Div. of Family Servs. v. A.L.

Full title: DIVISION OF FAMILY SERVICES, Petitioner, v. A.L. AND UNKNOWN FATHER…

Court: FAMILY COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Date published: May 31, 2016

FILE NO.: 16-01-09TN (Del. Fam. May. 31, 2016)

Opinion

FILE NO.: 16-01-09TN PETITION NO.: 16-01638 FILE NO.: CN06-03653 PETITION NO.: 15-39238

05-31-2016

DIVISION OF FAMILY SERVICES, Petitioner, v. A.L. AND UNKNOWN FATHER, Respondents. C.C.,SR., Petitioner, v. A.L., UNKNOWN FATHER, AND DIVISION OF FAMILY SERVICES

Jonathan Harting, Esquire, Deputy Attorney General, for Division of Family Services Brian S. Eng, Esquire and Laura J. Waterland, Esquire, Attorneys for C.C., Sr. Alfred Lindh, Esquire, Attorney for Court Appointed Special Advocate, Kim DeShields

Hitch, J.

PETITION FOR TERMINATION OF PARENTAL RIGHTS PETITION FOR GUARDIANSHIP ORDER Jonathan Harting, Esquire, Deputy Attorney General, for Division of Family Services
Brian S. Eng, Esquire and Laura J. Waterland, Esquire, Attorneys for C.C., Sr.
Alfred Lindh, Esquire, Attorney for Court Appointed Special Advocate, Kim DeShields Hitch, J.

NATURE OF THE PROCEEDINGS

This is the Court's decision on a Petition to Terminate Parental Rights filed by the Department of Services for Children, Youth and Their Families ("DSCYF") through the Division of Family Services ("DFS") on January 21, 2016 in the interest of CHILD, ("CHILD"), born April 6, 2005. The Petition seeks to terminate the parental rights of A. L. ("Mother") and the Unknown Father on the grounds of their failure to plan.¹ DFS also filed to terminate Mother's parental rights on the grounds that Mother's parental rights over siblings of CHILD'S have been involuntarily terminated.² Notice of the Petition and Trial date to Mother and Father was published in The News Journal and the Democrat and Chronicle, a New York paper, on January 29 and February 5 and 12, 2016.³ Neither parent filed an Answer to the Petition.

1 See 13 Del. C. § 1103(a)(5).

2 See 13 Del. C. § 1103(a)(6).

3 Personal service of the Petitions was attempted but unsuccessful on Mother via certified mail at her North Carolina and Pennsylvania addresses. Heather Yacabell, the DFS treatment worker, learned only recently that Mother was in Elkton, Maryland and spoke with her via telephone on March 10, 2016, at which time she advised Mother of the TPR Trial and Grandfather's Petition.

C. C., Sr. ("Grandfather") filed a Petition for Guardianship of CHILD on December 22, 2015, along with an Affidavit in Support of Application to Proceed In Forma Pauperis. The Application to Proceed In Forma Pauperis was granted by the Court on January 4, 2016. On February 19, 2016, Grandfather filed a Motion for Leave to Amend his Petition to a Petition for Permanent Guardianship along with a Motion to Consolidate the Petition with the Trial on the Petition for Termination of Parental Rights ("TPR"). On March 4, 2016, the Court granted Grandfather leave to amend his Petition and reserved decision regarding the Motion to Consolidate as the Petition was deficient.⁴ On March 10, 2016, Grandfather filed a Motion for continuance or, in the alternative, to rescind the request to amend the Petition. The Motion was withdrawn prior to the start of Trial.⁵ Following Trial, Grandfather filed a second Motion for leave to amend his Petition from Permanent Guardianship back to Guardianship as Grandfather was unable to secure a Social Report.⁶ The Court granted the Motion on April 4, 2016.

4 A Social Report had not been submitted pursuant to 13 Del. C. §2354.

5 Counsel for Grandfather advised they were unable to obtain a Social Report prior to the hearing. With the agreement of opposing counsel, the Court permitted Grandfather to submit a Social Report by April 15, 2016. The Court granted DFS and the CASA until April 19, 2016 to advise whether they would need additional Trial time to cross-examine regarding the Social Report.

6 Grandfather's Motion reflects several agencies were contacted and either do not perform the service or were unwilling to perform the service for various reasons.

The Court held Trial on March 17, 2016 for which DFS appeared through Heather Yacabell and was represented by Jonathan Harting, Esquire, Deputy Attorney General. Neither Mother nor the Unknown Father appeared. The Court Appointed Special Advocate ("CASA") appeared through Monica Porter⁷, and was represented by Alfred Lindh, Esquire. Grandfather appeared and was represented by Brian Eng, Esquire.⁸ The Court interviewed CHILD on April 22, 2016 and heard closing arguments from counsel on April 28, 2016.

7 The CASA, Evelyn Murray, fell ill prior to Trial and was unable to attend. She conveyed her position to counsel prior to Trial, she supported the DFS Petition for Termination of Parental Rights and took no position on Grandfather's Petitioner for Permanent Guardianship. On April 22, 2016, a new CASA, Kim DeShields, was appointed. At closing argument six days later, Ms. DeShields opposed the TPR Petition in support of Grandfather being given an undetermined amount of time to move forward with his Petition for Guardianship.

8 Laura Waterland, Esquire appeared as second chair but did not conduct any examinations of witnesses or make argument to the Court but for a brief exchange with the Court during Trial.

At the outset of Trial, DFS moved into evidence, without objection, the prior Orders entered in the Dependency/Neglect action involving CHILD⁹ and the Social Report in support of the DFS Petition¹⁰ as required by 13 Del. C. § 1105(c). The Court also advised judicial notice would be taken of the Dependency/Neglect Files and the related Family Court files involving the family. DFS conceded CHILD is dependent in the care of both parents, a statutory requirement of Grandfather's Petition for Guardianship.¹¹ Likewise, Grandfather conceded DFS established clear and convincing evidence of the statutory grounds for termination of parental rights against both Mother and Father.¹²

9 See DFS Exhibit #1.

10 See DFS Exhibit #2.

11 See 13 Del. C. §2330(a) (2).

12 See 13 Del. C. § 1103(a)(5) and (6).

PROCEDURAL HISTORY & FINDINGS OF FACT

On October 2, 2015, DFS filed a Dependency/Neglect Petition and a Motion and Affidavit for Emergency Ex Parte Order against Mother, the Unknown Father and Grandfather in the interest of CHILD, alleging Mother's whereabouts were unknown and her parental rights over her two other children had previously been involuntarily terminated, that Father's identity was unknown, and that Grandfather was unable to meet the child's basic needs.¹³ DFS was granted Ex Parte Custody of CHILD the same date.¹⁴. A Preliminary Protective Hearing was held on October 7, 2015 at which time probable cause was found that CHILD continued to be dependent in the care of his parents and Grandfather¹⁵. Neither parent appeared for the hearing or any subsequent hearings between October 7, 2015 and April 28, 2016. At the time, Mother was believed to be residing in New York but refused to provide DFS with her address. Grandfather alleged S. T. might be CHILD's father.¹⁶ The Court continued CHILD in the care of DFS while placing him with Deborah Scott, a paraprofessional who previously taught CHILD and had taken an interest in his care.¹⁷

13 The Petition alleges multiple concerns regarding CHILD's care; the Court noted a general inability to care for him in the Ex Parte Order.

14 DFS/DSCYF v. A.L./Unknown Father, CN06-03653, Pet. No.: 15-30062, J. Coppadge (Oct. 1, 2015) (Ex Parte Custody Order on Division of Family Services Filings).

15 The Court's Orders in the Dependency/Neglect action discuss at length the concerns regarding Grandfather's care of CHILD. Those finding are discussed below and incorporated herein by reference.

16 Heather Yacabell testified Grandfather believed Mr. Tappia to be an illegal alien from Mexico and that he did not speak English. DFS obtained an address for a Severino Tappia through the Division of Motor Vehicles and the Delaware Judicial Information System. Letters in Spanish were mailed to the addresses. DFS never received a response from Mr. Tappia.

17 DSCYF v. A.L., C.C. and Unknown Father, CN06-03653, Pet. No.: 15-30062, J. Coppadge (Oct. 16, 2015) (Preliminary Protective Hearing Order).

An Adjudicatory Hearing was held on November 3, 2015 at which time CHILD was found to be dependent and neglected in the care of his parents. The Court further found it was in CHILD's best interests that he be placed in the care of DFS instead of Grandfather or his parents. The Court found Grandfather was unable to "provide a safe and clean environment for CHILD" and that he had "failed to provide for CHILD's necessary care resulting in CHILD becoming parentified, suffering physically through unhealthy nutrition, and not having his educational and emotional needs met."¹⁸

18 DSCYF v. A.L., Unknown Father and C.C., Sr., CN06-03653, Pet. No.: 15-30062, J. Hitch (Nov. 4, 2015) (Adjudicatory Hearing Order).

