92 A.3d 1072 (Del.Fa. 2013), CN05-03939, Department of Services for Children, Youth and Their Families v. Garcias

Docket Nº:CN05-03939, 12-12-03TN
Citation:92 A.3d 1072
Opinion Judge:HONORABLE ROBERT BURTON COONIN, JUDGE.
Party Name:DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH, AND THEIR FAMILIES (" DSCYF" ), Petitioner, v. ADRIANA GARCIAS [*] AND, FELIPE GARCIAS-MORALE, Respondents Petition Nos. 11-19138, 12-39761
Judge Panel:Before the HONORABLE ROBERT BURTON COONIN, JUDGE Of The Family Court of the State of Delaware:
Case Date:December 03, 2013
Court:Family Court of Delaware
 
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Page 1072

92 A.3d 1072 (Del.Fa. 2013)

DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH, AND THEIR FAMILIES (" DSCYF" ), Petitioner,

v.

ADRIANA GARCIAS [*] AND, FELIPE GARCIAS-MORALE, Respondents

Nos. CN05-03939, 12-12-03TN

Petition Nos. 11-19138, 12-39761

Family Court of Delaware, New Castle

December 3, 2013

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Before the HONORABLE ROBERT BURTON COONIN, JUDGE Of The Family Court of the State of Delaware:

OPINION

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HONORABLE ROBERT BURTON COONIN, JUDGE.

Decision on Petition for Termination and Transfer of Parental Rights

NATURE OF THE PROCEEDINGS

This is the decision on the Petition for Termination and Transfer of Parental Rights filed by Department of Services for Children, Youth and Their Families, Division of Family Services (hereinafter " DFS" ) against Adriana Garcias (a.k.a. Adriana Barrista) (hereinafter " Mother" ) and Felipe Garcia-Morale (hereinafter " Father" ) regarding Sonia Garcias-Morale (d.o.b. XX/XX/2005) (hereinafter " Sonia" ) and Esmeralda Garcias-Morale (d.o.b. XX/XX/2007) (hereinafter " Esmeralda" ) (hereinafter collectively referred to as " the children" ).

DFS seeks to terminate the parental rights of Mother in the children in accordance with 13 Del. C. § 1103(a)(5) on the grounds of " failure to plan" as she has been unable or has failed to plan adequately for the children's physical needs or mental health and development. DFS seeks to terminate Father's parental rights in the children in accordance with 13 Del. C. § 1103(a)(2) on the grounds that Father abandoned the children. Additionally, DFS seeks to terminate the parental rights of Father in the children in accordance with 13 Del. C. § 1103(a)(5) on the grounds of " failure to plan" as he has been unable or has failed to plan adequately for the children's physical needs or mental health and development.

A hearing on the Petition for Termination and Transfer of Parental Rights was held on September 13, 2013. Mother appeared at the hearing and was represented by Julie Yeager, Esquire. Father was not present for the hearing as he was deported to Mexico in September 2011. The Court attempted to contact Father three times using a telephone number provided by Father's attorney, David Facciolo, Esquire. Father did not answer the telephone and a voicemail was left informing him of the hearing. The Court proceeded to take evidence without Father participating. Mr. Facciolo's motion to withdraw as Father's attorney was granted. Christine Kane, Esquire served as the children's Guardian ad Litem.

PROCEDURAL HISTORY

The children entered the care and custody of DFS pursuant to an Emergency Ex Parte Order for Custody issued on June 23, 2011. In the Dependency/Neglect Petition, DFS alleged that Mother had an open treatment case since April 2011, the home that Mother and the children were residing in was in foreclosure, and Mother faced eminent eviction. DFS also had concerns about Mother's mental health, recurring incidents of domestic violence in the household, and emotional abuse committed by Mother and Father. Additionally, DFS alleged that Mother's brother, a Tier 2 Sex Offender, was residing in her home and had access to the children. On June 27, 2011, the Court appointed Christine Kane, Esquire as Guardian ad Litem for the children.

Following a Preliminary Protective Hearing held on June 29, 2011, the Court issued an Order on June 30, 2011. The Court determined there was probable cause that the children were dependent as defined by 10 Del. C. § 901(8). Mother stipulated to a finding of probable cause of

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dependency on account of her home being in foreclosure, her continuing mental health issues, and her failure to bring Sonia to therapy appointments. Father was not present for the Preliminary Protective Hearing, because he was incarcerated in York, Pennsylvania. The children were placed together in a DFS foster home. Kelly Sasso, Esquire was appointed to represent Mother.

