Rowe v. DFS

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JADE ROWE,1 §
§ No. 123, 2021
Respondent Below, §
Appellant, § Court Below—Family Court
§ of the State of Delaware
v. §
§ File No. CN19-01159
DEPARTMENT OF SERVICES FOR § Petition No. 19-01137
YOUTH & FAMILIES/DIVISION §
OF FAMILY SERVICES, §
§
Petitioner Below, §
Appellee. §
Submitted: February 16, 2022
Decided: April 8, 2022
Before SEITZ, Chief Justice; VALIHURA and MONTGOMERY-REEVES,
Justices.
ORDER
Upon consideration of the appellant’s brief filed under Supreme Court Rule
26.1(c), her attorney’s motion to withdraw, the response of the Department of
Services for Children, Youth and Their Families/Division of Family Services
(“DFS”), and the response of the attorney ad litem, it appears to the Court that:
(1) The respondent below-appellant, Jade Rowe (“the Mother”), filed an
appeal from the Family Court’s decision, dated March 23, 2021, terminating her
1
The Court previously assigned a pseudonym to the appellant under Supreme Court Rule 7(d).
parental rights to her son (“the Child”).2 On appeal, the Mother’s counsel
(“Counsel”) has filed an opening brief and motion to withdraw under Supreme Court
Rule 26.1(c).3 Counsel represents that he has made a conscientious review of the
record and the law and found no meritorious argument in support of the appeal. The
Mother has not submitted any points for the Court’s consideration.4 In response to
Counsel’s submission, DFS and the Child’s attorney ad litem have moved to affirm
the Family Court’s termination of the Mother’s parental rights. After careful
consideration, this Court concludes that the Family Court’s judgment should be
affirmed.
(2) The Child was born in December 2018. On January 16, 2019, DFS
filed an emergency petition for custody of the Child. DFS alleged that the Child had
a brain disorder, the Mother had not been available to sign for needed medical
procedures, and DFS had been unable to locate a suitable relative to care for the
Child upon his discharge from the hospital. The Family Court granted the petition.
(3) At the preliminary protective hearing on January 23, 2019, the Family
Court appointed counsel to represent the Mother. The Family Court found that there
2
The Family Court also terminated the parental rights of the Child’s father, who is not a party to
this appeal. We only recite the facts in the record as they relate to the Mother’s appeal.
3
We note that Counsel filed multiple papers in November 2021, January 2022, and February 2022
that failed to comply with Rule 26.1(c). We warn Counsel to be more careful in the future, or he
could face sanctions or disciplinary action under Supreme Court Rule 33.
4
Although Counsel incorrectly includes the Mother’s arguments at the TPR hearing as points in
his Rule 26.1(c) brief, he also represents that the Mother did not submit any points in response to
his letter informing her that she could submit any points that she wished the Court to consider.
2
was probable cause to believe the Child was dependent because the Mother was
recently released from prison, tested positive for cocaine a few days before the
Child’s birth, and the Child was born with a rare birth defect, agenensis of the corpus
callosum, that would require long-term care. With agenensis of the corpus callosum,
there is a complete or partial absence of the connection between the left and right
hemispheres of the brain. The court held that DFS had made reasonable efforts to
prevent the unnecessary removal of the Child from the home.
(4) On February 19, 2019, the Family Court held an adjudicatory hearing.
A DFS employee testified that the Mother had provided the names of maternal
relatives as possible placement resources, but DFS believed they were not
appropriate based on their criminal or DFS history. The Child was doing well with
a foster family. The Mother was residing with her mother (“the Maternal
Grandmother”), brother, and his girlfriend in a one-bedroom trailer. The Mother
testified that she had been in and out of prison over the last five years due to her drug
addiction and that she was not sure of the identity of the Child’s father. The Mother
was having weekly, three-hour visits with the Child. The Family Court found that
the Child continued to be dependent and should remain in DFS custody.
(5) On March 19, 2019, the Family Court held a dispositional hearing. The
Mother’s executed case plan was admitted into evidence. The elements of the
Mother’s case plan included obtaining and maintaining appropriate housing,
3
maintaining consistent employment, and continuing substance abuse and mental
health treatment with Connections. The Mother had moved, and was renting a room
from her brother. She testified that she was presently employed through Easterseals
as a caregiver for the Maternal Grandmother, and was looking for additional
employment. She also testified that there were no family members who could be a
potential placement resource. The Mother testified that she enjoyed weekly visits
with the Child, but an employee of the foster care agency testified that the Mother
had missed three visits because she was confused about the correct date of one visit
and failed to confirm two other visits. The Family Court found that the Child
continued to be dependent and should remain in DFS custody.