On November 12, 2015, DFS filed a Motion to be relieved of providing reasonable efforts towards reunification between CHILD and Mother pursuant to 13 Del. C. §1103(d) ¹⁹ and §1103(a)(6)²⁰. On November 20, 2015, DFS filed a Motion to change the permanency goal for CHILD to TPR and adoption.

19 13 Del. C. §1103(d) states: The Department is not required to perform, but is not prohibited from performing, reunification and related services as outlined in Chapter 90 of Title 29 when the grounds for termination of parental rights are those stated in paragraph (a)(2), (4), (6), (7) or (8) of this section.

20 13 Del. C. §1103(a) (6) states: The respondent's parental rights over a sibling of the child who is the subject of the petition have been involuntarily terminated in a prior proceeding.

A Dispositional Hearing was held on December 11, 2015. The Court clarified that Grandfather's Guardianship over CHILD had been terminated through the Adjudicatory Order and that if he desired to care for CHILD in the future a Petition would need to be filed. The Court noted Grandfather represented he was taking steps to improve his home. Following the Dispositional Hearing, the Court granted the Motion for DFS to be relieved of providing reasonable efforts towards reunification with Mother and the Motion to change the goal to TPR. Trial on the Petition for TPR was scheduled for March 17, 2016.

At the TPR Trial, Heather Yacabell, the DFS treatment worker, testified Mother had little contact with CHILD prior to his entry into DFS custody and that they had no relationship presently. Mother has not attended any of his medical appointments nor had regular visitation with him. Mother has a lengthy history with DFS and her parental rights were involuntarily terminated on January 6, 2015 over CHILD's half-siblings, T. C.-H., born December 29, 2011 and J. C.-H., born June 14, 2010.²¹ Mother has a history of transience and moved on a regular basis throughout the history of her prior Dependency/Neglect action involving T. and J. On October 2, 2015, shortly after CHILD entered DFS custody, Mother advised Ms. Yacabell she was unable to care for CHILD and that she had recently moved to Rochester, New York from Texas. She moved to Texas after meeting a man on-line, who then kicked her out when he met a new woman on-line.

21 See DSCYF v. A.L. and T. H., File No.: 14-10-01TN, Pet. No.: 14-26935, J. Hitch (Jan. 6, 2015).

Ms. Yacabell testified she spoke with Mother at length via telephone on March 10, 2016, after being provided information through Grandfather's counsel that Mother was residing in Elkton, Maryland. Mother advised she was unable to care for CHILD and believes he is doing well with Ms. Scott. Mother advised she did not support Grandfather's Petition for Permanent Guardianship because she "saw and heard him do bad things to CHILD."

Ms. Yacabell testified DFS still had no contact from any men claiming to be CHILD's father and Mr. Tappia had not contacted DFS as of the date of Trial. DFS explored other maternal relatives for the care of CHILD without success. DFS mailed a letter to Grandfather's estranged wife on October 8, 2015 but received no response. DFS also mailed a letter to C. M., Grandfather's son, and spoke with him on October 6 and 7, 2015. He advised he is unable to care for CHILD as he lives in North Carolina and has his own family making him unable to financially afford the care of CHILD. DFS is aware of no other maternal or paternal relatives able to care for CHILD.

ANALYSIS

In Delaware, termination of parental rights is based on a two-step analysis. First, there must be proof of an enumerated statutory basis for the termination of parental rights.²² Second, there must be a determination that severing the parental rights is in the best interest of the child.²³ Parental rights arise from a natural relationship between parent and child and the law has traditionally recognized these rights as fundamental liberties.²⁴ As fundamental liberties, these rights may not be abrogated in the absence of the most compelling reasons.²⁵ The Supreme Court of the State of Delaware has recognized the Court must make a finding of both an enumerated statutory ground and a determination by clear and convincing evidence that severing the parental tie would be in the child's best interest.²⁶

22 See Div. of Family Servs. v. Hutton, 765 A.2d 1267, 1271 (Del. 1971); see also Shepherd v. Clemens, 752 A.2d 533, 533-37 (Del. 2000) (en banc).

23 See Hutton, 765 A.2d at 1271.

24 See In re Kelly Stevens, 652 A.2d 18, 24 (Del. 1995); see also In re Burns, 519 A.2d 638, 645 (Del. 1986) and Daber v. Division of Child Protective Services, 470 A.2d 723, 726 (Del. 1983).

25 See Stevens, 652 A.2d at 24.

26 See In re Hanks, 553 A.2d 1171, 1178 (Del. 1989).

Based upon the evidence, the Court is satisfied DFS has proven by clear and convincing evidence that Mother and Father have failed to plan for reunification with CHILD in that they have failed to plan adequately for his physical needs or mental and emotional health and development.²⁷ Both parents have effectively abandoned CHILD as he was left in the care of Grandfather and neither has had any contact with him since he entered DFS custody in October 2015. The Court finds neither parent is able or willing to assume promptly legal and physical custody of CHILD, and to pay for his support, in accordance with their financial means.²⁸ There is a history of neglect or lack of care of CHILD by both parents as CHILD has been in the guardianship of Grandfather since 2006. Both parents have neglected CHILD through their failure to have any significant contact with CHILD in the past couple of years, or to check on the quality of care being provided to CHILD by Grandfather.²⁹ Finally, the failure to terminate the relationship of parent and child will result in continued emotional instability or physical risk to CHILD.³⁰ The Court's rationale for this finding is discussed in the best interest analysis below as it relates to his experience residing with Grandfather. That discussion is incorporated herein by reference.

27 13 Del. C. §1103 (a)(5) states in relevant part:

The procedure for termination of parental rights for the purpose of adoption or, if a suitable adoption plan cannot be effected, for the purpose of providing for the care of the child by some other plan which may or may not contemplate the continued possibility of eventual adoption, may be initiated whenever it appears to be in the child's best interest and that 1 or more of the following grounds exist:

(5) The parent or parents of the child, or any person or persons holding parental rights over the child, are not able, or have failed, to plan adequately for the child's physical needs or mental and emotional health and development, and 1 or more of the following conditions are met:

a. In the case of a child in the care of the Department or a licensed agency:

1. The child has been in the care of the Department or licensed agency for a period of 1 year, or for a period of 6 months in the case of a child who comes into care as an infant, or there is a history of previous placement or placements of this child; or
2. There is a history of neglect, abuse or lack of care of the child or other children by the respondent; or
3. The respondent is incapable of discharging parental responsibilities due to extended or repeated incarceration, except that the Court may consider post conviction conduct of the respondent; or
4. The respondent is not able or willing to assume promptly legal and physical custody of the child, and to pay for the child's support, in accordance with the respondent's financial means; or
5. Failure to terminate the relationship of parent and child will result in continued emotional instability or physical risk to the child. In making a determination under this paragraph, the Court shall consider all relevant factors, including:

A. Whether the conditions that led to the child's placement, or similar conditions of a harmful nature, continue to exist and there appears to be little likelihood that these conditions will be remedied at an early date which would enable the respondent to discharge parental responsibilities so that the child can be returned to the respondent in the near future;
B. The respondent's efforts to assert parental rights of the child, and the role of other persons in thwarting the respondent's efforts to assert such rights;
C. The respondent's ability to care for the child, the age of the child, the quality of any previous relationship between the respondent and the child or any other children;
D. The effect of a change of physical custody on the child; and
E. The effect of a delay in termination on the chances for a child to be placed for adoption.

b. In the case of a child in the home of a stepparent, guardian, permanent guardian or blood relative:

1. The child has resided in the home of the stepparent, guardian, permanent guardian or blood relative for a period of at least 1 year, or for a period of 6 months in the case of an infant; and
2. The Court finds the respondent is incapable of discharging parental responsibilities, and there appears to be little likelihood that the respondent will be able to discharge such parental responsibilities in the near future.

