgerald ("Mr. Fitzgerald"), Esquire, attorney for DFS; [Redacted] , DFS; [Redacted] DFS; Mother; Julie Yeager ("Ms. Yeager"), Esquire, attorney for Mother; Father; David Facciolo ("Mr. Facciolo"), Esquire, attorney for Father; and Michael Arrington ("Mr. Arrington"), Esquire, guardian ad litem for Max. This is the Court's decision regarding this matter.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

On January 25, 2011, merely fourteen days after Max's birth, DFS filed a Dependency/Neglect Petition for Custody alleging the following: (1) Max was born with withdrawal symptoms from the opiate, Percocet; (2) Father is a registered sex offender and could not have contact with children unless approved by the Family Court of Delaware; (3) Mother is addicted to Percocet; (4) Mother is diagnosed with bipolar disorder; (5) Father has a history of paranoid schizophrenia but is not seeking treatment; (6) Mother and Father have a history of domestic violence; (7) There are no relative placement options; (8) Mother does not have custody of her older son [Redacted] ; (9) Mother was combative and uncooperative with Christiana Hospital employees when they attempted to conduct a mental health evaluation; (10) Neither parent is employed; and (11) Father is on probation for a domestic incident involving Mother. While Max was still in the hospital, he entered the care and custody of DFS pursuant to an emergency ex parte order issued on January 25, 2011 ("January 25^th Order").

On February 2, 2011, a Preliminary Protective Hearing was held, whereby the Court determined that there was probable cause to find that Max was a dependent child as defined by 10 Del. C. § 901(8).² Mother and Father were both present at the hearing. Father stipulated to a probable cause finding of dependency due to the fact that he is a registered sex offender and had not yet rebutted the presumption set forth at DEL. CODE ANN. tit 13, § 724A. It was also confirmed that Max was, indeed, born with withdrawal symptoms from Percocet. As a result, Max was administered .02 milliliters of a tincture of opium every four hours to address his medical condition. Although Mother had a valid prescription for Percocet and testified that the prescribing doctor was aware of her pregnancy when he prescribed the medication, the Court found there was probable cause as to Mother to find that Max was a dependent child and that it was in Max's best interest for custody to remain with DFS until Mother underwent a drug and alcohol evaluation and a mental health evaluation. DFS requested that Father also be required to undergo a mental health evaluation and Father requested that the evaluation be conducted by [Redacted] a psychologist with whom he had met previously. Father identified one adult who could potentially care for Max: [Redacted] , who is Father's godmother. Mother was permitted supervised visitation with Max twice per week and Father was prohibited from visiting Max due to the §724A presumption. At the end of the hearing, Mr. Facciolo, on behalf of Father, requested that the Adjudicatory Hearing be consolidated with the Dispositional Hearing and held within ninety days of the Preliminary Protective Hearing. Ms. Yeager, on behalf of Mother, opposed such course of action and requested that the Adjudicatory Hearing be held within thirty days. To accommodate Mother's and Father's requests, the Court scheduled two separate Adjudicatory Hearings.

2 10 Del. C. § 901(8) provides:

(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

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 a nonrelated home on an extended basis without the consent and approval of the DSCYF or any agency or court licensed or authorized to place children in a nonrelated home; or
3. The child has been placed with a licensed agency which certifies it cannot complete a suitable adoption plan.

On February 28, 2011, the Court held Mother's Adjudicatory Hearing. After considering the evidence presented, the Court found that Max was a dependent child as Mother's housing was unstable and she was currently living with Father who had not yet rebutted the §724A presumption. Ms. Yeager, on behalf of Mother, indicated that Mother had applied for a Section Eight housing voucher and was on the waiting list. A substance abuse evaluation was performed by Brandywine Counseling to ascertain whether Mother needed to undergo substance abuse treatment. Mother indicated at the February 28^th hearing that she was prescribed Percocet but was not taking it at that time. Mother also indicated that she was taking Seroquel for her bipolar disorder as prescribed to her by [Redacted] Psychologist. However, Mother had not undergone a mental health evaluation as of the date of that hearing. [Redacted] DFS, the family crisis therapist assigned to the case on February 10, 2011, indicated that Mother had missed two visitations with Max since February 10^th. Mother provided DFS with two possible placement options: [Redacted] Father's godmother, and [Redacted] Mother's sister. Ultimately, it was reported that Max was doing well in his foster home and remained on a tincture of opium.

Because Father is a registered sex offender, he sought to rebut the presumption under DEL. CODE ANN. tit. 13, § 724A. As Father had previously been convicted of Terroristic Threatening, the Court held a telephone conference on March 16, 2011 for the purpose of requesting that the parties and counsel submit a brief or memorandum on whether terroristic threatening is a criminal act of violence under §724A(b)(2). Timely briefs were submitted by Max's guardian ad litem, Mr. Arrington; Ms. Yeager, on behalf of Mother; Mr. Facciolo, Father, and Mr. Fitzgerald, on behalf of DFS.

The Dispositional Hearing for Mother was held on March 29, 2011, and the Court found that custody of Max should continue with DFS. Mother's housing remained unstable and Father had lost his job and could no longer contribute to the parent's rent. In addition, Father had filed a petition for protection from abuse ("PFA") against Mother, and Mother's plan upon moving out of Father's residence was unknown. Mother had not demonstrated that she would be able to support Max if she were to live on her own. Mother also continued to have substance abuse and mental health issues. Mother had previously been recommended for outpatient treatment by Brandywine Counseling, which she had yet to attend. Mother was prescribed Xanax and Percocet. A DFS worker noted during her testimony that Mother had missed visits with Max but had not missed medical appointments to refill her prescriptions. DFS explored Mother's sister, [Redacted] as a relative placement option but she indicated that she and her fiancé did not have the resources to support Max. In addition, DFS explored [Redacted] Father's godmother as a placement option but she indicated that she was only willing to act in the capacity of a babysitter or grandmother.

Mother signed a reunification case plan on March 24, 2011 which was entered into evidence at the March 29^th hearing. The case plan required her to: (1) seek and maintain stable employment to meet the financial needs of herself and Max; (2) attend parenting classes and actively engage with a parent aide worker from New Behavioral Network; (3) actively participate in domestic violence counseling through Child, Inc. and meet with [Redacted] a domestic violence liaison; (4) actively participate in substance abuse treatment as recommended by Brandywine Counseling and take prescription medication only as prescribed; (5) schedule a psychological evaluation and participate in recommended mental health treatment; (6) obtain safe, stable and appropriate housing for herself and Max; and (7) attend all custody hearings and attend weekly visitation with Max.

At the time of the Dispositional Hearing, Max was still being prescribed a tincture of opium which was administered every eight hours. As noted in other hearings, Mother continued to miss visitation with Max and for the visits she did attend, she was, at times, occupied by her cell phone or relied upon her younger son, [Redacted] , to help her with Max. As a result, Mr. Arrington and DFS were concerned with Mother's efforts to bond with Max.

The Court held the first day of Father's Adjudicatory hearing on April 13, 2011. Because testimony was incomplete following the April 13^th hearing, the Adjudicatory Hearing was continued to April 18, 2011. Subsequently, Mr. Facciolo requested a continuance due to a death in his family. The Adjudicatory Hearing was ultimately rescheduled for July 11, 2011. On June 27, 2011, Father's counsel filed a motion for continuance because a critical witness was unable to attend the hearing. In its Order dated July 5, 2011, the Court noted its concern with the delay that had occurred in Father's case. However, the Court reluctantly granted Father's motion for continuance as all parties were in agreement. On July 25, 2011, Father filed two motions, pro se, expressing his displeasure with the continuance of the Adjudicatory Hearing. Also on July 25, 2011, the Court denied Father's motions as the continuance was granted at the request of Father's counsel.

The second day of Father's Adjudicatory Hearing took place on October 6, 2011. In its Order dated November 22, 2011, the Court found that Max remained a dependent child and that Father had failed to rebut the presumption set forth under § 724A of the Child Protection from Sex Offenders Act ("The Act").³ The Court determined that Father had failed to satisfy two statutory factors as Father committed a subsequent criminal act of violence and failed to complete an intensive program of evaluation and counseling designed specifically for sex offenders. The Court also found that Father's due process and equal protection rights were not violated by the Act.

3 13 Del. C. §§ 721A-728A.

On June 21, 2011, a Review Hearing was held for Mother, and it was noted that Mother had failed to comply with the terms of her case plan. She had not completed substance abuse treatment or a psychological evaluation, had not provided DFS with a copy of her current lease, had not consistently visited Max, and had not attended parenting classes through the New Behavioral Network ("NBN"). Due to her inconsistent visitation with Max, Mother had only been able to meet with the parent aide once since her prior hearing. Since the previous hearing, a domestic incident had occurred between Mother and Father in which Mother came at Father with an ax and was subsequently charged with Aggravated Menacing, Terroristic Threatening, and Offensive Touching.

A no-contact order was issued between Mother and Father and Mother moved out of Father's residence. Mother was urged to comply with the elements of her case plan. Unlike Mother, Father had consistently attended visitations with Max. However, at the time of Mother's Review Hearing, Father had not yet signed a reunification case plan.

