Opinion
File No. CN13-02240 Pet. No. 15-33118
04-25-2018
J----- T-----, Petitioner, v. B------ A---- & D----- A----, Respondents.
Petitioner, pro se Respondent B------ A----, pro se Respondent D----- A----, represented by David J. J. Facciolo, Esq.
PETITION TO RESCIND GUARDIANSHIP ORDER Petitioner, pro se
Respondent B------ A----, pro se
Respondent D----- A----, represented by David J. J. Facciolo, Esq. Buckworth, J.
INTRODUCTION
The matter before the Court is a Petition to Rescind Guardianship ("Petition") filed on October 27, 2015 by J----- S. T----- ("Mother"), pro se, against B----- A---- ("Paternal Grandmother"), pro se, and D----- A---- ("Father"), represented by David J.J. Facciolo, Esq., regarding Mother's and Father's minor children: D------- A---- ("D-------"), born January 21, 2008, and X----- A---- ("X-----"), born October 28, 2010 (collectively "the Children"). Paternal Grandmother filed an Answer to Mother's Petition on November 23, 2015 ("Answer"). A trial on the matter was held on March 19, 2018, the Court heard testimony from the parties, and several other witnesses and the Court, reserved its decision.
Pet. to Rescind Guardianship, D.I. 18.
Mother was originally represented by Andrew W. Gonser, Esq., and then Michelle R. Skoranski, Esq.; however, the Court granted Ms. Skoranski's Motion to Withdraw on March 14, 2018. Order, dated March 14, 2018, D.I. 84.
Paternal Grandmother is presently the guardian of the Children.
Originally, Father was represented by Renee D. Duval, Esq.
Id.
Answ. to Pet. to Rescind Guardianship, D.I. 23.
PROCEDURAL HISTORY
A. Events Leading up to Paternal Grandmother's Guardianship and Mother's Petition to Rescind Guardianship.
On March 22, 2013, Paternal Grandmother filed a Petition for Guardianship of a Minor ("Guardianship Petition") against Mother and Father. She sought guardianship of the Children due to concerns regarding abuse and neglect by Mother and Mother's husband, R------ D---- ("Stepfather"). Father consented to the Guardianship, and submitted executed Affidavits of Consents regarding the Children. On the same day, Paternal Grandmother also filed a Motion and Affidavit for Emergency Ex Parte Order ("First Ex Parte Motion"), claiming Mother and Stepfather were on drugs and the Children always were hurt. On March 28, 2013, Paternal Grandmother filed a second Motion and Affidavit for Emergency Ex Parte Order ("Second Ex Parte"), alleging X----- could not sit down because he was hit so hard and D------- had a black eye. Paternal Grandmother also submitted paperwork from the Delaware Division of Family Services ("DFS") and a police report detailing the injury. On April 5, 2013, the Court held a priority hearing and awarded Paternal Grandmother temporary guardianship ("Temporary Guardianship Order") of the Children after Mother failed to appear. Mother was granted visitation rights by mutual agreement only. A hearing was held on June 26, 2013, and despite receiving proper notice, Mother again failed to appear. Since Father was still in agreement , the Court made the Temporary Guardianship Order final ("June 2013 Order").
Pet. for Guardianship of a Minor, D.I. 1.
See Id. Paternal Grandmother did not specify this until later. In the Guardianship Petition, she only pled that the Children were dependent and/or neglected, and she claimed to have a letter from the hospital and DFS.
At the time, Stepfather was still Mother's boyfriend.
Affs. of Consents, D.I. 3-4.
Mot. and Aff. for Emergency Ex Parte Order, D.I. 5. The Court denied the First Ex Parte Motion, noting Paternal Grandmother could file a Protection From Abuse Petition if the alleged abuse could be proven. Order, D.I. 6.
Mot. and Aff. for Emergency Ex Parte Order, D.I. 7.
Id.
Civ. Disposition, dated April 8, 2013, D.I. 9. A Temporary Order was issued because service was not successful on Mother thus the Court referred the matter back to Civil Case Processing for normal scheduling purposes. Additionally, Father remained in agreement with the guardianship, and DFS found Paternal Grandmother to be appropriate.
Id.
Mother also filed an Answer in between the April 5 and June 26 hearings. Answ. to Pet. for Guardianship, D.I. 13.
Civil Disposition, dated June 27, 2013, D.I. 13.
Id.
On October 27, 2015, Mother filed her Petition. Mother disputes Paternal Grandmother's claims regarding dependency and neglect and contests the guardianship since she did not voluntarily consent to it. According to Mother, Father has a history of domestic violence and neglect towards the Children, which is justification for removing the Children from Paternal Grandmother's residence. Mother also asserts rescission is necessary to adequately provide for the emotional, social, moral, material, and educational needs of the Children. Last, Mother believes she is the most suitable custodian of the Children based on her character, temperament, and stability. On November 23, 2015, Paternal Grandmother filed her Answer and provided various documents to support the allegations that the Children were physically, emotionally, and sexually abused in Mother's care. Paternal Grandmother also argues the Children's needs are met with her and denies Mother's allegations regarding Father's domestic violence. On June 14, 2016, Mother moved for Temporary Visitation ("Motion for Temporary Visitation"), claiming she felt Paternal Grandmother was withholding the Children from her, despite the Court previously ordering visitation by mutual consent of the parties. Paternal Grandmother filed an Answer to Mother's Motion for Temporary Visitation, denying the allegations made by Mother.
