Opinion
CN21-02631 23-04-03TN
12-22-2023
DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES (DSCYF), Petitioners, v. J. M. Y.G. AND E. E. Y. O. Respondents.
Jessica Markowski-Kelly, Esquire, Attorney for Petitioner, Department of Services for Children, Youth, and Their Families Timothy Hitchings, Esquire, Attorney for Respondent, J ----- M ------ Y---G ----- Alfred Cave, Esquire, Child Attorney
Date Submitted: November 20, 2023
Date Written Decision Signed: December 22, 2023
Date Written Decision Mailed: December 22, 2023
Petition Nos. 21-09362 23-07746
UPON A PETITION FOR TERMINATION AND TRANSFER OF PARENTAL RIGHTS
Jessica Markowski-Kelly, Esquire, Attorney for Petitioner, Department of Services for Children, Youth, and Their Families
Timothy Hitchings, Esquire, Attorney for Respondent, J ----- M ------ Y---G
Alfred Cave, Esquire, Child Attorney
In the Interests of: L ------ J ----- Y---G -----, born --------- --, 2016.
MICHAEL K. NEWELL, CHIEF JUDGE
INTRODUCTION
Pending before the Court is a Petition for Termination and Transfer of Parental Rights ("TPR") filed by the Department of Services for Children, Youth, and Their Families ("DSCYF") against J ----- M ------ Y---G ----- ("Mother") and E ------ E ------ Y---O ----- ("Father"), collectively "Parents," in regard to L ------ J ----- Y---G ----- ("J ----- "), born --------- --, 2016.
The Court held a two-day TPR Hearing. Present for the first day of the hearing on June 7, 2023 were: Joseph Wester, Esquire, ("Mx. Wester"), representing DSCYF; Mother, represented by Timothy Hitchings, Esquire ("Mr. Hitchings"); and Alfred Cave, Esquire ("Mr. Cave"), on behalf of J ----- . Also present for the June 7th hearing were: B ------ N--- ("Ms. N---"), DSCYF treatment worker; M ------- H---- ("Ms. H----"), DSCYF treatment worker; C ------- P -------- ("Ms. P -------- "), J ----- 's assigned permanency worker; W--- - A ------- ("Ms. A ------- "), a caseworker with Children & Families First ("CFF"); S ----- K ------, ("Ms. K ------ "), CFF caseworker; Dr. L--- M----, Ph.D., ("Dr. M----"), CFF's Child Specific Recruitment Unit; C ------ S ------, ("Ms. S ------ "), J-----'s Court Appointed Special Advocate ("CASA"); E ----- K ----- ("Ms. K ----- "), CASA Coordinator; L ----- L--- ("Ms. L---"), Spanish Interpreter; and, H ------- O--- ("Ms. O---"), Spanish Interpreter.
Present for the second day of the TPR Hearing held on November 20, 2023 were: Jessica Markowski-Kelly, Esquire ("Ms. Markowski-Kelly"), representing DSCYF; Mother, represented by Mr. Hitchings; and Mr. Cave, on behalf of J ----- . Also present for the hearing were Ms. S ------, Ms. K -----, Ms. K ------, Ms. A -------, Ms. P --------, Dr. M----, and S---- S--- ("Ms. S---"), K'iche' Interpreter, who appeared by Zoom.
Father failed to appear for the two-day TPR hearing and has not appeared for any proceedings in this matter.
At the Preliminary Protective Hearing, Mother advised the Court that Father is deceased. If Father is not deceased, then DSCYF believed that Father was living in Guatemala. He is listed on J ----- 's birth certificate. This information was confirmed at the Adjudicatory Hearing, the Dispositional Hearing, the First Review Hearing, and the Second Review Hearing. Prior to the Third Review Hearing, the Court effected an international publication for Father. It received an Affidavit of Publication certifying that the service requirements concerning Father have been completed. For the purpose of the SIJS Hearing, the Court proceeded as though Father still remained in Guatemala. Prior to the Second and Third Post-Permanency Review Hearings, the Court again effected international publication and received an Affidavit of Publication certifying completion. To date, the Court has not received a death certificate for Father.
On June 7, 2023, DSCYF offered testimony from Ms. K ------, Ms. A -------, Dr. M----, Ms. P --------, and Ms. N---. Mother partially completed her testimony. On November 20, 2023, Mr. Hitchings recalled Mother to testify. Mr. Cave offered testimony from Ms. S ------ .
For the reasons set forth below, the Court DENIES DSCYF's Petition for TPR as to Mother and Father. Pursuant to this Order, custody of J ----- is RESCINDED from DSCYF to Mother.
PROCEDURAL HISTORY & FACTUAL BACKGROUND
On June 7, 2023, DSCYF offered the Court's prior dependency/neglect Orders in this case, collectively, into evidence as DSCYF Exhibit 1, without objection. A copy of DSCYF's social report was admitted as DSCYF Exhibit 2 without objection. Pursuant to Powell v. DSCYF, the Court reviews the prior orders under a clear and convincing standard. Copies of Mother's case plan in both English and Spanish were admitted as DSCYF Exhibit 3 without objection. Mr. Hitchings offered Mother's debit card as evidence; a photocopy of the card was admitted as Mother's Exhibit 1.
Powell v. Dep't of Servs for Child., Youth & Their Fams., 963 A.2d 724, 737 (Del. 2008).
On November 20, 2023, Mr. Cave offered a notarized version of Mother's employment letter into evidence as Child Attorney Exhibit 1, without objection. A copy of Mother's lease agreement was admitted as Child Attorney Exhibit 2, without objection. Lastly, pictures of Mother's housing were admitted as Child Attorney Exhibit 3, collectively, without objection.
DSCYF first received a referral call from A -------- S ------ ("Ms. S ------ ") on April 19, 2021, indicating that on April 5, 2021, Mother dropped J ----- off at her house to care for J ----- . Ms. S--- --- is a non-relative. Mother informed Ms. S ------ that she would return on April 8, 2021 to pick J----- up. On April 8, 2021, Mother told Ms. S ------ that because of her work schedule, she would not be able to pick up J ----- until April 9, 2021. Mother did not pick J ----- up as indicated. Ms. S------ called the police on April 22, 2021 and stated that she could no longer care for J ----- . Ms. S------ clarified that she could care for the child, but that she did not want J ----- returned to Mother if Mother did not have the means to take care of her. On April 28, 2021, the Court signed an Ex Parte Order awarding temporary emergency custody to DSCYF. Accordingly, J ----- was placed with Ms. S ------ and her husband.
On May 5, 2021, the Court conducted a Preliminary Protective Hearing. At the hearing, the Court heard testimony from A ------- L---- ("Ms. L----"), the DSCYF worker assigned to this case. Ms. L---- informed the Court that Father was likely deceased, or if he was not deceased, DSCYF believed that Father lived in Guatemala.
On April 29, 2021, Ms. S ------ and J ----- met with K ------ T ----- ("Ms. T ----- "), a DSCYF Family Service Specialist, and contacted Mother. Through Ms. T -----, Ms. L---- learned that Mother had been in the hospital following an attempted overdose. Further, Ms. L---- stated that Mother did not have a close relationship with Ms. S ------; rather, Ms. S ------ is an aunt to Mother's co-worker. Mother said she did not return to pick J ----- up because she owed Ms. S ------ and her husband money and did not have the means to pay them back.
By Order dated May 5, 2021, the Court found that probable cause existed to believe that J----- was dependent in the care of Mother and Father, as defined by 10 Del. C. § 901(8), because Mother had no stable housing or income and that she suffered from mental health issues. The Court ordered that DSCYF continue to have temporary custody of J ----- until further Court order. Finding that Mother was indigent due to her unemployment status, the Court appointed Mr. Hitchings to represent Mother and requested that DSCYF contact an immigration attorney to discuss services for J ----- .
On May 28, 2021, the Court held an Adjudicatory Hearing. Mother was present for the hearing. Ms. T ----- testified to the meeting with Ms. S ------, J -----, and Mother. She confirmed that on April 26, 2021, Mother was hospitalized for a suicide attempt. Mother told Ms. T ----- that she no longer wanted to live, that she struggled with financial and housing issues, and that she could not pick J ----- up from Ms. S ------ because of her debt owed. Following her release from the hospital, Mother spoke with an immigration worker who recommended that she see a psychologist. Mother began weekly counseling.
Ms. K ------ and Ms. T ----- testified as to Mother's citizenship status. Ms. T ----- stated that Mother and J ----- are undocumented Guatemalan citizens. Mother informed Ms. T ----- that she was not at risk for deportation but that she was required to check in with immigration services regularly. Ms. T ----- relayed that Mother had an immigration proceeding on May 10, 2021, that necessitated her previous use of an ankle monitor. She did not know whether Mother attended the proceeding or the result of that proceeding. Ms. K ------ stated that at the time of the Adjudicatory
Hearing, Mother no longer wore an ankle monitor. Ms. K ------ testified that J ----- was an only child and that Mother had no other relatives in the United States. Further, she stated that Mother had no DSCYF/Division of Family Services ("DFS") history or criminal history. M ------ C-- ("Ms. C--"), a Family Service Specialist with DSCYF, testified that after the case was transferred to the treatment unit on May 19, 2021, Ms. S ------ requested that J ----- be removed from her care the following day. On May 24, 2021, J ----- was placed with L---- G -------- - ("Foster Mother") and J--- G ------ ("Foster Father") collectively ("Foster Parents"). Ms. C-- reported that J ----- was doing well in Foster Parents' home.