The Court held a Second Review Hearing for Mother on September 13, 2011, at which time it found that Max continued to be a dependent child. At the September 13^th hearing, the Court learned that Mother had been convicted of Aggravated Menacing and thus, was a perpetrator of domestic violence as she was convicted of a felony-level offense against Father. As a result, Mother was subject to the rebuttable presumption under 13 Del. C. 705A that no perpetrator of domestic violence shall be awarded joint or sole custody of a child or primary residency of a child. As of September 13^th, Mother had failed to seek employment, had not undergone a psychological evaluation or received mental health treatment, and was not receiving substance abuse treatment. In addition, Mother continued to inconsistently visit with Max and had no visitation in August 2011 due to her incarceration for the above referenced conviction.

Mr. Fitzgerald filed a "Motion for No Reasonable Efforts and Motion to Change Goal" on December 5, 2011 requesting that the Court make a finding that DFS was no longer required to make reasonable efforts to reunify Max with his parents and to change the goal to termination of parental rights/adoption.

On December 6, 2011, the Court held a Dispositional Hearing for Father and a Third Review Hearing for Mother. The Court found that Max remained a dependent child and continued custody with DFS. At the time of the hearing, Father was incarcerated on another Terroristic Threatening charge. In addition, as noted above, Father had failed to rebut the presumption under §724A. Mother failed to appear in Court and the evidence established that she had failed to comply with her case plan. Mother was not involved in mental health or substance abuse treatment. Father had repeatedly refused to sign a case plan but stated at the December 6^th hearing that he was willing to sign a case plan going forward.

A permanency Hearing was held on January 31, 2012 for both parents and the Court continued custody of Max with DFS. The permanency committee met regarding Max and approved the goal change to termination of parental rights/adoption. It was reported that Mother remained unemployed but received social security income for her support. In addition, Mother's compliance with the parent aide was sporadic, and Mother never completed domestic violence counseling, substance abuse treatment, or a psychological evaluation. Following his Dispositional Hearing, Father was convicted of Terrorist Threatening against a Judge of the Court of Common Pleas.

Father signed his case plan on January 31, 2012, the day of the Permanency Hearing, and it included the following elements: (1) obtain employment or other income to provide for the family's basic needs; (2) have an appropriate supervision plan for the child whenever he is out of the home; (3) participate in parent aide services on a weekly basis and follow through with additional parenting education recommendations; (4) exercise healthy ways of releasing aggressive feelings or anger and successfully complete an anger management program; (5) participate in a domestic violence program at Child, Inc. and provide the child with a safe, appropriate place to deal with issues surrounding domestic violence; (6) demonstrate impulse control and refrain from inappropriate comments and threats; (7) follow through with all recommendations made by [Redacted] Psychologist and [Redacted] Psychologist to manage and treat mental health issues, continue in individual therapy to address mental health needs, and demonstrate progress in therapy goals; (8) maintain safe, stable housing; (9) comply with probation, attend all court hearings, and refrain from obtaining new criminal charges; and (10) successfully complete a sex offender treatment program.

Father was offered a case plan from the beginning of this proceeding but has repeatedly refused to sign one as he did not think that it was necessary. On March 30, 2011,⁴ [Redacted] DFS had a discussion with Father regarding the process of case planning but Father did not wish to sign a case plan at that time. In this Court's first Review Hearing Order for Mother dated June 24, 2011, the Court ordered DFS to case plan with Father when he was willing to do so. Subsequently in its Order dated July 5, 2011, the Court noted that Mr. Facciolo had indicated that Father was now willing to case plan without prejudice. On August 17, 2011, Father specifically asked for his case plan and [Redacted] DFS presented him with the case plan at his next visitation on or about August 31, 2011.⁵ Father told [Redacted] DFS that he wanted to review it and take it home with him. However, Father never returned the case plan.

4 At the Permanency Hearing on January 31, 2012, a DFS worker testified that her meeting with Father on June 21, 2012 was the first major discussion she had with Father regarding the case planning process.

5 The DFS worker was unsure of the exact date and testified at the Permanency Hearing that she provided the case plan to Father in October 2011.

Neither parent has rebutted the legal presumptions preventing the Court from awarding them primary placement of Max. In addition, Mother has not attended visitation with Max since November 2011, and Father's visitation was suspended by Order of this Court when he was incarcerated on October 12, 2011 for Terroristic Threatening. In this Court's Order dated May 3, 2012, Father's visitation was reinstated and scheduled to occur once per week for two hours under the supervision of DFS.

It was noted at the Permanency Hearing that while Father has acted appropriately at times when visiting with Max, there were times when he was angry or distracted and made inappropriate comments in front of Max. Both parents did not have stable housing at the time of the Permanency Hearing and neither parent had provided financial support to Max while he has been in care. Ultimately, this Court found that the goal change to termination of parental rights/adoption was the appropriate goal in this case and that DFS was no longer required to make reasonable efforts to reunify Max with his parents.

On January 10, 2012, Mr. Facciolo, on behalf of Father, filed a Motion to Certify Questions of Law to the Delaware Supreme Court. Mr. Arrington, on behalf of Max, filed a response on January 20, 2012; Mr. Fitzgerald, on behalf of DFS, filed a response on January 30, 2012; and Ms. Yeager, on behalf of Mother, did not file a response. Mr. Facciolo, on behalf of Father, argued that the urgent and important reason for an immediate determination of his questions by the Supreme Court is that "a direct appeal of a final decision will delay the case's disposition with harm to the litigants and their infant child whose fate will be in limbo." However, the Court found that Father's questions of law failed to meet the requirements of Supreme Court Rule 41 as there was no important or urgent reason for an immediate determination of Father's questions. The Court also found that it had already decided Father's questions regarding classification of terroristic threatening as a criminal act of violence and the constitutionality of DEL. CODE ANN. Tit 13, § 724A, and therefore, the Court was not permitted to certify such questions under Rule 41 since "the certifying court" had already decided those questions in this case.⁶ Therefore, Father's motion was denied.

6 See Norbertine Fathers of Delaware, Inc. v. Whitwell, 956 A.2d 642 (Del. 2008) (table decision). See also Johnson v. Paul's Plastering, Inc., 738 A.2d 238 (Del. 1999)(table decision) ("Only questions that have not been answered by the trial court may be certified to this Court under Rule 41").

The TPR Hearing was scheduled for May 22, 2012 and July 6, 2012.⁷ Mother was personally served with the TPR Petition on March 20, 2012, and Father was personally served on May 16, 2012. Father, pro se, filed two motions on May 21, 2012 requesting a continuance of the TPR hearing on the basis of "insufficient" counsel.

7 The Court originally scheduled a third day for the hearing.

At the beginning of the TPR Hearing on May 22^nd, Ms. Yeager and Mr. Facciolo indicated that Mother and Father were dissatisfied with their representation as they thought counsel had not adequately prepared for the TPR hearing. After a brief recess, Mother informed the Court that she did not wish to discharge Ms. Yeager as her counsel for the proceeding. In addition, Father did not object to Mr. Facciolo's representation but wanted to continue the TPR hearing in order to discuss his case with Mr. Facciolo. However, after hearing what preparations counsel undertook to prepare for the proceeding, the Court was satisfied that counsel adequately prepared and thus, Father's motions were denied.

The Court notes that Mr. Fitzgerald requested during the hearing that this Court enter the dependency and neglect orders from prior proceedings involving Mother and Father into evidence as DFS Exhibit 12.

DISCUSSION

A. Standard for Termination of Parental Rights

The United States Supreme Court has held that a parent's interest in his or her children is one of the "oldest of the fundamental liberty interests recognized by [the] Court."⁸ In addition, the Supreme Court has found that so long as a parent is fit, "there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children."⁹ Likewise, the Delaware Supreme Court has found that parental rights are "fundamental liberties" which may not be abrogated absent compelling circumstances.¹⁰

8 Troxel v. Granville, 530 U.S. 57, 65 (2000).

9 Id. at 68-69.

10 In re Stevens, 652 A.2d 18, 24 (Del. 1995). See also Daber v. Div. of Child Protective Srvs., 470 A.2d 723, 726 (Del. 1983).

Although parental rights are important liberty interests, both the United States Supreme Court and the Delaware Supreme Court have acknowledged that the State has the power to limit parental rights to protect a child's health and welfare.¹¹ In addition, the federal Adoption and Safe Families Act of 1997 ("ASFA") emphasizes the importance of child safety and a child's need for permanency by placing limits on the amount of time in which parents may rehabilitate themselves and assume their parental responsibilities, provided that the State has developed a meaningful case plan for the parents and made reasonable efforts to reunify the family.¹²

11 See Prince v. Massachusetts, 321 U.S. 158, 166-167 (1944); In the Matter of Burns, 519 A.2d 638, 645 (Del. 1986); See also Daber, 470 A.2d at 726. ("A society which arrogates to itself the power to intervene and disrupt [the parent-child relationship] can do so only for the most compelling reasons necessary to correct or protect a child from circumstances which directly threaten or affect the minor's physical or emotional health.").

