Opinion
File No. CN13-05714 CPI No 16-07445 CPI No 16-17539
12-22-2017
S----- T-------- ----------- ------------ ------ -- ----- Petitioner v. L------- AND D--- P------ ------- ---------------- -- ----- And C------ P-----* --------- ------- ----------- -- ----- Respondent
Petitioner Attorney John Williams, Esquire Respondent Attorney David Gagne, Esquire Self-represented
Nature of Proceeding
Petition to Rescind Guardianship, Counterclaim for Custody, Counterclaim for Third-Party Visitation, and Petition to Modify Visitation Petitioner Attorney
John Williams, Esquire Respondent Attorney
David Gagne, Esquire Self-represented* ORDER: PETITION TO RESCIND GUARDIANSHIP , COUNTERCLAIM FOR CUSTODY, COUNTERCLAIM FOR THIRD-PARTY VISITATION, and PETITION TO MODIFY VISITATION
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, are two Petitions. A Petition to Rescind Guardianship was filed on March 7, 2016, by S---- T------- (herein "Mother"), represented by John Williams, Esquire, and Zayln Bajor, Esquire (pro hac vice), against L------- and D--- P--- (herein "Guardians" or "the P----"), represented by David Gagne, Esquire, and C------ P----- (herein "Father") self-represented, in the interest of W------ P-----, born ------ -, ----, (herein "minor child" or "B----"). The minor child is represented by Carl Kunz, Esquire. Mother also filed a Petition to Modify Visitation on June 14, 2016. The Court held a hearing over the course of five (5) days on July 7, 2017, July 13, 2017, August 3, 2017, August 4, 2017, and August 8, 2017. The Court heard testimony from the parties, R----- E---- (Mother's Clinical Therapist from SOAR), K------- S------ (Mother's roommate), S---- T------- (Mother's adult son), P------- F---- (Executive Director of GG's house), A-- W---- (Mother's employer), P---- K------ (Mother's Licensed Professional Counselor of Mental Health at Thresholds), K-------- B---- (B----'s second grade teacher), Dr. S----- R--------- (licensed psychologist who performed a bonding assessment), S---- N-------S---- (social worker), S----- H------ (social worker), J----- W------ (B----'s first grade teacher), T------ E--- G---- (Delaware State Police), and L--------- G----- W------ (Delaware State Police).
When Mother filed the instant Petitions she was represented by Norman Levine, Esquire. Subsequently, Mr. Levine withdrew from the case and the Court appointed Mr. Williams.
Patrick Boyer, Esq. was appointed to represent Father but Father later indicated that he did not want an attorney and Mr. Boyer was permitted to withdraw.
Mr. Kunz is a volunteer and was appointed through the Office of Child Advocate by Order dated February 7, 2017.
PROCEDURAL HISTORY
The P---- filed a Petition for Guardianship of B---- in October, 2013. That Petition was granted in November, 2013, with the consent of both parents. Mother filed a Petition to Rescind the Guardianship in May, 2014. Judge Connor denied that Petition finding that the child was still "dependent upon someone other than his natural parents for day-to-day care and supervision".
Judge Conner's August 14, 2014, Order, p.6.
Mother filed the instant Petition to Rescind Guardianship in March, 2016, and her Petition to Modify Visitation in June, 2016. The P---- filed an Answer opposing the rescission with a Counterclaim requesting that the Court find that the P---- are the de facto parents of B---- and award them custody. In the alternative, if the Court were to grant the Petition to Rescind and not award the P---- Custody pursuant to the de facto parent statute, the P---- asked the Court to award them visitation under the Third Party Visitation Statute. Father did not file an Answer to any of the pleadings but stated in Court that he supports Mother's Petition to Rescind and supports Mother having sole custody.
Guardians' Answer & Counterclaims to Petition to Rescind Guardianship, p.2.
Father admitted that he is a perpetrator of domestic violence pursuant to 13 Del. C. § 703A and cannot be given custody as he is not prepared to rebut the presumption under 13 Del. C. § 705A.
Parents are routinely afforded the opportunity to have counsel appointed for them in a Petition for Guardianship but not necessarily afforded the same opportunity in Petitions to Rescind Guardianship. However, given the unique and complicated arguments being made in this case, and out of an abundance of caution, both parents were appointed counsel. Father later declined counsel and his counsel was permitted to withdraw.
At the request of counsel for the P---- and Mother and without objection from Father, the Court contacted the Office of Child Advocate and requested a Guardian ad litem for B----. Carl Kunz, Esquire volunteered to be appointed and participated in all of the hearing dates. Mr. Kunz opposes Mother's Petition to Rescind and supports the P----' position.
The matter was first scheduled for trial in November, 2016. Despite the Court's best efforts, the matter had to be continued numerous times and the trial did not begin until July 7, 2017. The trial in this matter took place over the course of five (5) days. At the conclusion of the trial, the parties opted to file written closing arguments. This is the Court's written decision.
FINDINGS OF FACT
Mother has six (6) children: S----, T-----, K--, C---, C-----, and B----. B---- is the youngest of Mother's children. While Mother had B---- in her care from the time he was born until he was about four (4) years old, Mother has never cared for her other five (5) children on a full-time basis. Mother admits that she has a history of drug and/or alcohol use and abuse which has prevented her from caring for her children on a daily basis. She explained that two (2) of her children were raised by their Father, two (2) were raised by relatives, and one (1) was placed for adoption at birth.
Mother's testimony. GAL Exhibit 21.
Mother was originally from Delaware but B---- (d.o.b. -/-/--) was born in Florida where Mother and Father resided together at the time. While in Florida, Mother was a stay-at-home mom and spent her time volunteering at GG's house and taking care of B----. GG's house was an organization that helped people in need in Florida. The organization no longer exists. According to P------- F----, who was the executive director of GG's house, Mother was the "number one volunteer". Mother was "always there" and she and B---- became family to everyone there. Mother asserts she was sober during this time. When B---- was about four (4) years old, Father bought a home in New Castle and the family moved to Delaware. Father was a truck driver and Mother stayed at home to care for B---- who was not yet school age. Mother admitted that, shortly after returning to Delaware, she began to drink alcohol again but contended that, even though she was drinking regularly, she was still attending to B----'s needs.
