IN THE SUPREME COURT OF THE STATE OF DELAWARE
KAREN GIBSON, § § No. 604, 2016 Respondent Below, § Appellant, § Court Below: Family Court of § the State of Delaware v. § File No. CN15-03033 § Petition No. 16-13203 DEPARTMENT OF SERVICES FOR § File No. CN15-02126 CHILDREN AND THEIR FAMILIES § 16-09-07TN and MATTHEW BARNES, and § Petition Nos. 15-07560 MICHELLE BARNES, § 16-27360 § File No. CN15-02121 Petitioners Below, § 16-09-06TN Appellees. § Petition Nos. 15-07539 § 16-27619 §
Submitted: October 11, 2017 Decided: November 16, 2017
Before Valihura, Vaughn, and Traynor, Justices.
ORDER
On this 16th day of November 2017, upon consideration of the parties’ briefs
and the record on appeal, it appears that:
(1) Appellant, Karen Gibson1, appeals from a Family Court order granting
permanent guardianship of one of her children to the child’s paternal grandparents
and terminating her parental rights in two other children. She makes two claims on
appeal. She contends: (1) the Family Court erred in concluding by clear and
1 A pseudonym was assigned on appeal pursuant to Supr. Ct. R. 7(d). convincing evidence that the permanent guardianship and termination of her parental
rights was in the best interest of the children; and (2) the Family Court erred in
concluding by clear and convincing evidence that she failed to plan for the needs of
the children.
(2) Karen Gibson is the mother of Sandy G., born November 16, 2009, and
Ivy R. and Israel R. (“Twins”), born August 25, 2012.2 The children were removed
from their mother’s care on March 20, 2015, when the Department of Services for
Children, Youth and Their Families (“DSCYF”) filed for and received temporary
custody of all three children.
(3) DSCYF was contacted on March 18, 2015, regarding concerns of
medical neglect of the Twins and physical abuse of Sandy. A decision making
meeting was held the same day. The Twin’s physician, Deborah Consolini, M.D.,
expressed concerns about the medical wellbeing of the Twins. The Twins were
born premature with developmental complications causing them to spend the first
two years of their lives in a hospital setting. The Twins were discharged to Gibson’s
care in 2014 but Dr. Consolini found they were not attending scheduled medical
appointments and not making developmental progress. All three children resided
2 Unless otherwise indicated, all facts are taken from the Family Court’s opinion and order below, attached to Appellant’s Opening Brief as Exhibit 1.
2 with Gibson and Mr. R in a garage like structure on the maternal grandparent’s
property. Gibson agreed to a safety plan under which the children would move into
the maternal grandparent’s main home and Gibson would take the Twin’s to all
medical appointments.
(4) On March 19, 2015, a DSCYF worker met with Sandy at her daycare
regarding physical abuse allegations, and Sandy was taken to A.I. DuPont Hospital
to be examined. She presented with bruising to her forehead, arms and legs,
including a bruise to her inner right thigh resembling a belt buckle, which Sandy
indicated were inflicted by Mr. R. The following day DSCYF visited the maternal
grandparent’s home and found that Gibson had not moved the children into the main
home as required by her safety plan. DSCYF’s emergency custody petition was
filed and granted by the Family Court that day.
(5) On March 25, 2015, a Preliminary Protective Hearing was held.
Gibson was present but Mr. R was not. The Family Court heard evidence regarding
the medical neglect of the Twins and allegations of the physical abuse of Sandy by
Mr. R. The Family Court found probable cause existed that the children were
dependent and found it in their best interest to remain in DSCYF custody.
