Allen v. Department of Services for Children, Youth and their Families

• Court: Supreme Court of Delaware
• Decided: October 17, 2023
• Docket: 132, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ALBERT ALLEN,1 § § No. 132, 2023 Respondent Below, § Appellant, § Court Below—Family Court § of the State of Delaware v. § § File No. 21-10-02TN DEPARTMENT OF SERVICES FOR § Petition No. 21-23292 CHILDREN, YOUTH AND THEIR § FAMILIES, § § Petitioner Below, § Appellee. §

Submitted: August 30, 2023 Decided: October 17, 2023

Before SEITZ, Chief Justice; LEGROW and GRIFFITHS, Justices.

ORDER

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

26.1(c), his attorney’s motion to withdraw, the response of the Department of

Services for Children, Youth and their Families (“DFS”), and the response of the

Office of the Child Advocate (“OCA”), it appears to the Court that:

(1) The respondent below-appellant, Albert Allen (“the Father”), appeals

the Family Court’s order, dated March 23, 2023, terminating his parental rights to

his children Valerie (born in 2014), Albert (born in 2016), Nicole (born in 2017),

1 The Court previously assigned a pseudonym to the appellant and uses pseudonyms to refer to the appellant’s children in this order under Supreme Court Rule 7(d). and Keith (born in 2018) (“the Children”). The Family Court’s order also terminated

the parental rights of the Children’s mother (“the Mother”), who filed a separate

appeal.2 In this appeal, we focus on the facts in the record as they relate to the

Father’s appeal.

(2) On August 6, 2020, the Family Court granted DFS’s emergency

petition for custody of the Children by ex parte order. The Family Court found that

there were emergency conditions sufficient to find probable cause that the Children

were in actual danger or that there was a substantial risk of danger because three-

year-old Nicole was recently diagnosed with chlamydia and genital herpes and the

Children were medically neglected and developmentally delayed. The Family Court

scheduled a preliminary protective hearing and appointed counsel to represent the

Father.

(3) At the preliminary protective hearing on August 12, 2020, a DFS

investigator testified that Nicole was originally taken to the emergency room for a

fever and rash in late July. She was discharged, but returned the next day with

stomach issues and a continuing fever. Nicole tested positive for chlamydia and

genital herpes, which likely resulted from sexual contact. The New Castle County

Police began investigating possible sexual abuse of Nicole. The Children’s

2 See Zabel v. Div. of Servs. for Children, Youth and their Families, No. 130, 2023 (Del.).

2 Advocacy Center tried to interview Valerie and Albert, but their developmental

delays made this impossible.

(4) In addition to the parents, who denied having sexual contact with

Nicole, the Children had been in the care of maternal relatives. DFS was unwilling

to place the Children with maternal relatives who were possible suspects in the

criminal investigation. The Children were originally placed with a paternal relative,

but she could not care for the Children in addition to her own children. The Children

were currently in two foster homes located next to one another. At the conclusion

of the hearing, the Family Court found probable cause to believe that the Children

were in physical, mental, or emotional danger and dependent based on the lack of

sufficient explanation for Nicole having chlamydia and herpes and the Children

appearing to be neglected as far as hygiene, medical care, and possibly education.

The Family Court also found that it was in the best interests of the Children to be in

DFS custody, that DFS had made reasonable efforts to prevent the unnecessary

removal of the Children from their home, and that DFS had made reasonable efforts

to place the Children in the same home. The Family Court subsequently appointed

OCA counsel to represent the Children.

(5) At the September 24, 2020 adjudicatory hearing, the Father stipulated

to the dependency of the Children based on medical care. The doctor who treated

Nicole testified that this was likely Nicole’s first exposure to herpes and that the

3 incubation period for herpes is two to twenty days. The parents had reported that

Mother was diagnosed with chlamydia while pregnant with Keith, but the doctor

testified that it was unlikely Nicole would have acquired chlamydia or herpes from

her birth. The doctor opined that it was most likely that Nicole contracted chlamydia

and herpes as a result of sexual abuse. The other children did not test positive for

sexually transmitted diseases.

(6) A DFS employee testified that all of the Children were behind on their

medical care, suffered developmental delays, were going to be evaluated, and should

be receiving some type of therapy. She also testified that the parents were not fully

cooperative in providing information about how Nicole could have contracted herpes

and chlamydia. The Family Court found that the Children were dependent and

should remain in DFS custody. The Family Court also found that DFS had made

reasonable efforts to place the Children with relatives.

(7) At the November 2, 2020 dispositional hearing, DFS submitted a case

plan for the Father. The case plan required the Father to complete a mental health

evaluation, follow any treatment recommendations, resolve all legal issues, work

with a family interventionist, complete a parenting class, and participate in marriage

counseling. The Father was employed and had provided information about his

employment to DFS. The parents were living together, but not speaking because the

Father had been having a sexual relationship with the maternal grandmother. In light

4 of uncertainty concerning whether the Father could read English,3 the court directed

DFS to re-present the plan at the next hearing after ensuring that the Father could

understand the document in English or have it interpreted for him. There was

testimony that the Children had been brought up to date on their shots and other

medical needs. The Family Court found that the Children remained dependent and

should remain in DFS custody. The Family Court also found that DFS was making

reasonable efforts to reunify the Children with their parents.