Per S----- H------, an investigation worker from the Division of Family Services (herein "DFS"), DFS received a hotline report in July, 2013, alleging that Mother and Father had been neglecting B----, there was active drug and alcohol use in the home, and there were incidents of domestic violence between the parents. As part of her investigation, Ms. H------ went to the parents' home the following day and met with Mother, Paternal Grandmother, and then three (3) year old B----. During the investigation, Mother admitted to using both alcohol and drugs indicating that Father would bring crack cocaine into the home for Mother, Father, and Paternal Grandmother to use and that they would go on "all day binges" using crack. Mother also told the worker that there were incidents of domestic violence between her and Father and that Father committed the acts of abuse against Mother in front of B----. According to the social worker, Mother was willing to go to a domestic violence shelter at that time. With the help of DFS, Mother made a plan for B---- and called her sister, D--- P---, to see if B---- could stay with her and her husband, L------- P---. The P---- agreed B---- could stay with them. It is unclear to the Court whether Mother ever went to a domestic violence shelter but Mother admitted living in a shelter for thirty (30) days immediately following the time B---- went to live with the P----. Thereafter, Mother returned to live with Father. Mother admitted she was actively engaged in prostitution from August, 2013, through October, 2013. Mother contends that Father was active in promoting her prostitution. Father denied same during the trial. However, his criminal record reflects that he pled guilty to promoting prostitution third degree on November 5, 2013.
Testimony of S----- H------. Father admitted during the hearing that he was physically abusive towards Mother prior to B----'s birth but denied being physically abusive after his birth. Father's testimony contradicts his criminal record which indicated he pled guilty to the charge of Strangulation and Mother was the victim in 2014.
After three (3) months of having B---- reside in their home, the P---- filed a Petition for Guardianship on October 31, 2013. Both Mother and Father consented to the Guardianship and a final Order granting the Petition was entered on November 21, 2013. In the months following, the P---- and Mother had a good relationship. Mother was consistently visiting the child. When she visited, she would bring B---- clothes, toys, and books. Father was not involved in the child's life.
While the basis for the Guardianship being granted was the parents' consent, the Court notes that B---- was dependent as to the parties at that time. Father was incarcerated and could not care for him. Mother was homeless because the parents lost their lease when Father was incarcerated, was not employed, was in a relationship with Father that involved domestic violence, and was drinking and using drugs. See Judge Conner's August 14, 2014, Order, p. 2.
On May 20, 2014, Mother filed her first Petition to Rescind Guardianship. At that time, Mother argued that she could provide for B---- as she had secured employment and housing and had separated from and divorced Father. Judge Conner denied Mother's Petition on August 14, 2014, finding the child was still "dependent upon someone other than his natural parents for day-to-day care and supervision," but provided Mother with visitation every other weekend.
Judge Conner's August 14, 2014, Order, p.6.
On October 6, 2014, after B---- had been visiting with Mother every other weekend, B---- allegedly disclosed that Mother had committed an act of sexual abuse against him. B----'s statements were reported to DFS and DFS completed an investigation which resulted in DFS filing a Petition for Substantiation against Mother in January, 2015. According to the Petition for Substantiation, Mother "abused" the child when she treated the child in a "bizarre and neglectful manner" because she failed to correct the child's behavior. The Petition described the child's behavior as "the child touching, pinching and grabbing the Respondent's private areas; and the child, while naked and with an erect penis, jumping up and down on the Respondent's naked buttocks; and the child reportedly taking up to 5 showers a day lasting up to 45 minutes which the Respondent assumed occurred due to the child masturbating". On August 19, 2015, Mother consented to being substantiated at Level II on the Child Protection Registry. The parties interpret the Substantiation Order differently. Mother asserts that she only stipulated to failing to discipline B---- for his bizarre behavior. The P---- assert that the Substantiation statute requires the Court to make a finding that Mother abused or neglected the child before it can place a person on the Child Protection Registry. Therefore, the P---- contend that, if Mother was placed on the registry, the Court must have found she committed an act of abuse or neglect against B----.
RG Exhibit 2, p.1. (The designation "RG" stand for "Respondent Guardians" herein.)
Id. at 1-2. While the Petition for Substantiation against Mother was pending, a second hotline report was made to DFS on June 3, 2015, alleging again that Mother had committed acts of sexual abuse against B---- as B---- had made some "concerning statements" during an interview at the Children's Advocacy Center. See Petitioner's Exhibit 6a. In September, 2015, the second case was closed as unsubstantiated.
These two (2) incidents are not Mother's only involvement with DFS. As previously noted, Mother has six (6) children and five (5) of the children were never in her care full time. B---- is her youngest child and the first child she has had in her care. Mother has been investigated by DFS nine (9) times which resulted in her being substantiated eight (8) times. Mother admits she did not contest the first seven (7) substantiations. DFS sent her notice of their intent to substantiate and she did not request a hearing in those case. She did request a hearing in reference to the 2014 allegation referenced above but ultimately consented to being placed on the registry at Level II without a hearing. Per the testimony of S---- N-------S----, DFS records reflect that Mother was substantiated as follows:
1. 1995: Level 3 for medical neglect;
2. 1995: Level 2 for severe emotional neglect;
3. 1997: Level 3 for lack of supervision;
4. 1998: Level 2 for physical neglect;
5. 1999: Level 3 for lack of supervision;
6. 2003: Level 3 for physical neglect;
7. 2005: Level 3 for physical neglect; and
8. 2014: Level 2 after consenting on the record to being placed on the Child Protection Registry. It is not clear from the Commissioner's Order whether she was placed on the registry based on abuse or neglect. It is also not clear from the Petition whether DFS was requesting that she be found to have committed an act of abuse or neglect as the Petition alleges that she " abused her child W------ P-----, dob: ----------, by treating him in a bizarre and neglectful manner..." (emphasis added.)
9. 2015: An investigation was completed but the case was closed indicating that "substantiation proceedings are not warranted."
Petitioner's Exhibit 3a, p.1.
RG Exhibit 2, p.1.
Petitioner's Exhibit 6a.
After learning the Petition for Substantiation was filed in January, 2015, and without the Court's permission, the P---- terminated Mother's visits. Thereafter, Mother filed a Petition - Rule to Show Cause against the Guardians asking that they be held in Contempt of Judge Conner's Order because they were refusing to allow visits. On May 19, 2015, Judge Conner denied the Rule to Show Cause and suspended Mother's in person visitation with B---- until the Substantiation Petition was resolved but allowed Mother to have telephone contact with B---- every Sunday at 7:00 p.m. Mother's in person visits never resumed even after the Petition for Substantiation was resolved.
Mother filed the instant Petition to Rescind Guardianship on March 7, 2016, and the instant Petition to Modify Visitation on June 14, 2016. In their Answer to Mother's Petition, the Guardians' filed a Counterclaim for Custody of B---- asking to be found to be his de facto parents. In the alternative, they filed a second Counterclaim requesting that they be awarded visitation pursuant to the Third-Party Visitation statute. Father supports Mother's Petition to Rescind and supports Mother having sole custody.
Guardians' Answer & Counterclaims to Petition to Rescind Guardianship, p.2.
