Opinion
FILE NO.: 18-04-01TN CPI NO.: 18-09874 FILE NO.: CN13-04498 CPI NO.: 13-26094 FILE NO.: CN13-04498 CPI NO.: 18-09270
11-30-2018
J------ L. D----, A----- D----, Petitioners v. K------ M. D----, M------ P. Y------, Respondents K------ D----, Petitioner v. J------ D----, Respondent
George Tsakataras, Esquire, Attorney for Petitioners, J------ & A----- D---- Jessica Zeldin, Esquire, Attorney for Respondent Mother, K------ D---- Robert Krapf, Esquire, and Tyler Craig, Esquire, Attorneys for Respondent Father, M------ Y------ Marc Casarino, Esquire, Attorney for T------ Y------
(Petition for TPR)
(Petition for Guardianship)
(Petition for Parental Visitation)
UPON A PETITION FOR TERMINATION OF PARENTAL RIGHTS
Date Written Decision Signed: November 30, 2018
Date Written Decision Mailed: November 30, 2018 George Tsakataras, Esquire, Attorney for Petitioners, J------ & A----- D---- Jessica Zeldin, Esquire, Attorney for Respondent Mother, K------ D---- Robert Krapf, Esquire, and Tyler Craig, Esquire, Attorneys for Respondent Father, M------ Y------ Marc Casarino, Esquire, Attorney for T------ Y------ CROWELL, Judge
I. INTRODUCTION
This is the written decision on the Petition for Termination of Parental Rights ("TPR Petition") filed by J------ D---- and A----- D---- ("Maternal Aunt and Uncle") against K------ D---- ("Mother") and M------ Y------ ("Father"), in regard to the minor child, T------ Y------, born May --, 2011, following a hearing held on October 24, 2018.
A----- D---- is Mother K------ D----'s brother.
II. PROCEDURAL BACKGROUND
On August 13, 2013, Maternal Aunt filed a Petition for Guardianship and a Motion and Affidavit for Emergency Ex Parte Order against Mother and Father in regard to T------. That same day, the Court granted Maternal Aunt temporary guardianship of T------, finding that she was dependent in her parents' care. Pursuant to a final Order Granting Petition for Guardianship issued on August 27, 2013, the Court granted Maternal Aunt guardianship over T------. Visitation with T------ and her parents was to be arranged amicably between the parties. At the time of that final Order, Father was incarcerated at Howard R Young Correctional Institution. On June 21, 2016, Father filed a Petition to Rescind Guardianship against Maternal Aunt, which was dismissed by an April 9, 2018 Order of the Court at Father's request.
On December 31, 2013, Mother filed a Petition for Parental Visitation and a Motion and Affidavit for Emergency Ex Parte Order against Maternal Aunt in regard to T------. That same day, the Court denied Mother's Emergency Motion. On March 25, 2014, Father filed a Petition - Rule to Show Cause regarding contact with T------. Pursuant to a Consent for RTSC Order issued by the Court on June 30, 2014, Maternal Aunt and Father reached an agreement on the terms and conditions of Father's contact with T------. Mother filed another Petition for Parental Visitation on April 13, 2015 against Maternal Aunt in regard to T------. Pursuant to a final Order Denying Petition for Parental Visitation issued on September 15, 2015, the Court found that giving Mother any contact with the child would cause a significant impairment to T------'s emotional development and instructed Mother to address her mental health and substance abuse issues, among others, and work with T------'s therapist before having any visitation with T------. On March 29, 2018, Mother filed another Petition for Parental Visitation against Maternal Aunt with regard to T------.
This matter was still pending at the time of the October 24, 2018 TPR hearing. As such, the Court informed the parties present that Mother's Petition would be considered if the TPR Petition was denied.
On April 26, 2016, Maternal Aunt filed a Petition for Permanent Guardianship against Mother and Father in regard to T------. That same day, Mother filed a Permanent Guardianship Affidavit of Consent of a Child's Parent, without representation. On January 30, 2017, with assistance of counsel, Mother filed a Motion for Withdrawal of Maternal Affidavit of Consent to Permanent Guardianship. Pursuant to an Order issued by the Court on February 13, 2017, Mother's consent was withdrawn. The Permanent Guardianship Petition was dismissed by an April 9, 2018 Order of the Court at Maternal Aunt and Uncle's request.