12 In re K.L.T., 2001 WL 493113 (Del. Fam. Jan 22, 2001).

In Delaware, the statutory standard for terminating parental rights consists of a two-part analysis.¹³ First, the Court must be satisfied that one or more of the enumerated statutory grounds set forth in 13 Del. C. §1103(a) has been established.¹⁴ If the statutory basis is failure to plan, the Court must review whether the State developed a meaningful case plan and made reasonable efforts to reunify the family or avoid out of home placement.¹⁵ Second, the Court must find that severing the parental ties is in the best interests of the child after an analysis of the 13 Del. C. § 722 factors.¹⁶ A clear and convincing standard is required for terminating parental rights due to the permanent nature of the proceedings and the importance of the parental rights at stake.¹⁷ The Delaware Supreme Court has held that:

13 See Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).

14 Id. See also In re Hanks, 553 A.2d 830, 833 (Del. 1982).

15 Brown v. Div. of Family Services, 2011 WL 490977 (Del. Feb. 14, 2011) ("If the termination of parental rights is based primarily on the parent's failure to plan for the child's needs, DFS must prove by clear and convincing evidence that it "made bona fide reasonable efforts to reunite the family."). D.F.S. v. N.S. and R.T., 2009 WL 5206720, at *18 (Del. Fam. Dec 11, 2009).

16 In re Hanks, 553 A.2d at 833.

17 Craft v. Div. of Family Services, 2012 WL 603978 (Del. Feb. 24, 2012). Patricia A.F. v. James R.F., 451 A.2d 830, 832 (Del. 1982).

"[T]he Family Court may review or consider the record of previous relevant proceedings, even though they may have generated decisions based upon a preponderance of the evidence, provided the Family Court reconsiders the evidence under the higher clear and convincing standard."¹⁸

The clear and convincing standard requires greater factual certainty than a preponderance of the evidence standard, thereby striking a fair balance between the rights of the parent and the State's legitimate concerns.¹⁹

18 Powell v. Dep't of Services for Children, Youth & their Families, 963 A.2d 724, 737 (Del. 2008).

19 Id.

B. Statutory Grounds for Termination of Parental Rights

Pursuant to 13 Del. C. § 1103(a)(5), DFS seeks termination of the parental rights of Mother and Father on the ground of failure to plan and as to Father, the ground of commission of a felony-level offense against the person where the victim is a child.

1. Failure to Plan-Mother

The Court finds that DFS proved by clear and convincing evidence that Mother failed to plan for Max. Pursuant to 13 Del. C. § 1103(a)(5), parental rights may be terminated if the parent has failed or has been unable to plan adequately for the child's physical needs or mental and emotional health and development.²⁰ In addition, the statute requires a finding of one or more of the conditions listed in 13 Del. C. § 1103(a)(5)a.1-5.²¹

20 13 Del. C. § 1103(a)(5)a. provides:

(5) The parent or parents of the child, or any person or persons holding parental rights over the child, are not able, or have failed, to plan adequately for the child's physical needs or mental and emotional health and development, and 1 or more of the following conditions are met:

a. In the case of a child in the care of the Department or a licensed agency:

1. The child has been in the care of the Department or licensed agency for a period of 1 year, or for a period of 6 months in the case of a child who comes into care as an infant, or there is a history of previous placement or placements of this child; or
2. There is a history of neglect, abuse or lack of care of the child or other children by the respondent; or
3. The respondent is incapable of discharging parental responsibilities due to extended or repeated incarceration, except that the Court may consider post conviction conduct of the respondent; or
4. The respondent is not able or willing to assume promptly legal and physical custody of the child, and to pay for the child's support, in accordance with the respondent's financial means; or
5. Failure to terminate the relationship of parent and child will result in continued emotional instability or physical risk to the child. In making a determination under this paragraph, the Court shall consider all relevant factors, including:

A. Whether the conditions that led to the child's placement, or similar conditions of a harmful nature, continue to exist and there appears to be little likelihood that these conditions will be remedied at an early date which would enable the respondent to discharge parental responsibilities so that the child can be returned to the respondent in the near future;
B. The respondent's efforts to assert parental rights of the child, and the role of other persons in thwarting the respondent's efforts to assert such rights;

C. The respondent's ability to care for the child, the age of the child, the quality of any previous relationship between the respondent and the child or any other children;
D. The effect of a change of physical custody on the child; and
E. The effect of a delay in termination on the chances for a child to be placed for adoption.

21 Id.

While Max has been in DFS care, Mother has been unable and/or failed to address the overall issues in her case plan. Each element of Mother's case plan is discussed below.

a. Employment/Finances

Mother has not sought employment throughout these proceedings and is currently unemployed. Mother receives only social security income and food stamps. [Redacted] DFS, the DFS treatment worker confirmed that Mother receives social security income which is her sole source of income. According to [Redacted] DFS, Mother does not feel as though she can be employed.

Mother testified that she receives $694.00 per month in social security income. Mother indicated that she would like to get her GED while incarcerated and believes it will help her with a subsequent job search.

b. Parenting Class/Parent Aide with New Behavioral Network

A parent aide was provided by NBN but Mother failed to meet with the parent aide on a consistent basis.

[Redacted] NBN was the NBN parent aide assigned to the present case. [Redacted] NBN testified that she normally would attend Max's visitations and would supervise Mother and Father as they interacted with Max. In addition, [Redacted] NBN would use positive reinforcement techniques and would speak with each parent individually about inappropriate behaviors. [Redacted] NBN indicated that she completed observation checklists for each visitation. [Redacted] NBN had concerns regarding Mother's interaction with Max and testified that she talked to Mother about her mental health and following her case plan. [Redacted] NBN noted on one occasion in which Mother filled up a bottle with water and tried to make Max drink it. [Redacted] NBN also noted that neither parent attended NBN's parenting class despite letters being sent to them in July 2011. [Redacted] NBN stopped working with Mother and Father after NBN developed a policy that services would no longer be provided to parents with sex offender histories. According to [Redacted] NBN, the last visit she supervised occurred on September 7, 2011, and the parents were subsequently discharged.

On cross examination by Ms. Yeager, [Redacted] NBN indicated that Mother attended approximately eight visits while she was the assigned parent aide.

After Mother and Father were discharged from NBN's parent aide services, [Redacted] , Children's Choice, from Children's Choice, was the new parent aide assigned to the parents' case, effective October 8, 2011. [Redacted] Children's Choice testified that she only participated in an intake visit with the parents. On cross examination by Mr. Facciolo, [Redacted] Children's Choice indicated that the parents' case with Children's Choice is currently "inactive" which means that [Redacted] Children's Choice may participate in the parents' proceedings but is no longer providing parent aide services. Children's Choice and DFS administrators made the decision to change the case status to "inactive" due to safety concerns based on Father's threatening comments made at the October 12^th intake visit.

[Redacted] DFS testified that there was a period of time when Mother was involved with a parent aide but that it was very sporadic. In addition, [Redacted] DFS noted that Mother was not involved in a parenting class. According to [Redacted] DFS, Mother stopped engaging with the parent aide as she was angry that Father was incarcerated.

c. Domestic Violence Counseling

Mother has failed to comply with the domestic violence counseling component of her case plan.

[Redacted] DFS testified about multiple domestic violence incidents between Mother and Father. [Redacted] DFS further testified that Father filed a PFA petition once or twice against Mother.²² According to [Redacted] DFS, Father had indicated previously that Mother said she would "slit his throat with a knife." In addition, one domestic violence incident involved Mother swinging an ax at Father and being subsequently convicted of Aggravated Menacing. [Redacted] DFS testified that there was more emotional and verbal abuse than physical abuse.

22 Father has filed a total of seven PFA petitions against Mother. Mother has filed one PFA petition against Father. All PFA petitions were either voluntarily dismissed or the parties stipulated to a dismissal.

[Redacted] Domestic Violence Liaison, the domestic violence liaison at DFS, testified that she was given a referral for Mother by [Redacted] DFS. According to [Redacted] Domestic Violence Liaison, she had previously met Mother as an employee of Child, Inc. and provided her with domestic violence resources and contact numbers for the domestic violence hotline. In addition, she assisted Mother in filing a PFA petition. However, [Redacted] Domestic Violence Liaison admitted on cross examination by Ms. Yeager that when she received a subsequent referral from [Redacted] DFS in regard to the present case, she chose not to contact Mother because she had previously given Mother information for domestic violence services. On cross examination by Mr. Arrington, [Redacted] Domestic Violence Liaison indicated that she did not have personal knowledge of domestic violence by Father against Mother but that she merely helped Mother write her PFA petition which did not result in a PFA order.

d. Substance Abuse Treatment

While Max has been in foster care, Mother has consistently failed to seek substance abuse treatment.

As stated earlier, Max came into foster care as a result of Mother's substance abuse issues as he was born with withdrawal symptoms to Percocet. [Redacted] DFS was assigned to the instant case as a result of an urgent hotline referral. When [Redacted] DFS first met with Mother and Father, Mother acknowledged that she took Percocet throughout her pregnancy for a back injury and that she had issues in the past with abusing Percocet. Father also expressed to [Redacted] DFS his concerns that Mother was abusing Percocet.

