Watson v. Division of Family Services and Office of Child Advocate

• Court: Supreme Court of Delaware
• Decided: March 11, 2024
• Docket: 191, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KAREN WATSON1, § § Respondent Below, § No. 191, 2023 Appellant, § § Court Below: Family Court v. § of the State of Delaware § DIVISION OF FAMILY § File No. 21-08-04TS SERVICES and OFFICE OF § Petition No. 21-19335 CHILD ADVOCATE, § § Petitioners Below, § Appellees. §

Submitted: December 13, 2023 Decided: March 11, 2024

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

ORDER

After considering the parties’ briefs and the record on appeal, it appears to the

Court that:

(1) The appellant (“Mother”) is the parent of three minor children. Mother

filed this appeal from a Family Court order that terminated her parental rights as to

all three of her children. The court primarily based its decision on Mother’s failure

to make progress on a case plan established by the Division of Family Services (the

“Division”). On appeal, Mother contends that the court’s finding that she failed to

1 The Court previously assigned a pseudonym to the appellant under Supreme Court Rule 7(d). plan for her children’s safe return under 13 Del. C. § 1103(a)(5) was clearly wrong

for three reasons. First, she argues that her status as a domestic violence victim is

not sufficient evidence of her “failure to plan” for her children’s safe return. Second,

she contends that the court placed undue weight on the existence of telephone calls

between herself and her children’s father. Third, she asserts that her status as a

domestic violence victim bears no correlation to her parental fitness. None of

Mother’s arguments support reversal and we therefore affirm the Family Court’s

order.

FACTUAL AND PROCEDURAL BACKGROUND

(2) Steven Schorb (“Father”) is the father of Mother’s three minor children.

Both Mother and Father have histories of substance abuse, unstable housing, and

erratic employment. Father has an extensive history of committing domestic

violence against Mother in the children’s presence.

(3) Florida child welfare authorities had custody of Mother and Father’s

children from November 2014 until June 2018. When the family arrived in

Delaware in 2019, an existing Florida protective order prohibited Father from

contacting Mother and the children. Beginning in May 2019, Father was arrested

multiple times for violating no-contact orders issued in Florida and Delaware.

(4) The Division first took custody of Mother’s children in September

2019. Because of Father’s domestic-violence-related charges involving Mother as

2 the victim, Mother and Father’s case plans focused on domestic violence.

Throughout all the proceedings, Father failed to complete any of his case plans, and

the Family Court eventually terminated his parental rights.

(5) Mother’s case plans required her to cease contact with Father. In

violation of her case plan, Mother initially maintained contact with Father, actively

sought to modify the protective orders, and expressed her wish to reunite with the

children and Father “as a family.” As time went on, however, Mother progressed

through her case plan and “appeared to end her relationship with Father.” At this

point, all parties agreed that reunification should remain the permanency goal. In

late 2020, after Division workers saw Father at Mother’s residence, the court warned

Mother that reunification would not occur if Father continued to be involved with

the family.

(6) In March 2021, Mother presented evidence that she had re-engaged

with her domestic violence counselor, maintained her housing and employment, and

expanded visits with her three children to unsupervised overnight stays in her home.

Mother and her children began a trial home placement in March 2021.

(7) On May 17, 2021, the Family Court returned sole custody of the three

children to Mother. But only two days later, during a routine traffic stop, police

encountered Mother and Father together in Mother’s vehicle. Although Mother later

reported that she was driving Father to the police station, that explanation was not

3 consistent with the record. Later that night, after the traffic stop, Father forcibly

entered Mother’s residence armed with several weapons. There, Father assaulted

Mother, causing bruising and swelling in her cheeks, jaws, eyes, and lips. Before

absconding, Father stole Mother’s car keys and cell phones. When police arrived,

Mother denied anyone else was present in her home. The responding officers then

conducted a protective sweep and found all three children in the bedroom.

(8) Following this incident, the Division reassumed custody of the

children. The next morning, Mother’s eldest child told Division workers that Father

recently had resumed staying overnight at Mother’s residence. On June 16, 2021,

law enforcement apprehended Father at Mother’s residence where he was hidden in

a bedroom closet and armed with a knife.

(9) On July 22, 2021, the Division filed a motion to be relieved of

reunification services. On August 17, 2021, Mother filed a motion seeking to regain

full custody of the three children. On August 19, 2021, the Division filed a petition

to terminate Mother’s parental rights based on her “failure to plan adequately for the

children’s physical needs or mental and emotional health and development.” The

first permanency hearing was held over two days on November 29, 2021, and

February 7, 2022.

