Opinion
FILE NO.: CN10-01986 PETITION NO.: 17-06679
07-24-2017
RE: S. v. W.
E. S. K. W.
LETTER DECISION AND ORDER
PETITION TO RESCIND GUARDIANSHIP
RE: J. S. (D.O.B. 2002) Dear Parties:
On May 22, 2017, the Court held a hearing regarding three (3) petitions filed by E. S. ("Mother") against K. W. ("Father") in the interest of J. S. (born, J. , 2002) ("J. ") and D. W. (born, A. , 2007) ("D. ") (collectively "the Children"). This Order addresses Mother's Petition to Rescind Guardianship filed against Father on March 6, 2017, in the interest of J. . Both parties were present in Court and self-represented. Mother's paramour, L. W. ("Mr. W. ") testified on Mother's behalf, and Pastor A. G. ("Pastor B. ") testified on Father's behalf. The Court conducted a child interview with J. on May 23, 2017.
PROCEDURAL HISTORY AND BACKGROUND
Mother and Father were married in 2007, and divorced by final decree of the Court on July 31, 2012. J. is the biological child of Mother and C. J. . Although Father is not J. 's biological Father, she has lived with him since she was three (3) years-old, and he is the only Father that she has ever known. Father filed for guardianship of J. on March 11, 2010. In his Petition for Guardianship, Father explained that Mother was incarcerated at Baylor Women's Correctional Institution and was therefore unable to care for J. . Mother consented to the guardianship, and the Court issued a Consent Order granting Father's Petition on March 19, 2010. On October 25, 2012, Father filed a Petition for Permanent Guardianship of a Minor. Father's Petition was granted by the Court on November 26, 2012.
Although the Court Granted Father's Petition for Permanent Guardianship, the Court believes that this is a discrepancy and Father has standard guardianship. The language and analysis used by the Court in its November 26, 2012, Order is indicative of a standard guardianship and not a permanent guardianship. The Court subsequently considered two (2) Petitions to Rescind Guardianship filed by Mother further indicating that Father does not have permanent guardianship.
Mother filed a Petition to Rescind Guardianship on March 31, 2014, which was denied by the Court on December 8, 2014. On May 22, 2015, Mother filed another Petition to Rescind Guardianship which was denied by the Court on November 30, 2015. Mother filed her most recent Petition to Rescind Guardianship on March 6, 2017. Service to J. 's biological Father, C. J. , was properly completed via publication, and the Court considered Mother's Petition during the May 22, 2017, hearing. Mother has filed numerous Petitions for Visitation and Petitions for Rule to Show Case throughout the duration of this matter.
LEGAL STANDARD
Under 13 Del. C. § 2332(c), a guardianship may be rescinded if the petitioner makes a preliminary showing that the guardianship is no longer necessary for the reasons it was originally established. If the petitioner can show this, then the guardianship may be rescinded unless the guardian establishes by a preponderance of the evidence that the child will be dependent, neglected, or abused in the parent's care or established by clear and convincing evidence that the child will suffer physical or emotional harm if the guardianship is terminated.
(c) Rescission. - 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.
Id.
LEGAL ANALYSIS
In the interest of judicial economy, the Court will not recite all of the testimony and evidence presented at trial that can be more fully obtained from the record.
Under 13 Del. C. § 2332(c), a guardianship may be rescinded if the petitioner can show that it is no longer necessary for the reasons it was established, unless the guardian establishes by a preponderance of the evidence that the child would be dependent, neglected, or abused in the care of the parent. In the present case, the Court finds that Mother has shown that the guardianship of J. is no longer necessary for the reasons it was established. However, the Court also finds by a preponderance of the evidence that J. would be dependent, as defined by 10 Del. C. § 901(8) , in Mother's care. For this reason, the Court cannot rescind the guardianship of J. , and Mother's Petition is DENIED.
Id.
(8) "Dependency or dependent child" means that a person:
a. Is responsible for the care, custody, and/or control of the child; and
b. Does not have the ability and/or financial means to provide for the care of the child; and
1. Fails to provide necessary care with regard to: food, clothing, shelter, education, health care, medical care or other care necessary for the child's emotional, physical or mental health, or safety and general well-being; or
2. The child is living in the home of an "adult individual" who fails to meet the definition of "relative" in this section on an extended basis without an assessment by DSCYF, or its licensed agency; or
3. The child has been placed with a licensed agency which certifies it cannot complete a suitable adoption plan.
In making a finding of dependency under this section, consideration may be given to dependency, neglect, or abuse history of any party.
