Opinion
File No. CN14-03464 Case No. 18-35567
06-30-2020
R S. B Petitioner, v. C A. K , D K , and E B , Respondents.
Susan C. Over, Esquire, LAW OFFICE OF SUSAN C. OVER, 724 Yorklyn Road, Suite 250, Hockessin, DE 19707 Attorneys for Petitioner. Gregory D. Stewart, Esquire, LAW OFFICE OF GREGORY D. STEWART, P.A, 409 South Ridge Avenue, Middletown, DE 19709 Attorneys for Respondent. E B Self-Represented
ORDER ON PETITION TO RESCIND GUARDIANSHIP Susan C. Over, Esquire, LAW OFFICE OF SUSAN C. OVER, 724 Yorklyn Road, Suite 250, Hockessin, DE 19707 Attorneys for Petitioner. Gregory D. Stewart, Esquire, LAW OFFICE OF GREGORY D. STEWART, P.A, 409 South Ridge Avenue, Middletown, DE 19709 Attorneys for Respondent. E B Self-Represented ARRINGTON, Judge.
On June 22, 2020, the Court conducted a hearing on the Petition to Rescind Guardianship in the interest of R B , Jr. (born , 2006) ("Son") and A B (born 2015) ("Daughter") (collectively "Children"). Participating in the hearing were Petitioner R B , Sr. ("Father"), represented by Susan C. Over, Esquire; Respondents C K ("Maternal Grandmother") and D K ("Maternal Grandfather"), represented by Gregory D. Stewart, Esquire; and Respondent E B ("Mother"), self-represented.
At Father's request, the Court interviewed Son in a videoconference on June 26, 2020. Based upon the evidence presented at trial and the interview with Son, the Court's decision is as follows.
PROCEDURAL HISTORY
Maternal Grandparents filed a Petition for Guardianship on September 14, 2016. Maternal Grandparents initially sought an ex parte order alleging that the parents were "alcoholics, children unsupervised, drunk driving, passes out for 3-4 hours at a time, back on heroin." The Court denied the ex parte application as the Children had been residing with Maternal Grandparents since 2006. Maternal Grandparents filed a second Motion for Ex Parte Order on February 1, 2017 alleging that "results if left with parents is death as both parents are addicted to heroin and alcohol. . ." The Court denied the second request.
Dkt. # 9.
Dkt. # 11.
On February 28, 2017, Father filed an Answer to the Petition for Guardianship stating, "I do not agree with the grandparents having guardianship of my children." On April 19, 2017, Mother signed a Guardianship Affidavit of Consent in the interest of both Children. During a Case Management teleconference on October 2, 2017, both Mother and Father consented to the guardianship. The Order granting the Petition for Guardianship was entered on October 5, 2017.
Dkt. #15.
The Order acknowledges Father was willing to consent once he understood that he did not lose his parental rights and that he could petition to have his custodial rights resorted.
Father filed a Petition to Rescind Guardianship on November 28, 2018 alleging that the reasons the guardianship was established no longer exist. Father alleged that he has "gotten on [his] feet and established a steady job and steady income." Father requested an ex parte order alleging that Maternal Grandmother was "mentally abusing [his] kids and making them feel as if their parents don't want or love them." The Court denied the ex parte request as there was no allegation of immediate and irreparable harm to the Children. On December 28, 2018, Maternal Grandparents filed an Answer denying the allegations in the Petition to Rescind Guardianship.
Dkt. #27.
Dkt. #30.
A Stipulation and Order Regarding Temporary Visitation was entered on August 20, 2019. This Stipulation and Order granted Father visitation with the Children every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m.
On December 10, 2019, the Court conducted a hearing on the Petition to Rescind Guardianship resulting in an Interim Order expanding Father's time with the Children to three of every four weekends. The Court's main concerns regarding the rescission of guardianship at that time related to Father's continued marijuana use as his past addiction to drugs and alcohol was the basis for the initial guardianship consent order. Additionally, the Court noted the lack of an appropriate bedroom for Daughter.
