28 A.3d 480 (Del.Fam.Ct. 2009), CS09-02602, Division of Family Services v. James

Docket Nº:CS09-02602.
Citation:28 A.3d 480
Opinion Judge:HENRIKSEN, J.
Party Name:In re the Matter of DIVISION OF FAMILY SERVICES, Petitioners, v. Rachel JAMES and Orson Beck, Respondents. In the Interest of Angela R. Beck DOB: [REDACTED]. Petition No. 09-25712.
Attorney:Kathryn Welch, Esquire, Delaware Department of Justice, Georgetown, DE, Attorney for the Division of Family Services. Ashley Oland, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for Rachel James. Patricia O'Neil, Esquire, Law Office of Patricia M. O'Neil, Esquire, Georgeto...
Case Date:December 18, 2009
Court:Family Court of Delaware
 
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Page 480

28 A.3d 480 (Del.Fam.Ct. 2009)

In re the Matter of DIVISION OF FAMILY SERVICES, Petitioners,

v.

Rachel JAMES

and

Orson Beck, Respondents.

In the Interest of Angela R. Beck DOB: [REDACTED].

No. CS09-02602.

Petition No. 09-25712.

Family Court of Delaware, Sussex County.

December 18, 2009

Submitted: Nov. 3, 2009.

Kathryn Welch, Esquire, Delaware Department of Justice, Georgetown, DE, Attorney for the Division of Family Services.

Ashley Oland, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for Rachel James.

Patricia O'Neil, Esquire, Law Office of Patricia M. O'Neil, Esquire, Georgetown, DE, Attorney for Orson Beck.

OPINION

HENRIKSEN, J.

In this child dependency case the Division of Family Services of the State of Delaware (DFS) has filed a motion in

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which DFS is requesting the Court to determine DFS is not required to make reasonable efforts to promote the reunification of the parents with their 3 month old child, and to also change the goal of the case from reunification to termination of parental rights. DFS submits it is not required under either the 1997 Federal Adoption and Safe Families Act (ASFA) 1 or Delaware law 2 to provide reunification services to Mother and Father, because their parental rights in a sibling of this child were previously involuntarily terminated by the Family Court of the State of Delaware. DFS avers, given the circumstances of this case, the decision to offer or deny this mother reunification efforts is a decision to be made by the Division, and not by the Court. The Court disagrees.

FACTS

This now 3 month old child was taken into care on August 04, 2009, by Emergency Order when there were concerns the child was born drug positive, and Father was incarcerated. In fact, at a Preliminary Protective Hearing held August 10, 2009, Mother waived both her Preliminary Protective 3 and Adjudicatory Hearings 4 based upon her substance abuse. Father waived both his Preliminary Protective and Adjudicatory Hearings based upon his present incarceration. Father expects to be incarcerated for at least the next five months at the State prison in Smyrna, Delaware. Father has several serious felony charges pending against him for incidences which allegedly occurred on May 19, 2009. He also will soon be coming up for trial on the charge of Rape in the 4th Degree for allegedly having sexual intercourse with a victim who was less than 16 years of age on February 14, 2004. Father also has an extensive prior criminal conviction history involving such crimes as Criminal Trespass, Assault in the 3rd Degree, and Criminal Contempt of a Family Court Protective Order, just to name a few of his prior convictions.

Mother and Father had another child between them, Aaliyah, born [redacted]. 5 Aaliyah was conceived when Father was 18 years old, and Mother was 13 years old. It is for this act of conception Father will soon be going to trial on the above-noted charge of Rape in the 4th Degree. Mother

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was in foster care during the time period Aaliyah was taken into DFS protective care on March 09, 2007. While Mother was in foster care, the parental rights of both Mother and Father in Aaliyah were terminated by Decision and Order dated July 27, 2009.6 The termination of parental rights trial leading to the Decision of July 27, 2009, was held on July 01, 2009. A review of the Court's Decision which led to the termination of the parents' former rights in now 5 year old Aaliyah reflects Mother failed to fulfill her case plan, showed little progress, did not appear at several hearings, including the final termination of parental rights hearing, and pursued very little contact, if any, with Aaliyah. The Court found Aaliyah's father had considerable lack of contact with the Division and failed to complete his case plan, most likely because he was generally incarcerated on multiple criminal charges. The Court's Decision in the termination of Father's parental rights as to Aaliyah emphasized Father's criminal history at that point in time, noting the following:

