Opinion
FILE NO.: CN12-06397 CPI NO.: 18-08666
02-08-2019
J----- S------, S----- S------ Petitioners, v. A----- D----, J---- H--------- Respondents. In the Interest of: S----- D---- (F) (DOB 12/--/10)
Present for the Hearing:
J----- S------, Maternal Grandfather
S----- S------, Maternal Grandmother
J---- H---------, Father ORDER GRANTING PETITION FOR GUARDIANSHIP
Before the Court is a Petition for Guardianship filed on March 26, 2018 by J----- S------ and S----- S------ ("Maternal Grandparents"), by and through their attorney, Dana Reynolds, Esquire, against A----- D---- ("Mother") and J---- H--------- ("Father"), who are both self-represented, in the interest of S----- D---- born December -, 2010 ("Child"). In their Petition, Maternal Grandparents alleged that Child was not being properly cared for in Mother's home primarily due to issues involving Mother's ongoing substance abuse.
PROCEDURAL HISTORY
On November 28, 2012, this Court awarded emergency temporary guardianship of Child to Maternal Grandparents due to Mother and Father's homelessness and substance abuse. This temporary guardianship was made final on March 23, 2013, after both Mother and Father failed to participate in the final guardianship hearing. Custody of Child was subsequently rescinded to Mother on March 24, 2015, after Mother established that she had obtained employment, stable housing, and was no longer using drugs such that guardianship of Child with Maternal Grandparents was no longer necessary. Father failed to participate in that proceeding as well.
On March 26, 2018, Maternal Grandparents filed the instant Petition for Guardianship and a Motion for Emergency Ex Parte Order due to concerns regarding Mother's ongoing drug use. That same day, Mother filed an Affidavit of Consent to Maternal Grandparents having guardianship of Child. On March 27, 2018, the Court granted Maternal Grandparents Motion for Emergency Ex Parte Order and awarded temporary guardianship of Child to Maternal Grandparents, pending a final hearing on the merits. Maternal Grandparents were further ordered to perfect substituted service of process over Father by publication in a newspaper of general circulation in Cedar Rapids, Iowa, where Father was believed to reside.
On May 16, 2018, the Court held a hearing on the Motion for Emergency Ex Parte Order, participated in by Maternal Grandparents and Father, who traveled to Delaware from his residence in Iowa in order to participate in this hearing. The Court found that Child had not been in Father's care since 2012 and Father has had minimal and sporadic phone and video contact with Child since that time, with the exception of early December 2017 when Father came to Delaware and spent one week with Child and Mother. Father argued that he was unable to be more involved in Child's life due to maternal relatives prohibiting him from contacting Child. In light of Mother's consent to guardianship and Father's minimal contact with Child and his failure to regularly exercise parental rights, the Court continued temporary guardianship of Child to Maternal Grandparents, pending a final hearing on their Petition. The Court further directed that Father be permitted to have at least one in-person visitation with Child prior to his return to Iowa as well as video contact with Child no less than three times a week. A final hearing on the Petition for Guardianship was scheduled for July 18, 2018 but was later continued to October 25, 2018 due to Maternal Grandparents retaining counsel to represent them in these matters. Counsel was also appointed to represent Father prior to the final hearing.
On September 21, 2018, Maternal Grandparents filed a Motion to Compel the Production of Documents on Father due to Father's failure to respond to all discovery requests. Father, through his counsel, Jason Gibson, Esquire, filed an answer opposing the Motion on October 4, 2018. Mr. Gibson, Esquire, also filed a Motion to Withdraw as Counsel on September 21, 2018, citing a breakdown in the attorney-client relationship. In response, the Court held a teleconference on October 23, 2018, just two days prior to trial, in order to discuss the outstanding motions. With regard to the Motion to Compel, Father conceded that he had not complied with Maternal Grandparents' discovery request and, as such, the Court granted the Motion to Compel in part. Maternal Grandparents requested to continue the hearing on their Petition for Guardianship in order to give Father time to produce the required documents. Father was, therefore, ordered to produce the requested documents no later than December 3, 2018 and the final hearing in this matter was continued to January 10, 2019. The Court also granted Mr. Gibson's Motion to Withdraw as Father indicated that he had no objection to Mr. Gibson being discharged as his attorney.
On January 10, 2019, the Court held a final hearing on the merits as to Maternal Grandparents' Petition for Guardianship. During the hearing, the Court heard testimony from Maternal Grandparents and Father. At the outset of the hearing, Maternal Grandparents informed the Court that Father still had not produced the requested documents, contrary to the Court's Order Granting the Motion to Compel. In response, Father admitted that he had not complied with the Order but claimed to have misunderstood the Order and mistakenly believed he was not required to produce certain documents. Of particular importance were documents relating to Father's physical health, as Father has previously spoken to the Court at length about his spinal cord injury and his ongoing progress in treatment for this injury. The Court reviewed the Order Granting the Motion to Compel on the record and found no basis for Father misunderstanding what was required of him in that Order. To address Maternal Grandparents' request, the Court decided to draw a negative inference with regard to Father's physical health, in light of his repeated failure to comply with the discovery requests. Also pending at the time of the hearing was Maternal Grandparents' Motion for a Child Interview, which this Court denied at the conclusion of testimony on the basis that a child interview did not appear necessary given the nature of the evidence presented during the hearing. Because Mother had already consented to Maternal Grandparents having guardianship, the Court considered the petition only as it related to Father.