28 See 13 Del. C. §1103 (a)(5)(a)(4).

29 See 13 Del. C. §1103 (a)(5)(a)(2).

30 See 13 Del. C. §1103(a)(5)(a)(5).

The Court also finds the conditions that led to CHILD's placement, the parents' neglect and failure to plan for him, continue to exist and there appears little likelihood the conditions will be remedied at an early date to enable the parents to discharge their parental responsibilities over CHILD such that he could be returned to them in the near future. Father's identity is unknown and he has never cared for CHILD. Mother has failed to care for CHILD for at least the past couple of years. Neither parent has exerted any effort to assert their parental rights over CHILD, despite Mother knowing CHILD is in foster care and suffered neglect in the care of Grandfather. Mother has no current relationship with CHILD and Father has never met him. Although it is unknown whether Grandfather thwarted Mother's relationship, DFS has not. DFS continued to make efforts to reach out to Mother despite knowing she had failed to plan previously for her two other children. Instead, Mother has repeatedly advised she is unable to care for CHILD. CHILD is not presently in an adoptive home, but the Court finds his change in placement from Grandfather's home has been beneficial to him and placement for adoption is in his best interests. As CHILD has recently turned eleven years of age, proceeding to adoption quickly is in his best interests.³¹

31 See 13 Del. C. § 1103(a)(5)(a)(5)(A-E).

In addition to her failure to plan, the Court finds by clear and convincing evidence that Mother's parental rights over CHILD's half-siblings, T. and J., were involuntarily terminated on January 6, 2005 thereby satisfying grounds for the termination of her parental rights over CHILD pursuant to 13 Del. C. § 1103(a)(6).³²

32 See DSCYF v. A.L. and T. H., File No.: 16-01-09TN, Pet. No.: 16-01638, J. Hitch (Jan. 2005.

The Court is satisfied by clear and convincing evidence that DFS has made reasonable efforts to reunify CHILD with Father and was relieved of the requirement to provide reasonable efforts towards reunification with Mother. Although Grandfather concedes DFS has established clear and convincing evidence of the statutory grounds for termination of parental rights against both Mother and Father, Grandfather argues DFS failed to make reasonable efforts to reunify CHILD with him. Grandfather asserts DFS is not only required to provide reunification services with a parent, but also with a guardian. Grandfather failed to allege any statutory basis or case law in support of his position; he simply argues that as the guardian he was entitled to reunification services and that the services DFS did provide were not reasonable under Title II of the Americans with Disabilities Act ("ADA"), which prohibits public entities from discriminating against disabled individuals.³³ Because the Court finds Grandfather was not entitled to reunification services under Delaware law or the Adoption and Safe Families Act ("ASFA")³⁴, the Court will not address Grandfather's claim that the services provided to him were in violation of the ADA.

33 See 42 U.S.C. § 12132 which states in relevant part: "[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."

34 42 U.S.C. §§ 620-79.

In making the determination that DFS is not obligated to provide reunification services to a guardian, the Court examined both ASFA and Delaware law. The Court may engage in statutory construction only when the statute at issue is ambiguous and the meaning cannot clearly be ascertained.³⁵ "A statute will be considered ambiguous when it is reasonably susceptible of different conclusions or interpretations."³⁶ Because whether guardians are "parents" entitled to reunification services under ASFA and Delaware law is somewhat ambiguous, the question before the Court involves one of statutory construction - the goal of which is to "determine and give effect to legislative intent."³⁷ Where the statutory text is ambiguous, the Court will resort to other sources, including relevant public policy, for guidance as to the statute's apparent purpose.³⁸ In carrying out its interpretive task, this Court must read each section of the statute in light of all the others to produce a harmonious whole.³⁹

35 Newtowne Vill. Serv. Corp. v. Newtowne Rd. Dev. Co., 772 A.2d 172, 175 (Del. 2001).

36 Id.

37 LeVan v. Independence Mall, Inc., 940 A.2d 929, 932 (Del. 2007)(citing Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999)); see also In re Best Lock Corp. S'holder Litig., 845 A.2d 1057, 1087 (Del. Ch. 2001)("Although the literal meaning of the words of a statute serves as the foundation upon which a court is to apply the facts of the case, a final determination should not be made until the court has attempted to understand the purposes the legislative branch sough to achieve.").

38 Progressive N. Ins. Co. v. Mohr, 47 A.3d 492, 496 (Del. 2012).

39 Id.

The Court first turns to ASFA, which provides funding from the federal government to DSCYF for foster care and adoption assistance under Title IV-E, Sections 670-79. To qualify for reimbursement funds under Title IV-E, DSCYF must show that for each child for whom foster care expenditures have been made, there has been a judicial determination that continuation in the home is contrary to the welfare of the child⁴⁰ and that all reasonable efforts were extended (1) to prevent or eliminate the need for removing the child from the child's home⁴¹; and (2) to make it possible for the child to safely return to the child's home.⁴² Additionally, the State must show that each child has a case plan which qualifies under Section 675(1).⁴³ Section 675(2) defines "parent" as "biological or adoptive parents or legal guardians,⁴⁴ as determined by applicable State law."⁴⁵ Because Grandfather was the guardian at the time CHILD entered DSCYF custody, the Court must examine the "applicable State law" in Delaware to determine whether he is considered a "parent" and entitled to the reunification services of a case plan required under § 675(1).⁴⁶

40 42 U.S.C. § 672(a)(2)(A)(ii).

41 To the extent Grandfather argues the "reasonable efforts" requirement of 42 U.S.C. § 672 (a)(2)(A)(ii) extends to a guardian, the Court adopts the same analysis infra. When read in concert, 42 U.S.C. § 671(a)(15)(B) and (D)(i), (ii), and (iii), lead to the logical conclusion that the ASFA "reasonable efforts" apply to a "parent." To read otherwise results in the absurd conclusion that a non-parent is entitled to "reasonable efforts" despite such egregious conduct such as the murder of a child, but a parent is not. "The golden rule of statutory interpretation . . . is that the unreasonableness of the result produced by one among alternative possible interpretations . . . is reason for rejecting [that] interpretation in favor of another interpretation which would produce a reasonable result." Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1247 (Del. 1985).

42 42 U.S.C. § 672(a)(2)(A)(ii).

43 42 U.S.C. § 675 (1) as used in this part or part B of this subchapter, defines "case plan" as follows:

(1) The term "case plan" means a written document which includes at least the following:

(A) A description of the type of home or institution in which a child is to be placed, including a discussion of the safety and appropriateness of the placement and how the agency which is responsible for the child plans to carry out the voluntary placement agreement entered into or judicial determination made with respect to the child in accordance with section 672(a)(1) of this title.
(B) A plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents' home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan.

44 Pursuant to 42 U.S.C. § 675(7) "legal guardianship means a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person, and decision making. The term "legal guardian" means the caretaker in such a relationship."

45 42 U.S.C. § 675(2).

46 An alternate reading of 42 U.S.C. § 675 (2) suggests under ASFA "parent" is defined "as determined by applicable state law" and the inclusion of "biological or adoptive parents or legal guardians" are merely examples of state law definitions of "parent." Although this Court does not subscribe to that reading, if the Court were to apply that interpretation of § 675 (2), Grandfather would not be entitled to reunification efforts through a case plan with DFS as a "guardian" is not a parent as defined in 13 Del. C. § 8-201 and Grandfather does not meet the definition of "parent" for the reasons discussed infra.

The Court first turns to Title 13 of the Delaware Code Subchapter V, Permanent Guardianships for Children. Section 2350 states:

Permanent guardianship models the requirements of "legal guardianship" under the Adoption and Safe Families Act of 1997, Public Law 105-89, §101(b), 42 U.S.C., §675(7). Permanent guardianship is intended to create a relationship between a child and caretaker which is permanent and self-sustaining, and which
creates a permanent family for the child without complete severance of the biological bond.

The General Assembly specifically declared that the legal relationship of "Permanent Guardianship" under Sections 2350-59 meets the ASFA definition of "legal guardianship." Accordingly, the maxim of statutory interpretation "expressio unius est exclusio alterius"—the "expression of one thing is the exclusion of another" - dictates the exclusion of a "guardianship" under Sections 2301-40 of the Delaware Code from ASFA Section 675 (7) - legal guardianship.⁴⁷ If a statute is not reasonably susceptible to different conclusions or interpretations, courts must apply the words as written, unless the result of such a literal application could not have been intended by the legislature.⁴⁸ Thus, Grandfather is not a legal guardian under 42 U.S.C. § 675(7) and as CHILD's guardian⁴⁹ is not entitled to reunification services through a case plan with DFS.⁵⁰