[Redacted] DFS also testified about Mother's substance abuse issues. A substance abuse evaluation was performed on Mother by Brandywine Counseling. According to [Redacted] DFS, there were many inconsistencies with Mother's statements about her substance abuse and treatment was recommended. However, Mother failed to follow through with treatment. Mother told [Redacted] DFS that she wished to seek a second opinion from [Redacted] Psychologist but then failed to meet with him. Mother never returned to Brandywine Counseling but reconnected with Connections sporadically. According to [Redacted] DFS, Mother was not actively engaged in substance abuse treatment until after her incarceration, which began February 29, 2012.

[Redacted] Probation, Mother's supervising probation officer since October 24, 2011 until her last violation of probation in 2012, also testified about Mother's substance abuse. At this time, Mother is incarcerated for a violation of probation due to testing positive for K-2, which is a type of synthetic marijuana, and is participating in the Key Program to address her substance abuse. [Redacted] Probation indicated that since he was assigned to Mother, she has not always been cooperative with probation. According to [Redacted] Probation, her first violation of probation occurred when she tested positive for illegal substances. Mother violated probation again after yielding three, positive urine drug screens and failing to report to probation and/or attending office visits. According to [Redacted] Probation, Mother was to receive substance abuse treatment through Connections as a condition of her probation. [Redacted] , Probation attempted to contact Connections on multiple occasions to verify that Mother was, in fact, receiving substance abuse treatment; however, after multiple violations, it was determined that treatment in conjunction with incarceration would be the most beneficial to Mother. On cross examination by Mr. Facciolo, [Redacted] Probation acknowledged that Father reported to him directly regarding Mother's substance abuse issues.

[Redacted] DHSS, from the Department of Health and Social Services, also testified about Mother's substance abuse. Mother was assigned to [Redacted] DHSS on January 12, 2012 for monitoring and evaluation by the Treatment Access Center which is a Delaware agency that acts as a liaison between the criminal justice system and treatment facilities. [Redacted] DHSS testified that she evaluated Mother and initially recommended that Mother continue with her treatment at Connections. However, Mother was noncompliant with her treatment at Connections from January 2012 through March 2012. According to [Redacted] DHSS, Mother denied any substance abuse issues at her evaluation on February 16, 2012. [Redacted] DHSS administered a urine drug screen on January 20^th and February 16^th, both of which were negative. However, [Redacted] DHSS indicated that Mother testified positive for K-2 on February 20^th. [Redacted] DHSS further testified that Mother was sentenced to the Key and Crest Programs as a result of her most recent violation of probation. According to [Redacted] DHSS, it typically takes approximately twelve to eighteen months to complete the Key Program, six months to complete the on-site Crest Program, and six months to complete the after-care Crest Program. [Redacted] DHSS testified that Mother could have children with her at the after-care Crest Program.

On cross examination by Ms. Yeager, [Redacted] DHSS testified that her second recommendation for Mother was that she be sent to a residential treatment program. On cross examination by Mr. Facciolo, [Redacted] DHSS indicated that she met with Mother on three occasions. In addition, [Redacted] DHSS indicated that the Lighthouse Program was not recommended for Mother as she ( [Redacted] DHSS) had to consider the willingness of the individual to engage in treatment and Mother had failed to acknowledge her substance abuse previously.

Mother also testified about her substance abuse. Mother admitted that she abused prescription pills and is aware that she has "been in denial for a long time." Mother also admitted to injecting heroin and smoking crack cocaine a few times and as recently as January 2012. Mother acknowledged that a component of her treatment is to "be truthful." Mother testified that she met with a counselor at Connections on a monthly basis from December 2011 to February 2012.

Father also addressed Mother's substance abuse issues. According to Father, had the State of Delaware "stepped in to help [Mother]" with her substance abuse, the parents would not be involved in the present proceeding. In addition, Father testified that Mother "was a great person" prior to her Percocet abuse.

e. Psychological Evaluation/Mental Health Treatment

Despite agreeing to seek mental health treatment and being aware that it was a significant component of her case plan, Mother has failed to seek treatment and failed to complete a psychological evaluation as required by her case plan.

[Redacted] DFS testified that when Max first came into care, Mother indicated that she was in treatment at that time for her bipolar disorder diagnosis and was taking Seroquel as prescribed.

Mother testified that the "jail psychiatrist" will not meet with her for reasons unbeknownst to Mother. Mother indicated that her Connections psychiatrist had previously diagnosed her with bipolar disorder and borderline personality disorder. Mother testified that she participated in a psychological evaluation in December 2011 or January 2012; however, Mother has failed to provide DFS with verification of the evaluation. Mother also indicated that Connections had previously recommended that she be prescribed Lamictal and Trazodone but that she is not currently taking mental health prescriptions while incarcerated.

f. Housing

Mother has also failed to find and maintain stable, appropriate housing as required by her case plan.

[Redacted] DFS testified that Mother and Father were initially residing with [Redacted] Father's "foster grandparents." In March 2011, Mother and Father moved into a home in Claymont, Delaware for which [Redacted] DFS did a home assessment. [Redacted] DFS stated that she had no concerns with the physical space of the home but that there were disturbing activities occurring at the home, and there were arguments between the parents. Mother and Father subsequently moved to another house in New Castle, Delaware, and Mother and Father remained there until Father was incarcerated in October 2011. Mother then moved from place to place and stayed in a hotel, stayed with her father briefly, moved to a Connections residence for a brief period of time, and is now incarcerated.

[Redacted] Connections testified about his involvement with Mother and his attempt to assist Mother with housing. According to [Redacted] Connections, he contacted Mother about the field base management program which is a partnership between Connections and Medicaid. [Redacted] Connections testified that Mother's mental health diagnosis made her eligible for housing through Connections. Mother's housing referral form, signed by a Connections agent and Mother on December 22, 2011 and entered into evidence as DFS Exhibit 1, indicates that Mother has a history of chronic homelessness. [Redacted] Connections testified that Mother had spent time in the Connections' homeless café in the winter of 2011. According to [Redacted] Connections, Mother had not been approved for a housing voucher to date and that, to the best of his knowledge, Connections did not have a housing program for families which would permit Max to reside with Mother. [Redacted] Mother's prior probation supervisor confirmed that Mother applied for a housing voucher.

g. Visitation

Prior to her incarceration, Mother failed to consistently attend visitation for Max, although she is not employed and had the ability to attend weekly supervised visits with Max at DFS.

As stated previously, [Redacted] NBN was the NBN parent aide assigned to the present case from May 2011 to September 2011. [Redacted] NBN testified that she normally would attend Max's visits and would supervise Mother and Father as they interacted with Max. [Redacted] NBN noted that after she was assigned to the case on May 17, 2011, Mother did not visit with Max until June 16, 2011. [Redacted] NBN also indicated that there were times when she was concerned with Mother's interaction with Max at visits and that Mother would get agitated. In addition, [Redacted] NBN testified that Mother attended approximately eight visits. A review of [Redacted] NBN's visitation observation checklists, marked as "DFS Exhibit 8," demonstrates that Mother was not consistent with visitation and would act inappropriately by yelling and cursing in front of Max. At the July 27, 2011 visit, Mother even fell asleep at one point and later stated in that visit that she did not want to hold Max.

Following the parent's discharge from NBN services, [Redacted] Children's Choice was assigned to the parties' case. [Redacted] Children's Choice stated that she observed Mother's behavior during the visitation on October 12, 2011 in which Mother and Father had a verbal altercation in front of the children and the parties cursed in front of the children. [Redacted] Children's Choice indicated that Mother played with the children and kept an eye on them. However, on cross examination by Mr. Arrington, [Redacted] Children's Choice conceded that Mother exhibited negative parenting skills during that visitation session. In addition, [Redacted] Children's Choice stated that at one point, Mother and her other child, [Redacted] were sitting down on the floor. [Redacted] Children's Choice heard a slap noise and [Redacted] child started crying. However, [Redacted] Children's Choice did not see any marks on [Redacted] son.

[Redacted] DFS confirmed that Mother's visitation with Max was inconsistent while he has been in foster care. Mother has not seen Max since November 2011, although she had an existing order permitting visitation. [Redacted] DFS testified that Mother would leave visits early, appear distracted during visits, or would have arguments with Father during visits. On cross examination by Ms. Yeager, [Redacted] DFS testified that when Mother is "in a good place," she will be affectionate towards Max.

Mother testified that her visitations stopped due to her "accident" which involved her overdosing on sleep medication. Mother indicated that she was hospitalized and was in a wheel chair until January 2012. Mother admitted that she does not have a bond with Max as she has been apart from him for "a long time." Mother also conceded that she does not deserve another chance but hopes to get one.

Based on the reasons indicated above, the Court finds the evidence is clear and convincing that Mother has failed to adequately plan for Max's needs, as demonstrated by Mother's failure to complete her case plan since March 2011.

In addition to that finding, the statute requires that the Court find by clear and convincing evidence that one or more of the factors listed in 13 Del. C. § 1103(a)(5)a. 1-5 have been met.

