3 A.3d 1100 (Del.Fam.Ct. 2009), 09-03-02, Division of Family Services v. Newman

Docket Nº:File 09-03-02TS, CS08-02416.
Citation:3 A.3d 1100
Opinion Judge:HENRIKSEN, J.
Party Name:DIVISION OF FAMILY SERVICES, Petitioner, v. Richard NEWMAN, and Catherine Lawson, Respondents. and Lester Newman, Petitioner, In the Interest of Oscar Newman DOB: [Redacted].
Attorney:James Reichert, Esquire, Delaware Department of Justice, Georgetown, DE, Attorney for the Division of Family Services. David Hutt, Esquire, Law Office of Wilson, Halbrook, and Bayard, P.A., Georgetown, DE, Attorney for Richard Newman. Patricia O'Neill, Esquire, Law Office of Patricia M. O'Neil, E...
Case Date:September 23, 2009
Court:Family Court of Delaware
 
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Page 1100

3 A.3d 1100 (Del.Fam.Ct. 2009)

DIVISION OF FAMILY SERVICES, Petitioner,

and

Lester Newman, Petitioner,

v.

Richard NEWMAN, and Catherine Lawson, Respondents.

In the Interest of Oscar Newman DOB: [Redacted].

File Nos. 09-03-02TS, CS08-02416.

Family Court of Delaware, Sussex.

September 23, 2009

Submitted: Aug. 10 and 13, 2009.

Page 1101

James Reichert, Esquire, Delaware Department of Justice, Georgetown, DE, Attorney for the Division of Family Services.

David Hutt, Esquire, Law Office of Wilson, Halbrook, and Bayard, P.A., Georgetown, DE, Attorney for Richard Newman.

Patricia O'Neill, Esquire, Law Office of Patricia M. O'Neil, Esquire, Georgetown, DE, Attorney for Catherine Lawson.

Kristin Gibbons, Esquire, Office of the Child Advocate, Georgetown, DE, Attorney for the Court Appointed Special Advocate (CASA).

OPINION

HENRIKSEN, J.

Pending before the Court are two matters which were consolidated into one hearing. The first matter involves the guardianship petition of the above-named minor child's paternal grandfather, Lester Newman.1 The second petition was filed by the Division of Family Services, the Department of Services for Children, Youth, and Their Families (" DFS" or " the Division" ). The Division's petition seeks the termination of the parental rights of Richard Newman (" Father" ) and Catherine Lawson (" Mother" ) in their now 3-year-old son, Oscar.

BACKGROUND

Oscar Newman (" Child" ) was born May 23, 2006. For the first year and a half of the child's life, he basically resided in the home of his paternal grandfather, Lester Newman, along with his maternal grandmother, Dinah Dougherty. Although not married, the relationship between Paternal Grandfather and Maternal Grandmother was intimate. During much of the child's first year and a half of life, his unmarried parents also lived together under the same roof with these grandparents.

The child then came into DFS care on December 04, 2007. The Court granted emergency custody to DFS when Maternal Grandmother filed for emergency guardianship of the child. Maternal Grandmother's petition alleged that the parents were on drugs, stealing from the grandparents, and were not providing appropriate care for the child. Maternal Grandmother's original petition also alleged that both parents were incarcerated.

The Court was prepared to go forward with a Preliminary Protective Hearing on December 10, 2007. Since neither parent had been served, neither parent appeared. However, Paternal Grandfather and Maternal Grandmother appeared together at the hearing. They indicated that they were living together. They also indicated an understanding that the guardianship petition had been filed by both of them, when in fact the petition was filed only in the name of Maternal Grandmother. The Court's Order of December 10, 2007, maintained custody of the child with the Division of Family Services. The Division kept the child in the home of Maternal Grandmother and Paternal Grandfather.

On December 14, 2007, the Court appointed JoAnn Paulson, a Court appointed special advocate, as guardian ad litem for the child.

On February 04, 2008, both parents appeared for the rescheduled Preliminary Protective Hearing. The Court found Mother to be indigent and appointed Margaret Cooper, Esquire as her attorney. The child's father also appeared, but the Court was unable to appoint counsel at this hearing for Father. Although contract

Page 1102

attorney Ashley Oland, Esquire was present, she had a conflict representing Father. At this initial stage of the process, the Division was prepared to rescind its custody to the guardianship of Maternal Grandmother and Paternal Grandfather. However, Mother was opposed. Instead, Mother waived both her Preliminary Protective Hearing and her Adjudicatory Hearing, it being the understanding that the basis of the child's dependency with Mother was her drug use, lack of employment, and lack of housing. The Division continued to keep the child in the care of Maternal Grandmother and Paternal Grandfather. Because Father did not have counsel available at this stage of the proceedings, his Preliminary Protective Hearing was continued.

