Division of Family Services v. Paddington

822 A.2d 398, 2003 Del. Fam. Ct. LEXIS 2, 2003 WL 21184232
CourtDelaware Family Court
DecidedApril 23, 2003
DocketNo. CN02-08448
StatusPublished
Cited by1 cases

This text of 822 A.2d 398 (Division of Family Services v. Paddington) 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. Paddington, 822 A.2d 398, 2003 Del. Fam. Ct. LEXIS 2, 2003 WL 21184232 (Del. Super. Ct. 2003).

Opinion

CROWELL, Associate Judge.

DECISION AND ORDER ON MOTION FOR NO REASONABLE EFFORTS

This is the Court’s decision on the Motion For No Reasonable Efforts filed by the Division of Family Services (DFS) in regard to two pending dependency petitions filed by DFS against Juanita Pad-[399]*399dington (Mother) and Richard Mason (Father) related to their daughters, Theresa (d.o.b. 9/16/01) and Joyce (d.o.b. 12/1/02).1 A hearing on this motion was held on March 6, 2003, at which time this Court denied DFS’ motion on the alleged grounds that Mother’s parental rights in a sibling had been involuntarily terminated. The reasons for the decision were stated on the record and set forth in this Court’s decision and order dated March 11, 2003. On March 21, 2003, DFS and the Attorney Guardian ad Litem submitted memoranda in support of the motion on the basis that Mother had abandoned Theresa. On or about that same date, Mother filed a memorandum in opposition. All three parties filed answering memoranda on April 1, 2003.

Background Facts

Theresa came into the care of DFS on June 25, 2002, following a domestic incident between Mother and Father. Mother was charged with endangering the welfare of a child and Father was charged with assault against Mother. A no-contact order against Mother in regard to Theresa was entered as a condition of Mother’s bail. At the Adjudicatory Hearing on July 30, 2002, which both parents attended, the no-contact order still was in effect between Mother and Theresa, and Father was found to be unemployed, had no stable housing, and most importantly, had failed to contact DFS for one month in regard to Theresa. The Court found Theresa to be dependent at that time and she was placed in a Children’s Choice foster home.

A month and a half later, at the time of the Dispositional Hearing on September 11, 2002, which Mother attended but Father did not, the no-contact order between Mother and Theresa was still in effect although DFS was in support of modifying the “no-contact” order to “no unlawful contact,” in order to facilitate visitation between Mother and Theresa. The Court later heard testimony that, at the conclusion of the hearing on September 11, 2002, the DFS attorney, the DFS worker and the Attorney Guardian ad Litem together urged Mother to deal with an outstanding capias and to file a motion to modify the no-contact order. Mother apparently indicated that she wanted to go home instead and left the courtroom. She was stopped in front of the courthouse and persuaded to come back and turn herself in. A bail modification hearing was held before Commissioner Grillo who changed the “no-contact” order to a “no unlawful contact” order.

Mother was encouraged to contact the Children’s Choice social worker, Natalie Naccasha, to arrange visits with her daughter. A number of visits were scheduled but Mother never showed up. DFS did not hear again from Mother until December 10, 2002, nine days after little Joyce was born. Joyce was born positive to cocaine and came into the DFS’ care two days after her birth. On December 10, 2002, Mother called the DFS worker to request transportation to attend the Preliminary Protective Hearing in Family Court for Joyce and a Review Hearing for Theresa both scheduled for a consolidated hearing two days later on December 12, 2002. The DFS worker reportedly went to Mother’s home and left bus tickets for her to attend the hearing but she failed to show. On January 2, 2003, Mother called the DFS worker and a visit was arranged for January 6, 2003, but Mother again failed to show for the visit. Mother finally visited with Joyce on February 12, 2003, with Theresa on February 20, 2003, and again with Joyce on February 27, 2003.

The family who adopted Nadine (d.o.b. 4/3/90), Theresa’s and Joyce’s older half-[400]*400sister, is willing to adopt Theresa. Mother testified that she has been working at ShopRite for the last two weeks since February 26, 2003, twenty hours a week, but anticipated that her hours would increase. She was recently evaluated at Connections for substance abuse and has begun treatment, attending one group counseling session and one educational group meeting in the past few weeks.

Reasonable Efforts to Reunify

When a child is removed from his or her home by DFS and placed in foster

care, federal and state laws generally require that DFS make reasonable efforts to reunify the family. See 42 U.S.C.A. § 671(a)(15); 29 Del. C., Chapter 90; In the Matter of Derek W. Bums, 519 A.2d 638, 647-648 (Del.1986). Thirteen Del. C. § 1103(d)2 provides, however, that DFS is not required to make reasonable efforts to reunify a family if it is established, among other reasons, that a child has been abandoned pursuant to 13 Del. C. § 1103(a)(2)3 or that the parent’s parental rights in a sibling of the child in the dependency action had been involuntarily terminated in a [401]*401prior proceeding pursuant to § 1103(a)(6).4 As set forth in a decision dated March 11, 2003, this judge found that, while the parents’ parental rights may have been technically terminated on other or additional grounds, the evidence established that Mother believed she had voluntarily consented to the termination of her parental rights in regard to the children’s sibling, Nadine. Since Mother voluntarily gave up her rights in Theresa’s and Joyce’s sibling, this Court declined to find DFS was relieved of making reasonable efforts to reunify on the basis that the termination had not been voluntary.

In its written memoranda, DFS argued that it should not be required to make reasonable efforts to reunify Mother with Theresa on the basis that Mother had abandoned Theresa. Thirteen Del. C. § 1103(a)(2), which became effective on July 12, 2001, provides for two different situations when a child can be found to have been abandoned: (1) 13 Del. C. § 1103(a)(2)a. sets forth the factors to be established in situations when the Court finds the respondent intended to abandon the child, and (2) 13 Del. C. § 1103(a)(2)b. describes the necessary elements in the event the Court finds the parent had no intent to abandon the child. If the Court fails to find an intent to abandon, the necessary lack of interaction between the parent and the child to prove abandonment must have occurred over a period of at least twelve consecutive months during the eighteen months preceding the filing of the petition. DFS concedes that, since Theresa has only been in the custody of DFS since June 25, 2003, insufficient time has passed for the Court to make a finding of abandonment under 13 Del. C. § 1103(a)(2)b. Therefore, the only basis on which DFS can be successful with its motion is if it can establish that Theresa has been abandoned pursuant to 13 Del. C. [402]*402§ 1103(a)(2)a. requiring proof that Mother intended to abandon her.

Mother’s Intent to Abandon

DFS and the attorney guardian ad litem essentially argue that Mother’s lack of contact with Theresa and failure to comply with her treatment plan are sufficient, in and of themselves, for the Court to find that Mother intended to abandon Theresa.

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Bluebook (online)
822 A.2d 398, 2003 Del. Fam. Ct. LEXIS 2, 2003 WL 21184232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/division-of-family-services-v-paddington-delfamct-2003.