Dkt. #57.
The Court held the final hearing on the Petition to Rescind Guardianship on June 22, 2020. At Father's request, the Court conducted an interview with Son on June 26, 2020.
FACTUAL BACKGROUND
Father's Testimony:
Father testified that he believes the reasons set forth in the Guardianship Order are no longer at issue. Father continues residing in a two-bedroom apartment in Edgewood, Maryland. Father testified that he and his wife have moved into the makeshift bedroom in the living room and that the parties' daughter and her stepsister (not at interest in this matter) have moved into their own bedroom. Father explained that the girls each have their own beds, dressers, and a television in the room. Son continues residing in his bedroom with his stepbrother. The Court did not have concerns regarding Son's sleeping situation.
Father testified that his Mother-in-law tends to spend weekends at his apartment. Father admitted that when the Mother-in-law is present, there can be seven people living in the two-bedroom apartment. Father understands that this is not optimal but testified that it does not affect the Children's sleeping arrangements.
Father testified that he is hoping to find a larger place within the year. Father testified that he has searched on Zillow and other realtor websites. Father ideally would like to purchase a home but needs to improve his credit before he can secure a mortgage. Father testified he is going to continue looking for larger rental properties and hopes to find something after the COVID-19 pandemic restrictions are lifted. Father testified that his goal is to move into a new home by the end of 2020.
In the past, Father had struggled with an opiate and heroin addiction. At the hearing on December 10, 2019, the Guardians' counsel introduced an exhibit showing that Father had tested positive for THC in 19 out of 23 random urine tests spanning from April 2018 until November 2019. At the hearing on June 22, 2020, Father introduced an exhibit showing 6 negative urine screens spanning from January 2020 until June 2020.
Petitioner's Exhibit 2.
Father has visitation with the Children three out of every four weekends under the Interim Order. Father testified that the visitation is going well. Father drives more than an hour each way to pick the Children up for his weekend visits. Father testified that the Children are comfortable and happy in Father's home.
Father testified that he fears for Son's emotional well-being if the guardianship continues. Father testified that the Son reports to him that Maternal Grandmother has called him a "mistake" and "calls him out" in front of other relatives. Father explained that he sees the effect that living with Maternal Grandparents has on Son and does not wish for it to continue.
Father admitted that on occasion, Daughter will cry when Father picks her up for visitation. Father does not believe that Daughter is afraid of him. Father testified that Daughter typically stops crying within minutes of being in the car. Father further explained that Daughter is constantly telling him that she loves him. Father plays games and dress-up with her during his visitation. Father believes that Daughter cries due to her young age and confusion about the transition between the two homes.
Father testified that due to the COVID-19 pandemic, he was forced to forfeit a weekend visit with the Children. Father explained that during that same weekend, Maternal Grandparents took the Children to a birthday "drive-by" celebration for a maternal relative. Father testified that Maternal Grandmother was reportedly drinking at the event and that the Children were playing with their cousin. Father was upset after the fact about the cancellation because he believed he had given up his visitation so that the Children could remain in their home in quarantine, only to learn that they left the home.
Father testified that Son did very well in school for the fourth quarter and made the honor roll. Father explained this was a big deal as Son's grades had struggled at the start of the school year. Father testified that he will assist Son with homework during his weekend visitation.
Father testified that he is employed as a warehouse worker for Amazon. Father works on Mondays, Tuesdays, Thursdays and Fridays. Father's wife is presently unemployed and stays at home during the day. Father testified that he has been paying child support since the Child Support Order was entered but that the Order was retroactive so there are arrears that started with the Order. Father explained that $221.00 comes directly out of his paycheck every two weeks. Father supported his position with an exhibit showing the withholding by his employer.
The Child Support Order has current support of $460 per month. Father's bi-weekly withholding comes to approximately $480 per month.
On cross-examination, Father testified that he understood that he was supposed to provide the Children health insurance per the Child Support Order. Father explained that he attempted to have the Children added to his insurance through Amazon but ran into communication difficulties with Mother and Maternal Grandparents. Father testified that he was informed that Mother does not want to cancel the Children's present insurance until there is Court order to do so. Father testified that he would like to put the Children on his insurance through Amazon and intends to do so once he is able.
