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

• Court: Supreme Court of Delaware
• Decided: December 5, 2023
• Docket: 152, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KENDRA ALICE FORD,1 § § No. 152, 2023 Respondent Below, § Appellant, § Court Below—Family Court § of the State of Delaware v. § § File Nos. 22-07-1TK DEPARTMENT OF SERVICES § 22-07-2TK FOR CHILDREN, YOUTH AND § THEIR FAMILIES, § § Petition Nos. 22-14842 Petitioner Below, § 22-23740 Appellee. § 22-14902 §

Submitted: September 20, 2023 Decided: December 5, 2023

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

ORDER

After consideration of counsel’s non-merit brief filed under Supreme Court

Rule 26.1(c), her motion to withdraw, the appellee’s response, the Children’s

Attorney’s response, and the record on appeal, it appears to the Court that:

(1) By order dated April 4, 2023, the Family Court terminated the parental

rights of the appellant, Kendra Alice Ford (“Mother”), in her five children—K.F. (a

boy, born in 2014), K.H. (a boy, born in 2015), K.M. (a girl, born in 2017), K.R. (a

1 The Court previously assigned a pseudonym to the appellant under Supreme Court Rule 7(d). girl, born in 2021) (together, the “Oldest Children”), and K.C. (a boy, born in 2022)

(together with the Oldest Children, the “Children”).2 Mother appeals.

(2) On appeal, Mother’s counsel has filed an opening brief and motion to

withdraw under Rule 26.1(c). Counsel asserts that she has conducted a conscientious

review of the record and the relevant law and has determined that Mother’s appeal

is wholly without merit. Counsel informed Mother of the provisions of Rule 26.1(c),

provided her with a copy of counsel’s motion to withdraw and the accompanying

brief, and advised her that she could submit in writing any additional points that she

wished for the Court to consider. Mother provided a statement for the Court’s

consideration, which counsel incorporated into her Rule 26.1(c) brief. The appellee,

the Department of Services for Children, Youth and Their Families (“DSCYF”), and

the Children’s Attorney have responded to counsel’s Rule 26.1(c) brief and argue

that the Family Court’s judgment should be affirmed.

(3) In 2019, DSCYF received a hotline call alleging that K.F., K.H., and

K.M. were suffering from neglect and emotional abuse. DSCYF opened a treatment

case because it had concerns about Mother’s substance abuse, Mother’s paramour’s3

mental health, and K.F.’s and K.H.’s unaddressed need for mental health services.

2 The Family Court’s order also terminated the parental rights of the Children’s fathers, who are not parties to this appeal. We refer only to facts in the record that relate to Mother’s appeal. 3 Although Mother’s paramour acted as a father figure to all five of Mother’s children and is the biological father of Mother’s youngest four children, he is not K.F.’s biological father. 2 In May 2021, a team-decision-making meeting was held and a safety plan was put

in place. Under the safety plan, Mother was to provide DSCYF with clean urine

screens, register K.F. and K.H. for school, seek mental health counseling for K.F.

and K.H., and obtain employment.

(4) On September 2, 2021, DSCYF filed an emergency petition for custody

of the Oldest Children after Mother failed to: register K.H. for school; enroll K.F.

and K.H. in counseling; and provide DSCYF with clean urine screens. With the

filing of DSCYF’s dependency and neglect petition, the mandated hearings ensued.4

At the preliminary protective and adjudicatory hearings, Mother stipulated that the

Oldest Children were dependent in her care based on her substance abuse. The

Family Court accepted Mother’s stipulation and found that it was in the Oldest

Children’s best interests to remain in DSCYF custody and that DSCYF had made

reasonable efforts to prevent the unreasonable unnecessary removal of the Oldest

Children from their home.

(5) In November 2021, the Family Court held a dispositional hearing to

review the case plan that DSCYF had developed to facilitate Mother’s reunification

with the Oldest Children. As of the dispositional hearing, Mother was participating

in a daily substance abuse treatment program but continued to use and test positive

4 When a child is removed from home by DSCYF and placed in foster care, the Family Court is required to hold hearings at regular intervals under procedures and criteria detailed by statute and the court’s rules. See 13 Del. C. § 2514; Del. Fam. Ct. Civ. Pro. Rs. 212-219. 3 for illicit substances. The case plan therefore prioritized Mother’s substance abuse

and required her to continue substance abuse treatment, provide DSCYF with

negative drug screens, sign a consent form to allow DSCYF to obtain information

regarding her treatment, and follow any recommendations for treatment made by her

counselor. Recognizing Mother’s struggles with disciplining K.F. and K.H., the case

plan also required Mother to complete parenting classes, engage with a family

interventionist, and obtain a mental health provider for K.F. and K.H. and participate

in sessions as recommended. Finally, the case plan required that Mother obtain

employment and provide DSCYF with income verification.