GROUNDS FOR GUARDIANSHIP
The General Assembly enacted Chapter 23 of Title 13 of the Delaware Code in 2001 to establish a framework for the proper procedures for guardianship of a minor child in Delaware. The grounds for the establishment of a guardianship over a child are set forth in 13 Del. C. § 2330, which states that, prior to granting guardianship, the Court shall find that each parent voluntarily consents or, when there is not voluntarily consent, the Court must hold a hearing on the merits and find by a preponderance of the evidence that: 1) the child is dependent, neglected, and/or abused as to each parent, and; 2) it is in the best interest of the child for guardianship to be granted. The Court will not recite all of the testimony contained in the record but will note the relevant testimony below as it is applicable to the statute.
13 Del. C. § 2301. 73 Del. Laws, ch. 150, § 1.
13 Del. C. § 2330(a) provides in pertinent part: [p]rior to granting an order for guardianship under this chapter, the Court shall find for each parent the following:
(1) The parent voluntarily consents to the guardianship; or
(2) After a hearing on the merits, by a preponderance of the evidence:
a. The child is dependent and/or neglected; and
b. It is in the best interests of the child for the guardianship to be granted.
Dependency and/or Neglect
Because Mother has already consented to the guardianship, the Court must determine whether Child would be dependent, neglected, and or/abused in Father's care. Based upon the testimony presented at the hearing, the Court finds, by a preponderance of the evidence, that Child is dependent as to Father.
10 Del. C. § 901(8) provides in pertinent part: "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...
Child was born in Cedar Rapids, Iowa, on December -, 2010 and resided there with Mother and Father until November 2011. In November 2011, Child, Mother, and Father all moved into the home of Maternal Grandparents. Maternal Grandparents testified that both Mother and Father were unemployed at the time and were allowed to stay in their home, rent free, for three months in order to give them time to find a job and save money for a place of their own. Maternal Grandparents stated that, even while Father was in their home, he failed to provide necessary care for Child. Specifically, Maternal Grandfather testified that Father frequently behaved erratically and would often stay in his bedroom for days at a time and urinated in water bottles to avoid leaving the bedroom. At one point during his stay with Maternal Grandparents, Father also disappeared for approximately three days without informing anyone of his whereabouts. Upon his return, Father claimed to have been suffering from "leaky gut" and stated that had gone to several hospitals over the past few days in an attempt to seek treatment. Maternal Grandfather testified that he did not believe this explanation and testified that he saw Father put iced tea in his mouth and spit it out into a cup while pretending to vomit. Maternal Grandfather also testified that on December 31, 2011, Father got into an altercation with Maternal Grandparents and used Child, who was just barely one-years-old at the time, as a shield during the argument. Father disagreed with this account and, instead, stated that he was simply carrying Child in his arms at the time of the argument and Maternal Grandfather was being verbally abusive and approached him.
Eventually, Maternal Grandparents asked both Mother and Father to leave the home because neither parent had made any effort to obtain employment. Father disagreed and, instead, indicated that he and Mother left Maternal Grandparents' home on their own volition after Maternal Grandmother threw a toy at him during another argument. After leaving Maternal Grandparents' home, Mother, Father, and Child went from home to home, living first with Mother's paternal uncle, and then with Mother's biological Father. Father ultimately left the home of Mother's father due to tension between him and Mother's father's girlfriend and began living in his car which Father described as "pretty peaceful." Mother and Child returned to Maternal Grandparents' home and continued to reside there for the remainder of 2012. During this time, Mother also had to undergo hip surgery and, as a result, Maternal Grandparents assumed full responsibility for Child while Mother recovered. Maternal Grandfather testified that Father never once attempted to care for Child during this time and Maternal Grandmother even lost her job as a result of taking so much time off from work to be the primary caregiver of Child.
Father testified that he was not living with Mother or Child in late 2012 for a variety of reasons. Father testified that around July 2012, Mother called the police on him which resulted in him being incarcerated for more than eighty days. On October 13, 2012, Father was released from jail and, within a few weeks, Father claimed that he had received a phone call from a spinal cord injury center in Richmond, Virginia informing him that he was eligible for a new medical study at their facility, in which Father participated. Father testified that, in spite of his absence, he and Mother were planning to return to Iowa with Child throughout these months. These plans, he testified, were ultimately postponed when Maternal Grandparents were granted temporary emergency custody of Child following Mother's arrest in November 2012. Father then returned to Iowa without Mother and Child where he continues to reside to this day.
After moving to Iowa, Father had minimal and sporadic contact with Child. Father did not visit or see Child between 2012 and December 2017. Father also failed to participate in both the 2013 Guardianship proceedings and the 2015 Guardianship Rescission proceedings. Father claimed that he did not receive notice of these proceedings but also admitted that he never provided the Court with his new addresses while he moved throughout Iowa. Father further conceded that he has not been a primary caregiver for Child since 2012, but claimed that, prior to this, he was regularly involved in Child's life and "did pretty much everything for her." Father also stated that over the past six years his phone calls with Child have been sporadic not due to his lack of involvement but rather because Mother was actively battling substance abuse issues which made it difficult to arrange a set schedule for phone contact.