(10) Dr. Angela Hattery (“Dr. Hattery”) testified that the children could

safely be returned to Mother’s care because it was Father, not Mother, whose

4 violence posed a risk to the children. In Dr. Hattery’s view, Mother consistently

protected the children from violence, and they were never physically harmed while

in her care. Concerning Father’s break-in and assault, Dr. Hattery testified that

Mother acted in a “protective capacity” because she called 9-1-1. Dr. Hattery did

not interview the children because, in her opinion, doing so was “not germane to her

expertise.” Dr. Hattery testified that regardless of whether the children had been

exposed to domestic violence, it remained her opinion that Mother could safely

resume custody and care of the children.

(11) Dr. Katherine Elder (“Dr. Elder”) testified as an expert regarding the

effects of the children’s continued exposure to domestic violence. Dr. Elder

interviewed Mother, who insisted that the children were not present for—and never

witnessed—any domestic violence incidents. Dr. Elder, however, interviewed all

three children and testified that each child had been exposed to significant domestic

violence. One child detailed a time that he witnessed Father choking Mother. When

the child tried to call 9-1-1, Mother alerted Father, who caught the child and threw

him down on the bed. The middle child stated that she had witnessed Father hurting

Mother during arguments. Dr. Elder opined that Mother “minimized the impact” of

domestic violence on her children and failed to acknowledge her role in the

children’s exposure to violence. And, in addition to continuing her own relationship

with Father, Mother acquiesced in her eldest child and Father having extensive

5 phone contact while the no-contact orders were in place. Dr. Elder acknowledged

that it is Father who is violent but pointed out that Mother repeatedly exposed the

children to Father despite his violence.

(12) Dr. Elder further testified that children who are exposed to domestic

violence are statistically more likely to become perpetrators themselves. She

believed that Mother’s three children had been “gravely impacted” by their

upbringing. Two of Mother’s children were diagnosed with PTSD and experienced

significant anxiety. Upon entering foster care, Mother’s eldest child started fights at

school and expressed his desire to hurt Father. After some time in foster care,

however, the eldest child made honor roll, engaged in enrichment activities, and

established a strong bond with his two sisters. Regular counseling sessions appeared

to help the children, and Dr. Elder emphasized that continuing to live in a safe,

structured, and stable environment would help them cope with their negative

childhood experiences. In October 2022, the children’s foster parents submitted a

letter of intent expressing their desire to adopt all three children.

(13) After the first permanency hearing, the court was not convinced that

terminating Mother’s parental rights was in the children’s best interests. The court

ordered the Division to engage in reunification planning with Mother and to make

domestic violence the central element of her case plan. On May 16, 2022, the court

imposed an updated case plan that required Mother to: (i) work with a family

6 interventionist; (ii) maintain employment and provide proof of income; (iii) obtain

and maintain stable housing appropriate for her and the children; (iv) attend the

children’s health and educational appointments; (v) participate in mental health

counseling as a victim of domestic violence; and (vi) have no contact with Father

and ensure that there was no contact between Father and the children. Mother was

required to immediately report any efforts by Father to contact her or the children.

(14) In July 2022, the children’s guardian ad litem provided to the court

recordings of phone calls between Mother and Father while Father was incarcerated.

The 244 recordings spanned from August 2021, after Father’s arrest and the

imposition of a no-contact order, through April 2022, just two months before

Father’s release from incarceration. During that time period, while the Family Court

conducted the first permanency hearing and directed the Division to re-engage in

providing reunification services with Mother, Mother and Father secretly

communicated without informing the Family Court. After listening to the recorded

calls, the court stated that it would have ruled differently after the first permanency

hearing had it known the nature and extent of Mother and Father’s ongoing

communications.

(15) Specifically, those recordings revealed Mother and Father’s

determination to maintain contact despite court orders and Mother’s case-plan

requirements. To circumvent the no-contact orders from prison, Father would call

7 his own father, who then would call Mother. Both Mother and Father used aliases

and warned each other not to reveal any identifying information on the calls. Mother

and Father consistently expressed their love for each other, lamented being apart,

and talked about reunification. Mother put money in Father’s prison account so that

he could continue calling her. She later testified that after a 21-year relationship with

Father, she “felt the need to help” him.

(16) Regarding the May 20, 2021 break-in and assault, Father repeatedly

demanded that Mother contact the prosecutor to retract her statement and request

that the no-contact order be rescinded. Mother admitted that she did retract some of

her statements. On the recordings, however, Mother advised Father to accept a plea

because she would “have all the other stuff said and done” by the time he was

released from incarceration. Throughout the calls, Father threatened to harm

Mother, cursed at her, accused her of infidelity, and blamed her for his incarceration.