(6) The Family Court held pre-permanency hearings on May 31, 2019,
August 23, 2019, and November 14, 2019. At these hearings, there was testimony
that the Mother had moved back into the Maternal Grandmother’s one-bedroom
trailer. A maternal uncle with a criminal history that concerned DFS also resided
there at times. DFS did not believe the trailer was an appropriate residence for the
Child.
(7) The Mother earned approximately $400.00 bi-weekly as a caregiver for
the Maternal Grandmother, plus $197.00 a month in food stamps. The Mother
attended counseling sessions with Connections and was prescribed medications for
4
anxiety, depression, and sleeping. There was also testimony that the Mother had
been diagnosed with manic depressive disorder.
(8) The Mother’s drug screens were negative until July 24, 2019 and
August 8, 2019 when she tested positive for cocaine and opiates. At the end of
August and beginning of September, the Mother received inpatient treatment at
MeadowWood Behavioral Hospital. As a result of the Mother’s positive drug
screens, the Mother’s visits with the Child were reduced from weekly four-hour,
unsupervised visits to weekly three-hour, supervised visits. The Mother was good
with the Child during visits, but inconsistent in her visitation with the Child. There
was testimony that the Child was doing well with his foster family, receiving
occupational therapy, and going to medical appointments. At each of the pre-
permanency hearings, the Family Court found that the Child was dependent and
should remain in DFS custody. The Family Court found that the Child continued to
be dependent and should remain in DFS custody.
(9) On December 6, 2019, DFS filed a motion to change goal from
reunification to concurrent goals of reunification and termination of parental rights
for purposes of adoption. A permanency hearing was scheduled for December 23,
2019, but then rescheduled for February 6, 2020 as a result of the Family Court
judge’s illness. The Family Court held a review hearing on December 23, 2019.
During the review hearing, the Mother testified that she planned to move into a new
5
trailer with her boyfriend of the last three years and another daughter who resided
with her paternal grandmother. She identified her boyfriend as the Child’s potential
father for the first time.5 She provided conflicting testimony concerning her
knowledge of the boyfriend’s prior criminal history. The Family Court found that
the Child continued to be dependent and should remain in DFS custody.
(10) On February 6, 2020, February 17, 2020, and June 9, 2020, the Family
Court held a trifurcated permanency hearing. COVID-19 caused the last hearing
date to be changed twice. The Family Court granted DFS’ motion to change goal,
finding that the Mother’s case plan remained incomplete. The Mother tested positive
for fentanyl in September and October 2019. She also tested positive for cocaine in
September 2019 and December 2019. The Mother attended one-on-one therapy at
Connections, but failed to attend group therapy as recommended and was discharged
from the program. The Mother continued to work as a caregiver for the Maternal
Grandmother. The Mother had virtual visits with the Child several times a week.
There were plans to resume in-person visits soon. DFS employees testified that the
Mother’s new home was appropriate, but had concerns about her boyfriend living
there based on his extensive criminal history.
(11) On August 5, 2020, the Family Court held a post-permanency hearing.
A Delaware City police officer testified that the Mother was arrested for aggravated
5
Subsequent DNA testing excluded the Mother’s boyfriend as the father of the Child.
6
menacing, possession of a deadly weapon during the commission felony, and other
charges arising from a fight with her boyfriend in June 2020. DFS employees
testified that the Mother had ignored their instructions not to bring her boyfriend to
visits with the Child, been late for a visit, and behaved inappropriately during a visit.
The Child was doing well with his foster family. The Family Court found that the
Child continued to be dependent and should remain in DFS custody.
(12) A termination of parental rights hearing was scheduled for October 28,
2020, but was changed to a post-permanency hearing after the Family Court did not
receive a termination for parental rights petition before the hearing. The Mother
continued to earn approximately $400.00 bi-weekly as a caregiver for the Maternal
Grandmother. The Mother claimed not to be in contact with her boyfriend, but he
paid her lot rent. A relative that the Mother had previously identified as a potential
guardian was no longer a placement resource, but the Mother said one of her nieces
was interested in being a permanent guardian for the Child. DFS had not received
the Mother’s drug screens since June 2020. The Mother was generally consistent
with visitation, but some visits had to be cancelled for lack of COVID-19 tests.
(13) The Family Court held a termination of parental rights hearing on
February 16, 2021, and heard closing arguments on March 3, 2021. The Family
Court heard testimony from the Mother, the Mother’s therapist at Connections, a
police officer, the Mother’s family interventionist, DFS employees, a Children’s
7
Choice caseworker, one of the Child’s foster parents, the Mother’s ex-boyfriend, the
Maternal Grandmother, and the Mother’s brother. The testimony reflected that the
Mother had moved in with a brother, and was paying $400.00 a month in rent. DFS
had not done a home assessment. The Mother continued to earn approximately
$400.00 bi-weekly as a caregiver for the Maternal Grandmother. She had also
earned $600.00 a week through a staffing agency for several months, but that work
had ended and she expected to receive unemployment benefits.