The Court notes that neither child support nor the need for Father to add the Children to his medical insurance was raised at the interim hearing even though the Order was in place at that time.
Guardians' Testimony
Maternal Grandmother testified that she does not believe it is in the Children's best interests to terminate guardianship at this time. Similar to her testimony in the December 2019 hearing, Maternal Grandmother believes that there will be a time for rescission in the future. Both Children have resided with Maternal Grandparents since their respective births. Maternal Grandmother testified that Daughter's reactions are "horrible" when it is time for Father's visitation. Maternal Grandmother testified that Daughter is "glad to be home" after returning from Father's visitation. Maternal Grandmother believes that Daughter is afraid of something that relates to Father's visitation and believes that Daughter will suffer emotional distress if guardianship is rescinded.
There was no testimony from the Guardians or any expert concerning the alleged "emotional distress" that Daughter will encounter.
On cross-examination, Maternal Grandmother acknowledged that Son wishes to live with Father. Maternal Grandmother testified that Son asks her about living with Father approximately once every two weeks.
Maternal Grandmother admitted to taking the Children to a birthday "drive-by parade" despite not allowing Father to have visitation that particular weekend. Maternal Grandmother testified that she got out of the car and took one shot of an apple flavored liquor with her son for his fortieth birthday. Maternal Grandmother stated that the Children were on the hill playing with a cousin and she asked them to return to the car. Maternal Grandmother testified that they were not at the birthday parade for more than twenty minutes total.
Maternal Grandfather testified that he has been the Children's legal co-guardian since 2017 but has raised the Children since birth. Maternal Grandfather does not believe now is the proper time to rescind the guardianship. Maternal Grandfather testified that Father needs to obtain a larger home in order to adequately provide care for the Children.
Maternal Grandfather testified there is "no question" that Son wishes to live with Father. However, Maternal Grandfather does not believe it is in the Children's "best interest" for guardianship to be rescinded. Maternal Grandfather testified that he will always make additional dinner on Sundays. Maternal Grandfather notes that the Children are typically hungry when they return from visitation with Father because they had not had a meal since lunch.
The Order requires that the Children be returned to the Guardians at 6:00 p.m. on Sundays. Father testified that the drive from Edgewood, MD to Townsend, DE is more than an hour. It is understandable that the Children would not have had dinner before leaving Maryland to return to the Guardians.
Maternal Grandfather supported Maternal Grandmother's testimony that Daughter becomes upset when it is time for Father's visitation. Maternal Grandfather explained that this behavior has been occurring for the last six months. Maternal Grandparents have not sought professional help for the issue but have "sat and talked with her." Maternal Grandfather walks the Children to meet Father because Maternal Grandmother "can no longer handle it."
Maternal Grandfather is fearful that Son will revert to struggling in school if the guardianship is terminated. Maternal Grandfather testified that Father recently had a full week of visitation with the Children through engagement in remote learning. Maternal Grandfather testified that Son did not complete any of his school assignments that week. Maternal Grandfather explained that he typically stays up late with Son on Sundays after returning from Father's home to finish school assignments that he did not complete during the weekend.
Maternal Grandfather's testimony is contradicted by Father's testimony and the interview with Son.
Mother's Testimony
Mother testified that she believes the guardianship should continue with Maternal Grandparents. Mother does not believe that Father has a large enough apartment to provide adequate care for the Children. Additionally, Mother testified that she is concerned that Father is the sole worker in the home as Father's wife is not working at present.
Mother is presently seven months sober and continues to attend Narcotics and Alcoholic Anonymous meetings. Mother engages in individual therapy on a weekly basis. Mother is currently employed at UPS full-time. Mother understands that she needs to continue improving in her recovery before she can provide adequate care for the Children.