(6) On April 22, 2015, an Adjudicatory Hearing was held. Gibson was
present but Mr. R was not. His whereabouts were unknown but DSCYF suspected
3 he was living in Philadelphia. Gibson denied knowing his whereabouts or speaking
to him since the children entered DSCYF’s custody. Gibson stipulated to a finding
of dependency. In addition, Gibson entered into a case plan which included:
obtaining and maintaining stable housing and income; completing a parent education
course; completing mental health and substance abuse evaluations and any
recommended treatment; completing domestic violence and anger management
courses; attending the children’s medical appointments; and attending visitation with
(7) On May 19, 2015, a Dispositional Hearing was held. Gibson was
present but Mr. R was not. His location was not known and a warrant had been
issued for his arrest relating to Sandy’s abuse. Gibson stipulated to a finding of
dependency. Gibson’s DSCYF treatment worker testified that she provided Gibson
information on Section 8 housing options, contact information for domestic violence
counseling and anger management programs, and referred her to psychological and
substance abuse evaluations. On this date, the paternal grandparents filed a Petition
for Permanent Guardianship of Sandy.
(8) On September 24, 2015, a Review Hearing was held. Gibson and Mr.
R were present. Mr. R had been arrested in Philadelphia for second degree assault
of Sandy and endangering the welfare of a child. At the time of this hearing he was
4 incarcerated pending trial. Gibson was living at a home in Philadelphia with
relatives of Mr. R but she denied knowing his whereabouts before his arrest.
Gibson’s DSCYF treatment worker told the Family Court that Gibson had attended
a case planning meeting on July 15, 2015, but failed to attend the next scheduled
meeting on September 22, 2015. DSCYF presented evidence that Gibson was still
residing in Philadelphia. The Family Court found the children remained dependent
by a preponderance of the evidence.
(9) On November 30, 2015, a Second Review Hearing was held with only
Gibson present. Mr. R was still incarcerated. Gibson had returned to the maternal
grandparent’s home. She was living in the upstairs of their main house. Gibson
was to notify DSCYF when the children’s beds were moved to the main home.
DSCYF presented evidence that Gibson had cancelled a case planning meeting
scheduled on October 5, 2015, but she had attended an Individualized Education
Program meeting for the Twins. The Family Court found the children remained
dependent by a preponderance of the evidence.
(10) On December 21, 2015, Mr. R pled guilty to second degree assault of
Sandy and received a term of incarceration. A no-contact order was issued for
Sandy.
(11) On February 11, 2016, the DSCYF Permanency Planning Committee
5 met and recommended a goal change to Termination of Parental Rights (“TPR”) and
adoption for the Twins. As to Sandy, the Committee recommended a Permanent
Guardianship with the paternal grandparents.
(12) A Third Review Hearing was held on February 22, 2016. Gibson and
Mr. R were present along with the Barnes. Gibson’s DSCYF treatment worker
testified that she spoke with Gibson about the importance of the counseling and
treatment programs in her case plan. Gibson advised she planned to attend
domestic violence and anger management classes. The Family Court found the
children continued to be dependent by a preponderance of the evidence.
(13) Gibson’s DSCYF treatment worker conducted a home assessment of
the maternal grandparent’s main house in February 2016. DSCYF determined the
housing to be appropriate, but Gibson’s case plan still had not been completed.
DSCYF filed Motions to Change the Goal on May 3, 2016, to reflect the changes
agreed upon by the Planning Committee at its February 11, 2016, meeting. The
maternal grandmother subsequently filed a Petition for Guardianship of the Twins
and the paternal grandparents filed a Petition for Permanent Guardianship of Sandy.
(14) A Permanency Hearing was held May 16, 2016, at which Gibson and
Mr. R were present. The Court granted DSCYF’s Motions to Change as to the
Twins based on Gibson’s failure to complete her case plan and concerns about her
6 ability to protect the children from domestic violence. The Family Court took
notice of Gibson’s appropriate housing, her attendance at mental health
appointments, and her efforts to gain employment, and kept a concurrent goal of
reunification for all the children.