Pet. to Rescind Guardianship, D.I. 18.
Id.
Id.
Id.
Id.
See Answ. to Pet. to Rescind Guardianship, D.I. 23. A letter from DFS, dated April 30, 2013, detailed the allegations of abuse. DFS noted the case was unsubstantiated with concerns due to possible physical abuse resulting in an unexplained injury. Paternal Grandmother also submitted a letter regarding X-----'s counseling at ------------ ---------- ------, ---.
In support of this, Paternal Grandmother submitted DFS letters addressed to her and Father, dated November 4, 2015, indicating there is no evidence of abuse by either.
Mot. for Temp. Visitation, D.I. 27.
Id.
Answ. to Mot. for Temporary Visitation, D.I. 28. Mother also provided examples of when Mother had the Children, as well as occasions where the Children saw their infant brother.
B. Father's Motion and Affidavit for Emergency Ex Parte Order, Additional Allegations of Abuse, and the Events Prior to the Interim Stipulation.
On August 19, 2016, before the Court could have an opportunity to hear from the parties on Mother's Petition or Motion for Temporary Visitation, Father filed a Motion and Affidavit for Emergency Ex Parte Order ("Father's Ex Parte Motion"). Father alleged the Children disclosed, to Paternal Grandmother, Stepfather had abused them physically, mentally, and sexually. Paternal Grandmother then reported the disclosures to the Children's therapist time K------ F-------- ("Ms. F--------"), LCSW, who notified DFS. The Children's Advocacy Center ("CAC") interviewed; however, DFS felt the disclosures warranted no ban on Mother's visitation. Following the investigation, Father's counsel contacted Ms. F-------- to discuss preparation for the hearing and Mother's investigation. Ms. F-------- was apparently disturbed by resuming visitation due to additional troubling comments the Children made to her. Besides the stories about the weights and feces, D------- told her Stepfather touched her in her crotch area with his crotch area, made her drink out of the toilet, and picked her up by her feet and gave her a black eye. X----- told her Stepfather allegedly said he would shoot "daddy" about twenty (20) times. Based on the abovementioned allegations, the Court terminated Mother's visitation until further notice. The Court held a hearing on Father's Ex Parte Motion on August 25, 2016. Paternal Grandmother, Ms. F--------, Detective ------- L--- ("Detective L---"), of the New Castle County Police Department ("NCCPD"), and DFS worker V------- C----- ("Ms. C-----") all provided testimony regarding the allegations the Children made. Though DFS and NCCPD could not make a finding of abuse because they lacked adequate evidence, the Court found Ms. F--------'s opinion that Mother should not receive visitation compelling. The Court terminated Mother's visitation until such time that Ms. F-------- recommended it, pending a sixty (60) day review to allow Ms. F-------- more time to work with the Children.
Mot. And Aff. for Emergency Ex Parte Order, D.I. 32.
Id.
Id. at ¶ 4.
Id. at ¶ 6. The Children only disclosed Stepfather made them stand in the corner with a twenty (20) pound weights as punishment and forces them to clean up feces with their hands.
Id. at ¶ 7.
According to Father, this was still going on following the DFS investigation.
Id. at ¶ 8(b).
Id. at ¶ 8(d). The Child allegedly overheard Mother telling Stepfather if he did this again she would not be able to see the Children.
Id. at ¶ 8(e).
Id. at ¶ 9(d).
Order, dated August 19, 2016, D.I. 33.
Pet. to Rescind Guardianship Order, dated August 25, 2016, D.I. 36-37.
Id. Detective L--- and Ms. C----- both testified there were allegations that Stepfather made D------- perform oral sex on him and X-----, in addition to the allegations contained in Father's Ex Parte Motion. According to both, the information could not be verified since the Children did not disclose it to CAC.
Id. "Unlike the criminal justice system which requires beyond a reasonable doubt to convict, this Court has to make a decision in the best interest of the Children based on the preponderance of the evidence standard."
Id.
On November 4, shortly before a hearing could take place, Father's counsel moved for Rescheduling since Father's prior attorney had joined Mother's counsel's firm. The Court granted the Motion for Rescheduling and scheduled the review hearing for February 2, 2017. On November 17, 2016, Mother filed a Motion and Affidavit for Interim Visitation ("November 2016 Motion for Interim Visitation"), requesting interim visitation with the Children. According to Mother, she could not obtain substantial information regarding the Children's well-being, and she also requested an update on their progress in therapy. The Court denied the November 2016 Motion for Interim Visitation after Father filed a Response indicating Mother had been allowed to speak to the Children via telephone and the Children's therapist still had not recommend visitation.
