Abby Landon v. Division of Family Services ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ABBY LANDON,‘ §
§ No. 44, 2015
Respondent Below, §
Appellant, § Court Below—Family Court of
§ the State of Delaware in and for
v. § New Castle County
§
DIVISION OF SERVICES FOR (5 File No. 14-10-01TN
CHILDREN, YOUTH AND THEIR § Pet. No. 14-26935
FAMILIES, §
§
Petitioner Below, §
Appellee. §
Submitted: July 2, 2015
Decided: September 10, 2015
Before VALIHURA, VAUGHN and SEITZ, Justices.
0 R D E R
This 10th day of September 2015, it appears to the Court that:
(1) The appellant, Abby Landon (“Mother”), has appealed the
Family Court’s order dated January 6, 2015, terminating her parental rights
in her children, a daughter born on June 24, 2010 and a son born on
December 29, 2011 (collectively, the “Children”). Mother’s counsel
(“Counsel”) has filed an opening brief and a motion to withdraw under
1 By Order dated February 11, 2015, the Court assigned a pseudonym to the appellant.
Del. Supr. Ct. R. 7(d).
Supreme Court Rule 26.1(c).2 Counsel asserts that he has made a
conscientious review of the record and the law and can find no arguable
grounds for appeal. Mother was given the opportunity but did not submit
points for this Court’s consideration. In response to Counsel’s submission,
the Division of Family Services (“DFS”) and the Children’s Court
Appointed Special Advocate have moved to affirm the termination of
Mother’s parental rights.
(2) On October 3, 2013, the Family Court issued an ex parte order
granting emergency custody of the Children to DFS based on concerns that
Mother and the Children had been staying in a homeless shelter that could
no longer accommodate them. The following day, October 4, 2013, DFS
filed a dependency and neglect petition against Mother}
(3) Counsel was appointed to represent Mother at the Preliminary
Protective Hearing on October 9, 2013. At the hearing on October 9 and the
Adjudicatory Hearing on October 30, Mother stipulated to a finding that the
Children were dependent. By the date of the Adjudicatory Hearing, the
Children were settled in a foster home and attending day care. Also, the
2 See Del. Supr. Ct. R. 26.1(c) (governing appeals without merit in termination of
parental rights cases).
3 The petition was also filed against the Children’s father, who was incarcerated at the
time. On October 31, 2014, the Children’s father voluntarily consented to the termination
of his parental rights.
2
Children had gone to various medical appointments and had been referred
for services to address behavioral issues. At the conclusion of the
Preliminary Protective Hearing and the Adjudicatory Hearing, the Family
Court continued custody of the Children with DFS after finding that DFS
had made reasonable reunification efforts and that no relative placements
were available.
(4) On November 5, 2013, Mother entered into a case plan for
reunification (“Case Plan”). The Family Court approved the Case Plan at a
Dispositional Hearing on November 26, 2013.
(5) Mother’s Case Plan addressed her “emotional instability/mental
,7 “-
health issues, attitude about parenting,” lack of housing, lack of income,
and “family violence concerns.” Also, the Case Plan set up Mother’s
weekly supervised visitation with the Children. Under the Case Plan,
Mother was required to complete a mental health evaluation, participate in
parenting classes, find and maintain safe, stable housing, obtain employment
or other income, and complete a domestic violence program. DFS was
required to refer Mother for the mental health evaluation and provide
transportation, if necessary, provide a parent aide, assist Mother with
applying for housing and disability benefits, and make referrals for a home
evaluation and a domestic violence program.
3
(6) Review Hearings were held in February, April and July 2014.
After each hearing, the Family Court issued a detailed order summarizing
the evidence and making required findings.
(7) At each Review Hearing, Mother’s DF S treatment worker
testified about Mother’s progress under the Case Plan and the Children’s
progress in the foster home. At the April hearing, the parent aide testified
about Mother’s visitation with the Children. Overall, the testimony revealed
that Mother’s visitation with the Children, although sporadic, was otherwise
successful, but that Mother was not complying with other parts of the Case
Plan and was still without appropriate, stable housing.
(8) After each Review Hearing, the Family Court found that the
Children remained dependent, and that it was in the Children’s best interest
to remain in the custody of DFS. Also, the Family Court found that Mother
had not complied with the Case Plan, and that DFS had made reasonable
reunification efforts. Moreover, the Family Court found that the Children’s
foster home was safe and apprOpriate, and that placement of the Children in
the home of a relative was not appropriate.
(9) On August 19, 2014, DP S filed a motion to change the goal
from reunification to termination of parental rights. DFS alleged that the
Children had been in DFS custody since October 2013 and that attempts to
4
reunify the family had been unsuccessful and were no longer practicable.
Thereafter, the Family Court held a Permanency Hearing on September 18,
2014. In the written order that issued on September 19, 2014, the Family
Court summarized the evidence, made the required findings, and ruled on
the motion to change goal.
(10) At the Permanency Hearing, the Family Court heard testimony
from the DPS treatment worker, the Children’s Court Appointed Special
Advocate, and Mother. The BF S treatment worker testified that Mother last
saw the Children on June 30, 2014, that the Children were doing well in the
foster home, and that Mother was living in Pennsylvania under
circumstances that were not clear. The Court Appointed Special Advocate
testified that the Children were doing well in the foster home. Mother
testified that she was living in a five-bedroom home in Pennsylvania and had
been sober for six months. Also, Mother testified that she had applied for
disability benefits in April 2014 and was waiting for the decision. Mother
conceded that she had not spoken to the parent aide in at least three months
and had fallen out of touch with DFS.
(11) In the September 19 order, the Family Court found that the
Children remained dependent, and that it was in the Children’s best interest
to stay in the custody of DPS. Also, the court found that Mother had not
5
complied with the Case Plan, that DFS had made reasonable reunification
efforts, that the Children’s foster home was safe and appropriate, and that
placement of the Children in the home of a relative was not apprOpriate. The
Family Court granted the motion to change goal from reunification to
termination and scheduled a termination of parental rights hearing for
October 31, 2014. Lastly, the Family Court directed DF S to make a referral
for a home study on Mother’s living situation in Pennsylvania.
(12) On September 30, 2014, DFS filed a petition seeking to
terminate Mother’s parental rights on the statutory ground that Mother had
not planned adequately for the Children’s physical needs or mental and
emotional health and development. At the termination of parental rights
(“TPR”) hearing on October 31, 2014, the Family Court heard testimony
from Mother, the DFS treatment worker, the Court Appointed Special
Advocate, and the Children’s foster mother. At the conclusion of the
hearing, the Family Court deferred its decision pending its receipt and
consideration of the home study report on Mother’s residence in
Pennsylvania.
(13) DFS submitted the home study report on December 9, 2014.
The home study was conducted by the Lancaster County Children and Youth
Agency on October 28, 2014. The report recommended that the Children
6
not be placed with, or cared for by Mother, based on findings that Mother’s
housing was unsafe and unstable, and that Mother had unaddressed mental
health needs, no support system, no income, and no means of transportation.
(14) By order dated January 6, 2015, the Family Court granted the
TPR petition and terminated Mother’s parental rights in the Children. This
appeal followed.
(15) In Delaware, termination of parental rights is based on a two-
step statutory analysis.4 In the first step, the Family Court must determine
whether there is clear and convincing evidence of a statutory basis for
termination? When, as in this case, the statutory basis for termination is an
alleged failure to plan,6 the court must determine, by clear and convincing
evidence, that there is proof of at least one of five additional statutory
conditions,7 and that DFS “made bonafide, reasonable efforts to reunite the
family.”8
(16) In the second step of the analysis, the Family Court must
consider eight statutory best interest factors and determine whether there is
" 13 Del. C. § 1103(a) (2009).
5 1d. Shepherd v. Clemens, 752 A.2d 533, 537 (Del. 2000).
6 13 Del. C. § 1103(a)(5).
7 Idaho
8 Powell v. Dep 'r of Serv. for Children. Youth & Their Families, 963 A.2d 724, 737 (Del.
2008) (quoting Newton v. Div. of Family Serv., 2006 WL 2852409, at *2 (Del. 2006)
citing In re Hanks, 553 A.2d 1171, 1179 (Del. 1989)».
7
clear and convincing evidence that severing parental rights is in the best
interest of the child.9
This Court has held that, while all of the [best
interest] factors . . . must be considered by the
court, when balancing the relevant factors, the
Family Court may give different weight to
different factors. “The amount of weight given to
one factor or combination of factors will be
different in any given proceeding. It is quite
possible that the weight of one factor will
counterbalance the combined weight of all other
factors and be outcome determinative in some
situations.”'0
(17) In this case, the Family Court concluded that there was clear
and convincing evidence of Mother’s failure to plan based on findings that
Mother had not completed any elements of the Case Plan.ll The Family
Court also found clear and convincing evidence of four of the five additional
statutory conditions,12 and that termination of parental rights was in the
Children's best interests.”
9 See 13 Del. C. § 722(a)(])-(8) (listing best interest factors). Powell v. Dep ’t of Serv. for
Children, Yomh & Their Families, 963 A.2d 724, 731 (Del. 2008).
w Barr v. Div. ofFamin Serv., 974 A.2d 88, 98 (Del. 2009) (citing Powell v. Dep’i of
Serv. for Children, Youth & Their Families, 963 A.2d 724, 735 (Del. 2008) quoting
Fisher v. Fisher, 691 A.2d 619, 623 (Del. 1997))).
1' 13 Del. C. § 1103(a)(5).
‘2 13 Del. C. § 1103 (a)(5)a.l, 2, 4 and 5.
l3 13 Del. C. § 722(a)(l)-(8). 0f the eight best interest factors, the Family Court found
that one factor favored Mother, four factors weighed in favor of terminating Mother’s
parental rights, one heavily so, one factor was inapplicable, and two factors were neutral.
8
(18) This Court's review of a decision to terminate parental rights
requires consideration of the facts and the law as well as the inferences and
deductions made by the Family Court.'4 To the extent rulings of law are
implicated, our review is de nova.” To the extent issues implicate rulings of
fact, we conduct a limited review of the factual findings of the Family Court
to assure that they are sufficiently supported by the record and are not
clearly wrong.” This Court will not disturb inferences and deductions that
are supported by the record and the product of an orderly and logical
deductive process.'7 If the Family Court has correctly applied the law, our
review is limited to abuse of discretion.'8
(19) In this case, having carefully considered the parties’
submissions on appeal and the Family Court record, the Court concludes that
the termination of Mother’s parental rights should be affirmed. There is
ample evidence in the record supporting the Family Court’s termination of
Mother's parental rights on the statutory basis that Mother failed to plan for
the Children’s physical needs or mental and emotional health and
‘4 Wilson v. Div. quamily Sm, 933 A.2d 435, 439-40 (Del. 2010) (citing cases).
‘5 Id. at 440.
16 1d
[7 Id
I8 Id
development. Also, there is ample record evidence that it was in the
Children’s best interests to terminate Mother’s parental rights. The record
reflects that the Family Court thoroughly considered the best interest factors
and was guided by the factual findings it made as to each. This Court finds
no abuse of discretion in the Family Court's factual findings and no error in
the court’s application of the law to the facts.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Family Court is AFFIRMED. Counsel’s motion to withdraw is moot.