Following an Adjudicatory Hearing held on August 1, 2011, an Order was issued on August 3, 2011 finding that the children were dependent. Mother stipulated to a finding of dependency based upon her lack of stable housing. Father did not appear for the Adjudicatory Hearing as he remained incarcerated in York, Pennsylvania and was awaiting deportation to Mexico. A maternal relative from New Jersey indicated to DFS that she was interested in filing for guardianship of the children. During a forensic interview, Sonia disclosed that she was sexually abused and it was reported that she frequently soiled herself as a result of this abuse. DFS also expressed concerns about Esmeralda dancing in a sexually suggestive manner around Maternal Grandfather during visitation. Following this hearing, Maternal Grandfather was prohibited from having contact with the children because of concerns regarding his substance abuse. Mother was charged with two counts of Endangering the Welfare of a Child for permitting her brother, a Tier 2 Sex Offender, to reside in the same home as the children.

A Dispositional Hearing was held on September 14, 2011 and an Order was subsequently issued on September 29, 2011. At this hearing, the Court determined the children remained dependent and DFS has made reasonable efforts to reunify the family. DFS created a Case Plan for Mother on May 26, 2011 and later revised on August 23, 2011. Mother executed the Case Plan on September 14, 2011 after reviewing it with her attorney and the Court approved the Case Plan. DFS was unable to develop a Case Plan for Father, because he remained incarcerated in York, Pennsylvania awaiting deportation to Mexico. The primary elements of Mother's Case Plan included: obtaining safe and stable housing; maintaining sufficient financial resources to support the children; choosing appropriate caregivers and developing a safety plan; keeping the children current on all medical appointments; setting appropriate expectations for the children and completing a parenting course; stabilizing Mother's mental health, following the recommendations of her therapist, and taking medications as prescribed; ensuring the children regularly attend school; and complying with the terms of Mother's probation and avoiding any future legal issues. DFS reported that Mother enjoyed visitation with the children twice per week and these visits were going well. Mother's relative also had visitation with the children once per week. On October 13, 2011, David Facciolo, Esquire was appointed to represent Father.

The first Review Hearing was held on December 6, 2011. A Review Hearing Order was issued on December 8, 2011 wherein it was determined that the children remained dependent and it was in their best interest to remain in DFS custody. Father was deported to Mexico and the Court unsuccessfully attempted to contact him by telephone. DFS reported that Mother was making moderate progress on her Case Plan. Mother submitted paperwork which delayed a Sheriff's Sale of her home. However, there were still concerns about the condition of Mother's home, including a pest infestation. Mother was in the process of submitting employment applications. Mother was enrolled in the " Triple P" parenting course. Mother regularly

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attended therapy sessions through Harmonious Minds, but she did not always take medications as prescribed. Mother continued to regularly attend visitation with the children. DFS reported that Sonia disclosed being sexually abused by a non-relative named " Cholo" while she was in Mother's care. Mother's relative indicated that she was no longer interested in petitioning for guardianship of the children.

A second Review Hearing was held on February 28, 2012. A Review Hearing Order was issued on February 29, 2012, wherein it was determined that the children remained dependent and it was in their best interest to remain in DFS custody. Father did not attend this hearing, because he had been deported to Mexico. Father's attorney was not able to reach him by telephone to participate in the hearing. Mother's home continued to be in foreclosure and a Sherriff's Sale remained imminent. Mother completed a parenting course through New Behavioral Network. Mother's Parent Aide reported that Mother was cooperative, attended the children's medical appointments, and was participating in family counseling. Mother also continued to participate in counseling at Harmonious Minds with Matthew Roloff. DFS reported that visitations between Mother and the children were going well. Mother's Relative's guardianship petition was dismissed, because she failed to appear at this hearing. Maternal cousins, (hereinafter " Cousins" ), indicated that they were interested in petitioning for guardianship of the children.

On February 28, 2012, Cousins filed a Petition for Guardianship of the Children. DFS filed a Motion for Goal Change on April 20, 2012, to change the goal from Reunification to Concurrent Planning: Reunification and Guardianship. The children began residing in the Cousins' home on June 8, 2012. On June 21, 2012 DFS filed a Petition for Permanent Guardianship with Cousins.

A third Review Hearing was held on August 13, 2012. An Order was subsequently issued on August 14, 2012. Father, who remained in Mexico, participated in this hearing by telephone. The Court determined that the children remained dependent and it was in their best interest to remain in the custody of DFS. The Court granted DFS's Motion for Goal Change to Concurrent Planning: Reunification and Guardianship. Both Mother and Father indicated they would consent to the Cousins' guardianship of the children. The Guardian ad Litem also supported the Cousins' Petition for Guardianship. Both children began residing with Cousins on June 8, 2012 and were reported to be doing...

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