Mother testified that she previously lived with Ms. S ------ 's mother but that she had moved and began renting a room a week before the Adjudicatory Hearing. She stated that her housing was appropriate for J ----- . At that time, Mother worked approximately 80 hours a week in a pizza shop. Mother stated that she needed support in finding stable housing and health insurance if J ----- were returned to her care. Prior to the hearing, Mother had extensive visitation with J ----- .
Mr. Hitchings requested approval from the Court to use a Spanish interpreter and written translation service to communicate with Mother. The Court granted Mr. Hitchings' request, requiring him to keep the Court informed of the necessary budget for these services.
As will be explained in greater detail later, the issue of a Spanish Interpreter for Mother became a became a seminal issue in this case.
Jonathan Harting, Esquire ("Mr. Harting"), on behalf of DSCYF, argued that J ----- remained a dependent child in Mother's care because Mother had limited access to resources, she was recently hospitalized for suicidal ideation, and she presented financial and housing concerns. He argued that J ----- should remain in DSCYF custody and that Mother should participate in case planning aimed at solidifying her housing, financial, and immigration concerns, with the ultimate goal of reunification. Mr. Cave, on behalf of J -----, supported Mr. Harting's position and added that J ----- 's dental records and absence of a yearly physical also supported a finding of medical neglect.
Mr. Hitchings argued that Mother was capable of caring for J ----- but for her "recent circumstances." By contrast, Mr. Hitchings claimed that Mother acted responsibly when she left J ----- with Ms. S ------ when she needed support and that Mother had attained housing and employment. Further, he refuted Mr. Cave's medical neglect argument, stating that the limited testimony elicited would not satisfy the standard of proof to make a finding of medical neglect. He argued that J ----- should be returned to Mother's care following the hearing.
By Order dated June 10, 2021, the Court found that J ----- continued to be a dependent child as defined by 10 Del. C. § 901(8) and that DSCYF made reasonable efforts to prevent the unnecessary removal of J ----- from her home. Further, custody would not be rescinded from DSCYF to Mother because of her housing and employment instability. The Court required DSCYF to provide Mother with a proposed case plan to address housing, employment, and immigration. DSCYF was permitted to include additional elements to Mother's case plan to address areas of concern, such as mental health and domestic violence services. Further, the Court ordered that in-person visitation occur for one hour on Tuesdays at 10:00am at the offices of CFF. The Court found that there was insufficient evidence to find medical neglect but that the evidence did demonstrate that J ----- needed dental care.
On July 7, 2021, the Court held a Dispositional Hearing. Mother appeared for the hearing. Ms. C-- testified that Mother received her case plan in both English and Spanish using HOLA Delaware translation services. Ms. C-- relayed that Mother was engaged in the case plan. Mother testified that after speaking with Ms. C--, she understood that the purpose of the case plan was to maintain employment and address other needs that arose.
Specifically, Mother's case plan addressed mental health and coping skills, substance abuse, domestic violence, social support system, immigration status, and housing. Mr. Cave opposed the inclusion of substance abuse monitoring because Mother had not reported any illegal drug use, and he argued that drug testing and a substance use evaluation would delay the reunification process. Mr. Harting argued that because of the relationship between substance abuse and mental health concerns, it was their practice to screen for both issues if one of the issues has been raised. The Court allowed the inclusion of the substance abuse element. The case plan was admitted into evidence.
Testimony regarding Mother's compliance with the case planning goals can be found in the Adjudicatory Hearing Order, DSCYF v. Y---G ----- & Y---O No. CN21-02631, at 2-3, ¶ 2 (Del. Fam. July 7, 2021).
Ms. C-- updated the Court as to J ----- 's well-being with Foster Parents. Ms. C-- reported that J ----- appeared happy and healthy in their home. Ms. S ------ corroborated Ms. C--'s testimony. J ----- and Mother began weekly visitation at the CFF office. Mother communicated daily with J-- --- by calling her foster home.
Ms. C-- testified that J ----- was seen at Alfred I. duPont Hospital ("Nemours") for a physical. Although she presented in good health, her doctor instructed J ----- to receive dental care as soon as possible. Ms. C-- explained that due to Mother and J ----- 's emigration from Guatemala, J ----- 's immigration status affected her ability to apply for and obtain Medicaid. Accordingly, DFS secured emergency Medicaid for J ----- . Her medical records needed to be translated from Spanish to English to uncover which vaccines J ----- has had and which she may need.
By Order dated July 12, 2021, the Court found that J ----- continued to be a dependent child and that DSCYF made reasonable efforts to finalize the permanency plan. The Court ordered an update as to Mother's immigration status at the Review Hearing.
On October 14, 2021, the Court held a Review Hearing. Mother appeared for the hearing. Ms. C-- testified as to Mother's compliance with and updates to the case plan. Ms. C-- met with Mother twice after the Dispositional Hearing. Mother stated that she continued to agree with the goals of the case plan.
The most notable update to Mother's case plan was that she needed to find new employment after the branch of the pizza shop where Mother worked closed. Following the Dispositional Hearing, Mother moved to a new home and rented a single room. She began working for the couple that she rented the room from, offering services such as childcare and housekeeping in exchange for a temporary reduction of her rent and a weekly stipend.
The verbal agreement between Mother and the homeowners required that Mother find a job outside of the home by November 2021. DSCYF stated that when Mother established formal employment, she was expected to provide evidence of stabilized income sufficient to support herself and J ----- . Ms. C-- testified that although Mother's new living arrangement was better than her prior housing, the situation was not sufficient for reunification. Ms. C-- encouraged Mother to secure a home with a written lease, full utilities, and personal space for herself and J ----- . Despite
Mother's housing situation, Ms. C-- stated that she was amenable to having visitations occur at Mother's home after completing an assessment of Mother's housing.
Mother began the process of applying for a work visa for herself and J ----- . Ms. C-- explained that once Mother attained her visa, she would have more housing options.
J ----- started daycare at the bilingual ---- ----- program at ------- ------ ("---- ----- ") and was reported to be happy and making friends. J ----- had a physical performed at Nemours on September 7, 2021. J ----- appeared healthy. She was recommended for an eye examination because she struggled to see the board at school. J ----- went to the dentist in October 2021. Her treatment plan cost an estimated $4,409 and Ms. C-- testified that DSCYF and H--- S---- intended to split the cost of the treatment. J ----- required four crowns, root canals, and five other teeth needed cavity repair.
Mother was described as being consistent with visitation between July 2021 until mid-September 2021. Mother explained that her car needed repairs, which prevented her from driving to visit J ----- . Mother re-engaged in visits in October. Ms. C-- stated that Mother did not have a driver's license but that she was eligible for a provisional license. DSCYF obligated themselves to help Mother obtain a license, as the agency did not want Mother to drive to visitations without a valid license.
As of the Second Post-Permanency Hearing, Mother had still not obtained a driver's license. There was no testimony elicited at the TPR Hearing regarding whether Mother had received her driver's license.
Finally, Ms. C-- summarized that Mother needed to secure housing, gain full-time employment, and engage in mental health services in order for reunification with J ----- to occur. By Order dated October 22, 2021, the Court maintained custody of J ----- with DSCYF and ordered that DSCYF assist Mother in finding housing that would not "prohibit or hinder reunification."
On January 18, 2022, the Court held a Second Review Hearing. Mother once again appeared for the hearing. The Court heard testimony from DSCYF Family Service Specialist T----- V ----- ("Ms. V ----- "), who took over for Ms. C-- on October 19, 2021. Mr. Harting explained that Ms. V ----- had difficulties speaking with Mother due to her inability to speak Spanish. As such, Ms. K ------ and M---- B ----- ("Ms. B ----- "), a Family Behavioral Interventionist, also testified as to Mother's case plan compliance because of their ability to communicate with Mother.
Ms. K ------ testified that Mother, because of her new work schedule, could not engage in mental health services. She stated that she did not have concerns regarding Mother's mental health at that time. However, Ms. K ------ added that re-engaging in mental health services would be beneficial to Mother, especially during these stressful proceedings. Ms. S ------, J ----- 's CASA, agreed.
As to her new employment, Ms. K ------ informed the Court that Mother was employed at a W--- food packaging facility in New Jersey. The job required Mother to be at work at 5:00am until an undetermined end time. The end of Mother's shift depended on when the facility hit its daily quota. As such, Mother tried to schedule appointments for 4:00pm, with the hope that she would be off of work by that time, but she frequently was not.
