Opinion
FILE NO.: CN19-05576 CASE NO.: 19-30914
12-13-2019
DIVISION OF FAMILY SERVICES/DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES, Petitioner, v. E L and A L , Respondents.
Victoria R. Witherell, Deputy Attorney General, Department of Justice, Wilmington, Delaware; Attorneys for DSCYF/DFS. Shauna T. Hagan, Esquire, Law Office of Shauna T. Hagan, Wilmington, Delaware; Attorney for Mother. A L , pro se. Molly P. Shaw, Esquire, Office of the Child Advocate, Wilmington, Delaware; Attorney for Child
In the Interest of: K L (born / /04) ("Child") ORDER ON MOTION FOR REARGUMENT Victoria R. Witherell, Deputy Attorney General, Department of Justice, Wilmington, Delaware; Attorneys for DSCYF/DFS. Shauna T. Hagan, Esquire, Law Office of Shauna T. Hagan, Wilmington, Delaware; Attorney for Mother. A L , pro se. Molly P. Shaw, Esquire, Office of the Child Advocate, Wilmington, Delaware; Attorney for Child ARRINGTON, Judge.
On November 6, 2019, the Court conducted a Preliminary Protective Hearing in the matter of the Department of Services for Children, Youth and Their Families ("DSCYF")/Division of Family Services ("DFS") v. E L and A L . The Court announced from the bench that DFS had failed to establish probable cause and issued an Order on November 7, 2019 stating the reasons therefor.
Dkt. #11.
On November 18, 2019, DFS filed a timely Motion for Reargument ("Motion"). On November 22, 2019, the Office of Child Advocate filed a response in support of the Motion. On December 2, 2019, Mother filed a timely response in opposition to the Motion.
Dkt. #12.
Dkt. #13.
Dkt. #14.
After consideration of the arguments set forth in the Motion and review of the recording of the proceedings, the Court DENIES the Motion for the reasons set forth below.
I. Allegations in Motion and Responses.
A. DSCYF/DFS
DFS restated the testimony of DFS worker, Amanda Pedicone ("Ms. Pedicone"), concerning the content of DFS records related to the DFS investigation of "sexual abuse" of the Child by Father. The testimony was that a hotline report was received alleging "sexual abuse" disclosed by Child. A second shift worker for DFS responded to the home and obtained a Safety Agreement between Mother and Maternal Grandmother. Mother told DFS that Father and she "'drink to excess on weekends' ... when they are not working." DFS had concerns about the Child remaining in the home because it did not appear that Mother was supportive of Child and because Father was alleged to have abused her.
DFS states in the Motion that Ms. Pedicone testified that "notwithstanding the fact that all adults are mandated reporters in Delaware, this reporter would have been mandated by law to make a report by nature of her position, that the reporting party was known to Child and was someone to whom the Child would disclose such an event." (Motion at ¶-4). This statement concerning whether "the reporting party was known to Child and was someone to whom the Child would disclose" is not in the record and was not part of DFS' testimony.
DFS states in the Motion that Ms. Pedicone testified that the responding DFS worker "contacted Child who disclosed the same information reported to the hotline." (Motion at ¶-4). This statement is inconsistent with record in which DFS testified that a second shift worker did not speak with Child that evening.
In response to the Court's question about the meaning of "excess," DFS was unable to state what it meant other than what the second shift worker wrote in his report. Tr. at 10:26:50.
Motion at ¶-4. Mother's testimony disputes this claim as Mother testified that she "did care about her safety." Tr. at 11:09:56. Mother stated that she "wanted [her] daughter to feel supported" and did not ask her any questions. She further testified that she told the Child that she should "say whatever she wants to say to them ... all I ask is that you answer the questions to the best of your ability and that if you need Mommy, you come and ask for Mommy." Tr. at 11:17:10.
DFS testified that "once law enforcement is involved, the police take over the investigation and DFS 'takes a back seat' so as not to interfere with a criminal investigation." DFS stated that once it learned from Child that she had returned to the home before the expiration of the Safety Agreement, DFS sought and was granted custody of the Child.