Mother no longer consents to the Guardianship and believes she is "ready, willing, and able" to have B---- back in her care. She currently resides in a trailer in Rehoboth Beach, DE with her friend, K—S------. In addition to utilities, food, and transportation expenses, Mother owes $50/month for the loan on her trailer and $500/month for lot rent. Ms. S------ pays Mother $125/week for rent and Mother uses that money to pay the lot rent. Mother is self-employed with her own cleaning business, K------- C-------. She cleans rental properties for W----' A--------- from May through October. She works one day per week during these months and earns up to $275 (gross) per week cleaning vacation properties. She has no other clients. She gave the Court no evidence of employment or income during the winter months nor did she provide a plan on how she was going to pay her expenses during the winter months with the exception of indicating that she would apply for food stamps and assistance once B---- was in her care. According to her W-2 income, Mother earned $3,817 in 2016 and $1,745 in 2015.
Mother has had several other roommates over the years who have also paid her rent. Mother has met all of her roommates in her recovery programs. She has known Ms. S------ for many years and Ms. S------ is also in recovery.
Testimony of Mother and A-- W----.
Petitioner's Exhibit 16a.
Petitioner's Exhibit 16b.
Mother has a history of alcohol abuse and drug use. In 2013, she reported to Ms. H------ of DFS that she "lived to use drugs, and used drugs to live" and that "alcohol and drugs for her is like peanut butter and jelly". Judge Connor indicated that "Mother was candid to the Court that she has had serious alcohol and cocaine addiction in the past." The records are clear that she has been in and out of treatment since returning to Delaware. In July, 2016, her therapist at Thresholds indicated that her chances of recovery were "fair". Mother testified that she can't remember the last time that she used drugs and contended that she is not addicted to drugs or alcoholic. Mother further testified that she believes that alcoholism is something that one can control and she does not identify herself as an alcoholic. She asserted that she had successfully addressed her "alcohol issues" as of April, 2017.
GAL Exhibit 21, p. 14.
Id. at 14-15.
Judge Connor's Order dated August 14, 2014, p. 2.
Petitioner's Exhibit 10, Record from July 14, 2016, p.4.
The Court notes that Mother was charged with driving under the influence of a combination of alcohol and any drug after she was in a car accident in April, 2017, while this matter was pending. As the charges were still pending at the time of the trial in this matter, the Court cannot consider the charge as evidence that Mother was in fact driving under the influence. Mother did admit drinking alcohol that day while she was caring for her young grandchildren.
Mother has a history of mental health issues. On March 24, 2016, seventeen (17) days after filing the instant Petition to Rescind Guardianship alleging that she "maintained her sobriety and completed her anger management course, Mother was admitted to Dover Behavioral Health Systems (herein "DBHS"), for "safety and stabilization" with her chief complaint being "I hear voices telling me to call myself names. The voices are in my house." She also complained that people have been coming into her home and that in the 1990s "a remote device was planted in the back of her head." During her intake, she admitted previously smoking crack cocaine and tested positive for TCA and PCP. She was discharged from DBHS on March 28, 2016, with the understanding that she would attend the "Dover Behavioral Health partial hospital program starting tomorrow morning, 03/29/2016, at 9:00 a.m." When she appeared for the out-patient program the next day, she was re-admitted to the in-patient program where she remained until April 4, 2016. According to the DBHS discharge summary from April 4, 2016, Mother was diagnosed with "delusional disorder, unspecified psychosis, and anxiety disorder." Mother testified that she is not currently receiving treatment for her mental health issues and is currently not taking any medication for mental health issues. Mother did not present any evidence indicating that her mental health conditions were resolved or otherwise under control.
Petitioner's Exhibit 8a.
GAL Exhibit 22, Record from March 24, 2016, p.1.
Id.
Id. at Discharge Summary from March 28, 2016, p.1.
Id. at 2.
Id. at Discharge Summary, April 4, 2016, p.1.
Mother reported that she was sexually abused by her grandfather when she was a child. She is participating in trauma counseling with R----- E----, a Clinical Therapist at SOAR. Ms. E---- testified that she has been seeing Mother since Mother first came to SOAR in March, 2014. Within the first few months, Ms. E---- noticed that Mother's anxiety and depression levels had decreased. On May 9, 2016, Ms. E---- wrote a letter on Mother's behalf stating that Mother has shown "dedication, commitment, and motivation to her therapy." During the sessions, Mother had discussed the trauma she had experienced as a child as well as the trauma of "losing" B----. Ms. E---- testified that Mother continues to make progress in therapy and works toward overcoming the experienced trauma. She was aware that Mother had some "slips with alcohol" and knew of the DUI charge Mother incurred during the litigation. Ms. E---- testified that her main focus in therapy with Mother is to provide Mother with assistance for her trauma. She could only provide the Court with her opinion on how Mother is progressing in how she is handling trauma. She was not in a position to give the Court information as to how Mother is treating her substance abuse issues or her mental health.
Petitioner's Exhibit 11a.
Despite Mother treating with Thresholds every other week and records documenting that Mother has had problems with alcohol and drug use or abuse since the Guardianship was granted, Mother continuously asserted during the hearing that she does not have a problem with alcohol or drugs. Thresholds is an organization that provides substance abuse and alcohol abuse counseling. They can also address mental health issues. P---- K-------, a Licensed Professional Counselor of Mental Health, is Mother's counselor at Thresholds. Ms. K------- testified that she was working with Mother regarding substance abuse issues but was not addressing mental health issues. She testified that she has only been seeing Mother for the last two (2) years until the Court directed her attention to her signature on a discharge summary for Mother dated October 7, 2014. Ms. K------- did not recall treating Mother in 2014 but acknowledged that she must have. According to Ms. K-------, it appears Mother has been in and out of treatment at Thresholds over the past few years. To the best of Ms. K-------'s recollection, Mother attended treatment at least four (4) times at Thresholds for substance abuse: (1) April 7, 2014, until October 7, 2014; (2) sometime in 2015; (3) July 14, 2016, until October 17, 2016; and (4) January, 2017 through the date of her testimony.
Petitioner's Exhibit 10, Discharge Summary, October 7, 2014.
1. On April 7, 2014, one (1) month before she filed her first Petition to Rescind, Mother went to Thresholds for a "self-referred alcohol relapse". While there, Mother reported that "she had a history or alcohol and drug abuse" and was "self-medicating due to the trauma she experienced and for mental health issues not being addressed appropriately". There was no evidence presented as to why this treatment ended.
2. Other than Ms. K-------'s testimony that Mother attended Thresholds in 2015, there were no records or further testimony regarding the treatment. There was also no evidence presented as to when and why this treatment ended.