Mot. for Rescheduling, D.I. 41. The review hearing was scheduled for November 17, 2016.
Order, dated November 9, 2016, D.I. 42.
Mot. and Aff. For Interim Relief, D.I. 44. Mother argued it had been more than two (2) months since the August 25, 2016 hearing, and five (5) months would pass if the Court decided to wait until February 2, 2017, to reinstate Mother's visitation. Id. at ¶ 6.
Id. at ¶ 7.
Id. at ¶ 8.
Order, dated November 30, 2016, D.I. 47.
Resp. to Motion and Aff. for Interim Visitation at Id. at ¶ 6, D.I. 46. Father claimed Mother attempted to sway the Children inappropriately on at least one occasion.
Id. Father's counsel indicated he would contact Mother's counsel upon the therapist recommending reinstatement of Mother's visitation.
On December 2, 2016, Mother filed a Motion to Reopen regarding the November 2016 Motion for Interim Visitation, after receiving an overview of the investigation by DFS liaison M----- F------ ("Ms. F------"). Ms. F------ indicated that the case was "closed unsubstantiated with concerns." Specifically, DFS was concerned that the matter was a custody dispute and Paternal Grandmother coached the Children. DFS also recommended the Children see a different counselor since Ms. F-------- also treated Paternal Grandmother. . On December 22, 2016, the Court Granted Mother's Motion to Reopen after Father and Paternal Grandmother failed to respond. On January 5, 2017, the Court entered a new Order, based on Father's Answer Nunc Pro Tunc, in which Father indicated neither him nor Paternal Grandmother opposed the Mother's Motion to Reopen; however, they requested that Mother's visitation be without Stepfather, at the Visitation Center. Father also clarified the Children started with a new counselor, J----- K------ ("Ms. K------"), and he requested the Court order the Children continue sessions with her on an interim basis after Mother agreed to the request.
Mot. to Reopen, D.I. 48.
Id. at ¶ 3.
Id. at ¶¶ 4(a)-(b).
Id. at ¶ 4(c).
Order, dated December 22, 2016, D.I. 49.
Order, dated January 5, 2017, D.I. 52.
Answ. Nunc Pro Tunc, D.I. 51. Father's counsel filed this to clarify the record.
Id. at ¶ 2.
Id. at ¶ 2(i). The Court instead ordered that "[v]isitation shall occur with Mother and without Stepfather and may occur at the Visitation Center by agreement of the parties. Order, D.I. 52 (Emphasis added).
Id. at ¶ 2(ii). Mother's invitation to participate in counseling had been extended with the Children's new therapist.
Id.
C. The Interim Stipulation and Mother's Request for Interim Relief.
On June 2, 2017, the parties signed an Interim Stipulation, whereby Mother was to visit with the Children for five (5) to six (6) hours every Saturday, and an additional weeknight dinner visit with the Children for up to three (3) hours. Mother also was to visit with the Children for one (1) Sunday per month for at least two (2) hours. If Mother requested, visits were to be supervised by Maternal Grandmother, and if Maternal Grandmother was unavailable, exchanges were to be monitored by Paternal Grandmother. Mother's visitation was to increase upon the recommendation of Ms. K------. The parties also agreed to several provisions regarding counseling, including to engage in co-parenting counseling, family counseling, and Stepfather's counseling. Finally, a status hearing regarding Mother's Petition was to be held on August 15, 2017.
Interim Stipulation, D.I. 64.
Id. at ¶ 1. On weeks when Mother did not have family counseling, she was to have the Children for two (2) weeknight dinner visits.
Id.
Id.
Id. at ¶ 2.
See Id. at ¶ 3.
Id. at ¶ 4. Mother, Father, and Paternal Grandmother agreed to engage in co-parenting counseling, and the co-parent counselor had discretion to bring other adults to sessions, including Father's wife and Stepfather. If ------ ------ -------- could not provide co-parent counseling, Father was to choose three (3) counselors, and Mother was to choose one (1) within one (1) week of being provided the names.
Id. at ¶ 3. Efforts were to be made to have Mother engage in family counseling with the Children once a week at ------ ------ --------.
Stepfather was to authorize his counselor at ---------- --------- to communicate with Ms. K------ on an ongoing basis to determine his engagement in family counseling and any outside visitation with the Children. Ms. K------ was to have full discretion to determine this and Father was to have no contact with the Children until permitted.
On November 11, 2017, Mother moved for Interim Relief ("November 2017 Motion for Interim Relief") requesting the Court to replace Ms. K------ with Stepfather's counselor, Dr. K---- L----- ("Dr. L-----"). According to Mother, she attended family counseling sessions with Ms. K------ and the Children in May 2017. After a few sessions, Stepfather was invited to attend with Mother. Stepfather admitted to becoming emotional during the second (2nd) visit after Paternal Grandmother spoke negatively to him in the waiting room. Following this incident, Ms. K------ lessened Stepfather's involvement. Dr. L----- provided Stepfather with weekly psychotherapy treatment, and he eventually could meet with the Children twice. Mother alleged that Ms. K------ refused to allow Stepfather to attend family counseling, despite Dr. L---- -' recommendation he be incorporated into family counseling. Ms. K------ also informed Mother's counsel she no longer wanted Mother to attend counseling sessions since she does not believe the allegations against Stepfather. Based on this information, Mother and Dr. L----- concluded that Ms. K------ had no intention of ever incorporating Stepfather into family counseling. Mother argued that without Court intervention, progress would continue to be stalled and may regress. Mother also submitted Dr. L-----' summary of his treatment with Father, and his interactions with the Children and Ms. K------. In Dr. L-----' opinion, Ms. K------ acted unethically because of her prejudices against Stepfather.
