65 A.3d 28 (Del.Fam.Ct. 2013), CS08-03931, Division of Family Services v. K.B.

Docket Nº:CS08-03931, 12-04-11TS.
Citation:65 A.3d 28
Opinion Judge:JONES, Judge.
Party Name:In re the Matter of DIVISION OF FAMILY SERVICES, Petitioner, v. K.B.[1], and H.S., Respondents. Petition Nos. 08-40441, 12-14751.
Attorney:John A. Eberly, Esquire, Department of Justice, Georgetown, Delaware for Petitioner Division of Family Services. Mark H. Hudson, Esquire, Haller & Hudson, Georgetown, Delaware for Respondent K.B. Leslie C. DiPietro, Esquire, Sergovic, Carmean & Weidman, P.A., Georgetown, Delaware for Court-Appoin...
Case Date:March 07, 2013
Court:Family Court of Delaware
 
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65 A.3d 28 (Del.Fam.Ct. 2013)

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

v.

K.B.1, and H.S., Respondents.

Nos. CS08-03931, 12-04-11TS.

Petition Nos. 08-40441, 12-14751.

Family Court of Delaware, Sussex.

March 7, 2013

Submitted: Feb. 7, 2013.

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John A. Eberly, Esquire, Department of Justice, Georgetown, Delaware for Petitioner Division of Family Services.

Mark H. Hudson, Esquire, Haller & Hudson, Georgetown, Delaware for Respondent K.B.

Leslie C. DiPietro, Esquire, Sergovic, Carmean & Weidman, P.A., Georgetown, Delaware for Court-Appointed Special Advocate.

David C. Hutt, Esquire, Morris, James, Wilson, Halbrook & Bayard, L.L.P., Georgetown, Delaware for children E.B. and J.B.

MOTION TO DISMISS PETITION FOR TERMINATION OF PARENTAL RIGHTS, AND TO REOPEN ORDER OF MARCH 30, 2012 AND APPROVE ALTERNATE PERMANENCY GOAL In the Interests Of: E.B. & J.B.

OPINION

JONES, Judge.

On February 7, 2013, the Court held a hearing with respect to a Motion filed by

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the Division of Family Services (" DFS" ), entitled Motion to Dismiss Petition for Termination of Parental Rights and to Reopen Order of March 30, 2012, and Approve Alternate Permanency Goal. The Motion relates to a Petition for Termination and Transfer of Parental Rights filed by DFS against K.B. (" mother" ) and H.S. (" father" ) on April 27, 2012. Through this Petition, DFS was seeking termination of parental rights over mother and father's interests in the minor children E.B. and J.B.

In its Motion to Dismiss Petition for Termination of Parental Rights and to Reopen Order of March 30, 2012, and Approve Alternate Permanency Goal, DFS is seeking for this Court to allow DFS to voluntary dismiss the Petition for Termination of Parental Rights filed by DFS on April 27, 2012. DFS asks the Court to approve a permanency goal of Another Permanent Planned Living Arrangement (" APPLA" ) instead of the permanency goal of termination of parental rights for purposes of adoption (" TPR" ) that the Court ordered through its March 30, 2012 Order. To support its Motion, DFS notes that both children have expressed strong wishes in opposition to adoption. Mother filed a Response in support of this Motion.

The CASA filed a Response to DFS' Motion, asking the Court to deny the Motion. CASA argues that TPR is in the children's best interest. Further, CASA argues that the Court had already considered the wishes of the children in coming to its March 30, 2012 decision to change the permanency goal to TPR. Additionally, CASA argues that nothing has significantly changed since that decision which would justify changing the goal from TPR to APPLA.

History of This Matter

This matter has an extensive history in this Court. E.B. and J.B. were placed in the care of the State of Delaware on December 16, 2008, through an award of emergency custody. In its 2008 filing, DFS alleged that mother was either unable or unwilling to provide necessary care for the children, and that father was also unable to care for them. DFS alleged that mother had a history of substance abuse, her current whereabouts were unknown, and that she had dropped off her daughter with mother's sister, who could not obtain medicine or counseling for the child because she was not her legal guardian.2

Through a series of hearings which began in late 2008 and extended through 2009, 2010 and 2011, the Court determined that E.B. and J.B. were dependent in the care of their parents. Mother and father were provided with case plans for reunification, and were appointed legal counsel. The Court reviewed mother and father's progress under their case plans, as well as how the children were doing in foster care. Ultimately, by Order of this Court dated March 30, 2012, the Court determined that the appropriate permanency goal for E.B. and J.B. was TPR. The Court directed DFS to file its Petition for Termination and Transfer of Parental Rights within thirty days.

