IN THE SUPREME COURT OF THE STATE OF DELAWARE
GINA JACBOS,1 § § No. 420, 2018 Respondent Below, § Appellant, § Court Below: Family Court of the § State of Delaware v. § § File No. 18-03-5TK DIVISION OF FAMILY SERVICES, § Petition No. 18-06555 § Petitioner Below, § Appellee, § § and § § OFFICE OF THE CHILD § ADVOCATE, § § Appellee. §
Submitted: December 26, 2018 Decided: February 26, 2019
Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
(1) This is an appeal from the Family Court’s order of July 11, 2018,
terminating the parental rights of Gina Jacbos (“Mother”) in her three-year-old son,
Conrad.2 The parental rights of Conrad’s father were terminated in the same order
and are not at issue in this appeal.
1 The Court previously assigned a pseudonym to the appellant under Supreme Court Rule 7(d). 2 The Court has assigned a pseudonym to the child. Del. Sup. Ct. R. 7(d). (2) Mother’s counsel has filed a no-merit brief and a motion to withdraw
under Rule 26.1(c). Counsel asserts that she made a conscientious review of the
record and found no arguable claim to raise on appeal. Mother disagrees with her
counsel’s position and has supplemented the brief with a written submission for our
consideration. Counsel for the Division of Family Services and for Conrad’s court-
appointed special advocate have responded to the Rule 26.1(c) brief as supplemented
and have moved to affirm the Family Court’s judgment.
(3) On December 30, 2016, the Division of Family Services (“DFS”) was
granted temporary legal custody of Conrad on an emergency basis on the grounds
that Mother was unable to care for herself or Conrad due to untreated mental health
issues and that Conrad’s maternal grandmother (“Grandmother”)—with whom
Mother and Conrad resided—was unable to care for Conrad on her own. Conrad’s
father was incarcerated.
(4) With the filing of DFS’s dependency and neglect petition on January 2,
2017, the mandated hearings ensued.3 At each of the hearings, the Family Court
found that Conrad was a dependent child and that it was in his best interests to remain
in DFS’s care and custody. The court also found that DFS had made reasonable
efforts to reunify the family.
3 When a child is removed from home by DFS and placed in foster care, the Family Court is required to hold hearings at regular intervals under procedures and criteria detailed by statute and in the court’s rules. 13 Del. C. § 2514 (Supp. 2019); Del. Fam. Ct. Civ. R. 212–219. 2 (5) In August 2017, Mother entered into a case plan for reunification
identifying a number of problem areas that she needed to remediate to achieve
reunification with Conrad. Under the case plan, Mother was required to undergo a
competency evaluation, continue mental health counseling, become more
independent from Grandmother, comply with services recommended by the
Division of Developmental Disabilities, cooperate with a parent aide, keep
scheduled appointments with medical providers, take medications as prescribed, and
release health information to DFS.
(6) In November 2017, DFS filed a motion to change the permanency goal
from reunification to termination for purposes of adoption. Mother did not oppose
the change in goal, and the motion was granted in February 2018. In March 2018,
DFS filed a petition to terminate Mother’s and Conrad’s father’s parental rights. The
Family Court held an evidentiary hearing in June 2018.
(7) Mother did not attend the evidentiary hearing held on Monday, June 25,
2018. Mother’s counsel and others who attended the hearing reported that Mother
had been hospitalized over the weekend, but that she was released from the hospital
on Sunday and was aware of the hearing.
(8) The Family Court heard from several witnesses at the hearing,
including Patricia Kessell, the DFS treatment worker assisting Mother with
reunification; Stacy McDevitt, the DFS case worker responsible for arranging
3 visitation with Conrad; and Debra Rickers, Conrad’s court-appointed special
advocate.
(9) Ms. Kessell testified about the elements in the case plan and Mother’s
difficulties in satisfying all but two of those elements. Ms. Kessell testified that
Mother completed the competency evaluation and signed the release forms but did
not continue with mental health treatment, comply with services recommended by
the Division of Developmental Disabilities, and cooperate with the parent aide. Ms.