Mot. for Interim Relief, D.I. 72.
Id. at ¶ 5.
Id.
Id.
See Id.
Id. at ¶¶ 7-8.
See Id. at ¶ 9. Mother contended Ms. K------ refused to incorporate Stepfather into family counseling with the Children without reason.
Id. at ¶ 11.
Id. at ¶ 14. Mother believed this halted all progress in the case.
Id. at ¶ 17.
Id. at Ex. A.
Id. at ¶ 15.
On November 27, 2017, Father submitted a Response to Mother's Motion for Interim Relief ("Response"), requesting Ms. K------ remain as the Children's therapist until the hearing on Mother's Petition. According to Father, the Children were frightened and intimidated by Stepfather's outburst during the second (2nd) visit, and they told Ms. K------ they wanted to hide in the bathroom. During the outburst, Mother allegedly sat and said nothing. The Children also repeated allegations against Stepfather and D------- disclosed sexual abuse to Ms. K------. Regarding meeting with Dr. L-----, the Children explained to Ms. K------ that Dr. L----- did not discuss the allegations against Stepfather, and instead passed on a message from Mother to help Stepfather and Father be friends. Ms. K------ stopped including Stepfather because the Children did not feel safe with him. And the Children have indicated they do not think Mother believes them and feel she would not protect them from future abuse by Stepfather.
Resp't Resp. to Pet'r Mot. for Interim Relief, D.I. 73.
Id. at ¶ 5.
Id.
Id.
Id. at ¶ 8.
See Id. at ¶ 9.
Id. at ¶ 11.
On November 30, 2017, the Court denied Mother's Motion for Interim Relief. The matter proceeded to trial, which was held on March 19, 2018. The parties were present and provided testimony. In addition, the Court heard testimony from Stepfather, Ms. K------, Dr. L-----, Ms. C-----, DFS worker R------- W------ ("Ms. W------"), and Mother and Father's co-parent counselor, R--- B-----, LSCW ("Ms. B-----").
Order, dated November 30, 2017, D.I. 75.
FACTS
Paternal Grandmother has been the Children's guardian since June 2013. She first filed due to concerns of abuse and neglect by Mother and Stepfather. Father was unemployed and residing with Paternal Grandmother, so he felt it was best to consent to the guardianship. Father testified he still supports the guardianship, though it appears he has improved his life. In 2015, Mother filed her Petition, arguing, in part, that she did not consent to the guardianship, the Children were not dependent and neglected, and that she is the most suitable custodian, based on her character, temperament, and stability.
Father further testified he believes he can provide adequate care outside of Paternal Grandmother's residence and he will likely seek custody of the Children soon.
Shortly after, the Children disclosed incidents of Stepfather's abuse and Mother's inability to protect them from Stepfather. The Children told Paternal Grandmother troubling accounts of physical, sexual, and mental abuse. According to Mother, the allegations were raised around the time she filed her Petition, and she testified visitation with the Children had been going well. Since, Mother's visitation has either been terminated, supervised, or limited to only her and not Stepfather. Mother denied any allegations of abuse, either physical or sexual by Stepfather, describing them as absurd, and she asserted there were never any findings of abuse from DFS. She believes the Children have been coached and cited inconsistencies in the Children's stories as the reason for her belief. Stepfather agreed with Mother, adding he cannot believe Paternal Grandmother and Father would make up "lies." Stepfather also alleged Father told Mother he would stop these things if she would leave Stepfather. Mother testified that the Children are suffering, and have been negatively affected by this case. She also feels she is fit to properly parent, and argued she has attempted to be the best mother she can be.
This was reported first to the Children's first therapist, Ms. F---------, and then DFS.
Mother also testified Stepfather had undergone evaluations for abuse.
On Direct Examination, Father denied making these statements to Mother or Stepfather.
Conversely, Father contends Mother cannot adequately protect the Children from Stepfather. Father and Paternal Grandmother also raised concerns that Stepfather is attending visitation, and Father recalled an incident when D------- became alarmed after Stepfather yelled at her on the telephone. Paternal Grandmother believes her role as guardian is to be caring, understanding, and compassionate, and she testified that she has never elicited conversations with the Children. According to Paternal Grandmother, the Children express fear of Stepfather regularly. As for the frequency of visitation, Paternal Grandmother testified Father has the Children overnight two (2) to three (3) nights per week, while visitation with Mother has been hard. Paternal Grandmother testified she is willing to work with Mother when regarding the visitation schedule, but she always is waiting for Mother to pick the Children up. Paternal Grandmother also claimed Mother has not communicated with the Children via telephone or Skype since September.