Motion at ¶-4. DFS testimony was limited to "There is only so much investigation that DFS can do with the criminal investigation." Tr. at 10:20:17. References to a State of Delaware Memorandum of Understanding for the Multidisciplinary Response to Child Abuse and Neglect ("MOU") are not mentioned in the record and were raised for the first time in the Motion.
Motion at ¶-4.
DFS' Motion asserts that Mother testified that "it" allegedly happened "when Child went to the outside shower wrapped in a towel and that it was alleged that something of a sexual nature happened between Father and Child." The Motion acknowledges that that the family was onsite on the date of the alleged incident, that adults were drinking alcohol, and that Mother did not see how someone would not have noticed this incident.
Motion at ¶-5. The reference to Mother indicating that Child was "wrapped in a towel" is not in the record and was raised for the first time in the Motion.
Mother's testimony on examination by the Child's Attorney is not consistent with the assertion in the Motion. The questioning and testimony was:
Q: On the Fourth of July holiday I am assuming that you spent at your Mother's beach house, was your husband there as well?
A: I'm sorry ...
Q: Was your husband there as well?
A: Yes.
Q: Ok. And did you all, did you and your husband have anything to drink during that Fourth of July holiday?
A: I am sure we did.
DFS asks for reconsideration of the probable cause finding on the following issues:
1. The findings of fact in Paragraph 1 of the Order are incomplete and that the Motion more fully recounts the testimony presented;
2. The Court's application of the law is contrary to DFS procedures which are consistent with federal guidelines;
3. The Court credited Mother's testimony that the Child wanted to return home without hearing from the Child;
4. The Court discredited DFS for not giving details of the incident alleged to have occurred and for not investigating the location where the incident allegedly occurred;
5. The Court noted the lack of any criminal charges against Father, alleged misinterpretation of the statement by DFS' counsel that investigations can take up to a year, that DFS could present additional information at the Adjudicatory Hearing, and that DFS has up to sixty days to investigate if allegations are substantiated;
6. The Court made findings about the Safety Agreement between DFS, Mother and Maternal Grandmother;
7. The Court did not completely describe DFS' efforts to place Child with family;
8. The Court misstated the law on the standard of proof for an ex parte application and a Probable Cause Hearing; and
9. The Court should consider guidance from 13 Del.C. §3513 on credibility of a Child's out of court statement.
The Court notes that the reference to Title 13 is likely a typographical error. Counsel likely intended to reference Title 11.
B. Child's Attorney's Response
The Child's Attorney asserts in the response in support of DFS' Motion that Child's consistent, repeated disclosures to authority figures of inappropriate sexual contact by her father is sufficient in itself to establish probable cause notwithstanding the "Child's desire to return to her home" or Mother's "denial that the abuse occurred." The response asserts that the Court found that there was no evidence of record as to the reporting person and that DFS did not present the date of the alleged incident. Child's Attorney states that Mother and Father were drinking alcohol during the July 4th holiday as alleged by the Child. The response refers the Court to 13 Del.C. §724 for guidance on a child's out of court statements.
Mother's testimony was that the Child on more than one occasion stated "This is a mistake" and that she wished to return home. See Tr. at 11:12:50, 11:13:13, 11:13:38, 11:16:56.
See fn. 12. The question to Mother was vague both in time and scope. Alcohol is not mentioned in the question which asked whether Father and Mother "had anything to drink during that Fourth of July holiday."
13 Del.C. §724 addresses Court Interviews of children. Subsection (d)(2) addresses reliability of out of court statements but requires that (1) the child be available to be interviewed or (2) the child be found by the Court to be unavailable.
C. Mother's Response
Mother's response notes that Mother had explained that the Child had previously heard voices and had seen an outside therapist in middle school. Mother asserts that she denied in her testimony that she and Father drink to excess on weekends. Mother notes that she is fully employed and there had been no previous reports of concern about alcohol abuse.
Mother challenges the DFS introduction of its MOU in the Motion as it was never raised at the hearing and is only being offered as evidence after the fact. The response states that Mother's acknowledgement of a disclosure to a school therapist was pieced together only upon substantial questioning by DFS counsel that was not known to Mother prior to the questioning. Mother challenges DFS' late suggestion that the minor child was wrapped in a towel as it was not part of the evidence presented during the Preliminary Protective Hearing. Mother suggests that she requested further information on the timing of the alleged incident to put in context of the day but was not provided any details.
