Betty J.B. v. Division of Social Services

• Decision Date: 04 April 1983
• Parties: BETTY J.B. and Roy B., Petitioners Below, Appellants, v. DIVISION OF SOCIAL SERVICES, and Children's Bureau of Delaware, Inc., Respondents Below, Appellees. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 528

460 A.2d 528

BETTY J.B. and Roy B., Petitioners Below, Appellants, v. DIVISION OF SOCIAL SERVICES, and Children's Bureau of Delaware, Inc., Respondents Below, Appellees.

Supreme Court of Delaware.

Submitted: April 4, 1983.

Decided: May 3, 1983.

Upon appeal from Family Court. Affirmed.

Frederick S. Kessler (argued), Agostini & Frabizzio, Wilmington, for appellants.

L. Susan Faw (argued), Richards, Layton & Finger, Wilmington, and Carol Scharfe Widing, Deputy Atty. Gen., Wilmington, for appellees.

Before HERRMANN, C.J., HORSEY and CHRISTIE, JJ.

CHRISTIE, Justice:

This case involves an appeal from a termination of parental rights ordered by the Family Court after a full hearing. We find no error in the rulings made by Family Court and affirm that decision.

The parents of the child in whom rights have been terminated are fine people but they have been the victims of substantial, long-standing and unresolved emotional problems. To their credit they have done much for many children. Over a period of 16 years, 28 children have been placed in their home for foster care by the Delaware Division of Social Services. These parents were also permitted to adopt five of the foster children. However, as the years went by, the family problems became more serious and eventually four of the five adopted children have developed significant emotional problems. Finally, the foster-care status of the home was terminated, and the parents voluntarily relinquished custody of the disturbed, adopted children to the Division of Social Services. Two of these children, however, are now adults and have returned to stay with the parents.

Sheila, the child who is the subject of this proceeding, is one of the four adopted children who experienced emotional difficulties in her adopted home. She was removed from the home in 1979 when she was nine years of age, after having lived with the parents since her infancy. She is now 12. The parents decided to place Sheila in the custody of the Division of Social Services in order to secure for her a type of psychiatric treatment the parents could not afford. This voluntary placement was made on the advice of a child psychiatrist whom the family had been consulting.

The Division contracted with the Children's Bureau, a non-profit social service agency, to arrange for the care of the child. ¹ The Children's Bureau, in turn, arranged foster home placement for Sheila and out-patient care at the Terry Children's Psychiatric Center. However, a short time after placement, Sheila attempted to commit suicide because of her separation from her parents. She was then transferred to in-patient care at the Terry Center.

The parents were never permitted to visit with Sheila after they surrendered custody. Two conferences regarding visitation were held with them at the Terry Center, but the custodial and treating authorities were of the opinion that the parents' insight and emotional attitudes were so poor that visitation would be harmful to the child. After a year at the Terry Center, which was marked by encouraging improvement, Sheila was placed in the foster home in which she now resides. Sheila has continued to make excellent progress in this home, and the foster parents wish to adopt her. She now expresses feelings of rejection and hostility toward the legal parents and is reluctant to have any contact with them.

The parents initiated action in Family Court to force the Children's Bureau to grant them visitation rights. The Children's Bureau, in turn, petitioned to terminate the adopted parents' parental rights under 13 Del.C. § 1103(5)(a). ² The Family Court consolidated the visitation and termination actions.

Before trial, the Family Court permitted discovery by the Children's Bureau of the mother's past medical and psychological records over the objections of the parents who argued that such records are privileged. See the Family Court decision on that point in Shipman v. State, Del.Fam.Ct., 442 A.2d 101 (1981). After trial, the judge granted termination of parental rights. He did not reach the visitation issue. He denied a post-trial motion that Family Court assess legal fees and costs against the intervenor and the State. See the decision on that point in Shipman v. State, Del.Fam.Ct., 454 A.2d 767 (1982).

Thus, there are three issues before this Court: the ruling of the Family Court as to pretrial discovery of the psychological history of the mother; the basic ruling terminating parental rights; and the matter of assessment of fees and costs.

Pretrial Discovery

The parents contend that under Rule 503(b) ³ of the Delaware Uniform Rules of Evidence there is a privilege as to psychological records unless the party herself places her emotional condition in issue. The Family Court correctly determined that Rule 503(d)(3) ⁴ creates an exception to the Rule 503(b) privilege if the person for whom such privilege exists asserts a particular physical, mental, or emotional condition as an element of a claim or defense.

Under the circumstances here present, the parents' emotional conditions were raised by their petition for visitation. The records were relevant to an evaluation of whether contact with them would be harmful to the child. Additionally, such records were also relevant to an evaluation under 13 Del.C. § 1103(5)(a)(2) ⁵ as to whether the mother's past inability to make adequate plans will continue and whether that past malady reflects her future capacity to care and plan for the child's emotional health. Thus, the records of the mother's psychiatric or psychological history was discoverable within the discretion of the Court. See Rules 401, 402, and 403 of the Delaware Uniform Rules of Evidence regarding relevant information.

Further, if it were to be found that the mother had not placed her mental health in contention when she sought visitation, any privilege which she retained must be found to be a qualified one when such privilege is asserted in a termination proceeding. When otherwise inaccessible and privileged information becomes pertinent to an issue vital to the future well-being of the child, the parent's right to privacy and confidentiality must yield. See In re Brenda H., N.H.Supr., 119 N.H. 382, 402 A.2d 169 (1979); 16 Del.C. § 908; 11 Del.C. § 1113. Whenever one seeks to resist the termination of her parental rights over a child, the emotional health of such person is put in issue within the meaning of Rule 503.

Termination of Parental Rights

We also affirm the decision on the merits of the termination petition. The Court's findings are supported by clear and convincing evidence as well as by inferences which are the product of an orderly and logical deductive process. Wife (J.F.V.) v. Husband (O.W.V., Jr.), Del.Supr., 402 A.2d 1202, 1204 (1979); Levitt v. Bouvier, Del.Supr., 287 A.2d 671, 673 (1972). Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

We note, however, that there was some confusion at oral argument as to whether it was necessary for the Family Court to find that the parents continued to be unable to "plan adequately for the child's physical needs or his mental and emotional health and development ..." during the time that the child was away from the parental home in a voluntary placement.

We think such a finding should have been made. The State and society in general have a fundamental interest in preserving and protecting the family unit. See Petitioner F. v. Respondent R., Del.Supr., 430 A.2d 1075, 1079 (1981); see also 16 Del.C. § 901. In a situation where existing family relationships may be disrupted...