He argued this is the "biggest obstacle" moving forward.
According to them, Stepfather has allegedly attended exchanges at Shoprite and has attended family events at Maternal Grandmothers while Mother has the Children.
The Court heard from DFS workers Ms. W------ and Ms. C-----. Ms. W------ has supervised DFS investigators for the State for ten (10) years. She testified that when DFS investigated the abuse allegations in 2016, they could not be substantiated. Ms. W------ proffered DFS found there were no hazards in Mother's home and believed that Mother's, Paternal Grandmother's, and Father's residences to be appropriate for the Children. At the time, DFS recommended the families come together and work things out, identifying the dispute as a custody matter. DFS also raised concerns the Children were being coached and manipulated. Ms. C----- has been a DFS investigator for three (3) years and investigated the allegations of abuse. Ms. C----- testified Mother and Stepfather were very cooperative and agreed with the safety plan that temporarily terminated Mother's visitation. Following the CAC interview, DFS found no signs of abuse, and neither DFS' case nor the criminal case against Father produced findings or criminal charges. Ms. C----- also agreed with Ms. W------'s observation that Mother provided adequate care; however, both noted their observations and opinions were based on the 2016 investigation. According to Ms. W------, if she heard from a mental health expert that the Children fear Stepfather, it would make her think otherwise regarding her opinion. When asked how the Children expressing fear of Stepfather would affect the case, Ms. C----- testified it would concern DFS and would affect whether the family could provide a safe environment.
These observations were from 2016, rather than present time.
The Court also heard from several mental health experts who have provided care to the Children and the parties. Ms. K------, of Jewish Family Services, has been a child therapist for over forty (40) years and has a Masters in mental health counseling. Ms. K------ has been the Children's therapist since September 2016, after Ms. F-------- recommended she take the case. In the Interim Stipulation, the parties agreed that Ms. K------ would continue seeing the Children, and efforts would be made to have Mother engage in counseling with the Children. The parties agreed that Father's counselor, Dr. L-----, would communicate with Ms. K------ on an ongoing basis to determine Stepfather's visitation and engagement in counseling. Ms. K------ testified, when she first invited Mother and Stepfather to sessions, the purpose was to see how the Children felt about them in their lives and to observe how they all interacted. Regarding the first session Stepfather was at, Ms. K------ testified the Children showed no concerns with his presence; however, they later told Ms. K------ they feel comfortable around Stepfather when Mother also is present. Ms. K------ testified during the second session with Stepfather, he asked questions regarding the situation, and the Children seemed uncomfortable. Ms. K------ was concerned not only with Stepfather's behavior, but also Mother's lack of attempt to intercede. One issue for Ms. K------ is Mother's ability to protect the Children from Stepfather. Ms. K------ also testified she often discusses where the Children feel most comfortable living. On several occasions, the Children have stated they do not want to live with Mother while Stepfather is there, and they described going to Mother's residence as torture. Ms. K------ testified that overall, the Children enjoy Mother, they just are concerned with her ability to protect them from Stepfather. Ms. K------ is also concerned with the Children's psychological health. The Children feel like Mother does not believe them regarding Stepfather's alleged abuse and they are afraid they will get in trouble if they tell her. As for her recommendations regarding therapy, Ms. K------ testified X----- is comfortable with Mother attending sessions; however, D------- is no closer to opening up to Mother. For the time being, Ms. K------ believes counseling is still needed to get the Children to a place where they can open up; however, it is best if Mother is not present. Ms. K------' goal is to bring Mother back in when they are ready to open up, and she encourages Mother to believe them and listen, as opposed to quickly writing the allegations off. Ms. K------ was asked to discuss whether she believes the Children are coached or fabricating stories. She explained when a Child is being coached to lie, she can tell by observing their body language, demeanor, and actions. As for inconsistencies, Ms. K------ testified she looks for significant changes in their stories; however, she has no reason to believe the Children are being coached or telling lies. Finally, on her professional opinion, she believes the Children are safe with Paternal Grandmother, and psychological harm would occur if the Children were placed with Mother since they do not feel Mother can protect them and they cannot tell Mother about the abuse.
These efforts by Ms. K------ has been questioned by Mother and Dr. L-----.
Stepfather's therapist, Dr. L----- also testified, and he took a much different view on the case. Dr. L----- is a clinical psychologist and provides outpatient psychotherapy to children's families, and adults. He has been in the field for thirty (30) to thirty-five (35) years, and has worked with DFS in past abuse cases. He also has had patients who are abusers and victims. According to Dr. L-----, there are no concerns regarding Stepfather, adding Stepfather has displayed no traits associated with being a pedophile. Dr. L----- testified Stepfather misses the Children and the Children are happy when they see Stepfather. Dr. L----- reasoned this reaction is unusual for someone who engages with their alleged abuser. Dr. L----- had an opportunity to meet with the Children on two (2) occasions; however, he testified the purpose of the meetings was only to meet them, not to treat them and their visits involved none of the parties. Dr. L----- also has no concerns about Mother's ability to protect the Children, and testified they call her "momma bear." During his testimony, Dr. L----- appeared frustrated and angry over the matter, as he believes the families should work this out because animosity observed by children makes them scared and insecure. He said "they need to frickin' cut it out," when referencing the animosity Paternal Grandmother and Father show towards Mother and Stepfather, and vice-versa.