Mother states in the response that she had made multiple calls to DFS for clarification of the Safety Agreement but those calls were not returned by DFS. Mother further denies that the Maternal Grandfather, a former law enforcement officer, called the Child a liar.
Mother notes that the Court must look both at the child's safety and the child's best interest when making findings of fact and ruling on whether a child should remain placed outside the home. Mother's response concludes with the assertion that DFS could not meet the burden that the child was in imminent danger in the home due to the alleged sexual abuse allegations and is now attempting to make an argument for Mother's emotional health that was not presented at trial.
II. Legal Standard on Motion for Reargument
The Family Court considers Motions for Reargument under Rule 59(e). A Motion for Reargument is not intended to rehash the arguments already decided by the Court.
Ramon v. Ramon, 963 A.2d 128, 136 (Del. 2008).
A Motion for Reargument will usually be denied unless the Court overlooked a controlling precedent or legal principles that would have controlling effect, or misapprehended the law or facts in a manner that affected the outcome of the decision." The Court will not grant reargument where one party is simply unhappy with the Court's rulings, makes the same arguments offered at trial, or attempts to submit evidence which could have been, but was not, introduced at trial.
S.R.T v. K.L.T, 2019 WL 3203575 (Del. Fam. Ct. 2019).
In re: the Marriage of Grey, Del. Fam. Ct. File No. CN94-09658, Tumas, J. (January 10, 2997).
III. Analysis
DFS seeks reargument of the Court's finding that DFS did not meet its burden at the Preliminary Protective Hearing ("PPH") to present probable cause that the Child is dependent, neglected, or abused, or that there is a substantial and imminent risk thereof. The PPH is the second step in the Court process for an agency seeking custody of a child based on dependency, neglect or abuse. Family Court Civil Rule 214 governs PPH proceedings and states, in pertinent part:
(b) At the Preliminary Protective Hearing, the Court shall determine, in writing, whether the evidence establishes probable cause exists to believe that:Rule 214(c) allows the Court to rescind custody to the fit parent when probable cause has been established with respect to only one parent.
(1) as to each parent, the child is dependent, neglected or abused, or there is a substantial imminent risk thereof, and
(2) it is in the best interest of the Child to be in the custody of DSCYF.
Fam.Ct.Civ.R. 214(b).
Fam.Ct.Civ.R. 214(e).
At issue in this case is whether DSCYF/DFS has established probable cause that the Child is dependent, neglected or abused, or faces a substantial imminent risk of dependency, neglect or abuse. The Court considered all of the evidence of record and found that the burden was not met at this PPH. The petition was dismissed without prejudice.
Probable Cause has not been defined in "black and white" terms. In a criminal case, the Delaware Supreme Court noted that:
Probable cause is an elusive concept which avoids precise definition. Generally, it lies 'somewhere between suspicion and sufficient evidence to convict.' It exists when the 'facts and circumstances ... (are) sufficient
in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed.'"
State v. Cochran, 372 A.2d 193, 195 (Del. 1977)(quoting United States v. Thompson, 292 F.Supp.757,761 (D.Del. 1968) and Brinegar v. United States, 338 U.S. 160 (1949).
The Delaware Family Court cited Cochran in 2002 when it held that in the area of dependency and neglect, probable cause is "greater than mere suspicion, but less than a preponderance of evidence."
Division of Family Services v. L.C., 2002 WL 1932501 at *4 (Del.Fam.Ct. 2002).
In 2015, the Delaware Supreme Court ruled that:
Before reaching a probable cause determination, the court must weigh all the evidence presented at the hearing, including the hearsay presented by the Department and the parents, consider the totality of the circumstances, and determine whether the State has met its burden to prove probable cause.
Department of Services for Children, Youth and Their Families v. Fowler, 122 A.3d 778, 783 (Del. 2015).