(8) At the January 26, 2021 review hearing, the Family Court accepted the

signed case plan, in English and Spanish, for the Father. The Father had a family

interventionist, but was unable to complete the parenting class or mental health

assessment until Spanish-speaking providers were identified. He was visiting the

Children. He and the Mother were willing to do marriage counseling, although the

Mother was exploring separate housing. Albert and Nicole were receiving speech

therapy, physical therapy, and occupational therapy. Keith was receiving physical

therapy, occupational therapy, and assistance with anxiety and social relationships.

The Family Court found that the Father’s progress on his case plan was satisfactory,

but expressed concern about the lack of Spanish-language services for him. The

3 Throughout the court proceedings, there was an interpreter for the Father.

5 Family Court also found that the Children remained dependent and should remain in

DFS custody.

(9) The Family Court held a second review hearing on May 18, 2021. The

Father was having weekly visitation with the Children, who were now residing in

the same foster home. He had completed the mental health evaluation and was

enrolled in a parenting class. Marital counseling had not begun because the Mother

wanted to pursue therapy for herself first. The Children continued to receive therapy

for their developmental delays. The criminal investigation concerning Nicole had

been closed; it remained unknown how she contracted chlamydia or herpes. The

Family Court found that both parents had made progress on their case plans, but

noted that they needed to find appropriate housing as their current residence was too

small for four children. The Family Court also found that the Children remained

dependent and should remain in DFS custody. The Family Court directed DFS to

submit a paper review in lieu of another review hearing as a permanency hearing

would soon be needed.

(10) In the paper review, DFS reported that the Father had completed his

parenting class and was having supervised visitation with the Children twice a week.

DFS had substantiated both parents for sexual abuse of Nicole. The Children

remained in the same foster home and were up to date on their medical treatment.

6 The Family Court adopted the paper review and scheduled a hearing for September

10, 2021.

(11) On August 18, 2021, DFS filed a motion to change the permanency

plan from reunification to concurrent goals of reunification and termination of

parental rights. The parents filed responses opposing the motion. OCA supported

the motion.

(12) On September 10, 2021, the Family Court held a permanency hearing.

The parents were residing together and looking for housing. They did not object to

concurrent goals of reunification and termination of parental rights. Nicole and

Albert had tested positive for genetic abnormalities that cause significant

developmental delays and increased risk of mental health issues. The Family Court

found that both parents had made progress on their case plans, but expressed concern

for how Nicole had contracted sexually transmitted diseases and the parents’

unwillingness or inability to explain how this had occurred. The Family Court

granted DFS’s motion to change the permanency plan to concurrent goals of

reunification and termination of parental rights. DFS filed a petition for termination

of parental rights on October 7, 2021, but subsequently pursued trial reunification as

the parents made progress on their case plans.

(13) On January 11, May 2, October 17, and November 3, 2022, the Family

Court held post-permanency review hearings. The resulting orders reflect that the

7 parents continued making progress on their case plans and DFS returned the

Children to the parents for trial reunification on August 4, 2022. The Mother gave

birth to a fifth child on August 5, 2022. DFS had suspected the Mother was pregnant,

but she denied it and produced a negative pregnancy test.

(14) In late September, Albert’s teacher told DFS that Albert was coming to

school unclean, sleeping in class, and misbehaving. Nicole’s teacher also reported

that Nicole was misbehaving. During an unannounced visit to the family in

November, a DFS employee observed that the house was very unclean with a smell

of urine throughout. DFS also expressed concerns about a lack of food, a full-size

pillow in the new baby’s crib that raised concerns as to how the baby was safely

sleeping, and Valerie, Albert, and Nicole not wearing their prescribed glasses. The

Family Court found that the parents had made little progress on their case plans and

that the Children should remain in DFS custody. The Family Court scheduled a

post-permanency review hearing and termination of parental rights hearing for

February 23rd and 24th. On November 7, 2022, DFS removed the Children from

the parents’ home and returned them to foster homes.4

(15) On February 23 and 24, 2023, the Family Court held a post-permanency

hearing and a termination of parental rights hearing. The Family Court heard

4 DFS also obtained custody of the new baby.

8 testimony from the Father, the Mother, two DFS employees, Nicole’s kindergarten

and special education teacher, and the Mother’s family interventionist. The

testimony reflected that the Father had completed mental health and psychosexual

evaluations. The mental health evaluation recommended that he receive therapy.

The Father received therapy between May 2022 and November 2022, but then

stopped to begin marriage counseling that never commenced. He admitted that he

was on probation in 2021 and 2022 for leaving the scene of an accident and driving

without a license in Pennsylvania. In March 2022, the Father was charged with

driving under the influence in Pennsylvania. That charge was outstanding at the

time of the hearing. He had previously pleaded guilty to driving under the influence

in 2014 or 2015.