On May 23, 2016, Father filed another Petition - Rule to Show Cause regarding contact with T------ while he was still incarcerated. On March 16, 2017, the Court issued the parties' Stipulation and Order resolving Father's Petition - Rule to Show Cause. As part of the Stipulation and Order, the parties agreed to, among others, weekly phone calls between the parents and T------, and that parental visitation be supervised by T------'s counselor at a schedule that the counselor believed was in T------'s best interest. A June 29, 2017 Teleconference Order of the Court adjusted the terms of Father's telephone contact with the child to what T------'s therapist believes is in T------'s best interest.
On April 4, 2018, Maternal Aunt and Uncle filed the above captioned Petition to Terminate Parental Rights ("TPR") against Father and Mother in regard to T------, on the basis that the parents had failed to plan. After initial attempts to appoint counsel to represent Father and Mother were unsuccessful, the Court appointed Jessica Zeldin, Esquire, as counsel for Mother and Robert Krapf, Esquire, as counsel for Father, both on June 19, 2018. On July 11, 2018, in response to a Motion for Hair Follicle Testing filed by the Petitioners, the Court ordered Mother and Father to submit to hair follicle testing within five days of being so requested by Petitioners' counsel. On August 23, 2018, Mother filed an Answer through her attorney opposing the Petition for TPR. On August 24, 2018, Father filed an Answer through his attorney opposing the Petition for TPR.
Present at the TPR hearing on October 24, 2018, were: Maternal Aunt and Uncle; George Tsakataras, Esquire, attorney for Maternal Aunt and Uncle; Jessica Zeldin, Esquire, attorney for Mother; Father; Robert Krapf, Esquire and Tyler Cragg, Esquire, attorneys for Father; and Marc Casarino, Esquire, attorney for T------. Mother failed to appear for any part of the full day hearing. As such, Ms. Zeldin was excused from the hearing at 11:11 AM, over two hours after it was scheduled to begin. Testimony was taken from: T------'s therapist, Pali Payne; A Better Chance for Our Children case manager, Laurie Lattomus; Arc Point Labs employee, Leonard Wakefield; Father; and Maternal Aunt.
At the outset of the hearing, Ms. Zeldin reported that she believed Mother was aware of the hearing and that they had a discussion about Ms. Zeldin's representation of Mother within the two days prior to the hearing.
III. BACKGROUND FACTS
Maternal Aunt, 36 years old, and Maternal Uncle, 34 years old, continue to reside in Middletown, DE with T------ and their three biological children: a nine-year-old boy, a six-year-old boy, and a three-year-old girl. T------ has resided in the home continuously since July 2013, when she was only two years old. Maternal Aunt testified that, when T------'s parents consented to Maternal Aunt having guardianship over the child, Maternal Aunt believed that eventually T------ would be returned to Mother once she obtained prolonged sobriety.
Father, 41 years old, resides in New Castle, Delaware with his older brother, F------ Y------ (d.o.b. 8/14/74), in a three-bedroom home. Father testified that F------ is employed, has been sober for the last seventeen months, has been attending NA meetings "a lot," and supports Father's sobriety. Father also testified that he provided daily care for T------ until she was sixteen months old, at which time he started a period of nearly five years of incarceration, and that he initially consented to guardianship of T------ going to Maternal Aunt, even though he has a cousin who lives out of state who was interested in caring for T------, because he wanted to keep T------ in Delaware near her family and because he believed that she would return to his care upon his release. In addition to T------, Father testified that he has two known grown children, ages 25 and 18, who live in Indiana and Virginia respectively, and "possibly" a third child, age 20. The Court heard no specific testimony about Father's history of raising those children. However, Father admitted that his relationship with his oldest child was "rough" in the past but is "getting better."
Mother, 36 years old, reportedly resides in a room in the New Castle, Delaware, home of T----- P----- (d.o.b. 2/7/62), who is the ex-boyfriend of T------'s deceased maternal grandmother, Cheryl D----. Maternal Aunt testified that she believes that Mr. P----- is an alcoholic who gets very aggressive when he drinks, and she believes that Mother and W------ H--- (d.o.b. 6/28/68) continue to reside together in the home. The Court takes judicial notice of its finding in the September 2015 Order Denying Petition for Parental Visitation that placing T------ with Mother was not in the child's best interest at that time, in part, because of Mr. H---'s serious criminal history and reputation of drug activity in his home.
Mr. H--- was listed as Mother's fiancé in the September 2015 Order Denying Petition for Parental Visitation.