In Fowler, the Supreme Court reviewed the order from the Family Court in a case where a child had been born in a toilet. The hotline reporter noted that mother appeared to be high on drugs with glassy eyes and slurred speech. After birth, the mother and child were taken to St. Francis Hospital where she was observed to have slurred speech and was not able to maintain a conversation. Testing revealed that the child was born with methadone and benzodiazepine in his system and was still in the hospital with opiate dependence at the time of the PPH. The mother informed the DFS investigative worker that she did not know what to do when the baby was born. The mother continued to use drugs during the pregnancy despite her addiction to Percocet and her enrollment in a methadone treatment program. The Family Court gave greater weight to the testimony of the alleged father than to the hotline reporter and viewed the remainder of the Department's evidence as insufficient to justify removal of the child from the custody of the parents.
Id. at 780-81.
The Supreme Court concluded that "the Family Court considered the Department's position very seriously, finding the probable cause determination in this case to be 'a very, very close call'," but affirmed the lower court's finding. The Supreme Court noted that it was not an issue for appeal "[w]hether we would have made different factual findings and reached a different conclusion." The Court additionally referenced Cochran in its decision as the definition of probable cause.
Id. at 784.
Id.at 783, n.23.
The Court is the gatekeeper in all child welfare proceedings. It must exercise independent judgment deciding cases by the appropriate standard and not serve as a "rubber stamp" for the Department. In this case, the Court considered the Department's position as presented through its witness, Ms. Pedicone, as well as the more considerable and credible evidence from Mother. The limited and intentionally circumscribed testimony presented by DFS was insufficient for the Court to determine whether "sexual abuse", itself a conclusory statement, had actually occurred.
Id. at 783.
A. Definition of "Sexual Abuse"
The sole issue at the PPH in this matter was whether DFS had made showing of probable cause that the Child was abused. DFS claims that the Child was sexually abused. "Abuse" is defined in Title 10, Section 901 as: "(1) 'Abuse' or 'abused child' means a person (a) Causes or inflicts sexual abuse on a child." "Sexual Abuse" is defined in the same section as "any act against a child that is described as a sex offense in 761(i) of Title 11."
There was no allegation of dependency or neglect in the complaint or during the PPH.
10 Del.C. §901(1).
10 Del.C. §901(21).
Sexual offenses in Title 11 are numerous and Section 761 has definitions generally applicable to sexual offenses including cunnilingus, fellatio, sexual contact, sexual intercourse, sexual penetration, and sexual offense which itself has at least 34 separate definitions. The testimony in this case is that the Child alleged that she was "sexually abused" without further definition. DFS elicited from Mother the vague statement that the Child reported that she had been "inappropriately touched" which could constitute sexual contact if there were evidence to support the conclusory statement.
11 Del.C. §761(b).
11 Del.C. §761(c).
11 Del.C. §761(g).
11 Del.C. §761(h).
11 Del.C. §761(j).
11 Del.C. §761(i).
Sexual Contact is defined as follows:
(g) "Sexual Contact" means:
(1) Any intentional touching by the defendant of the anus, breast, buttocks or genitalia; or
(2) Any intentional touching of another person with the defendant's anus, breast, buttocks or genitalia; or
(3) Intentionally causing or allowing another person to touch the defendant's anus, breast, buttocks or genitalia which touching, under the circumstances as reviewed by a reasonable person, is intended to be sexual in nature. "Sexual contact" shall also include touching when covered by clothing.
11 Del.C. §761(g).
Therefore, in order for the Court to find probable cause in this case of alleged sexual abuse, presumably of sexual contact, there must be at a minimum a showing that: (1) the Father intentionally touched the Child; (2) the touching either was of the Child's or the Father's anus, breast, buttocks or genitalia; and (3) such touching was reasonably intended to be sexual in nature. Additionally, there must be sufficient facts to cause a reasonable person to have "more than a suspicion" that abuse as defined in the statute exists.
B. Facts of Record
The Court considers the testimony of all witnesses at the hearing. In this case, Ms. Pedicone stated that on October 22, 2019, DFS received a report of "sexual abuse" of the Child by her father. She testified that the Child "did make a disclosure." DFS' counsel further questioned the witness:
Tr. at 10:18:00.