Regarding her immigration status, Ms. K ------ testified that she and Mother had difficulties contacting Mother's Community Legal Aid Society, Inc. ("CLASI") attorney. Ms. K ------ informed the Court that the last progress made on Mother's case was about her eligibility for a U visa. Mother could apply for a U visa on the basis of a violent incident that resulted in Mother's hospitalization. Because the attack was not criminally reported, Mother would need to submit documentation from the hospital. The Court requested that DSCYF help Mother obtain the documentation because the language barrier prevented Mother from doing so on her own.
By Order dated January 31, 2022, the Court relieved Mother of the substance abuse element of her case plan, citing that the substance abuse evaluation would add an unnecessary barrier to reunification when Mother had more pressing elements of her case plan to focus on. The Court continued to find that J ----- was a dependent child.
On March 31, 2022, the Court held the Third Review Hearing. Prior to the hearing, the Court received an Affidavit of Publication, which certified that the service requirements concerning Father were completed. Ms. B ----- testified as to Mother's compliance with her case plan.
Regarding Mother's employment and basic needs, Ms. B ----- testified that Mother began having frequent nose bleeds at work, causing her to become lightheaded. Mother received emergency care for the nose bleeds. The doctor informed Mother that working in "cold storage" at the food packing facility was likely the source of her nose bleeds. Because Mother's work conditions triggered the nose bleeds and were thus untreatable, she was not permitted to return to work as the chronic nose bleeds created an unacceptable sanitation risk. Mother found a new job providing cleaning services on weekdays from 8:00am to 5:00pm.
As of the Third Review Hearing, Mother moved from Delaware to W---- P -----, Maryland. Due to increased rental prices and neighborhood safety, Ms. B ----- testified that Mother's housing options in Delaware were not favorable to reunification. Further, Mother believed that living in Maryland was safer and that she could make more money. Although Mother's housing options in Delaware were limited, Ms. B ----- stated that she would continue searching for appropriate housing in Delaware with Mother, so long as she wanted to.
Concerning Mother's immigration status, the CLASI attorney informed her that she would need to file a police report for the incident in E -----, Maryland, to become eligible for the U visa. The case could not move forward until Mother filed the report. Ms. K ------ offered to drive Mother to E -----, Maryland, to make the report following a scheduled visit with J ----- on April 8, 2022.
There was no evidence presented about whether Mother obtained her hospital records, as was requested by the Court during the Second Review Hearing. The Court ordered DSCYF to make efforts to acquire Mother's hospital records or to provide language services to help Mother request the documents herself. The Court stressed the importance of resolving Mother's immigration issues to lessen the constraints on her case plan caused by her immigration status.
Ms. K ------ updated the Court that J ----- would start kindergarten in the fall. She believed that J ----- would attend school in the -------- School District in N-- C -----, Delaware, because of the school district requirements for her foster home. There was no update as to J ----- 's immigration status.
J ----- began to receive dental work for her tooth decay. The Court renewed its request that DSCYF follow up on whether J ----- needed a vision appointment.
Because of Mother's move to Maryland, she missed two visits with J ----- . First, Mother's transportation option failed. Second, Mother could not make it home on time because she had been out running errands. Ms. V ----- noted that when Mother was able to visit J -----, it was evident the two have a loving and engaging relationship.
By Order dated April 5, 2022, the Court maintained its finding that J ----- was a dependent child and that custody shall remain with DSCYF. Additionally, the Court ordered DSCYF to accommodate Mother's weekly visitation with J ----- to account for her work schedule.
On May 9, 2022, the Court held a Permanency Hearing. At this hearing, Ms. V ----- stated that since the Third Review Hearing, Mother had seen J ----- once or twice. Ms. B ----- confirmed that Mother continued to experience car troubles, which impeded her ability to travel to J ----- . Because of this, Ms. K ------ explained that Foster Parents would accommodate Mother's transportation issues and require Mother to provide little notice before visiting J ----- .
Because the Court eliminated the element of substance abuse monitoring from Mother's case plan at the Second Review Hearing, Ms. V ----- inquired as to whether the visits with J ----- needed to be supervised. The Court ruled unsupervised visits between Mother and J ----- could begin at DSCYF's discretion.
Ms. K ------ informed the Court that Mother continued to provide cleaning services and that she had gained a few clients of her own. Mother still resided in W---- P -----, Maryland. However, Ms. V ----- stressed that it was DSCYF's goal for Mother to return to Delaware. She explained that if Mother remained in Maryland, then the circumstances would necessitate an Interstate Compact on the Placement of Children ("ICPC") referral. Mother expressed her apprehension about having a home assessment conducted at her then-Maryland residence. Ms. V ----- encouraged Mother to return to Delaware so that an ICPC would not be required and Mother could be better assisted while living in the same state as J ----- . Ms. K ------ testified that Mother would be willing to move back to Delaware if appropriate housing options became available. However, Ms. K ------ highlighted that Mother intended to remain in Maryland because the pay is higher, and she was familiar with the area.
Ms. V ----- emphasized her concerns about Mother remaining in Maryland. She noted that Ms. B -----' assistance could effectively cease as she could not cross state lines pursuant to her role. Ms. B ----- explained that pursuant to New Behavioral Network's policy if three in-person contacts are missed, the case can be closed. Mother missed three contacts. As such, Ms. B ----- stated that it was at her discretion to keep the case open.
Ms. K ------ updated the Court as to Mother's immigration status. As previously stated, to qualify for a U visa, Mother would need to be a victim of a crime, and that crime would need to be reported to the police. On April 28, 2021, while hospitalized at ----- Hospital in E -----, Maryland, Mother was assaulted by another patient in the hospital dining area. Prior to this hearing, Mother and DSCYF workers were told that Mother would need the hospital records and to file a separate report with the police department.
Ms. K ------ brought Mother to the E ----- Police Department on April 11, 2022. At the police station, an officer informed Ms. K ------ that because Mother was not in contact with the perpetrator, she would not need to file a police report. Ms. K ------ relayed this information to the CLASI attorney. On May 6, 2022, the CLASI attorney informed Ms. K ------ that Mother's case had been closed because of the time-lapse from the assault to the attempted filing of the report. Unless Mother was the victim of a more recent crime or trafficking, Ms. K ------ and Ms. V ----- indicated that obtaining a U visa was not a possibility for Mother.
Ms. K ------ informed the Court that an alternative to obtaining citizenship through a U visa would be if Mother sought asylum. Ms. K ------, Ms. B -----, Mr. Cave, and Ms. L--- offered three different avenues for Mother if representation by CLASI was no longer an option.
Ms. K ------ offered Catholic Charities and Ms. B ----- noted that she had worked with La Esperanza in Sussex County as resources. Mr. Cave suggested that DSCYF reach out to the St. Paul Center. Ms. L--- noted that the University of Baltimore Law School had an Immigration Clinic. The Court noted that the University of Maryland Law School also had an Immigration Clinic as a viable option for Mother.
Before the hearing, Mr. Harting filed a motion to change the permanency plan to concurrent goals of TPR/Adoption and Reunification. Mr. Harting stated that to date, Mother has failed to complete any elements of her case plan. He argued that making the goals concurrent would not require any immediate changes and that DSCYF would focus its efforts on reunification. While sympathetic to Mother's language barrier and immigration status issues, Mr. Harting noted that J----- had already been in DSCYF custody for a year. As such, Mother's failure to complete any element of her case plan could not be ignored, and the filing of the motion for concurrent permanency plans was appropriate.
In opposition, Mr. Hitchings explained that Mother has been unsuccessful in completing the elements of her case plan due to economic conditions and not because of her fitness as a parent. He offered an alternative permanency plan of Reunification/Guardianship. Mr. Cave agreed with
Mr. Hitchings and requested that the permanency plan continue to reflect a goal of Reunification because of Mother's immigration issues. The Court recognized how central the issues of Mother's immigration were to the progression of the case.
By Order dated May 16, 2022, the Court denied DSCYF's motion to change the permanency plan. The Court added that DSCYF could raise the motion again at future hearings if necessary. Further, the Court ordered DSCYF to coordinate with the suggested immigration service providers. Finally, the Court maintained its finding that J ----- was a dependent child and that she would remain in DSCYF custody.
On August 29, 2022, the Court held a Post-Permanency Review Hearing. At the hearing, Ms. K ------ informed the Court that J ----- would start kindergarten on August 30, 2022, at -------- Elementary School in N-- C -----, Delaware. At that time, J ----- still did not have Medicaid, but Ms. P -------- was able to obtain financial assistance to have J ----- seen at Nemours for her impending physical.
J ----- was enrolled in the My Young Life in Foster Care ("My Life") program. The program is intended to help children in foster care understand "who they are, where they came from, and where they are going."
Ms. N--- stated that since the Permanency Hearing, Mother visited J ----- on June 11, 2022, July 2, 2022, and August 21, 2022. Because of Mother's relocation to Maryland, the commute was three hours one way to visit J ----- . Thus, the visits were longer than the prescribed hour. Mother and J ----- went out in the community and shopped for clothes together. Ms. N--- testified that when Mother was unable to see J -----, she consistently called J ----- daily.