Conversely, Ms. K------ testified that it is not unusual for a Child to like their abusers.
Finally, the Court heard from Ms. B-----, with a Masters in social work and is a counselor at ------- ---- --------- ----------. She provides counseling services in many areas, including marriage, children, and families. Mother and Father saw Ms. B----- for co-parenting counseling in August 2017. According to Ms. B-----, Father was more involved in their counseling sessions and was clear on what his goals were. Ms. B----- added that it was not as if Mother did not wish to participate, but she had concerns regarding Mother's ability to follow through with co-parenting efforts. Mother and Father attended sessions together from September 2016 until November 2017, and in December Ms. B----- offered more appointments; however, the parties did not contact her. After the holidays, Father reached out and sought help with his anger, but Mother failed to communicate with Ms. B----- or Father regarding co-parenting until the end of February. Ms. B----- testified the next date for counseling was scheduled for March 27, 2018, but Mother had yet to confirm she would attend at the time of the trial. There was also testimony heard by the parties regarding an incident involving Father and Stepfather, where Father and Stepfather fought in the parking lot of Ms. B-----'s office. The altercation started in the waiting room, and Father claimed he was the victim. Ms. B----- testified at the parties' first appointment, the parties were waiting and there was apparently tension between the Father and Stepfather. Ms. B----- recalled the altercation carried on in the parking lot and Father was the victim.
Ms. B----- was also concerned, especially regarding an incident where Mother allowed the Children to go into a store by themselves to buy something. Ms. B----- told Mother this was inappropriate for Children of that age and X----- wound up stealing an item.
A police report was filed; however charges against Stepfather were dropped. Mother played a recording which indicates Father told Stepfather to "meet him in the parking lot," but it is hard to decipher who says what on the recording, and it appears Mother and Stepfather intended to record the incident before stepping into the waiting room.
DISCUSSION
A. Rescission of Guardianship
On June 10, 2014, the Delaware General Assembly codified the legal standard required to rescind guardianship of a child. 13 Del. C. § 2332(c) provides that:
Except as otherwise specified in this chapter, an order of guardianship may be rescinded upon a judicial determination that petitioner has made a preliminary showing the guardianship is no longer necessary for the reason(s) it was established, unless:
a. The Court finds that the guardian has established, by a preponderance of the evidence, that the child will be dependent, neglected, and/or abused in the care of the parent or parents seeking rescission; or
b. The Court finds that the guardian has established, by clear and convincing evidence, that the child will suffer physical or emotional harm if the guardianship is terminated.
In order to rescind the guardianship, Mother must make a preliminary showing that the guardianship is no longer for the reasons it was established. The Court concludes that Mother has not showed that the reasons for establishing the guardianship do not exist today. Even had Mother met her burden, Paternal Grandmother and Father have established, by a preponderance of the evidence, that the Children would be dependent, neglected and/or abused in Mother's care, and they have proved, by clear and convincing evidence, that the Children would suffer emotional harm if the guardianship is terminated. Therefore, the standard required to rescind the guardianship has not been met.
The reason for the guardianship was to protect the Children from Stepfather's alleged abuse and Mother's neglect While DFS workers Ms. W------ and Ms. C----- testified the 2016 disclosures were unsubstantiated, that DFS believed Mother's residence was appropriate, and DFS felt the Children were coached, these opinions were based on the 2016 investigation. Ms. W------ and Ms. C----- added if a mental health professional told them the Children feared Stepfather, their opinions could change.
The Court heard from two mental health professionals who offered their opinions on how the matter should proceed, Ms. K------ and Dr. L-----. When a case goes to trial, one role of the trial court is to assess witness credibility. Ms. K------ was far more persuasive than Dr. L-----, who appeared bias. Ms. K------ has been working with the Children since September 2016, while Dr. L----- testified his role since the Interim Stipulation has been to work with Stepfather, not the Children. He also testified he has no firsthand knowledge of the Children's fear of Stepfather, due to his limited work with the Children. In contrast, Ms. K------ appears to have made substantial positive strides with the Children; however, she has concerns regarding Mother's refusal to believe and listen to the Children regarding Stepfather's alleged abuse. She is also concerned about Mother's ability to protect the Children. The Court finds Ms. K------ testimony regarding whether the Children are being coached to be compelling. Dr. L-----' testimony was not persuasive, as he appeared to be agitated and only was concerned with Mother and Stepfather's best interest.
The Court agrees with Ms. K------' observations, especially after Mother testified she does not think the Children's allegations are likely due to them not being able to lift a twenty (20) point weight or the impossibility of Father giving D------- a black eye while holding her upside down.