Prior to the commencement of these proceedings, Father had visited with Child only once since 2012. In November 2017, Mother contacted Father and asked for money to obtain her car from an impound lot. Father provided Mother with the money and also returned to Delaware the following month to visit with both her and Child. Father testified that he spent approximately one week with Child and Mother, including Child's birthday, and reported that child was "so excited" and "loved" that he was there. During this visit, Father stated that Mother continued to use drugs. Rather than alerting the police, or filing for custody in order to protect Child, Father decided to return to Iowa, leaving Child in Mother's care. When asked why Father did nothing to remove Child from the home of an active drug user, Father stated that he believed any attempts to remove Child from Mother's home would have resulted in Maternal Grandparents obtaining guardianship again. Instead, Father believed it was best to be supportive of Mother and return to Iowa while continuing to try to convince her to relocate there with Child. Father expressed that he did not "trust this state" and maintained that the only "logical" option was to leave Child in Mother's care and return to Iowa without them.
With regard to Father's present ability to care for Child, Father lives in a one-bedroom apartment in Cedar Rapids, Iowa. Father has not been employed since 2011 when he worked as a tutor in college. Upon being asked why he has not been employed for over seven years, Father explained that he has spent this time recovering from a spinal cord injury that he received during basic training at a military academy. However, eight months earlier during the May 16, 2018 Emergency Hearing in this matter, Father stated that he had finally reached a point where he felt he could work again but, as of the final hearing, Father still had not made any progress with searching for or obtaining employment. Despite the fact that Father has not been employed for over seven years, Father appeared confident that he would have no difficulty finding a job if he so desired, citing his IQ of 162 in support of this belief. Father further stated that he has a few potential employers already in mind, including Elon Musk or Tesla, but stated that he may not want to pursue these positions as they would require him to relocate from Cedar Rapids, Iowa.
Currently, Father reported that he earns $976 a month in military disability, although $100 is deducted from this amount on a monthly basis as an automatic wage attachment for child support. Father conceded that his current income would not be enough to support both himself and Child if Child were returned to his care but stated that once he "gets [Child] to Iowa, other avenues of income will occur." Father did not, however, elaborate on or explain what was meant by this assertion. The Court also inquired about Father's physical ability to care for an eight-year old child, in light of his spinal cord injury. While Father stated that he no longer has any physical limitations, although he reported that he is constantly in pain and oftentimes finds it difficult to maintain his energy level. In short, Father lacks adequate income to provide for Child, is not actively engaged in seeking employment, and has no definitive plan to obtain necessary support and suffers from chronic pain which will impact his ability to appropriately care for his child.
Although the Court implemented a visitation and contact schedule with Father during the May 16, 2018 Emergency Hearing, by his own testimony, Father has not taken full advantage of this schedule and has done little to exercise his parental rights over Child throughout the past eight months. In the Order following the May 16, 2018 Hearing, Father was to have one-in person visit with Child prior to his return to Iowa, as well as video contact with Child a minimum of three times per week. Pursuant to this Order, Father and Child had an in-person visit at a local library in May 2018. Maternal Grandfather testified that Child appeared apprehensive and did not seem fully comfortable with Father during the visit. Maternal Grandparents both testified that this feeling was exacerbated by the fact that Father was recording the visit. When asked to stop recording, Maternal Grandparents stated that Father became hostile and stated that he had every right to record the visit if he wanted to. Due to the escalating nature of the interaction, Maternal Grandparents decided it was in Child's best interest to end the visit earlier than planned.
For several months after the in-person visit, Father maintained fairly regular phone and video contact with Child, though Maternal Grandfather testified that Father usually called later than the agreed upon scheduled time. Maternal Grandparents expressed several concerns regarding the appropriateness of these phone calls. Maternal Grandmother testified that Father often confuses or distresses Child by making inappropriate comments, such as telling Child that "everything is going to be okay soon" rather than reassuring Child that she is currently okay and safe. During another phone call, Maternal Grandfather testified that Father said Child was eight years' old, despite the fact that she had not yet reached her eighth birthday. When Child corrected him, Father continued to argue with Child and explained to her that she was already eight years old due to the date of her conception not the date of her birth. Maternal Grandparents reported that Child seemed confused and uncomfortable following this conversation and hung up on Father when he attempted to call her back. During the final hearing, Father continued to justify these comments and did not appear to understand why it would be inappropriate to have discussions regarding conception with a seven-year-old. During another phone conversation, Child was not interested in speaking with Father and when Maternal Grandfather tried to explain this to Father, Father stated "If you harm her, I will kill you." While Father denied threatening to kill Maternal Grandfather, he did recall using threatening language during this phone call. Maternal Grandfather stated that Child heard this threat and immediately became upset and frantic and cried when she had to leave Maternal Grandfather's side the following day.
During the most recent phone call in August 2018, Father told Child "I love you, S----- H--------." Maternal Grandparents quickly corrected Father and told them her name is "S----- D----," as Mother had legally changed her name. Father became very upset at hearing this and continued to call Child by the wrong name before ultimately getting into an argument with Maternal Grandparents, who were holding the phone for Child during the conversation. In response, Father decided that it would be best to end all communication with Child until a final hearing in this matter and Father has not responded to any communications from Maternal Grandparents since August 2018.
Father has not attempted to be involved in other aspects of Child's life, including her education, medical care, and extracurricular activities. Maternal Grandparents reported that Child has been doing very well in school and received several awards to honor her achievements, which Father did not know about until the awards were introduced as an exhibit during the hearing. In addition, Maternal Grandparents have attended all of Child's school conferences this year. While Maternal Grandparents could not recall if they made Father aware of each of these events, they did indicate that Father has never asked about Child's progress in school nor expressed an interest in participating. Recently, Child has begun counseling to address some concerning behaviors which only began after Child started having phone contact with Father. While Maternal Grandparents provided Father with the contact information for Child's therapist, they stated that Father has made no effort to speak with Child's therapist or be involved with her ongoing sessions. By way of response, Father stated that it was difficult to be actively involved in Child's life because Maternal Grandparents would not keep him apprised of important updates regarding Child. For example, in late August, Child suffered two small fractures in her arm while doing gymnastics on the monkey bars and Father only learned of this for the first time during this hearing. Maternal Grandparents conceded that they did not make Father aware of this incident but stated that they made sure Child was okay and, in any event, by that time, Father had already cut off all communication with Maternal Grandparents.