Regarding J ----- 's immigration status, Mr. Harting explained that since CLASI's closure of J ----- 's case, the next step to obtaining citizenship for J ----- would be through Special
Immigration Juvenile Status ("SIJS"). Mr. Harting explained that specific findings from the Court were required before CLASI could proceed. Mr. Harting and Mr. Cave jointly requested that the Court enter a SIJS Order. As provided by CLASI, Mr. Cave offered a form of order that would reflect the present proceeding. Because the SIJS Order required findings of dependency, the Court scheduled a separate hearing to develop a record for its determinations concerning jurisdiction, dependency, parental reunification status, and the best interests of J ----- .
Mother became employed as a nanny. Ms. K ------ testified that Mother worked six days a week, from 7:00am to 7:00pm, in this role. Because Mother was paid "under the table," she could not provide pay stubs to account for her employment. DSCYF required Mother to supplement the pay stubs with an employment letter, but she had not done so.
Mother continued to reside in W---- P -----, Maryland. She attempted to move, but her housing application was denied because she could not provide a work visa or a social security number. Ms. K ------ and Ms. N--- stressed to Mother that in order to begin the ICPC process, they would need to conduct a home assessment on Mother's current residence. At that time, Mother stated that the other tenants of the home were not comfortable with Mother releasing her address.
However, immediately preceding the hearing, Mother informed Ms. K ------ that the other tenants permitted Mother to provide her address for the home assessment.
Regarding Mother's immigration status, Ms. K ------ stated that Mother had a consultation with the Maryland Immigrant Legal Assistance Project ("MILAP") on July 18, 2022. Ms. K ------ learned that Mother may have been able to obtain a work permit but that MILAP could not provide this service. However, they would refer Mother to an agency that could help her. Ms. K ------ could not confirm a timeline for this process.
Mr. Harting stated that reunification was still the goal of the permanency plan. However, if Mother did not make progress on her immigration status or ICPC process, then DSCYF may explore options beyond reunification. Mr. Hitchings informed the Court that his assistance to Mother regarding her immigration status was limited to the services provided by DSCYF.
By Order dated September 12, 2022, the Court maintained its finding that J ----- was a dependent child and that she remain in DSCYF custody. DSCYF was ordered to continue efforts to obtain a referral for Mother to complete her work permit application and to start the ICPC process in Maryland. The Court scheduled the SIJS Hearing for October 24, 2022.
Mother was not present for the October 24, 2022 SIJS hearing. Ms. K ------ informed the
Court that Mother was unaware of the proceeding. Mr. Hitchings stated he sent a reminder email to Mother the Friday before the hearing with the appropriate Zoom link. Noting that Mother's presence was vital to the hearing, the Court continued the hearing to immediately follow the Second Post-Permanency Review Hearing on November 22, 2022.
On October 12, 2022, the Court confirmed the SIJS Hearing scheduled for October 24, 2022, beginning at 11:00am for one hour.
On November 22, 2022, the Court held the Second Post-Permanency Review Hearing. Ms. K ------ testified that Mother continued to reside in Maryland and that she was still employed as a nanny earning $900.00 a week. Ms. N--- testified that Mother had not complied with the housing element of her case plan because she had not provided her lease or a notarized letter from her landlord. Further, Mother had not complied with the employment element because she had not submitted a notarized letter of employment. The Court noted that by the time of the hearing, J----- had been in DSCYF custody for over a year.
Ms. N--- was concerned that due to Mother's work hours, Mother would need to ensure that J ----- had a residence at her employer's home. Ms. K ------ testified that this may be unnecessary because Mother was informed that as the children she nannies age, the mother will require less assistance from Mother. Because of the pace of the ICPC's progression, Ms. K ------ did not believe that a second home assessment would be necessary at Mother's employer's home.
Regarding Mother's immigration status, Ms. K ------ met with MILAP attorney C -------- S-----, Esquire ("Ms. S ----- "). Ms. S ----- stated that Mother's likely only legal option to remain in the country was via a work permit. To receive a work permit, J ----- would need to be granted SIJS, and Mother would need to report to immigration again. Once the SIJS Order for J ----- was entered, Ms. S ----- would formally refer Mother to Sanctuary Streets, an agency that would accompany and guide Mother through her immigration appearances.
The Court issued the attendant SIJS Order on December 6, 2022.
According to Ms. N---, the Maryland ICPC needed only a signature from her supervisor at DSCYF to move forward in the process. The signature was received the Friday before the Second Post-Permanency Review Hearing. Ms. P -------- clarified that if the ICPC containing Mother's W---- P -----, Maryland residence was accepted, another ICPC would be necessary to include Mother's employer's address. Ms. P -------- reasoned that if Mother were staying with her employer during the week, then a home assessment at both her residence and her employer's residence would be necessary. Further, if Mother were to move again, as she had mentioned doing, an additional ICPC would be required for Mother's new address.
Mother still had not obtained a driver's license, but she wanted to sell her old car because of frequent breakdowns.
The Court discussed the applicability of 42 U.S.C. § 675(5)(E), which states that when a child has been in foster care for 15 of the last 22 months, the agency "shall file or join a petition to terminate the parental rights of the child's parents" absent compelling reasons not to do so, such as the child being cared for by a relative or the state not having made reasonable efforts to reunify. As such, the Court emphasized that a practical and well-defined course forward was necessary, particularly in addressing Mother's housing issue.
42 U.S.C. § 675(5)(E) states: In the case of a child who has been in foster care under the responsibility of the State for 15 of the most recent 22 months, or, if a court of competent jurisdiction has determined a child to be an abandoned infant (as defined under State law) or has made a determination that the parent has committed murder of another child of the parent, committed voluntary manslaughter of another child of the parent, aided or abetted, attempted, conspired, or solicited to commit such a murder or such a voluntary manslaughter, or committed a felony assault that has resulted in serious bodily injury to the child or to another child of the parent, the State shall file a petition to terminate the parental rights of the child's parents (or, if such a petition has been filed by another party, seek to be joined as a party to the petition), and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption, unless
(i) at the option of the State, the child is being cared for by a relative;
(ii) a State agency has documented in the case plan (which shall be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the child; or
(iii) the State has not provided to the family of the child, consistent with the time period in the State case plan, such services as the State deems necessary for the safe return of the child to the child's home, if reasonable efforts of the type described in section 671(a)(15)(B)(ii) of this title are required to be made with respect to the child;
By Order dated December 14, 2022, custody of J ----- remained with DSCYF as she continued to be a dependent child. DSCYF was ordered to work with Mother to obtain a translated version of her birth certificate so that she could apply for her driver's license. Further, DSCYF was ordered to precisely explain to Mother the requirements of the required notarized documents.
Immediately following the Second Post-Permanency Review Hearing, the Court held J---- -'s SIJS Hearing. At the hearing, the Court found that if J ----- were to return to Guatemala, she would not be able to receive adequate care and protection from Mother's family in Guatemala. Further, due to Father's absence, either by death or abandonment, removing J ----- from the United States to live with her Father in Guatemala would not be in her best interest.
The Court took testimony regarding the best interest factors in 13 Del. C. § 722. Pursuant to this statute, the Court found that factors (1)-(7) supported J ----- remaining in the United States, whether in DSCYF custody or with Mother, and that factor (8) was neutral. The Court emphasized that no factor supported J ----- 's return to Guatemala.
For the complete § 722 analysis, refer to DSCYF v. Y---G ----- & Y---O No. CN21-02631, at 3-6, ¶ 10 (Del. Fam. December 6, 2022).
By Order dated December 6, 2022, the Court found that J ----- was dependent upon the
Family Court pursuant to 8 C.F.R. § 204.11(c)(6) because she "[h]as been the subject of judicial proceedings or administrative proceedings authorized or recognized by the juvenile court." As to Father, the Court held that J ----- was neglected and abandoned under 10 Del. C. § 901(18), 13 Del. C. § 1103(a)(2), and 13 Del. C. § 1902(1). As to Mother, J ----- continued to be dependent pursuant to 10 Del. C. § 901(8). Therefore, it was in J ----- 's best interest not to return to Guatemala and to remain in DSCYF custody or until reunification with Mother was appropriate.
(Matter Not Available)
On March 13, 2023, the Court held a Third Post-Permanency Review Hearing. At the hearing, Ms. K ------ testified that a team meeting was held on December 18, 2022, to discuss various aspects of Mother's case plan. In terms of employment, Ms. K ------ stated that Mother quit her former nanny job, where she made $900.00 per week, and now worked as a nanny for another family. Mother's hours were from 10:00am to 4:00pm, four days a week, earning $400 per week in cash. Mother stated that her boyfriend, E---- A -------- G ------- B ------ ("Mr. B ------ "), financially supplemented her lifestyle. DSCYF conducted a background check on Mr. B ------ and found that he had been deported in 2017 but had since returned to the United States with a work permit. DSCYF urged Mother to obtain a notarized letter of employment from her new employer.