47 Brown v. State, 36 A.3d 321 (Del. 2012).

48 Rubick v. Sec. Instrument Corp, 766 A.2d 15, 18 (Del. 2000).

49 See 13 Del. C. § 2302(10).

50 The Court notes in CASA v. DSCYF, 834 A.2d 63 (Del. 2003), the Delaware Supreme Court addressed the issue as it relates to permanency plans. In the context of deciding this case, the Supreme Court held, "A permanency plan that qualifies as a legal guardianship under ASFA would not require a demonstration of compelling reasons why termination and adoption would not be in the children's best interest." Id. at 7. The Supreme Court determined in the context of this analysis that "Delaware's guardianships under Chapter 23 of Title 13 are legal guardianships ASFA contemplates because in each case the relationship is judicially created, and may only be modified or terminated after a court reviews a petition in light of the overall best interests of the child." Id. at 9. Since the entry of this decision, ASFA was revised and effective September 29, 2015 mandates only children 16 years of age or older may be placed in another planned permanent living arrangement ("APPLA"). The revision specifically states that APPLA requires the determination of compelling reasons, "only in the case of a child who has attained 16 years of age (in cases where the State agency has documented to the State court a compelling reason for determining, as of the date of the hearing, that it would not be in the best interest of the child to return home, be referred for termination of parental rights, or be placed for a adoption, with a fit and willing relative, or with a legal guardian) placed in another planned permanent living arrangement . . . ." 42 U.S.C. § 675(5)(c). The Court notes that revision also reflects the distinction in ASFA between placement with a "fit and willing relative" and a "legal guardian." In addition to the ASFA revision, Title 13 of the Delaware Code Section 2351 was modified to include a guardian as eligible to serve as permanent guardian. 13 Del. C. § 2351 (2014)(amending 13 Del. C. § 2351(2002)). By the inclusion of a guardian, the General Assembly drew a clear distinction in Title 13 between the relationships created by guardianship under Chapter 23 and permanent guardianship under Chapter 25 further expressing their intention that a permanent guardianship is a "legal guardianship" under ASFA and only this legal finding "is intended to create a relationship between a child and caretaker which is permanent and self-sustaining, and which creates a permanent family for the child without complete severance of the biological bond." 13 Del. C. § 2350. In light of these revisions, CASA v. DSCYF should be narrowly read to address the question raised, that being, guardianship is a permanency plan under ASFA.

The Court next examined the DSCYF enabling statutes, Title 29, Chapter 90 of the Delaware Code, for guidance. The General Assembly has determined that:

[P]arents have the primary responsibility for meeting the needs of their children and the State has an obligation to help them discharge this responsibility or to assume this responsibility when parents are unable to do so; while the State has a basic obligation to promote family stability and preserve the family as a unit, and protect and safeguard the well-being of children through the provision of a comprehensive program of social services and facilities for children and their families who require care, guidance, control, protection, treatment, rehabilitation or confinement.⁵¹

To carry out this obligation, DSCYF is empowered "to provide for a variety of facilities and services to children, youth and their families".⁵² Title 13, Chapter 25 of the Delaware Code, sets forth the Court's procedure and requirements for determining custody of dependent and neglected children with DSCYF.⁵³ The terms "Guardian" and "Parent" in this chapter each refer to separate definitions found in Chapter 23 (which sets procedures for establishing guardianships).⁵⁴ A "Guardian" is expressly defined in Chapter 23 as a "nonparent or an agency charged with caring for a child during the child's minority."⁵⁵ On the other hand, a "parent" is defined through reference to 13 Del. C. § 8-201, which establishes the parent-child relationship. Under Section 8-201, a "parent" is defined by natural birth, adoption, court adjudication, establishment as a de facto parent,⁵⁶ or other mechanism detailed in the statute.⁵⁷ A guardian is not included in this class of individuals and thus not entitled to reunification services through a case plan with DFS.

51 13 Del. C. § 9001(a).

52 13 Del. C. § 9003(3)(a) states DSCYF shall have the following powers, duties and functions: "To provide for a variety of facilities and services to children, youth and their families which shall include, but not be limited to the following: 1. Protective services; 2. Preplacement, preventive services and reunification services; 3. Home-based services; 4. Mental health outpatient services; 5. Drug and alcohol outpatient services; 6. Residential and institutional facilities; 7. Probation, aftercare and follow-up services; 8. Adoption and permanent placement services; 9. Evaluation, diagnostic and treatment services; 10. Foster care services; 11. Independent living services; 12. A continuum of residential mental health services, which shall include, but not be limited to, inpatient psychiatric hospitalization for all children requiring such care, mental health residential treatment centers and specialized mental health treatment services in other group-care facilities and foster homes.

53 See 13 Del. C. § 2501.

54 13 Del. C. § 2502(10) and (14).

55 13 Del. C. § 2302(10)(emphasis added).

56 See 13 Del. C. § 8-201(c).

57 13 Del. C. § 2302(13); see also 13 Del. C. § 8-201.

Finally, the Court reviewed the definitions of "dependency" and "neglect" within Chapter 25 for guidance. The Chapter 25 definitions are consistent with the definitions set forth in Title 10, Chapter 9.⁵⁸ Within the Title 10 definition of "dependency" and "neglect" is a person "responsible for the care, custody, and/or control of a child . . . ."⁵⁹ It then defines "care, custody and control" as a "person or persons in a position of trust, authority, supervision or control over a child."⁶⁰ This includes a broad class of persons including parents and guardians, but also healthcare providers, aides, teachers, instructors, coaches, sitters and "any other person who has assumed control of or responsibility of the child."⁶¹

58 See 13 Del. C. § 2502(7) and (13).

59 10 Del. C. § 901(8) and (18).

60 10 Del. C. § 901(3).

61 See 10 Del. C. § 901(3)(a)-(e). Although DSCYF only bears responsibility for investigation of intra familial and institutional child abuse per § 901(e), see 13 Del. C. § 901(14)(b). This class of persons also includes "other members of the child's family or household" and "persons living together permanently or temporarily without regard to whether they are related to each other and without regard to the length of time or continuity of such residence, and it may include persons who previously lived in the household such as paramours of a member of the child's household."

The Court cannot conclude that a person with the "care, custody and control" of a child is a person contemplated by Delaware law or ASFA to be entitled to reunification services through a case plan. It is easy to envision a scenario in which state resources would quickly be exhausted and overwhelmed in the event that DSCYF were to take custody of a child found to be dependent or neglected in the care of one of the non-parent caregivers listed above. In addition, it would be nonsensical to provide reunification services to such a class of persons as they do not share the same fundamental rights or presumptive fitness to meet the best interests of a minor child as a parent does.⁶² Therefore, after reviewing the provisions of the Delaware Code in which the terms "parent" and "guardian" are defined as applicable to ASFA, the Court concludes that guardians are not considered "parents" entitled to reunification and case planning services with minor children placed in the custody of DSCYF.

62 See infra notes 62-63 and accompanying text.

This statutory arrangement separating "parents" from "guardians" aligns with U.S. and Delaware constitutional law which hold that "parents have a fundamental right, protected by the Fourteenth Amendment, 'to make decisions concerning the care, custody, and control of their children.'"⁶³ Similarly, fit parents, unlike other caregivers, are entitled to a presumption that they act in the best interests of their minor children.⁶⁴ As such, parents are inherently imbued with certain rights in relation to their minor children that are separate and distinct from those caretaking duties transferred to non-parents via a judicially-created guardianship.⁶⁵ To extend reunification efforts through case plans to non-parents would overwhelm a system designed to "help [parents] discharge this responsibility or to assume this responsibility when parents are unable to do so"⁶⁶ and run afoul of the intention of ASFA that the child's health and safety shall be the paramount concern⁶⁷ and minimize length of stay in foster care. Limiting reunification and case planning efforts to parents also avoids producing an absurd result. "The golden rule of statutory interpretation . . . is that the unreasonableness of the result produced by one among alternative possible interpretations . . . is reason for rejecting [that] interpretation in favor of another interpretation which would produce a reasonable result."⁶⁸

63 Tourison v. Pepper, 51 A.3d 470, 473 (Del. 2012)(citing Troxel v. Granville, 530 U.S. 57 (2000)).

64 Tourison, 51 A.3d at 473.

65 See Div. of Family Servs. v. J.V.J., 820 A.2d 516, 521 (Del. Fam. Ct. 2003); see also 45 U.S.C. § 675(7). A guardianship is a judicially-created relationship that transfers some caretaking rights of parents to the guardian.

66 See 13 Del. C. § 9001 (a).

67 42 U.S.C. §671(a)(15)(A).

68 See supra note 41.

The Court notes Grandfather asserts he is a de facto parent to CHILD and as such he is entitled to reunification services and a case plan.⁶⁹ Although a de facto parent may be entitled to reunification efforts,⁷⁰ Grandfather has not been adjudicated by the Court to be a de facto parent of CHILD. Delaware's de facto parent statute as codified at 13 Del. C. § 8-201(c), confers de facto parent status if the Family Court determines that the petitioner:

69 See 13 Del. C. § 8-201.

70 The Court declines to enter a finding regarding the constitutionality of the de facto parent statute, 13 Del. C. § 8-201(c), at this juncture or its superfluous purpose in light of the recent modification to the definition of Marriage in 13 Del. C. § 101, permitting same sex marriages, the changes to the Uniform Parentage Act, 13 Del. C. §§ 8-101-904, reflecting the inclusion of same sex couples, and the enactment of the Third-Party Visitation statute, 13 Del. C. §§ 2401-2413. Suffice it to say, the intended purpose of the de facto parent statute has been satisfied through these changes and the continued application of this statute leads to an unreasonable result, the whittling away of a parent's constitutional rights regarding their child in favor of temporary partners either parent chooses to introduce into their child's life.