Q. She indicated that she had been sexually abused by her father?
A. Yes.
Tr. at 10:21:05.
Ms. Pedicone testified that the DFS records contained a note that the Child had disclosed that "Father was intoxicated during the abuse." Ms. Pedicone further testified that the Child would like to stay in the foster home. The Court attempted to obtain any details that would allow the Court to find a basis for the allegation of sexual abuse:
Tr. at 10:27:11.
Tr. at 10:33:40.
The Court: Has DFS substantiated this family for abuse yet?
A: No. The case just opened on the 22nd.
The Court: So, there is no substantiation for abuse, there is no notice of substantiation that has gone out, no criminal charges, there's no "no-contact order"...
A: Yes.
The Court: ... and there is a dispute between whether the Child has had counseling and may be schizophrenic, and what the Child has said. I don't have any details about what the nature of the abuse was. The petition just says "sexual abuse." What supposedly happened?
A: Because of the criminal investigation, I am not able to.
Tr. at 10:34:43.
Mother's counsel attempted to get some details asking when the Child alleged that the abuse occurred. Ms. Pedicone answered, "I cannot tell you." Contrary to the assertions in the Motion and at trial, Ms. Pedicone testified that the second shift worker went to the family home but did not interview the Child. She stated that the Child "made the same disclosure" to the New Castle County Police Officer but provided no details on what had actually occurred.
Tr. at 10:36:49.
Tr. at 11:00:00.
Upon questioning by Father, Ms. Pedicone admitted that Mother has a better understanding of her daughter and of Father than DFS. Upon questioning by Mother's counsel, Ms. Pedicone denied that she had ever had a child not tell her the truth and revoke their statement. DFS' counsel redirected questioning to Mother who was only able to state that she was told by the interviewing detective that there was "inappropriate touching" of a "sexual nature," both of which are conclusory statements. There was no testimony about what made the alleged touching inappropriate or what the sexual nature of the touching was.
Ms. Pedicone testified to other issues that question the credibility of DFS. She noted that the DFS file stated that Mother told DFS that she and Father drink to excess when they are not working, a claim contested by Mother, but Ms. Pedicone could not define what was meant by the alleged "excess". DFS decided that Mother posed a risk because she denied that the abuse occurred despite Mother's testimony that she knew that "something was amiss" and Mother's supportive statements to the Child. DFS decided that the Maternal Grandfather was not a possible placement because he did not believe that the abuse occurred despite the fact that he was a former Delaware State Trooper who was present for the interview and had full knowledge of his granddaughter. DFS took the Child's phone away without reading any of the supportive text messages under the assumption that the parents were going to interfere in a police investigation. DFS focused on the violation of the Safety Agreement when the Child had returned home after school on the day before the Agreement expired and after DFS had not returned multiple phone calls from Mother. DFS stated that the Child wanted to stay with the foster family when the Child had said multiple times that "this is wrong" and that she wanted to go home.
The testimony of the DFS worker itself was insufficient to establish probable cause that sexual abuse had occurred.
Mother's testimony was more compelling and more credible than the vague statements from DFS. Mother testified that she knows her daughter. She testified that when she learned of the disclosure she knew that something was not correct. She credibly testified that the therapist, whose identity was unknown to her, was qualified and did not contest the mandatory report. Mother explained that the circumstances of the outdoor shower, open and visible from the street, and the presence of multiple family members made it highly unlikely that any untoward conduct had occurred. She testified to the efforts to contact DFS with no response. Mother was credible in her explanation of how she supported her daughter, including telling the Child that she needs to do her best to answer any of the questions asked of her and that if she needed her Mommy, she would be there. Mother credibly testified to the Child's repeated desire to return home.
On balance, Mother's testimony was more credible than DFS' version. Had DFS simply provided the answer to the question, "What supposedly happened?", there may have been enough evidence for the Court to find that there was, indeed, an allegation of sexual contact to merit continuation of custody with DFS until the Adjudicatory Hearing. Consistent with the Supreme Court's decision in Fowler, the Court weighed all of the evidence presented at the PPH, including the hearsay presented by DFS and Mother, and determined that the DFS had not met its burden to prove probable cause.