Considering the evidence and testimony described above, the Court finds, by a preponderance of the evidence, that Child would be dependent in Father's care due to Father's lack of sufficient income, Father's minimal to complete lack of communication and contact with Child for most of her life, and Father's alarmingly poor judgment with regard to parental decision-making. Father has not been a primary caregiver for Child in over six years and does not appear to have maintained regular or meaningful contact with Child since that time. While Father did have one visit with Child between 2012 and the commencement of these proceedings, at the conclusion of that visit, Father chose to leave Child in the care of an active drug user rather than taking steps to ensure that Child would be safe and cared for after he returned to his residence in Iowa. While this not only demonstrates poor parental judgment on Father's behalf, but the Court was most concerned by the fact that Father attempted to justify this decision even during this hearing. Furthermore, while the Court afforded Father the opportunity to have regular contact with Child in the months leading up to this hearing, Father unilaterally and abruptly decided to end all communication with Child after August 2018, thus leading to even greater setbacks in his attempt to develop a parental relationship and bond with Child. Finally, by his own concession, Father does not currently earn enough income to support both himself and Child. While Father appears confident that "additional income will come" if Child were placed in his care, the Court is less certain and without actual and valid plans to ensure Father is able to financially care for Child on a full-time basis, the Court cannot find that Father has the ability to properly and adequately care for Child at the present time.
Best Interest Factors
Having found that Child would be dependent in Father's care, the Court must next consider whether it would be in Child's best interest for guardianship with Maternal Grandparents to be granted by examining the factors set forth in 13 Del. C. § 722(a). They are as follows:
(1) The wishes of the child's parent or parents as to the child's custody and residential arrangements;
Mother, having consented to guardianship with Maternal Grandparents, is in support of Child being placed in the care and custody of the petitioners at this time. Father requested that guardianship be denied and that Child be placed in his care and reside with him in Cedar Rapids, Iowa. While Father acknowledged that Child has not resided in Iowa since infanthood, Father described Child as "adaptable" and suggested that she would be able to adjust to life in Iowa because there are children elsewhere who "have their entire villages bombed and get over it" so Child should have little difficulty with this transition. Father further stated that he would not impede Child having communications with Maternal Grandparents and is hopeful that Mother will move back to Iowa to be with them once she is released from incarceration. Because of the conflicting views of Mother and Father, this factor will be considered neutral.
(2) The wishes of the child as to her custody and residential arrangements;
While the Court declined to interview Child, the parties were in agreement about some of Child's wishes as to her custody and residential arrangements. All parties agreed that Child is exceptionally close to and bonded with Mother. Maternal Grandfather testified that Child loves Mother "more than anything in the world" and speaks with Mother on the phone for hours when Mother is sober. Father agreed that Child cares about Mother a great deal and believed it would be important to foster this relationship.
Notwithstanding Child's attachment to Mother, Maternal Grandparents and Father do disagree on Child's feelings about relocating to Iowa. Maternal Grandfather testified that Child has repeatedly indicated that she does not want to move to Iowa because she does not want to be separated from Mother. Maternal Grandparents further stated that, on multiple occasions, Child has expressed that she only wants to live with either Mother or Maternal Grandparents. Maternal Grandparents also testified that Child has intense fears about being taken away from either their or Mother's care, which led them to seek mental health counseling for Child. Child is currently engaging in therapy with Dr. Troy Lea and has even informed Dr. Lea that she is scared Father will come and take her away from Maternal Grandparents' home. Child has also made comments such as saying that she would only be scared of unlocked doors if she lived in Iowa because she would be afraid that Father would come and take her. Father testified that he began talking to Child about moving to Iowa in December 2017 and that Child was excited and looking forward to moving, especially after learning that her favorite cereal, Captain Crunch Berries, is manufactured there. Father further stated that he is confident Mother would be willing to move back to Iowa so that Child would not have to be separated from her.
Based on the testimony presented, the Court finds that Child is very bonded to Mother and would prefer to stay as close to her as possible. While Father has suggested that Mother would be willing to relocate to Iowa, there was no credible evidence presented to support this assertion and, for the time being, Mother remains incarcerated in Pennsylvania and it is unclear when she will be released. The Court is further inclined to believe that Child would prefer to stay with Maternal Grandparents if she is unable to live with Mother. Maternal Grandparents, along with Mother, have been Child's primary caretakers for as long as Child can remember. The Court finds it hard to believe that Child would be so willing to move to Iowa, a place she has no recollection of, with Father, a man she has had sparse and uncomfortable communication with, rather than continuing to stay close to Mother in Maternal Grandparents' home, where she is comfortable and accustomed to living. Therefore, the Court finds that this factor weighs in favor of granting guardianship to Maternal Grandparents. (3) The interaction and interrelationship of the child with her parents , grandparents , siblings , person cohabiting in the relationship of husband and wife with a parent of the child , any other residents of the household or a person who may significantly affect the child's best interest;
As previously discussed, Child has an exceptionally close relationship to Mother which all parties agree on. Furthermore, Child has also developed a close bond with Maternal Grandparents due to living so close to them and residing in their home on-and-off throughout her life. Maternal Grandparents were previously awarded guardianship of Child in 2013 and Child remained in their care for over two years after that. Child then returned to Maternal Grandparents' care around March of 2018 when Mother began relapsing with her drug use. However, even when Child resided with Mother, Maternal Grandparents still maintained frequent contact with Child and still visited with Child several times a week.