Mother testified that she sees the Children on a weekly basis at the Maternal Grandparents' home. Mother has witnessed Son say "hurtful things" to Maternal Grandmother but Mother does not believe that he means what he says. Mother testified that she does not know why Daughter becomes upset when it is time for Father's visitation. Mother testified that she is sure that both Children love Father.
Interview with Son
The Court interviewed Son on June 26, 2020. The Court confirmed with Son that he did not speak with either party about the Court proceedings. Son is a very polite young man who was clear in his wishes and provided insight to help the Court make its decision.
Son understands why the guardianship is in place. Son explained that he learned from both Maternal Grandparents and Father that his parents were going through a "hard time" when the guardianship was entered. He explained that the "hard time" was related to his parents using drugs and alcohol. Son reported that Father no longer uses drugs or drinks alcohol. Son enthusiastically reported that Father is "definitely better" than he used to be.
Son would like for Son and his sister to live with Father. Son likes living at Father's apartment and enjoys spending more time with Father, his stepmother, his sister, and his step-siblings. He explained that living in the apartment is Father, his stepmother, Daughter and two step-siblings. Son explained that he does not see his step-grandmother at the apartment often.
Son resides in a bedroom with his step-brother who is the same age as him. The boys are in the same grade and enjoy a lot of the same activities. The boys have a set of bunk-beds in the room. Son explained that Daughter and his step-sister share the second bedroom. The girls moved from the living room to the second bedroom approximately one month ago. Son reported that he feels comfortable in the home and does not believe it is too small.
Son stated that Father is actively seeking a larger home. He explained that Father often talks about moving to homes that Father observes while driving and spends a lot of time researching homes on his phone.
Contrary to the Guardians' representations, Son stated that he enjoys doing school work at Father's home and that both Father and stepmother help him. He stayed at Father's home for one week and said that all of his work was completed.
While Son is disappointed that Maternal Grandmother says negative things about Father and/or Son, he understands that sometimes adults say things out of frustration. Son knows that Maternal Grandparents as well as his parents love him very much.
LEGAL STANDARD
Chapter 23 of Title 13 of the Delaware Code establishes the proper procedures for establishing, modifying, or rescinding guardianships. Rescission of guardianship is codified at 13 Del. C. § 2332(c), and provides:
Except as otherwise specified in this chapter, an order of guardianship may be rescinded upon a judicial determination that Petitioner has made a preliminary showing the guardianship is no longer necessary for the reason(s) it was established, unless:
(1) The Court finds that the guardian has established, by a preponderance of the evidence, that the child will be dependent, neglected, and/or abused in the care of the parent or parents seeking recession; or
(2) The Court finds that the guardian has established, by clear and convincing evidence, that the child will suffer physical or emotional harm if the guardianship is terminated.
13 Del.C. § 2332(c).
Section 901(8) of Title 10 of the Delaware Code defines dependency as:
"Dependency" or "dependent child" means that a person:
a. Is responsible for the care, custody, and/or control of the child; and
b. Does not have the ability and/or financial means to provide for the care of the child; and
1. Fails to provide necessary care with regard to: food, clothing, shelter, education, health care, medical care or other care necessary for the child's emotional, physical or mental health, or safety and general well-being; or
2. The child is living in the home of an "adult individual" who fails to meet the definition of "relative" in this section on an extended basis without an assessment by DSCYF, or its licensed agency; or
3. The child has been placed with a licensed agency which certifies it cannot complete a suitable adoption plan.
In making a finding of dependency under this section, consideration may be given to dependency, neglect, or abuse history of any party.
10 Del.C. § 901(8).
Section 901(18) of Title 10 of the Delaware Code defines neglect of a child as:
"Neglect" or "neglected child" means that a person:
a. Is responsible for the care, custody, and/or control of the child; and
b. Has the ability and financial means to provide for the care of the child; and
1. Failed to provide necessary care with regard to: food, clothing, shelter, education, health, medical or other care necessary for the child's emotional, physical, or mental health, or safety and general well-being; or
2. Chronically and severely abuses alcohol or a controlled substance, is not active in treatment for such abuse, and the abuse threatens the child's ability to receive care necessary for that child's safety and general well-being; or
3. Fails to provide necessary supervision appropriate for a child when the child is unable to care for that child's own basic needs or safety, after considE g such factors as the child's age, mental ability, physical condition, the length of the
caretaker's absence, and the context of the child's environment.,
Abuse is not alleged by the Guardians in this case.