On February 12, 2008, the Court appointed Dennis Schrader, Esquire to represent Father.

The Court held its next hearing on April 21, 2008. Father appeared along with his Court appointed attorney, David Hutt, Esquire, who is an associate with Dennis Schrader, Esquire. Mother appeared along with her attorney, Margaret Cooper, Esquire. At the time of this hearing, Mother was incarcerated on a recent violation of probation and recent additional criminal charges. Both Paternal Grandfather and Maternal Grandmother were also present for the hearing. Father waived both his Preliminary Protective Hearing and Adjudicatory Hearing on the basis of his lack of employment, inadequate housing, and concerns with substance abuse and domestic violence. Father had previously signed a case plan with the Division, and an unsigned copy of the plan had been previously submitted into the Court's file. At this hearing, the Court also learned that Mother and Father were both recently charged with Theft less than $1,000 and Conspiracy, and the trial was scheduled for July 08, 2008. All parties present at this hearing agreed that temporary placement of the child should remain with the grandparents. The Division still retained custody. The Division entered into a safety plan with the grandparents which specified very clearly that each parent was to get weekly visits which must be arranged through the Division worker, and that neither parent would be permitted to go directly to the home of the grandparents. The safety plan was necessitated by an earlier incident when Maternal Grandmother had to call the police on Father. The Court admonished all parties at this hearing to require the Division's rules be followed. The Court especially noted the prior history of domestic violence involving these parties, and cautioned that, if permitted to continue, this behavior could cause serious and irreparable mental harm to this child.

Father's case plan was reviewed during the April 21, 2008 hearing. It required Father to obtain employment and to take a parenting class or produce a certificate of completion of such a class which had been completed no longer than a year prior to the date of the hearing. Father also needed to arrange for courses in domestic violence. Father noted that he was already working with Kent Sussex Counseling on substance abuse issues, and he would be obtaining his mental health evaluation at Kent Sussex Counseling. Father also needed to obtain separate suitable housing.

At the hearing on April 21, 2008, the Court found of particular interest the Division's observations that the child had a close relationship with his grandparents, and an evaluation by Child Development Watch which demonstrated that the child showed no particular concerns. This information is particularly relevant to the guardianship petition pursued by Paternal Grandfather.

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The Court's Order of April 21, 2008, describes in detail the criminal histories of the parents. The Court noted the pending charges of Theft and Conspiracy in the 3rd Degree for the arrest of both parents which occurred on April 09, 2008. Both parents were also arrested on December 01, 2007, for domestic related incidences against Paternal Grandfather. Paternal Grandfather eventually dropped the charges. On December 24, 2006, both parents were arrested on numerous domestic related drug charges to which both of them eventually pled guilty to some of the charges. On December 23, 2003, Father was charged with various incidences of domestic violence against Mother to which he eventually entered a guilty plea. Just prior to that, Father was arrested for various charges in which Mother was also the victim. Father eventually pled guilty to Domestic Violence related Assault in the 3rd Degree. For events which occurred on January 27, 2003, Father, as well as Paternal Grandfather and Maternal Grandmother all were involved in an offense when the grandparents were less than forthright with the investigating police when they refused to disclose the whereabouts of Father, who was hiding in the closet of their home with the then underage Mother. For events which occurred on January 10, 2003, Father pled guilty to Terroristic Threatening and Assault in the 3rd Degree in which Mother was again the victim. On December 15, 2003, following a domestic related incident, Father was placed into Rockford for a mental evaluation. For events which occurred on November 23, 1998, while Father was a juvenile, he entered a plea of guilty to a domestic related incident of Criminal Mischief.

The Court's Order of April 21, 2008, concluded that the Division was making reasonable efforts towards reunification of the child with one or both of the parents. The Court's Order recognized that both parents were seeking reunification. The Court also found the Division was making reasonable efforts to make a concurrent plan with the possible award of guardianship to Maternal Grandmother. The Court also noted concerns driven by a considerable history of domestic violence in the grandparents' household between the parents.

As the Court does in all of these dependency/neglect cases where a parent is seeking reunification, unless all parents consent to the guardianship, a guardianship petition is held in abeyance so long as the parents are entitled to have reasonable efforts afforded to them for reunification. At the same time, where the guardianship petitioners, as in this case, are grandparents, they are invited to attend all dependency hearings.

The next hearing occurred on...

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