(6) As of the February 7, 2022 review hearing, Mother was participating in

a substance abuse treatment program but continued to submit urine screens positive

for drugs. Mother was employed but had not yet provided pay stubs to DSCYF.

Although Mother was enrolled in parenting classes and had regular appropriate

phone and video contact with the Oldest Children, she had not returned repeated

calls from her family interventionist. K.F. and K.H. were engaged in therapy and

their behavior was improving. The Oldest Children were otherwise doing well in

foster care. At the conclusion of the hearing, the Family Court found that it remained

in the best interests of the Oldest Children to remain in DSCYF custody.

(7) On April 11, 2022, DSCYF filed an emergency petition for custody of

K.C. because he tested positive for amphetamines at birth and Mother was not

4 complying with the hospital’s instructions regarding his care. The Family Court

granted the petition, and K.C. was placed in the same foster home as his siblings.

(8) Mother did not appear at the preliminary protective hearing held on

April 20, 2022. On May 10, 2022, the Family Court held a combined adjudicatory

and review hearing at which Mother stipulated that K.C. was dependent in her care

because of her substance abuse. The parties agreed that the same case plan that

DSCYF had developed to facilitate Mother’s reunification with the Oldest Children

would apply to its efforts to reunite Mother with K.C. Mother had tested positive

for methamphetamine on February 23, March 11, and April 11, 2022. As of the May

hearing, Mother was unemployed and had not completed parenting classes.

Although Mother was speaking regularly with the Children, she had not had an in-

person visit with them since February. Mother’s treatment worker testified that she

had a hard time communicating with Mother, who frequently changed her phone

number without notice. The Children were doing well in foster care, and the oldest

boys remained in therapy. Following the hearing, the Family Court found that it was

in the Children’s best interests that they remain in DSCYF custody and that DSCYF

was making reasonable efforts to reunify the Children with Mother.

(9) In July 2022, DSCYF filed a motion to change the permanency goal for

the Oldest Children from reunification to termination of parental rights for the

purpose of adoption and a motion to change the permanency goal for K.C. from

5 reunification to the concurrent goals of reunification and termination of parental

rights for the purpose of adoption. As of the July 25, 2022 review hearing, Mother

was very engaged in substance abuse treatment, had provided proof of employment

to DSCYF, was consistently visiting with the Children, and was living in a home

that DSCYF found appropriate. But Mother had tested positive for illegal substances

in June and had not completed parenting classes. The oldest three children were

having trouble regulating their emotions but were otherwise doing well in foster

care. The Family Court emphasized that Mother’s case plan required her to complete

a parenting program, engage with the Children’s mental health treatment, and

provide clean drug screens. Following the review hearing, the Family Court

scheduled a permanency hearing for November 7, 2022.

(10) On October 31, 2022, DSCYF filed a motion to change the permanency

goal for K.C. to termination of parental rights for the purpose of adoption. The

Family Court continued the November 7, 2022 termination of parental rights

(“TPR”) hearing so that DSCYF’s TPR petitions for the Children could be heard at

the same time.

(11) At the March 8, 2023 TPR hearing, the Family Court heard testimony

from Mother’s original treatment worker, Mother’s current treatment worker, the

Children’s permanency worker, Mother’s family interventionist, the Children’s

adoption and independent living worker, the foster mom to the youngest three

6 children, the Children’s court-appointed special advocate (“CASA”), and Mother.

The evidence presented fairly established that Mother had satisfied the employment

and parenting program components of her case plan. She had not, however,

completed the substance abuse component of her case plan. Mother had struggled

with substance abuse since the onset of DSCYF’s involvement with the family in

November 2019, but had refused suggested inpatient treatment. Despite attending

Narcotics’ Anonymous meetings, Mother produced positive screens through June

2022. Mother had refused to sign (multiple times) a consent to allow DSCYF access

to her more current substance abuse treatment records. Although Mother had

completed parenting classes—in October 2022, more than thirteen months after the

Oldest Children came into DSCYF’s care and one year after DSCYF made a

referral—DSCYF continued to have concerns about Mother’s ability to parent the

Children because she had not been involved in her older sons’ mental health

treatment and she engaged primarily with the younger children during visits.

Moreover, Mother had admitted to the Children’s CASA that she is an addict but

does not believe her substance abuse affects her ability to parent the Children.