(1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent; (2) Has exercised parental responsibility for the child as that term is defined in § 1101 of this title; and (3) Has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.⁷¹

Although Grandfather was caregiver and guardian, he is not a person able to assume a parent-like role or to form a bonded and dependent relationship that is parental in nature - he is the child's grandfather. Delaware Courts have only ever conferred such a status on individuals who have stepped in place of a natural mother and father not only in caretaking duties, but also into the formative role unique to a parent and crucial to the child's upbringing as well.⁷² Likewise, Delaware Courts have never bestowed such a status on a relative (not a biological parent) for which the guardianship or third party visitation statutes are more appropriate mediums for establishing a legal relationship.⁷³ Not only does Grandfather not have a relationship with CHILD that is parental in nature, but Grandfather does not have the support of Mother regarding such a relationship. In fact, Mother advised the DFS worker that she opposes the continued placement of CHILD in the care of Grandfather.

71 13 Del. C. § 8-201(c).

72 See A.L. v. D.L., 2012 WL 6765564, at *3 (Del. Fam. Ct. Sept. 19, 2012)(conferring de facto parents status on a former stepfather of a twelve-year-old child in light of bonded and dependent relationship formed over the course of ten years, child's testimony regarding his integration into stepfather's family and his request to spend more time with stepfather, and biological father's testimony that stepfather was the only "father" the child had ever known); see also Jw.S. Jr. v. Em.S., 2013 WL 6174814, at *5 (Del. Fam. Ct. May 29, 2013)(conferring de facto parent status on a petitioner in light of a relationship with a child over the course of six years, child's testimony referring to the petitioner as "dad," and fact that there was no dispute that the petitioner had acted in a parent-like capacity); see also Div. of Family Servs. v. AL, WL 1560386, at *5 (Del. Fam. Ct. Mar. 26, 2012)(conferring de facto parent status on a petitioner in light of the fact he had been the primary father figure of the child since birth for a period of three years, after the parties stipulated that the petitioner had formed a bonded and dependent relationship, and the child specifically referred to the petitioner as "Da-Da").

73 See 13 Del. C. § 2320 and § 2410.

In addition to failing to meet prongs (1) and (3) to establish de facto parent status, Grandfather has also failed to meet prong (2) in that he has failed to "exercise parental responsibility for the child as that term is defined in § 1101 of this title."⁷⁴ Section 1101 defines "Parental responsibilities" as the "care, support and control of the child in a manner that provides for the child's necessary physical needs, including adequate food, clothing and shelter, and that also provides for the mental and emotional health and development of such child."⁷⁵ As discussed in the best interest analysis below, CHILD was removed from Grandfather's home due to Grandfather's failure to meet the "Parental responsibilities" over CHILD. Under no statutory analysis can the Court conclude that Grandfather is entitled to reunification services through a case plan with DFS.

74 13 Del. C. § 201(c)(2).

75 13 Del. C. § 1101(10).

BEST INTERESTS

The Court, having concluded by clear and convincing evidence that the statutory grounds for termination of parental rights has been established for each parent and the grounds for guardianship have been established, must next find by clear and convincing evidence that termination of parental rights is in CHILD's best interest or that a preponderance of the evidence supports that it is in CHILD's best interests to be placed in the guardianship of Grandfather. Although what constitutes the "best interest of the child" depends on the particular facts of the case, the Court, when considering all relevant factors, must consider the factors set forth in 13 Del. C. § 722. For the reasons set forth below, the Court finds by clear and convincing evidence that termination of parental rights and adoption of CHILD is in his best interests and not guardianship.

1) The wishes of the child's parents or parent as to his or her custody and residential arrangements.

Father's identity is unknown as are his wishes regarding the care of CHILD. The DFS worker, Ms. Yacabell, spoke with Mother via telephone on March 10, 2016. She advised Mother of the hearing and the Petition to Terminate Parental Rights. Mother advised she was unable to care for CHILD and believes he is doing well with Mrs. Scott. Although Mother was aware of the pending Petition for TPR, Mother advised she did not support Grandfather's Petition for Permanent Guardianship⁷⁶ and told Ms. Yacabell she "saw and heard him do bad things to CHILD." Based upon Mother's comments to the DFS worker, the Court is satisfied her wishes support the termination of parental rights and not guardianship with Grandfather.

76 Although Mother was unaware Grandfather would ultimately be pursuing guardianship instead of permanent guardianship, the Court concludes from her comments to the DFS worker that the distinction between the petitions would not have made a difference regarding her opinion to oppose placement with Grandfather.

The Court finds this factor weighs in favor of the Petition for Termination of Parental Rights and against Guardianship.

2) The wishes of the child as to his or her custody and residential arrangements.

The CASA, Evelyn Murray, supported the Petition to terminate parental rights. The CASA, Kim DeShields, requested the Court stay the Petition and allow Grandfather more time before resolving his Petition. The Court largely discounted the opinion of Kim DeShields as she had only six days experience with the case prior to providing her opinion.

CHILD's therapist, Jenai Marshall, testified that since January she and CHILD have talked about his "perfect life." Through that discussion CHILD has expressed the desire to talk to his Grandfather on the phone sometimes but to live with a mother and father.

Mrs. Scott testified that sometimes CHILD would rather play than call Grandfather. Sometimes she has to encourage him to call and on occasions she has had to argue with him about calling. The calls have become shorter in duration and Grandfather has agreed to leave it up to CHILD whether or not he wants to call.

The Court interviewed CHILD on April 22, 2016. CHILD's birthday is April 6, 2005, he recently turned eleven years old but presented as younger. CHILD was unsure why he was speaking with the Court. It was evident from the conversation that he likes Mrs. Scott and her husband, Mr. Eddie. He enjoys living with them and enjoys their daughters and the grandchildren. When the Court inquired why he likes living with Mrs. Scott, CHILD said it was because they go places such as the movies. The Court discussed with CHILD his likes and dislikes. He likes to play outside, enjoys recess, gym, science and social studies. When asked about contact with Grandfather, CHILD advised that he sees him on Mondays and he calls Grandfather daily. During the visits they read a book, which he enjoys. CHILD is happy seeing Grandfather during the visits and speaking with him on the telephone. When asked about more contact, CHILD said that maybe he could see Grandfather on the weekends at his house for a day and then Mrs. Scott would pick him up or maybe if the day visits go well he could sleep over. He was clear however that he wants to stay with Mrs. Scott or her daughters. Unfortunately, Mrs. Scott is not a long-term resource for CHILD. When asked by the Court about options if he could not stay with Mrs. Scott he was unable to formulate an opinion about another family.

Through the conversation it was apparent that CHILD likes residing with the Scotts better than with Grandfather. It appeared to the Court he likes it better because of the socialization he is provided through their home. The Scotts take him places, whereas Grandfather only takes him to the store. When asked to tell the Court three things he likes about the Scotts' home, CHILD said the grandchildren, the dogs, and Mrs. Scott's daughters. When asked the same question regarding Grandfather, CHILD said "nothing." There was also "nothing" he disliked about the Scotts. When asked the same question about Grandfather, CHILD said they "don't go places." The most direct question the Court asked CHILD about his wishes was where he would want to live if he could not live with the Scotts. His response was that he would rather live someplace else than Grandfather's home. He would want a home similar to the Scotts' with other children and a dog. When give the option to be put back in the home of Grandfather, CHILD said "I really don't want to because we might argue again." He then explained "we used to fight", which included saying bad words and he would throw things. Sometimes he was happy in Grandfather's home and sometimes he was not.

Based upon the various conversations with CHILD, the Court is satisfied that CHILD's wishes are to be part of a family with children and a dog. He wants to be able to go places and enjoys the socialization of having other children in the home. Although CHILD wants to remain in contact with Grandfather, his statements were clear that he does not want to live with him.

CHILD does not know his father and made no reference to wanting to live with his mother.

The Court finds this factor weighs in favor of the Petition for Termination of Parental Rights and against Guardianship.

3) The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabiting in the relationship of husband and wife with a parent of the child , any other residents of the household or persons who may significantly affect the child's best interests.