While Father testified about his close bond and relationship with Child, this was in direct contradiction with not only the testimony of Maternal Grandparents, but also the Court's own observations upon listening to the audio recordings Father presented in Court of conversations between himself and Child. Father testified that Child was "excited" and "loved" when Father visited her in December 2017. Father further claimed that he maintained regular contact with Child between this visit and her moving in with Maternal Grandparents and stated that she was looking forward to living with Father.
Maternal Grandparents, on the other hand, described Child's feelings towards Father as "awkward" and "uncomfortable." Maternal Grandparents testified that Child was not acting like herself in the morning leading up to her first in-person visit with Father in May 2018 but, as soon as the visit was over, she began acting like herself again and seemed visibly relieved. Maternal Grandparents also testified that Child did not enjoy her video calls with Father and refused to even hold the phone when speaking to Father and became more fearful and distressed with each phone call. Maternal Grandparents were also concerned by Child's overall change in behavior after regular phone conversation with Father began. Maternal Grandparents testified that Child began having behavioral outbursts and would scream and cry for hours at a time. She further lost interest in leaving the house and often stayed in her room or at Maternal Grandparents side and slept in their bed at night. As a result of these concerning behaviors, Maternal Grandparents began taking Child to therapy with Dr. Lea to help her better cope with the increased visitation with Father. Maternal Grandmother also described an incident when Child was at her friend's home and her friend's mother received a phone call via Facebook Messenger (the app Father used for his video calls with Child). Maternal Grandmother stated that Child became very worried and started panicking that Father was trying to contact her while she was at her friend's home.
Father played an audio recording of a phone conversation between himself and Child. While listening to the audio recording, it was apparent that Child had little to no interest in speaking with Father. Maternal Grandmother, who was holding the phone for Child, often had to chime in during the conversation in an attempt to get Child to respond to the questions Father was asking. Most of Father's questions went unanswered by Child, who was more engaged by the television playing in the background that the conversation with Father.
Again, the Court is inclined to find the testimony of Maternal Grandparents to be more credible than that of Father's. Child has spent time with Maternal Grandparents for most of her life and has only recently begun to develop a relationship with Father over the past few months. While the Court also understands that the interactions may have been "awkward" or "uncomfortable" for Child at first, Father cut off all communication after just a few short months which likely only reaffirmed many of Child's fears and concerns regarding Father. Therefore, the Court finds that this factor weighs in favor of granting guardianship to Maternal Grandparents. (4) The child's adjustment to her home , school and community;
Child has resided in Maternal Grandparents' home in Delaware since March 2018. Prior to March 2018, Child also resided with Maternal Grandparents from 2012 until March 2015. Child has become accustomed to a daily routine while at Maternal Grandparents' home. Each morning Child usually gets dressed and ready for school on her own and knows when and how to take her daily asthma medicine. On Tuesdays to Thursdays, Child goes to after school care at the YMCA where Maternal Grandfather picks her up after work. Child is also accustomed to the household rules and understands that she may be sent to her room or lose her tablet privileges if her behavior is unacceptable.
Child is in the second grade at ------ Elementary School and has made outstanding educational progress, as evidenced by the numerous awards introduced as Petitioners' Exhibit #1. Maternal Grandparents reported that Child's current progress in school is a remarkable turnaround from her previous performance while in Mother's care. In addition, Child enjoys her math and reading classes and Maternal Grandparents regularly attend any conferences at Child's school and assist her with her homework when needed.
Despite her academic and educational achievements, Father argued that Maternal Grandparents were not doing enough to foster child's intellectual growth and future ambitions. Specifically, Father believed that Maternal Grandparents do not allow Child to reach her full potential and stated that if he had custody of Child, she would be already speaking several languages and playing musical instruments by this age.
Chile has also developed ties to the neighborhood and community surrounding Maternal Grandparents' home. Child has a best friend, Nicholas, who lives down the street. Not only does Child spend a lot of time with Nicholas, but she also goes over to his house every morning to wait for the bus to school. In addition, Child attended various activities and camps during the summer and made several friends there as well.
In addition, Maternal Grandparents testified that they regularly spend time with relatives and family members who live in the area and Child has been able to maintain and develop these relationships by living with Maternal Grandparents. Child has many cousins, aunts, and uncles who live in and near Delaware and Child is able to spend holidays with these family members. In addition, Maternal Grandparents have a very close relationship with their son, his wife, and their children who live just across the border in Maryland. Child often has sleepovers with her cousins and Maternal Grandparents regularly get together with all of their grandchildren. Father testified that his entire family resides in Cedar Rapids, Iowa and he is close to his relatives as well. Because Child has not been in Iowa since she was a baby, Child does not know her paternal relatives and has not had the chance to develop ties with her paternal family due to Father's lack of involvement in her life.
Because Child has lived in Maternal Grandparents' home for the past ten months, and previously resided in this home several years ago, Child is well-adjusted to, and comfortable in, the home of Maternal Grandparents. The same cannot be said for Cedar Rapids, Iowa, where Father resides, because Child has not lived there since she was an infant and knows nothing about what it would be like to live in that state. Furthermore, the only tie and connection Child has to Iowa is through Father whereas Child's entire family, support system, and life are here in Delaware. Therefore, the Court finds that this factor weighs in favor of granting guardianship to Maternal Grandparents.
