Green v. Department of Services for Children, Youth and Their Families / Division of Family Service

• Court: Supreme Court of Delaware
• Decided: January 22, 2024
• Docket: 189, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOEL GREEN,1 § § No. 189, 2023 Respondent Below, § Appellant, § Court Below–Family Court § of the State of Delaware v. § § File Nos. 23-02-4TK DEPARTMENT OF SERVICES § FOR CHILDREN, YOUTH AND § Petition No. 23-03411 THEIR FAMILIES/DIVISION OF § FAMILY SERVICES, § § Petitioner Below, § Appellee.

Submitted: November 3, 2023 Decided: January 22, 2024

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, 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 The Court previously assigned a pseudonym to the appellant under Supreme Court Rule 7(d). (1) By order dated May 1, 2023, the Family Court terminated the parental

rights of the appellant, Joel Green (“Father”), in his two children—G.G. (a boy, born

in 2014) and A.G. (a girl, born in 2015) (together, the “Children”).2 Father appeals.

(2) On appeal, Father’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 Father’s appeal is

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

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

brief, and advised him that he could submit in writing any additional points that he

wished for the Court to consider. Father did not respond to counsel’s motion but

later submitted argument directly to the Court. The appellee, the Department of

Services for Children, Youth and Their Families/Division of Family Services

(“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 2020, DSCYF opened a treatment case for Father and the Children’s

mother (“Mother”) because of concerns about, among other things, their history of

domestic violence and their substance-abuse and mental-health issues. DSCYF

approved a safety plan under which the Children would live with Mother and their

2 The Family Court’s order also terminated the parental rights of the Children’s mother, who is not a party to this appeal. We refer only to facts in the record that relate to Father’s appeal.

2 maternal grandmother (“Maternal Grandmother”). At the time, Mother had a

protection-from-abuse order against Father and there was an active no-contact order

between Father and his father (“Paternal Grandfather”). After Maternal

Grandmother informed DSCYF that she could no longer care for the Children

because of her medical issues, Father, Mother, Maternal Grandmother, Paternal

Grandfather, and the Children’s maternal aunt convened for a team-decision-making

meeting on November 12, 2021. The parties agreed that the Children and Mother

would live with Paternal Grandfather and that Father would not have contact with

Paternal Grandfather. DSCYF explained that it would petition for custody of the

Children if the safety agreement was violated. On November 27, 2021, DSCYF

made an unannounced visit to Paternal Grandfather’s house and discovered Father

hiding in a bedroom closet. DSCYF thereafter successfully petitioned for custody

of the Children.

(4) With the filing of DSCYF’s dependency-and-neglect petition, the

mandated hearings followed.3 Father, who had eight outstanding capiases, failed to

appear at the preliminary protective hearing, and the Family Court found that the

Children were dependent in his care. The court also found that DSCYF had made

reasonable efforts to prevent the unnecessary removal of the Children from their

3 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. 13 Del. C. § 2514; Del. Fam. Ct. Civ. Pro. Rs. 212-219.

3 home, noting that Paternal Grandfather had failed to protect the Children from Father

and that Maternal Grandmother was no longer a placement option. At the

adjudicatory hearing, the Family Court found that the Children continued to be

dependent in Father’s care based on his outstanding legal issues. The Children were

adjusting to their foster home. Both G.G. and A.G were diagnosed with and

medicated for ADHD, and G.G. suffered from insomnia and gastrointestinal issues.

The Family Court found that DSCYF had made reasonable efforts to prevent the

unnecessary removal of the Children from their home.

(5) In February 2022, the Family Court held a dispositional hearing via

Zoom to review the case plan that DSCYF had developed to facilitate Father’s

reunification with the Children. Father’s case plan prioritized his mental-health and

substance-abuse issues and required him to (i) undergo a mental-health evaluation

and heed all follow-up recommendations; (ii) continue substance-abuse treatment,

provide DSCYF with random urine screens, and sign a consent form to allow

DSCYF to obtain information regarding his treatment; and (iii) undergo a domestic-

violence assessment and follow all recommended treatment. The plan also called

for Father to resolve his pending criminal charges and not acquire new ones, attend

parenting classes, work with a family interventionist, and maintain (and show proof

of) stable employment. Finally, because Father continued to live with Paternal

4 Grandfather in violation of the no-contact order, the case plan required Father to

locate safe and appropriate housing. The Family Court approved Father’s case plan.