3. On July 14, 2016, (while this matter was pending) Mother again saw Ms. K------- at Thresholds as she was "referred by probation for positive urine drug screens for Benzodiazepines". During the intake process, Mother admitted to drinking "1 Fifth" of alcohol "3 months ago", to sniffing "10 lines" of cocaine on June 4, 2016, and taking Benzodiazepines on June 4, 2016. Mother self-reported that her longest abstinence ever from these substances was nine months. Mother stated that she would drink or use drugs "when I had money and 24 hours a day" because it "makes me happy". At the end of the evaluation, Mother was diagnosed with "Alcohol Use Disorder, Severe F10.20, Unspecified Depressive Disorder F32.9, Unspecified Anxiety Disorder F41.9, Sedative, hypnotic, or anxiolytic Use Disorder, Mild F13.10, ..., and Cocaine Use Disorder, Moderate F14.20". Ms. K------- asserted that Mother's "prognosis" at the time of the evaluation was "fair". A treatment plan was created for Mother. During a session on August 9, 2016, Mother reported feeling upset with her father and stated "he throws in my face how I used Crack twice when my son was with me". There was no evidence presented as to why this treatment ended.
4. Mother returned to Thresholds in January, 2017, while this matter was pending. It was not clear why Mother returned, but Ms. K------- stated Mother "self-returned".
Id.
Id.
The best the Court can determine, Mother was on probation in June, 2016, after pleading guilty to the charge of harassment in October, 2015. Mr. P--- was the victim of this charge.
Petitioner's Exhibit 10, Record of July 14, 2016, p.1.
Id.
Id.
Id.
Id.
Id. at Record of August 9, 2016, p.1.
It is significant to the Court that even though Mother treats weekly with Ms. K------- for substance abuse/use issues, Ms. K------- was not aware of Mother's April DUI arrest until July 11, 2017. On cross examination, she admitted it would be helpful to know this information sooner rather than later. Ms. K------- also admitted she did not know whether Mother was currently using drugs or alcohol.
In preparation for these proceedings, the Guardians retained Dr. S----- R---------, a licensed psychologist, to perform a bonding assessment in an attempt to determine the intensity of any relationship B---- has with the P----. Dr. R--------- reported that bonding is crucial to having a secure attachment. If there are no secure attachments or the attachments are interrupted, a person is at severe risk of having mental health problems. To complete his assessment, he interviewed the P----, observed the P---- and B---- together, interviewed B---- alone, reviewed records, and interviewed Mother. Father was invited to participate but did not. The P---- provided documentation for him to review. Mother was given the opportunity to provide documents for Dr. R--------- to review but did not supply any documents.
According to Dr. R---------, there is no question that there is a positive bond between the P---- and B----. The bond is such that the B---- relates to them as parents. The P---- used age appropriate language with B---- that obviously helped him relax. They exchanged hugs before the P---- left B---- alone with Dr. R--------- and B---- assured the P---- he was fine meeting with Dr. R---------. B---- was pleasant and outgoing at the beginning of the meeting.
There was a dramatic shift in B----'s demeanor when Dr. R--------- and B---- began to talk about Mother. He became agitated, nervous, and tearful. B---- reported that when he thinks about the time he lived with Mother, "it scares him". He remembered physical fights between Mother and Father, physical fights between Mother and his Grandfather, and the police coming to the home. His memories also included detailed accounts of sexual contact with Mother where they were both naked and B---- was sitting on Mother's lap, being outdoors when both were naked, and Mother's practice of tapping "me down here and I didn't like it". B---- reported that he did not feel safe at Mother's home. Dr. R--------- indicated that thinking about these traumatic memories caused B---- to begin crying. In his review of the records, Dr. R--------- found that B---- had been consistent in his reports of these events to other people. In Dr. R---------'s opinion, from the child's perspective, it doesn't matter if it is proven that these events occurred because B---- believes they occurred.
Dr. R--------- met with Mother via telephone. He reported that she was pleasant and cooperative and welcomed the opportunity to have input in the assessment. She relayed that she has completed an anger management class, has participated in drug and alcohol counseling, and was in recovery. She emphatically denied sexual contact with B----. Dr. R--------- found that she focused on what she needed and what she should have. She made no reference to how B---- was doing nor did she ask questions about what he might need. Dr. R--------- did not perform a bonding assessment regarding Mother and B---- but he reported, in his experience, it would be extremely unlikely for B---- to ask to stay with the P---- if he was bonded to Mother. He recognized that Mother did raise B---- for a number of years but indicated that "just feeding a child for four (4) years is not enough to form a bond". He also reported that it was concerning that the information received from the child about Mother was not counterbalanced with good memories.
Dr. R--------- concluded that B---- is not in emotional jeopardy right now because he has healthy relationships but he will need to work through the trauma he has experienced. In his opinion, even supervised visits would re-traumatize B----. If any contact were to take place between B---- and Mother, he recommended that it take place in a therapeutic setting where Mother and child are prepared to restore a healthy relationship. He cautioned that therapeutic visitation is a measured process that should not be rushed and that Mother is going to need to understand B----'s reactions to the events he recalls for it to be successful.
B---- is eight (8) years old and has resided with the Guardians since July 24, 2013. The P---- reside in Middletown, DE with their two (2) sons, D----- (21 yo) and B------ (17 yo). Mr. P--- has been employed by P---- T----- for fourteen (14) years. Mrs. P--- had a home daycare in the past, but no longer works and is a stay-at-home Mother. Mrs. P--- testified that she and B---- are "extremely close". She described their daily routine. On a school day, Mrs. P--- wakes B---- up for school and ensures that he has breakfast. When B---- gets home from school, she fixes him a snack and B---- completes his homework. B---- often helps Mrs. P--- cook dinner for the family. After dinner, she and B---- play board games and then B---- goes to bed between 8:00-8:30 p.m. Mrs. P--- is also heavily involved in B----'s school. She often volunteers for field trips and parties. Mr. P--- described that Mrs. P--- handles the "day-to-day care" of B---- and he is more involved in B----'s activities and sports. Mr. P--- and B---- spend time riding dirt bikes, playing baseball, and skateboarding. B---- likes to help Mr. P--- with chores around the house such as mowing the lawn and taking care of the bees.
He also has a good relationship with D----- and B------. D----- and B---- play outside together, play catch, ride dirt bikes, and watch movies. B------ and B---- play outside together as well. B------ also takes B---- to his wrestling practices and helps him practice his wrestling at home. Both sons also help coach B----'s baseball team.
At the time of the hearing, D----- had pending charges for Rape Fourth Degree and Sexual Solicitation of a Child under 18. Mr. P--- was aware of the charges but Mrs. P--- was not until the issue was raised by the Court during Mrs. P---'s testimony. This news was clearly upsetting to Mrs. P---. Mr. P--- testified that he was supporting his son through the criminal process but, if it was found that his son was guilty, he would ask his son to leave the home so that B---- could continue residing in the home without any concern as to his safety.
