Opinion
FILE NO.: CN14-03278 CPI NO.: 17-28194
06-22-2018
K------ C--------, Petitioner, v. A---- W-----, D--- C-----, Respondents. In the interest of: D------ C-------- (F) (--/--/06)
RESCISSION OF GUARDIANSHIP DECISION AND ORDER
Before the Court is a Petition to Rescind Guardianship filed on September 13, 2017 by K------ C-------- (hereinafter "Mother") against guardian A---- W----- (hereinafter "Guardian") and D--- C----- (hereinafter "Father") in the interest of D------ C-------- born - -, 2006 (hereinafter "Child"). In filing her Petition, Mother seeks to rescind a Consent Order dated September 15, 2014 granting guardianship of Child to Guardian. The parties are self-represented.
PROCEDURAL HISTORY
On September 15, 2014, Mother and Father both consented to Guardian receiving guardianship of Child. In her Petition to Rescind Guardianship in September 2017, Mother alleged that she consented to guardianship in 2014 following a shooting in the area where she was living that had made Child "very scared," and that her initial intent was that the guardianship would only last for the "summer of 2014." On January 3, 2018, the Court held a case management conference regarding the Petition, during which Father stated he supports giving custody back to Mother but Guardian stated she opposes Mother's Petition. As a result, the Court appointed Jennifer Ellsworth- Aults, Esquire as Guardian ad litem and scheduled a final hearing on the merits for April 24, 2018 as to Mother's Petition. At the final hearing, Mother, Father, and Guardian were present and all testified with regard to this matter. During her testimony, Guardian continued to oppose the rescission of her guardianship over Child. In addition, the Guardian ad litem also stated that she opposes returning custody of Child back to Mother. Due to Child being eleven-and-a-half years old, the Court chose, following the conclusion of testimony, to interview Child on May 9, 2018.
GROUNDS FOR RESCISSION OF 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 rescission of a guardianship over a child are set forth in 13 Del. C. § 2332(c), which states that the Court may rescind a guardianship if the "petitioner has made a preliminary showing the guardianship is no longer necessary for the reason(s) it was established;" unless the guardian establishes by a preponderance of evidence that the child will be "dependent, neglected, and/or abused" in the petitioner's care or the guardian establishes by clear and convincing evidence that the child will suffer "physical or emotional harm" if guardianship is terminated. 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.
Reasons for Establishment of Guardianship
Mother has made a preliminary showing that the guardianship is no longer necessary for the reason it was established. Mother and Father initially consented to guardianship of Child going to Guardian, as reflected in the Consent Order from September 15, 2014. In her Petition to Rescind Guardianship, Mother alleged that she initially consented because of a shooting in her neighborhood in 2014 that left Child "very scared." Mother reiterated this basis for her consent during her sworn testimony at the final hearing, adding that it was her nephew that was shot. Although she testified there are still "a lot of shootings down in that area," there is no evidence that Child would still be scared to live with Mother or that there are specific shootings that are occurring that would specifically trouble Child. In addition, both Mother and Father now oppose the continuation of the guardianship. As a result, the guardianship is no longer necessary for the reasons it was initially entered into in 2014. However, even with this finding, the Court may still continue the guardianship if Guardian proves that Child would be dependent, neglected or abused if returned to Mother's care.
Dependency , Neglect, and/or Abuse
Based upon the testimony presented at the final hearing and the Court's subsequent interview with Child, the Court finds that Guardian has established by a preponderance of the evidence that Child would be dependent if she were returned to Mother's full-time care.
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...
Mother, forty-one years old, has resided in transitional housing at the YWCA since April 2016. Currently, she is residing in a one-bedroom apartment with her seven-year-old daughter L-------. Although she could not provide a bed or separate room for Child at the time of the hearing,
Mother stated that she would "probably" be moved into a two-bedroom unit if Child returned to her care. She also stated that her housing complex recently had a bed bug infestation.
Mother is employed full-time at the Westin Hotel in Wilmington as a housekeeper, makes $10 per hour, and often works on weekends. As a result, if Child returned to her care, Mother stated that Child could go to the West Center City Community Center for afterschool care. Despite working full-time since November 2017, Guardian stated that Mother does not provide financial support for Child, or buy gifts for Child.
Mother has multiple criminal convictions in Delaware but none since early 2012. In 1996, she was found guilty of three counts of robbery second degree and one count of criminal mischief. In 1997, she was found guilty of offensive touching. In 1998, she was found guilty of assault third degree. In 2001 and 2004, she was found guilty on separate counts of criminal impersonation. In 2009 and 2012, she was found guilty of disorderly conduct.