Mother testified she has always been willing to do what is best for the Children. The Court commends Mother for fighting to have her Children back. Mother not believing the Children is not a valid reason to continue guardianship; however, choosing not to listen to them and failing to communicate that she understands their fear is not in the Children's best interest. The Children fear Stepfather, and until they can make progress in therapy, the Court agrees Ms. K------' opinion and plan is in the Children's best interest. The fact that the Children believe going to Mother's is torture, further adds to the notion that Mother is not fit to have the guardianship rescinded. Dr. L----- is right that eventually, the parties must work things out and do what is in the best interest of the Children. While it is not ordering the parties to remain in co-parent counseling, the Court believes continuing with Ms. B----- and working through their issues would be in the Children's best interest.
Had Mother met her burden of showing the guardianship is no longer for the reasons it was established, the Court would have denied her Petition. First, the Court finds Paternal Grandmother and Father established, by a preponderance of the evidence that the Children would be abused and neglected at Mother's, due to the allegations of abuse, Mother's inability to protect the Children, and based on Ms. K------' opinion that psychological harm would occur if the Children were to go back with Mother. Last, for the same reasons, the Court believes Paternal Grandmother established, by clear and convincing evidence, the Children will suffer physical or emotional harm if the guardianship is terminated.
B. Modification of a Guardianship Order
Under Del. C. § 2332(b), an order of guardianship may be modified regarding contact visitation, or sharing of information at any time if it is in the best interests of the Child, under Del. C. §722. Given that the Interim Stipulation provided for Mother's visitation, the Court must do a best interests analysis to determine whether modification of the June 2013 Order is appropriate.
Del. C. §
BEST INTEREST ANALYSIS
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father believes Paternal Grandmother's guardianship is in the Children's best interest since Mother cannot protect the Children from Stepfather. As discussed in previous sections, Mother wishes to rescind guardianship; however, she failed to show the guardianship is no longer for the reasons it was established. The only position Father and Paternal Grandmother appear to take on visitation, is the Children cannot stay at Mother's residence, and Stepfather cannot be present for visitation due to the safety concerns.
While the Court will not grant Mother's wishes, it is in the Children's interest to continuing visiting with Mother. Therefore, this factor supports maintaining the visitations terms from the Interim Stipulation.
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
The Court did not interview the Children due to their young ages and will reach a decision in the best interest of the child without consideration of this factor. Ms. K------, Father and Paternal Grandmother each testified the Children think Mother does not believe their allegations and do not feel Mother will protect them from Stepfather. Ms. K------ testified the Children described Mother's residence as torture, and they prefer to reside with Paternal Grandmother and Father.
The Children love Mother and have a positive relationship with her, but they are scared to be with Stepfather. Therefore, this factor supports maintaining the visitations terms from the Interim Stipulation. (3) The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabiting in the relationship of husband and wife with a parent of the child , any other residents of the household or persons who may significantly affect the child's best interests;
The Children appear to have positive relationships with everyone in their lives, except for Stepfather due to the alleged abuse. At Paternal Grandmother's the Children reside with their paternal aunts, N------ A---- ("N------"), D------ A---- ("D------"), L------ F------ ("L------"), and paternal cousin, C-------- B---- ("Christian"). Paternal Grandmother testified they all get along well and coming to her house is like ("Toys R' Us"). Father also lives five (5) minutes from Paternal Grandmother, and when he is not working, he gets the Children ready for school. The Children also stay with Father overnight two (2) to three (3) nights per week. Father resides with his Wife, D------- A---- ("Stepmother"), Father's younger son, and Father's step-daughter. Father testified Stepmother does everything she can for the Children and helps them with their homework. While with Father, the Children and he do fun activities, like play games, bowl, and go to skyzone.
The Children also have a very positive relationship with Mother, and Ms. K------ testified the Children enjoy their visits with Mother. Mother resides with Stepfather, and the Children's two (2) younger siblings, G-------- and B---. The Children appear to have a negative relationship with Stepfather, due to the abuse allegations and their relationship is central to the case. Mother, Stepfather, and Dr. L----- all testified the Children have a good relationship with Stepfather, and Stepfather misses them, but Ms. K------ testified that the Children are scared to be with Stepfather. As for Mother's extended family, it appears like the Children are close with Maternal Grandmother, and will often visit her in New York. Paternal Grandmother testified there is no ill-will between her and Maternal Grandmother, and the Children were originally going to go with Maternal Grandmother, but not for the fact she lives far away.
Due to their relationship with Mother and Mother's family, except for Stepfather, this factor supports maintaining the visitations terms from the Interim Stipulation. (4) The child's adjustment to his or her home , school and community;
The Children appear to have adjusted well to Paternal Grandmother's residence. They have been in her care for nearly five (5) years, and Father is now more involved and resides close to Paternal Grandmother's home. The Children also visit Father overnight two (2) to three (3) nights per week.