Father was first granted guardianship of J. in a Consent Order issued on March 19, 2010 (the "2010 Order"). Mother agreed to the guardianship, because she was incarcerated at Baylor Women's Correctional Institution at the time. The 2010 Order references Mother's struggle with drug and alcohol abuse and explains that Mother was planning on attending an outpatient program for drugs and alcohol after her release from prison along with weekly AA or NA meetings. The 2010 Order also references Mother's criminal record naming specifically a conviction in 2004 for possession of drug paraphernalia and a charge from March of 2010 for possession of a deadly weapon, a knife. The Court again granted Father guardianship of J. in an Order issued on November 26, 2012. In that Order, the Court held that J. would be dependent absent Father's Guardianship.
It is evident that Father was originally granted guardianship of J. due to Mother's incarceration, criminal charges, and issues with substance abuse. At the hearing held on May 22, 2017, Mother made a showing that incarceration, criminal activity, and substance abuse are no longer of issue in this case. Mother testified that she was incarcerated several times between 2010 and 2013 for shoplifting and domestic disputes, but she is no longer incarcerated or on probation. Mother stated that she has been sober since July of 2013, for a period of almost four (4) years. Mother testified that she completed drug and alcohol programs through TASC and Brandywine Counseling and submitted to the Court certificates of completion dated October 6, 2014, and March 26, 2014, respectively. Mother stated that she has the support of a therapist, S. G. Evans from Harmonious Minds, who she sees once every six (6) weeks to help her manage her mental health. Mother further explained that she began attending DelTech in 2014, and will graduate in December of this year with a degree in human services and drug and alcohol counseling. Mother submitted her student ID from DelTech into evidence. Mother testified that she has a stable home where she lives with her paramour, Mr. W. .
Petitioner's Exhibit #1
Father did not dispute Mother's testimony that she is no longer on probation and remains sober. In fact, Father did not present any concerns regarding Mother's sobriety, incarceration, or criminal activity. Mother's testimony shows that she has worked to overcome the conditions necessitating Father's guardianship of J. . Mother's paramour, Mr. W. , supported Mother's testimony and told the Court that Mother has "come a long way." For these reasons, the Court finds that the original conditions causing Father's guardianship of J. have been cured and are no longer an issue.
Although the original conditions for J. 's guardianship are no longer of issue, the evidence presented indicates that J. would be dependent if she were to return to Mother's custody due to Mother's lack of financial resources. Father expressed his concern to the Court that Mother does not have enough money to support J. and that he alone has provided for her for many years. Mother agreed that she has not paid child support to Father and Mother explained that she is not currently employed. Mother stated that she is financially supported by Mr. W. who would be able to also support J. . Mother receives $74.00 monthly in public assistance and $194.00 monthly in food stamps. Mother has student loans to pay for her education. Apart from these few resources, Mother relies on Mr. W. for financial support. Mr. W. testified that as of the date of the hearing, Mother would not be able to financially support J. alone. Mother testified that she is actively looking for employment and had an interview scheduled for June 1, 2017, with KenCrest, a facility for disabled people.
While the Court applauds Mother's efforts to remain sober, get her college degree, and find employment, the Court finds that Mother does not currently have the financial resources to care for J. . The Court cannot depend on Mother's statements that she is actively looking for employment or that her paramour will support J. . Also, Mother's reliance on Mr. W. , her paramour, for support could create an unstable situation for J. if Mother and Mr. W. part ways. In A.B. v. N.B. & W.R., the Court denied Mother's Petition to Rescind Guardianship and found that Child would be dependent in Mother's care, stating that "the Court cannot rely on Mother's hopes of obtaining employment to financially support Child." Likewise, the Supreme Court of Delaware held that in order to determine that a child is not dependent, the Court must be satisfied that "the parent who is petitioning to rescind the guardianship has the ability and financial means to provide all the care needed to support the child's physical, mental and emotional growth."
A.B. v. N.B. & W.R., 2016 WL 228860 (Del. Fam. Ct. Jan. 12, 2016).
Id at 5.
Tourison v. Pepper, 51 A.3d 470, 472-473 (Del. 2012). --------
CONCLUSION
Mother did not have employment and sufficient income as of the date of the hearing. Therefore, the Court finds by a preponderance of the evidence that J. would be dependent, as defined by 10 Del. C. § 901(8), in Mother's care due to a lack of financial resources. Based upon statute and established case law, the Court cannot grant Mother's Petition, and Father's guardianship shall remain in place at this time. Should Mother obtain stable employment, which she is able to maintain, she may again file for the rescission of J. 's guardianship as the other factors that precipitated the Guardianship order seem to have been cured.
ORDER
Mother's Petition to Rescind Guardianship is hereby DENIED, and Father shall retain guardianship until further Order of the Court.
IT IS SO ORDERED.
/s/ _________
NATALIE J. HASKINS, JUDGE NJH/sml
xc: File, Parties