1. The child has been in the care of the Department or licensed agency for a period of 1 year , or for a period of 6 months in the case of a child who comes into care as an infant , or there is a history of previous placement or placements of this child; or

Max has been in the care and custody of DFS continuously for over one and one half years or approximately eighteen months.

2. There is a history of neglect , abuse or lack of care of the child or other children by the respondent; or

While DFS conducted prior investigations of Mother on the basis of her substance abuse, previous allegations were determined to be unfounded.

Mother's other son, [Redacted] , is placed in the home of [Redacted] Guardian as Mother is unable to care for him.

3. The respondent is incapable of discharging parental responsibilities due to extended or repeated incarceration , except that the Court may consider post-conviction of the respondent; or

As indicated above, Mother is currently incarcerated, and it is likely that she will be incarcerated for two more years.

4. The respondent is not able or willing to assume promptly legal and physical custody of the child , and to pay for the child's support , in accordance with the respondent's financial means; or

As stated above, Mother has mental health issues, has not sought employment while Max has been in care, does not have housing that is appropriate for Max, and is currently incarcerated and thus, unable to support Max.

5. Failure to terminate the relationship of parent and child will result in continued emotional instability or physical risk to the child. In making a determination under this paragraph , the Court shall consider all relevant factors , including:

A. Whether the conditions that led to the child's placement , or similar conditions of a harmful nature , continue to exist and there appears to be little likelihood that these conditions will

be remedied at an early date which would enable the respondent to discharge parental responsibilities so that the child can be returned to the respondent in the near future;

Mother continues to lack suitable housing for Max, has not gained employment to provide for him, and has failed to consistently attend appointments for mental health and substance abuse treatment. There was no testimony that suggested that Mother's financial, housing, or mental health issues will be remedied in the near future. In addition, Max came into care with withdrawal symptoms from Percocet as a result of Mother taking such medication throughout her pregnancy.

B. The respondent's efforts to assert parental rights of the child , and the role of other persons in thwarting the respondent's efforts to assert such rights;

Mother has not visited Max since November 2011. While there was a period of time where Mother visited Max, she never visited him consistently. In addition, Mother had approximately one and one half years to complete the elements of her case plan in order to reunify with Max but failed to do so. There was no testimony that Mother's efforts to assert her parental rights were thwarted.

C. The respondent's ability to care for the child , the age of the child , the quality of any previous relationship between the respondent and the child or any other children;

Max will turn two years of age on January 11, 2013. As noted above, Mother admitted that she shares no bond with Max. Moreover, Mother failed to visit Max consistently and has not seen him since November 2011.

Mother has not demonstrated an ability to care for Max as she is incarcerated, has not been employed, has not addressed her mental health issues, and has not addressed her substance abuse issues as evidenced by her current incarceration.

D. The effect of a change of physical custody on the child;

Max will continue to reside in his current foster home until these proceedings are completed, and he can be placed up for adoption. However, Max's current foster parents are a pre-adoptive home.

E. The effect of a delay in termination on the chances for a child to be placed for adoption.

DFS has transferred Max's case to locate an adoptive family. Max's foster parents have indicated a willingness to adopt; however, they have not yet completed the necessary documentation to do so. DFS does not have any concerns with Max's chances for adoption.

*****

The Court finds that DFS has established the conditions set forth in 13 Del. C. § 1103(a)(5)a.1, 3, 4, and 5, even though only one condition would be sufficient.

Factor 1 has been met because Max has been in the care and custody of DFS since January 2011, a period of eighteen months. Factor 3 has also been met as Mother is currently incarcerated and will likely remain incarcerated for the next two years.

Moreover, Factor 4 has been established because Mother is not able to assume legal and physical custody of Max nor is she able to financially support him. Mother is unable to assume custody of Max due to her current incarceration, lack of stable housing, mental health issues, substance abuse issues, and her status as a perpetrator of domestic violence.

Finally, Factor 5 is met as failure to terminate the parent-child relationship would result in continued emotional instability to Max. He has been in DFS custody for over eighteen months and during that time, Mother has been unable to complete the elements of her case plan and has not demonstrated that she realistically will be able to care for Max in the near future. In addition, Mother has not consistently asserted her parental rights, and there is no evidence that her efforts were thwarted by DFS. Moreover, Max needs a permanent caregiver and his foster parents may be an adoptive resource.

Therefore, for the reasons outlined above, the Court finds that DFS has established by clear and convincing evidence that Mother has failed to plan for Max. The Court also finds that DFS has established the conditions set forth in 13 Del. C. § 1103(a)(5) a.1, 3, 4, and 5.

2. Failure to Plan-Father

The Court finds that DFS has established by clear and convincing evidence that Father has failed to plan for Max. While Max has been in DFS care, Father has been unwilling and unable to address the overall issues in his case plan. Indeed, Father refused to sign his case plan until one year after Max was first placed in the custody of DFS.

Mr. Facciolo argued that Father was "under no legal obligation to sign a case plan prior to the adjudication of dependency"²³ and that Father has "indicated a willingness to work in a case planning process."²⁴ Mr. Facciolo further argued that since the actual adjudication of Father occurred on November 22, 2011, the case planning process was "legally just beginning." Family Court Civil Rule 209(d) defines the date that the child has entered foster care as "...the earlier of: 1) a judicial finding at an adjudicatory hearing that the child has been subjected to abuse or neglect; or 2) sixty (60) days after the child is removed from the home" [emphasis added]. Therefore, Max has been in foster care for some time and thus, Father could have case planned earlier than issuance of the Adjudicatory Hearing Order. Indeed, as the Court noted in its July 5, 2011 Order, Mr. Facciolo indicated that Father was willing to case plan in July 2011 but failed to sign a case plan until January 31, 2012.

23 Mr. Facciolo's January 10, 2012 Response for No Reasonable Efforts and to Change Goal, para. 6.

24 Mr. Facciolo's January 10, 2012 Response for No Reasonable Efforts and to Change Goal, para. 6.

Mr. Facciolo repeatedly advised this Court that Father was willing to case plan, yet he has not done so. In fact, on December 6, 2011 at the Review/Dispositional Hearing, Mr. Facciolo asked that Father's case plan be amended to address and/or explore ways that Father could be provided services to enable him to rebut the § 724A presumption. At that hearing, the Court questioned Mr. Facciolo as to why DFS should be required to amend a case plan that Father has refused to sign. Mr. Facciolo turned to Father and Father responded that he would case plan. However, as stated earlier, Father did not sign the case plan until January 31, 2012. Father made a conscious decision to disregard his attorney's advice and despite his attorney's assurances to the Court, Father has not case planned. DFS invited Father to case plan for reunification with Max. Father had the ability to case plan and chose not to. Nonetheless, the elements of Father's updated case plan are addressed individually below:

a. Financial Issues

Father testified that he recently became employed at Grotto's Pizza but has not yet received a paycheck. Previously, Father worked as an assistant manager at Domino's until March 2011, after which Father ran his own hauling business. From October 2011 until January 2012, Father was incarcerated. Beginning in February 2012, Father obtained employment at Pietro's Pizza in Wilmington, Delaware where he worked for approximately three months. According to Father, he was let go after it was discovered that he was a sex offender.

b. Choosing Caregivers for Child Care

During his testimony, Father testified that members of his church could provide child care for Max if necessary.

c. Expectations for Child-Parent Aide/Parent Education

As mentioned above, [Redacted] NBN provided parent aide services to Mother and Father. [Redacted] NBN testified that Father's interactions with Max never concerned her and that he was quick to develop a routine with Max. For example, he would feed Max, change his diaper, and hold him while he slept. However, [Redacted] NBN indicated that if things were not going well at a visit, Father would become "very volatile" and make inappropriate comments. Father would also say "harsh things" when angry with service providers, and [Redacted] NBN would address the inappropriateness of such comments. Father even stated on one occasion that he knew the names of Max's foster family, even though such information was supposed to be confidential. [Redacted] NBN further testified that she stopped working with the parents when NBN developed a policy to no longer work with sex offenders.

On cross examination by Mr. Facciolo, [Redacted] NBN reiterated that Father's interactions with Max were appropriate. Specifically, at the August 15, 2011 visit, [Redacted] NBN noted that Father was fully engaged with Max, found toys for Max to play with, and brought an outfit from home for Max. [Redacted] NBN also indicated that there were a few occasions where Father attempted to refrain from using foul language at a visit. The Court notes that [Redacted] NBN's observation checklists from Father's visits indicate that Father was appropriate in his interactions with Max. However, [Redacted] NBN's documents also indicate that Father used highly inappropriate language and made inappropriate comments about others during these visits. In addition, Father, at times, would answer various phone calls during his visitation and leave the room.