(14) A Connections therapist testified that she had been seeing the Mother
consistently for eighteen months. The Mother had originally been diagnosed with
severe opiate abuse disorder, cocaine stimulant use disorder, and bipolar disorder.
The Mother could have done urine screens with Connections, but was going to a
doctor’s office for urine screens instead. DFS had not received any urine screens for
the Mother since September 2020.
(15) A Delaware City police officer testified that in November 2020 he
responded to an incident in which the Mother threatened her ex-boyfriend with a
baseball bat and took his car without permission. She was charged with aggravated
assault and breach of release because there was a no-contact order between her and
the ex-boyfriend. The charges arising from the Mother’s June 2020 incident with
her ex-boyfriend remained pending.
8
(16) The family interventionist testified that the Mother’s interaction with
the Child was appropriate during visits, but that the Mother sometimes cancelled
visits or left visits early because she was tired or had other obligations. Other visits
had to be cancelled because attendees did not have negative COVID-19 tests. At
one point, the Mother informed the family interventionist she was longer going to
case plan because her niece was going to obtain custody of the Child. A DFS
employee testified that the niece identified by the Mother as a placement resource
did not pursue permanent guardianship or adoption as preferred by DFS.
(17) The Mother’s ex-boyfriend, the Maternal Grandmother, and the
Mother’s brother testified that the Child should be with the Mother. There was
testimony that the Child was doing very well with his foster family, who wanted to
adopt him.
(18) On March 23, 2021, the Family Court issued a decision terminating the
parental rights of the Child’s parents. As to the Mother, the Family Court found by
clear and convincing evidence that the Mother had failed to plan adequately for the
Child’s needs under 13 Del. C. § 1103(a)(5). The Family Court also found that the
Child had been in DFS care for more than a year, the Mother had failed to maintain
appropriate housing, the Mother had failed to obtain sufficient income or
employment to support herself and the Child, the Mother had not complied with all
of the mental health and substance abuse recommendations, and the Mother’s
9
visitation with the Child was inconsistent. The Family Court next considered the
best interest factors under 13 Del. C. § 722, and found by clear convincing evidence
that termination of the Mother’s parental rights was in the best interest of the Child.
Finally, the Family Court held that DFS had made reasonable efforts to reunify the
family.
(19) On appeal, this Court reviews the Family Court’s factual and legal
determinations as well as its inferences and deductions.6 We review legal rulings de
novo.7 We conduct a limited review of the Family Court’s factual findings to assure
that they are supported by the record and are not clearly wrong.8 The Court will not
disturb inferences and deductions supported by the record and the product of an
orderly and logical reasoning process.9 If the Family Court correctly applied the
law, our review is limited to abuse of discretion.10
(20) The statutory procedure for terminating parental rights requires two
separate inquires.11 First, the Family Court must determine whether the evidence
presented meets one of the statutory grounds for termination.12 When the statutory
basis for termination of parental rights is failure to plan adequately for the child’s
6
Long v. Div. of Family Servs., 41 A.3d 367, 370 (Del. 2012).
7
Id.8
Powell v. Dep’t of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731 (Del. 2008).
9
Id.10
CASA v. Dep’t of Servs. for Children, Youth and Their Families, 834 A.2d 63, 66 (Del. 2003).
11
Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
12
13 Del. C. § 1103(a) (listing the grounds for termination of parental rights).
10
needs under Section 1103(a)(5) and the child is in DFS custody, there must be proof
of a least one additional statutory factor under Section 1103(a)(5).13 Second, the
Family Court must determine whether termination of parental rights is in the best
interest of the child.14 Both of these requirements must be established by clear and
convincing evidence.15
(21) After careful consideration of the parties’ positions and the record on
appeal, we conclude that the Mother’s appeal is wholly without merit. There is
ample evidence supporting the Family Court’s termination of the Mother’s parental
rights based on failure to plan and that such termination is clearly in the best interest
of the Child. We find no error in the Family Court’s application of the law to the
facts and no abuse of discretion in the Family Court’s factual findings.
13
Powell, 963 A.2d at 731.
14
Id. The best interest factors include: (i) the wishes of the parents regarding the child’s custody
and residential arrangements; (ii) the wishes of the child regarding his custodians and residential
arrangements; (iii) the interaction and interrelationship of the child with his parents, grandparents,
siblings, persons cohabitating in the relationship of husband and wife with a parent of the child,
and any other residents of the household or persons who may significantly affect the child’s best
interests; (iv) the child’s adjustment to her home, school, and community; (v) the mental and
physical health of all individuals involved; (vi) past and present compliance by both parents with
their rights and responsibilities to the child under 13 Del. C. § 701; (vii) evidence of domestic
violence; and (viii) the criminal history of any party or any resident of the household. 13 Del. C. §
722(a).
15
Powell, 963 A.2d at 731.
11
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Chief Justice
12