Opinion
File No.: CN15-05911 Petition No.: 15-33136
10-03-2016
Re: M----- & D----- K--- v. DSCYF
M----- and D----- K---
-- ------ Way
N-----, DE ----- Wendy Danner, Esquire
Department of Justice
Carvel State Office Building
820 N. French Street
Wilmington, DE 19801
LETTER DECISION AND ORDER
Dear Ms. K---, Mr. K---, and Ms. Danner:
Pending before the Court is a Petition for Guardianship of a Minor filed by M----- AND D----- K--- ("Guardianship Petitioners") in the interest of E-------- K--- ("E--------"), born -------- --, ----. Guardianship Petitioners, who are the biological paternal grandparents of E--------, filed their Petition for Guardianship on October 27, 2015, just four days after a termination of parental rights ("TPR") hearing was conducted with respect to E--------'s biological parents, J------ E---- ("Ms. E----") and D----- K--- ("Mr. K---"). This Court issued an Order terminating the parental rights of Mr. K--- and Ms. E---- on December 2, 2015 ("TPR Order"), and that decision was subsequently affirmed by Delaware Supreme Court on an appeal by Mr. K--- on August 19, 2016.
On September 21, 2016, the Court was contacted by Julie Yeager, Esquire ("Ms. Yeager"), who represented Mr. K--- in the TPR action, seeking to ascertain the status of the instant Petition for Guardianship. It should be noted that the Petition for Guardianship initially named Mr. K--- and Ms. E---- as respondents in addition to the Department of Services for Children, Youth, and Their Families ("DSCYF") in light of the fact that a decision on TPR had not yet been issued. However, the parental rights of Ms. E---- and Mr. K--- have since been terminated and have been transferred to DSCYF pending adoption. Thus, Ms. E---- and Mr. K--- are no longer parties to this action.
See 13 Del. C. § 1113, which dictates that:
"[u]pon the issuance of an order terminating the existing parental rights and transferring such parental rights to another person or organization, the effect of such order shall be that all of the rights, duties, privileges and obligations recognized by law between the person or persons whose parental rights are terminated and the child shall forever thereafter cease to exist. The person or organization to whom said parental rights are transferred shall have custody and guardianship of the child but such custody and guardianship shall terminate automatically upon the entry of another order transferring parental rights or on an order of adoption."
At the conclusion of the TPR proceeding, Ms. Yeager filed a Motion to Stay the Court's TPR decision pending a hearing on the instant Petition for Guardianship. The Court denied that motion in its TPR Order, noting that "[a]s a part of the legal standard applicable to the Court's decision on a Petition for TPR, the Court must also conduct an analysis of the 13 Del. C. § 722 best interest factors. That same § 722 analysis is part of the legal standard under which a Petition for Guardianship is decided." The Court went on to find that:
Order of Termination of Parental Rights, at *13 (C.J. Newell, Del. Fam. Dec. 2, 2015).
"the Court received substantial testimony pertaining to the § 722 best interest factors at the TPR hearing, including from [Guardianship Petitioner M----- K---] herself, who was present and was called by Ms. Yeager to testify. ... The Court believes that sufficient evidence was presented to make a sound best interest determination without any additional evidence that may be presented at a hearing on the guardianship petition, which was filed after the TPR hearing."
Id., at *14.
The Court also noted that Guardianship Petitioners had filed a standard Petition for Guardianship of E--------, while E--------'s foster mother of over fifteen months was considering pursuing adoption. Prioritizing the need for permanency, the Court held that it
"will not further delay permanency by staying its decision on DSCYF's Petition for TPR in order to accommodate [Guardianship Petitioners'] standard Petition for Guardianship, which was not filed until four days after the TPR hearing. The Court finds that it is in E--------'s best interest to be freed for more permanent goals of adoption or Permanent Guardianship,
which [Guardianship Petitioners] are able to pursue if they are sincerely interested in serving as a resource for E--------."
Id., at *15.
Notwithstanding the Court's directive, Guardianship Petitioners have not filed for permanent guardianship or adoption of E-------- since the TPR Order was issued. In any event, the Court's position on Guardianship Petitioners' pending Petition for Guardianship remains unchanged. Based upon the Supreme Court's affirmance of the December 2, 2015 TPR decision and DSCYF's resulting duty to place E-------- for adoption, the Court does not find guardianship to be an appropriate or practical goal at this stage. The Petition for Guardianship is therefore DISMISSED. However, Guardianship Petitioners remain free to pursue permanent guardianship or adoption of E-------- in the event they wish to provide for her permanent care.
Pursuant to 13 Del. C. § 1114, "[a]fter the issuance of an order terminating the existing parental rights and transferring them to the Department or a licensed agency, the agency shall attempt to promptly place the child for adoption."
It should be noted that, in accordance with the legal standard for an award of Permanent Guardianship, Guardianship Petitioners would be required to establish, in addition to other factors, that adoption of the child is not possible or appropriate. See 13 Del. C. § 2353(a). --------
IT IS SO ORDERED.
Very truly yours,
/ Michael K. Newell /
MICHAEL K. NEWELL, Chief Judge MKN/amp cc: Kelly Sasso, Esquire (by email)
Julie Yeager, Esquire (by email)
James Landon, Esquire (by email) Date mailed/emailed: 10/3/16