IV. TERMINATION OF PARENTAL RIGHTS
A. Standard for Termination of Parental Rights
The United States Supreme Court has held that a parent's interest in his or her children "undeniably warrants deference and, absent a powerful countervailing interest, protection." Likewise, the Delaware Supreme Court has found that the parental right is a sacred one that "does not depend on societal standards or mores of lifestyle, age, economic achievement, or sex." It has also held that parental rights arise from a natural relationship, are fundamental liberties and may not be abrogated in the absence of the most compelling reasons. While recognizing the fundamental liberty interest of the parents, the Court must consider that one of the important objectives of the termination of parental rights statute is to insure that children are not denied the opportunity for a stable family life.
Stanley v. Illinois, 405 U.S. 645, 651 (1972).
In the Matter of Burns, Del. Supr., 519 A.2d 638, 645 (Del. 1986).
See id.; In the Interest of Stevens, Del. Supr., 652 A.2d 18, 24 (Del. 1995).
See Shepherd v. Clemens, Del. Supr., 752 A.2d 533 (Del. 2000).
A parent's strong interest in his or her child can be terminated only upon a showing, by clear and convincing evidence, that one or more of the statutory grounds set forth in 13 Del. C. §1103(a) has been established and that severing the parental ties would be in the best interests of the child. The clear and convincing standard of proof requires greater certainty about the factual conclusions than a preponderance of the evidence standard, underscoring the important liberty interest at stake and the special loss that occurs with the termination of a parent's rights in a child. B. Grounds for Termination of Mother's Parental Rights - Failure to Plan
Id.; see also In re Hanks, 553 A.2d 830, 833 (Del. 1982).
See Patricia A.F. v. James R.F., 451 A.2d 830 (Del. 1982).
In Delaware, when determining whether parental rights in a child should be terminated, a trial judge must conduct a two step analysis. First, one of the grounds listed in 13 Del. C. § 1103 must be established by clear and convincing evidence. Second, after finding a statutory ground to terminate parental rights exists, the trial judge must also find by clear and convincing evidence that termination of parental rights is in the best interest of the child as defined in 13 Del. C. § 722. In their petition, Maternal Aunt and Uncle sought termination of Mother's parental rights in T------ on the grounds of 13 Del. C. § 1103(a)(5) known as "failure to plan."
Barr v. Division of Family Servs., 974 A.2d 88, 93-94 (2009); Division of Family Servs. v. Hutton, Del., 765 A.2d 1267, 1271 (2001).
Barr, 974 A. 2d at 94; 13 Del. C. § 1103(a).
Thirteen Del. C. § 1103(a)(5)(b) provides a ground to terminate parental rights of a child in the care of her guardians/blood relatives if the Court finds that the parent is not able or has failed to plan adequately for the child's physical needs or mental and emotional health and development; the child has resided in the home of the guardians/blood relatives for at least 1 year; and the parent is incapable of discharging parental responsibilities, and there appears to be little likelihood that the parent will be able to discharge such parental responsibilities in the near future.
a. Mother is not able or has failed to plan adequately for T------'s physical needs or mental and emotional health and development
First and foremost, Mother has failed to plan by failing to appear for any part of the full day hearing on the termination of her parental rights as to her daughter. Although there was no testimony about why Mother did not appear, the Court will make a negative inference that this is, at least in part, due to the two active capiases for her arrest in Delaware for failure to appear at her arraignment on an Assault Third Degree charge and for failure to pay related to drug possessions charges.
Second, the Court takes judicial notice of its September 2015 Order Denying Petition for Parental Visitation as a quasi-road map to Mother for what she had to do to resume contact with, much less care of, T------. In paragraph H of that Order, the Court raised concerns about Mother's housing, failure to secure employment, and her live-in relationship with Mr. H---. The Court also directed her to continue receiving mental health and substance abuse treatment, and engage in individual sessions with T------'s therapist, Pali Payne.
As to Mother's housing and relationship with Mr. H---, Ms. Payne and Maternal Aunt both testified that Mother was still residing with Mr. H--- at least as of the summer of 2018. Ms. Payne added that Mother believed that she would be able to find a separate room for T------ in the home in which she was residing. As to Mother's employment, the Court heard no testimony to confirm that she is presently employed other than Ms. Payne's general testimony that Mother self-reported that she was cleaning houses.