Mother told Father that she was dating another man only to prove to the court that

she had moved on, but promised to leave him as soon as Father got out of prison. In

addition, dozens of phone calls revealed Mother’s continued illicit drug use. Just

twelve days before the first permanency hearing, Mother and Father coordinated

stories to blame their eldest child for Mother and Father’s contact during the trial

home placement.

8 (17) Mother did not disclose her ongoing contact with Father until the prison

phone calls were revealed in court. During the second permanency hearing, Mother

testified that she last had contact with Father about one month earlier. But on cross-

examination, Mother admitted to speaking with Father that morning.

(18) Mother’s family interventionist testified that throughout these

proceedings, Mother’s housing was “inconsistent” and her employment status

frequently changed. At no point did Mother accept her family interventionists’ offers

to assist her with budgeting and housing services. A supervisor at Mother’s

transitional housing facility testified that Mother was removed from that housing

after a security camera captured her bringing Father into her townhome on three

separate occasions in August 2022.

(19) Because Mother failed to sever ties with Father and was unable to

maintain appropriate housing for her and the children, the Family Court found that

Mother failed to satisfy her case plan and a statutory basis for termination of her

parental rights therefore existed under 13 Del. C. § 1103(a)(5). On May 11, 2023,

the Family Court terminated Mother’s parental rights.

ANALYSIS

(20) “When reviewing the decision of the Family Court to terminate parental

rights, this Court conducts a ‘review of the facts and law, as well as the inferences

9 and deductions made by the trial court.’”2 Legal conclusions are reviewed de novo.3

Factual findings are reviewed to ensure that they are supported by the record and are

not “clearly wrong.”4 “If the Family Court has correctly applied the law, our review

is limited to abuse of discretion.”5

(21) Mother argues that the court’s finding that she failed to plan for her

children’s safe return was clearly wrong because: (i) her status as a domestic violence

victim is not sufficient evidence of her “failure to plan” under 13 Del. C. §

1103(a)(5); (ii) the court placed undue weight on the prison call recordings; and (iii)

her status as a domestic violence victim bears no correlation to her parental fitness.

A. The trial court did not abuse its discretion by finding that Mother failed to plan for her children’s safe return under 13 Del. C. § 1103(a)(5).

(22) Under Delaware law, a trial judge must conduct a two-step analysis

when deciding whether or not to terminate parental rights.6 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.7 If one of the

2 Brock v. Dep’t of Servs. for Child., Youth, & Their Families, 272 A.3d 781, 787 (Del. 2022) (quoting Powell v. Dep’t. of Servs. for Children, Youth & Their Families, 963 A.2d 724, 730 (Del. 2008)). 3 George v. Dep’t of Servs. for Child., Youth & Their Families, 150 A.3d 768, 2016 WL 6302525, at *4 (Del. Oct. 27, 2016) (TABLE). 4 Bower v. Dep’t of Servs. for Child., Youth & Their Families, 142 A.3d 505, 2016 WL 3382353, at *4 (Del. June 9, 2016) (TABLE). 5 Bower, 2016 WL 3382353, at *4. 6 Powell, 963 A.2d at 731. 7 Id. 10 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

child’s best interest as defined under 13 Del. C. § 722.8 “[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 19809 and 29 Del. C. §§ 9003.10 If a parent

fails to fulfill even one case plan requirement, 13 Del. C. § 1103(a)(5) is satisfied

and a statutory basis for termination may be found even where a parent otherwise

has completed the plan.11

(23) Mother argues that Father’s violence toward her is not evidence of her

own failure to plan under 13 Del. C. § 1103(a)(5). The Family Court, however,

found a statutory basis for termination under 13 Del. C. § 1103(a)(5) based on

Mother’s failure to satisfy elements of her case plan, not on her status as a domestic

violence victim.12 The Family Court held that despite numerous opportunities over

the course of four years, Mother had not fulfilled the requirements of her case plan

8 Id. In this case, the Family Court ruled that terminating Mother’s parental rights was in the children’s best interests. Termination of Parental Rights Order (“TPR Order”) at 44. Mother does not contest that finding on appeal. 9 42 U.S.C. §§ 608, 620-28, 670–76 (1982). 10 Matter of Burns, 519 A.2d 638, 649 (Del. 1986). 11 Griffin v. Dep’t of Servs. for Child., Youth & Their Families, 296 A.3d 882, 2023 WL 3046056 at *2 (Del. Apr. 21, 2023) (TABLE). 12 TPR Order at 23–24. 11 because she refused to sever her relationship with Father and could not maintain

stable housing.13 That holding was not novel; this Court has previously considered

a parent’s inability to sever an abusive domestic relationship as evidence of a parent’s

failure to plan.14

(24) The Family Court’s decision detailed Mother’s history of repeatedly

failing to complete the elements of her case plan. Contrary to her case plan, Mother

maintained contact with Father, despite repeated warnings that doing so would

prevent reunification with her children. She renewed contact with him in violation

of court orders and despite his incarceration. This was not an instance in which

Father violated the no-contact order despite Mother’s efforts to keep herself and the

children away from him.

