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Dep't of Servs. v. Dimarco (In re Torres (dob: 4/13/2011)

Family Court of Delaware, New Castle
Jan 11, 2022
No. CN16-03292 (Del. Fam. Jan. 11, 2022)

Opinion

CN16-03292 Petition 21-27791

01-11-2022

DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES ("DSCYF"), Petitioner, v. DIANA M. DIMARCO, LUIS J. TORRES and DEBORAH L. DIMARCO, Respondents. IN THE INTEREST OF: Angelina Torres (dob: 4/13/2011) Xavier Torres (dob: 2/2/2013) Anthony Torres (dob: 2/3/2015)


Ex Parte Order: 11/29/2021

Preliminary Protective Hearing Order: 12/17/2021

PRESENT FOR THE HEARING: Michelle Skoranski, DAG for DSCYF Jilissa Johnson, DSCYF Angelina Smith, DSCYF treatment worker Diana DiMarco, Mother Luis Torres, Father Deborah DiMarco, Guardian F. Phillip Renzulli, Esq., Mother's Atty George Tsakataras, Esq., Father's Atty Shane Handlin, Progressive Life LaTysse Mack, CASA Coordinator Jeanette Raiford, CASA Officer Mulford, New Castle County Police Gwenolyn Higgin, Foster Mother

ADJUDICATORY HEARING ORDER

FELICE GLENNON KERR, JUDGE

PROCEDURAL HISTORY

On January 7, 2022, the Court held an Adjudicatory Hearing in the interest of Angelina Torres, Zavier Torres and Anthony Torres. Diana DiMarco ("Mother") was present for the hearing and was represented by F. Phillip Renzulli, Esquire. Luis Torres ("Father") was present for the hearing and was represented by George Tsakataras, Esquire. Deborah DiMarco ("Guardian") was present without counsel. The Court heard testimony from Officer Mulford, Jilissa Johnson, the investigative worker from DFS, Guardian, Father and Foster Mother. All three Respondents contested the Petition at the outset of the hearing although Mother subsequently Stipulated to dependency at the conclusion of the hearing. The Court also received into evidence Mother's records from Brandywine Counseling and from Dr. Fenice who oversaw Mother's medication management treatment for heroin addiction.

The Court Granted Guardian temporary guardianship of all three Children August 26, 2016. At that time Guardian appeared in Court and Father participated by telephone from Frackville Prison in Frackville, Pennsylvania. Mother did not appear. Guardian testified that Mother called her Allentown, PA and asked her to pick her up with the kids. Mother beat Anthony in the legs with a phone charger. The Court also made findings based upon Guardian's testimony on August 26, 2016 that Mother had a drug abuse problem. Father agreed to the temporary guardianship and also acknowledged that Mother was having problems. The Court notes that in this Order the Court observed that Guardian had three adult children who all had substance abuse problems and that she could not turn a blind eye to these problems. On December 22, 2016, the Court held a final guardianship hearing and awarded Guardian final guardianship of the Children. Father was still incarcerated and participated by phone and agreed to the guardianship although he wanted the Children back when he was released. Mother again did not appear. Guardian and Father both stated that Mother seemed to be doing better and Guardian advised that Mother was taking methadone but was not in a position to take the Children back. Father filed a Petition for Rescission of Guardianship on October 2, 2020, almost 4 years after the Guardianship was granted. The Court held a case management conference and scheduled the hearing during that conference. Father failed to appear for the hearing either in person or by Zoom and the Petition was dismissed. Father did refile or seek to reopen that order. On November 29, 2021 the DFS Emergency Motion and Petition was Custody was filed and an ex parte Order was entered on that same date. The Court held a Preliminary Protective Order and Judge Arlene Minus Coppadge entered an Order finding that probable cause existed to determine that the Children were dependent as to the parents and Guardian. The Adjudicatory hearing was scheduled and heard by Zoom due to COVID-19 protocols on January 7, 2022.

Guardian testified at the adjudicatory hearing that she did not get Guardianship due to drug abuse problem and that she had no idea where DFS came up with this idea but the Court's prior Orders clearly indicate that Guardian is the one who made these allegations and the Court made findings which were not overturned, this calls Guardian's credibility or memory into question.