Mother remained at her home in W---- P -----, Maryland. On March 1, 2023, a home assessment was done to finalize the ICPC process. After the evaluation, the property owner rescinded their approval to be involved in the ICPC process or any subsequent court proceeding. Further, they requested that Mother move out of the home by the end of March 2023. As of the hearing, Mother was searching for new housing with the intent to reside with Mr. B ------ . Once Mother obtained new housing, Ms. K ------ and Ms. N--- explained that a new request for a Maryland ICPC would be necessary and that Mother would need to provide either her lease or a notarized letter from her landlord.
Concerning J ----- 's immigration status, Ms. K ------ supplied Ms. S ----- with a copy of the SIJS Order. MILAP assigned a contract attorney to work with Mother in applying for a work permit. Ms. K ------ explained that she could not provide a timeline for approval as the process is heavily discretionary.
Mother and J ----- continued their daily FaceTime calls. Mother visited J ----- approximately once a month. Before the hearing, J ----- and Mother were supposed to visit, but Mother could not make the trip.
Ms. H---- testified at the hearing and spoke more about J ----- 's immigration status following the SIJS Order. To start the process, she submitted the required FOIA request to obtain a record of J ----- 's entries into the country. The request was denied. Ms. H---- referred the denial to A ----- D -----, Esquire ("Ms. D ----- "), an attorney with CLASI, for review and resubmission. Ms. H---- could not give a conclusive timeline for the reapplication.
Ms. K ------ reported that J ----- was a "very happy kid." Ms. H---- confirmed J ----- 's enrollment in the My Life program and that flyers had been sent to adoption resources to find interested families and ensure resources if the permanency goal moved to adoption. By the hearing, J ----- had spent nearly two years in foster care. Ms. H---- commended the loving and strong bond between J ----- and Mother but said that Mother still had made little progress towards completing her case plan. She discussed the possibility of placing J ----- with an adoptive family that would continue the meaningful relationship between Mother and J ----- . Ms. H---- was not aware of any individual who would qualify as a permanent guardian for J ----- .
Given that J ----- had been in foster care for almost twice the statutory limit, Ms. H----testified that if DSCYF petitioned for TPR/Adoption and Reunification, it would be within the Court's discretion to permit reunification during the pendency of the petition if Mother completed her case plan. Ms. H---- noted her concern about the feasibility of Mother accomplishing her case plan, particularly in regard to her housing. Further, she testified that while DSCYF completed Mr. B ------ 's background check, they had no evidence of his work permit or knew his country of origin or any related history. Lastly, she noted that J ----- was sad watching the other children leave her foster home pursuant to their permanency plans. Mx. Wester, on behalf of DSCYF, made an oral motion to change the permanency plan to concurrent TPR/Adoption and Reunification. Mr. Cave supported the motion.
The Court granted DSCYF's motion to change the permanency plan to TPR/Adoption and Reunification by Order dated March 27, 2023. The Court continued to find that J ----- was a dependent child and that custody of J ----- remained with DSCYF.
On April 20, 2023, DSCYF filed a Petition for Termination and Transfer of Parental Rights as to both Mother and Father. DSCYF asserted that termination of Parents' parental rights to J----- was sought pursuant to 13 Del. C. § 1103(a)(5) on the grounds that they are not able or have failed to plan adequately for J ----- 's physical needs or mental and emotional health and development, and at least one of the following conditions are met:
a. The child has been in DSCYF custody or placed by a licensed agency for at least one year.
b. The child has been in DSCYF custody or placed by a licensed agency for at least 6 months and the child came into care as an infant.
c. DSCYF previously had custody of the child or another child of the Respondent.
d. The Respondent has a history of dependency, neglect, abuse, or lack of care of the child or another child.
e. The Respondent is incapable of discharging parental responsibilities due to extended or repeated incarceration.
By Order dated April 24, 2023, the Court scheduled a TPR and Fourth Post-Permanency Review Hearing for June 7, 2023. Prior to hearing, Mr. Cave filed a motion for a child interview on June 2, 2023. The Court granted Mr. Cave's motion on June 5, 2023, stating that a time and date would be selected at the impending hearing.
On June 7, 2023, the Court held the first day of the TPR and Fourth Post-Permanency Review Hearing. At this hearing, DSCYF presented testimony from Ms. K ------, Ms. A -------, Dr. M----, Ms. P --------, and Ms. N---. Once DSCYF rested their case, Mr. Hitchings called Mother to testify. During Mr. Cave's cross-examination of Mother, he asked if Mother's language barrier had affected her understanding of the proceedings; she replied affirmatively. Mother confirmed that she was provided with the Spanish-translated court documents but explained that because Spanish is not her first language, she did not fully understand what she was reading. Mother stated that she signed her case plan without understanding the context of the case plan. Following this line of questioning, Mother became visibly emotional, and the Court subsequently took a brief recess.
After the recess, Mx. Wester, Mr. Hitchings, Mr. Cave, and L ----- L--- ("Ms. L---"), Mother's Spanish interpreter, requested to have a conference with the Court. They informed the Court that Mother does not speak Spanish as her first language. Instead, Mother speaks K'iche', a Mayan language of Guatemala. Ms. L--- stated that although Mother has spoken Spanish for approximately four years, her Spanish language comprehension is conversational at best and thus below the level necessary to comprehend the proceedings.
Ms. L--- explained to the Court that Mother had told her that she speaks a dialect of Spanish but had not told her that she speaks K'iche' out of embarrassment. Ms. L--- did not believe that Mother fully grasped the nature of the proceedings because of this language barrier. The Court continued the TPR and Fourth Post-Permanency Review Hearing to allow the parties to research the issue and determine a plan moving forward.
By Order dated June 13, 2023, the Court recognized the seriousness of the procedural safeguards in this case and the gravity of Mother's lack of understanding due to the language barrier. The Court ordered Mr. Hitchings to confer with Mother immediately and to find a K'iche' interpreter so that Mother could be fully apprised of the proceedings and explain the barriers to reunification with J ----- . Lastly, the Court requested that counsel submit a joint status report by June 23, 2023.
On June 21, 2023, DSCYF filed a motion to appoint a Frasier attorney. DSCYF alleged that at the Third Post-Permanency Review Hearing, the Office of the Child Advocate ("OCA") supported the change in permanency plan to the concurrent goals of TPR/Adoption and Reunification. At the June 7, 2023 TPR and Fourth Post-Permanency Hearing, OCA did not support TPR because the ICPC was still pending and because J ----- opposed termination. DSCYF argued that if J ----- wished to reunite with Mother, OCA must consider and make her desires known to the Court. Further, if J ----- 's wishes and the OCA's position on reunification conflicted, OCA must notify the Court. As such, DSCYF requested the appointment of a Frasier attorney due to conflicting positions of OCA.
Mr. Cave, on behalf of the OCA, argued that he did not indicate that he supported TPR/Adoption but rather that he supported the concurrent goals of TPR/Adoption and Reunification. Mr. Cave cited that Mother had completed many aspects of her case plan, but that confirmation of Mother's stable housing was contingent on the completion of the Maryland ICPC.
Further, Mr. Cave asserted that J ----- 's desires were one of several factors weighed when indicating his opposition to TPR/Adoption. As such, Mr. Cave offered that there was no conflict as J ----- 's wishes and the position of OCA were aligned. Following a Letter Decision and Order from the Court on September 25, 2023, requesting the status of the motion for appointment of a Frasier attorney, DSCYF requested that their motion be withdrawn on October 5, 2023.
On June 27, 2023, the Court entered a Stipulated Order whereby the parties agreed that Mr. Hitchings would review the hearing records with Mother and a K'iche' interpreter within one month of receipt of the recordings to determine if Mother's lack of understanding affected her ability to case plan and provide the Court with an update within one month of receipt of the recordings. Additionally, counsel agreed that if, after review of the recordings, there remained a dispute as to Mother's understanding of the requirements of her case plan, then a hearing on the matter would be necessary.
On August 28, 2023, DSCYF filed a motion to show cause as to why the review of the records had not been completed. DSCYF alleged that on July 24, 2023, staff for Mother's counsel picked up the copies of the recordings from DSCYF. Per the June 27, 2023, stipulation, counsel was to update the Court thirty days thereafter as to Mother's comprehension of the proceedings following review of the recordings. DSCYF noted that no motion had been filed requesting fees for a K'iche' interpreter. On August 30, 2023, Mr. Cave, on behalf of OCA, responded in support of DSCYF's motion.
On September 5, 2023, Mr. Hitchings, on behalf of Mother, filed a response to the motion. He asserted that because of muscle pain, he could not be in the office to coordinate a meeting with Mother. Mr. Hitchings admitted that he should have made a formal request for additional time.
However, he stated that J ----- would not have been harmed by an extension of time for Mother to hear relevant portions of the evidence regarding her case plan and the consequences for her failure to complete certain elements. Mr. Hitchings informed the Court that he had located a K'iche' interpreter by the name of Ms. S--- to assist Mother.