(15) The maternal grandmother’s Petition for Guardianship of the Twins
was denied on September 16, 2016. The Family Court heard argument on
DSCYF’s Petitions for TPR for the Twins and the paternal grandparents Permanent
Guardianship of Sandy on October 26, 2016 and November 2, 2016. The Family
Court found the paternal grandparents were eligible to serve as Sandy’s permanent
guardians and they established grounds for permanent guardianship by clear and
convincing evidence.3 Further, the Family Court found by clear and convincing
evidence that Gibson failed to plan for the children’s needs and that DSCYF made
reasonable efforts to reunite the family. The Family Court terminated Gibson’s
parental rights in the Twins based on her failure to plan and the children’s best
interests.4
(16) First, we agree on the record before us that the Family Court did not err
when granting the paternal grandparents’ Petition for Permanent Guardianship of
3 Sandy’s father consented to the paternal grandparents’ petition for permanent guardianship. 4 The Twins father, Mr. R, consented to termination of his parental rights.
7 Sandy. In granting a permanent guardianship request, a trial judge must find by
clear and convincing evidence that one of the statutory grounds for termination of
parental rights set forth in 13 Del. C. § 1103(a) has been met.5 The court then
decides whether permanent guardianship is in the best interest of the child.6 The
court must also find that adoption is not possible or appropriate and the proposed
guardian is suitable to serve as a guardian. 7 When reviewing whether evidence
justifying a termination of parental rights has been established, this Court conducts
a “review of the facts and law, as well as the inferences and deductions made by the
trial court.”8 “We will not disturb a trial judge’s factual findings unless they are
clearly erroneous and justice requires that they be overturned.”9 “Moreover, this
Court will not substitute its own opinion for the inferences and deductions made by
the Trial Judge where those inferences are supported by the record and are the
product of an orderly and logical deductive process.”10 Our review is limited to an
abuse of discretion when the trial judge has correctly applied the appropriate law.11
“To the extent that the issues on appeal implicate rulings of law, we conduct a de
5 13 Del. C. § 2353 (a)(1). 6 § 2353 (a)(3). 7 § 2353 (a)(2)–(5). 8 Powell v. Dep’t. of Servs. For Children, Youth and their Families, 963 A.2d 724, 730 (Del. 2008). 9 Arthur-Lawrence v. Div. of Family Servs., 2005 WL 2397523, at *5 (Del. Sept. 27, 2005). 10 Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983). 11 Powell, 963 A.2d at 731.
8 novo review.”12
(17) Here, the trial court granted the paternal grandparents’ Petition for
Permanent Guardianship of Sandy after conducting a thorough review and providing
an explanation of every statutory factor required under 13 Del. C. §2353. The trial
court found by clear and convincing evidence that Gibson had failed to meet the 13
Del. C. §1103(a) statutory ground requiring her to adequately plan for her children.
The trial court found the paternal grandparents’ preference for guardianship over
adoption in an effort to maintain their grandparent-grandchild relationship with
Sandy to be appropriate.
(18) The trial court conducted a section-by-section best interest analysis
under 13 Del. C. § 722, finding by clear and convincing evidence that permanent
guardianship was in Sandy’s best interest. Of the eight factors in the best interest
test, the court found factors 3, 4, 5, 6, 7, and 8, in favor of granting permanent
guardianship.
(19) The first factor is the wishes of the child’s parent as to the child’s
custody and residential arrangement. Here, Gibson wanted custody of Sandy and,
as such, this was the only factor the court found in her favor.
(20) The second factor is the wishes of the child as to custody and residential
12 Id. at 730-31.
9 arrangement. Here, Sandy was only six years old and no request was made for the
court to hear her wishes. The court found this factor did not apply.
(21) The third factor is the child’s interactions and relationships with the
parents, family, and anyone else living with the family unit. Here, evidence was
presented that Sandy was living with the paternal grandparents in a loving
relationship. Sandy was placed with the paternal grandparents shortly after March
2015 when she was removed from her mother’s care. DSCYF presented evidence
that Sandy was “strongly bonded” to the paternal grandparents and that during home
visits Sandy interacted with the grandparents as if they were her parents. Sandy has
a good relationship with the paternal grandparents’ adult daughter who frequently
visits, takes Sandy to McDonalds, or brings Sandy to visit her friend who has a
daughter the same age as Sandy.
