Opinion
FILE NO.: CN18-04396 PETITION NO.: 18-21518 PETITION NO.: 19-00272
04-25-2019
RE: H. T. v. L. S. & J. T.
Michael Farnan, Esquire
919 N. Market Street
12th Floor
Wilmington, Delaware 19801 Breck Smith, Esquire
Kasey H. DeSantis, Esquire
919 N. Market Street
Suite 300
P.O. Box 2323
Wilmington, Delaware 19899
LETTER DECISION AND GUARDIANSHIP ORDER
PETITION FOR GUARDIANSHIP OF A MINOR Dear Ms. T. and Counsel:
The Court held a hearing on April 4, 2019, regarding guardianship of J. L. T. Jr. ("Child"), born , 2018. Petitioner, H. T. ("Paternal Grandmother") filed a Petition for Guardianship of a Minor on July 26, 2018. Present for the hearing were: Paternal Grandmother pro se, L. S. ("Mother") represented by Michael Farnan, Esquire, and J. T. ("Father") represented by Breck Smith, Esquire, and Kasey H. DeSantis, Esquire. The Court finds that Paternal Grandmother did not meet her initial statutory burden and therefore DENIED her petition. The Court details its findings of fact and conclusions of law below.
PROCEDURAL HISTORY
On July 26, 2018, Paternal Grandmother filed her initial Petition for Guardianship along with a Motion for an Ex Parte Order. In her initial Petition and Ex Parte Motion, Paternal Grandmother claimed that Mother had a mental breakdown and that she lived in a shelter in New Jersey. Paternal Grandmother further stated that Mother had post-partum depression and that Mother may harm the Child. Paternal Grandmother said neither parent could come near the Child due to a Protection From Abuse ("PFA") Order. Based on Paternal Grandmother's accusations and the Child's age, the Court granted Paternal Grandmother's request for an Ex Parte Order and granted her temporary Guardianship. The Court agreed with the concern of domestic violence. At the time the Ex Parte was granted, there was a no-contact Order between Mother and the Child. Father had an Ex Parte PFA Order against him where he could not contact Mother. The Court was also aware that the Division of Family Services ("DFS") was investigating the parents at that time.
The Court then held an emergency hearing on Paternal Grandmother's Motion on August 2, 2018. Paternal Grandmother stated that she was seeking Guardianship of the Child, as she had concerns for Mother's mental health in light of the issues between Mother and Father. Paternal Grandmother also asserted that Mother was unable to financially support the Child on her own as paternal relatives had been helping her throughout her entire pregnancy. DFS also expressed concern for Mother's mental health and recommended that Mother begin regular counseling. DFS also had concerns regarding Mother and Father's interactions with one another. DFS recommended that Mother have frequent, but supervised visitation. At the time of the hearing, Mother had seven pending charges including three different child endangerment charges. The Court found Mother's pending criminal charges and seemingly erratic behavior concerning. However, the Court did not order supervised visits at that time. The Court did order DFS to facilitate visitation due to the mutual no contact Orders. The Court dismissed Paternal Grandmother's Temporary Guardianship but stayed her Petition for four months. The Petition was stayed to allow DFS to actively safety plan with Mother and Father. The Petition was also stayed to allow time for genetic testing results to be returned as Father did not acknowledge paternity at the Child's birth, therefore paternity could not be adjudicated.
On January 7, 2019, Paternal Grandmother filed a second Petition for Guardianship, along with another Motion for an Ex Parte Order. In her second Petition, Paternal Grandmother asserts that Mother and Father's relationship has become volatile for the Child and that neither parent is willing or able to financially provide for the Child. Paternal grandmother also claims in her Ex Parte motion that Mother threatened to take the Child to her home state of New Jersey and that there is domestic violence between Mother and Father. The Court granted the Motion due to the history of the case and DFS's involvement in the case.