Mother suffers from high blood pressure, diabetes that is unmedicated, and epilepsy. Mother stated that although she takes medication for her epilepsy, she continues to have seizures about three or four times a month which can be triggered by nothing more than "loud noises." Most recently, two-and-a-half weeks before the final hearing, she had a seizure while at work that required a trip to the hospital. When Mother has seizures in her residence, her seven-year-old either calls 911 or notifies housing staff that Mother is having another episode. If Mother is required to go to the hospital, then her seven-year-old will accompany her.
As of the final hearing, Mother had not had any visitation with Child since Thanksgiving 2017, and last spoke with Child on the phone in December 2017. Mother does not have independent transportation, and therefore Father has often helped facilitate the limited visitation Mother has had with Child by driving Child to see Mother. Mother stated that she has not had any visits with Child since Thanksgiving because she was not permitted visitors during the bed bug infestation and she has been working weekends. She also admitted that she had not attempted to arrange for visitation with Child on a weekday at a location other than her residence.
Mother stated that she waited three years to file a petition to rescind guardianship because she did not have stable housing in the past. However, Mother feels that she can provide appropriate care for Child at this time, and believes it is time for Child to reside with Mother and Child's younger sister. Father agreed that it is time for Mother have Child back in her custody because Mother has been "doing good" and she now has stable employment and a place to live, but added that he is not seeking to share joint custody of Child with Mother.
Guardian stated that she is opposed to the rescission of her guardianship because Mother has not made sufficient efforts to connect with Child of late, in person or over the phone, as evidenced by the fact that Mother has not reached out to Guardian about seeing Child since January 2018 despite the Court's Order from January 8, 2018 that Mother could have weekly visitation with Child on Sundays. Father responded that Mother has not been reaching out to Guardian because Guardian "belittles" Mother when the two attempt to communicate. As an additional basis for her opposition to rescission, Guardian stated, without evidence, that Mother is a "recovering addict" who needs more time before she can be ready to care for Child full-time. Guardian also added that Father is also not ready to care for Child full-time.
Child stated that although she would like to see Mother and Child's younger sister more often, she would prefer to continue living with Guardian at present but could live with Mother if necessary. None of the reasons Child gave for wanting to stay with Guardian are relevant in the Court's discussion of dependency.
Although Mother has had limited contact with Child leading up to the final hearing in this matter, that alone cannot be a basis for showing that Child would presently be dependent in Mother's care. However, the Court is also concerned about Mother's current housing limitations and her regular and ongoing seizures. Mother can relieve the housing concern, in the future, by providing evidentiary proof to the Court that she is residing in a two-bedroom or larger residence with at least one bed for each person residing in the home. However, the possible emotional toll on Child of watching Mother experience regular seizures cannot be easily measured, nor can it be easily cured. Although Mother appears to have no problem placing the responsibility of calling 911 on her seven-year-old daughter, the Court notes that it is not in the best interest of children to be shouldered with such a burden. In addition, Mother needs to show a pattern of regular visitation with Child before Child can be placed full-time back in her home. Mother must cure her communication issues with Guardian and resolve her transportation issues, both of which appear to have stalled her contact with Child in the past. If Mother is not available to visit with Child on weekends as provided in the Court's January 2018 Interim Order, the onus is on Mother to arrange with Guardian for an alternate visitation schedule.
Conclusion
In conclusion, the Court finds by a preponderance of the evidence that Child would be dependent in Mother's care. Therefore, the Court must deny Mother's Petition to Rescind Guardianship as to Child. However, the Court believes that Child would greatly benefit from having more consistent visitation with Mother and Child's younger sister. Additionally, Guardian and Father are both agreeable to Mother having visitation with Child. Therefore, as previously stated in the January 2018 Interim Order, Mother shall continue to have weekly daytime visitation with Child. If Mother's housing situation changes and she can establish a prolonged period of regular visitation with Child in and out of her home, Mother may consider filing a new Petition to Rescind Guardianship. Accordingly, IT IS HEREBY ORDERED this 22nd day of June, 2018 as follows:
1. Mother K------ C--------'s Petition to Rescind Guardianship of Child, D------ C--------, born - -, 2006 is DENIED. As such, the Consent Order dated September 15, 2014 granting Guardian, A---- W-----, guardianship over Child shall remain in effect.
2. Mother shall have regular weekly daytime visitation with Child, at a date and time as agreed upon by Mother and Guardian.
IT IS SO ORDERED.
/s/ _________
ROBERT BURTON COONIN, JUDGE Date Mailed to Petitioner: __________ Date Mailed to Respondents: __________ Date Mailed to Guardian ad Litem: __________ RBC/plr