B---- attends B----- H--- E--------- and is in the 3rd grade. K-------- B----, B----'s 2nd grade teacher, testified that she has observed the P---- and B---- together and they appear bonded as if they were parent and child. B---- is a good student with no behavioral problems. However, she reported that there was a day during the 2016-2017 school year when B---- was very upset. When she talked with B---- about why he was so upset, B---- relayed that he was afraid that "his Mother was going to come to school and take him". Ms. B---- had to show him the locks on the doors and assure him that he was safe at school.
Mother has been requesting visits with B---- but Mother and B---- have not visited in person since January, 2015. The Court commends Mother for regularly exercising her weekly telephone call with B---- on Sunday evenings. The parties disagree as to whether these telephone calls have gone well. Mother enjoys the calls and believes she is appropriate. The P---- report that B---- does not enjoy the calls and is often upset by the calls.
Mother lives in a quiet mobile home community in an appropriately furnished trailer in Rehoboth Beach. K—S------ is Mother's current roommate. Ms. S------ asserted that she and Mother support each other as they are both recovering addicts. She has been renting a room from Mother since May, 2017. Ms. S------' describes Mother's home as "clean" and "quiet". Mother has a bedroom setup for B---- that is painted and decorated and is furnished with toys. She believes that Mother can provide a "safe and secure" environment for B----. Since Ms. S------ has been residing with Mother, she has not seen Mother drink or use drugs. She knows that Mother loves B---- and believes that Mother "has a right" to raise him.
Mother has had other people residing in her home besides Ms. S------. Mother's father resided in Mother's home, but abruptly left sometime in July, 2017. A man named S---, who was also in recovery from addiction, moved out not long after Ms. S------ moved into Mother's home. S--- resided in the room Mother has decorated for B----. And, another man named J--- "stayed a couple of times", but Ms. S------ did not know much about him. She reported that he slept on the porch and she did not have much interaction with him.
S---- T------- is Mother's oldest child. He resides in Florida. Although Mother did not raise S----, he and Mother have had a relationship throughout his life. In the last year, he has seen Mother two (2) times. He believes that Mother should be able to see B---- and have a relationship with him. When Mother, Father, and B---- resided in New Castle, S---- would go over and "check in" on B---- because they lived in a "tougher" neighborhood and Mother "didn't have the best track record". S---- is twenty-five years old and he graduated from college in Florida. He had a graduation party in Delaware, which Mother and the Guardians attended. During the party, an argument about B---- ensued between Mother and Mr. P---. According to S----, Mother was the "instigator" and physically "came at L---- first physically". S---- had to "intervene" to separate Mother and Mr. P---. He believes that Mother was at fault for the fight and was drinking that day.
Mother testified that she does not want to resume a relationship with Father but believes that B---- needs to have a relationship with Father. Notwithstanding the fact that Father plead guilty to strangling Mother, she testified that she is willing to supervise Father's visits with B----. Mother does not feel that it is appropriate for Father to "take B---- off by himself," but she does feel it is appropriate for them to spend time together with her supervision. The best the Court can determine, Father has not had any in person contact or telephone contact with B---- since 2013 with the exception of one time when Mother took B---- to prison to visit Father and the few occasions where Mother allowed B---- to speak with Father during Mother's telephone contact.
Father has been in and out of jail since the Guardianship Order was granted. On or about October 20, 2013, Father was arrested for Promoting Prostitution Third Degree and, nine (9) days later, Father was arrested for Strangulation. Mother was alleged to be the victim of the strangulation charge and was the person he was alleged to have promoted as a prostitute. On November 5, 2013, Father pled guilty to Promoting Prostitution Third Degree and he later pled guilty to Strangulation on April 28, 2014. After serving time for these charges, Father was released November, 2014, but was arrested again four (4) months later in March, 2015, for drug related charges. He pled guilty to Manufactures, Delivers, or Possession with Intent to Deliver a Controlled Substance with an Aggravating Factor and served another seventeen (17) months. He was released in August 29, 2016, and was in the community for four (4) months until he was arrested again in December, 2016. At the time of the hearing, he was awaiting trial on the charges of Possession of a Controlled Substance in a Tier 5 Quantity; Manufactures, Delivers, Possession with Intent to Deliver a Controlled Substance in Tier 4 Quantity; Conspiracy Second Degree; and Possession of Drug Paraphernalia Non-Marijuana Related. Even if Father were to be released, Father acknowledges that he is considered a perpetrator of domestic violence pursuant to 13 Del. C. § 703A and cannot be given custody or primary residence of B---- as he was not prepared to rebut the presumption against him having custody or primary residence of B---- pursuant to 13 Del. C. § 705A.
The Court will analyze the aforementioned facts as they relate to each argument herein.
A. PETITION TO RESCIND GUARDIANSHIP
LEGAL STANDARD
Chapter 23 of Title 13 of the Delaware Code establishes the proper procedures for establishing, modifying, or rescinding guardianships. Specifically, rescission of a guardianship is codified at 13 Del. C. § 2332(c), which provides:
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:
(1) 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
(2) 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.
When deciding to rescind guardianship to a parent, the Delaware Supreme Court has stated that "[f]it parents...are entitled to a presumption that returning their children to their care and custody is in the children's best interests".
Tourison v. Pepper, 51 A.3d 470, 471 (Del. 2012).
1. Petitioner has made a preliminary showing the guardianship is no longer necessary for the reason(s) it was established;
Mother filed the Petition to Rescind, not Father. Father is not alleging that he is prepared to care for B----. Therefore, the Court focused its statutory analysis as to Mother only.
Mother asserts that she has met her burden that the guardianship is no longer necessary for the reasons it was established. While the Guardianship was entered based on the parents' consent, Mother was clearly struggling with many issues at the time she consented to the P---- having guardianship. Mother was homeless, had no income, was abusing alcohol and using drugs, suffered from mental health problems, and was in a relationship with Father that involved domestic violence. Mother argues that she now has a home for B----, she has income to support B----, she is in recovery for her drug and alcohol use, she is in treatment for her mental health problems, and she has ended her relationship with Father. It is clear from the evidence that Mother's arguments are without merit.
While Mother now has housing and may have a room for B---- in her home, it is difficult for the Court to find that the home is appropriate when Mother has a history of renting rooms to people she meets in recovery programs. Mother needs this rental income to meet her expenses and without rental income, the Court cannot find that Mother has sufficient income to pay her expenses. She works one day per week from May through November and presented no plans for income in the winter months.