The Court scheduled an emergency hearing for January 9, 2019. During the second emergency hearing, DFS worker Andrew Bailey ("Mr. Bailey"), appeared under Court order. Mr. Bailey stated that DFS became involved most recently in the case due to an urgent referral received on December 26, 2018. Mr. Bailey explained that Father became agitated at the Courthouse while holding the Child and was ultimately arrested for disorderly conduct. Mr. Bailey also stated that after an investigation, the Child was primarily living with Paternal Grandmother even though the previous DFS safety plan gave primary placement to Father and frequent visitation to Mother. Mr. Bailey still had concerns regarding Mother's mental health but in the short investigation, was unable to confirm Mother's treatment plan at Connections. During the hearing, Paternal Grandmother requested that she longer be the supervisor of visits in her home. The Court found that the Child was temporarily dependent. The Court found temporary dependency because of Mother's mental health history and because of the ongoing domestic violence between Mother and Father. The Court ordered Mother and Father to have mental health evaluations within sixty (60) days of the Order. The Court also ordered that Mother have visitation through the Visitation Center. Mother and Father were both appointed counsel for the full guardianship hearing as part of the Court's January 11, 2019 Order.
Paternity was adjudicated in this matter on February 5, 2019. The final guardianship hearing was continued from March 29, 2019, to April 4, 2019, to accommodate newly appointed counsel's schedule.
LEGAL STANDARD
Guardianship requires either 1) parent consent or 2) the petitioner to show that that the child is dependent, neglected, or abused AND that guardianship is in the child's best interest by a preponderance of evidence at a hearing on the merits.
DISCUSSION
Parental Consent
Father consents to Paternal Grandmother having guardianship of the Child. Father currently resides with Paternal Grandmother who resides with Paternal Great-Grandmother. He is able to interact with the Child as often as he would like. Father moved in with Paternal Grandmother on February 28, 2019. Father did not specifically state that he is unable to care for the Child, but stated that his issues with Mother make co-parenting difficult at times. Father also stated that he is generally able to support the Child by giving Paternal Grandmother money but not on a consistent basis. The Court finds that Father understood the consequences of his consent and knowingly and voluntarily gave his consent.
Mother opposes Paternal Grandmother's Petition for Guardianship. Mother is seeking custody of the Child. Mother resides in New Jersey and is employed. Mother believes that she can co-parent effectively if exchanges occur in a public setting and only communicates with Father about custody of the Child.
Dependency, Neglect, and Abuse
Dependency and dependent child are defined in 10 Del. C. § 901(8): (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 ...
In making a finding of dependency under this section, consideration may be given to dependency, neglect, or abuse history of any party.(18) "Neglect" or "neglected child" means that a person:
Neglect or neglected child are defined in 10 Del. C. § 901(18):
a. Is responsible for the care, custody, and/or control of the child; and
b. Has the ability and financial means to provide for the care of the child; and
1. Fails to provide necessary care with regard to: food, clothing, shelter, education, health, medical or other care necessary for the child's emotional, physical, or mental health, or safety and general well-being; or . . .
In making a finding of neglect under this section, consideration may be given to dependency, neglect, or abuse history of any party.
The Court will only evaluate the evidence presented as to dependency and neglect as Paternal Grandmother stated that she did not believe abuse was occurring. Paternal Grandmother's main concerns were that Mother was unable to care for the Child based on her mental health; domestic violence between Mother and Father; and whether Mother's perceived lack of monetary support rises to the level of neglect.
Paternal Grandmother
Paternal Grandmother testified that she has been the main caretaker of the Child since a few days after his birth due to an altercation between Mother and Father. She has provided for him financially and purchased diapers, formula, and paid the medical bills for the Child. She is requesting guardianship in order to make medical decisions for the Child, and to enroll him in Medicaid.
See Petitioner's Exhibit #3
Paternal Grandmother described an altercation between Mother and Father that occurred on July 23, 2018. Both the police and DFS were involved. Paternal Grandmother was unsure of the details of the altercation between Mother and Father, but expressed concern for their ongoing domestic violence issues. She believed that the altercation surrounded Mother failing to feed the Child. Paternal Grandmother also stated that there is constant friction between Mother and Father leading her to believe that they are not in a position to care for the Child. Paternal Grandmother wants Mother to "get it together" before she begins caring for the Child. Based on the friction between Mother and Father, Paternal Grandmother is also concerned that she will not see the Child if the Guardianship is not granted. She believes Mother will "runaway" with the Child, because Mother lives in New Jersey with family.