(6) As of the May 4, 2022 review hearing, Father, who had been out of

state for the dispositional hearing, had returned to Delaware in April and had re-

engaged with DSCYF. He had been attending a substance-abuse treatment program

for approximately one week and had submitted two dirty urine screens. Because

Father had not been working with DSCYF until recently, he was still waiting on

referrals for a mental-health evaluation and a family interventionist. Father had

cleared his capiases and signed up for domestic violence classes. Father was no

longer living with Paternal Grandfather but was homeless. At the conclusion of the

hearing, the Family Court found that it was in the Children’s best interests for them

to remain in DSCYF custody.

(7) As of the June 28, 2022 six-month review hearing, Father had made

minimal progress on his case plan. Although Father had completed a mental-health

evaluation and signed up for domestic violence classes, he (i) had not spoken to his

caseworker in one month; (ii) claimed to be receiving unemployment benefits, but

had not provided proof to DSCYF; (iii) had not been compliant with his substance-

abuse treatment; and (iv) had not signed up for parenting classes. The Children were

doing well in foster care, although G.G. was struggling somewhat in school. A 504-

plan meeting had been scheduled for September. Although DSCYF had advised

5 Father of A.G.’s kindergarten graduation and offered to transport him to the

ceremony, Father did not attend. The Family Court found that it remained in the

Children’s best interests for them to remain in DSCYF custody.

(8) On October 19, 2022, the Family Court held a nine-month review

hearing. Father had undergone a psychological evaluation and had been diagnosed

with Opiate and Methamphetamine Substance Use Disorder by Dr. Patrick Zingaro.

Dr. Zingaro testified that Father’s diagnosis affects his ability to care for the

Children. Dr. Zingaro recommended that Father receive individual therapy and

undergo a psychiatric evaluation and an anger-management evaluation. Father

tested positive for methadone on August 11, 2022. After the treatment provider

decided to supervise Father’s urine screens, Father asked to be discharged from the

program. Father then angrily left the office and spun his tires in the parking lot. The

Children continued to do well in foster care. Maternal Grandmother testified that

the Children had witnessed a lot of domestic violence between Father and Mother.

She opined that the Children were safer with the foster family and that Paternal

Grandfather enables Father. The Family Court found that the Children were

dependent in Father’s care and that it was in their best interests for them to remain

in DSCYF custody.

(9) The Family Court held a permanency hearing over two days in

December 2022. As of the permanency hearing, Father had (i) revoked his consent

6 to share his substance-abuse treatment records with DSCYF, (ii) admitted to

submitting someone else’s urine instead of his own for testing, (iii) failed to follow

up with Dr. Zingaro’s treatment recommendations, (iv) cancelled several visits with

his family interventionist, (v) was only attending half of his scheduled visits with the

Children, (vi) was on probation for driving under the influence (“DUI”), (vii) had

not yet taken domestic violence classes, (viii) had not provided DSCYF with proof

of his income, and (ix) had not attended any of the Children’s medical appointments.

Because Father appeared to be under the influence of drugs or alcohol during the

second day of the permanency hearing, the Family Court ordered Father to submit

to a supervised drug test after the hearing. At the conclusion of the hearing, the

Family Court changed the permanency plan to the concurrent goals of reunification

and termination of parental rights for purposes of adoption.

(10) At the March 31, 2023 termination-of-parental-rights (“TPR”) hearing,

the Family Court heard testimony from Lieutenant Susan Kline, two family

interventionists, the Children’s foster care and adoption worker, Father’s treatment

worker, the treatment worker’s supervisor, the permanency worker’s supervisor,

Paternal Grandfather, Father, Mother, the Children’s foster mother, and the

Children’s court appointed special advocate. The evidence presented fairly

established that Father and Mother had a history of domestic violence, with the

police responding to several incidents at Paternal Grandfather’s home, including one

7 involving Father and Mother immediately after the permanency hearing on

December 27, 2022, and one involving Paternal Grandfather and Father in early

2023.

(11) Father’s treatment worker testified that although Father was initially

not engaged with DSCYF, he had attempted to complete elements of his case plan.

Three days before the TPR hearing, Father met with his treatment worker’s

supervisor, Amanda Niblet-Boggs. Father provided Niblet-Boggs with proof that he

had completed parenting classes as of January 4, 2023. Father also gave Niblet-

Boggs a letter from Dover Comprehensive Treatment Center (“Dover

Comprehensive”) stating that Father had enrolled in substance-abuse treatment in

February 2023 as well as proof of what he claimed were clean urine screens from

November 2022 through January 2023.4 Because Father had not signed a release

with Dover Comprehensive, however, DSCYF could not confirm that Father was, in

fact, enrolled in treatment there. Notably, Father had not submitted to a drug test as

ordered by the court following the permanency hearing. Nor had Father completed

domestic violence classes, complied with the conditions of the DUI first-offender

program, followed up with Dr. Zingaro’s treatment recommendations, or provided

tax verification of his self-employment. And Father had only recently moved out of

4 Two of the test results were odd: one was positive, but Father alleged (without proof) that it was a false positive; and one was negative for Suboxone, which Father had been prescribed and was presumably taking.