In his response, Mr. Hitchings stated that a meeting was scheduled on September 4, 2023, so that Mother, counsel, and Ms. S---, by telephone, could review the recordings. On September 2, 2023, Mother became ill and remained so through the meeting date. The next available meeting was for September 16, 2023, to accommodate Ms. S---'s availability as she resides in Washington State.
On September 14, 2023, the Court held a virtual case management conference to address the motion to show cause. Mr. Hitchings confirmed the statements made in his response and the pending meeting with Mother and Ms. S--- scheduled for September 16, 2023. He stated that Mother was aware that she needed to bring her lease and a notarized letter of employment to their meeting.
Mx. Wester expressed their concerns over the significant delay. Citing Ms. K ------' previous testimony regarding Mother's comprehension, they believed that Mother understood Spanish, except for a few words. As such, Mx. Wester did not believe that Mother's understanding of the proceedings was affected due to the lack of K'iche' translation. Mr. Cave supported Mx. Wester's assertion. He argued that while he was not in support of termination at the June 7, 2023 hearing, he remained aware of the length of time that J ----- has spent in foster care and Mother's substantial delay in the production of required documents and how these factors affect whether termination is in J ----- 's best interest.
Mr. Hitchings proposed an October resumption date for the TPR hearing, assuming that the K'iche' interpreter would be available for the hearing. Regarding the structure of the continuation, the Court concluded that the record would remain closed as to prior testimony but that it would not be opposed to reopening some portions of the testimony if necessary. The Court ordered that Mr. Hitchings provide a status report within ten days of his meeting with Mother and Ms. S---. The Court scheduled the continuation of the TPR Hearing for October 23, 2023.
On October 2, 2023, Mr. Hitchings filed a motion for continuance because Ms. S--- was unavailable for the October 23, 2023 TPR Hearing date. The Court granted the motion and rescheduled the hearing for November 20, 2023. In lieu of the October 23rd TPR hearing, the Court coordinated a Zoom conference to discuss the logistics of the rescheduled TPR hearing date, including how interpretation services would work over Zoom and to address how the TPR Hearing will resume procedurally.
Mr. Hitchings did not appear for the Zoom conference on October 23, 2023. This required the Court to postpone the discussion to October 31, 2023. During the rescheduled discussion, the Court confirmed the method of interpretation between Ms. S--- and Mother.
On November 13, 2023, Mr. Hitchings filed a motion for continued reunification services. Mr. Hitchings alleged that Mother had completed her case plan prior to the June 7, 2023 TPR Hearing date, and that she had needed only to submit housing and employment documentation. Mother has since provided her lease and notarized letter of employment to DSCYF.
In his motion, Mr. Hitchings explained that the Maryland ICPC was closed due to the extended time for failing to receive the required documentation. The remaining issue to be completed for the Maryland ICPC were the criminal background checks for Mother and Mr. B------. After completing their background checks, Mother was unable to submit the documents because the ICPC file was closed. Mother relayed to Mr. Hitchings that her main obstacle in submitting the forms was that she could not find a Spanish-speaking notary public. Maryland social worker J ----- W---- ("Ms. W----") informed Mr. Hitchings that Maryland could reopen the file if Delaware made a new ICPC request.
Mr. Hitchings argued that reunification efforts should continue because terminating parental rights is a significant encroachment upon Mother's fundamental right to parent her child. Further, Mr. Hitchings argued that Mother's only remaining impediment to fulfilling her case plan was related to suitable housing.
DSCYF argued that at no point during the prior two years did Mother indicate that she did not understand the nature of the proceedings. DSCYF asserted that Mother was compliant with her case plan, except for the elements of basic needs, financial resources, and housing. Mother's immigration status was also concerning. They alleged that Mother had still not provided income documentation.
Regarding the ICPC, DSCYF stated that the ICPC closed on October 6, 2023, due to Mother's lack of engagement. DSCYF cited that the Prince George's County Department of Social Services ("PGCDSS"), the agency responsible for the issuance of the ICPC, followed up with Mother numerous times before closing the file. A new ICPC would take an indeterminable amount of time to process, causing added delay to J ----- 's permanency.
In response to the motion, Mr. Cave confirmed that Mr. Hitchings had provided documentation of Mother's employment. He argued that because the ICPC documents were not provided in K'iche', Mother should not be faulted for failing to complete the ICPC. Further, he reasoned that if the only outstanding documents were Mother and Mr. B ------ 's background checks, then Mother should be afforded the opportunity to have a new ICPC referral.
Mr. Cave argued that Mother provided all necessary documentation related to the elements of her case plan. If the only unresolved issue is related to the Maryland ICPC, an ICPC may not be required if the Court found that J ----- was not dependent in Mother's care, as an ICPC does not apply to "fit, non-custodial parents."
In re DSCYF v. B.T.B.& M.B., Del. Fam., C. A. No. CS16-01645 at 11-13, Jones, J. (Mar. 14, 2018) (holding that an ICPC is inapplicable to fit, noncustodial parents when "a parent is fit, thus a child is not dependent in the parent's care, the Court may return the child to the out of state parent, without any approval from the receiving state. … [i]f the Court, as in this case, makes a determination that the child is no longer dependent in the care of their parent, continued approval by an out of state agency of the child's placement with the parent is unnecessary.")
On November 17, 2023, the Court held a conference call on the motion. The Court inquired whether the TPR Hearing should be continued to finish the new Maryland ICPC. Relying on In re DSCYF v. B.T.B. & M.B., Mr. Cave argued that if, at the TPR Hearing, Mother could show that she completed all the requirements of her case plan, then the Court could find J ----- is no longer dependent in Mother's care. Thus, an ICPC would not be required. Mr. Hitchings stated that he was reasonably confident that he could prove that Mother completed her case plan.
Ms. Markowski-Kelly opposed the continuance and the application of B.T.B. & M.B. to the instant matter. She argued that the facts of B.T.B. & M.B. were not similar because the delay in ICPC approval in B.T.B. stemmed from the foreign agency's failure to conduct the ICPC requirements timely. In the instant case, DSCYF argued that the delay was based on Mother's inability to provide documentation timely. The Court ruled that the TPR Hearing would not be continued. The Court confirmed that Mr. Hitchings could recall Mother, and then Mother's cross-examination by Mr. Cave could continue. The Court proceeded with the scheduled TPR Hearing on November 20, 2023.
Positions of the Parties
DSCYF argued there is clear and convincing evidence that it is in J ----- 's best interest for the parental rights of Mother and Father to be terminated and transferred in accordance with 13 Del. C. § 1103(a)(5), the ground of termination being failure to plan that Parents are not able or have failed to plan adequately for J ----- 's physical needs or mental and emotional health and development, and J ----- has been in DSCYF custody for at least a year. If the Court denies DSCYF's Petition to TPR, the State requested to keep the case open for 90 days to continue helping Mother in the transition of Johanna to her care.
On behalf of Mother, Mr. Hitchings opposed DSCYF's position, stating that Mother did not fail to plan and that it is not in J ----- 's best interest for Mother's rights to be terminated.
On behalf of J -----, Mr. Cave opposed DSCYF's position that it is in J ----- 's best interest for Mother's parental rights to be terminated. Further, Mr. Cave stated that the only outstanding element of Mother's case plan is her immigration status; however, he does not believe the failure of this element alone is sufficient to terminate Mother's parent rights in J ----- . Mr. Cave requested that the Court find that J ----- is no longer a dependent child in Mother's care and that custody of J ----- be rescinded from DSCYF to Mother, resolving the need for an ICPC.
J ----- wishes to return to Mother's care. During her interview, which took place following the hearing on November 20, 2023, J ----- expressed that while she enjoyed living with Foster Parents and their other foster children, she was unequivocal in her desire to live with Mother. J----- explained that she felt sad when the other foster children left Foster Parents' home, because she believed that those children returned to their parents. J ----- felt that it was unfair that she had not returned to Mother. When asked whether she would like to continue living with Foster Parents or Mother, J ----- indicated clearly that she wanted to return to Mother.
DISCUSSION
A. Legal Standard for Termination of Parental Rights
The United States Supreme Court has held that a parent's interest in his or her children is one of the "oldest of the fundamental liberty interests recognized by [the] Court." In addition, the Supreme Court has found that so long as a parent is fit, "there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Likewise, the Delaware Supreme Court has found that parental rights are "fundamental liberties" which may not be abrogated absent compelling circumstances.
Troxel v. Granville, 530 U.S. 57, 65 (2000).
Id. at 68-69.
In re Stevens, 652 A.2d 18, 24 (Del. 1995). See also Daber v. Div. of Child Protective Srvs., 470 A.2d 723, 726 (Del. 1983).