C. Analysis of DFS' Requests for Reconsideration
1. The findings of fact in Paragraph 1 of the Order are incomplete and that the Motion more fully recounts the testimony presented.
The Court's findings in the Order from the PPH hearing represent those facts of record found by the Court to be helpful in deciding whether probable cause had been established. The facts suggested by DFS in its Motion that were part of the record were considered. The "new facts" introduced in the Motion, such as the "towel" and the many references to an MOU, are not considered in a Motion for Reargument. None of DFS' restated facts causes the Court to change its decision on probable cause. The case was dismissed without prejudice and DFS may choose to refile its petition so long as it is prepared to present sufficient facts to establish probable cause. The first request by DFS is denied.
2. The Court's application of the law is contrary to DFS procedures which are consistent with federal guidelines.
The question on a Motion for Reargument is whether the Court misapplied the law applicable to the Court. The Court applied the law as clarified by the Delaware Supreme Court in an independent manner to reach a decision on whether probable cause existed. Disagreeing with the Court's decision does not amount to misapplication of the law. DFS procedures and federal guidelines are important but do not bind the Court. Those same federal guidelines are the basis for the Court Improvement Project that sets hearing dates and makes recommendations for the Court. The Family Court of the State of Delaware has been a model court for the country. The decision in this matter is consistent with the federal guidelines and the Court Improvement Project.
It appears from the Motion that DFS is "hamstrung" by its interpretation of the Memorandum of Understanding with the State Police. It is entirely possible for DFS to testify "to the truth, the whole truth, and nothing but the truth" in Court proceedings in a manner that will not violate their MOU. DFS could have presented evidence that "included but was not limited to" touching that would establish probable cause. The Family Court is a Court which means that due process is required at all stages. This requires both notice and the opportunity to be heard. In refusing to provide any information to the Court, DFS also denies the parents any information upon which they can present facts to the Court that would have bearing on the issues. The second request of DFS is denied.
3. The Court credited Mother's testimony that the Child wanted to return home without hearing from the Child.
The Child's out of court statements, such as they were presented to the Court, were admitted. This includes the Child's statements to Mother and the Maternal Grandmother as well as DFS. The Child's testimony that she wished to return home is tied to her repeated statements that "This is wrong". The Child's wishes are one of the 13 Del.C. §722(a) best interest factors that must be considered. None of the factors are dispositive but the Child's statements and desire to return home contrasts with DFS' representation that the Child wished to remain with the foster family. In this case, it was the lack of detail on the nature of the sexual offense, not the Child's wishes, that was the decisive factor.
Disagreeing with the Court's decisions on credibility is not a basis for reargument. The third request of DFS is denied.
4. The Court discredited DFS for not giving details of the incident alleged to have occurred and for not investigating the location where the incident allegedly occurred.
Contrary to the assertions in the Motion, DFS was not discredited for not giving details. The Court asked questions that needed to be answered to establish probable cause. In this PPH, DFS decided that it would not provide the information. The failure to investigate the location over two weeks does cause doubt about DFS' sense of urgency in this matter as does the delay in scheduling any mental health assistance for the Child. Mother provided information on the outdoor shower that was visible to the street. DFS could have investigated the location and refuted Mother's testimony. It did not and Mother's testimony was uncontroverted. Disagreeing with the Court's decisions on credibility is not a basis for reargument. The fourth request of DFS is denied.
5. The Court noted the lack of any criminal charges against Father, alleged misinterpretation of the statement by DFS' counsel that investigations can take up to a year, that DFS could present additional information at the Adjudicatory Hearing, and that DFS has up to sixty days to investigate if allegations are substantiated.
The statement that DFS could present additional information at the Adjudicatory Hearing ignores that the PPH stage must have probable cause. There is no Adjudicatory Hearing if the petition fails the probable cause standard at the PPH. If DFS is unable to establish probable cause, then it will be unable to meet the higher standard of preponderance at the Adjudication Hearing.
DFS specifically stated in closing argument that investigations of this nature could take a year to complete. Such delay runs counter to the principles of child welfare under the Adoption and Safe Families Act in which not less than six additional hearings are required within the year following removal. Such delay must be justified by evidence. Such evidence was not presented. The fifth request of DFS is denied.