Paternal Grandmother believes that Mother has mental health issues, however, Paternal Grandmother has not spent a significant amount of time with Mother. She stated that she only met Mother once prior to the Child's birth on July 15, 2018. The next time Paternal Grandmother saw Mother was right after the altercation between Mother and Father on July 23, 2018. Although Paternal Grandmother has not spent much time with Mother, she insists that Mother has mental health issues due to Mother's inconsistent communication. Paternal Grandmother also believes that Mother has mental health issues because she believes Mother posted Paternal Grandmother's phone number on "IknoU." Paternal Grandmother characterized "IknoU" as a "prostitution site" as she received many calls from unknown men asking for sexual favors. Paternal Grandmother also provided a copy of text message conversations that occurred in November of 2018 between herself and Mother, and in April 2019, where only Mother communicates. Paternal Grandmother begins the November 2018 conversation telling Mother,
See Petitioner's Exhibit #1
See Petitioner's Exhibit #2
"I don't know the status of your recovery...but you need to stay the f out of my business. Any history between J. sr.'s father and me is none of your business. Those people don't even know you exist. You need to worry about your child and not getting back together with my son. You're burning bridges but still think hes going to marry you? Who's coming to the wedding? LOL"Mother responded, "Ms. H. ?" Then Paternal Grandmother sent Mother a picture of the posting that shows Paternal Grandmother's phone number on "IknoU." The April text messages are only from Mother and indicate Mother's concern for the Child's oral hygiene, and that Mother does not need to take medication for mental health issues.
Paternal Grandmother also raised concerns about neglect as she claims Mother gave the Child the wrong formula after he was diagnosed with a food intolerance. This incorrect formula caused the Child to go to the ER two separate times. Paternal Grandmother raised concerns that Mother neglects the Child because even though she has employment, she fails to provide any money to help Paternal Grandmother care for the Child. Paternal Grandmother did admit that Mother provided diapers, but that she decided to donate them as the diapers were the wrong size.
B. T. .
B. T. ("Paternal Uncle") testified that the police became involved on July 23, 2018, because Mother attacked Father, although he does not believe that she was arrested at that time. He believes that the police told Mother that she could not stay at the apartment with Father and that she could not take the Child with her. Paternal Uncle also stated that Mother was speaking incoherently during the incident, complaining about no one coming to visit her in the hospital. Mother was acting "weird" at this time and was "not mentally there" in Paternal Uncle's opinion. He stated that there was also an incident where Mother tried to attack Father with a box cutter, although he was not present to witness the incident. Based on these two incidents, Paternal Uncle does not believe that Mother is mentally stable. However, Paternal Uncle admitted that he had a momentary lapse in judgment when he threatened Mother and stated, "I want to Fuck her up," outside of the courtroom on January 9, 2019.
Father
Father testified that while he and Mother can have heated arguments, they are able to meet in public to discuss the Child. He has taken the Child to Mother's church in New Jersey where they interact with maternal relatives. He described an argument that occurred on December 26, 2018, inside the New Castle County Courthouse. Father explained that the argument began because he denied Mother visitation over the Christmas holiday. As the argument grew in intensity, he became agitated while holding the Child. Capitol police were called to the area and Father refused to calm down or leave the area. Father admitted that he was not acting rationally. He was ultimately arrested for disorderly conduct by Capitol Police. Father believes that Mother needs mental health counseling and medication. Father stated that once she receives treatment, then they can be a family. Father testified about a domestic violence incident where he "choked" Mother because she pulled a knife on him, and he was defending himself. Mother went to the ER after that incident. Father did not give a timeline for that incident. Father then admitted that he used his brother's name to visit Mother at the ER. Father also claims that there was an incident where Mother purposely "dumped" the Child 's formula, due to her mental instability.
Mother
Mother testified that she lives with Maternal Grandparents in New Jersey, where she is originally from. Mother said her housing is appropriate in New Jersey. Mother works for several contracting agencies, giving her a combined thirty to forty-hour work week. Her salary can range from $12.00 an hour to $15.50 an hour. Mother also attends school while working her different contract positions. With her contract positions, Mother is able to provide for the Child. Mother stated that she already has a crib, diapers, and formula for the Child. Mother is on Medicaid, but is not eligible for food stamps as Father refused to acknowledge paternity of the Child on the birth certificate. She also stated that she has a lot of family support in New Jersey in order to care for the Child. Mother told the Court that she took extensive parenting classes in order to prepare for motherhood before the Child's birth. Mother also has a car seat and researched daycares for the Child.