(5) The mental and physical health of all individuals involved;
Maternal Grandfather is fifty-eight years old and reported that he is in good physical health and feels he is more than capable of keeping up with the high energy levels of an eight-year old. Maternal Grandmother is fifty-four years old and also reported that she is in good physical health. While Maternal Grandmother does suffer from asthma and allergies, she takes medication to manage both of these health concerns and leads a healthy life. Neither grandparent reported having any mental health history.
Child is also in good health but has asthma, for which she takes daily medication. Maternal Grandparents also stated that they do their best to ensure that Child is fed healthy and well-balanced meals, despite Father's concerns that Maternal Grandparents have not done enough research to fully understand the impact that certain foods may have on Child. For example, Father is particularly fascinated by the concept of traveling to Mars and helping to establish a colony there by the year 2030, and referenced this multiple times throughout the hearing. While Father conceded that he would not be eligible for this "one-way ticket" due to his spinal injury, he still maintains hope that Child would be able to travel to Mars if she so desires. Father was, therefore, particularly worried about Child eating foods which would "contaminate her DNA" because she would not be eligible to move to Mars if her DNA is contaminated by unhealthy foods. No evidence was presented from which the Court could conclude that Maternal Grandparents have not been feeding Child appropriately or taking the necessary steps to ensure she remains healthy in their care.
Child engages in regular therapy sessions with Dr. Troy Lea at Mid-Atlantic Behavioral Health. Child began working with Dr. Lea after regular communication with Father began. Dr. Lea has reported that Child demonstrates signs of Adjustment Disorder with Anxiety, and a copy of these mental health records were introduced as Petitioner's Exhibit #3. Child continues to engage in therapy with Dr. Lea to address this diagnosis and Maternal Grandparents support this counseling.
Father suffers from a severe spinal cord injury known as Syringomyelia, which Father has described as "pretty much terminal." Father testified that this condition is the result being assaulted by a drill instructor while in basic training for the Marines in October 2004. Due to his injuries, Father was medically discharged from the Marines in April 2005 and currently receives disability benefits from the military. Father reported that he suffered temporary paralysis following this injury which left him unable to speak for a period of time. To address this condition, Father has undergone a variety of treatments, such as holistic therapies and medications, including opioids. Currently, Father is prescribed Lyrica but stated that he plans to discontinue this medication, even though it successfully manages his pain, because of research he has done on the negative impact of this drug. Father also indicated that, up until six months ago, he was also self-medicating with cannabis. Father believes it is miracle that he is able to walk and live his life and further stated that he has "recovered so much [he] honestly might get put in a study." While Father indicated that his injury continues to cause him pain, he does not believe his condition would prohibit him from caring for Child. Furthermore, Father was ordered to produce documentation regarding his current health condition but failed to do so and, therefore, the Court has no evidence to support any of Father's assertions regarding his rare medical condition, beyond his own testimony.
With regard to Father's mental health, Father stated that he was diagnosed with ADHD as a child and saw a mental health counselor as a result. Father also indicated that he also sought out mental health counseling in 1997 after his uncle passed away and found that the therapy helped him cope with this loss. Four days prior to this hearing, Father claimed to have undergone a mental health evaluation at the Abbe Center in Cedar Rapids, Iowa. Father explained that he sought out this evaluation because he wanted to have medical professional state that he does not have schizophrenia, as Maternal Grandparents have alleged. Despite having had this evaluation, Father did not have any documentation regarding his mental health evaluation or treatment. Furthermore, Father was also previously ordered to produce these documents as well but failed to do so.
While it was uncontroverted that Mother has issues with substance abuse, there were also several allegations made regarding Father's substance abuse as well. Maternal Grandparents both testified that they were concerned Father was using drugs while staying in their home in 2012. When Father moved out, he left many of his belongings behind and while Maternal Grandfather was cleaning out these items, he testified that he found several needles and bags filled with an unknown white substance, which he believed to be illegal drugs. Father denied having a substance abuse issue and spoke during the hearing about his concerns regarding Mother's drug usage. However, Father did admit to self-medicate with cannabis during the pendency of these proceedings.
The Court finds that Maternal Grandparents are both physically and mentally healthy. Child has minor health issues and mental health concerns, which have been appropriately addressed and managed by Maternal Grandparents. Father, by his own testimony, suffers from a rare and potentially life threatening spinal cord injury which causes him significant pain and reduces his energy levels. In addition, the Court had no evidence, aside from Father's testimony, to support Father's claims regarding both his physical and mental health. Furthermore, Father was aware that Maternal Grandparents believed he suffered from schizophrenia but waited until just days before this hearing to obtain a full mental health evaluation. Finally, Father was Court ordered to produce documents relating to his mental health and, thus, Father was well aware that his current mental health status would be both material and relevant to these proceedings but still failed to present any evidence to support his testimony. The Court, therefore, must draw a negative inference from Father's failure to comply with discovery and finds that this factor also weighs in favor of granting the petition for guardianship to Maternal Grandparents.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under Section 701 of this title;
Pursuant to 13 Del. C. § 701, parents are responsible for the support, care, nurture, welfare, and education of their children. Although Father pays $100 each month in child support, Father has no control over this payment as there is an automatic wage attachment to his military disability income. Father does not provide Maternal Grandparents with additional financial support to assist with Child's needs and, instead, Maternal Grandparents assume primary responsibility for paying for Child's food, clothing, and other necessities. Maternal Grandfather is employed as a Parts and Services Director at Exton Nissan in Pennsylvania and earns more than sufficient income to financially provide for Child in this position. As previously mentioned, despite indicating that he was employable as early as May 2018, Father still has not obtained employment and has been unemployed for the last seven years.