Despite the direction of the Court, Mother appears to be actively abusing illicit substances and there is no evidence that she is involved in a substance abuse treatment program. On July 24, 2018, Mother submitted to a 1.5-inch hair follicle test that covers the prior three months of drug use history. That test came back positive for marijuana, opiates, and cocaine. (Pet. Ex. #3). Ms. Payne also testified that, although Mother denied ongoing drug use and therefore was not engaged in drug treatment, Mother presented as someone who was actively using based on Ms. Payne's observations, among others, that Mother was "beyond skinny" to the point of being unhealthy and because Mother wore a four-inch-long bandage on her forearm for about two months which Ms. Payne believes Mother was using to cover up her needle marks. However, Ms. Payne admitted that she never observed Mother under the influence of a drug. These observations and Mother's positive test results led Ms. Payne to conclude that Mother should be engaged in drug treatment and to inform Mother during the summer of 2018 that she needed a higher level of care than Ms. Payne could provide Mother. Mother also informed Laurie Lattomus with A Better Chance for Our Children, an agency licensed to prepare social reports, in 2017 that she was struggling with drug use at that time as well. (Pet. Ex. #1).
Since Mother was essentially discharged by Ms. Payne during the summer months of 2018, the Court has no evidence that Mother is currently receiving mental health treatment. Additionally, Mother only attended about four or five sessions with Ms. Payne, or half of her scheduled visits, over the span of about two months, and those sessions were focused on Mother's relationship with T------ and not Mother's own mental health. Based on those visits, Ms. Payne found Mother to exhibit paranoia, but noted that she did not conduct enough assessments on Mother to diagnose her with any specific mental illnesses. As a result, she recommended that Mother continue to receive mental health treatment in addition to substance abuse treatment. Mother also informed Laurie Lattomus in 2017 that she had been diagnosed with bipolar disorder, post-traumatic stress disorder, post-partum depression, and schizophrenia, but that she was not taking any prescribed medications for those diagnoses at that time. (Pet. Ex. #1).
Therefore, the evidence available as to Mother suggests that she is largely in the same condition as she was in September 2015 when the Court found that she could not have any visitation with her daughter. As such, the Court finds, in part due to the lack of any evidence to the contrary, that Maternal Aunt and Uncle have established by clear and convincing evidence that Mother has failed to plan for her reunification with T------.
b. T------ has resided in the home of Maternal Aunt and Uncle for at least one year
It is uncontroverted that T------ has continuously resided in the home of Maternal Aunt and Uncle since 2013, well beyond the statutory requirement to establish failure to plan.
c. Mother is incapable of discharging parental responsibilities, and there appears to be little likelihood that she will be able to discharge such parental responsibilities in the near future
In its September 2015 Order Denying Petition for Parental Visitation, the Court essentially found that Mother was incapable of discharging her parental duties at that time when it denied Mother any contact with T------. As discussed above, Mother has done very little of what she was instructed to do in September 2015 in order to demonstrate that she could resume care of T------. There is also no evidence to suggest that Mother will be able to resume discharging her parental responsibilities in the near future, at least in part, because of Mother's long history of inability to provide for T------. T------ has not been in Mother's care since at least 2013. Mother admitted becoming an "heroin addict" in or before 2007, and relapsing many times since then in between periods of engagement in substance abuse treatment. Pet. Ex. #1. Additionally, she reportedly remains in a long-term relationship with Mr. H---, she is still actively using drugs, and there is no evidence that she has sought out any mental health or substance abuse treatment. As such, the Court finds, in part due to the lack of any evidence to the contrary, that Maternal Aunt and Uncle have established by clear and convincing evidence that Mother is not presently capable to discharge her parental responsibilities as to T------, nor will she be capable in the near future of so caring for T------. C. Grounds for Termination of Father's Parental Rights - Failure to Plan
The Termination of Parental Rights Social Report notes on page 5 that Mother reported being in a relationship "on and off" with Mr. H--- since 2008. Pet. Ex. #1.
In Delaware, when determining whether parental rights in a child should be terminated, a trial judge must conduct a two step analysis. First, one of the grounds listed in 13 Del. C. § 1103 must be established by clear and convincing evidence. Second, after finding a statutory ground to terminate parental rights exists, the trial judge must also find by clear and convincing evidence that termination of parental rights is in the best interest of the child as defined in 13 Del. C. § 722. In their petition, Maternal Aunt and Uncle also sought termination of Father's parental rights in T------ on the grounds of 13 Del. C. § 1103(a)(5) known as "failure to plan."
Barr v. Division of Family Servs., 974 A.2d 88, 93-94 (2009); Division of Family Servs. v. Hutton, Del., 765 A.2d 1267, 1271 (2001).