[Redacted] Children's Choice also discussed Father's behavior during parent aide services. As soon as [Redacted] Children's Choice walked into the intake visit and introduced herself, Father stated, "Before you take two steps into this room, are you going to leave like our other parent aides because I'm a registered sex offender?" Subsequently, [Redacted] Children's Choice observed Father on his cell phone during the visit and indicated that Father would leave the room at times. In addition, Father cursed in front of the children repeatedly. According to [Redacted] Children's Choice, Father stated:

"It's all because of some stupid law, that dumb b**** [expletive], that these kids were taken. That c*** [expletive] has destroyed my life. She is a f****** [expletive] low life and no good drug addict pig. If I saw Judge R[inaudible], from my criminal case, I would run that b**** [expletive] whore over, and I would be thrilled to watch her die in pain. I told Michael Arrington this, and I will tell you this as well. If you think 9/11 was bad, it is nothing compared to what I will do if my kids get taken away. I will go after everyone and will have people go to each person involved. 9/11 is nothing compared to what I will do."

Father then used profanity towards [Redacted] Children's Choice and Mother. On cross examination by Mr. Facciolo, [Redacted] Children's Choice stated that she did not believe that Father was going to harm her or the children during the intake visit but she noted that she had "deep concerns."

[Redacted] CHILD, Inc., an employee in the Parent Education and Family Support Department at Child, Inc., testified that Father completed two Child, Inc. programs, one of which was a parenting class for parents with children from birth to three years of age completed in May 2012 and the other which was a divorce and separation custody seminar completed in November 2009. The general course outline of the first class includes bonding and attachment, how to develop good eating habits, child safety tips, discipline techniques, etc. [Redacted] CHILD, Inc. provided an overview of the divorce and separation seminar objectives such as successful co-parenting, referral suggestions for services, and strategies for co-parenting. On cross examination by Mr. Fitzgerald, [Redacted] CHILD, Inc. conceded that the State of Delaware requires any individual who files a custody or divorce petition to complete the divorce and separation seminar. In addition, [Redacted] CHILD, Inc. testified that there is no observation of parent-child interactions and no oral or written test is administered at the end of the courses. [Redacted] CHILD, Inc. conceded on cross examination by Mr. Arrington that completion of the Child, Inc. courses have nothing to do with the actual mastery of parenting skills.

d. Difficulty Handling Conflicts and Family Violence Concerns

[Redacted] CHILD, Inc., the director of the domestic violence program at Child, Inc., testified regarding Father and the services he obtained from Child, Inc. Father first attended the domestic violence sessions from August 2010 through April 2011. At that time, Father completed Child, Inc.'s structured intervention course which includes both group and individual sessions. In March 2012, Father reengaged at Child, Inc. and has regularly attended individual sessions since that time. The treatment goals for Father's individual sessions include helping Father manage his behavior in a nonviolent, less abusive manner and taking responsibility for his actions. At this time, there is no set timeline for Father to complete his current treatment at Child, Inc.

Father testified that [Redacted] CHILD, Inc. provides anger management techniques as well as spiritual counseling.

Father confirmed that Mother previously swung an ax at him and that the parties had issues due to Mother's drug addiction. Father ultimately blamed Mother's drug addiction on "inaction" by the State of Delaware.

e. Problem-Solving and Coping Skills

Father testified that he meets with [Redacted] Psychologist on a regular basis in order to discuss anger management and stress management. According to Father, he and [Redacted] Psychologist also discuss his sex offender status. Father indicated that he has learned that "everything has a purpose" and that he is "trying to make the best out of it."

f. Emotional Instability/Mental Health Issues

Father admitted that he has been diagnosed with multiple mental health disorders. Father has been diagnosed with adjustment disorder with anxiety, depression, and anger; impulse control disorder, in partial remission; intermittent explosive disorder, in partial remission; post traumatic stress disorder, chronic; and narcissistic and paranoid personality traits. As noted above, Father testified that he meets with [Redacted] Psychologist regularly.

g. Housing Problems

As indicated earlier, Father and Mother lived in the home of [Redacted] Foster Grandparents for a period of time as well as in a home in Claymont, Delaware for a brief period of time.

Father indicated that he has contacted Samaritan Outreach to assist him with obtaining housing. Father also testified that he had been residing at "Occupy Delaware" for approximately three weeks as a result of [Redacted] Foster Grandparent's family requiring him to vacate her home after her death. Father further testified that as of the date of the July 6^th hearing, he was living with a friend to whom he is not paying rent. However, Father provided no other details about his living arrangement at the TPR hearing.

h. Legal Issues

[Redacted] Probation, Father's probation officer since January 2012, testified that Father is currently serving an eighteen month level three sentence for Terroristic Threatening. Pursuant to his sentence, Father is to participate in the Enhanced Supervision Program while at supervision level 3 probation. In addition, Father shall have no contact with [Redacted] Maternal Grandmother, [Redacted] Guardian's relative, [Redacted] Guardian, and Judge [Redacted] as well as no unlawful contact with Mother and this Judge.²⁵ Father is also not permitted to enter the New Castle County Courthouse without [Redacted] Probation's prior approval and may not contact Baylor Women's Correction Institution to talk to Mother. Moreover, Father is required to be evaluated for substance abuse and follow recommended treatment, receive a mental health treatment evaluation and comply with recommended treatment, submit to random testing, complete a certified domestic violence program, obtain employment, follow treatment with [Redacted] Psychologist, and have GPS monitoring. Father has also signed documentation regarding sex offender conditions of probation which could require Father to participate in a sex offender assessment as well as in sex offender treatment; however, [Redacted] Probation indicated that Father is not currently being asked to participate in such sex offender treatment as he first needs to achieve stability. According to [Redacted] Probation, Father has never completed such treatment but has begun the process on multiple occasions. Father has informed [Redacted] Probation that he does not believe he needs sex offender treatment. Ultimately, [Redacted] Probation said that Father is not very receptive to supervision but has not failed to comply with probation recently. On cross examination by Mr. Facciolo, [Redacted] Probation testified that some sex offender programs permit an individual to successfully complete the program while denying that he or she is a sex offender.

25 This Judge was unaware that he was included in the no unlawful contact provisions of Father's Sentencing Order until after Father's sentencing hearing.

The Court also heard testimony from [Redacted] Probation, who testified that he supervised Father on probation for approximately one year beginning in late 2010 following Father's first conviction for Terroristic Threatening. According to [Redacted] Probation, Father was referred to Carelink for sex offender treatment services. [Redacted] Probation testified that Father was generally compliant regarding sex offender registration. [Redacted] Probation further testified that he filed violation reports against Father on three separate occasions. On September 26, 2011, Father had contact with a boy sixteen years of age and a girl fourteen years of age and threatened the boy. On October 6, 2011, [Redacted] Probation was informed that Father had left the state of Delaware without permission in order to provide entertainment to night clubs. Subsequently, on October 18, 2011, Father was charged with and subsequently convicted of Terroristic Threatening for threatening Judge [Redacted] Father's most recent violation of probation relates to his new Terroristic Threatening conviction.

i. Other Child/Family Problems —Sex Offender Treatment Program

The testimony provided demonstrates that Father has failed to complete a sex offender treatment program. Father testified, however, that he has undergone an evaluation at a sex offender treatment program recommended by DFS and is currently awaiting the findings of that evaluation. The Court also notes that Father has failed to successfully rebut the presumption under §724A.

The Court finds the evidence is clear and convincing that Father has failed to adequately plan for Max's needs. While the Court acknowledges that Father has completed a domestic violence course, regularly attends treatment with [Redacted] Psychologist, and has consistently visited with Max when he has not been incarcerated, Father has failed to maintain stable employment and maintain stable housing. In addition, Father has failed to successfully complete a sex offender treatment program designed specifically for sex offenders. Moreover, while Father is receiving counseling regarding his anger issues, Father was convicted of Terroristic Threatening as recent as January 2012. The Court also notes that Father is no longer participating with a parent aide due to the incident resulting in his most recent Terroristic Threatening conviction.

In addition to that finding, the statutes requires that the Court find by clear and convincing evidence that one or more of the factors listed in 13 Del. C. § 1103(a)(5)a. 1-5 have been met.

1. The child has been in the care of the Department or licensed agency for a period of 1 year , or for a period of 6 months in the case of a child who comes into care as an infant , or there is a history of previous placements of this child;

Max has been in the care and custody of DFS for approximately eighteen months.

2. There is a history of neglect , abuse or lack of care of the child or other children by the respondent.

Father has failed to provide adequate care for Max as he has been incarcerated, is unable to secure stable housing, and has not had stable employment.

3. The respondent is incapable of discharging parental responsibilities due to extended or repeated incarceration , except that the Court may consider post-conviction of the respondent

As stated above, Father has been incarcerated previously.

4. The respondent is not able or willing to assume promptly legal and physical custody of the child , and to pay for the child's support , in accordance with the respondent's financial means

Father has demonstrated that he is unable to assume promptly legal and physical custody of Max and is unable to pay for Max's support. Father has had unstable housing and unstable employment. In addition, Father has failed to rebut the presumption under §724A.

5. Failure to terminate the relationship of parent and child will result in continued emotional instability or physical risk to the child. In making a determination under this paragraph , the Court shall consider all relevant factors , including:

A. Whether the conditions that led to the child's placement , or similar conditions of a harmful nature , continue to exist and

there appears to be little likelihood that these conditions will be remedied at an early date which would enable the respondent to discharge parental responsibilities so that the child can be returned to the respondent in the near future;

While Max entered foster care due to Mother's abuse of Percocet, there were other harmful conditions that existed, as to Father, when Max was born. Father was unable to obtain adequate income to support Max, was a Tier II registered sex offender who had not rebutted the presumption under §724A, was involved in an abusive relationship, and had anger issues. At this time, some of the same harmful conditions still exist, and it is unlikely that such conditions will be remedied in the near future.

B. The respondent's efforts to assert parental rights of the child , and the role of other persons in thwarting the respondent's efforts to assert such rights;

Father previously refused to case plan and has failed to complete the elements of his case plan. In addition, there was no testimony that Father's efforts to assert parental rights were thwarted. In fact, [Redacted] DFS offered a case plan to Father in August 2011 which he has repeatedly refused to sign.

C. The respondent's ability to care for the child , the age of the child , the quality of any previous relationship between the respondent and the child or any other children;

As stated earlier, Father does not have the ability to care for Max. Father had no relationship with Max prior to his entering foster care as Max came into care the same month that he was born. However, the Court notes that Father has acted appropriately with Max during visitation.

D. The effect of a change of physical custody on the child;

Max will continue to reside in his current foster home until these proceedings are completed. Physical custody of him may need to change if his current foster parents do not adopt him.

E. The effect of a delay in termination on the chances for a child to be placed for adoption.

As mentioned above, DFS has begun the adoption recruitment process for Max, and there are no concerns with Max's ability to be adopted.

*****

The Court finds there is clear and convincing evidence that at least one of the additional criteria for termination of parental rights as set forth in 13 Del. C. § 1103(a)(5)a. has been met. Factor 1 has been established as Max has been in the custody of DFS for eighteen months. In addition, Factor 2 has been met because Father has failed to care for Max.

Factor 4 has also been established as Father has demonstrated that he is unable to assume promptly legal and physical custody of Max or to support him financially. Finally, Factor 5 has been met because Max's emotional instability will continue if Father's parental rights are not terminated.

The Court finds the evidence is clear and convincing that Father has failed to adequately plan for Max's needs. In addition, the conditions listed in 13 Del. C.§ 1103(a)(5)a. 1, 2, 4, and 5 have also been proved by clear and convincing evidence.

Therefore, the Court finds that DFS has established by clear and convincing evidence the statutory ground of failure to plan as to both parents. The Court notes that, while it has considered prior decisions resulting from the dependency proceedings in this case which were based on the preponderance of the evidence, the Court reconsidered the evidence under the clear and convincing standard.

3. Reasonable Efforts for Reunification

Because the Court finds that Mother and Father have failed to adequately plan for Max, the Court must now consider whether DFS has made reasonable efforts to reunify Mother and Father with Max. In its efforts to assist Mother with reunification, DFS provided Mother with a reasonable case plan which she reviewed and signed but has failed to complete. DFS also provided Mother with a parent aide and a visitation schedule. Further, DFS encouraged Mother to seek consistent mental health treatment as well as substance abuse treatment and provided her with the resources to do so. DFS also reasonably pursued the possibility of placing Max with relatives. DFS explored Mother's sister [Redacted] as a relative placement option but she indicated that she and her fiancé did not have the resources to support Max. In addition, DFS explored [Redacted] Father's godmother as a placement option but she indicated that she was only willing to act in the capacity of a babysitter or grandmother.

As to Father, DFS attempted to case plan with him on multiple occasions; however, Father refused to sign a case plan until January 31, 2012 despite telling DFS multiple times that he would do so. In addition, DFS provided Father with a parent aide and a visitation schedule. As stated earlier, DFS also explored relative placement options.

On December 5, 2011, Mr. Fitzgerald, on behalf of DFS, filed a "Motion for No Reasonable Efforts and Motion to Change Goal" requesting a goal change to termination of parental rights/adoption as well as requesting a finding that DFS no longer be required to make reasonable efforts. Max's guardian ad litem, Mr. Arrington, concurred with DFS' motion. In this Court's Permanency Hearing Order dated February 6, 2012, DFS was relieved from continuing to make reasonable efforts to reunify Father and/or Mother.

Based on the aforementioned reasons, the Court finds that DFS made reasonable efforts to reunify Mother and Father.

4 . Felony Level Offense where Victim is Child

As noted in its petition for termination of parental rights, DFS also seeks termination of Father's parental rights on the basis that a court of competent jurisdiction has found that Father has committed a felony-level offense against the person where the victim is a child.²⁶ Father entered a plea of no contest on January 26, 1998 to unlawful sexual intercourse in the third degree - without consent,²⁷ which is classified as a felony-level offense. Father's criminal history indicates that the victim of Father's offense was a four year old male, and on cross examination by Mr. Arrington, Father conceded that the victim of his sex offense was a minor child.

26 Pursuant to 13 Del. C.1103(a)(4) provides:

The respondent has been found by a court of competent jurisdiction to have:

a. Committed a felony level offense against the person, as described within subchapter II of Chapter 5 of Title 11, in which the victim was a child; or
b. Aided or abetted, attempted, conspired or solicited to commit an offense set forth in paragraph (a)(4)a. of this section; or
c. Committed or attempted to commit the offense of Dealing in Children, as set forth in § 1100 of Title 11; or
d. Committed the felony level offense of endangering the welfare of a child as set forth in § 1102 of Title 11.

27 The Legislature struck the prior version of §773 following Father's conviction which is now classified as "Rape in the Third Degree," a class B felony that provides: (a) A person is guilty of rape in the third degree when the person:

(1) intentionally engages in sexual intercourse with another person, and the victim has not reached his or her sixteenth birthday and the person is at least 10 years older than the victim, or the victim has not yet reached his or her fourteenth birthday and the person has reached his or her nineteenth birthday and is not otherwise subject to prosecution pursuant to § 772 or 773 of this title; or
(2) intentionally engages in sexual penetration with another person under any of the following circumstances:

a. the sexual penetration occurs without the victim's consent and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person causes physical injury or serious mental or emotional injury to the victim; or
b. the victim has not reached his or her sixteenth birthday and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person causes physical injury or serious mental or emotional injury to the victim.

(b) Paragraph (a)(2) of this section does not apply to a licensed medical doctor or nurse who places 1 or more fingers or an object inside a vagina or anus for the purpose of diagnosis or treatment, or to a law enforcement officer who is engaged in the lawful performance of his or her duties. (c) Notwithstanding any law to the contrary, in any case in which a violation of subsection (a) of this section has resulted in the birth of a child who is in the custody and care of the victim or the victim's legal guardian(s), the court shall order that the defendant, as a condition of any probation imposed pursuant to a conviction under this section, timely pay any child support ordered by the Family Court for such child. (d) Nothing in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code. (e) Rape in the third degree is a class B felony CRIMES—SEXUAL ABUSE, 1998 Delaware Laws Ch. 285 (S.B. 226).

A no contest plea is the equivalent of a guilty plea,²⁸ and a plea of no contest authorizes the Court to treat the defendant as guilty.²⁹ By pleading no contest,

28 State v. Connor, 2005 WL 147931 (Del. Super. Jan. 19, 2005).

29 North Carolina v. Alford, 400 U.S. 25, 35 (1970).

"A defendant asserts that he does not contest the issue of his guilt or innocence of a specific charged act, and thus, he may be adjudicated guilty of the charged conduct; however, this admission of guilt only applies to the crime to which the defendant pleaded no contest."³⁰

In addition, the Court must find that there is a factual basis for the no contest plea before it may be accepted.³¹

30 State v. Connor, 2005 WL 147931 at *4.

31 See Del. Super. Ct. Crim. R. 11(c)(d)(f) (2004); Howard v. State, 458 A.2d 1180, 1184-85 (Del.1983). See also 21 Am.Jur.2d Criminal Law § 732 ("Before accepting a plea of nolo contendre, the court must determine that there is a factual basis for the plea....").

Here, Father pled no contest and was adjudicated guilty of unlawful sexual intercourse in the third degree - without consent. 13 Del. C. 1103(a)(4) requires the commission of a felony-level offense against the person in which the victim was a child. As Father's disposition for the above charge was guilty and as Father's felony-level offense against the person was described within subchapter II of Chapter 5 of Title 11³² and the victim was a child, the Court finds this ground for termination of parental rights, as it pertains to Father, has been established.

32 It still is described within subchapter II of Chapter 5 of Title 11, albeit under a different section number and different section title.

C. Best Interests of the Child

After concluding that the statutory grounds for terminating the parental rights exist, the Court must next determine that the termination is in the child's best interest.³³ While required to consider all relevant factors in this case, the Court must consider Max's best interest together with an analysis of the factors under DEL. CODE ANN. tit. 13, § 722.³⁴

33 See Division of Family Services v. Hutton, 765 A.2d 1267, 1271 (Del. 2001).

34 Pursuant to DEL. CODE ANN. tit. 13, § 722:
(a) The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all relevant factors including:

(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
(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;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
(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.

1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;

Mother testified that she wishes to have a second chance to reunify with Max. Father has also indicated that he is seeking reunification with Max.

2. The wishes of the child as to his or her custodian(s) and residential arrangements; No testimony was taken under this section due to Max's young age.

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;

As stated earlier, [Redacted] NBN indicated that Father's interactions with Max were appropriate during his visitation, and that he would play with Max, feed him, and hold him as he slept. In addition, [Redacted] a friend of Father's, testified that Father's behavior during visits with Max is appropriate and that Father loves Max.

Mother has not visited Max since November 2011 and thus, has failed to maintain a relationship with him. Moreover, Mother admitted that she has no bond with Max.

4. The child's adjustment to his or her home , school and community;

Max has been in the care of DFS for eighteen months and has become well adjusted to his foster home as well as bonded with his foster family. [Redacted] DFS, the family crisis therapist in the permanency unit assigned to Max, testified that Max's foster family is a pre-adoptive resource but they have yet to fill out the adoption documentation and attend the prerequisite classes.

Neither parent has provided a home to which Max can be adjusted. As stated earlier, Mother and Father do not have appropriate housing as Mother is incarcerated and Father just recently moved into a friend's house after spending three weeks in an Occupy Delaware tent.

5. The mental and physical health of all individuals involved;

Despite agreeing to seek mental health treatment and being aware that it was a significant component of her case plan, Mother has failed to seek treatment and failed to complete a psychological evaluation as required by her case plan.

As indicated above, [Redacted] DFS testified that when Max first came into care, Mother indicated that she was in treatment at that time for her bipolar disorder diagnosis and was taking Seroquel as prescribed.

Mother also testified that the "jail psychiatrist" will not meet with her at this time for reasons unbeknownst to Mother. In addition, Mother indicated that her Connections psychiatrist had previously diagnosed her with bipolar disorder and borderline personality disorder. Mother testified that she participated in a psychological evaluation in December 2011 or January 2012, yet she has not provided verification of such evaluation. Mother indicated that Connections had previously recommended that she be prescribed Lamictal and Trazodone but that she is not currently taking mental health prescriptions while incarcerated. In addition, Mother testified that she overdosed on sleeping medication recently and subsequently developed nerve damage in her leg.

No testimony was presented on Father's physical health. Father has admitted, however, that he has been diagnosed with mental illnesses and is participating in treatment with [Redacted] Psychologist to address anger and stress management.

Max has been evaluated by Child Development Watch and is up to date on his medical appointments and vaccinations. Max has no developmental issues at this time. Max was recently discharged from occupational therapy which he was attending due to tightness in his shoulder muscles. Max is still involved in physical therapy and is also prescribed a nebulizer as needed.

6. Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;

Mother and Father have been unable to support Max financially due to lack of stable employment. In addition, Mother has failed to maintain stable and appropriate housing for Max and has not visited him consistently. Father has also failed to maintain stable housing. Both parents have been homeless at least once throughout these proceedings.

7. Evidence of domestic violence as provided for in Chapter 7A of this title;

Father has repeatedly filed PFA petitions against Mother, and Mother has filed one PFA petition against Father. In addition, Mother is a perpetrator of domestic violence as she committed a felony-level offense against Father and has not rebutted the presumption under 13 Del. C. §703A(b). Moreover, Mother was the victim of Father's first Terroristic Threatening conviction and Father's current sentencing order contains a provision prohibiting unlawful contact with Mother.

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.

The Court independently reviewed Mother's criminal history which includes a conviction for Aggravated Menacing and two violations of probation.³⁵ As noted above, Mother is currently incarcerated for violating probation.

35 The Court is permitted to take judicial notice of Mother's and Father's criminal history pursuant to DEL. R. EVID. 201 which governs judicial notice of adjudicative facts:

(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. Upon request, the court shall instruct the jury to accept as conclusive any fact judicially noticed.

The Court has also independently reviewed Father's criminal history. In 1996, Father was adjudicated delinquent on a Criminal Mischief under $1000 Damage to Property and a Criminal Impersonation-Pretends to be a Public Servant Wears Uniform or Badge. Father was convicted of Unlawful Sexual Intercourse Third Degree-Without Consent as well as Offensive Touching in 1998 which resulted in his placement on the sex offender registry as a Tier II sex offender. Father was convicted of Harassment in 2009 and of violating probation in 2010. In addition, Father was convicted of Terroristic Threatening in 2010 where Mother was the victim and again in 2012 where Judge Rocanelli was the victim. Father also has multiple motor vehicle violations and has violated probation nineteen times. As stated above, a no unlawful contact provision exists in Father's current sentencing order regarding Mother.

*****

The Delaware Supreme Court recently emphasized the importance of balancing the § 722 factors "in accordance with the factual circumstances presented to the Family Court in each case."³⁶ In some situations, the weight of one factor will counterbalance the combined weight of the other factors.³⁷ After performing the above analysis, the Court finds that it is in Max's best interests to terminate Mother's and Father's parental rights. Factors three, as it pertains to Mother, and factors four, five, six, seven, and eight support this conclusion.

36 Ross v. Ross, slip copy, 2010 WL 1404220 (Del. 2010).

37 Ross v. Ross, 2010 WL 1404220 at *3 (citing Fisher v. Fisher, 691 A.2d 619, 623 (Del. 1997)). --------

Here, factor three favors termination of Mother's parental rights. Mother has no bond with Max and has admitted to this fact. In addition, Mother has failed to consistently visit with Max and has not seen Max since November 2011. Therefore, Mother has no meaningful relationship with Max. Conversely, factor three slightly favors Father. The testimony presented demonstrated that Father interacts appropriate with Max and is usually attentive to him, plays with him, changes his diaper, and sings to him. However, there are times where Father will be so preoccupied with telephone calls that he will not participate fully in visits with Max.

Factor four weighs in favor of terminating Mother's and Father's parental rights. The Court notes that Max may undergo separation from his current foster home if they did not wish to be a permanent placement option. However, if that were the case, Ms. Riffe did not anticipate that DFS would have any problems locating an adoptive family for Max. Max has done very well in his foster home and his medical issues have improved. Mother and Father have not provided Max with a home in which he can be adjusted and neither have stable housing at this time. The Court notes that both parents have been homeless at least once during these proceedings.

Factor five also favors termination of Mother's and Father's parental rights. Mother has acknowledged that she has mental health and substance abuse issues. However, Mother failed to consistently attend her appointments with Connections, as well as failed to consistently take her medication for mental health treatment, both of which were in her control. In addition, Mother abused prescription pills and due to her addiction, Max was born with withdrawal symptoms. While Mother appears to be making progress in her substance abuse treatment, she is required to attend such treatment as a condition of her sentence.

Father acknowledged during his testimony at the TPR hearing that he has been diagnosed with multiple mental health illnesses and has issues with anger.

Moreover, the Court finds that Factor six strongly favors termination of parental rights. Mother and Father have failed to meet their parental responsibilities. Mother has been unable to maintain stable and appropriate housing for Max. Currently, Mother is incarcerated and is likely to remain incarcerated for two years. In addition, Mother has failed to seek employment and can neither provide for Max financially nor support him in any way. Despite Mother's wishes to reunify with Max, Mother has not satisfied the Court in respect to her ability to provide a physically and mentally safe environmental for Max.

Father also has failed to meet his parental responsibilities for Max by failing to maintain stable employment to financially support Max and at this time, any stable income from his current job is speculative. In addition, Father has failed to maintain stable housing and most recently resided in a tent at Occupy Delaware.

Factor seven weighs in favor of termination of Mother's and Father's parental rights. Mother has a domestic violence history which resulted in her status as a perpetrator of domestic violence. While there was testimony that there is more verbal abuse between the parents than physical abuse, domestic violence, nonetheless, has been a part of Mother's and Father's relationship.

Finally, the Court finds that factor eight also weighs in favor of termination of parental rights. As stated earlier, Mother is currently incarcerated. In addition, she has not rebutted the presumption under §703A. Father is currently on probation and has been convicted of terroristic threatening on two occasions. In addition, Father has failed to rebut the presumption under §724A.

The Court finds the remaining factors to be neutral.

CONCLUSION

DFS has established by clear and convincing evidence that Mother's parental rights should be terminated on the grounds stated in 13 Del. C. § 1103(a)(5), and that DFS has made reasonable efforts to reunify Mother with Max. DFS has also established by clear and convincing evidence that Father's parental rights should be terminated on the ground of 13 Del. C. § 1103(a)(4) and § 1103(a)(5) and that DFS made reasonable efforts to reunify Father and Max. Furthermore, the Court finds by clear and convincing evidence that it is in Max's best interests to terminate the parental rights of Mother and Father.

THEREFORE, the Court GRANTS DFS' Petition for the Termination and Transfer of Parental rights and the parental rights of Shirley Simpson and Thomas Church are terminated and transferred to DFS until Max is adopted.

IT IS SO ORDERED.

/s/_________

MICHAEL K. NEWELL, Judge MKN/apf cc: Craig Fitzgerald, Esquire (by email)

Julie Yeager, Esquire (by email)

David Facciolo, Esquire (by pick-up)

Michael Arrington, Esquire (by pick-up)

(b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.