Division of Family Services v. Miller

922 A.2d 1185, 2005 WL 5420088
CourtDelaware Family Court
DecidedApril 12, 2005
DocketNo. CS04-02362
StatusPublished

This text of 922 A.2d 1185 (Division of Family Services v. Miller) is published on Counsel Stack Legal Research, covering Delaware Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Division of Family Services v. Miller, 922 A.2d 1185, 2005 WL 5420088 (Del. Super. Ct. 2005).

Opinion

OPINION

MILLMAN, J.

On September 2, 2004, custody of Drew Miller was granted to the Division of Family Services. The mother of this child is Judy Miller. Andrew Potter is the putative father of this child.

The purpose of this hearing is to review mother’s Case Plan with the goal of reunification with the child. Unfortunately, the assigned worker to this case was ill on the day of the hearing and the Division had limited information regarding Drew.

The information presented indicated that on November 9, 2004, it was determined that Drew needed speech and occupational therapy. The purpose of the occupational therapy is to give Drew cognitive assistance, motor skills assistance, and communication assistance. The purpose of the physical therapy is to assist Drew in building his muscles. He is 20 months old and is not walking. The occupational and physical therapy is provided to him twice a week by therapists who come to the foster mother’s residence.

Drew has had ongoing eye difficulties and was examined by Dr. Rios, who followed up with a report dated October 1, 2004. It is believed that one MRI has been done and that another one is either scheduled or has been completed. The records also indicate that Dr. Rios ordered a CAT-Scan to be performed on October 1, 2004. Dr. Szuhay, a neurologist, is also providing care regarding this issue.

[1187]*1187The Division testified it is investigating whether Drew’s eye problem is congenital in nature or a result of shaken baby syndrome. Although Drew has been in care since September 2004, as of this hearing, no determination has been made as to the cause of Drew’s eye problem. In addition to the eye problem, the Division has some concern that Drew may have excess fluid on the brain. Again, no determination has been made as to this concern as of this date.

The Division was unable to supply information on what dates various appointments were scheduled or took place for Drew’s care. Due to the incompleteness of the record with regard to Drew, this matter has been continued until Tuesday, April 5, 2005, at 11:30 a.m., when this review will continue.2

REASONABLE EFFORTS

The Division was unable to provide complete information regarding Drew’s care and needs at this hearing. Aside from the Division worker being absent due to illness, the Division contends that the evidence regarding the care and particularized needs of Drew is not a part of the Court’s consideration in determining if the Division has used reasonable efforts in this case.

The Division contends that reasonable efforts findings are required from the Court only as to whether the Division exercised reasonable efforts to prevent having to remove a child from his home3 and whether the Division has used reasonable efforts toward permanency for the child.4 In short, the Division takes the position that, while it may provide the Court information from time to time as to the welfare of a child in its care, the Division is not required to do so for reasonable efforts purposes. The Division contends that its obligation to use reasonable efforts applies only to the parents.

For the reasons set forth below, the Division’s position is found to be without merit. The safety and quality of care of a child in the Division’s care is the paramount consideration in the Court’s finding of reasonable efforts.

ADOPTION AND SAFE FAMILIES ACT (“ASFA”)

With the adoption of ASFA in November 1997, “[S]afety [became] the paramount concern that must guide all welfare services.”5 This Court had believed that this principle was so ingrained in our statutory and case law that this debate had ended long ago.

CASE PLAN

Once a child is determined to be dependent in his parents’ care, the case plan becomes the road map for the return of the child to the parents’ care. Forty-two U.S.C. § 675(1) defines a ease plan as a written document which includes at least the following:

(A) A description of the type of home or institution in which a child is to be [1188]*1188placed, including a discussion of the safety and appropriateness of the placement and how the agency which is responsible for the child plans to carry out the voluntary placement agreement entered into or judicial determination made with respect to the child in accordance with section 672(a)(1) of this title,
(B) A plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents’ home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan.
(C) To the extent available and accessible, the health and education records of the child, including—
(i) the names and addresses of the child’s health and educational providers;
(ii) the child’s grade level performance;
(iii) the child’s school record;
(iv) assurances that the child’s placement in foster care takes into account proximity to the school in which the child is enrolled at the time of placement;
(v) a record of the child’s immunizations;
(vi) the child’s known medical problems;
(vii) the child’s medications; and
(viii) any other relevant health and education information concerning the child determined to be appropriate by the State agency.
(D)Where appropriate, for a child age 16 or over, a written description of the programs and services which will help such child prepare for the transition from foster care to independent living.
Forty-two U.S.C. § 672(a)(1), as referenced in § 675(1)(A), requires the Court to make certain findings before the Division can receive federal funding. The statute reads in pertinent part:
(1) the removal from the home ... was the result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child and ... that reasonable efforts of the type described in section 671(a)(15) of this title for a child have been made;
(2) such child’s placement and care are the responsibility of (A) the State agency administering the State plan approved under section 671 of this title.
Forty-two U.S.C. § 671(a)(15), as referenced in § 672(a)(1), states:
(A) in determining reasonable efforts to be made with respect to a child, as described in this paragraph, and in making such reasonable efforts, the child’s health and safety shall be the paramount concern;
(B) except as provided in subparagraph (D), reasonable efforts shall be made to preserve and reunify families—

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Related

Brown v. Division of Family Services
803 A.2d 948 (Supreme Court of Delaware, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
922 A.2d 1185, 2005 WL 5420088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/division-of-family-services-v-miller-delfamct-2005.