Father also has not had any involvement in Child's education or medical treatment, though the Court does find that Maternal Grandparents do not consistently make Father aware of Child's appointments and medical needs. However, the testimony further suggested that Father has not actively sought out this information and even when Maternal Grandparents do make Father aware of updates regarding Child's education and medical care, Father fails to follow-up or participate in any appointments.
Furthermore, Father has had minimal contact with Child over the last seven years of her life. Even when granted video contact several times a week, Father chose to discontinue this contact and cease all communication with Child after just a few short months. Additionally, as previously discussed, the few months of communication between Father and Child did not appear to be appropriate due to various comments and behaviors on Father's behalf. The Court, therefore, finds that Father has failed to provide Child with support, care, nurture, welfare, or education for much of Child's life, while Maternal Grandparents have been meeting all of Child's needs over the past ten months.
Father also has a history of non-compliance with various Court Orders involving both Child and Mother. Father was subject to a Protection From Abuse Order, dated December 12, 2012 which named Mother as a protected victim. Pursuant to this Order, Father was ordered to undergo a domestic violence evaluation within two weeks but Father testified that he never complied with this provision claiming his failure to do so was due to health reasons. Father was, again, ordered to undergo a domestic violence evaluation, as well as a substance abuse and mental health evaluation, in an Order dated May 8, 2013, but Father also failed to abide by these requirements. In the instant case, Father was ordered to produce documentation regarding his present ability to care for child, including medical records, mental health records, records of any substance abuse treatment, and information regarding his employment history and current living arrangements. While these requests were material and relevant to this Court issuing a decision regarding the custody and placement of Child, Father failed to produce any documents whatsoever without valid justification.
In conclusion, as the Court finds that Father has failed to provide Child with support, care, nurture, welfare or education, and has failed to comply with Court Orders involving Mother and Child, and, therefore, the Court finds that this factor weighs in favor of granting guardianship to Maternal Grandparents.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
Pursuant to 13 Del. C. § 706A(a), any evidence of past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the Court in determining the legal custody and residential arrangements in accordance with the best interests of the child.
Maternal Grandparents both denied having any history of domestic violence. As aforementioned, Father had a Protection From Abuse Order entered against him on December 7, 2012 after a full hearing on the merits. In addition to having no contact with Mother, the named victim in the Order, Father was further required to undergo a domestic violence evaluation and follow any recommendations made therein which, as previously stated, Father failed to do. Because Father did not participate in the required domestic violence evaluation he was summoned to Court to Show Cause why he should not be held in contempt for this failure. Petitioner's Exhibit #5. Notwithstanding these provisions, Father was permitted to have supervised visitation with Child at the Family Visitation Center. Because Father has a history of domestic violence involving Mother and has not taken the necessary step to address this history, the Court finds that this factor weighs in favor of granting guardianship to Maternal Grandparents. (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.
Maternal Grandparents both denied having any criminal history and a DELJIS inquiry of their criminal records suggests the same. Although Mother has executed a consent to the guardianship, the Court does find it important to note that, on the date of this hearing, Mother was incarcerated in Pennsylvania on criminal Prostitution charges and had three pending felony charges in Delaware which were transferred to another Court.
Father has a criminal history in both Delaware and Iowa. As to Father's criminal history in Delaware, in 2012, Father was charged with Assault Second Degree, Possession of a Deadly Weapon during the Commission of a Felony, Menacing, Assault Third Degree and two counts of Endangering the Welfare of a Child, with the child being the child subject of this proceeding. The first two charges were rendered nolle prosequi whereas the latter four charges were all dismissed with prejudice. The Court will not, therefore, consider these unproven charges as an obstacle.
Maternal Grandparents presented a copy of Father's criminal history in Iowa as Petitioners' Exhibit #6. In 2006, Father was charged with Assault Causing Bodily Injury, which was dismissed by the Court. In 2007, Father plead guilty to Disorderly Conduct. Also in 2007, Father was found guilty for both Theft- 5th Degree and Assault. Father explained that these charges were only brought because his former girlfriend was angry at him and filed charges against him in retaliation. Nevertheless, Father did concede that he was found guilty for these charges because he did not appear in court on the day of the trial. In 2008, Father was charged with Operating a Motor Vehicle While Intoxicated. While Father conceded that his criminal record indicated that he had been adjudicated "Guilty" by a "negotiated/voluntary plea", Father remained adamant that he never plead guilty and, in fact, passed the field sobriety test even with his spinal injury. Also in 2008, Father was charged with Burglary- First Degree and two counts Trespass. Again, although the criminal record indicates that Father was adjudicated "Guilty" by a "negotiated/voluntary plea" to Trespass and Assault, a lesser included offense of the Burglary charge, Father adamantly denied having plead guilty to these charges. Father further tried to justify this charge by explaining that the victim was his brother who was using drugs at the time. In 2011, Father was charged with Interference with Official Acts but this charge was ultimately dismissed by the Court. In 2013, Father pled guilty to Theft- 5th Degree. Father explained that he was feeling "moody" while shopping one day and observed a "secret shopper" following him in the store. Father then explained that the secret shopper suspected he might steal something so he decided to pretend to be stealing things and, when he was caught, he ultimately had stolen items in his possession. Father's most recent charge was in 2016, Father was charged with Possession of a Controlled Substance (Marijuana) and Possession of Drug Paraphernalia. These charges were deferred and ultimately dismissed through a first offense program.
