Hawkins v. DSCYF

IN THE SUPREME COURT OF THE STATE OF DELAWARE

RACHEL HAWKINS,1 §
§ No. 517, 2017
Respondent Below, §
Appellant, § Court Below—Family Court
§ of the State of Delaware
v. §
§ File Nos. CN15-02932
DEPARTMENT OF SERVICES FOR § 16-11-02TN
CHILDREN, YOUTH AND THEIR §
FAMILIES OF THE STATE OF § Petition Nos. 15-16125
DELAWARE, § 16-35570
§
Petitioner Below, §
Appellee. §

Submitted: April 20, 2018
Decided: June 5, 2018

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

This 5th day of June 2018, upon consideration of the appellant’s brief under

Supreme Court Rule 26.1(c), her attorney’s motion to withdraw, the responses of the

Department of Services for Children, Youth, and their Families, Division of Family

Services (“DFS”) and the Office of the Child Advocate (“OCA”), and the record

below,2 it appears to the Court that:

1
The Court previously assigned pseudonyms to the appellants under Supreme Court Rule 7(d).
2
On May 11, 2018, the appellant’s counsel filed a motion for leave to file additional points of the
Mother in reply to the responses of DFS and OCA. Rule 26.1(c) does not provide for the filing of
reply points. After reviewing the additional points, which consist of matters the appellant had
already raised or could have raised in her initial points, we find no basis for reply points in this
appeal. The motion for leave to file reply points is therefore denied.
 (1) The respondent-appellant, Rachel Hawkins (“the Mother”), has filed an

appeal from the Family Court’s decision, dated November 6, 2017, terminating her

parental rights to her daughter (“the Child”), who was born on June 24, 2014. DFS

originally filed a petition for an emergency ex parte order granting custody of the

Child to DFS on June 5, 2015. The petition arose from the Mother, who had a history

as a domestic violence victim of the Child’s father (“the Father”), a history of

substance abuse and mental health issues, and an extensive history with DFS,

testifying during a protection from abuse (“PFA”) hearing that she had only applied

for a PFA against the Father because DFS made her do it, she loved the Father, and

she wanted to reunite with him after couples counseling. The Family Court granted

the petition and scheduled a preliminary protective hearing. On June 11, 2015, the

Family Court appointed a court appointed special advocate (“CASA”) to represent

the Child.

(2) At the preliminary protective hearing on June 17, 2015, the Family

Court appointed counsel to represent the Mother and the Father. The Mother

stipulated to probable cause of dependency for the Child due to lack of stable

housing. The Father, who was incarcerated and prohibited from contact with the

Mother and the Child, also stipulated to probable cause of dependency. The Family

Court found probable cause to believe the Child was dependent. The Family Court

also found that DFS made reasonable efforts to prevent the unnecessary removal of

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the Child from her home. The Mother was awarded biweekly visitation with the

Child.

(3) On August 26, 2015, the Family Court held an adjudicatory hearing.

The Family Court found that the Child was dependent based on the Mother’s

stipulation to a history of domestic violence and the Father’s incarceration. The

Family Court also found that DFS was making reasonable efforts at reunification

and to find an appropriate relative caretaker. There were indications that the

Mother’s brother might file a petition for guardianship.

(4) On October 6, 2015, the Family Court held a dispositional hearing. The

Mother did not appear for the hearing. The Family Court found that the Mother’s

case plan, which the Mother had previously signed, was appropriate. The Family

Court ordered DFS to prepare a case plan for the Father. The Mother’s case plan

provided, among other things, that the Mother would participate in counseling for

domestic violence victims and have no contact with the Father, complete a substance

abuse evaluation and receive treatment if recommended by the evaluation, speak

with a counselor whenever she felt stressed or overwhelmed, take any prescribed

medication and meet with a therapist if necessary, obtain appropriate housing, and

seek employment.

(5) On November 16, 2015, the Family Court held a review hearing. The

Family Court continued to find the Child to be dependent and that DFS was making

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reasonable efforts at reunification. There was a lapse in the Mother’s substance

abuse treatment due to her relocation from downstate to upstate. The Mother was

working on her case plan and having supervised visits with the Child. A case plan

was entered for the Father.

(6) On February 9, 2016, the Family Court held another review hearing.

The Family Court continued to find the Child to be dependent and that DFS was

making reasonable efforts at reunification. The Mother had a mental health

evaluation and was prescribed medication in October 2015. In November 2015, the

Mother informed DFS that she was going to admit herself to Bowling Green for 15-

20 days because she was depressed and using alcohol. She did not do so, however,

and gave differing accounts as to why she had not admitted herself.

