In the Interest of Walker

923 A.2d 824, 2006 WL 4515407
CourtDelaware Family Court
DecidedFebruary 28, 2006
DocketNo. CS91-03502
StatusPublished

This text of 923 A.2d 824 (In the Interest of Walker) 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
In the Interest of Walker, 923 A.2d 824, 2006 WL 4515407 (Del. Super. Ct. 2006).

Opinion

OPINION

MILLMAN, J.

At the conclusion of the Review Hearing held in this case on November 15, 2005, a disagreement arose among the parties as to the date Julie came into foster care. This issue is of significance because 42 USC 675(5)(C) requires that every child is entitled to a permanency hearing no later than 12 months after entering care.2

Based on the facts of this case, I find that Julie came into care on February 8, 2004, and she is now entitled to a permanency hearing pursuant to § 675(5)(C). I further find, under the facts of this case, that Julie did not have a trial home visit and, even assuming that she did have a trial home visit, such visit did not toll the requirement that a permanency hearing be held within 12 months after entering care.

Facts

On December 10, 2003, legal custody of Julie was granted to the Division of Family Services (“the Division”). On that date, the Division removed Julie from the home of John Walker (“father”) and placed her in the home of Meredith Murray (“grandmother”). At that time, and for some time prior to Julie’s placement in grandmother’s home, Darla Murray (“mother”) was residing in grandmother’s home as well.

Julie and mother continued to reside in grandmother’s home until mid-December 2004, when mother left the residence to five with her then paramour. Julie remained at her grandmother’s home until on or about May 17, 2005, when grandmother requested that the Division remove Julie. Since May 17, 2005, Julie has not resided in the home of a relative.

Date of Entry into Care

42 USC 675(5)(F) states “a child shall be considered to have entered foster care on the earlier of (i) the date of the first judicial finding that a child has been [826]*826subjected to child abuse or neglect, or (ii) the date that is 60 days after the date on which the child is removed from the home.” While § 675(5)(F) does not define foster care, federal regulations do. 45 C.F.R. § 1355.20(a) defines foster care to be:

24-hour substitute care of children placed away from their parents or guardians and for whom the State agency has placement and care responsibility. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities, child care institutions, and preadoptive homes. A child is in foster care in accordance with this definition regardless of whether the foster care facility is licensed and payments are made by the State or local agency for the care of the child, whether adoption subsidy payments are being made prior to the finalization of an adoption, or whether there is Federal matching of any payments that are made.

This case is somewhat unusual in the sense that this child was removed from the home of one parent and placed in a home where the other parent was residing. However, it is clear that Julie was not placed in the grandmother’s home because mother was residing there. It is undisputed that Julie was removed from father’s residence and placed in grandmother’s home because the Division believed grandmother could provide a stable and safe environment for Julie while mother and father, if they so chose, addressed their respective issues that prohibited Julie from being in either parent’s physical custody.

At both the Preliminary Protective Hearing on December 23, 2003, and the Adjudicatory Hearing on February 24, 2004, mother admitted Julie was dependent in her care based on her history of substance abuse and her lack of independent housing. Father admitted at the Preliminary Protective Hearing that Julie would be dependent in his care because of the pending criminal charges against the stepmother in which Julie was the alleged victim, and later at the Adjudicatory Hearing, based on the ground of parent/child conflict. Although mother was physically present at grandmother’s residence, where the Division placed Julie, I am satisfied Julie was away from her parents and in care as defined by federal regulation. The decision as to where Julie was to reside and the responsibility for her care rested solely with the Division. Based on the language of § 675(5)(F) and 45 C.F.R. 1355.20(a), I find that Julie first entered foster care on February 8, 2004, 60 days after removal from father’s home on December 10, 2003.3

Trial Home Visit

As the Division points out in its memorandum, the date on which Julie entered care is not seriously contested.4 Both the Division and mother argue that the placement of Julie at grandmother’s house, where mother also lived, was a trial home visit.5 The Division and mother further contend that this trial home visit tolls the clock on the requirement of § 675(5)(C) that Julie have a permanency hearing 12 months after coming into care. Based on the facts of this case, Julie did not have a trial home visit with her mother.

[827]*827While federal regulations do permit trial home visits, the regulations do not define this term.6 Federal regulations do state, “[a] trial home visit may not exceed six months in duration unless a Court orders a longer trial home visit ...”7 Moreover, “[a] trial home visit is intended to be a short-term option in preparation for returning the child home permanently.”8

This Court held in its May 24, 2005 order that Julie had entered foster care on May 17, 2005.9 At the time the Court entered this Order, it was under the mistaken belief that Julie’s placement at grandmother’s home, where mother resided, was a trial home placement under federal regulations. The Court misinterpreted the regulations and I now hold that my finding that Julie was on a trial home visit with her mother was wrong.

As previously stated, Julie, at the time of her removal from her father’s home, was placed in her grandmother’s home where mother happened to reside. Julie was not placed there because that was where mother lived. Both the Division and mother argue that a trial home visit for Julie with mother began on February 8, 2004, the day Julie came into care. At that time, however, there had been no finding that Julie was determined to be dependent in mother’s care nor had a case plan for mother been developed. To adopt the Division and mother’s position that trial home visits may commence before the adjudicatory hearing is held and a case plan developed, reduces both the hearing and the development of a case plan to insignificant acts. The adjudicatory hearing provides the forum to determine if a child is dependent, neglected or abused in his or her parent’s care. If the parent admits or is found to be unable to provide adequate care for his or her child or to have neglected or abused the child, the

[findings of facts describing the parent’s abuse or neglect [or inability to provide adequate care] comprise a critically important record of the actual [dependency] abuse or neglect. The findings should help define the terms of the agency case plan, set a baseline against which progress is measured during review hearings.... 10

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Related

Matter of Burns
519 A.2d 638 (Supreme Court of Delaware, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
923 A.2d 824, 2006 WL 4515407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-walker-delfamct-2006.