Opinion
No. 217/224, 2002
Submitted: January 7, 2003
Decided: February 11, 2003
Court Below: Family Court State of Delaware, in and for Kent Count, Petition No. 00-25529, File No. 00-08-ITK
Affirmed.
Unpublished opinion is below.
MELVIN SPENCE and DEBRA SPENCE, Respondents Below, Appellants, v. DIVISION OF FAMILY SERVICES, Petitioner Below, Appellee. No. 217/224, 2002 In the Supreme Court of the State of Delaware. Submitted: January 7, 2003 Decided: February 11, 2003
Before HOLLAND, BERGER and STEELE, Justices.
Myron T. Steele, Justice
ORDER
This 11th day of February, 2003, it appears to the Court that:
(1) Debra Spence appeals from the Family Court's Termination Of Parental Rights Order terminating her and Melvin Spence's parental rights in their children Kimberly Spence, Heather Renee Spence, Matthew Edward Spence, and Priscilla Crystal Spence. Debra Spence also appeals the Family Court's Dependency/Neglect Order denying her custody of her youngest child Skyven Spence, born December 7, 2000.
Pseudonyms were assigned to both Appellants by this Court's Order dated April 29, 2000.
(2) On March 30, 1999, Kimberly reported to Chief Kober of the Wyoming Police Department that her father had physically abused her. Thereafter, Chief Kober contacted DFS social worker/investigator Schoenbeck, and they interviewed Kimberly. Kimberly revealed that her father had physically abused all of the children, and sexually abused Kimberly.
(3) Schoenbeck then interviewed the Spence family members and learned that: (i) Melvin Spence had a substance abuse problem; (ii) there had been concerns about sexual abuse in the family since 1994 in three states (Texas, New Jersey and Delaware); and (iii) Debra Spence knew of the abuse and did nothing to protect the children.
(4) As a result of the disclosures of sexual abuse in New Jersey, Schoenbeck arranged for Detective Row of the New Jersey State Police to interview Kimberly and Heather. Both children revealed in detail, and in separate interviews, that their father had sexually abused them on numerous occasions.
Eventually, Melvin Spence confessed to Detective Row that he sexually abused his daughters on numerous occasions. Detective Row told Debra Spence of the children's allegations and Melvin Spence's confession, but Debra Spence refused to believe any of the allegations.
(5) The State of New Jersey charged Melvin Spence with Aggravated Assault, Sexual Assault, Criminal Sexual Contact, and Endangering the Welfare of a Child. Melvin Spence entered a guilty plea to the felony of Endangering the Welfare of a Child. In Delaware, Melvin Spence entered a guilty plea to the charge of Offensive Touching.
(6) Schoenbeck filed a dependency/neglect petition and custody petition on behalf of DFS for the Spence children. By April 1999, all of the children were in foster care. The investigation continued after the children entered foster care.
On August 23, 1999, Ralph Richardson, a forensic interviewer, interviewed Kimberly and Heather at the Child Advocacy Center. The interviews were taped and played at trial. Kimberly revealed that she witnessed specific incidents of sexual abuse by her brothers (Melvin Jr. and Martin) and father with her, her sisters and her younger brother. Kimberly also stated that her mother "knew everything that was going on."
Appellee's Appendix B-148.
(7) In April 1999, the DFS case was transferred to Linda Schimp. Schimp entered a case plan to target the problem areas in the Spence family so that the children could eventually return to their mother. At this point, Melvin Spence remained incarcerated in New Jersey. Schimp testified that Debra Spence failed to accomplish any of her case plan except for visitation.
(8) In December 1999, the DFS case was transferred to Maryanne Edgison. At this point, Melvin Spence was released pending related charges of sexual abuse in Delaware. Edgison developed a case plan for both parents, but two days after the plan was signed, Melvin and Debra Spence were arrested in Delaware on charges alleging sexual abuse of their children. The goals of the case plan were never met.
(9) Over the next year, Debra Spence refused to work with DFS, and visitation deteriorated. The goal of the case was no longer reunification, and the Spences made no attempt to visit their children in foster care.
(10) In December 2000, Debra Spence had a sixth child, Skyven. Melvin Spence is not Skyven's father. Monica Morris, the children's social worker, referred Skyven's case to DFS. Fearing that Skyven would be a target for abuse because of Debra Spence's alleged role in facilitating the sexual abuse of her children and the pending release of Skyven's older brother Martin from a sex offender program, a DFS investigator asked to speak with Debra Spence to verify that Skyven would be safe. Debra Spence refused to speak to the investigator. Thereafter, DFS filed for and received custody of Skyven.
