Frost v. Div. of Family Servs.

62 A.3d 1223

Tamara FROST,¹ Respondent Below, Appellant,

v.DIVISION OF FAMILY SERVICES, Petitioner Below, Appellee.

No. 373, 2012.

Supreme Court of Delaware.

Submitted: Feb. 27, 2013.

Decided: March 12, 2013.

Court Below—Family Court of the State of Delaware, in and for New Castle County, No. 11–12–01TN, Petition No. 11–36729.

Before HOLLAND, JACOBS and RIDGELY, Justices.

ORDER

RANDY J. HOLLAND, Justice.

This 12th day of March 2013, it appears to the Court that:

(1) The respondent-appellant, Tamara Frost (the “Mother”), appeals from the Family Court's decision to terminate her parental rights. The Mother raises three claims on appeal: first, that the Family Court erred in terminating the Mother's parental rights, even though she was foreseeably capable of reunification with her children and had substantially completed her case plan; second, that the Family Court erred by not interviewing the children and/or appointing a Frazer² attorney to adequately give weight to the children's desires when a) they expressed several times that they wanted to return to Mother and b) the Guardian ad Litem supported termination of parental rights; and third, that the Family Court's decision that it is in children's best interest to terminate her parental rights is not sufficiently supported by the record and is not the result of an orderly, logical, and deductive process.

(2) The Mother has four children. The custody of three of those children was in issue at the Termination of Parental Rights (“TPR”) hearing: Samantha, born in 2004; Shelly, born in 2006; and Alice, born in 2007 (the “Children”). The Children all share the same biological father (the “Father”).

(3) The Mother has had a long history of her children being placed in the custody of the Division of Family Services (“DFS”). In June, 2006, Samantha and Shelly were granted to DFS due to the Mother's drug use, housing trouble, and unemployment. The girls were briefly reunited with the Mother, only to return to foster care after it was determined the Mother was still using drugs and did not have stable housing. Custody was restored back to the Mother and the Father in 2008. In January, 2010, a domestic violence incident led DFS to monitor the children again. In December, 2010, DFS took custody of Samantha, Shelley, and Alice.

(4) A DFS treatment worker, Kerri Parise, worked with the Mother to develop a reunification case plan. During a Dispositional Hearing in Family Court in February, 2011, the reunification case plan was reviewed, entered into evidence, and signed by the Mother. The children have continued to live in foster care since December, 2010, because the Mother has failed to complete the conditions of the case plan, which involved the Mother being required to address the following issues: housing, substance abuse, employment, mental health, and domestic violence.

(5) As to her housing, the Mother has been unable to establish stable housing for herself and the children. At the beginning of Parise's interaction with the Mother, mother refused to disclose where she lived. Between December 2010 and August 2011, the Mother lived for a period in a women's shelter and for a period in a motel. At the end of this time, the Mother and the Father found a residence, which the Mother conceded was not appropriate for children. In February, 2012, the Mother and the Father were evicted from this residence.

(6) The Mother now lives in an apartment with the Father. The Father is a Tier II sex offender, and by law, the children cannot live in the same housing as the Father. Though the Mother remains dependent on the Father's income, she has indicated he would move into a separate apartment if she regained custody of the children.

(7) The Mother has not been able to establish any record of earned income, stating she earns about $200 per week “under the table” running errands and doing chores for an “older gentleman.” The Mother receives TANIF and food stamps.

(8) The Mother has a fifteen-year history of cocaine and heroin abuse. Shelley was born drug addicted and the Mother's most recent child—who is not at stake in this litigation—was also born drug addicted in May, 2012. The Mother has sought treatment for her addiction, but has not completed the treatment programs. While in treatment, the Mother has failed at least five drug screenings. The Mother is currently on prescription methadone and Clonidine (a benzodiazepine), two drugs which are contraindicated. The Mother has admitted she did not inform the doctor who proscribed her Clonidine that she was on methadone.

(9) The Mother has been diagnosed with bipolar disorder and depression. The Mother has in the past received mental health treatment but has chosen to not continue. The Mother admits receiving psychotropic medication from a physician, but claims she does not currently take the medication.