(16) The Father had completed a parenting class and done some work with

a family interventionist. The Father and the Mother had obtained appropriate

housing, but it was in an unacceptable condition when DFS conducted an

unannounced visit in November 2022. According to the Mother’s family

interventionist, the condition of the home became progressively worse during the

trial reunification. A DFS employee testified that the parents rectified the condition

of the home after the Children’s removal. There was also testimony that the Father

had a child with another woman in 2022 and might be seeking custody of that child.

9 (17) The Children were in two different foster homes and continued to

receive a variety of services and therapies for their developmental delays. The

Father was unable to identify the types of services and therapies the Children were

receiving, but said he would pursue the appropriate ones for the Children if they

were returned to him. Nicole had suffered several herpes outbreaks, including one

during trial reunification when her parents did not seek treatment and instead sent

her to school. Nicole’s teacher testified that at the beginning of the school year when

Nicole was living with her parents she would come into school very fatigued and

rarely speak until after lunch. In November when Nicole was no longer living with

her parents, she was less tired and more engaged in class and with her classmates.

She also started coming to school with her glasses.

(18) On March 23, 2023, the Family Court issued a written decision

terminating the parental rights of the Father. The Family Court found that DFS had

established by clear and convincing evidence that the Father had failed to plan

adequately for the Children’s needs under 13 Del. C. § 1103(a)(5) and the Children

had been in the care of DFS for more than a year. The Family Court recognized that

Father had completed some elements of his case plan, but found that he did not finish

his therapy, did not complete marriage counseling with the Mother, had pending

criminal charges for driving under the influence, and had failed to maintain his home

in a safe and appropriate condition for the Children. The Family Court also found,

10 by clear and convincing evidence, that DFS had made reasonable efforts to reunify

the family. Applying the best-interest factors under 13 Del. C. § 722, the Family

Court found that factors 1 (wishes of the parent) and 7 (evidence of domestic

violence) supported denial of the petition and factors 2 (wishes of the children),5 3

(the interaction and relationship of the children with family members), 4 (the

children’s adjustment to home, school, and the community), 5 (the mental and

physical health of all individuals involved), 6 (past and present compliance of the

parent with the rights and responsibilities to their children under 13 Del. C. § 701),

and 8 (criminal history of any party) supported granting the petition. The Family

Court concluded that DFS had established, by clear and convincing evidence, that

termination of the Father’s parental rights was in the Children’s best interests. This

appeal followed.

(19) The Father’s counsel (“Counsel”) filed a brief and motion to withdraw

under Supreme Court Rule 26.1(c). Counsel represents that he has made a

conscientious review of the record and the law and found no meritorious argument

in support of the appeal. Counsel informed the Father of the provisions of Rule

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

accompanying brief. Counsel also informed the Father of his right to submit any

5 In light of the youth and developmental delays of the Children, the Family Court relied on OCA’s support for the petition to find that this factor supported granting the petition.

11 points he wished this Court to consider. The Father has submitted several points for

this Court’s consideration. DFS and OCA ask this Court to affirm the Family

Court’s termination of parental rights.

(20) The Father’s points on appeal may be summarized as follows: (i)

Valerie, Albert, and Nicole attended school while in their parents’ care; (ii) the

Children received therapy at school with Nicole and Albert also receiving therapy at

home; and (iii) when DFS came to the house in November 2022, he had just come

back from the grocery store and showed DFS that they had food and baby formula.

(21) This Court’s review of the Family Court’s decision to terminate

parental rights entails consideration of the facts and law as well as the inferences and

deductions made by the Family Court.6 To the extent that the Family Court’s rulings

of law are implicated, our review is de novo.7 The statute governing the termination

of parental rights requires a two-step analysis.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

6 Wilson v. Div. of Fam. Servs., 988 A.2d 435, 439-40 (Del. 2010). 7 Id. 8 13 Del. C. § 1103; Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000). 9 Powell v. Dep't of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731-32 (Del. 2008). 12 parental rights is in the best interests of the child.10 Both of these requirements must

be established by clear and convincing evidence.11

(22) We construe the Father’s points as arguing that the Family Court erred

in finding that he failed to plan adequately for the Children’s needs and that

termination of his parental rights was in the Children’s best interests. Having

considered the parties’ positions and the record on appeal, we conclude that the

Father’s appeal is wholly without merit. There is ample evidence supporting the

Family Court’s termination of the Father’s parental rights based on his failure to plan

and that such termination is clearly in the Children’s best interests. This evidence

included the Father’s unwillingness or inability to explain how his three-year old

child contracted chlamydia and herpes, most likely as a result of sexual abuse, while

in his care, failing to seek treatment for this child when she was suffering an outbreak

and instead sending her to school, and failing to maintain a safe home for the

Children and meet their needs during trial reunification. We find no error in the

Family Court’s application of the law to the facts and no abuse of discretion in the

Family Court’s factual findings.

10 13 Del. C. § 1103(a) (providing that parental rights may be terminated if one of several statutory grounds is established and “it appears to be in the child’s best interest”); id. § 722 (setting forth factors that the court may consider when determining the best interests of a child). 11 Powell, 963 A.2d at 731. 13 NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT:

/s/ N. Christopher Griffiths Justice