(22) The trial court found Gibson sporadically visited Sandy. The paternal
grandparents stated Sandy would go months without asking about Gibson or seeing
her. Gibson testified Sandy would be excited to see her and DSCYF reported Sandy
would allow mother to physically interact with her. The paternal grandparents
testified Sandy’s behavior was defiant and disrespectful following visits with
Gibson. Sandy has seen the Twins during her visits with Gibson. Gibson has two
older children who had not visited with Sandy. The maternal grandparents have not
10 visited since Sandy entered DSCYF custody.
(23) The fourth factor is the child’s adjustment to home, school, and
community. Here, evidence was presented that Sandy initially was clingy, afraid
of the dark, and exhibited behavioral issues, all of which have been addressed during
Sandy’s and the paternal grandparents’ joint counseling sessions with Sandy’s
counselor. Sandy is the “teacher’s helper” at school and gets along with her
classmates. It was reported that she missed one day of school over the past year.
The paternal grandparents testified that Sandy likes to sing, dance, and do
gymnastics, and they encourage her to be an active participant in their church.
(24) The fifth factor is the mental and physical health of all individuals
involved. Here, when Sandy moved in with her paternal grandparents, she had
cavities and decaying teeth. The paternal grandparents had many of her baby-teeth
removed and Sandy now regularly sees a dentist. Sandy also has asthma which is
maintained through regular use of an inhaler. Under the paternal grandparents’
care, Sandy continued to see a counselor on a monthly basis, sometimes bi-weekly,
to address behavioral issues.
(25) The sixth factor is the past and present compliance by the parents with
their rights and responsibilities to their children. Here, Gibson has sporadically
visited Sandy. She has provided no financial support to the paternal grandparents.
11 Sandy remained in DSCYF custody “due to repeated findings of dependency by a
preponderance of the evidence.”
(26) The seventh factor is evidence of domestic violence. Here, Sandy
entered DSCYF’s custody with extensive bruising and a mark on her inner thigh
resembling a belt buckle. Gibson’s love interest, Mr. R, was charged with abusing
Sandy. Gibson maintained the injuries caused by Mr. R were an accident, and that
he only intended to scare Sandy. Further, the court heard testimony that Gibson
may have been maintaining an ongoing relationship with Mr. R. and that Gibson
allowed Sandy to have telephone contact with Mr. R. The paternal grandparents
admitted to occasionally spanking Sandy. The paternal grandfather admitted to a
probation before judgment sentence imposed eight years prior for offensive touching
and third degree assault after he slapped his adult-aged daughter. The paternal
grandfather also admitted an incident of domestic violence with his first wife over
twenty years ago.
(27) Finally, the eighth factor is the criminal history of any party or any
resident of the household. Here, the paternal grandfather has the offensive
touching, third degree assault charges, and additional motor vehicle infractions.
The paternal grandmother has no Delaware criminal history. Gibson was convicted
of shoplifting twice since the children entered DSCYF custody and has a 2012
12 conviction for third degree assault. At the time of the Family Court’s October 26,
2016, hearing Gibson had an active capias for failure to appear relating to pending
charges of theft under $1,500.
(28) After the best interest analysis under 13 Del. C. § 722, the court
examined the emotional, mental, physical, and financial suitability of the paternal
grandparents to serve as Sandy’s permanent guardian.13 Here, the court found the
paternal grandparents had no physical or mental health issues that would prevent
them from caring for Sandy. The couple received disability income and Social
Security income. They own their home and have a mortgage, although they were a
month behind on utility payments. They acknowledged the requirement to maintain
sufficient income in order to financially provide for Sandy. Sandy had been in the
paternal grandparents’ care for over a year at the time of the hearing and they
testified they are committed to assuming all rights and responsibilities for raising
Sandy until the age of majority.
(29) The Family Court granted the paternal grandparents’ Petition for
Guardianship of Sandy after thoroughly analyzing all statutory requirements of 13
Del. C. § 2353. The court found: Gibson eligible to have her parental rights in
Sandy terminated under one of the sections in 13 Del. C. § 1103(a); Permanent
13 13 Del. C. § 2353 (a)(4).
13 Guardianship was in Sandy’s best interest; and the paternal grandparents were
suitable to become Permanent Guardians. The record supports the Family Court’s
findings.
(30) Next, we agree on the record before us that the Family Court did not err
in terminating Gibson’s parental rights in the Twins. Under Delaware law, a trial
judge must conduct a two-step analysis when deciding whether or not to terminate
parental rights. 14 First, the judge must determine whether there is clear and
convincing evidence that one of the grounds for termination enumerated in 13 Del.
C. § 1103(a) has been met.15 If one of the enumerated grounds for termination has
been met, the trial judge next determines if there is clear and convincing evidence
that termination of parental rights is in the best interest of the child as defined under
13 Del. C. § 722.16 “[W]here termination of parental rights is sought primarily on
the ground that a parent has failed, or was unable, to plan adequately for a child’s
needs . . . the trial court is required to make appropriate findings of fact and
conclusions of law” regarding the State’s compliance with the Child Welfare Act of
198017 and 29 Del. C. §§ 9003.18
14 Powell v. Dep’t. of Servs. For Children, Youth and their Families, 963 A.2d 724, 731 (Del. 2008). 15 Id. 16 Id. 17 42 U.S.C. §§ 608, 620-28, 670-76 (1982). 18 Matter of Burns, 519 A.2d 638, 649 (Del. 1986).
14 (31) Here, the record supports the Family Court’s determination, by clear
and convincing evidence, that Gibson had failed to plan for the physical and mental
needs of Sandy and the Twins.19 All three children had been in DSCYF’s custody
for over one year and seven months at the time of the hearing.20 The court found
Gibson had failed to satisfy her case plan that was signed on April 2, 2015.
(32) The Family Court heard evidence about Gibson completing the housing
portion of her case plan but noted concern over her pattern of leaving the home in
favor of residing with Mr. R.
(33) Gibson remained unemployed and the court found she had not
demonstrated the ability to support the children financially. This was evident from
her struggles to support herself in light of her inability to pay the necessary $14 fee
to the Visitation Center to visit her children while in DSCYF care. Further, she
intended to rely upon Social Security income for the benefit of the Twins that was
unascertainable. Gibson obtained additional shoplifting convictions while the
children were in DSCYF care. The court noted Gibson had not been attending all
the children’s doctors’ appointments, specifically for the Twins who have special
medical needs. Gibson had gone periods of three months and two months without
19 13 Del. C. § 1103 (a)(5). 20 § 1103 (a)(5)1.
15 visiting the children since they entered the State’s care.
(34) The Family Court expressed concern over the domestic violence
elements of Gibson’s case plan. Based on evidence at the Permanency Hearing, the
Family Court determined Gibson did not demonstrate the ability to implement the
skills or knowledge she learned, if any, from her domestic violence and anger
management courses. Gibson refused to assign any blame to Mr. R for injuring
Sandy and continued to insist the buckle shaped bruise on her thigh was the result of
an accident. Gibson facilitated phone contact between Mr. R and Sandy in violation
of the no-contact order that was in place. Evidence was presented that Gibson was
carrying on a relationship with Mr. R. A DSCYF intern testified to seeing Gibson
and Mr. R together on a SEPTA train from Philadelphia to Wilmington just two
weeks prior to the Family Court’s Permanency Hearing. The court was troubled
that Gibson moved to Philadelphia while Mr. R was wanted for abusing Sandy
instead of remaining at the maternal grandparent’s home to work on reunification
with the children. The court found Gibson had not shown the ability to protect the
children from domestic violence and found she would likely expose them to Mr. R
if they were returned to her custody.
(35) In addition to finding that Gibson failed to plan for the children’s care,
the code requires clear and convincing evidence that one or more statutory
16 conditions be met.21 Here, the Family Court analyzed all five factors under 13 Del.