(11) At trial, Kimberly, Heather and Matthew testified regarding sexual abuse by Melvin Spence, their older brothers and their uncles on numerous occasions over a period of six years. They also testified that Debra Spence was aware of the abuse. Debra Spence, through cross-examination, attempted to suggest that Kimberly had a motive to accuse her father falsely because he slapped her and threw her out of the house. The trial judge, after observing the children, found them credible.
(12) Debra Spence now appeals the Family Court's judgment. She asserts three claims of error in this appeal: (i) the trial judge erred in finding a statutory basis to terminate her parental rights under 13 Del. C. § 1103(a)(5); (ii) assuming the existence of a statutory basis for terminating her parental rights, the trial judge erred in its analysis of the best interest of the child under 13 Del. C. § 722; and (iii) the trial judge erred when he found that Skyven would be dependent or neglected if returned to Debra Spence's custody.
(13) This Court's review of appeals from the Family Court extends to a review of the facts and law as well as to a review of the inferences and deductions made by the judge. This Court will not disturb findings of fact unless they are clearly wrong and justice requires that they be overturned. If the Family Court has correctly applied the law, the standard of review is abuse of discretion. Errors of law, however, are reviewed de novo.
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983).
Jones v. Lang, 591 A.2d 185, 186 (Del. 1991).
In re Heller, 669 A.2d 25, 29 (Del. 1995).
(14) A court may grant a termination of parental rights petition if two requirements are met: (i) facts exist that show proof of an enumerated statutory ground, and (ii) termination is in the best interests of the child. Debra Spence argues that the trial judge erred in finding a statutory basis to terminate parental rights under 13 Del. C. § 1103(a)(5). 13 Del. C. § 1103(a)(5) allows the court to terminate parental rights if the parent fails to plan adequately for her children's physical needs or mental and emotional health. Debra Spence argues that she did not fail to plan adequately for her children's physical needs or mental and emotional health because she was unaware that Melvin Spence sexually abused the children. The record is replete with evidence that contradicts this assertion. In addition, we cannot disagree with the trial judge's conclusion that the children were credible unless that finding is clearly erroneous. The overwhelming evidence in the record suggests that Debra Spence's contention does not meet this burden. Accordingly, we conclude that the trial judge was not clearly erroneous when he concluded that Debra Spence knew of the abuse and failed to protect her children.
Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
(15) Debra Spence next argues that the Family Court Opinion is devoid of the required statutory analysis of the best interest of the child standard under 13 Del. C. § 722. 13 Del. C. § 722 states that the Family Court must look to the best interests of the child when determining legal custody, by considering the following factors:
(a) The wishes of the child's parents as to his custody and residential arrangements; (b) The wishes of the child as to his custodian and residential arrangements (c) The interaction and interrelationship of the child with other relatives with whom he lives; (d) The child's adjustment to his home, school and community; (e) The mental and physical health of all individuals involved; (f) Past and present compliance by both parents with their rights and responsibilities to their child; (g) Evidence of domestic violence. (17) Although the trial judge did not list the applicable factors in the best interest of the child analysis, he clearly applied them. In the Opinion, the trial judge stated that: (i) the children wished to remain in foster care or be adopted; (ii) the children are better adjusted to their foster homes, new schools and community;
(iii) according to the testimony of experts at trial, the children are in better mental health than they were before; and (iv) there was obvious evidence of domestic violence. Accordingly, the trial judge considered the statutory factors in his analysis.
Division of Family Services v. (Spence), Del. Fam., No. 00-08-1TK, Nicholas, J. (March 22, 2002) at 11.
(18) Debra Spence's last argument is that the trial judge erred in finding that the infant child, Skyven, would be a dependant or neglected child if placed within her custody. "Dependent child" means a child whose physical, mental or emotional health and well-being is threatened or impaired because of inadequate care and protection by the child's custodian, who is unable to provide adequate care for the child. Based on the overwhelming evidence of sexual abuse within the family, the trial judge did not abuse his discretion in finding that Skyven would be a dependant or neglected child if placed in Debra Spence's custody and that custody should remain with the DFS pending any determination for placement it should make.
10 Del. C. § 901(8). 10 Del. C. § 901(1) provides "adequate care means a type and degree of personalized attention that will tend to advance a child's physical, mental, moral, emotional, and general well-being."
The judgment of the Family Court is AFFIRMED.