Opinion
No. 411, 2020
05-28-2021
TABATHA SNYDER, Respondent Below, Appellant, v. DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES (DSCYF), Petitioner Below, Appellee.
Court Below—Family Court of the State of Delaware File No. 20-01-07 (N) Petition No. 20-00517 Before VALIHURA, VAUGHN, and TRAYNOR, Justices. ORDER
Upon consideration of the appellant's brief filed under Supreme Court Rule 26.1(c), her attorney's motion to withdraw, the response of the Division of Family Services ("DFS"), and the response of the attorney ad litem, it appears to the Court that:
(1) The respondent below-appellant, Tabatha Snyder ("the Mother"), appeals the Family Court's order, dated November 6, 2020, terminating her parental rights to her son, born in 2011, and her daughter, born in 2017 ("the Children"). The parental rights of the Children's unknown father were terminated in the same order, but are not at issue in this appeal.
(2) On appeal, the Mother's counsel ("Counsel") filed an opening brief and motion to withdraw under Supreme Court Rule 26.1(c). Counsel states that she is unable to present a meritorious argument in support of the appeal. The Mother has submitted several points for this Court's consideration. For the reasons that follow, we affirm the judgment of the Family Court.
(3) On February 5, 2019, DFS filed an emergency petition for custody of the Children by ex parte order. DFS alleged that in the course of investigating a hotline report regarding the maternal grandmother ("Maternal Grandmother"), who was caring for the Children, DFS found the Maternal Grandmother noticeably intoxicated. DFS implemented a safety agreement in which a maternal aunt agreed to supervise the Maternal Grandmother's contact with the Children until the Maternal Grandmother completed a substance abuse evaluation. On an unannounced visit, the DFS found the younger child with the Maternal Grandmother. The maternal aunt was not present. DFS could not locate the older child. The Family Court granted the emergency petition.
(4) At the preliminary protective hearing on February 13, 2019, the Mother arrived late with the older child. DFS took the child to be placed with his younger sister in the same foster home. After hearing testimony about DFS's work with the family since 2016 and the events leading to DFS obtaining emergency custody of the Children, the Family Court found probable cause to believe the Children were dependent as to the Mother. The Family Court also found that it was in the best interests of the Children to be in DFS custody, that DFS had made reasonable efforts to prevent the unnecessary removal of the Children from their home, and that DFS exercised due diligence to identify adult relatives of the Children. The Family Court appointed counsel to represent the Mother.
(5) On March 4, 2019, the Family Court held an adjudicatory hearing. The Family Court heard testimony from a DFS treatment worker regarding her work with the Mother since 2016. The Mother had other children who were in the care of different relatives. Another DFS witness testified about her observations of the Maternal Grandmother's intoxication, the maternal family's breach of the safety plan, and the older child not attending school. This witness also testified that, at the time the safety plan was imposed, family members had not heard from the Mother in months. The Family Court found that the Children were dependent and should remain in DFS custody. The Family Court also found that DFS had made reasonable efforts to place the Children with relatives.
(6) On April 1, 2019, the Family Court held a dispositional hearing. The Family Court accepted the case plan for the Mother's reunification with the Children. The case plan elements included the Mother's enrollment in mental health counseling and completion of recommended treatment, completion of a substance abuse evaluation and compliance with any recommendations for treatment, resolution of her legal issues and avoidance of new criminal charges, continued work with a family interventionist on her parenting skills, improvement of her relationship with the Maternal Grandmother or attainment of her own housing, and acquisition of sufficient income to provide for the Children's basic needs. The Family Court also heard testimony that the Children were generally doing well, but the older child had to repeat a grade because he had missed so much school the previous year. The Family Court found that the Children remained dependent and should remain in DFS custody. The Family Court also found that DFS was making reasonable efforts to reunify the Children with their parents.
(7) On June 24, 2019, the Family Court held a review hearing. The Family Court heard testimony that the Mother was searching for housing and applying for jobs and Social Security disability income. She had not obtained a substance abuse evaluation because she lacked an identification card, but she had recently obtained an identification card. She had not engaged in counseling. The Mother had cleared her pending warrants, but had several pending criminal cases. The Mother was regularly attending visitation with the Children, but was sometimes late for visits. The family interventionist had to end an April visit after the police were called to break up a fight between the Mother and the alleged father of the Children (subsequent genetic testing excluded this person as the Children's biological father). The Family Court found that the Children remained dependent and should remain in DFS custody. The Family Court also found that DFS was making reasonable efforts toward reunification.
(8) On September 17, 2019, the Family Court held a second review hearing. Mother had obtained employment, but was still looking for housing. She had not obtained a substance abuse evaluation or mental health evaluation. The Mother had had two pending criminal cases and was on Level II probation for two other charges. She had missed a few visits with the Children. The older child was having some behavioral issues at home and seeing a counselor at school to address any behavioral issues there. The younger child was receiving speech therapy. The Family Court found that the Children were dependent and should remain in DFS custody. The Family Court also found that DFS was making reasonable efforts toward reunification.