Kessell testified that Mother had been in and out of the hospital on a regular basis
but did not take her medications as prescribed.
(10) Ms. Kessell testified that an important element in the case plan was
Mother achieving a degree of independence from Grandmother because of the
“domestic violence and arguing between them,” 4 but that Mother had “refuse[d] to
leave her mother.”5 When asked if she had concerns about Grandmother’s ability to
care for Conrad, Ms. Kessell indicated that she did, testifying that “Grandmother
was diagnosed with posttraumatic stress disorder and bipolar disorder[,] . . . has a
significant cognitive impairment[, and does] not have the basic understanding of
child care or age appropriate expectations.”6
4 Hr’g Tr. at 11 (June 25, 2018). 5 Id. at 13. 6 Id. at 17. 4 (11) Ms. McDevitt testified that there had been no visitation between Mother
and Conrad since December 2017. Both Ms. McDevitt and Ms. Rickers testified
that Conrad was doing very well in his foster placement. Ms. McDevitt also testified
that Conrad’s foster home was a potential adoptive placement.
(12) At the conclusion of the hearing, the Family Court Judge advised the
parties that the court’s written decision would issue within thirty days, adding that
“there will be no mystery about it, the evidence is clear and convincing that both
mother and father have failed to meet the duties that they have as parents and have
failed to plan adequately for this child and for unification with the child.”7
(13) On appellate review of a termination of parental rights, we are required
to consider the facts and the law as well as the inferences and deductions made by
the Family Court.8 We review legal rulings de novo.9 If the Family Court has
correctly applied the law, our review is limited to abuse of discretion.10 We conduct
a limited review of the factual findings of the Family Court to assure that they are
sufficiently supported by the record and are not clearly wrong.11
7 Id. at 52. 8 Wilson v. Div. of Family Servs., 988 A.2d 435, 439–40 (Del. 2010). 9 Id. at 440. 10 Id. 11 Id. 5 (14) In Delaware, the termination of parental rights is based on a two-step
statutory analysis.12 First, the Family Court must determine whether there is a
statutory basis for termination under 13 Del. C. § 1103.13 If the Family Court finds
a statutory basis for termination, the court must determine, under 13 Del. C. § 772,
whether severing parental rights is in the best interests of the child.14 It is incumbent
on the petitioner—DFS in this case—to prove by clear and convincing evidence that
there is a statutory basis for termination and that the best-interests analysis favors
termination.15
(15) In its July 11, 2018 decision, the Family Court found that DFS had
proved by clear and convincing evidence that Mother was unable or had failed “to
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
GINA JACBOS,1 § § No. 420, 2018 Respondent Below, § Appellant, § Court Below: Family Court of the § State of Delaware v. § § File No. 18-03-5TK DIVISION OF FAMILY SERVICES, § Petition No. 18-06555 § Petitioner Below, § Appellee, § § and § § OFFICE OF THE CHILD § ADVOCATE, § § Appellee. §
Submitted: December 26, 2018 Decided: February 26, 2019
Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
(1) This is an appeal from the Family Court’s order of July 11, 2018,
terminating the parental rights of Gina Jacbos (“Mother”) in her three-year-old son,
Conrad.2 The parental rights of Conrad’s father were terminated in the same order
and are not at issue in this appeal.
1 The Court previously assigned a pseudonym to the appellant under Supreme Court Rule 7(d). 2 The Court has assigned a pseudonym to the child. Del. Sup. Ct. R. 7(d). (2) Mother’s counsel has filed a no-merit brief and a motion to withdraw
under Rule 26.1(c). Counsel asserts that she made a conscientious review of the
record and found no arguable claim to raise on appeal. Mother disagrees with her
counsel’s position and has supplemented the brief with a written submission for our
consideration. Counsel for the Division of Family Services and for Conrad’s court-
appointed special advocate have responded to the Rule 26.1(c) brief as supplemented
and have moved to affirm the Family Court’s judgment.
(3) On December 30, 2016, the Division of Family Services (“DFS”) was
granted temporary legal custody of Conrad on an emergency basis on the grounds
that Mother was unable to care for herself or Conrad due to untreated mental health
issues and that Conrad’s maternal grandmother (“Grandmother”)—with whom
Mother and Conrad resided—was unable to care for Conrad on her own. Conrad’s
father was incarcerated.
(4) With the filing of DFS’s dependency and neglect petition on January 2,
2017, the mandated hearings ensued.3 At each of the hearings, the Family Court
found that Conrad was a dependent child and that it was in his best interests to remain
in DFS’s care and custody. The court also found that DFS had made reasonable
efforts to reunify the family.
3 When a child is removed from home by DFS and placed in foster care, the Family Court is required to hold hearings at regular intervals under procedures and criteria detailed by statute and in the court’s rules. 13 Del. C. § 2514 (Supp. 2019); Del. Fam. Ct. Civ. R. 212–219. 2 (5) In August 2017, Mother entered into a case plan for reunification
identifying a number of problem areas that she needed to remediate to achieve
reunification with Conrad. Under the case plan, Mother was required to undergo a
competency evaluation, continue mental health counseling, become more
independent from Grandmother, comply with services recommended by the
Division of Developmental Disabilities, cooperate with a parent aide, keep
scheduled appointments with medical providers, take medications as prescribed, and
release health information to DFS.
(6) In November 2017, DFS filed a motion to change the permanency goal
from reunification to termination for purposes of adoption. Mother did not oppose
the change in goal, and the motion was granted in February 2018. In March 2018,
DFS filed a petition to terminate Mother’s and Conrad’s father’s parental rights. The
Family Court held an evidentiary hearing in June 2018.
(7) Mother did not attend the evidentiary hearing held on Monday, June 25,
2018. Mother’s counsel and others who attended the hearing reported that Mother
had been hospitalized over the weekend, but that she was released from the hospital
on Sunday and was aware of the hearing.
(8) The Family Court heard from several witnesses at the hearing,
including Patricia Kessell, the DFS treatment worker assisting Mother with
reunification; Stacy McDevitt, the DFS case worker responsible for arranging
3 visitation with Conrad; and Debra Rickers, Conrad’s court-appointed special
advocate.
(9) Ms. Kessell testified about the elements in the case plan and Mother’s
difficulties in satisfying all but two of those elements. Ms. Kessell testified that
Mother completed the competency evaluation and signed the release forms but did
not continue with mental health treatment, comply with services recommended by
the Division of Developmental Disabilities, and cooperate with the parent aide. Ms.
Kessell testified that Mother had been in and out of the hospital on a regular basis
but did not take her medications as prescribed.
(10) Ms. Kessell testified that an important element in the case plan was
Mother achieving a degree of independence from Grandmother because of the
“domestic violence and arguing between them,” 4 but that Mother had “refuse[d] to
leave her mother.”5 When asked if she had concerns about Grandmother’s ability to
care for Conrad, Ms. Kessell indicated that she did, testifying that “Grandmother
was diagnosed with posttraumatic stress disorder and bipolar disorder[,] . . . has a
significant cognitive impairment[, and does] not have the basic understanding of
child care or age appropriate expectations.”6
4 Hr’g Tr. at 11 (June 25, 2018). 5 Id. at 13. 6 Id. at 17. 4 (11) Ms. McDevitt testified that there had been no visitation between Mother
and Conrad since December 2017. Both Ms. McDevitt and Ms. Rickers testified
that Conrad was doing very well in his foster placement. Ms. McDevitt also testified
that Conrad’s foster home was a potential adoptive placement.
(12) At the conclusion of the hearing, the Family Court Judge advised the
parties that the court’s written decision would issue within thirty days, adding that
“there will be no mystery about it, the evidence is clear and convincing that both
mother and father have failed to meet the duties that they have as parents and have
failed to plan adequately for this child and for unification with the child.”7
(13) On appellate review of a termination of parental rights, we are required
to consider the facts and the law as well as the inferences and deductions made by
the Family Court.8 We review legal rulings de novo.9 If the Family Court has
correctly applied the law, our review is limited to abuse of discretion.10 We conduct
a limited review of the factual findings of the Family Court to assure that they are
sufficiently supported by the record and are not clearly wrong.11
7 Id. at 52. 8 Wilson v. Div. of Family Servs., 988 A.2d 435, 439–40 (Del. 2010). 9 Id. at 440. 10 Id. 11 Id. 5 (14) In Delaware, the termination of parental rights is based on a two-step
statutory analysis.12 First, the Family Court must determine whether there is a
statutory basis for termination under 13 Del. C. § 1103.13 If the Family Court finds
a statutory basis for termination, the court must determine, under 13 Del. C. § 772,
whether severing parental rights is in the best interests of the child.14 It is incumbent
on the petitioner—DFS in this case—to prove by clear and convincing evidence that
there is a statutory basis for termination and that the best-interests analysis favors
termination.15
(15) In its July 11, 2018 decision, the Family Court found that DFS had
proved by clear and convincing evidence that Mother was unable or had failed “to
plan adequately for [Conrad’s] physical needs or mental and emotional health and
development” under § 1103(a)(5).16 The Family Court found that “Mother’s failure
to plan is manifest in her lack of commitment and effort to address the various risk
factors her situation posed to [Conrad,] even after DFS showed her a way forward.”
The record supports this finding.
12 Shepherd v. Clemens, 752 A.2d 533, 536–37 (Del. 2000). 13 Id. 14 See 13 Del. C. § 722(a)(1)–(8) (listing factors to be considered when determining the best interests of the child). 15 Powell v. Dep’t of Servs. for Children, Youth & Their Families, 963 A.2d 724, 731 (Del. 2008). 16 13 Del. C. § 1103(a)(5). 6 (16) When the statutory basis for termination is failure to plan, there must
be proof of at least one additional statutory condition17 and proof that DFS made
bona fide reasonable efforts to preserve the family unit.18 In this case, the Family
Court found proof of more than one additional statutory condition, including that:
(i) Conrad had been in the custody of DFS for over one year; (ii) Mother was not
able to assume legal and physical custody of Conrad and to pay for his support; and
that (iii) failure to terminate Mother’s parental rights would cause Conrad continued
emotional stability or physical risk because there was little likelihood that Mother
can assume care of Conrad in the near future, and that delaying Conrad’s placement
in a permanent home would be detrimental to his well-being.19 The record supports
these findings.
(17) On the reasonableness of DFS’s efforts to reunite the family, the Family
Court found that DFS (i) developed a case plan with Mother that was “thorough,
comprehensive, and based upon her particular needs”; (ii) employed the services of
a family interventionist to address Mother’s parenting issues; and (iii) “facilitated
frequent interaction between Mother and [Conrad].” Having reviewed the record,
including the case plan signed by Mother, we agree with these findings as well as
17 Id. § 1103(a)(5)(a)(1)–(5) (listing additional conditions). 18 In re Hanks, 553 A.2d 1171, 1179 (Del. 1989). 19 § 1103(a)(5)(a)(1)–(5). 7 the Family Court’s finding that DFS engaged in reasonable efforts to reunify Mother
with Conrad.
(18) When considering the best-interests factors under 13 Del. C. § 772, the
Family Court found that all but one of the relevant factors favored the termination
of Mother’s parental rights. When conducting its best-interests analysis the court
carefully considered the factors and made factual findings that guided its decision
that the termination of Mother’s parental rights was in the best interests of Conrad.
(19) On appeal, Mother claims that she was not given the opportunity to
demonstrate that she and Grandmother together could raise Conrad. Mother’s claim
is not supported by the record. The Family Court found that Mother did not avail
herself of the assistance offered by DFS to address her parenting issues and that
Grandmother “was incompetent to care for [Conrad].” The record supports those
findings.
(20) Having carefully reviewed the parties’ positions and the record on
appeal, we can discern no abuse of discretion in the Family Court’s factual findings
and no error in the court’s application of the law to the facts when terminating
Mother’s parental rights. We therefore conclude that Mother’s appeal is wholly
without merit and devoid of any arguably appealable issue. 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.
8 NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Karen L. Valihura Justice