In this case, Father has the initial burden of making a preliminary showing that the guardianship is no longer necessary for the reason(s) it was established, namely: drug and alcohol dependency that is not in active treatment and which threatens the Children's safety and general well-being. Once Father has made this showing, the burden shifts to Maternal Grandparents either to prove by a preponderance of the evidence that the Children would be dependent, neglected, or abused in Father's care, or to prove by clear and convincing evidence that the Children will suffer physical and emotional harm if the guardianship is terminated.
DISCUSSION
Constitutional Rights of Parents and Standards for Rescission.
The Fourteenth Amendment of the United States Constitution provides that no state "shall deprive any person of life, liberty, or property without due process of the law." The United States Supreme Court has emphasized that the liberty protected by the Due Process Clause includes the "interest of parents in the care, custody and control of their children." In Quilloin v. Walcott, "the Court has recognized on numerous occasions that the relationship between parent and child is constitutionally protected."
U.S. Constitution, Amendment XIV, section 1.
Troxel v. Granville, 530 U.S. 57, 65 (2000).
Quilloin v. Walcott, 434 U.S. 246, 255 (1978).
In Meyer v. Nebraska, the Court noted that the Due Process Clause protects the right of parents to "establish a home and bring up children" and "to control the education of their own." Additionally, in Prince v. Massachusetts, the Court asserted that "it is cardinal with us that the custody, care, and nurture of the child resides first in parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."
Meyer v. Nebraska, 262 U.S. 390, 399 (1923)(holding that a statute forbidding the instruction of any language other than English to children below the 8th grade was unconstitutional).
Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
It is under this blanket of constitutional protections that the Court must analyze all decisions involving parents and children. Guardianships by their very nature are temporary and are granted only to non-parents of the children under specific standards. Rescissions of guardianship require the same attention to parental rights.
Prior to the most recent legislative change, the guardianship statute was silent on the standards for rescission. Rather, rescissions were considered as "modification" which required a best interest analysis, or as "termination" which stated rather vaguely "as otherwise ordered by the Court." Analysis of the best interest factors in a rescission of guardianship proceeding was often in conflict with the constitutional rights of parents. In M.G. v. M.B. & M.W.G., the Court determined that "a fit, natural parent and a third-party should not be placed on equal footing when performing a best interests analysis pursuant to § 2332(b)."
M.G. v. M.B. & M.W.G, 2011 WL 1707208 (Del. Fam. Ct. 2011).
On June 10, 2014, the Court amended the statute by inserting a specific subsection addressing rescission that no longer includes analysis of the best interests of the child. The statute now provides clarity on the proper standards for returning a child from guardianship to their parents care.
Maternal Grandparents case rests primarily upon the best interests of the Children. However, the Court cannot balance the best interest factors between Father and Maternal Grandparents but instead must focus on whether Father can provide adequate care for the Children. Only if the Children will be dependent, neglected, or abused in the parent's care, or if there is clear and convincing evidence that physical or emotional harm will result, may the Court deny a petition to rescind guardianship. Father's Preliminary Showing.
The Guardianship Order was entered by consent based on the alcohol and heroin use by the parents which resulted in instability for the Children. In the Interim Order on the Father's Petition to Rescind Guardianship entered on December 13, 2019, the Court found that "Father has not progressed adequately in his substance abuse recovery to rescind guardianship at this time." The Court entered an Interim Order expanding Father's time with the Children and allowing him to provide proof that he was substance-free. During the final hearing, Father introduced five consecutive months of drug-free urine screens. Additionally, Son reported with some pride that Father no longer uses drugs or drinks alcohol. The evidence supports that substance abuse is no longer an issue for Father. Father has admitted to his prior drug use and has since changed his life. Father has proven his dedication to staying drug-free and has satisfied the requirement of a preliminary showing that the conditions that led to the guardianship have been ameliorated.