In addition, the Court has concerns that Mother is not addressing her mental health needs. Within a month of filing the instant Petition, Mother was diagnosed with "delusional disorder, unspecified psychosis, and anxiety disorder." Mother admits that she is not currently treating with a mental health specialist and failed to present any evidence that these diagnosis have been resolved or no longer need any treatment.
GAL Exhibit 22, Discharge Summary, April 4, 2016, p.1.
Finally, the Court did not find Mother credible when she testified that she did not want to resume a relationship with Father because she was very clear that she wanted B---- to have a relationship with his Father and that she would promote contact between the two of them. Mother and Father had significant problems in their relationship. Father provided Mother with drugs, he physically abused her in front of B----, he pled guilty to strangling her, and he pled guilty to promoting Mother as a prostitute. Their relationship was clearly unhealthy and Mother fails to recognize that resuming contact with Father for the purpose of Father having contact with B---- might not be good for B---- and puts Mother at risk of being abused again or at risk for being tempted to abuse drugs or alcohol again.
As the Court finds that Mother did not make a preliminary showing that the guardianship is no longer necessary, the Petition could be denied at this stage but the Court continues its analysis under the statute nonetheless.
2. 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
The Guardians have shown by a preponderance of the evidence that B---- will continue to be dependent, neglected, or abused in the parents' care. There is no dispute as to Father. He is currently incarcerated and admits he is a perpetrator of domestic violence pursuant to 13 Del. C. § 703A. Therefore, he cannot have custody or residence of B----. Mother asserts that she is able to care for B---- at this time. However, her argument is without merit.
There is no doubt that Mother loves her son and wants to have him back in her care. However, Mother fails to see that she is not ready to have him in her care. She argues that she has explored schools, pediatricians, extracurricular activities, and financial assistance for B----. But she fails to recognize she has not resolved many of her own issues.
She does not have sufficient income to support B----. The financial aspect of caring for B---- may or may not be resolved with State assistance. But without steady income of her own, the Court is concerned with Mother's history of renting to people, who may or may not be stable in their recovery, as a source of income. Allowing people to move in and out of her home causes the Court concern for B----'s safety.
Further, Mother is not stable in her recovery from her drug and/or alcohol addictions. In fact, at this point, she appears to be in denial that she has an addiction. The record is clear that Mother was drinking and using drugs regularly and in significant amounts. It is common knowledge that once a person is in recovery, they are always in recovery. Mother will struggle with addiction issues for the rest of her life. While she is in weekly counseling with Thresholds, it was clear to the Court that Mother has hidden things from her counselor. She was arrested for a DUI in April, 2017, but didn't tell her counselor about the arrest until July. It is a logical assumption that a counselor cannot effectively treat a client for addiction issues unless the client is honest about her relapses. Mother's counselor could also not affirmatively state at the time of the hearing whether Mother was or was not active in her addiction. Therefore, the Court has concerns as to whether Mother is stable in her recovery.
Immediately after filing the instant Petition, Mother was diagnosed with significant mental health problems. Her Discharge Summary on April 4, 2016, indicated her diagnoses were "delusional disorder, unspecified psychosis, and anxiety disorder." Mother received in patient treatment for these mental health problems but presented no evidence that she is currently treating these conditions or that these diagnoses have been resolved. All the Court knows is that Mother is not currently treating her mental health. Therefore, the Court has concerns as to whether Mother's mental health is stabilized.
Finally, the Court has concerns that Mother is not recognizing that B---- has mental health needs and that she is not prepared to handle them. Even after hearing Dr. R---------'s testimony that the child has suffered trauma in Mother's home and that it doesn't matter whether Mother in fact sexually abused B---- because B---- believes he was abused, Mother denies abusing B---- and doesn't acknowledge that B---- has a problem. Mother doesn't appear to consider what is best for B---- or what B---- needs. She simply argues that he needs to be back in her care. This argument is completely contradicted by Dr. R---------'s testimony that B---- would be traumatized even with supervised visits with Mother at this time and that he needs therapy to help him resolve the trauma he has suffered. Dr. R--------- reported that this therapy is a slow process and would require Mother to acknowledge what B---- is feeling at this point. Mother presented no indication that she recognized B----'s needs in this regard. Therefore, the Court has concerns that Mother would neglect B----'s mental health needs if he were returned to her care.
As the Court finds that the Guardians have established by a preponderance of the evidence that the child will be dependent in Father's and Mother's care, the Petition could be denied at this stage but the Court continues its analysis under the statute nonetheless.
3. The guardian has established , by clear and convincing evidence , that the child will suffer physical or emotional harm if the guardianship is terminated.
Based on Dr. R---------'s testimony, the Court finds that the Guardians have established by clear and convincing evidence that B---- will suffer emotional harm if the guardianship is terminated and B---- is returned to his Mother. Dr. R--------- testified that B---- is not in crisis at this time because he has secure attachments with the P----. However, Dr. R--------- was clear that B---- suffered trauma when he was living with his Mother and that B---- must address this trauma. He indicated that even supervised visits with his Mother would not be in B----'s best interest. He proposed that contact with Mother be in a therapeutic setting where a counselor can help B---- work through his issues and the counselor can help Mother understand the trauma that B---- has suffered. This type of counseling is a slow process that requires Mother's participation and is dependent on Mother being able to understand what B---- is experiencing. Dr. R--------- reported that, during his interview of Mother, she relayed her concerns about what she needed but never recognized that B---- had needs or asked what B---- needed. It is clear to the Court that Mother is not ready to put her interests aside and do what is best for B----. Until such time as B---- is in therapy and begins making progress in therapy regarding the trauma he has suffered, based on Dr. R---------'s testimony, the Court must find that B---- will suffer emotional harm if the guardianship is terminated and he is returned to his Mother.
B. PETITION TO MODIFY VISITATION
LEGAL STANDARD
Pursuant to 13 Del. C. § 2330(e), the Court shall determine visitation between the parent and child by applying the best interests of the child standard. The current visitation Order is contained in Judge Conner's Order of May 19, 2015, and allows Mother to have telephone contact every Sunday evening at 7:00 p.m. Mother is requesting that the Order be modified to allow her in person contact with B----. The P---- oppose Mother having any unsupervised visitation. The Guardian ad litem also opposes Mother having extended visitation beyond the Sunday telephone calls unless the visitation takes place in a therapeutic setting. The Court understands that Father supports Mother's request for visitation with B----.
13 Del. C. § 2330(e) provides: If the Court determines that the elements of subsection (a) of this section have been met, the Court shall also determine by a preponderance of evidence the nature and extent, if any, of any contact, sharing of information, and/or visitation between the parent and the child. In making such a determination, the Court shall apply the best interests of the child standard.