6. The Court made findings about the Safety Agreement between DFS, Mother and Maternal Grandmother.
DFS's assertions related to the Safety Agreement are not appropriate for a Motion for Reargument. Mother testified that she and Father were unclear on the language of the Safety Agreement. She called DFS numerous times without response before allowing the Child to return home one day before it expired. The parents' interpretation of the Agreement was not credible but it does not create a separate basis for finding probable cause that the Child is dependent, neglected or abused. While DFS has up to sixty days to investigate allegations before sending parties a notice of an Intent to Substantiate for abuse, the lack of a finding at the same time that it brings a petition for abuse are inconsistent positions. The sixth request of DFS is denied.
7. The Court did not completely describe DFS' efforts to place Child with family.
DFS' efforts to place the Child with family was not a determinative factor in the decision but does go to the credibility of DFS in its assessment of the family. No further explanation was required in the Order. The seventh request of DFS is denied.
8. The Court misstated the law on the standard of proof for an ex parte application and a Probable Cause Hearing.
DFS does not explain how the Court allegedly misstated the standard for an ex parte application and for a Probable Cause Hearing. The decision on probable cause is based on just the allegations of DFS at the ex parte stage. The PPH includes the evidence of the parents as well as DFS and the Court must weigh all of the evidence in deciding whether probable cause exists to continue to have the Child in DFS custody. The eighth request of DFS is denied.
9. The Court should consider guidance from 11 Del.C. §3513 on credibility of a Child's out of court statement.
The out of court statements by the Child were admitted. The reference to 11 Del.C. §3513, as well as 13 Del.C. §724(d) recommended by the Child's Attorney, would not change the decision as the statements presented were considered credible, if incomplete. The problem was that DFS did not present all of the Child's statements necessary to establish probable cause. Characterizing Father's purported conduct as "sexual abuse" is a conclusory statement. It is highly unlikely that the only words that the Child used in her three disclosures were that she was "sexually abused" by her Father. The ninth request of DFS is denied.
IV. Conclusion
The Family Court judges' role is one of gatekeeper of our nation's foster care system. Judges are required to determine whether and when a child should be removed from the home, returned home, or placed in a new permanent home. Additionally, judges must oversee and decide the child welfare agency's decisions about whether, how often, and under what conditions parent-child and sibling family time will occur, what if any efforts will be made to reunite the family after removal of the child and placement in substitute care, and what services will be offered to meet the needs of the child while in care. They are concerned with the principles of treatment, rehabilitation, family preservation, and permanency planning. The decisions govern the lives and futures of the parties which include parents.
Gatowski, S., Miller, N., Robin, S., Escher, P. & Maze, C. (2016) ENHANCED RESOURCE GUIDELINES - IMPROVING COURT PRACTICE IN CHILD ABUSE AND NEGLECT CASES. RENO, NV: National Council of Juvenile and Family Court Judges.
The Family Court must exercise these weighty responsibilities in the context of due process with fairness to all parties - the parents, state agency, and most importantly - the child. The Court balances all of the evidence presented which will sometimes seem to favor one side or the other when, in fact, it is the independent decision of an impartial decision maker.
The Court takes its responsibilities with proper seriousness and seeks to protect the child's best interest with the evidence presented. The Court may not create its own evidence nor may it merely rubber stamp the agency's petition where evidence was not presented because it would provide information to the parents. There must be adequate support for a finding of probable cause. In this case, for whatever reason, the evidence presented does not allow the Court to find probable cause that this Child is dependent, neglected or abused.
ORDER
IT IS HEREBY ORDERED this 13th day of December 2019, that the Motion for Reargument is DENIED.
IT IS SO ORDERED.
/s/Michael W . Arrington
MICHAEL W. ARRINGTON
Judge Date mailed/emailed: December 13, 2019 cc: Victoria R. Witherell, DAG (by e-mail)
Shauna T. Hagan, Esquire (by e-mail)
Molly P. Shaw, Esquire (by e-mail)
A L (by US mail)
File