Although parental rights are important liberty interests, both the United States Supreme Court and the Delaware Supreme Court have acknowledged that the State has the power to limit parental rights to protect a child's health and welfare. In addition, the federal Adoption and Safe Families Act of 1997 ("ASFA") emphasizes the importance of child safety and a child's need for permanency by placing limits on the amount of time in which parents may rehabilitate themselves and assume their parental responsibilities, provided that the State has developed a meaningful case plan for the parents and made reasonable efforts to reunify the family. In accordance with Court rules, a hearing addressing permanency for children in foster care must be "held not later than 12 months from the time the child has 'entered foster care.'" Further, in cases where reunification with a parent continues to be the permanency plan, the Court shall schedule a review hearing within 90 days. These permanency review hearings must be conducted, at the minimum, every six months following the permanency hearing, as long as the child remains in DSCYF custody.
See Prince v. Massachusetts, 321 U.S. 158, 166-167 (1944); In the Matter of Burns, 519 A.2d 638, 645 (Del. 1986); See also Daber, 470 A.2d at 726 ("A society which arrogates to itself the power to intervene and disrupt [the parent-child relationship] can do so only for the most compelling reasons necessary to correct or protect a child from circumstances which directly threaten or affect the minor's physical or emotional health.").
In re K.L.T., 2001 WL 493113 (Del. Fam. Ct. Jan 22, 2001).
Del. Fam. Ct. Civ. R. 218.
Del. Fam. Ct. Civ. R. 218(e); The permanency goal of Mother's case plan remained as reunification until the Third Post-Permanency Review Hearing. At that point, the permanency plan became concurrent TPR/Adoption and Reunification.
Del. Fam. Ct. Civ. R. 219.
In Delaware, the statutory standard for terminating parental rights consists of a two-part analysis. First, the Court must be satisfied that one or more of the enumerated statutory grounds set forth in 13 Del. C. § 1103(a) has been established. If the statutory basis is failure to plan, the Court must review whether the State developed a meaningful case plan and made reasonable efforts to reunify the family or avoid out-of-home placement. Second, the Court must find that severing the parental ties is in the best interests of the child, as defined by 13 Del. C. § 722.
See Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
Id.; See also In re Hanks, 553 A.2d 830, 833 (Del. 1982).
DSCYF v. N.S. and R.T., 2009 WL 5206720, at *18 (Del. Fam. Ct. Dec 11, 2009).
In re Hanks, 553 A.2d at 833.
A clear and convincing standard is required for terminating parental rights due to the permanent nature of the proceedings and the importance of the parental rights at stake. The clear and convincing standard requires greater factual certainty than a preponderance of the evidence standard, thereby striking a fair balance between the rights of the parent and the State's legitimate concerns. The Delaware Supreme Court has described the clear and convincing standard of proof as "evidence that 'produces in the mind of the trier of fact an abiding conviction that the truth of [the] factual contentions [is] 'highly probable.'" In addition, clear and convincing evidence "means to prove something that is highly probable, reasonably certain, and free from serious doubt."
See Patricia A.F. v. James R.F., 451 A.2d 830, 832 (Del. 1982).
Id.
Hudak v. Procek, 806 A.2d 140, 147 Del. Supr. (2002). Citing Cerberus Int'l v. Apollo Mgmt., 794 A.2d 1141 (Del. Supr. 2002) (quoting In re Rowe, 566 A.2d 1001, 1003 (Del.Jud.1989)). See also Shipman v. Division of Social Services, 454 A.2d 767, 769 (Del.Fam.Ct.1982) (holding that clear and convincing means the degree of proof that will produce in the mind of the fact-finder "a firm belief or conviction as to allegations sought to be established"), aff'd, Betty J.B. v. Division of Social Services, 460 A.2d 528 (Del. Supr.1983). Accord 29 Am. Jur.2d Evidence § 157 (1994) (collecting cases); 2 John W. Strong, Mccormick On Evidence § 340 (5th ed. 2001) ("It has been persuasively suggested that [the clear and convincing standard] could be more simply and intelligibly translated to the jury if they were instructed that they must be persuaded that the truth of the contention is 'highly probable.'").
Clark v. Clark, 994 A.2d 744 (Table) *3 (Del. Supr. 2010).
The Court makes the following findings of fact and conclusions of law under the clear and convincing standard described above.
B. Statutory Grounds for Termination of Parental Rights
Pursuant to 13 Del. C. § 1103(a)(5), DSCYF seeks to terminate and transfer Mother and Father's parental rights to DSCYF on the grounds of failure to plan. While the Court is aware of how Mother's language barrier and immigration status have influenced the progression of her case plan, it still notes its concern over the significant delay in achieving permanency for J ----- .
13 Del. C. § 1103(a)(5), failure to plan, provides: A child is in DSCYF custody or placed by a licensed agency and the respondent is not able or has failed to plan adequately for the child's physical needs or mental and emotional health and development, and at least 1 of the following conditions are met:
a. The child has been in DSCYF custody or placed by a licensed agency for at least 1 year.
b. The child has been in DSCYF custody or placed by a licensed agency for at least 6 months and the child came into care as an infant.
c. DSCYF previously had custody of the child or another child of the respondent.
d. The respondent has a history of dependency, neglect, abuse, or lack of care of the child or another child.
e. The respondent is incapable of discharging parental responsibilities due to extended or repeated incarceration, but the Court may consider the respondent's postconviction conduct.
Section 1103(a)(5) explains that parental rights may be terminated if the parent has failed or has been unable to plan adequately for the child's physical needs or mental and emotional health and development, coupled with a finding of one more of the conditions listed in the statute. Here, the Court does not find that there is clear and convincing evidence showing that Mother failed to plan for J ----- 's needs.
Failure to Plan - Mother
While J ----- has been in DSCYF care, Mother has addressed the overall issues in her case plan. Each element of Mother's case plan is listed below.
Mother's original case plan included the element of Substance Abuse. The Court relieved Mother of this element at the Second Review Hearing.
a. Mental Health and Coping Skills
Mother was recommended for mental health counseling after her suicide attempt and hospitalization in April 2021. She engaged in counseling from May 2021 to approximately July 2021 with a bilingual therapist, J---- T ----- ("Ms. T ----- "), through Bethany Christian Services.
However, due to Mother's work schedule, the sessions ended. At the TPR Hearing, Ms. N--- testified that there are no mental health concerns for Mother. Ms. K ------ supported this assertion, agreeing that there is no indication that Mother's mental health has suffered since the suicidal incident in 2021. Mother has completed this element of her case plan.
At the Second Post-Permanency Review Hearing, Ms. Neal testified that DSCYF "considers Mother compliant with the mental health element because she previously sought professional services." DSCYF v. Y---G ----- & Y---O--- No. CN21-02631, at 2, ¶ 2(Del. Fam. December 14, 2022). Testimony offered at the Third Post-Permanency Review Hearing states Mother's continued compliance with this element. DSCYF v. Y---G ----- & Y---O No. CN21-02631, at 2, ¶ 2 (Del. Fam. March 27, 2023).
b. Basic Needs and Financial Resources
Mother has consistently been employed throughout these proceedings and her testimony regarding her employment was never challenged by DSCYF. The only issue was Mother's difficulty in providing verification of her employment which she cured at the final hearing. At the first TPR Hearing date, Mother informed the Court that the family she worked for went on a two-month vacation beginning on May 5, 2023. Mother stated that when her employer returned from vacation, she would be reinstated. At the second TPR Hearing date, Mother confirmed that her employer had returned from vacation, and she resumed working for the family.
Mother works as a nanny from 8:00am to 7:00pm, Monday through Friday. She receives $750.00 in cash per week. Mother explained that she had discussed reducing her hours with her employer if J ----- were returned to her care. She testified that her employer would accommodate her by permitting her to drop J ----- off at school in the mornings and pick her up in the afternoons.
Mother clarified that she would be able to do this because her employer works from home and helps Mother tend to the children.
For personal expenses, Mother stated that she pays $900.00 per month towards rent. Mr. B ------ pays the other half of the $1,800.00 monthly rental payment, as the couple share the home. Mother's other monthly expenses include a $70.00 car payment, a $55.00 phone plan, and $450.00 per month on food. When asked whether Mother's food expenses would increase if J ----- were in Mother's care, Mother stated that it would not because she is already accustomed to buying more food. Mother stated that if her relationship with Mr. B ------ ended, she would have the means to afford rent and her other expenses.
As of the first date of the TPR Hearing, Mother had not supplied a notarized letter of employment. However, Mother testified that she had a bank card. DSCYF inquired whether Mother knew that she could substitute a notarized letter of employment with her bank statements. Mother stated that she did not realize that until the hearing. At the second TPR Hearing date, Mr. Cave offered the notarized letter of employment from Mother's employer, without objection. Based on the testimony and evidence provided, the Court finds that Mother has sufficiently satisfied this element of her case plan.
c. Domestic Violence
Ms. V ----- previously testified that DSCYF encouraged the inclusion of the domestic violence element in Mother's case plan. She explained that Mother relayed that there was domestic violence in her relationship with Father when they lived in Guatemala. At the Third Post-Permanency Review Hearing, Ms. N--- confirmed that non-compliance with this element of
DSCYF v. Y---G-----& Y---O No. CN21-02631, at 6-7, ¶ 2f (Del. Fam. May 16, 2022).