Per the Court's January 11, 2019 Order, Mother provided the Court with documentation from her mental health evaluation at Connections. The ultimate recommendation was that Mother did not need medication, and she has no diagnosis beyond an adjustment disorder. The evaluator recommended that it would be helpful for Mother to continue in regular counseling.
Mother testified that there has been a lot of friction between Father and herself. Mother only wishes to see Father in public places as she testified that Father choked her on October 4, 2018. Mother gave more details about the July 23, 2018, incident. She stated that she was feeling unsafe in the apartment with Father and decided to feed the baby in the bathroom behind a locked door. She then called the police in order to leave the apartment safely as it seemed Father was trying to forcibly open the door. When the police arrived they would not allow Mother to leave with the Child, and Mother became visibly upset. DFS was called to the scene. Mother was arrested that night and charged with child endangerment. Mother was also arrested on July 29, 2018, and charged with theft. All criminal charges against Mother involving Father and the Child as alleged victims were dismissed with prejudice prior to the guardianship hearing.
Further, Mother presented that she has not neglected her child, as she has always given the Child the correct formula. She explained that the Child did have to go to the hospital for a reaction to formula, but his food intolerance was unknown at that time. Mother also stated that she provides financial support when she can, such as clothes and formula. Mother normally gives these items directly to Father. The Visitation Center has restrictions about what items Mother can bring to each visit. Mother's visitation has solely been through the visitation center since January 11, 2019. Additionally, Mother is afraid of paternal relatives as Paternal Uncle threatened to "fuck her up," while in the courthouse on January 9, 2019.
*****
The Court finds that the Child is NOT dependent as to Mother as Mother credibly testified that she has employment, stable housing, and is properly addressing all mental health needs. Additionally, while there is friction between Mother and Father, they have worked out a system of co-parenting in public places. The Court also finds that the Child is NOT neglected as Mother testified that she provides as much support as she can, given the circumstance of Paternal Grandmother's interference. While the Court understands that Paternal Grandmother has good intentions, Mother has not been afforded the opportunity to parent outside the supervision of Paternal Grandmother. Paternal Grandmother filed her Petition for Guardianship shortly after the Child was born. Therefore, Mother has been unable to demonstrate her parenting abilities. Further, Paternal Grandmother provided no evidence that Mother is unable to financially support the Child, and she failed to show that Mother has been purposely withholding care from the Child.
The Court recognizes that the incident involving Mother and Father on July 23, 2018, raised concern for Mother's mental health. In fact, the Court agreed and ordered that Mother be evaluated through Connections. Mother complied with the Court's directive, and the evaluation did not yield any concerning diagnosis. Since July 23, 2018, Parental Grandmother has been the primary caregiver of the Child and has not allowed Mother the opportunity to parent, even though Mother has been trying to increase her visitation. Paternal Grandmother mainly questioned Mother's mental health due to a post on "IknoU" and text message conversations in November 2018 and April 2019. Neither of Parental Grandmother's exhibits of the "IknoU" post and the text message conversations sufficiently convinced the Court that Mother has mental health issues to the point of depriving her of her rights to parent the child. The Court was not given any background information about "IknoU" and the text message conversations were incomplete.
See Petitioner's Exhibits #1 and #2 --------
It was Paternal Grandmother's burden to show by a preponderance of the evidence that the Child is dependent and/or neglected by Mother and Paternal Grandmother has not met this burden. As Paternal Grandmother did not make a proper showing of the threshold question of whether the Child is dependent and/or neglected, the Court need not complete an analysis of the best interest factors under 13 Del. C. § 722.
The Court believes that the issues between Mother and Father are custodial in nature, and the Court would advise Mother and/or Father to file and pay for a Petition for Custody. Further, even if the Court found that Paternal Grandmother had met her burden, the Court has concerns regarding sufficient space in Paternal Grandmother's home, and her health concerns that may impact her ability to care for the Child.
IT IS HEREBY ORDERED THIS 25th day of April, 2019, that:
1. Paternal Grandmother's Petition for Guardianship is DENIED.
2. As no custody Order is in place between Mother and Father, custody and residency of the Child shall return to Mother and Father jointly.
3. B. S. shall not be a viable caregiver of the Child due to the Court's concern for her mental health.
IT IS SO ORDERED.
/s/ _________
NATALIE J. HASKINS, JUDGE NJH/jw xc: File, Parties Date Mailed/Emailed: 4/25/2019