Barr, 974 A. 2d at 94; 13 Del. C. § 1103(a).
a. Father is not able or has failed to plan adequately for T------'s physical needs or mental and emotional health and development
Although the Court never gave Father a quasi-road map to resuming contact with T------ like it gave Mother in September 2015, the Court will follow a similar analysis for Father as it did for Mother above, and look a Father's history of stable housing, employment, substance abuse treatment and mental health treatment. The Court will also start by considering Father's history of incarceration since T------ came in the care of Maternal Aunt, as Father was incarcerated at that time and continuously for several years thereafter.
When T------ came under the guardianship of Maternal Aunt in July 2013, Father was in the first year of a five-year period of incarceration for drug possession that resulted in his release in or about February 2017. Although Father testified that he initially consented to guardianship of T------ because he believed he would resume care of T------ upon his release in February 2017, Father also testified that he has failed to stay clear of the prison system since then. He was incarcerated for about three weeks in August 2017 on another drug possession charge, and for about three weeks in or about April 2018 for violation of probation, and for one or two days waiting to go to court in September 2018 on new drug possession charges.
As to housing, Father reported that he and his brother, F------, own two three-bedroom homes, with fenced-in yards, by inheritance from their parents, and that they live in one and pay all their bills from the rental income they receive from the other home. Father also testified that his home has a spare room where T------ can reside which is presently stocked with toys and has a desk. He added that he can acquire a bed for T------ should she ever return to his care.
As to employment, Father reported, without evidence, that he is currently employed working under the table for cash for United Contractors in Newark, Delaware. However, he reported to Ms. Lattomus in 2017 that he had struggled in the past to maintain employment due to his history of substance abuse and criminal activity. Pet. Ex. #1.
As to substance abuse treatment, the New Castle County Superior Court, in sentencing him to five years of confinement for drug possession charges in April 2013, found Father to have a "serious heroin addiction," that he "requires intensive drug treatment," and that he "presents a real danger to the community." Pet. Ex. #4. In 2017, he admitted to Ms. Lattomus that there was no illicit abuse that he had not "gotten high on." Pet. Ex. #1. Father also admitted that he has not participated in any substance abuse treatment programs since he completed the Crest program in 2016, despite picking up new drug possession charges in August 2017 and July 2018. Father further admitted that he never submitted to a hair follicle test prior to this hearing, despite the Court's July 2018 Order, because he relapsed. However, Father reported that he had not used any illicit substances in the three weeks prior to this hearing, after he "went cold turkey" and endured five days of "shivering" and "shaking" in his bed. Contrary to the Superior Court's 2013 finding, Father denied being addicted to heroin but plainly stated that "I enjoy it. I love it."
As to mental health treatment, in its April 2013 sentencing of Father, the Superior Court also found that Father "may have significant mental health issues" based on Father's own report that he had schizoaffective disorder and bipolar disorder. Pet. Ex. #4. Father reported in 2017 that he disagreed with one or both of these diagnoses and that he was going to seek a second opinion. At this hearing, Father testified that his present diagnosis is now PTSD and bipolar disorder. However, Father admitted that is not presently receiving any mental health treatment or taking any prescribed drugs because he does not feel that he needs any treatment or medication.
Although the Court is encouraged that Father reports having stable housing, a present source of income, and a recent very brief (three weeks) stint of abstinence from drug use, when looking at that overall arch of Father's life since T------ came under the guardianship of Maternal Aunt, the Court can make no other conclusion than that Father has failed to plan. The Court's chief concern is Father's decision to address his substance abuse and mental health issues without the assistance of treatment professionals. Father's self-reporting that he has been clean for the three weeks prior to this hearing, is simply too little too late, in light of Father's long and overwhelming history of drug use and convictions on drug-related charges. As such, the Court finds that Maternal Aunt and Uncle have established by clear and convincing evidence that Father has failed to plan for his reunification with T------.
b. T------ has resided in the home of Maternal Aunt and Uncle for at least one year
It is uncontroverted that T------ has continuously resided in the home of Maternal Aunt and Uncle since 2013, well beyond the statutory requirement to establish failure to plan.
c. Father is incapable of discharging parental responsibilities, and there appears to be little likelihood that he will be able to discharge such parental responsibilities in the near future
Father has not had T------ in his care since 2012. For most of the time since then, he has been incarcerated on drug-related charges. Father also has a long history of drug-related charges in Delaware spanning back to 1994. Furthermore, he is presently on probation related to drug charges from July 2018, and has an active capias for his arrest for violation of his probation issued one day after this hearing, on October 25, 2018. Therefore, based on Father's criminal record alone, there is little if any likelihood that Father will be able to discharge his parental responsibilities in the near future by staying out of the criminal justice system.