Mother's case plan would not hinder Mother's reunification with J ----- . Presently, there are no domestic violence services in place. Testimony throughout the proceedings has shown that there are no concerns regarding domestic violence as to Mother. As such, Mother is compliant with the domestic violence aspect of her case plan.
d. Social Support System
Aside from J -----, Mother has no other biological family members residing in the United States. However, even with a language barrier, Mother has created a network of social support. Mother has been in a healthy relationship with Mr. B ------ for approximately two years. She also has a friend in Maryland who provides support for her and helps translate for Mother. At the Third Post-Permanency Review Hearing, Ms. N--- testified that Mother provided a list of people who support her. As such, she was deemed compliant with this element of her case plan. The Court continues to find that Mother is compliant with this element of her case plan.
DSCYF v. Y---G-----& Y---O No. CN21-02631, at 3, ¶ 2g (Del. Fam. March 27, 2022).
e. Immigration Status
Mother actively sought various avenues of obtaining citizenship for herself. After she did not qualify for a U visa, Mother worked with MILAP attorneys to determine whether she was eligible for a work permit. As of the first day of the TPR hearing on June 7, 2023, Mother stated that her work permit application was still pending. However, at the November 20, 2023 hearing, Mother testified that her MILAP attorney informed her that there were no remaining possibilities for her to obtain citizenship.
In closing, Mr. Cave argued that while Mother's immigration status remains an outstanding requirement of her case plan, this failure alone is not a sufficient reason to terminate her parental rights, nor should it be a reason to keep J ----- in DSCYF custody. The Court agrees with Mr. Cave.
While Mother cannot be deemed necessarily compliant with this element, her current immigration status will not deter reunification with J ----- .
f. Housing
Mother obtained suitable housing in C ------, Maryland. She and Mr. B ------ rent the basement of a home. Ms. K ------ previously testified on June 7, 2023 that she had seen Mother's lease and that the tenants listed were Mother, Mr. B ------, and J ----- . Mr. Cave introduced a copy of Mother's lease to the Court at the November 20, 2023, hearing. The basement has two bedrooms, a kitchen, a living room, and a bathroom. There is a separate entrance from the upstairs home, and the basement is not accessible from inside the upstairs home. Mother has kept the second bedroom for J ----- .
An official home assessment of Mother's home has not occurred. Ms. S ------ visited the house prior to the November 20, 2023 hearing and she commended Mother's home for being clean, well-lit, and overall, a "very nice living space." Ms. S ------ had no concerns about J ----- living in the home and noted that Mother had set up a bedroom for J ----- . She stated that one of the walls in the bedroom is adorned with J ----- 's achievements. Mother painted the bedroom pink and furnished it with pink furniture. Ms. S ------ regarded the room as a "very welcoming space, and it showed a lot of love." As previously stated, pictures of Mother's home were admitted into evidence and were consistent with Ms. S ------ 's description of the home.
Ms. Markowski-Kelly asserted that Ms. S ------ does not have the background nor the qualifications to conduct a home assessment to the level necessary for DSCYF. However, the Court finds that the testimony presented by Ms. S ------ and the photographic evidence of Mother's home, admitted without objection, satisfy the Court's obligation to assess Mother's residence for suitability.
In summary, it is undisputed that J ----- has been in foster care beyond the permissible statutory allowance. The Court has remained sympathetic to Mother's unique circumstances that have caused delay in this matter. Throughout the proceedings, the Court commended Mother's continued progress in completing her case plan despite her distinctive challenges.
Until the Third Post-Permanency Review Hearing held on March 13, 2023, the permanency plan for Mother was reunification. Upon DSCYF's second request, the Court modified the permanency plan to concurrent TPR/Adoption and Reunification when J ----- neared the two-year mark in foster care. Though the length of time J ----- has been in care is troubling, Mother consistently progressed in completing elements of her case plan, which was validated by the continuation of the permanency plan as reunification for almost two years of the proceedings.
Accordingly, J ----- 's exceedingly lengthy time spent in DSCYF custody will not be overlooked; however, this fact alone is not dispositive of Mother's ability to care for J ----- 's needs, given the circumstances. The testimony has consistently been that Mother and J ----- have a strong bond and have remained in constant contact. The Court notes that while the Social Report reflected that termination of parental rights appeared to be in J ----- 's best interests, for the reasons set forth above, the Court does not adopt this recommendation.
In conclusion, the Court does not find that DSCYF proved by clear and convincing evidence that Mother has failed to plan for J ----- 's needs adequately.
Father
Pursuant to 13 Del. C. § 1103(b), the Court may not terminate the parental rights of one parent and leave only one parent holding parental rights unless the Court finds that the continuation of the rights to be terminated would be harmful to J ----- . In this case, the Court has found, supra, that DSCYF has not established, by clear and convincing evidence, that Mother failed to plan for J ----- 's care. To terminate Father's parent rights would result in only parent, Mother, holding parental rights, and therefore, the Court must find that continuing Father's rights would be harmful to J ----- .
The record reflects that Father has not appeared nor participated in any of the proceedings. Because of Father's absence, DSCYF was not able to case plan with him, and DSCYF presented no evidence regarding Father. Without such evidence, the Court cannot make the determination under Section 1103(b) that continuing Father's parental rights would be harmful to J ----- .
C. ICPC Applicability
Following the Third Review Hearing, Mother moved from Delaware to Maryland. At the Permanency Hearing, Ms. V ----- explained that if Mother were to remain in Maryland, DSCYF would need to begin the ICPC process to assess Mother's home in Maryland. Mother received a list of required documentation to provide to fulfill the ICPC. Because of the language barrier and notarization delays, Mother's ICPC case was closed due to her untimely submission of documents. At the November 20, 2023 hearing, Ms. Markowski-Kelly asked the Court not to renew the ICPC, as Mother's delay in producing documentation further delayed J ----- 's permanency. Relying on DSCYF v. B.T.B.& M.B., Mr. Cave stated that a new ICPC request would be unnecessary if the Court finds that J ----- is not dependent in Mother's care.
DSCYF v. B.T.B.& M.B., Del. Fam., C. A. No. CS16-01645 at 12-13, Jones, J. (Mar. 14, 2018).
This Court may rescind custody to a parent upon a finding that the child is no longer dependent, neglected, or abused in the parent's care. At this time, the Court is unable to find that J ----- continues to be dependent, neglected, or abused in Mother's care. Mother has successfully completed the elements of her case plan. Though there may have been questions regarding Mother's ability to verify her housing and employment, these concerns have been addressed by the evidence of Mother's employment, her lease, and Ms. S ------ 's visit to Mother's home.
13 Del. C. § 2513(c); see also DSCYF v. B.T.B.& M.B., Del. Fam., C. A. No. CS16-01645 at 11-13, Jones, J. (Mar. 14, 2018).
Because the Court finds that J ----- is no longer dependent in Mother's care, the Court holds that the need for an ICPC is no longer applicable to Mother.
CONCLUSION
This case has caused this Court concern for two reasons: the inordinate length of time that J ----- has remained in DSCYF custody; and the troubling issues surrounding Mother's comprehension of these proceedings due to a language barrier not discovered until the TPR hearing. As of the date of this Order, J ----- will have been in DSCYF custody for almost 1,000 days, nearly triple the statutory allowance. Throughout the proceedings, the Court has remained sympathetic to Mother as barriers such as verification of employment and housing, and her immigration status have unduly delayed permanency/reunification. Mr. Hitchings referred to the lag as "deplorable," and the Court agrees with his assessment.
However, the Court recognizes that Mother did not admit to her lack of understanding of the proceedings until her parental rights were on the precipice of termination. While the Court can understand the difficulty the language barrier created for Mother, her failure to comprehend the severity of the issues before the Court hindered the progression of this case and should have been identified sooner.
It is fortunate that cases like this are an anomaly, but it is equally unfortunate that the circumstances of this case led to J ----- enduring a prolonged stay in foster care while she witnessed other children either being adopted or reunified with their families. The Court understands that there is question as to whether Mother understood sufficient Spanish, both written and spoken, to have complied with her case plan. However, this Judge observed, firsthand, Mother's reaction during the first day of the TPR hearing when it was made clear to her that the issue before the Court was whether her parental rights in J ----- should be severed. In a legal environment that emphasizes access to justice, procedural fairness, and diversity we could have and should have done better in this case to ensure that Mother had the appropriate translation services. Had we done so, perhaps J ----- would not have lingered in foster care.
DSCYF did not prove by clear and convincing evidence that Mother and Father's parental rights should be terminated on the grounds stated in 13 Del. C. § 1103(a)(5), failure to plan. The Court also finds that J ----- is no longer dependent in Mother's care.
THEREFORE, the Court DENIES DSCYF's Petition for Termination and Transfer of Parental Rights as to Mother and Father. Custody of J ----- is rescinded from DSCYF to Mother.
DSCYF shall keep Mother's case open for ninety (90) days following the issuance of this Order to provide assistance to Mother with J ----- 's transition to her full-time care.
IT IS SO ORDERED.