(9) On December 9, 2019, the Family Court held a third review hearing. The DFS treatment worker testified that the Mother was pregnant and claimed, without providing any documentation, that her doctor had placed her on bed rest. The Mother also claimed to be living with her sister, but the treatment worker believed she was actually living with the Maternal Grandmother. The Mother still had not obtained a substance abuse or mental health evaluation. The treatment worker tried to arrange for Brandywine Counseling to meet with the Mother at her home, but the Mother said it was not a good time. The Mother still had some pending criminal charges.
(10) The Mother had not visited with the Children since October 15, 2019. She cancelled one visit based on her lack of money to attend and failed to respond to inquiries about coordinating visits. In early November, the Mother said that she could not attend visitation because she was on her way to the hospital and was likely to be placed on bed rest.
(11) The Family Court found that the Mother was not currently meeting most of the elements of her case plan. The Family Court held that the Children were dependent and should remain in DFS custody. The Family Court also found that DFS was making reasonable efforts toward reunification, but noted that DFS might recommend a change of goal to termination of parental rights.
(12) On December 20, 2019, DFS filed a motion to change the permanency plan from reunification to termination of parental rights for purposes of adoption. On January 6, 2020, DFS filed a petition for termination of parental rights.
(13) On April 1, 2020, the Family Court held a fourth review hearing. The Mother was not employed, had not obtained housing, and had not completed a substance abuse or mental health evaluation. She had recently been incarcerated for failure to appear for an outstanding warrant. The Mother had not been able to visit with the Children because of COVID-19 and her recent incarceration. The older child was doing well in school, but having some behavioral issues at home. The younger child was doing well. The Family Court found that the Children were dependent and should remain in DFS custody. The Family Court also found that DFS was making reasonable efforts toward reunification.
(14) On May 26, 2020, the Family Court held a permanency hearing. The Family Court found that the Mother's lack of progress on her case plan pre-dated her pregnancy and COVID-19. The Mother had failed to comply with the mental health and substance abuse elements of her case plan. The Mother had failed to maintain employment or obtain appropriate housing. Before COVID-19, the Mother was inconsistent with her weekly visitation with the Children. Since COVID-19, the Mother had consistently attended virtual visitation with the Children. The Family Court granted DFS's motion to change the goal from reunification to termination of parental rights for purposes of adoption.
(15) On October 12, 2020, the Family Court held a termination of parental rights hearing. The DFS treatment worker testified that, as of October 2019, the Mother had only made significant progress on the employment element of her case plan. By the end of November 2019, the Mother was no longer employed. The worker also testified that Brandywine Counseling met with the Mother in late December 2019 when she was in the hospital with her newborn child and determined that she did not need substance abuse services at that time. The Mother subsequently tested positive for marijuana and Oxycodone in January 2020 while on probation. The Mother was referred to Your Center for her mental health and substance abuse needs, but Your Center was unable to obtain the Mother's signed consent.
(16) According to the treatment worker, the Mother's visitation with the Children was sporadic, with no visits since the end of July. In August, the Mother incurred new criminal charges for driving under the influence and endangering the welfare of a child (the child born in December 2020). The worker testified about DFS's reasons for not supporting placement of the Children with other relatives identified by the Mother. The Children were doing well with their foster family, which was an adoptive resource for the Children.
(17) At the conclusion of the DFS treatment worker's testimony, the Family Court agreed to take judicial notice of the previous orders in the dependency and neglect proceedings. The orders were also admitted into evidence, along with the social report.
(18) A family interventionist and aide testified about their work with the Mother. Both witnesses testified that the Mother's visitation with the Children was generally consistent until COVID-19 restrictions led to virtual visits, but the interventionist acknowledged that the Mother had missed multiple visits before COVID-19. After attending virtual visits with the Children for several months, the Mother stopped responding to calls and texts at the numbers she had provided. Based on her observations of the Mother during visits, the family interventionist testified that the Mother could not care for the Children by herself and needed assistance. The Mother struggled with the older child's behavior and would promise gifts that she never gave him.
(19) The foster mother testified that the Children were doing well after some behavioral issues when they first came to her home. The older child needed a lot of dental work early on, but those issues had been addressed. The foster mother was interested in adopting the Children.
(20) The Mother testified that she had a good relationship with the Children before DFS obtained custody of them. She asked for the Children to be placed with her at a Mommy & Me home or with a family member until she did everything that she needed to do. The Mother was familiar with Mommy & Me homes from her previous placement in one, and testified that the home would supervise her and help her with housing, employment, and parenting skills.
