Burns, Matter of

• Decision Date: 10 June 1986
• Citation: 519 A.2d 638
• Parties: In the Matter of Derek W. BURNS, A Minor Child. . Submitted:
• Court: Supreme Court of Delaware

Page 638

519 A.2d 638

In the Matter of Derek W. BURNS, A Minor Child.

Supreme Court of Delaware.

Submitted: June 10, 1986.

Decided: Dec. 19, 1986.

Upon appeal from the Family Court. REVERSED.

Carolyn R. Schlecker (argued) and Merril L. Zebe (argued), of Community Legal Aid Society, Inc., Wilmington, for appellant.

Beth E. Evans (argued), of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for appellee The Children's Bureau, Inc.

Janice R. Tigani, Dept. of Justice, Wilmington, for appellee Div. of Child Protective Services.

Before HORSEY, MOORE and WALSH, JJ.

MOORE, Justice.

In this termination of parental rights case we consider for the first time the State's obligations to promote family stability and preserve the family unit, whenever feasible, under the federal Adoption Assistance and Child Welfare Act of 1980 (the "Child Welfare Act" or the "Act") ¹ and concomitant Delaware law, 29 Del.C. §§ 9001, 9003(3)(a-b), (4).

The Family Court terminated the parental rights of Judy Burns and David Black in their illegitimate minor son, Derek. For ease of reference, and to protect the identities of the parties, we have used pseudonyms. The Delaware Division of Child Protective Services ("DCPS" or "the Division"), a state agency, and the Children's Bureau of Delaware, Inc. ("the Children's Bureau") sought to terminate these parental rights, alleging that both parents were unable, and had failed, to plan adequately for Derek's physical needs under 13 Del.C. § 1103(5). ² The father's rights were terminated because he abandoned and failed to plan adequately for Derek. ³ No appeal has been taken from that decision. Relief was granted against the mother for her alleged failure to plan adequately for the child.

The mother appeals the trial court's ruling on several grounds, only two of which are pertinent to our decision: (1) that the mother, then a minor, was forced to relinquish custody of Derek without any independent advice, and denied her basic due process rights at every important stage of the termination proceedings; and (2) that the Family Court failed to apply the provisions of the Child Welfare Act to this case. There is merit to both of these contentions, and they find ample support in the record. Accordingly, we reverse and return custody to the mother.

I.

Judy Burns, the mother, was born on April 9, 1966. When she was one month old, she and her siblings were taken from their natural parents and placed in foster homes by the Division. She remained with one foster family for ten years until the Division deemed the situation unsatisfactory. From that time until she was approximately seventeen, Judy lived in at least thirteen other places, either in shelters, foster homes or with relatives.

On August 21, 1983, while still an unwed minor in the custody of the Division, Judy gave birth to Derek. She was seventeen years old and was then living with her natural mother in Chicago. Judy's living arrangements with the child's father and with her family were unsatisfactory and she returned to Delaware, with Derek, in October 1983. Thereafter, she lived for some time with her natural father, and then with her natural brother and a previous foster sister. As often happens in such unfortunate circumstances, Judy's relationships with these people deteriorated, leaving her destitute and homeless.

As a minor still in the technical custody of the Division, she turned to it for help. On January 4, 1984, at the age of seventeen, and without the guidance or counsel of any independent person who could advise her of the extent and purport of her action, Judy was required by DCPS, as a condition of its assistance, to sign a document called a Voluntary Placement Agreement. This three-page instrument, filled with legal terms and the esoteric language of social workers, was of broad effect. It provided for the "placement" of both Judy and Derek solely because "we don't have a place to stay". There is no suggestion that Derek was a neglected, abused or abandoned child. Among this agreement's various provisions were the following:

I understand that I have the right at any time to ask that my child(ren) be returned. The Agency will return my child(ren) to me within 48 hours (except weekends) of my request unless the Agency determines that the child(ren) would be at risk of dependency, neglect or abuse.

My worker will make a home evaluation before releasing my child(ren) to me. If I refuse to cooperate in this evaluation or if the Agency believes my child(ren) are at risk of dependency, neglect or abuse when I request their return or at any time while they are in Agency care, the Agency will ask the court to issue a custody order so that my child(ren) may stay in Agency care.