Because Father has a criminal history of convictions which he repeatedly either tried to justify or refused to accept, the Court finds that this factor also weighs in favor of granting guardianship to Maternal Grandparents.
After a review of all of the best interest factors aforementioned, the Court finds that it would be in Child's best interest for guardianship to be granted to Maternal Grandparents.
CONCLUSION
The Court finds that Child is dependent as to Father and Mother has consented to guardianship and it is in Child's best interest for guardianship with Maternal Grandparents to be GRANTED. Father has had little to no involvement in Child's life over the past several years and even in the months leading up to this hearing decided to end all communication with Child abruptly and without valid justification. Furthermore, the Court has concerns that, not only does Child not have a relationship with Father, but Father also seeks to remove Child from Delaware, the only home she has ever known, and relocate her to Iowa, a foreign place for Child that is several states away from Maternal Grandparents and Mother, who have been the primary caregivers for Child for as long as she can remember. Therefore, the Court finds that it is in the best interest of Child to remain in Maternal Grandparents' care under guardianship.
With regard to visitation between Child and Mother and Father, Maternal Grandparents do not object to Mother having contact with Child upon her release from incarceration, provided that she is not under the influence of illegal drugs during visits with Child. The Court will, therefore, leave it to Maternal Grandparents' discretion to schedule and allow visitation with Mother as they deem appropriate. As to Father, the Court has concerns about the impact of Father's communication on Child, based on the testimony and evidence presented. While Child appeared frightened and uncomfortable by conversations with Father initially, the Court is concerned about how Child might now react, after having several months without any communication from Father whatsoever. To that end, the Court believes it would be in Child's best interests for Child and Father to work with a counselor specializing in reunification of family members. Ideally, this counseling should also work towards the ultimate goal of allowing Child to visit Father in Iowa for holidays and school vacations, but the Court understands that it may take some time for Child to reach this point, given Father's absence for most of her life. ACCORDINGLY, IT IS HEREBY ORDERED, THIS 8th DAY OF FEBRUARY, AS FOLLOWS:
1. Guardianship of Child, S----- D----, born December -, 2010, is hereby granted to Maternal Grandparents, J----- S------ and S----- S------.
2. Visitation between Mother, A----- D----, and Child shall at the discretion of Maternal Grandparents. Maternal Grandparents may request evidence of Mother's ongoing participation in substance abuse and mental health treatment as a condition of this visitation.
3. Father, J---- H--------, shall be permitted to have video or phone contact with Child no less than twice a week, with the times of this contact to be arranged and determined by
Maternal Grandparents and Father. In addition, Child and Father should also engage in reunification counseling to ensure that Father maintains appropriate contact with Child and to help Child address any concerns she may have regarding communication with Father. Within thirty (30) days of this issuance of this Order , Maternal Grandparents shall send to Father a list of three potential counselors who would be willing to allow Father to participate in sessions by either video chat or phone. Within fifteen (15) days of receiving this list , Father shall select one counselor and inform Maternal Grandparents of his selection. Father shall then schedule an appointment for counseling, taking into consideration Maternal Grandparents' and Child's schedules. In the event that Father does not provide his selection to Maternal Grandparents within fifteen days, Maternal Grandparents may select the counselor of their choosing. Any costs associated with these sessions, which are not covered by medical insurance, shall be shared equally between Father and Maternal Grandparents.
4. In the event that Father is in Delaware and would like to have an in-person visit with Child, visitation shall be supervised by Maternal Grandparents, or their designee, until the reunification counselor indicates that another visitation arrangement would be appropriate.
5. Maternal Grandparents shall consistently make Mother and Father aware of any updates or material information regarding Child's education, medical care, and general well-being.
Del. Code Ann. tit. 13, § 2340 provides in relevant part:
(a) The Court shall grant to the guardian of the child such powers, rights and duties which are necessary to protect, manage and care for the child.
(b) The guardian of the child may exercise the same powers, rights and duties respecting the care, maintenance and treatment of the child as a parent would, except that the guardian of the child is not liable to third persons for acts of the child solely by reason of the guardianship relationship.
(c) Except as modified by the order of guardianship and without qualifying the foregoing, a guardian of the person has the following powers and duties:
(1) The guardian is entitled to custody of the child and may establish the child's place of abode within or without this State.
(2) The guardian shall provide the child with:
a. A physically and emotionally healthy and safe living environment daily care; and
b. Education; and
c. All necessary and appropriate medical treatment, including but not limited to medical, dental and psychiatric examinations, treatment and/or surgery.
(3) The guardian shall make decisions regarding:
a. Education;
b. Travel;
c. All necessary and appropriate medical treatment, including but not limited to medical, dental and psychiatric examinations, treatment and/or surgery;
d. The child's right to marry or enlist in the armed forces;
e. Representation of the child in legal actions; and
f. Any other matter that involves the child's welfare and upbringing.
(4) The guardian shall:
--------a. Be responsible for the health, education and welfare of the child;
b. Comply with all terms of any Court order to provide the child's parents with visitation, contact or information.
IT IS SO ORDERED.
/s/ _________
ROBERT BURTON COONIN, JUDGE Date Mailed to Petitioner's Attorney: __________ Date Mailed to Respondents: __________ RBC/jr