8 Paternal Grandfather’s home. Finally, the evidence established that the Children

were thriving in their foster home and had bonded with their foster parents, who are

adoptive resources.

(12) On May 1, 2023, the Family Court issued a written order terminating

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

DSCYF had proved by clear and convincing evidence that Father had failed to plan

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

the substance-abuse-treatment, mental-health-treatment, and domestic-violence

components of his case plan. 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 the Children had been in DSCYF care for a period in excess

of one year.6 Turning to the best-interests factors as defined by 13 Del. C. § 722,

the Family Court found that five factors favored termination of Father’s rights (the

Children’s interactions with their parents and other significant people in their lives;

the Children’s adjustment to their home, school, and community; Father’s past and

present compliance with his parental responsibilities to the Children; Father’s

domestic violence history; and Father’s criminal history). The court then found by

5 13 Del. C. § 1103(a)(5)(a)(1)-(5) (listing additional conditions). 6 Id. § 1103(a)(5)(a)(1).

9 clear and convincing evidence that termination of Father’s parental rights was in the

Children’s best interests. This appeal followed.

(13) 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 Family Court 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

(14) 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

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). 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).

10 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

(15) On appeal, Father argues: (i) the Family Court judge should have

recused herself because she attended Niblet-Boggs’ wedding; (ii) his treatment

worker was unprofessional; (iii) he satisfied the substance-abuse-treatment

component of his case plan because he provided DSCYF with clean drug screens

and did not test positive while he was in weekly counseling; (iv) he satisfied the

parenting-class component of his case plan; (v) he has video to prove that his visits

with the Children were productive; and (vi) he satisfied the housing component of

his case plan because Mother is not living at Paternal Grandfather’s home. Father’s

claims are unavailing.

(16) As a preliminary matter, to the extent that Father wants to supplement

the record with evidence not introduced below—specifically, that he has satisfied

the housing component of his case plan because Mother is no longer living at

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).

11 Paternal Grandfather’s house—he cannot.18 And Father’s arguments concerning the

parenting component of his case plan would not change the outcome here—the

Family Court found that Father had substantially completed this portion of his case

plan based on his completion of parenting classes and his active participation in his

visits with the Children. Next, we have carefully considered Father’s claim that he

satisfied the substance-abuse-treatment component of his case plan and conclude

that the record supports the Family Court’s conclusion that he did not. At a

minimum, Father does not allege that he ever submitted to a supervised drug

screen—even after he acknowledged submitting false samples for testing and being

court-ordered to do so.

(17) Turning to Father’s claim that his treatment worker was unprofessional

because she invited him to eat dinner with her on one occasion, the record reflects

that Father was advised of the procedure to follow if he sought the assignment of a

different treatment worker to his case. He did not seek reassignment. In any event,

Father does not maintain, and the record does not reflect, that this isolated incident

affected in any way DSCYF’s bona fide reasonable efforts to reunify Father with the

Children.

18 See Del. Elec. Coop., Inc. v. Duphily, 703 A.2d 1202, 1206 (Del. 1997) (“It is a basic tenet of appellate practice that an appellate court reviews only matters considered in the first instance by a trial court.”).

12 (18) Finally, there is no merit to Father’s argument that the Family Court

judge should have recused herself. The TPR transcript19 reflects that the Family

Court judge advised the parties that Niblet-Boggs was her husband’s godchild and

that she had presided over Niblet-Boggs’ wedding. The Family Court judge then

took a brief recess to give the parties time to discuss whether they thought her

relationship with Niblet-Boggs created a problem. Because the parties did not raise

any such objection, we review Father’s claim for plain error.20 We find no plain

error here. Indeed, to the extent that Father claims that the Family Court judge

unduly credited Niblet-Boggs’ testimony, we note that Niblet-Boggs’ testimony was

largely favorable to Father: she testified that Father had satisfied the parenting-class

component of his case plan and that he had re-engaged with substance-abuse

treatment in the weeks before the TPR hearing.

(19) 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 can discern no error in the court’s application of the law to the facts. We

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

arguably appealable issues. And we are satisfied that Father’s counsel made a

19 Niblet-Boggs did not testify at any of the earlier proceedings. 20 Del. Supr. Ct. R. 8.

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

Father could not raise a meritorious claim in this appeal.

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

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

BY THE COURT:

/s/ Karen L. Valihura Justice