Subsequent to the hearings in this matter, the GAL filed a Motion to Terminate Mother's telephone calls. The Court denied the Motion but issued an Order indicating the Mother's telephone calls could continue so long as Mother did not talk about legal proceedings, disparage any adult in the proceedings, or ask the child to tell her he loves her. See this Court's Order dated December 6, 2017.
§ 722 FACTORS
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother wants the guardianship terminated and B---- returned to her care. In the alternative, she wants her visitation modified. While there was no testimony or argument presented as to what she wanted the visitation schedule to be, the Court will assume that she would like the Court to award her in person visitation as opposed to only telephone contact which she is currently experiencing. Father supports Mother's position.
The P---- oppose Mother having unsupervised contact with the child.
The Guardian ad litem asserted that Mother's visitation should not be expanded to include additional visitation. However, if the Court is going to increase her visitation, the Guardian ad litem proposes that there be "substantial therapeutic protections" in place to protect the child. The protections proposed include "substantial therapy for both Mother and B----" and Mother to complete and prove:
abstinence from drug and alcohol use, a zero arrest record, full time, stable employment with proof of income, clear mental health or active and consistent treatment for mental health issues, addressing harassment and anger issues and treatment for same (including abstinence from
emailing and texting the guardians and showing up unannounced at B----'s school), appropriate engagement with the P----, B----'s teachers and coaches, and acknowledgment of her son as a victim.
GAL Closing Argument, p. 21-22.
The Court finds this factor is neutral.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
The Guardian ad litem asked the Court to interview B----. Mother opposed the request. The Guardians initially indicated that they had some concerns with the child being interviewed again, as he had previously been interviewed by others, but not the Court. However, the Guardians were then hopeful that it would provide the child with closure and deferred to the Court. Father first opposed the request to interview the child, but then also deferred to the Court. The Court declined to interview B---- finding that it could make a decision on the issues before the Court without putting B---- through an interview.
Mr. Kunz represented that B---- does not want to live with Mother at this time, does not want to visit with her in person, and that he is struggling with Mother's behavior during the telephone calls.
The Court finds this factor supports the P---'s and GAL's position but gives this factor the appropriate weight as the Court recognizes that Mother has not had in person contact with B---- for quite some time.
3. The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabitating 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;
B---- has no relationship with his Father. Father has not seen or spoken to B---- since July, 2013. B---- is not asking to see his Father. The Court respects Father's decision to not ask for contact with B---- at this time. Father is putting the child's needs first and recognizes that B---- does not know him as his Father. The Court commends Father for putting the child's needs before his own in this regard.
Mother clearly loves B---- and wants very much to have him back in her life. The Court recognizes Mother's feelings and acknowledges that it is natural for a parent to want her child in her life. However, the Court is very concerned that, even after hearing Dr. R---------'s testimony, Mother does not seem to recognize that B---- has needs that will have to be addressed before the Court could consider allowing Mother to have contact with B----. B---- has reported witnessing domestic violence in Mother's home and has reported being the victim of sexual abuse by Mother. According to Dr. R---------, it does not matter whether Mother in fact sexually abused B---- because B---- believes the events he reports. He must resolve the issues surrounding his beliefs and the related trauma. That trauma has not been resolved.
On the other hand, B---- is thriving in the P----' home, has an excellent relationship with them and their children, and is doing well in school. However, that does not mean that he doesn't need to resolve the issues that he has with his Mother. B---- needs to be in therapy to start addressing the issues he has as a result of the trauma that he experienced in Mother's home. As the guardians, the Court expects the P---- to help B---- address these issues. An obvious first step, would be to enroll him in counseling but he is not in counseling. The Court is not clear why B---- has not been enrolled in counseling given Dr. R---------'s clear recommendation in this regard.
While this Court must find that this factor supports the P----' and the GAL's position that Mother should not have contact with B---- at this time, the Court is concerned that the P---- appear to not be addressing B----'s mental health needs as he is not in counseling.
4. The child's adjustment to his or her home , school and community;
B---- is well adjusted to the P----' home and his current school. However, the fact that he is adjusted to their home would not prevent the Court from also allowing him to have visitation with Mother. The Court's primary concern in this case is the fact that B---- has suffered trauma in Mother's home and this trauma has not been resolved. The Court finds this factor supports the P---- and the GAL's position that Mother should not have contact with B---- until such time as a mental health professional indicates that B---- is prepared to have contact with his Mother.
5. The mental and physical health of all individuals involved;
As discussed herein, Mother has been diagnosed with significant mental health problems. The Court has no evidence to confirm that the diagnoses have been resolved or are being treated. And, while B---- does not have an official diagnosis, it does appear that he has mental health issues that need to be addressed before Mother should have contact with B----. There was no evidence presented that the P---- or Father have physical or mental health issues.
The Court finds this factor favors the P----' and GAL's position that Mother should not have contact at least until a mental health professional confirms that Mother's mental health issues have been resolved or are being treated and that B----'s mental health issues have been resolved and that he is ready for contact with Mother.
6. Past and present compliance by both parties with their rights and responsibilities to their child under § 701 of this title;
13 Del. C. § 701(a) states in relevant part: "The father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare, and education."
Mother has regularly attended visits with B---- and provided food and presents for B---- after the Guardianship was granted. The Court credits her testimony that she has continued to send presents to B---- even though the P---- might not have given those presents to B----. Neither Mother nor Father have paid child support for B----. However, as the P---- apparently have not asked for child support from either parent, the Court does not hold the lack of support payments against the parents.
Mother consented to being placed on the Child Protection Registry at Level II for an incident that involved B----. The parties disagree whether Mother admitted to abusing or neglecting B---- or if Mother simply agreed that she failed to discipline B---- for his behavior. The Court agrees the records are not clear in this regard. However, based on Dr. R---------'s testimony that it doesn't matter whether the events actually happened because B---- believes they happened, the Court finds the dispute as to how to interpret the Order to be inconsequential. The evidence is clear that B---- has suffered trauma in Mother's home and the record is clear that Mother has not acknowledged this fact. Therefore, she is not complying with her responsibilities as B----'s parent to help him recover from the trauma he has suffered in her home when she insists that he be returned to her or begin visits before he is ready.
It is significant to the Court that Mother has a history of neglecting children in her care as she has been substantiated for abuse or neglect of her own children eight (8) times since 1995. Based on the evidence before the Court and the Court's reading of 16 Del. C. § 923(c), the Court estimates that Mother will be on the Child Protection Registry until 2039. While the Court recognizes that, pursuant to 16 Del. C. § 921, the primary purpose of the Child Protection Registry is to protect children and ensure their safety in child care, health care, and public education facilities, the Court finds Mother's extensive history with DSCYF relevant to these proceedings as well.