(12) The evidence presented also showed that K.F. and K.H. continued to

struggle with their mental health and had to be removed to a different foster home

in September 2022 because they had been abusing their younger sister. Although

Mother followed up with the foster mothers about the Children’s various medical

7 appointments, she was not engaged with the medical providers. And Mother was

not receptive to parenting suggestions made by DSCYF workers. The oldest three

children had expressed a desire to live with Mother, but they also reported that they

felt safe and cared for in their respective foster homes. The CASA opined that,

despite the obvious love and affection the Children have for Mother, termination of

Mother’s rights in the Children would be in their best interests. Finally, the Family

Court heard from Mother, who testified that she loves the Children and that she

would do anything for them.

(13) On April 4, 2023, the Family Court issued a written order terminating

the parental rights of Mother in the Children. The Family Court first found that

DSCYF had proven by clear and convincing evidence that Mother failed to plan

adequately for the Children’s care under 13 Del. C. § 1103(a)(5) by failing to satisfy

the substance-abuse component of her case plan.

(14) When the statutory basis for termination is failure to plan, there must

be proof of at least one additional statutory factor.5 Here, the Family Court found

proof that K.F., K.H., K.M., and K.R. had been in DSCYF care for a period in excess

of one year and K.C., who came into care as an infant, had been in DSCYF care for

at least six months.6 Turning to the best-interests factors as defined by 13 Del. C. §

5 Id. § 1103(a)(5)(a)(1)-(5) (listing additional conditions). 6 Id. § 1103(a)(5)(a)(1). 8 722, the Family Court found that five factors favored termination (the Children’s

interactions with their parents and other significant people in their lives; the

Children’s adjustment to their home, school, and community; the parties’ mental and

physical health; Mother’s past and present compliance with her parental

responsibilities to the Children; and Mother’s criminal history), found that one factor

weighed against termination (Mother’s wishes), found one factor to be neutral (the

Children’s wishes), and gave no weight to the remaining factor (Mother’s history of

domestic violence). The court then found by clear and convincing evidence that

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

appeal followed.

(15) On appeal, this Court is required to consider the facts and the law as

well as the inferences and deductions made by the Family Court.7 We review legal

rulings de novo.8 We conduct a limited review of the factual findings of the trial

court to assure that they are sufficiently supported by the record and are not clearly

erroneous.9 If the trial judge has correctly applied the law, then our standard of

review is abuse of discretion.10 On issues of witness credibility, we will not

substitute our judgment for that of the trier of fact.11

7 Wilson v. Div. of Family Servs., 988 A.2d 435, 439-40 (Del. 2010). 8 Id. at 440. 9 Id. 10 Id. 11 Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979). 9 (16) The statutory framework under which the Family Court may terminate

parental rights requires two separate inquiries.12 First, the court must determine

whether the evidence presented meets one of the statutory grounds for termination.13

When the statutory basis for termination is failure to plan, the Family Court must

also find proof of at least one additional statutory condition14 and proof that DSCYF

made bona fide reasonable efforts to preserve the family unit.15 If the Family Court

finds a statutory basis for termination of parental rights, the court must determine

whether, under 13 Del. C. § 722, severing parental rights is in the best interests of

the child.16 Both of these requirements must be established by clear and convincing

evidence.17

(17) On appeal, Mother has submitted a statement for the Court’s

consideration. Mother disagrees with the Family Court’s finding that termination of

her parental rights is in the Children’s best interests and avers, among other things,

that she has “consistently provided clean screens.”18 The record belies Mother’s

claim of sobriety during the dependency and neglect proceedings in this case. As

noted above, a key component of Mother’s case plan was that she execute a written

12 Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000). 13 Id. at 537. 14 13 Del. C. § 1103(a)(5)(a)(1)-(5) (listing additional conditions). 15 In re Hanks, 553 A.2d 1171, 1179 (Del. 1989). 16 Shepherd, 752 A.2d at 536-37. 17 Powell v. Dep’t of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731 (Del. 2008). 18 Opening Br. at 12. 10 consent to allow DSCYF access to her medical records. In the months leading up to

the TPR hearing, Mother refused to do so. We note that Mother was given additional

time to complete her case plan successfully when the TPR hearing, initially

scheduled for November 2022, was rescheduled to March 2023. Although it is clear

from the record that Mother has a strong bond and a close relationship with the

Children, the record also supports the Family Court’s conclusion that her ongoing

substance abuse has negatively affected her ability to parent them safely and that

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

(18) Having carefully reviewed the parties’ positions and the record on

appeal, we find that the Family Court’s factual findings are supported by the record,

and we discern no error in the court’s application of the law to the facts. We

therefore conclude that Mother’s appeal is wholly without merit and devoid of any

arguably appealable issue. And we are satisfied that Mother’s counsel made a

conscientious effort to examine the record and the law and properly determined that

Mother could not raise a meritorious claim in this appeal.

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

Court is AFFIRMED. Counsel’s motion to withdraw is moot.

BY THE COURT:

/s/ N. Christopher Griffiths Justice