Father has also admitted, without evidence, to only being abstaining for the use of illicit substances in the three weeks prior to this hearing. Stringing together three weeks of sobriety after years of drug use is likewise little if any indication that Father will remain sober and be able to care for T------.
However, even more than Father's history of issues with criminal activity, substance use and mental health, most telling under this analysis is Father's own admission that he is not asking to resume discharging parental responsibilities after six years. Instead, he is only asking to resume contact with T------ and keep the option open for her to maybe "five years" down the road decide that she wants to move back in with Father. The Court declines to permit Father to keep his child from achieving permanency for another five years after she has already been in the guardianship of Maternal Aunt for over five years. As such, the Court finds that Maternal Aunt and Uncle have established by clear and convincing evidence that Father has failed to demonstrate that he will be able or even plan to be able to begin discharging his parental responsibilities as to T------ in the near future. D. Best Interests of the Child
Even when one or more of the statutory grounds for termination of parental rights has been established, the petition should not be granted unless it is determined by clear and convincing evidence that the termination is in the child's best interests. According to the Delaware Supreme Court, "one of the important objectives of the termination of parental rights statute is to insure that children are not denied the opportunity for a stable family life. In making this determination, the Court must consider all relevant factors including those set forth in 13 Del. C. § 722 :
See Hutton, 765 A.2d at 1272.
Shepherd v. Clemens, Del. Supr., 752 A.2d 533, 538 (2000) (citing In re Hanks, Del. Supr., 553 A.2d 1171, 1179 (1989).
Harper v. Div. of Family Servs., 953 A.2d 719, 721 (Del. 2008). --------
a. The wishes of the T------'s parent or parents as to her custody and residential arrangements;
Mother failed to participate in this hearing. As a result, her current wishes as to the termination of her parental rights in T------ are unknown. However, in October 2016, in relation to a previous Petition for Permanent Guardianship as to T------, Mother wrote that "the most healthy place for my daughter T------ Y------ to live permanently is with [Maternal Aunt]." Pet. Ex. #8. Several months later, in January 2017, Mother filed a Motion with the Court demonstrating that she no longer consented to permanent guardianship of T------ going to Maternal Aunt.
Father opposes the termination of his parental rights all while recognizing that it is in T------'s best interest that she continues to reside with Maternal Aunt and Uncle. Despite his consent to guardianship of T------ going to Maternal Aunt in 2013, Father testified at this hearing that it was always his intent to resume caring for T------ when he was released from incarceration in 2017. Now, Father wishes to be able to work toward resuming visitation with T------ and have the opportunity to be involved in her life. Father added that he opposes the termination of Mother's parental rights but that he does not support her having contact with the child if Mother plans to use drugs in T------'s presence.
Therefore, this factor slightly favors granting the TPR based on Mother's failure to appear and favors denying the TPR as to Father.
b. The wishes of T------ as to her custodian(s) and residential arrangements;
Due to T------'s young age, the Court did not speak to her about her wishes. However, according to Maternal Aunt and Ms. Payne, T------ wants to continue residing with Maternal Aunt and Uncle. Maternal Aunt further testified that T------ would like to be adopted and change her last name to D---- to be like the rest of the children in the home. Therefore, this factor strongly favors granting the TPR.
c. The interaction and interrelationship of T------ with her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of T------, any other residents of the household or person who may significantly affect T------'s best interests;
T------'s Relationship with Maternal Aunt and Uncle and their children
Maternal Aunt testified that T------ calls her "Mommy" and Maternal Uncle, "Daddy." Ms. Payne added that she believes that the Petitioners and T------ have a healthy parent-child relationship.
Maternal Aunt testified that her nine-year-old, A----, and six-year-old, E----, are both "extremely close" with T------, and that T------ is like a "second mother" to Maternal Aunt's three-year-old, T----. She added that E---- and T------ look like twins and relate to each other like twins. Ms. Payne also testified that T------ refers to her three cousins as her "brothers and sister."