C. § 1103(a)(5)–even though only one factor is necessary to be found by clear and
convincing evidence–and found factors 1, 4, and 5 applied. Section 1103(a)(5)1
requires the children be in DSCYF custody for at least one year. Here, Gibson’s
children had been in the State’s custody for one year and seven months.
(36) After determining one of the statutory grounds of 13 Del. C. §1103(a)
has been met, the Family Court must determine if the TPR is in the child’s best
interest under 13 Del. C. § 722. The factors are the same as those in the analysis
regarding the paternal grandparents’ Petition for Permanent Guardianship of Sandy.
The court analyzed these factors as to the Twins and found factors 4, 5, 6, 7, and 8
supported granting the TPR.
(37) The first factor is the wishes of the child’s parent as to the child’s
custody and residential arrangement. Here, Gibson wanted custody of the Twins.
This was the only factor the court found in her favor. The court noted she did not
take the adequate steps to reunite with the children for the nearly two years they were
in DSCYF custody.
(38) The second factor is the wishes of the child as to custody and a
residential arrangement. Here, the Twins were only four years old and no request
21 Id.
17 was made for the court to hear their wishes. The court found this factor did not
apply.
(39) The third factor is the child’s interactions and relationships with the
parents, family, and anyone else living with the family unit. Here, the Twins
resided in a hospital for the first two years of their lives. After their discharge they
remained with Gibson for only eight months before DSCYF removed them from her
custody. The court found the Twins have spent more time in a hospital and State
custody during their lives than with Gibson. Gibson sporadically visited the Twins
during their time in DSCYF custody, sometimes going up to three months without
seeing them. The maternal grandparents and Gibson’s older son did not visit the
Twins while they were in foster care.
(40) The fourth factor is the child’s adjustment to home, school, and
community. Here, the court found Gibson failed to provide a suitable living
environment for the children. In DSCYF care, the Twins have been attending
daycare and have been making developmental progress.
(41) The fifth factor is the mental and physical health of all individuals
involved. Here, while in foster care, the Twins have received all necessary medical
treatment and have demonstrated strides in physical and occupational therapy.
They improved their language, motor skills, and are able to run and speak. One
18 Twin was on strict dietary guidelines when he entered DSCYF care but had since
been weaned off the requirements. DSCYF contended the Twins medical care is a
full-time job with significant commitments. Gibson had not been attending medical
appointments while the Twins were in DSCYF custody. She admitted to not
knowing their current medical needs.
(42) The sixth factor is the past and present compliance by the parents with
their rights and responsibilities to their children. Here, the Twins are in foster care
because of Gibson’s failure to provide care for them. Gibson failed to complete her
case plan, did not have employment, and had not been providing financial support
for the children.
(43) The seventh factor is evidence of domestic violence. Here, the Twins’
entered DSCYF custody partly because of the abuse of their sister by Mr. R.
(44) Finally, the eighth factor is the criminal history of any party or any
resident of the household. Here, Gibson was convicted of shoplifting twice since
the children entered DSCYF custody and has a 2012 conviction for third degree
assault. At the time of the Family Court’s October 26, 2016, hearing Gibson had
an active capias for failure to appear relating to pending charges of theft under
$1,500.
(45) Finally, after finding one of the statutory grounds for TPR exists and
19 determining TPR to be in the children’s best interest, the court must conclude
whether DSCYF made reasonable efforts to reunify Gibson with her children.
Here, the Family Court found DSCYF presented Gibson with a reasonable case plan
which addressed housing, finances, domestic violence, mental health, substance
abuse, parenting, legal issues, and visitation. Gibson failed to appear for DSCYF
case planning meetings and visitation with the children multiple times. DSCYF
representatives testified to often having problems reaching mother via email or
phone. Gibson failed to attend medical appointments after DSCYF gave her notice.
The Visitation Center deactivated Gibson’s case for her failure to appear for
visitation dates.
(46) The Family Court thoroughly analyzed each element of 13 Del. C.
§1103(a) and clear and convincing evidence was presented that TPR was in the best
interest of the Twins. The record supports the Family Court’s order.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr. Justice