On April 27, 2012, DFS filed its Petition for Termination and Transfer of Parental Rights, requesting that the parental rights of mother and father over E.B. and J.B. be terminated. The TPR ground alleged against mother was failure to plan. The TPR grounds alleged against father were failure to plan and abandonment.

A TPR hearing was scheduled for October 25, 2012. Prior to that date, DFS requested that the Court appoint an attorney,

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pursuant to the decision of In re Frazer, 721 A.2d 920 (Del.1998), to advocate the expressed wishes of E.B. and J.B. Apparently, both children had expressed a strong desire not to be adopted. The Court granted the motion and appointed counsel to represent the wishes of the minor children. The termination hearing was rescheduled for February 7, 2013. Prior to that date, though, DFS filed the pending Motion, and the Court chose to address the Motion on February 7, 2013 rather than proceed to a full hearing on the issue of termination of parental rights. Mother was present at this hearing with counsel. Father did not appear at the hearing.

February 7, 2013 Hearing

At the February 7, 2013 hearing, the Court heard testimony from Kim Sabanayagam, E.B. and J.B.'s adoption caseworker (" Ms Sabanayagam" ), Karen Irvin, J.B.'s therapist (" Ms. Irvin" ), Catrina Hinds, E.B.'s counselor (" Ms. Hinds" ), E.P., E.B. and J.B.'s foster father (" Mr. P" ), Julie Schirmer, E.B. and J.B.'s DFS Family Crisis Therapist (" Ms. Schirmer" ), and Sharon Gambil, the CASA (" CASA" ). Some common themes that developed throughout the testimony of each witness were that E.B. and J.B. strongly wished not to be adopted, and that it would not be in the best interests of E.B. and J.B. to have their contact with mother severed. Additionally, E.B. and J.B.'s wishes are to first live with their mother, but if that cannot happen, to stay with Mr. P and his wife.

E.B. and J.B. are currently placed in the home of Mr. P and his wife. The children were first placed there in February 2009, before they were moved to another placement; however, due to difficulties in the boys' behavior, the latter placement did not work out. J.B. was placed back in Mr. P's home in June 2012, and E.B. returned to Mr. P's home in August 2012. Although Mr. P and his wife are not an adoptive resource for the children, Mr. P testified that he would be willing to care for the boys until they age out of foster care. Further, Mr. P noted that his other foster children have always been able to rely on his family as a resource, even after the children turn 18 years old. Mr. P testified that he loves the boys, and the testimony throughout the hearing established that Mr. P has a strong bond with E.B. and J.B.

Mr. P also testified that he started initiating contact between mother and E.B. and J.B. in August 2012. He stated that there was a bit of an issue with the first visit, where he took the boys to mother's home but mother was asleep. He said that the boys were very disappointed; however they returned an hour later to mother's home for a visit. Since that first visit, the boys have been having consistent visitation with mother nearly every weekend. Mother has two daughters who are currently living with her, and Mr. P testified that the older daughter is home during some visits, and the younger daughter is present at all the visits. Mr. P noted that there is a strong bond between J.B. and the younger daughter. Mr. P testified that he attends all the visits between mother and the boys, with the exception of an unsupervised visitation session between the boys and mother this past Christmas. Additionally, Mr. P and his wife had a birthday party for E.B. at their home, which mother, the sisters and CASA attended. Mr. P noted that at the beginning of each visit with mother, the children must tell mother about their behavior for the past week. He believes that this reinforces good behavior with J.B. and E.B., as they really care about their mother's opinion.

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J.B. and E.B. do tend to have some behavioral issues, which have resulted in the boys ending up in crisis on a few separate occasions. J.B. is currently in day treatment with Ms. Irvin, who has worked with J.B. since August 2012. Ms. Irvin testified that she sees J.B. every week to every other week, and works with him on stabilizing his behaviors, in particular his aggressive behaviors and anger outbursts. Ms. Irvin noted that J.B. had been placed in crisis for a few days in September 2012 in Lewes, and then again for a few days in the beginning of October 2012 at Rockford Center in New Castle County. However, Ms. Irvin said that she has noticed an improvement in J.B., and believes that part of this improvement is because J.B. is now having consistent contact with mother. Ms. Irvin testified that J.B. will likely be reintegrating back into public school within the next few weeks. In Ms. Irvin's opinion, it would be very difficult for contact between mother and J.B. to be completely cut off. Additionally, Ms. Irvin testified that J.B. had indicated to her that he would " not listen to anyone again" if he was not...

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