(7) The Mother said she had previously been diagnosed with Bi-Polar

Disorder, Post Traumatic Stress Disorder, and Major Anxiety Disorder. She also

said that she was involved with the ACT Program at Connections and had begun

receiving outpatient mental health services from Rockford in January 2016. The

Mother was willing to sign release forms so DFS could verify these claims. The

Mother also said her brother was willing to be a placement resource for the Child.

(8) On April 22, 2016, the Family Court held another review hearing. The

Mother had been working on her case plan, but DFS had concerns about the

consistency of her treatment. The Mother had missed multiple sessions with ACT

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and her domestic violence counselor. The Mother said that DFS had concerns about

her brother’s housing. Her brother had been unable to visit the Child due to his work

schedule; he could only do visits on nights and weekends.

(9) On April 29, 2016, DFS filed a motion to change the goal from

reunification to a concurrent goal of reunification and termination of parental

rights/adoption because the parents had not completed their case plans. The Family

Court granted the motion after receiving no objection from counsel.

(10) On July 26, 2016 and August 23, 2016, the Family Court held a

permanency hearing. The Family Court found that the Child continued to be

dependent and DFS was making reasonable efforts to finalize the permanency plan.

The Mother was receiving treatment for her mental health and substance abuse issues

with the ACT Program at Horizon House. DFS expressed concern that the Mother

kept changing her mental health and substance abuse service providers. The Mother

was also receiving counseling as a victim of domestic violence.

(11) On November 4, 2016, the Family Court held another permanency

hearing. The Family Court found that the Child continued to be dependent. The

Mother expressed concern with injuries the Child suffered with her foster family as

a result of falls and scuffles with her similarly aged foster sisters. The CASA

testified that she believed the Child was receiving excellent care despite the

occasional bumps and bruises. The Mother had obtained appropriate housing for the

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Child, completed parenting classes, remained in treatment with the ACT Program,

and continued to receive counseling as a victim of domestic violence.

(12) The Father was contacting and threatening the Mother in violation of

the PFA. He was arrested on new charges, including felony stalking in October

2016. The Family Court found that the Father was not complying with his case plan.

The Family Court scheduled another post-permanency hearing for February 6, 2017

and a termination of parental rights hearing for March 24, 2017.

(13) At the February 6, 2017 post-permanency hearing, the Family Court

found that the Child continued to be dependent. The Family Court also found that

the Mother was compliant with her case plan. DFS planned to increase the Mother’s

visitation with the Child to overnight visits at her home. If the Mother continued to

make progress on her case plan, DFS would stay or withdraw the petition to

terminate her parental rights. The Family Court found the Father was not compliant

with his case plan.

(14) Due to the Department of Correction’s failure to transport the Father to

the termination of parental rights hearing on March 24, 2017, the Family Court

rescheduled the hearing for both of the parents for July 14, 2017. On July 13, 2017,

the Mother’s brother filed a petition for guardianship of the Child. At the July 14,

2017 termination of parental rights hearing, the Family Court denied the Mother’s

request that the parties accept service of the guardianship petition and proceed with

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the petition at the hearing. The Family Court noted that Mother’s brother could have

pursued guardianship much earlier in the process.

(15) During the July 14, 2017 hearing, the Family Court heard testimony

from a Wilmington police officer who had been involved in domestic violence

investigations involving the Mother; the Mother; a Newark police officer who saw

the Mother and the Father walking together in May 2017 while the PFA was still in

place; a Horizon House supervisor who had worked with the Mother; a Children’s

Choice family interventionist; two DFS employees; the Child’s foster mother; and

the Child’s CASA. In the course of the hearing, the Mother and the Father consented

to termination of their parental rights. The Family Court found the consents

knowingly, intelligently, and voluntarily entered.

(16) In a letter dated July 20, 2017, the Mother exercised her right under 13

Del. C. § 1106B to revoke her consent to the termination of her parental rights. The

Mother filed a motion for new trial, relief from judgment, or to reopen the record.

The Family Court granted the motion in part and denied it in part. The Family Court

ordered a hearing for the Mother to defend herself against the termination of her

parental rights.

(17) The hearing was held on October 5, 2017. The Family Court heard

testimony from a Wilmington police officer and a Delaware State police officer

regarding the arrest of a former boyfriend (not the Father) who had assaulted the

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Mother in March 2017. The court also heard testimony from the Mother; three

Newark police officers who testified+ regarding the Mother’s history as a victim of

domestic violence by the Father; a Children’s Choice family interventionist; and a

DFS employee.