Dkt. #57 at *11.
Petitioner's Exhibit 2.
In the Interim Order, the Court noted additional concerns with Father's living situation. Daughter was staying in a "bedroom" constructed of two shower curtains hanging from the ceiling. The makeshift bedroom was located in the main living room. While the Court did not implicitly state that the sleeping situation was a reason to continue the guardianship, the living arrangement was not ideal for the young girl.
Dkt. #57 at *11.
At the final hearing, Father testified that he has not been able to secure larger housing despite his diligent search and the COVID-19 situation. Father and Son both reported that Father searches for larger homes frequently. Father explained that Daughter has moved into a separate bedroom and has a bed, dresser, and television of her own. Father and stepmother have since moved into the living room as their primary bedroom. While the sleeping situation is not optimal, the Court is pleased with Father's self-sacrifice to better provide for his Children. The Court places more focus on the Children's living situation than on the arrangements of the parents. While the Court encourages Father to continue seeking a larger home, the statute does not provide that the size of one's home is a factor in the need for guardianship. Rather, the language of the statute provides that parents must provide "necessary care with regard to ... shelter...." Father's apartment is safe and secure shelter for the Children.
10 Del.C. § 901(8)(b)(1).
The Court finds that Father has met his initial burden of making a preliminary showing that the guardianship is no longer necessary for the reasons it was established. Father has achieved continuous sobriety, has a stable home and maintains stable employment. Furthermore, both Children now have adequate sleeping arrangements at Father's home. Guardians' Rebuttal of Preliminary Showing.
Once the Petitioner has satisfied the requirement of a preliminary showing, the burden shifts to the Respondents either to prove by a preponderance of the evidence that the Children would be dependent, neglected, or abused in Father's care, or to prove by clear and convincing evidence that the Children will suffer physical and emotional harm if the guardianship is terminated.
Preponderance of the evidence means such relevant evidence as will enable the court to determine the identity of the litigant who should prevail, the weight of evidence tipping in favor of that litigant. Reynolds v. Reynolds, 237 A.2d 708 (Del. Supr. 1967).
Clear and convincing evidence is a higher evidentiary standard than a mere preponderance but a lesser standard than proof beyond a reasonable doubt. Shipman v. Division of Social Services, 454 A.2d 767 (Del.Fam.Ct. 1982). See also: Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 211 Clear and convincing evidence is a standard of proof which will produce in the mind of trier of facts a firm believe or conviction as to allegations sought to be established.
Mother testified that she does not believe that Father can financially provide for the Children. Mother testified that she has concerns that Father is the sole worker in the home and that his wife is unemployed at present.
There was no evidence, beyond Mother's belief, to prove that Father cannot financially provide for the Children. Father testified that he has held stable employment and introduced an exhibit of his recent paystubs. Father testified that the child support is taken directly from his check and that he has not missed a payment. Furthermore, if the guardianship is rescinded, Father would no longer have a child support payment and would soon have an additional $480 per month that he could put toward providing for the Children's needs.
Petitioner's Exhibit 1.
Mother and Maternal Grandparents testified that they do not believe that Father can adequately provide for the Children in his current two-bedroom apartment. Maternal Grandmother testified that Maternal Grandparents have a larger home and can provide more space for the Children.
While Father admitted that on occasion there are seven people residing in his two-bedroom apartment, Father testified that it does not affect his ability to provide care for the Children. Further, Son stated that he rarely sees Father's mother-in-law at the apartment. Both Children have bedrooms in which they each have a proper bed, dresser and television. Son reported that he is comfortable in Father's apartment and does not feel crammed in the space.
It is significant to note that the testimony of Mother and the Maternal Grandparents focuses on the "best interests" of the Children rather than whether Father can provide "necessary care with regard to food, clothing, shelter, education, health care, medical care or other care necessary for the child's emotional, physical or mental health, or safety and general well-being." The Respondents are well intentioned but analysis under the statutory language does not support their position.