As for school, according the Father, the Children are "exceeding expectations." Father appears to be very involved in the Children's schooling and is in contact with their teachers regarding their performances. Father testified X----- must slow down his pace and finish his writing, and D------- has an Individual Education Plan ("IEP"), which Father and Paternal Grandmother actively monitor. Paternal Grandmother testified Mother does not inquire about Danyelle's IEP and has never been concerned with the possibility of D------- repeating grades.
As for activities, Father testified the Children are very active. D------- loves girl scouts, and X----- loves basketball and wrestling.
The Court finds it is in the Children's best interest to stay with Paternal Grandmother and Father. They appear to do well in school and activities. Aside from the concerns regarding Stepfather and Mother's ability to protect them, the Children will likely suffer more psychological harm if they must switch schools because of residing with Mother. These concerns do not affect whether Mother should maintain her visitation.
(5) The mental and physical health of all individuals involved;
Aside from the mental health concerns, the Children's health appears to be great. Father tries to take them to doctor appointments, but if he cannot due to work, Paternal Grandmother does. Father also testified he recently took the Children to the dentist and they have no cavities. According to Paternal Grandmother, the Mother does not ask about the Children's medical appointments.
As for the parties, Stepfather, and Stepmother, the Court heard no testimony regarding mental or physical health concerns that would prevent them from caring or visiting with the Children. Therefore, this factor is neutral as to best interest.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
As provided in 13 Del C. § 701(b), this section is not relevant when a guardian has been appointed.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
Since the Court already address the allegations of abuse by Stepfather, it will not discuss them now. Mother alleged abuse by Father, and testified when she was in a relationship with him she was forced to go to domestic violence shelters to protect the Children. Father and Paternal Grandmother have denied these allegations, and Father testified he nor has Paternal Grandmother never physically disciplined the Children. Ms. B----- testified Father contacted her again to work on his anger because he did not want it to be a problem in raising the Children.
Stepfather's alleged abuse and Mother's inability to protect the Children determined whether to rescind guardianship. As for visitation and whether it is in the Children's best interest, this factor supports not providing Mother with visitation while Stepfather is present. Father is trying to improve his anger, and the Court has no concerns with his visitation or how past domestic violence affects Paternal Grandmother's guardianship. (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.
Father has only convictions for non-DUI traffic offenses. Mother also has non-DUI traffic offenses, though one (1) is for Failure to have a Child Restraint. Paternal Grandmother has no criminal history. Stepfather has only criminal convictions for Loitering and non-DUI traffic offenses. Stepmother has no criminal convictions, though a charge of Assault, Second Degree is pending. Finally, N------ and L------ have only convictions for non-dui traffic offenses.
Father does have PFA and assault history, but no convictions for assault-related offenses.
The Court notes the harassment charges stemming from the incident outside of Ms. B-----'s office was dismissed.
CONCLUSION
The Court finds it is not in the Children's best interest to have the guardianship rescinded at this time, due to the psychological harm it may have on the Children. The Court considered Mother's constitutional rights; however, her inability to show the guardianship is no longer for the reason it was established is why the Court denies Mother's Petition. Despite this decision, the Court, after balancing the best interest factors under Del. C. § 722, finds it is in the Children's best interest to maintain a relationship with Mother. The Court modifies the June 2013 Guardianship Order to include the visitation terms of the Interim Stipulation. Paternal Grandmother's guardianship of the Children shall continue, and Mother's visitation may be increased by the recommendation of Ms. K------, or upon mutual agreement of the parties. Therefore, the Court orders:
1. Mother's Petition is DENIED.
a. Paternal Grandmother shall retain her guardianship of D------- A---- (dob 1/21/2008) and X----- A---- (dob 10/28/2010), with the powers and duties set forth in 13 Del. C. § 2340, a copy of which is attached, and its successors.
2. Mother's visitation shall be the same as the Interim Stipulation
a. Mother shall visit with the Children for five (5) to six (6) hours every Saturday.
b. During weeks in which Mother has family counseling, Mother shall have an additional weeknight dinner visit with the Children for up to three (3) hours.
c. During weeks in which Mother does not have family counseling, Mother shall visit with the Children for two (2) weeknight dinner visits for at least three (3) hours.
d. Mother shall visit with the Children for one (1) Sunday a month for at least two (2) hours.
e. Maternal Grandmother shall be present for Mother's visitation at Mother's request. If Maternal Grandmother is not available for the
visitation, the exchanges shall be monitored by Paternal Grandmother.
f. Until authorized by Ms. K------, Stepfather shall have no contact with the Children.
3. Mother's visitation may be increased upon the recommendation of Ms. K------ or agreement of the parties.
This applies only to exchanges. --------
IT IS SO ORDERED.
/s/ _________
Mark D. Buckworth , Judge MDB/mac 4/25/18
cc: David J.J. Facciolo, Esq.
B------ A
J----- T
File
13 Del. C. § 2340: Powers and duties of the guardian of the child
(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 and daily care; 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 will all terms of any Court order to provide the child's parents with visitation, contact or information. (d) The Court, in its discretion, may expressly limit the duties and powers of the guardian as set forth in this chapter. (e) No bond shall be required from any guardian appointed under this chapter.