(18) On November 6, 2017, the Family Court issued a decision terminating

the parental rights of the Mother and the Father. As to the Mother, the Family Court

found by clear and convincing evidence that the Mother had failed to plan adequately

for the Child’s needs under 13 Del. C. § 1103(a)(5). Although the Mother had

completed some of the elements of her case plan, she had failed to plan adequately

for the Child’s needs because she obtained housing that was near the Father’s family

and where the Father was known to spend time, she continued to expose herself to

domestic violence by having voluntary contact with the Father, she was inconsistent

in her mental health and substance abuse treatment efforts, and she continued to

abuse alcohol. The Family Court also found, by clear and convincing evidence, that

the Child had been in DFS’ care for more than a year, there was a history of a lack

of care of the Child and two of the Mother’s other children who were in the care of

other relatives (their maternal grandfather and step-grandmother were appointed

permanent guardians),3 the Mother’s inappropriate housing meant she could not

3
This Court affirmed the Family Court’s appointment of the permanent guardians on direct appeal.
Harris v. Harris, 2015 WL 1000987 (Del. Mar. 4, 2015).
8
promptly assume legal and physical custody of the Child, and failure to terminate

the Mother’s parental rights would result in continued emotional instability and

physical risk to the Child.

(19) The Family Court next found, by clear and convincing evidence, that

DFS had made reasonable efforts to reunify the family. As to the Mother’s brother,

the Family Court found that he did not make a concerted effort to visit the Child and

he did not file the petition for guardianship until the Child had been in DFS’ care for

more than two years. Finally, the Family Court considered the best interest factors

under 13 Del. C. § 722 and found, by clear and convincing evidence, that termination

of parental rights was in the best interests of the Child.4 This appeal followed.

(20) On appeal, the Mother’s appointed counsel filed an opening brief and a

motion to withdraw under Supreme Court Rule 26.1(c). The Mother’s counsel

asserts that he has reviewed the record and has determined that no arguable claim

for appeal exists. By letter, the Mother’s counsel informed her of the provisions of

Rule 26.1(c) and provided her with a copy of the motion to withdraw and the

4
The best interest factors include: (i) the wishes of the parents regarding the child’s custody and
residential arrangements; (ii) the wishes of the child regarding her custodians and residential
arrangements; (iii) the interaction and interrelationship of the child with her parents, grandparents,
siblings, persons cohabitating in the relationship of husband and wife with a parent of the child,
and any other residents of the household or persons who may significantly affect the child’s best
interests; (iv) the child's adjustment to her home, school, and community; (v) the mental and
physical health of all individuals involved; (vi) past and present compliance by both parents with
their rights and responsibilities to the child under 13 Del. C. § 701; (vii) evidence of domestic
violence; and (viii) the criminal history of any party or any resident of the household. 13 Del. C.
§ 722.
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accompanying brief. The Mother provided points for the Court to consider on

appeal. In her points, the Mother argues that she adequately planned for the Child’s

needs, she completed all of the elements of her case plan, the Child suffered injuries

while with the foster family, and her brother was interested in taking care of the

Child. DFS and OCA filed a response to the Rule 26.1(c) brief and moved to affirm

the Family Court’s judgment.

(21) On appeal, this Court reviews the Family Court’s factual and legal

determinations as well as its inferences and deductions.5 We will not disturb the

Family Court’s rulings on appeal if the court’s findings of fact are supported by the

record and its explanations, deductions, and inferences are the product of an orderly

and logical reasoning process.6 We review legal rulings de novo.7 If the Family

Court correctly applied the law, then our standard of review is abuse of discretion.8

On issues of witness credibility, we will not substitute our judgment for that of the

trier of fact.9

(22) The statutory procedure for terminating parental rights requires two

separate inquires.10 First, the Family Court must determine whether the evidence

5
Long v. Div. of Family Servs., 41 A.3d 367, 370 (Del. 2012).
6
In re Heller, 669 A.2d 25, 29 (Del. 1995).
7
Id.
8
CASA v. Dep’t of Servs. for Children, Youth and Their Families, 834 A.2d 63, 66 (Del. 2003).
9
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
10
Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
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presented meets one of the statutory grounds for termination. 11 Second, the Family

Court must determine whether termination of parental rights is in the best interest of

the child.12 Both of these requirements must be established by clear and convincing

evidence.13

(23) After careful consideration of the parties’ positions and the record on

appeal, the Court concludes that the termination of the Mother’s parental rights

should be affirmed on the basis of the Family Court’s thorough and well-reasoned

decision dated November 6, 2017. Contrary to the Mother’s contentions on appeal,

the Family Court’s findings that the Mother failed to complete significant portions

of her case plan and that termination of her parental rights was in the Child’s best

interest are well-supported by the record. There is no abuse of discretion in the

Family Court’s factual findings and no error in the Family Court’s application of the

law to the facts. We are satisfied that the Mother’s counsel made a conscientious

effort to examine the record and the law and properly determined that the Mother

could not raise a meritorious claim on appeal.

11
13 Del. C. § 1103(a) (listing the grounds for termination of parental rights).
12
13 Del. C. § 722(a).
13
Powell v. Dep’t of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731 (Del. 2008).
11
 NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT:

/s/ Karen L. Valihura
Justice

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