CHILD has had no relationship with Father and a limited relationship with Mother. He has had no contact with Mother for at least the past year. There are no maternal or paternal relatives involved in CHILD's life but for Grandfather. His relationship with CHILD is discussed in more detail below and incorporated herein by reference. In summary, CHILD and Grandfather have a tumultuous relationship characterized by arguing, name-calling, and physical violence.⁷⁷ Jenai Marshall, a Licensed Associate Professional Counselor of Mental Health, employed with Wrap Around Delaware, was referred to Grandfather and CHILD to address various behaviors such as CHILD's tantrums, their arguing, and complaints from neighbors about what was happening in the home. According to Grandfather, CHILD's angry outbursts were uncontrollable.

77 The evidence reflects CHILD threw objects at Grandfather during arguments and would take his oxygen tank away from him.

The Court finds this factor weighs in favor of the Petition for Termination of Parental Rights and against Guardianship.

4) The child's adjustment to his or her home , school and community.

Deborah Scott has known CHILD since he was in kindergarten; she was the teacher's aide in his class. When Grandfather became homeless prior to CHILD's third grade year she took on the task of trying to make CHILD's life more comfortable. She not only assisted Grandfather with finding new housing, but has provided care on a regular basis for Grandfather and CHILD by cleaning their apartment, doing laundry, buying clothing for CHILD, paying the cable bill, providing transportation for Grandfather to the store and pharmacy, and addressing CHILD's medical needs. It was not her intention to provide for their long-term care and she was instrumental in bringing CHILD's situation to the attention of DFS.

After placement in the custody of DFS, CHILD was placed in the home of Mrs. Scott. He is very well adjusted to her home and is being well cared for. He has friends, talks to people, likes a girl, is excited about middle school, looks people in the eye, and has more confidence. Unfortunately, this is not a long-term placement for him. He remains in the same school he attended previously and is doing well in school. School personnel have described him as bright, social and friendly. There was limited discussion regarding CHILD's activities in the community, however the evidence supports he is seeing more of his community in the care of Mrs. Scott than when he was in the care of Grandfather. Grandfather's home is discussed in more detail below. That discussion is incorporated herein by reference. In summary, CHILD is safer in the home and community of Mrs. Scott than with Grandfather as the conditions in Grandfather's home were deplorable⁷⁸ and he was unable to supervise CHILD in the neighborhood⁷⁹ or pursue CHILD on the occasions he fled the home. CHILD performs his tasks at school and does his homework in Mrs. Scott's home, whereas his teachers opted not to give him homework when he was with Grandfather as they understood the issues in Grandfather's home and did not want to cause CHILD additional stress.

78 The conditions of Grandfather's home can only be truly appreciated through Exhibits 5 and 6 from the November 3, 2015 Adjudicatory Hearing. In addition, the evidence reflects the home had a strong odor of urine, it was routinely cluttered, clean clothes and urine soaked clothes were strewn all over the couch, the dining table was covered with canned goods and unusable, toys were all over the floor and there was no where clean to sit.

79 Ms. Marshall suggested Grandfather at least go down the first few steps of the apartment to watch CHILD get off the school bus. He complied on one occasion then stopped claiming he had complications, was out of breath, and that it took him a long time to get up.

There is no testimony regarding this factor's application to the parents as Father has not been involved in his life and Mother has not been involved recently. The Court is unable to apply this factor to an adoptive resource as one has not been identified at present.

The Court finds this factor weighs in favor of the Petition for Termination of Parental Rights and against Guardianship.

5) The mental and physical health of all individuals involved.

CHILD is in the Fifth grade at Southern Elementary School but is performing on a kindergarten or first grade level. He has an Individualized Education Plan ("IEP") for his intellectual disability. He is placed in a small class in school with one-on-one instruction. He was on the heavy side at the time he entered care but appeared during the Court's interview of him to be thin and healthy. He suffers from asthma and takes medication for Attention Deficit Hyperactivity Disorder. Although he suffered with enuresis while in the care of Grandfather, since being placed with Mrs. Scott he no longer wets the bed or has to wear pull-ups. When CHILD was taken to the dentist after his entry into care, he had a noticeable amount of plaque on his teeth and it appeared he did not know how to brush his teeth.

DFS argues CHILD has been parentified while in Grandfather's care. He was responsible for the majority of the household tasks such as the cooking, laundry, and overall household upkeep. When DFS and other service providers were in the home, CHILD always opened the door while Grandfather remained in his chair, often not fully clothed. CHILD and Grandfather often had verbal and physical altercations, which stemmed from CHILD's frustration with these responsibilities. For example, on one occasion CHILD threw frozen food and cursed at Grandfather after growing frustrated with having to pack food into a freezer and Grandfather not helping him. The school personnel were aware of the stress CHILD was under in the home and stopped giving him homework to relieve him of the additional stress.⁸⁰ Grandfather is estranged from his wife and children and repeatedly said he had no one. Jenai Marshall testified that when she started treating CHILD she could tell he was excited to have someone to talk to. No evidence was presented regarding the physical or mental health of either parent.

80 See DSCYF v. A.L., Unknown Father, C. C., Sr. CN06-03653, Pet. No. 15-30062, J. Hitch (Nov. 4, 2015) (Adjudicatory Hearing Order) and TPR Trial testimony of Heather Yacabell, DFS treatment worker and Jenai Marshall.

Grandfather suffers from mental and physical health issues. Jenai Marshall, testified regarding the in-home family counseling services she provided to Grandfather and CHILD prior to CHILD's removal from the home. Although Ms. Marshall initially treated Grandfather and CHILD jointly, she quickly determined she had to hold separate counseling sessions. Ms. Marshall noted that during her sessions with Grandfather he spent a lot of time focused on his own childhood and issues surrounding the raising of his own children. According to Grandfather, as a child he lived with his mother, step-father and brother. Grandfather advised he suffered from verbal abuse at the hands of his step-father and never developed a bond with him. Grandfather was punished frequently as a child and locked in his room often. Although his mother tried to protect him, she was also afraid of step-father. Grandfather is estranged from his wife. Although he has a son and two daughters, they are no longer involved in his life and he expressed to Ms. Marshall a great deal of guilt regarding them and their absence from his life. Ms. Marshall tried to expand Grandfather's social network, but although he said he enjoyed her interactions with him, he had no desire to go out into the community. Despite Ms. Marshall's efforts to work with Grandfather and CHILD she reported little success as Grandfather continued to digress back to his own childhood issues. He was never able to come to terms with his own issues. In addition, despite repeated instruction regarding inappropriate comments to CHILD, Grandfather continued to make comments designed to hurt CHILD. For instance, on one of the first occasions Ms. Marshall met with Grandfather, he insinuated, in front of CHILD, that CHILD was the reason they had no family support. He then explained how CHILD's father is unknown and is believed to be black so the family did not want to be involved. CHILD became upset when Grandfather discussed his father being unknown. On another occasion, Ms. Marshall overheard Grandfather call CHILD a "nigger" during a heated exchange between them when they were unaware she was listening. Grandfather also blamed CHILD for the mess in the home and accused CHILD of telling people about their home causing his placement in foster care. CHILD responded to these comments by crying, shaking and appearing nervous. Grandfather also told CHILD that no one wanted to be around them and that was why they were in this situation.

Grandfather testified regarding his mental health indicating he is emotionally up and down. He has recently sought mental health services through Jewish Family Services but is awaiting the assignment of a therapist so he has not started treatment yet. He is not receiving any medication for mental health treatment. The conditions of Grandfather's home were deplorable and the Court cannot ignore the very real possibility that Grandfather suffers from depression. In fact, Grandfather told Shanier Campbell, a long-term care case manager from Highmark Health Options, that he is depressed and she provided him with a list of psychiatrists. Although Grandfather is finally attempting to address his issues through therapy with Jewish Family Services, he is only in the beginning stage of treatment, not having been assigned a therapist or had a single session.

According to Grandfather's testimony he suffers from deep vein thrombosis (DVT), pulmonary embolisms, a history of high blood pressure, asthma, arthritis, allergies, obesity and has difficulty breathing.⁸¹ Grandfather testified he weighed 510 pounds but has recently lost weight and is down to 468 pounds as a result of reducing his carbohydrate intake.⁸² According to Grandfather, if he watches his diet and follows his doctor's instructions he "should be ok". Grandfather has been collecting Supplemental Security Income ("SSI") as a result of his obesity since 1994.