Father has a total of 123 arrests, 95 of which are criminal, 23 of which are felony arrests. He has one felony conviction. He has 88 misdemeanor arrests and four misdemeanor convictions. He is currently detained for pending charges of Rape 4th Degree; Possession of a Firearm During the Commission of a Felony; Possession, Purchase, Own, or Control of a Firearm By a Person Prohibited; Assault 2nd Degree; four counts of Reckless Endangering First Degree; Wearing a Disguise During the Commission of a Felony; and Criminal Mischief Under $1,000.7

In the present matter, the Court had intended to proceed on September 28, 2009, with the Dispositional Review Hearing, the purpose of which normally would be to review the case plan prepared by the Division. The case plan is the road map the parents need to follow and successfully complete in order to achieve a goal of reunification with the child.8 However, prior to the September 28th hearing, on September 22, 2009 the Division filed their present motion to not allow reunification services. Because the Division's motion did not provide the minimum 30 days advance notice for the parents to respond, counsel for both parents objected to the matter going forward on the Division's motion on that date.9 The parents' attorneys wanted to proceed with the Dispositional Review Hearing because the Division case worker had already tendered a case plan to Mother, and Mother had been actively pursuing the goals under the case plan. The Court determined that it would not be in the nature of judicial economy to proceed with the Dispositional Review Hearing on September 28th until deciding the Division's motion. However, because a case plan had been tendered, and Mother's attorney indicated Mother was operating under the case plan, the Court required the Division to continue to offer the reunification services provided in the case plan until the motion was decided after a hearing on the issue.

Testimony at the ensuing " No Reasonable Efforts/Permanency Hearing" began with Barbara Westfall, who chaired the Permanency Planning Committee (Committee) for the Division of Family Services. According to Ms. Westfall, using an early screening tool to evaluate the child shortly

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after the child's birth on August 06, 2009, the Committee determined several risk factors existed which identified this child for an early determination by the Permanency Committee as to whether they would ask the Court to find that no reasonable efforts at reunification were required. According to Ms. Westfall, those four factors included the prior involuntary termination of another sibling, Mother's prior history of substance abuse, Father's repeat criminal history, and Mother herself having been previously in foster care as a child.

The Permanency Planning Committee met on September 08, 2009. The child's case worker, Rhonda Bailey, participated by telephone. According to Ms. Westfall, Rhonda Bailey told the Committee she saw no positive changes in the parents from these identified risk factors. The Committee therefore urged the Division attorney to file with the Court a motion for no reasonable efforts.

Upon cross-examination by Mother's counsel, Ms. Westfall was unable to recall several specifics of the findings and discussion made at the Permanency Planning Committee meeting. These meetings apparently last no more than 20 minutes. Ms. Westfall did not know whether any of the people on the Committee had reviewed the prior records about Mother and Father. Ms. Westfall herself had not reviewed the prior records. Ms. Westfall was sure Mother had been the person identified as previously being in foster care. Ms. Westfall was not clear whether Mother or Father had previously been abused or neglected. Ms. Westfall was " pretty sure" only Father had been incarcerated. She could not clearly identify whether both Father and Mother had prior criminal records.

Upon further cross-examination, Ms. Westfall acknowledged the only risk factor that either parent could really change was whether they were presently abusing illegal substances. Obviously, there was no way either parent could change the prior circumstances of previously having their parental rights involuntarily terminated in another sibling. Nor could they change the fact they had a prior criminal history, if that was accurate. Furthermore, neither parent could change their previous history of being in foster care and/or previously being abused or neglected.

According to Ms. Westfall, if she and the Committee had been informed Mother was now actively operating under a case plan, they might have changed their recommendation. Ms. Westfall recalled Mother at the time of the meeting had no employment. Ms. Westfall also recalled case worker Bailey telling the group Mother was supposed to be in substance abuse treatment, and Mother did not have stable housing. The Committee was not aware if Mother was enrolled in and attending a parenting class.

Ms. Westfall also indicated the Committee does not take into account the age of the parent. Thus, it appears that the Committee does not consider the potential differences between a 14-year-old mother having her parental rights involuntarily terminated while she herself was in foster care as opposed to the termination of the parental rights of a 25-year-old mother, or, even as in the present case, a mother who is now 19 years old.

Ms. Westfall testified she was not sure whether the risk factors used by the Committee are contained in any particular user or policy manual of the Division. Ms. Westfall also indicated a parent's intent is not an issue for the Committee; instead, the Committee simply looks at the...

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