10 Del.C. § 910(8)(b). --------
The Court cannot find that Respondents have proven that the Children will be dependent, neglected, or abused in Father's care. Both Children have a bed and respective rooms at Father's apartment. Father testified that he acknowledges the small space and hopes to find a larger home within the year. The size of a home, whether big or small, is not a reason to continue guardianship. There was no testimony concerning food other than Maternal Grandfather's statement that the children have not had dinner when they return on Sunday evening. In light of the distance between Father's home in Edgewood, Maryland and the Guardians' home in Townsend, Delaware, it is understandable that the Children may not have had dinner. Son's grades actually improved since the entry of the Interim Order. While there was a suggestion that Son did not complete homework while with Father, Son and Father both testified that work was finished and complete. Father stated that he attempted to get the Children health insurance but Mother was not comfortable agreeing to it. There was no evidence that Father has failed to provide any care necessary for the Children's development. Father is employed full-time and earning enough to support his family and pay child support. The Court does not find that the Children would be dependent, neglected or abused in Father's care.
The uncontroverted testimony is that Son wishes to live with Father. Maternal Grandparents did not allege that Son will suffer any physical or emotional harm in Father's care. While Maternal Grandparents both testified that Daughter is afraid of "something" and believes Daughter will suffer emotional harm if the guardianship is rescinded, Father testified that Daughter settles down in a few minutes, proceeds to smile and laugh, and constantly tells Father that she loves him. Daughter is five years old and does not fully understand the circumstances of the situation. It is typical behavior for a young child to become upset when leaving a comfortable location. However, that does not mean that Daughter is fearful of Father or of "something" regarding his visitation. It is more likely that Daughter cries due to her young age and her confusion of the circumstances.
The Court cannot find that Maternal Grandparents have proven by clear and convincing evidence that the Children will suffer physical and/or emotional harm if the guardianship is terminated.
CONCLUSION
Son and Daughter are fortunate to be surrounded by people who love them and want what is best for them. While the Court understands that Maternal Grandparents have been guardians since the Children's birth, the guardianship was always on a temporary basis. Father has proven that the reasons surrounding the guardianship are no longer at issue. Father has achieved not less than eight consecutive months of clean urine tests, lives in a stable home, and has held steady employment. Father will continue looking to secure a larger home and do all that he can to provide the best possible life for the Children. Considering the reasoning behind the guardianship, the testimony given, and the interview with Son, the Court finds that the guardianship of the Children is no longer necessary.
Rescinding guardianship means that Father will now be the primary caretaker of the Children. However, the Children are substantially bonded to their Maternal Grandparents and need to have time both with the former Guardians and their Mother. The Court will enter an Order which acknowledges this relationship, will allow the Children to maintain their strong bond, and will allow Mother to visit with them until she has established her own home.
The Court thanks Maternal Grandparents for all that they have done for the Children. The Court also applauds Mother's seven months of sobriety and encourages her to continue striving toward bettering her life for herself as well as the Children. The Court encourages the parties to work on strengthening their relationship. A strong family such as this one will be a bedrock foundation for these wonderful Children to grow into equally wonderful adults.
ORDER
THE COURT HEREBY ORDERS this 30th day of June 2020:
1. Guardianship of R B , Jr. and A B shall be rescinded to Father.
2. The Maternal Grandparents shall be entitled to have one weekend per month of visitation and two non-consecutive weeks of summer vacation with the Children. The Court will not enter and Order requiring specific weekends or vacation weeks but encourages the parties to cooperate in deciding on when the visits will occur. If they cannot reach agreement, any party may file a petition to establish a visitation schedule.
3. Mother shall have visitation with the Children when they are with the Maternal Grandparents. At such time as Mother has established her own home, Mother may file for a modification of this Order.
IT IS SO ORDERED.
/s/Michael W . Arrington
MICHAEL W. ARRINGTON
Judge Date Ordered: June 30, 2020
Date E-mailed: June 30, 2020