81 The Court found Grandfather's testimony generally lacking in candor. Several areas of his testimony conflicted with that of other witnesses, for example, Ms. Marshall testified she heard Grandfather call CHILD a nigger during an argument, Grandfather denies ever calling him a nigger; Ms. Marshall testified to seeing a jar of urine next to Grandfather's chair because he could not get to the bathroom, Grandfather denied such a jar existed; Grandfather testified he took CHILD for medical treatment when he burned himself making spaghetti, yet Ms. Scott testified she had CHILD treated; and Grandfather testified CHILD enjoyed wearing shoes too small for him, contrary to Ms. Scott's testimony that the shoes pinched his feet.

82 Grandfather testified he recently began seeing a nutritionist.

Grandfather recently started receiving long-term care through Medicaid. According to Shanier Campbell, Grandfather recently qualified to receive an in-home alert system, in case he gets hurt in the home or there is a fire. He also receives meals on wheels seven days per week, one time per day. He has attending care for four hours per day, two in the morning and two in the evening Monday through Friday. The attending care provides assistance as needed with dressing, bathing, hygiene, shopping, laundry and trips to the store. He also receives assistance with light housekeeping. She testified he would have these services for three months and then they would be reassessed. The services fluctuate and can be increased and decreased depending on the changes in his health.

According to Ms. Campbell, Grandfather reported difficulty breathing, for which he takes oxygen, difficulty walking,⁸³ arthritis, and obesity. She could not opine on the state of his current physical health. Grandfather has access to Logisticare for medical appointments only. The current plan of care does not account for a child being in the home and the services do not extend to CHILD.

83 It is undisputed that Grandfather has difficulty walking as a result of his DVT and an open wound on his leg. Grandfather's breathing is labored and it is difficult for him to get up and down the six steps leading to his apartment.

Within the past few months Grandfather briefly received in-home occupational and physical therapy. The services ended after a "short while" for inexplicable reasons, although Grandfather blamed the nurses alleging there were scheduling problems and that he refused to schedule on Mondays, which would have interfered with his visits with CHILD.⁸⁴ After Grandfather's therapy ended several of his in-home services increased from two days per week to five days per week. Ms. Campbell observed that Grandfather takes multiple medications but she could not recall any of them or whether they are for mental or physical health issues. The Court was provided with no information from Grandfather's medical provider or regarding the medications he takes.⁸⁵ The Court is not even clear on what basis Grandfather was determined disabled and eligible for the long-term care services he is receiving.

84 Grandfather asserts the therapy conflicted with his visits but he never requested to change the day of visitation to permit him to continue with therapy.

85 Grandfather admitted to taking blood thinners.

The Court endeavored to determine from Grandfather what he could physically do on his own to provide for CHILD's care as these services do not. Although Grandfather testified he could make meals for CHILD, this testimony contradicted earlier testimony from Shanier Campbell that when assessing his needs Grandfather specifically asked for services to assist with dressing, bathing, hygiene and meal preparation and delivery. The Court found Grandfather's testimony in regards to his physical abilities to lack candor. The Court's concerns with his truthfulness were noted quite pointedly by Grandfather's attorney when she proclaimed to the Court that Grandfather was "telling [the Court] what he thinks [it] wants to hear".⁸⁶

86 During the Court's questioning of Grandfather regarding the 7-day per week lunch deliveries and whether he actually needed the service based upon his averment that he could make lunches for CHILD, counsel became upset that the Court was being argumentative with Grandfather. The Court asserted the intent was not to have Grandfather give up any of his needed services, but to ascertain from him the truthfulness of his claims that he could provide a sandwich to CHILD. In rebuttal, counsel exclaimed "he's telling you what he thinks you want to hear". To which the Court responded with affirmance and that what it wanted to hear was the truth.

The Court has no information from a medical professional regarding Grandfather's disability and ability to care for a child on a long term basis. CHILD is already without any family. The Court cannot ignore that Grandfather's health is compromised. If placed in Grandfather's care, CHILD would be left with no one if Grandfather became hospitalized or passes away. Although Grandfather is physically limited in being able to care for himself, he has help to meet his basic needs now. He does not have help to meet CHILD's needs, not through in-home services or a social network. As Grandfather stated, he has no family he can rely on. He has only Mrs. Scott, who does not want to provide for the long-term care of CHILD, and a neighbor, who helps Grandfather get to the grocery store on occasion. There was no testimony that Grandfather has any friends on which he can rely to meet CHILD's needs and his ability to meet them is unclear. In addition, CHILD's care involves more than just the basic needs of housing and sustenance. Grandfather has a loving relationship with CHILD, but their relationship is also filled with conflict. Because of Grandfather's poor health, he is unable to meet CHILD's safety needs,⁸⁷ as well as provide him with regular, ongoing opportunities to engage in age or developmentally appropriate activities⁸⁸ necessary for the growth of a young boy.

87 The evidence reflects when Grandfather and CHILD have conflict CHILD throws objects at Grandfather and has run from the home. On one occasion he stayed out past dark. Grandfather was unable to pursue him. Grandfather's proposed solution was to put a lock on the door higher than CHILD's reach. DFS advised against this as it would present a fire hazard.

88 The evidence reflects that since at least 2014, while in Grandfather's care, CHILD has not celebrated a holiday, had a birthday party, attended another child's birthday party, had a sleepover, attended a sleepover, participated in extra-curricular activities (sports) or participated in an after school celebration of achievement, even when CHILD received an award.

The Court finds this factor weighs in favor of the Petition for Termination of Parental Rights and against Guardianship.

6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this Title. ⁸⁹

89 Section 701 provides in relevant part:
(a) The father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare and education. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other concerning such child's custody or any other matter affecting the child.

Neither parent has fulfilled their responsibilities under § 701 to CHILD as Father has never met him or participated in his care and Mother has not seen him for at least a year. Although not a parent, Grandfather has not met CHILD's care as required of a guardian.⁹⁰ While in Grandfather's care, CHILD did not have a "physically and emotionally healthy and safe living environment."⁹¹ Instead, CHILD resided in a filthy and unsanitary home described as smelling of urine, being cluttered, with clothing strewn on the furniture. To say the bathrooms were unsanitary would not do justice to the condition they were in. CHILD was largely responsible for the household chores, including meal preparation,⁹²laundry, and general cleaning. CHILD told Ms. Marshall he would get angry because Grandfather would be home all day but instead would wait for him to get home from school and have him do everything. Grandfather never denied the bulk of the household responsibilities fell on CHILD. Instead, he suggested he could start vacuuming to help CHILD.

90 13 Del. C. § 2340 states in relevant part :
(c) Except as modified by the order of guardianship and without qualifying the foregoing, a guardian of the person has the following powers and duties:

(2) The guardian shall provide the child with:

a. A physically and emotionally healthy and safe living environment and daily care;
b. Education; and
c. All necessary and appropriate medical treatment, including but not limited to medical, dental and psychiatric examinations, treatment and/or surgery.

91 Id.

92 Because CHILD was tasked with meal prep they ate what was convenient and not what was healthy. On one occasion CHILD suffered a second degree burn on his hand from cooking spaghetti.

CHILD was emotionally stressed due to the burden of caring for himself and his Grandfather. After CHILD entered DFS custody he expressed guilt because he was worried about who would feed his grandfather, who would check the mail, and worried that his grandfather might die. While in Grandfather's home he acted out physically and verbally towards Grandfather both yelling and writing profanities directed at Grandfather on the wall of the home.⁹³ CHILD's education also suffered while in Grandfather's care. Although he had an IEP, CHILD was not advancing his education through homework as his teachers did not think he could handle it due to the stress in the home and on the one occasion he won student of the month, CHILD was unable to participate in the ceremony due to Grandfather being unable to attend.

93 CHILD wrote "fat fuck" on the wall of the apartment near the front door.

Although not statutorily required, at the very least, a child in the care of a guardian should also be provided with the same opportunities for "age or developmentally-appropriate"⁹⁴ "extracurricular, enrichment, cultural, or social activities"⁹⁵ as mandated for the care of foster children by the State. CHILD however enjoyed none of these. Until Mrs. Scott became involved, CHILD had celebrated no holidays⁹⁶, had no friends over to play and no play dates at a friend's home, had never attended a birthday party, nor had a birthday party. He enjoyed no extracurricular activities or opportunities for social growth except for school. Although the Police Athletic League and Boys and Girls Club were offered to Grandfather for CHILD, Grandfather was either unwilling to participate or unable to take CHILD. Although there was a park near the home, Grandfather was unable to take CHILD there to play.

94 42 U.S.C. § 675 (11)(A) defines "age or developmentally-appropriate" as:

(i) activities or items that are generally accepted as suitable for children of the same chronological age or level of maturity or that are determined to be developmentally-appropriate for a child, based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for an age or age group; and
(ii) in the case of a specific child, activities or items that are suitable for the child based on the developmental stages attained by the child with respect to the cognitive, emotional, physical, and behavioral capacities of the child.