If a court order is requested, I have a right to have an attorney represent me in hearings which may occur before the court can order my child(ren) into Agency care and custody.

I understand that this agreement and voluntary placement cannot last more than 90 days. It will end on 4/2/84. By this date I understand that one of the following two events must occur:

1) my child(ren) will be returned to me, or

2) the Agency will obtain legal custody of my child(ren) so that he/she/they can remain in placement.

(Emphasis in original)

Execution of this document was something of a Hobson's choice offered the mother by a Division social worker. Either Judy signed or Derek would be taken from her. While the social worker described the matter more euphemistically, the mother's account was not disputed in any essential detail:

MS. SCHLECKER: Okay. But, do you remember signing any documents about [Derek's] custody?

MS. [BURNS]: Yes, I do. There was one document that I did not quite understand, that she summed it up in one sentence.

MS. SCHLECKER: Okay. What, what did she--what did she sum up? What did she say?

MS. [BURNS]: It was a document that she, she had explained to me that if I did not sign this document, [Derek] and I would be on the streets and they would have to take [Derek] from me. If I signed the document, [Derek] would go with me.

MS. SCHLECKER: So, you thought you were signing a document that meant [Derek] would always stay with you?

MS. [BURNS]: Yes. That's the way that she had explained it to me. Those were her words.

Next, allegedly to meet federal funding requirements, the Division had Judy, then still a minor, sign a "consent" awarding Derek's custody to it. Again, the mother had neither advice nor counsel from any independent source before she relinquished custody of her child.

This document stated that a hearing would be held on April 2, 1984, at which time custody would be transferred to the Division unless contested by the mother. Although the consent form required specific factual bases for the transfer, the only reason listed was "he's [Derek] in placement because we have no place to stay." On January 30, after one aborted attempt by DCPS at an undesirable and unsatisfactory foster care arrangement, Judy and Derek were placed in the home of Margaret Draper.

Thereafter, Judy began job training and worked toward obtaining her GED at the Howard Skills Center. She narrowly missed passing the GED test. Although trained in the clerical field, the only job offered her through the school placement office was part-time work at a fast-food restaurant, which she accepted.

On April 4, after a hearing at which Judy was not present, and of which she had neither notice nor knowledge, a Master of the Family Court awarded custody of Derek to DCPS principally on the basis of the signed consent form. ⁴ Concurrently, the relationship between Judy and Mrs. Draper deteriorated. When Judy reached the age of eighteen, on April 9, 1984, and relying on the terms of the "voluntary" placement agreement, she notified DCPS that she was terminating the arrangement and would leave the Draper home, taking her son with her to live temporarily at her natural father's house.

However, Mrs. Draper refused to let her leave with Derek. Judy then became hysterical, the police were called, and Derek was forcibly taken from her. Judy left the Draper house and Derek was given to the care of the Children's Bureau. Since that time, this mother and child have lived apart, and nothing was done by DCPS to provide Judy and Derek with other housing so that they could continue living together and maintain the close family relationship that had existed.

The Children's Bureau placed Derek in a foster home on April 16, and assumed the Division's responsibilities and duties to Judy and Derek through a purchase-of-care agreement. With no help from either her family or DCPS, Judy lived a transient lifestyle with little stability, despite her apparent good faith efforts to provide living and working arrangements of some permanence.

In June a Children's Bureau case worker, Patricia Jacobs, attempted to establish a plan with Judy for Derek's care. Jacobs proposed that Judy be evaluated and receive whatever counseling was indicated, that Judy might benefit from "parenting" classes, and that Judy would be expected to participate in weekly counseling and weekly visits with Derek at the Children's Bureau. The plan also called for Judy to secure adequate living quarters and suitable day care for Derek. Although the Children's Bureau, now acting in DCPS's stead, did nothing whatever to reunite this mother and child as a family unit, the plan rather disingenuously stated that the separation was because "no other joint placement was available." Understandably, the mother refused to sign this document.

Judy subsequently planned to marry a long-distance truck driver and move to Oklahoma. She submitted to a psychiatric evaluation, and agreed to have her fiance meet with Jacobs. Dr. Leon Green examined Judy, and reported that "from this interview I don't find anything seriously to contraindicate giving a chance to replacement of Derek with his mother." In a postscript, Green wrote: "Her...