(25) Mother is not at fault for Father’s violent and criminal conduct toward

her. But the Family Court correctly held that Mother’s repeated failure to sever ties

with Father in contravention of her case plan constituted evidence that she failed to

plan for her children’s “physical needs or mental and emotional development.”15

The Family Court received testimony that repeated exposure to domestic violence

presented a dangerous risk to the children’s overall health and well-being. The court

did not find a statutory basis for termination of Mother’s parental rights under 13

13 Id. at 24. 14 See Murray v. Div. of Fam. Servs., 85 A.3d 88, 2014 WL 643760 (Del. Feb. 7, 2014) (TABLE). 15 13 Del. C. § 1103(a)(5). 12 Del. C. § 1103(a)(5) because she was assaulted. Rather, it relied on evidence of

Mother’s repeated failure to complete elements of her case plan.

B. The trial court properly weighed the evidence, including the recordings of phone calls between Mother and Father.

(26) Mother argues that the trial court “grossly over-exaggerated” how the

prison phone calls reflected on her parental fitness. Mother points to the Family

Court’s statement that it “would likely have reached a different decision at the last

permanency hearing” had it been aware of Mother and Father’s continued contact as

evidence that the recordings were the “but for” cause of the “absurd result” reached

by the trial court. This argument diminishes these phone calls’ substance, ignores

Mother’s repeated violation of the court’s no-contact orders, and fails to recognize

the other evidence on which the court relied in deciding to terminate Mother’s

parental rights.

(27) First, the phone calls demonstrated Mother’s continued willingness to

defy and circumvent the no-contact orders and reflected negatively on her credibility.

Mother and Father utilized third parties to facilitate their communications, used

aliases while speaking to each other, and devised other ways to mislead the court.

The recordings further revealed Mother’s repeated dishonesty with the court, the

Division, and her domestic violence counselors. Second, the recordings showed that

Mother had no intention of complying with her case plan requirement to sever ties

with Father. She expressed to Father that she would always love him, could not wait 13 to be with him, and was dating another man temporarily to convince the court that

she had moved on. Third, the recordings revealed Mother’s repeated use of illicit

drugs. For all those reasons, the recordings were important evidence on which the

court properly relied.

(28) Further, in addition to the recordings, the second permanency hearing

revealed new information previously unknown by the court. In direct violation of

her case plan and against her shelter’s rules, Mother brought Father into her home

overnight on August 7, 8, and 29, 2022. Mother therefore was removed from her

housing on September 1. Mother’s family interventionist testified that Mother’s

housing and employment had been “inconsistent.” Not only did Mother fail to

protect her children from exposure to Father’s domestic violence, she also failed to

“maintain stable housing … appropriate for herself and the children” as the case plan

required.

C. The trial court did not terminate Mother’s parental rights because she is a domestic violence victim.

(29) Finally, Mother argues that her status as an assault victim bears no

correlation to her parental fitness. That argument reprises her first argument on

appeal.16 The trial court terminated Mother’s parental rights in part because there

16 The overarching theme of Mother’s appeal is that the Family Court punished her rather than recognizing her status as a domestic violence victim. To that end, Mother relies on Nicholson v. Williams, a case in which a federal district court held that New York’s institutional practice of removing abused mothers’ children from their custody without proper investigation violated a class of mothers’ procedural and substantive due process rights. See Nicholson v. Williams, 203 F. 14 was no reason to believe that Mother would ever sever her relationship with Father.

By repeatedly allowing the children’s exposure to Father’s domestic violence, as Dr.

Elder testified, Mother contributed to the children’s trauma.

(30) Mother contends that there is no nexus between her own relationship

choices and her children’s safety; rather, she has been “cloaked with [Father’s]

propensity for family violence.” But Mother’s own actions toward Father directly

affected the children: (1) by allowing Father into her home in August 2022, Mother

lost the housing she had obtained for herself and the children; and (2) Mother

allowed phone contact between Father and their eldest child in direct violation of

court orders. The Family Court correctly concluded that Mother’s inability to

recognize that her relationship with Father posed a significant risk to her children

directly reflected on her own parental fitness.

For the foregoing reasons, we conclude that there is no merit to Mother’s

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

Court is AFFIRMED.

BY THE COURT:

/s/ Abigail M. LeGrow Justice

Supp. 2d 153 (E.D.N.Y. 2002). Mother’s case is not akin to Nicholson, nor does the Nicholson case stand for the proposition that an abused mother’s parental rights should not or cannot ever be terminated. 15