(21) The Mother was interested in mental health counseling, but said it was difficult as she did not presently have a phone and she had a tendency to procrastinate. She had been on a list for housing since 2016. She was living with one of her sisters temporarily, but was not on the lease and could not stay there long-term. The Mother testified that she had not used any drugs since January 2020, she had been discharged from probation, and was willing to obtain an alcohol and drug evaluation. She had not been employed since the fall of 2019, but had interviews scheduled. The Mother discontinued virtual visits with the Children because she broke her phone. She did not explore using her sister's phone for the virtual visits. On cross-examination, the Mother testified that she was not presently caring for any of her five children.
(22) The Maternal Grandmother testified that the Children lived with her between 2017 and 2019. She disputed that she was intoxicated when DFS came to her house in 2019 and that the older child stopped attending school while in her care. The Maternal Grandmother was willing to care for the Children, testifying that she had sufficient room and income to care for them. She had recently been released from prison for aggravated menacing and was subject to TASC monitoring as part of her probation. The Maternal Grandmother had encouraged the Mother to complete her case plan, but admitted that the Mother had made little progress.
(23) On November 6, 2020, the Family Court issued a decision terminating the Mother's parental rights. This appeal followed. The Mother's arguments on appeal may be summarized as follows: (i) the Family Court should have excused Counsel; (ii) Counsel was ineffective; (iii) the Family Court judge should have excused herself from the case; and (iv) the Family Court told the maternal grandmother that she would not get the Children without a hearing. In response to Counsel's submission, DFS and the Child's attorney ad litem have moved to affirm the Family Court's termination of the Mother's parental rights.
(24) This Court's review of the Family Court's decision to terminate parental rights entails consideration of the facts and law as well as the inferences and deductions made by the Family Court. To the extent that the Family Court's rulings of law are implicated, our review is de novo. The statute governing the termination of parental rights requires a two-step analysis. First, the Family Court must determine whether the evidence presented meets one of the statutory grounds for termination. Second, the Family Court must determine whether termination of parental rights is in the best interests of the child. Both of these requirements must be established by clear and convincing evidence.
Wilson v. Div. of Fam. Servs., 988 A.2d 435, 439-40 (Del. 2010).
Id.
13 Del. C. § 1103; Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
Powell v. Dep't of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731-32 (Del. 2008).
Powell, 963 A.2d at 731.
(25) In its November 6, 2020 decision, the Family Court found by clear and convincing evidence that the Mother had failed to plan adequately for the Children's needs under 13 Del. C. § 1103(a)(5). The Children had been in DFS care for more than one year, the Mother had failed to complete any element of her case plan, the Mother was not caring for any of her children, the Mother was unable to promptly assume physical custody of the Children, and failure to terminate the Mother's parental rights would result in continued emotional instability and risk to the Children. The Family Court also considered the best-interest factors under 13 Del. C. § 722 and found, by clear and convincing evidence, that termination of parental rights was in the best interests of the Children.
(26) We have carefully reviewed the parties' submissions as well as the record below, including the transcript of the termination of parental rights hearing. We conclude that the Family Court considered all of the evidence under the appropriate legal standard and its findings of fact are supported by the record. The Mother's arguments do not support reversal.
(27) First, the Mother argues that the Family Court should have excused Counsel for an unidentified conflict of interest. This claim appears to be based on the Mother's request for a new attorney at the beginning of the TPR hearing. At that time, the Mother told the Family Court that she did not feel Counsel was representing her as she should. The Family Court informed the Mother that the hearing would not be continued and new counsel would not be appointed, but that the Mother could represent herself with Counsel acting as standby counsel. The Family Court appointed Counsel to act as standby counsel. The Mother then took a bathroom break while the Family Court addressed the logistics of witnesses appearing by video.
(28) When the Mother returned to the courtroom, she inquired about the role of standby counsel. After the Family Court explained the role of standby counsel, the Mother stated that she did not want to represent herself and preferred Counsel to act as her attorney. The Family Counsel directed Counsel to resume her role as the Mother's attorney. Counsel represented the Mother for the rest of the hearing.
(29) The Family Court's handling of the Mother's request for new counsel did not comport with the process outlined by this Court in Moore v. Hall. In Moore, we held that the Family Court must engage in a two-part inquiry when an indigent parent asks for appointment of new counsel in a termination proceeding. First, the Family Court must determine if the parent's reasons for requesting substitute counsel justify the appointment of new counsel. If the Family Court determines that the parent is not entitled to the appointment of new counsel, then the parent must decide whether to proceed pro se or continue with existing counsel. When a parent chooses to proceed pro se, the Family Court must engage in a colloquy with the parent to determine if the parent's decision is knowing and intelligent. As part of this colloquy, the court advises the parent of the dangers of self-representation. Appointment of standby counsel is not an acceptable alternative to a knowing and intelligent waiver of an indigent parent's right to representation in a termination proceeding.