T------'s Relationship with Father and Mother
Maternal Aunt testified that T------ knows that Father is her biological father but that she refuses to call him her father. Father and Ms. Payne both testified that Father and T------ do not know each other personally, and Father added that he is not sure the last time he had direct contact with T------, only that "it's been a while." However, the Court is aware that Father's lack of contact with the child has not been for complete lack of effort or interest on his part as evidenced by, among others, filing of Petitions regarding contact with T------. The following is a brief summation of the extensive testimony offered regarding Father's and Mother's history of incarcerations with T------ since she came into the care of Maternal Aunt.
Most of the testimony related to this factor focused on an incident that arose on T------'s birthday in May 2018, when Mother and Father last attempted to have contact with the child by bringing her presents. Mother and Father showed up at the door, while the four children were getting ready to go to bed, but Maternal Aunt did not permit Mother or Father to have contact with T------. Maternal Aunt testified that both Mother and Father appeared intoxicated because they were acting "darty" and were hard to understand. Father responded that he believed that Mother had provided Petitioners with advance notice that they were coming, but that Petitioners would not permit Mother and Father to leave so many presents for T------. So Father reported that he gave Mother the biggest gift to mail to Petitioners, and that he has kept the remainder of the gifts in his home to provide to T------ at another time. However, the Court notes that Maternal Aunt testified that, when T------ has received gifts, such as a Barbie and Power Wheel, from either Mother or Father in recent years, she has refused to play with them.
Maternal Aunt also testified that she does not presently allow Father to have any visits with T------, and that the child has not seen Father since he was released from incarceration in 2017. However, Father has had phone and letter contact with T------ since then. Pursuant to the Court's March 2017 Stipulation and Order, Father was to have calls with T------ every Saturday at 4:00 PM. However, Maternal Aunt and Father placed blame on each other for why Father's phone contact with T------ has since stopped. Father added that he is no longer writing letters or birthday cards because he has been told, in the past, that T------ was not getting them. Despite having no contact with T------, the Court notes that Father appears to still have a clear affinity for the child as demonstrated by the fact that he reported that he has pictures of T------ all over his room. As to Mother, Maternal Aunt testified that after two visits with T------ in Petitioners' home in November 2016 when Mother was visibly high and/or intoxicated in front of the children, Mother has had no further contact with T------.
The Court finds that this factor favors granting the TPR as to Mother. As to Father, there is no evidence that his contact with T------ has been inappropriate, only that it has not happened, about which the Court does not place full blame on Father. However, T------ has no bond with Father after five years in Petitioner's care and she appears hostile to the idea of forming a bond with Father. Therefore, this factor also favors granting the TPR as to Father.
d. T------'s adjustment to her home, school and community;
T------ appears to be well-adjusted to her home with Maternal Aunt, Maternal Aunt and her cousins. It is likely that theirs is the only home that she knows, and she views them all as her immediate family. Additionally, both Ms. Payne and Ms. Lattomus praised T------ for how well she is doing in the home. Therefore, this factor favors granting the TPR.
e. The mental and physical health of all individuals involved;
Aside from a brief discussion of Mother's ongoing substance abuse issues, and Father's recent relapse into drug use and present efforts to remain sober, all of the testimony under this factor focused on T------'s mental health. Ms. Payne testified that T------ has adjustment disorder with anxiety as well as signs of depression. Among the child's symptoms, Ms. Payne noted that T------ shows, among others, excessive worry, and excessive masturbation to the point of hurting herself. As one example of T------'s worrying, Ms. Payne reported that following the May 2018 birthday incident, the child started to express fear and concern that her biological parents might try to take her away from the Petitioners. Maternal Aunt added that after the incident T------'s excessive masturbation started again and she wanted to make sure all the windows were locked so that neither Mother nor Father could climb in a window while she was sleeping. Maternal Aunt also reported that T------ used to exhibit these symptoms around Mother and Father's scheduled phone calls, but that since these calls have stopped T------'s anxiety has let up.
Ms. Payne also testified that she believes that if T------ has stability and certainty about where she will live and with whom, then the child's self-injurious behavior will likely subside. Ms. Lattomus also testified that she believes that is it important for T------'s mental health that she achieve permanency. To that end, Ms. Lattomus found that talking about Mother and Father were triggers for T------ that made her "very uncomfortable," but that she did not show any discomfort when talking about Petitioners.
Therefore, this factors favors granting the TPR as to both Mother and Father.
f. Past and present compliance by both parents with their rights and responsibilities to their children under § 701 of this title;
T------ has been in the care of Maternal Aunt and Uncle since 2013. Both Mother and Father have been ordered by the Court to pay child support to Petitioners since 2016. However, neither party has been compliant with paying up to the monthly amount required. As of September 30, 2018, Father was $1266.93 in arrears and Mother was $3663.23 in arrears. Pet. Ex. #9. There was no evidence presented that either Mother or Father has provided support to T------ by any other means, aside from birthday presents in 2017 and 2018, and sporadic support from Mother for daycare costs. Father admitted that he is behind in child support and explained that although he would love to financially support T------, he feels that if he cannot see her then he does not understand why he should have to financially support her. By their absence in her life, they have not provided the care, nurture, welfare and education that children require. Therefore, due to Mother's and Father's ongoing failure to recognize that financially supporting T------ is their responsibility even when she is not in their care and their failure to provide any emotional support for her, this factor favors granting the TPR.
g. Evidence of domestic violence as provided for in Chapter 7A of this title; and
There was no testimony that either the Petitioners or have ever been perpetrators of domestic violence. However, Mother has a pending assault third degree charge, from an arrest on February 4, 2018, against Mr. H---, with whom Petitioners believe Mother is residing. Therefore, under 13 Del. C. § 703A(b)(2), Mother meets the definition, if convicted of the above offense, of being a perpetrator of domestic violence. Additionally, Mr. H--- has a lifetime PFA Order against him issued in 2011 after he "strangled [a domestic partner], punched, injured by glass and objects." Therefore, this factor is neutral as to Father. This factor only slightly favors granting TPR as to Mother, due to her ongoing relationship with Mr. H--- despite the Court's concerns expressed in 2015, because no parties asked for T------ to be returned to Mother's care at this hearing and because Mother's charge is still pending.
h. 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.
Maternal Aunt and Uncle have no criminal record in Delaware other than numerous motor vehicle convictions.
Father has an active capias for his arrest in Delaware for violation of his probation. Father also has a conviction in 2018 for possession of drug paraphernalia, a 2017 conviction for drug possession, 2013 convictions for possession of drugs and drug paraphernalia, 2010 convictions for assault third degree and menacing, 2008 convictions for possession of a hypodermic needle, criminal trespass first degree, shoplifting under $1000, and drug possession, a 2007 conviction for shoplifting under $1000, criminal impersonation convictions in 2005 and 2006, 2005 convictions for shoplifting under $1000 and drug possession, a 2002 drug possession with intent to deliver conviction on which he later violated his probation, a 1997 receiving stolen property over $1000, and various other misdemeanor convictions from the 1990s
Mother has two active capiases for her arrest in Delaware for failure to appear at arraignment on a pending assault third degree charge where Mr. H--- is the reported victim and for failure to pay on a drug possession charge. As a result of the assault third degree charge, she also has an active no contact order with Mr. H---. Mother also has convictions in 2015 for possession of drugs and drug paraphernalia, a 2014 conviction for theft under $1500, and 2008 convictions for possession of a hypodermic needle, theft under $1000, and criminal mischief under $1000. Mother's fiancé, Mr. H---, has four active capiases for his arrest in Delaware for failure to pay or appear on vehicular or dog-related charges. He also has a conviction in 2016 for drug possession, and 2013 convictions for burglary third degree and possession of a firearm by a person prohibited, a 2008 conviction for harassment, and other misdemeanor convictions from the 1990s and 1980s.
Therefore, this factor favors granting the TPR as to both Mother and Father due to their ongoing criminal activity and long history of drug related convictions.
Thus, considering all the factors of 13 Del. C. §722 and the evidence presented at the hearing, as well as the concurrence of the child's attorney, Marc Casarino, Esquire, the Court finds by clear and convincing evidence that it is in T------'s best interests for the TPR to be granted as to both Mother and Father.
V. CONCLUSION
The Court concludes, based on clear and convincing evidence, that Mother's and Father's parental rights should be terminated on the grounds of failure to plan as set forth in 13 Del. C. § 1103(a)(5) and that it is in T------'s best interests that the TPR be granted. Therefore, the Court grants Maternal Aunt and Uncle's Petition for the Termination of Parental rights, and Mother's and Father's parental rights in T------ are terminated. Because Mother's and Father's parental rights are terminated, Mother's Petition for Visitation is dismissed as moot and the Guardians' motion for hair follicle test is dismissed as moot.
IT IS SO ORDERED
__________ Date Written Order Issued __________ /s/ BARBARA D. CROWELL, Judge __________ Date Written Order Mailed BDC/plr