FINDINGS

(1) The Court finds by a preponderance of the evidence that Angelina, Xavier and Anthony are dependent as defined by 10 Del. C. § 901(8). The Children were in a guardianship with the maternal grandmother and were not in the care of the parents. At the time the Court gave DFS emergency custody, Father had no custodial rights and was not exercising visitation. They were removed from Guardian and not from Father. Mother was physically present in the home when the Children were removed. Thus, Mother was at least having contact with the Children although it is not clear if she was residing with them when they were removed or if she was just temporarily at the home. The Children are dependent as to Mother due to her Stipulation and specifically due to unresolved substance abuse problems which was part of the basis for granting Guardian guardianship in 2016. The other was physical abuse of Anthony. The Children are dependent in the care of Guardian as she has repeatedly had them in the care of persons who were under the influence and who had significant substance abuse histories. The Court finds that it is not in the interest of the Children to remain in Guardian's care as Guardian has continued to turn a blind eye to the substance abuse of her children which resulted in Angelina and Xavier being harmed by their aunt, Stephanie. Guardian failed to abide by safety plans and seemed to either be confused about the plans or forgetful of details and events. Specifically, Grandmother left the Children home with Stephanie DiMarco present when Stephanie was intoxicated. While Guardian stated that she believed that the older Children could be the babysitters she does not recognize that being a supervisor is not being a babysitter. A child is not going to be responsible for
confronting an intoxicated adult. Aunt pushed both Children causing Angelina to sustain marks on her shoulder and Xavier to sustain a mark on his back in the shape of the oven handle.
(2) Continuing the Children's residence in the home is contrary to their welfare and it is in the best interest of the Children to remain in the custody of DSCYF for the reasons stated herein.
(3) DSCYF has exercised reasonable efforts to prevent the unnecessary removal of the Children from the home. The Court notes that the Children were removed from the Guardian's home, which may also be Mother's home, but which is not Father's home. DSCYF first received a hotline report on July, 2021 regarding physical abuse of Xavier by Stephanie DiMarco, maternal aunt ("Stephanie"). A safety plan was put in place that Stephanie would not have contact with the Children in the home. That safety plan was violated in September, 2021 when Guardian called Stephanie to pick the Children up. Guardian claims that she intended to call Diana and not Stephanie but was confused due to medication for cancer treatment, and called Stephanie instead. The Court notes that Diana was abusing cocaine and marijuana during this time period and was required to have a substance abuse evaluation and treatment before she could be allowed in the home. A new safety plan was created which would require Guardian to obtain help from other family members. On November 21, 2021, the initial allegation regarding Xavier was resolved and a new plan was created. Guardian was not to ensure that Stephanie was not drinking and was not to leave Stephanie unsupervised with the Children if intoxicated. On November 28, 2021 Guardian left the Children alone with Stephanie and Stephanie was intoxicated and two of the Children were harmed. On November 29, 2021 DFS held another TDM at which Guardian stated that she thought the older Children could supervise and denied that Stephanie was drunk. The police report stated otherwise. DFS decided that Guardian was unable to protect the Children at that time and filed a Petition. At the time of the November, 2021 TDM DFS was advised that Father was not involved and that he lived somewhere in Pennsylvania. When the prospect of placement with Father was raised, Guardian advised that two of her grandchildren had made allegations of sexual abuse by Father: one was regarding a child, Anyah, who is now an adult, and the other was regarding another grandchild of Guardian's, Jayla Flowers. The allegations regarding Jayla allegedly took place when Jayla was 4 or 5 years old. There was a CAC interview for two of the Children. Due to these allegations, DFS did not pursue Father as a placement resource at that time. Ms. Johnson did speak to Father. The Court notes that the Children were not removed from Father's home and that Father had not seen them in years.
(4) DSCYF has made reasonable efforts to place the Child with relatives. All Mother's siblings have substance abuse issues. DSCYF is looking into Anyah and her Husband. An ICPC will need to be done for any of Father's family in Pennsylvania. As noted previously, Father resides in Lehigh County, Pennsylvania and has a criminal record in Pennsylvania.