62 A.3d 1203 (Del. 2013).
Id. at 1210.
Id.
Id.
Id. at 1210-11.
Id.
Id. at 1211.
(30) Although the Family Court failed to comply with the procedure outlined in Moore, this failure is not a basis for reversal in this case. The Mother's desire for new counsel was based on her belief that Counsel was not representing her as she should. "Mere dissatisfaction with 'counsel does not, by itself, justify the appointment of different counsel.'" The Family Court did not err in denying the Mother's request for new counsel.
Id. at 1210. See also Trotter v. State, 2018 WL 6167322, at *3 (Del. Nov. 21, 2018) (concluding that the defendant's "disagreements and dissatisfaction with his counsel did not entitle him to new counsel"); Bultron v. State, 897 A.2d 758, 763 (Del. 2006) (recognizing that a defendant does not have a right to counsel who will not disagree with him about how to proceed with a case and, by itself, a defendant's dissatisfaction with counsel does not justify the appointment of substitute counsel).
(31) The Family Court did err in assuming the Mother wished to represent herself, with standby counsel, without conducting the necessary colloquy to determine whether the Mother knowingly and intelligently waived her right to representation. Notwithstanding this error, the Family Court re-appointed Counsel to represent the Mother as soon as the Mother informed the Family Court that she did not want to represent herself and wished to proceed with her existing counsel. The Mother was not deprived of her right to representation in the termination proceeding. Counsel represented the Mother during the opening statements, the direct and cross-examinations of the witnesses, and closing statements.
(32) Second, the Mother contends that Counsel was ineffective because she did not file the motions the Mother wanted her to file. She does not identify the motions she believes Counsel should have filed or how those motions might have affected the outcome of the proceeding. The Mother's claim of ineffective assistance is not supported by the record and does not provide a basis for reversal.
See, e.g., Peeta v. Blank, 2019 WL 1253825, at *3 (Del. Mar. 15, 2019) (rejecting claim of ineffective assistance of counsel in appeal from guardianship order).
(33) Third, the Mother argues that the Family Court judge should have excused herself as the Mother requested because the Family Court judge was judging the Mother based on past cases. When a litigant files a timely motion for recusal, the judge must consider: (i) whether she can hear the proceeding free from bias or prejudice; and (ii) whether there is an objective appearance of bias sufficient to case doubt as to the judge's impartiality. The record on appeal does not reflect any request by the Mother for the judge to recuse herself so the judge did not have the opportunity to consider whether she could hear the matter free from bias or prejudice. We therefore consider under plain error review whether there was an objective appearance of bias that cast doubt on the judge's impartiality.
Los v. Los, 595 A.2d 381, 384-85 (Del. 1991).
Supr. Ct. R. 8 ("Only questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented."); Evans v. State, 2005 WL 5118396, at *2 (Del. Jan. 24, 2007) (considering under plain error whether there was objective appearance of bias where the appellant had not filed a motion for recusal in the trial court).
(34) The record reflects that the Family Court was familiar with the Mother from earlier cases involving some of the Mother's other children. "[P]revious contact between the judge and a party, in the same or a different judicial proceeding, does not require automatic disqualification." Having reviewed the record, it is clear that the Family Court's rulings were based on what the Mother did (or did not do) in this case. There are no objective grounds upon which to question the impartiality of the trial judge.
Los, 595 A.2d at 384.
See, e.g., Haskins . Kay, 2008 WL 5227187, at *2 (Del. Dec. 16, 2008) (rejecting claim that the trial judge should have recused himself, sua sponte, because he had previously ruled against the defendant).
(35) Finally, the Mother contends that the Family Court told the maternal grandmother that she would not get the Children without a hearing. The nature of this claim is unclear. If the Mother is claiming that the Children should have remained with, or been returned to, the Maternal Grandmother during the proceedings that led to the termination of the Mother's parental rights, the record does not support this claim. The Children were removed from the Maternal Grandmother's care after DFS received hotline reports regarding the Maternal Grandmother's drug use, DFS found the Maternal Grandmother visibly intoxicated, and the Maternal Grandmother did not comply with the safety plan put in place. The older child had to repeat a grade of school because he missed so much school while in the Maternal Grandmother's care. The Maternal Grandmother was incarcerated for aggravated menacing while the Children were in DFS custody. At the time of the termination hearing, the Maternal Grandmother had not applied for guardianship of the Children. Under these circumstances, the Family Court did not err in concluding that DFS had made reasonable efforts to reunify the family and to identify relatives willing and able to care for the Children.
(36) After careful consideration of the parties' positions and the record on appeal, we conclude that the Mother's appeal is wholly without merit. We are also satisfied that the Mother's counsel has made a conscientious effort to examine the record and the law and has properly determined that the Mother could not raise a meritorious claim in this appeal. We therefore affirm the Family Court's termination of parental rights.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice