Garrett v. DFS

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARION GARRETT,1 §
§ No. 6, 2019
Respondent Below, §
Appellant, § Court Below—Family Court
§ of the State of Delaware
v. §
§ File Nos. 17K-10-8TK & 17-10-9TK
DIVISION OF FAMILY §
SERVICES, § Petition Nos. 17-33033 & 17-33052
§
Petitioner Below, §
Appellee. §

Submitted: April 22, 2019
Decided: June 17, 2019

Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

ORDER

Upon consideration of the appellant’s brief filed under Supreme Court Rule

26.1, her attorney’s motion to withdraw, the response of the Division of Family

Services (“DFS”), and the response of the attorney ad litem, it appears to the Court

that:

(1) The respondent below-appellant, Marion Garrett (“the Mother”), filed

an appeal from the Family Court’s decision, dated December 5, 2018, terminating

1
The Court previously assigned pseudonyms to the appellants under Supreme Court Rule 7(d).
her parental rights to her two daughters (“Children”).2 On appeal, the Mother’s

counsel (“Counsel”) has filed an opening brief and motion to withdraw under

Supreme Court Rule 26.1. Counsel represents that she has made a conscientious

review of the record and the law and found no meritorious argument in support of

the appeal. The Mother has submitted points for the Court’s consideration. In

response to Counsel’s submission, DFS and the Children’s attorney ad litem, have

moved to affirm the Family Court's termination of the Mother’s parental rights.

(2) The older daughter was born in 2011 and the younger daughter was

born in 2013. On August 30, 2016, DFS was awarded temporary custody of the

Children by emergency ex parte order. DFS alleged that the family had been

involved with DFS for several months, the family had been residing at a hotel since

mid-July, the Mother was unemployed and lacked funds to pay for a place to stay,

and there were no other family members or friends who could take care of the

Children.

(3) At the preliminary protective hearing on September 7, 2016, the Family

Court appointed counsel to represent the Mother. The Mother stipulated to the

Children’s dependency or neglect based on her homelessness and continued mental

health issues. She also waived protective and adjudicatory hearings and requested a

2
The Family Court also terminated the parental rights of the Children’s fathers, who are not parties
to this appeal. We only recite the facts in the record as they relate to the Mother’s appeal.

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reunification case plan. The Family Court found that the Children continued to be

dependent or neglected and that the Children continued to be in, or there was

substantial imminent risk of, actual physical, mental or emotional danger. The

Family Court also found that DFS had exercised due diligence to identify and notify

all grandparents and adult relatives of the Children.

(4) On October 6, 2016, the Family Court held a dispositional hearing. The

Children were in a different foster care home after the initial foster care parent

expressed concern with the older child’s behavioral issues. The Mother’s case plan

included a mental health evaluation and compliance with any mental health

treatment recommendations, working with a parent aide, finding and maintaining

housing, and obtaining employment. DFS had communicated with the maternal

grandmother (who had the Mother’s two older children) about the Children, but she

was unable to care for them. The Family Court found that Children continued to be

dependent, it was in their best interests to remain in DFS custody, and DFS was

making reasonable efforts toward reunification.

(5) On January 3, 2017, the Family Court held a review hearing. The

Mother’s progress on her case plan included working with a parent interventionist,

finding possible employment, and moving in with the family of her girlfriend. The

older child had alleged that the husband of the girlfriend’s mother had abused her,

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but he was not living in the home. The older child attended trauma-focused therapy

every other week.

(6) On April 5, 2017, the Family Court held another review hearing. The

Family Court found that the Mother had been doing well on her case plan at the last

review hearing, but had since missed several visits with the Children because she

felt overwhelmed. Based on the Mother’s mental health evaluation, it was

recommended that she engage in psychotherapy to address her experience as a victim

of domestic violence and to develop coping mechanisms. The older child was

moved to a different foster home after behaving in a dangerous and aggressive

manner toward the younger child. The older child continued to see a therapist.

(7) On July 11, 2017, the Family Court held another review hearing. The

Mother was attending visits with the Children more regularly since the last hearing.

She had a therapist for her mental health issues, but was seeing him inconsistently.

The Mother was no longer living with her girlfriend and was not employed. The

older child had extreme temper tantrums and continued to see a therapist.

(8) On August 30, 2017, the Family Court held a permanency review

hearing. The Family Court found the Mother’s progress on her case plan was

inconsistent. She had missed four out of eight visits with the Children, failed to

address her past issues with domestic violence, and needed to reengage with the

parent interventionist. She had obtained employment and was seeing her therapist

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consistently. She was also pregnant and living again with her girlfriend. The older

child’s behavior was improving. The Family Court authorized DFS to add

termination of parental rights/adoption as a concurrent goal to the permanency plan

and warned the Mother that time was running out on her time to complete the case

plan. DFS filed petitions for termination of parental rights on October 27, 2017.

(9) On November 27, 2017, the Family Court held a review hearing. The

older child continued to see a therapist and the younger child had started therapy due

to some behavioral issues the foster mother had noticed. The Mother had stable

housing and made significant progress in her therapy, which also addressed the

domestic violence she had survived. DFS wanted to see how the Mother coped with

the new baby before attempting trial reunification with the Children. Based on the

Mother’s significant progress on her case plan in the preceding three months, the

Family Court found that reunification should continue to be a permanency goal even

though the Children had been in foster care for almost fifteen months.

(10) On March 7, 2018, the Family Court held a review hearing. The

Children continued to participate in individual therapy and started joint sessions in

order to address the concerns about how the older child treated the younger child.

The Mother’s therapy had been interrupted by the birth of her new child, but she was

in contact with her therapist. The Mother had stable housing and was going to return

to work, but her relationship with her girlfriend was unstable. The Mother’s

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visitation remained supervised. The Family Court found that reunification should

continue to be a permanency goal even though the Children had been in foster care

for almost nineteen months.

(11) On October 24, 2018, the Family Court held a termination of parental

rights hearing. The Family Court heard testimony from the Mother’s therapist, the

Children’s therapists, the psychologist who initially evaluated the Mother, a friend

of the Mother, a parent interventionist, two DFS employees, the younger child’s

foster mother, an employee of foster care agency responsible for the older child, and

the Mother. The testimony reflected that the Mother had been less engaged in her

therapy and was discharged after missing multiple sessions.

(12) The testimony also reflected that the Mother’s friend was often caring

for the new baby because the baby got on the girlfriend’s nerves, the friend continued

to care for the baby after the Mother and her girlfriend broke up, and the friend was

going to seek guardianship of the baby. The Mother had unsupervised and then

supervised visits with the Children due to concerns about her mental health. The

Mother had missed multiple sessions with the parent interventionist. The parties

submitted written closings in November.

(13) On December 5, 2018, the Family Court issued a decision terminating

the parental rights of the Mother. The Family Court found by clear and convincing

evidence that the Mother had failed to plan adequately for the Children’s needs under

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13 Del. C. § 1103(a)(5). The Family Court found that the Children had been in DFS

care for more than two years, the Mother had failed to demonstrate that she could

assume legal and physical custody of the Children, and the Children needed stability

and could not continue to wait for the Mother to complete her case plan. The Family

Court next 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 Children.3

(14) On appeal, the Mother argues that she should have been given more

time to prove that she can parent the Children. She states that she has stable housing,

is employed and going to school, and often cares for her youngest son who is in the

guardianship of her friend. DFS and the Children’s attorney ad litem argue that the

Family Court did not err in terminating the Mother’s parental rights.

(15) This Court reviews the Family Court’s factual and legal determinations

as well as its inferences and deductions.4 We will not disturb the Family Court’s

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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.
4
Long v. Div. of Family Servs., 41 A.3d 367, 370 (Del. 2012).
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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.5 We review legal rulings de novo.6 If the Family Court correctly

applied the law, then our standard of review is abuse of discretion. 7

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

separate inquiries.8 First, the Family Court must determine whether the evidence

presented meets one of the statutory grounds for termination. 9 Second, the Family

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

the child.10 The standard of proof for both of these requirements is clear and

convincing evidence. 11

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

appeal, we find no error in the Family Court’s application of the law to the facts and

conclude that the Family Court’s factual findings are well-supported by the record.

It is laudable that the Mother is working to improve herself. But the Children were

in DFS custody for more than two years by the time of the termination of parental

rights hearing. Even after the Family Court gave the Mother more time to work

5
In re Heller, 669 A.2d 25, 29 (Del. 1995).
6
Id.
7
CASA v. Dep’t of Servs. for Children, Youth and Their Families, 834 A.2d 63, 66 (Del. 2003).
8
Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
9
13 Del. C. § 1103(a) (listing the grounds for termination of parental rights).
10
13 Del. C. § 722(a).
11
Powell v. Dep’t of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731 (Del. 2008).
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toward reunification after the permanency hearing, she was unable to address her

mental health issues consistently and to assume legal and physical custody of the

Children. There was no error or abuse of discretion by the Family Court in

terminating the Mother’s parental rights.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT:

/s/ Gary F. Traynor
Justice

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