The Court finds this factor favors the P----' and the GAL's position that Mother should not have contact with B---- at least until such time as a mental health professional indicates that contact with Mother is appropriate.
7. Evidence of domestic violence as provided for in Chapter 7A of this title; and
13 Del. C. § 706A in relevant part states:
(a) Any evidence of a 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.
As discussed herein, there was significant domestic violence between Mother and Father. Mother admits that some of that violence occurred in the presence of B----. Because Mother was the victim of that violence, the Court would not typically hold this fact against Mother. However, Mother was very clear that she intends to have Father resume a relationship with B---- and that she intends to supervise that contact. In this instance, the Court would have great concerns for B----'s physical safety and mental well-being in the presence of Mother and Father.
As Father is currently incarcerated, this factor is not a concern for the immediate future but the Court does have concerns for the long term. Until such time as both parents are able to show that they understand the dynamics of domestic violence and its effect on children, the Court finds this factor favors the P----' and the GAL's position that Mother should not have contact with B---- as the Court is not confident that Mother would protect B---- from witnessing further acts of domestic violence by Father.
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's criminal history is discussed at length herein but is not relevant to some extent as he is not asking for visitation. However, his criminal history is relevant to the extent that Mother intends to allow him to resume contact with B---- and the Court has concerns that Mother would allow that contact during her visitation. Father has an extensive criminal history involving using and dealing drugs, domestic violence where Mother was the victim, and promoting prostitution involving Mother.
The Court also has concerns regarding Mother's recent DUI charge that was pending at the time of the hearing. As the charge was pending at the time of the hearing, the Court cannot consider the matter as a conviction. However, on cross-examination Mother admitted that she was drinking, apparently significantly, while caring for young children immediately before she was arrested. The Court is not convinced that Mother has learned from this mistake and has concerns about her decision making abilities if she were permitted to have visitation.
The Court finds this factor favors the P----' and the GAL's position that Mother should not have contact with B----.
Summary of Best Interest Analysis
as it relates to Mother's Petition to Modify Visitation
For the reasons set forth above, the Court finds factor (1) is neutral and all of the other factors support denying Mother contact with B---- until such time as Mother and B---- can participate in therapy and attend therapeutic visits with a mental health professional.
Mother has been having weekly telephone contact. While the P---- asserted that B---- does not enjoy the telephone calls and that they make him uncomfortable, there was no direct testimony that these telephone calls are harming B----. Subsequent to the hearing on this matter, the GAL filed a Motion to Terminate Mother's Telephone Contact. After a teleconference on this matter, the Court ruled that Mother would be permitted to continue her telephone calls but that the P---- would have the authority to terminate any call where Mother talks about legal proceedings, disparages any adult in these proceedings, or asks the child to tell her he loves her. The Court finds it appropriate to continue this practice but defer to a counselor as to whether the telephone calls are harming B----.
See this Court's Order dated December 6, 2017.
C. DE FACTO PARENT STATUS
The Court determines de facto parent status pursuant to 13 Del. C. § 8-201. As the Court has found that the Petition to Rescind the Guardianship must be denied, the Court need not address the issue of whether the P---- should be considered B----'s de facto parents and the counterclaim is DENIED WITHOUT PREJUDICE. The Court reserves the right to make such decision in future proceedings if there comes a time when the Court finds that a Petition to Rescind should be granted. In that instance, this Court would consider all evidence submitted in these proceedings as to the issue of whether the P---- should be considered B----'s de facto parents.
D. THIRD PARTY VISITATION
As the Petition to Rescind has been denied, the issue of the P---'s visitation under the Third Party Visitation statute is DENIED as moot.
WHEREFORE, the Court enters the following Order:
1. The Petition to Rescind Guardianship is DENIED. Notwithstanding the fact that the Petition is denied, the Court enters the following provisions related to the Guardianship Order:
a. Within thirty (30) days of this Order being mailed, the P---- are hereby ordered to schedule an appointment for B---- to meet with a counselor to address the trauma he has suffered. The counselor should be willing to involve Mother in the counseling and be willing to conduct therapeutic visits between B---- and Mother if and when B---- is ready for such visits.2. The Petition to Modify Visitation is GRANTED IN PART AND DENIED IN PART.
b. The P---- may use Dr. R---------, or any other professional he deems appropriate given the facts of this case, but may also choose someone who would be covered by B----'s insurance.
c. The P---- shall give Mother the contact information for the provider and shall keep Mother informed of the status of the counseling. Mother may also contact the provider directly for updates.
d. The P---- shall be responsible for any copays or bills for counseling for B----. Mother shall be responsible for any copays or bills for joint sessions between B---- and Mother.
a. Visitation is modified but not to the extent requested by Mother.
b. Mother may continue weekly telephone contact with B---- for the immediate future with the following conditions.
i. The counselor may terminate Mother's telephone contact if he/she believes that the telephone contact is harmful to B----.
ii. The P---- may end any particular telephone call that they believe is inappropriate as indicated in this Court's Order of December 6, 2017. The P---- shall use their best judgment when making a decision to terminate any call after considering B----'s best interest.
iii. Mother shall cooperate with B----'s counselor and shall participate in therapeutic visits if/when instructed by B----'s counselor. Mother's visits may progress to in person visits only at the direction of the therapist.
iv. The Court recognizes that this therapeutic process may take some time and expects Mother to understand that it is a slow process. The Court asks that Mother be patient while B---- works with the therapist.
3. The P----' Counterclaim to be found to be the de facto parents is DENIED without prejudice.
4. The P----' Counterclaim for Third Party Visitation is DENIED as moot.
5. If Mother files a Petition to Rescind the Guardianship or a Petition to Modify Visitation in the future, she is hereby advised that the Court will expect her to present evidence that:
a. She has cooperated with the B----'s counselor with respect to B----'s therapy and any therapeutic visits;
b. Her mental health is stable after being evaluated by a professional who has reviewed her prior diagnoses.
c. She is stable in her drug and alcohol recovery;
d. She has exhibited that she is able to control her anger and appropriately engage with the P----, B----'s teachers, and other adults in B----'s life;
e. She has not incurred any new criminal charges that would cause the Court concern about her ability to care for B----;
f. She has completed counseling as it relates to her being a victim of domestic violence and the impact domestic violence has on children;
g. She has safe and appropriate housing; and
h. She has sufficient income to support B----;
6. The Court thanks Mr. Kunz for his service to B---- and this Court. His appointment in this matter is terminated thirty (30) days from the date of this decision unless he files a Motion to remain appointed in this matter.
To be clear, the appointment must be made within thirty (30) days, not take place within thirty (30) days. --------
IT IS SO ORDERED this 22nd day of Dec , 2017.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Counsel including GAL, File