(5) Father contends that he is able to care for the Children now since he has been released from prison and has a job and residence. Father produced paystubs and a lease to demonstrate that he is capable of caring for the Children's physical needs. Father stated
that following the guardianship of 2017, he did see the Children after he was released up until about 2.5 years ago when Guardian and Mother stopped him from having contact with the Children. Father filed for rescission in 2020 but did not appear for the hearing and did not follow through. Father lives with his fiancé who also has a job and according to Father they have a surplus of income currently after deducting their current expenses from their net income. Father also alleged that he regularly gave money to Mother, a substance abuser, for the Children rather than giving it to Guardian. Father argues that he can request to rescind the guardianship at any time. Father absolutely can file a Petition to Rescind Guardianship. He did file such a petition but did not appear for the hearing and it was dismissed and Father did not follow up with a new petition or a Motion to Reopen the dismissed case. As Father did not rescind the guardianship prior to their removal, he had no custodial rights at the time of their removal from the Guardian's home and at the time that DFS obtained emergency custody As noted by the Delaware Supreme Court in Green v. Division of Family Services, the ICPC does apply to noncustodial parents who reside out of state. The Court noted that the ICPC would not apply had the Children been sent to live with Father by the legal guardian prior to DFS being involved. The Court also notes that the ICPC does not apply to a parent where the Court does not have evidence that the parent is unfit, does not seek such evidence, and does not retain jurisdiction over the child after the court transfers the child. In the present case the Court does retain jurisdiction over the Children is they are placed with Father in Pennsylvania unless and until Delaware relinquishes jurisdiction as the current Guardianship Order is from Delaware and Mother remains in Delaware. Additionally, there is evidence, though it is insufficient alone to establish dependency, that Father is unfit in the form of allegations of sexual abuse. These allegations are still being investigated which the Court is seeking evidence in the form of the outcome of that investigation and any prior DFS or criminal history. Thus, the Court cannot place the child with Father as he had no custody and was not exercising custodial rights, and as Father cannot meet the three requirements necessary to exempt him from the ICPC set forth in Green.
(6) The Children are placed with their cousins in the foster home of Gwenolyn Higgin and are doing well. They attend Lombardy Elementary. Angelina is in 5th Grade and has no IEP or special needs. Xavier is in 3rd grade and has no IEP or special needs. Anthony is in first grade and has an IEP due to speech and language impairments. The Children were seen on December 7, 2021 at Cares at Nemours for physical exams and no issues were reported.
(7) Guardian expressed distress about not being with the Children. She stated that she could not get Stephanie out of the house because she was on the lease. Guardian stated that if the Children were returned to her she would remove Stephanie from the lease, change the locks and get a PFA. However, Guardian could have taken at least some of these steps or other steps prior to DFS removing the Children. Additionally, these steps will only work if Guardian consistently maintains these boundaries which she has not been able to do in the past. DFS has been willing to work with Guardian to provide
additional education, training and supports. The Court notes that Guardian's testimony was inconsistent with her testimony from 2016 regarding Mother's drug use and she seems to be in denial over the severity of her Children's issues.
(8) To the current knowledge of DSCYF, neither the child nor the parents are members of a nationally recognized Indian tribe.

Green v. Division of Family Services, 864 A.2d 921, 927 (Del. 2004).

Id.

Id. at 928.

Footenote matter Not Available

IT IS ORDERED THAT:

(a) Physical or constructive removal of Angelina, Xavier and Anthony Torres shall be continued and custody of Angelina, Xavier and Anthony Torres SHALL REMAIN with DSCYF until further Order of the Court.
(b) The goal in this case is reunification with Mother and Father or a return to Guardianship with Guardian.
(c) DFS shall provide the Court with an Order for Expedited ICPC.
(d) Deborah DiMarco's Guardianship is Stayed while DFS has custody.
(e) Visitation shall be at the discretion of DSCYF.
(f) The Court will schedule a dispositional hearing.

SO ORDERED.


Summaries of

Dep't of Servs. v. Dimarco (In re Torres (dob: 4/13/2011)

Family Court of Delaware, New Castle
Jan 11, 2022
No. CN16-03292 (Del. Fam. Jan. 11, 2022)
Case details for

Dep't of Servs. v. Dimarco (In re Torres (dob: 4/13/2011)

Case Details

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

Court:Family Court of Delaware, New Castle

Date published: Jan 11, 2022

Citations

No. CN16-03292 (Del. Fam. Jan. 11, 2022)