(10) Samantha and Shelley have stated to their foster parents and their therapist that they remember an incident where the Father choked the Mother.

(11) After the children were taken into custody by DFS, they were placed into a foster home. When the children first arrived at the foster home, they expressed anxiety about being fed, and showed hoarding tendencies. The children also showed concern that their mother was not getting enough food to eat, and they fixated on an incident in which they observed the Father choking the Mother.

(12) When first placed in foster care, Alice regularly defecated in her pants. This behavior ended and for eight months, Alice did not have these accidents. However, she defecated in her pants again at the mention of returning to the Mother's care. The Children have expressed a desire to remain living with the foster parents, but have also, at times, shown a desire to return to their Mother. Samantha desires for the Mother to come live with them so that the foster parents can take care of the Mother. After visitation sessions with their Mother and Father, the children would hug their parents and talk about wanting to come home.

(13) Samantha and Shelley continue to see a therapist, who is also a social worker.³ That therapist states the children show behavior typically exhibited by neglected children and that Samantha shows signs of being a “parentified child” who believes she is her Mother's caretaker. In every therapy session, Shelley expressed concern about the incident in which the Father choked the Mother. Discussion of a returning to the Mother's care renders Samantha anxious, nervous, and agitated.

(14) In 2011, three review hearings were held on the case plan. A Permanency Hearing was held in December, 2011, during which the TPR was initiated. In June, 2012, the Family Court terminated the Mother's parental rights on the grounds of failure to plan under title 13, section 1103(a)(5) of the Delaware Code and a finding that termination was in the best interests of the children. This appeal followed.

(15) When reviewing a Family Court's termination decision, our standard and scope of review involves a review of the facts and law, as well as the inferences and deductions that the Family Court has made.⁴ To the extent that the issues on appeal implicate rulings of law, we conduct a de novo review.⁵ To the extent that the issues on appeal implicate rulings of fact, we conduct a limited review of the factual findings of the Family Court to assure that they are sufficiently supported by the record and are not clearly wrong.⁶ We will not disturb inferences and deductions that are supported by the record and that are the product of an orderly and logical deductive process.⁷ If the Family Court has correctly applied the law, our review is limited to abuse of discretion.⁸

(16) In Delaware, the Family Court must conduct a two-step analysis when deciding whether or not to terminate parental rights.⁹ First, the Family Court examines whether there is clear and convincing proof of at least one of the grounds for termination set forth in title 13, section 1103(a) of the Delaware Code.¹⁰ In this case, the Family Court made a finding under section 1103(a)(5), that the Mother failed to plan. Second, the Family Court must determine whether the decision is in the best interests of the child pursuant to title 13, section 722 of the Delaware Code.¹¹

(17) The Mother contends that the Family Court erred in terminating her parental rights even though she was foreseeably capable of reunification with her children and had allegedly substantially completed her case plan elements. Section 1103(a)(5) permits termination for failure to plan when a parent is “not able, or [has] failed, to plan adequately for the child's physical needs or mental and emotional health and development.” ¹² The Family Court must also find “1 or more” of the following factors are met:

a. In the case of a child in the care of the Department or a licensed agency:

1. The child has been in the care of the [DFS] or licensed agency for a period of 1 year, or for a period of 6 months in the case of a child who comes into care as an infant, or there is a history of previous placement or placements of this child; or

2. There is a history of neglect, abuse or lack of care of the child or other children by the respondent; or

3. The respondent is incapable of discharging parental responsibilities due to extended or repeated incarceration, except that the Court may consider postconviction conduct of the respondent; or

4. The respondent is not able or willing to assume promptly legal and physical custody of the child, and to pay for the child's support, in accordance with the respondent's financial means; or

5. Failure to terminate the relationship of parent and child will result in continued emotional instability or physical risk to the child. In making a determination under this paragraph, the Court shall consider all relevant factors....

(18) The Family Court's finding that the Mother failed to complete her case plan, and therefore has failed to...