95 See 42 U.S.C. § 675 (10) (A) discussing the "reasonable and prudent parent standard".

96 The evidence reflects Christmas was celebrated one year but CHILD was blamed for breaking ornaments and Grandfather did not want to celebrate the holiday after that.

The Court finds this factor weighs in support of the Petition to Terminate Parental Rights and against Guardianship. Although not required to meet the responsibilities under § 701, Grandfather failed to meet the responsibilities of a guardian.

7) Evidence of domestic violence as provided for in Chapter 7A of this title ⁹⁷

97 Section 706A in relevant part states:
(a) Any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the Court in determining the legal custody and residential arrangements in accordance with the best interests of the child.

No evidence of domestic violence was presented regarding Father.

The evidence reflects Grandfather has a history of conflict in his home from when he was a child and is estranged from his own children. He suffered from verbal abuse at the hands of his step-father and never developed a bond with him. He was punished frequently as a child and locked in his room often. Although evidence of domestic violence is unclear, Grandfather testified his mother was afraid of his step-father and tried to protect him from his step-father. Grandfather is estranged from his wife and although he has a son and two daughters, they are no longer involved in his life.

Heather Yacabell testified DFS records reflect that in prior cases involving Mother and Grandfather there were reports of ongoing arguing and conflict in the home between them to the point of police intervention. The DFS records reflect the first case involving Mother with CHILD was June 20, 2006. The family has had eight other investigations, seven of which were unsubstantiated with concern. The eighth involved a finding of mild emotional neglect.

There was also domestic violence between CHILD and Grandfather while CHILD resided in the home. That discussion is reflected throughout the Court's Order and incorporated herein by reference.

The Court finds this factor weighs in support of the Petition to Terminate Parental Rights and against Guardianship.

8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.

Grandfather's Delaware criminal history reflects no charges within the past twenty years that raise a concern for the Court. The Court notes Grandfather was found guilty of perjury in the first degree in 1978. Mother has no Delaware criminal history of concern to the Court although has a pending warrant for her arrest. Father's identity is unknown.

In addition to the best interest factors, the Court considered CHILD's history in Grandfather's care. Grandfather and his wife, G. C. ("Grandmother") were granted Guardianship of CHILD by Interim Order on July 3, 2006.⁹⁸ Grandfather's Motion for Ex Parte Order states "He has bonded with his grandmother as if she was his mother. Care is predominantly done by Grandmother."⁹⁹ Guardianship was continued with Grandfather by Civil Disposition entered January 2, 2007.¹⁰⁰ Grandfather was the only Petitioner present at the hearing but the Order reflects Grandmother and CHILD's Aunt were still residing in the home. The circumstances of Grandfather's home are unknown between 2007 and 2013. It is apparent, however, that CHILD no longer has any contact with his Grandmother or Aunt. Grandfather is estranged from his wife and has no contact with his grown children, a situation for which he expressed remorse to his therapist. These facts and the bond between CHILD and Grandmother belie Grandfather's claim that the family has no contact with Grandfather due to CHILD being bi-racial.

98 See G. C. and C.C. v. A. C. and unknown Father, CN06-03653, Pet. No.: 06-19669, C. Mayo, (Jul. 3, 2006) (Interim Order).

99 See C. C., Sr. v. A. L.C., CN06-03653, Pet. No.: 06-19669, (June 23, 2006) (Motion and Affidavit for Emergency ExParte Order).

100 See C.C., Sr. v. A.C. and Father Unknown, Pet. No.: 06-19669, C. Mayo, (Jan. 2, 2007) (Civil Disposition-Custody/Guardianship Petition).

Grandfather resided in Newark at the time he obtained guardianship of CHILD but was evicted in mid-2013 due to monetary problems. According to Grandfather, his wife and daughter refused to pay their share of the rent.¹⁰¹ He and CHILD then resided briefly at the Sunday Breakfast Mission, at a hotel on Route 273, and then in a housing unit in Newark for displaced families. They were homeless for approximately six months until they found their current apartment. Mrs. Scott and her husband helped Grandfather move into the apartment and helped furnish it. Grandfather testified he is presently able to pay his rent and electric and is hopeful he will receive assistance with rent in the future but does not know.¹⁰²

101 In light of Grandfather's statement that Grandmother predominantly cared for CHILD and that he was evicted in 2013 because Grandmother failed to pay her share of the rent, the Court can reasonably conclude that Grandmother was responsible for some of CHILD's care between 2007 and 2013.

102 Grandfather testified he will apply for a Housing and Urban Development ("HUD") voucher once he knows if CHILD will be residing with him. He is hopeful that will provide him with subsidized housing.

Grandfather receives $733 per month in SSI and $200 in food stamps. If CHILD resided with Grandfather, he would receive an additional $201 in Temporary Aid to Needy Families ("TANF") and would have over $300 in food stamps. In addition, Grandfather receives food on a weekly basis from a local church. In light of the food related services Grandfather is now receiving through Medicaid's long term care program, he testified he would have the church come on alternating weeks.

Grandfather pays $675 in rent and $30 to $40 in electric. Ms. Scott has been paying Grandfather's cable bill for the past several years.¹⁰³ With CHILD's state benefits, after rent and electric Grandfather has roughly $219 available in disposable cash each month to meet his and CHILD's needs. In Grandfather's word, they "scrape by". His best hope at improving his financial situation is to obtain a HUD voucher or other benefit that will free up some of the SSI he uses for rent. Grandfather did not testify if or when he would be successful with this.

103 Grandfather testified he did not ask her to pay his cable, she provides because she is a nice lady.

Grandfather admitted he had difficulty buying clothing for CHILD prior to finding his current housing but denies any current difficulties. Grandfather claims CHILD chose to wear shoes too small for him that pinched his toes and chose to wear pants that were too small because he liked them. Contrary to Grandfather's testimony, the Court finds it difficult to accept that CHILD chose to be in pain. In addition, Ms. Scott testified she has been purchasing all of CHILD's clothing and shoes since she started taking on Grandfather and CHILD's care in August prior to CHILD's third grade year. When looking at the long-term care of a child and considering the suitability of a guardian, the Court cannot find that being able to "scrape by" is in CHILD's best interests.

The DFS Permanency worker, Courtney Penhollow, testified CHILD has started the My Life Program to work through his history and trauma. A child profile was done to find an adoptive resource for him. Unfortunately, it cannot be posted until he is legally free for adoption. Through other sources, DFS has already identified two families that may be interested in adopting CHILD. DFS will be looking for a family willing to continue contact between CHILD and his Grandfather and Mrs. Scott.

CONCLUSION

The Court finds DFS has proven the statutory grounds for termination of parental rights by clear and convincing evidence. The Court is also satisfied by clear and convincing evidence that DFS has made reasonable efforts to reunify CHILD with his Father and was relieved of the obligation to make reasonable efforts to reunify with Mother. DFS had no obligation to provide reasonable efforts towards reunification of CHILD with Grandfather. Although Grandfather has met the statutory grounds for guardianship, the Court does not find guardianship is in CHILD's best interests. Instead, the Court finds by clear and convincing evidence that CHILD's best interests are served by termination of parental rights and adoption. Although Grandfather had CHILD in his care for several years, the care did not meet the standard of care necessary for a guardian of a child as Grandfather did not provide CHILD with a "physically and emotionally healthy and safe living environment."¹⁰⁴ Grandfather argues his physical disabilities impaired his ability to care for CHILD and that he has resolved those issues. The evidence is unclear what Grandfather was unable to do and what he simply chose not to do, instead pushing the burden off to CHILD. Although Grandfather has services to address some of these issues now, the services are not designed to care for CHILD and the emotional damage to CHILD is already done. Although he felt guilt following his initial removal, CHILD has thrived in the care of Mrs. Scott and has slowly distanced himself from Grandfather. CHILD is seeing the world through a new set of eyes. With only seven years left to be a child, CHILD has made it clear he wants a family. CHILD wants to explore his community and socialize. When looking at each of the best interest factors, every one of them points to the conclusion that CHILD should be freed for adoption. DFS recognizes CHILD has a relationship with Grandfather and that grandparent-grandchild relationship is worth preserving. To that end, they will endeavor to find a family willing to maintain contact between them. Although that relationship is of value, the Court does not find it more valuable than the opportunity for CHILD to have a family - parents and siblings.

104 Id. --------

The Petition for Termination of Parental Rights is GRANTED.

The Petition for Guardianship is DENIED.

A Form of Order will be entered concurrent with the issuing of this decision.

IT IS SO ORDERED.

/s/ _________

JOELLE P. HITCH, JUDGE JPH/krp
cc: Counsel via email sent: __________

Parents via regular mail sent: __________