Zabel v. Department of Services for Children, Youth and their Families

• Court: Supreme Court of Delaware
• Decided: October 17, 2023
• Docket: 130, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ADRIENNE ZABEL,1 § § No. 130, 2023 Respondent Below, § Appellant, § Court Below—Family Court § of the State of Delaware v. § § File No. 21-10-02TN DEPARTMENT OF SERVICES FOR § Petition No. 21-23292 CHILDREN, YOUTH AND THEIR § FAMILIES, § § Petitioner Below, § Appellee. §

Submitted: August 23, 2023 Decided: October 17, 2023

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

ORDER

Upon consideration of the appellant’s brief filed under Supreme Court Rule

26.1(c), her attorney’s motion to withdraw, the response of the Department of

Services for Children, Youth and their Families (“DFS”), and the response of the

Office of the Child Advocate (“OCA”), it appears to the Court that:

(1) The respondent below-appellant, Adrienne Zabel (“the Mother”),

appeals the Family Court’s order, dated March 23, 2023, terminating her parental

rights to her children Valerie (born in 2014), Albert (born in 2016), Nicole (born in

1 The Court previously assigned a pseudonym to the appellant and uses pseudonyms to refer to the appellant’s children in this order under Supreme Court Rule 7(d). 2017), and Keith (born in 2018) (“the Children”). The Family Court’s order also

terminated the parental rights of the Children’s father (“the Father”), who filed a

separate appeal.2 In this appeal, we focus on the facts in the record as they relate to

the Mother’s appeal.

(2) On August 6, 2020, the Family Court granted DFS’s emergency

petition for custody of the Children by ex parte order. The Family Court found that

there were emergency conditions sufficient to find probable cause that the Children

were in actual danger or that there was a substantial risk of danger because three-

year-old Nicole was recently diagnosed with chlamydia and genital herpes and the

Children were medically neglected and developmentally delayed. The Family Court

scheduled a preliminary protective hearing and appointed counsel to represent the

Mother.

(3) At the preliminary protective hearing on August 12, 2020, a DFS

investigator testified that Nicole was originally taken to the emergency room for a

fever and rash in late July. She was discharged, but returned the next day with

stomach issues and a continuing fever. Nicole tested positive for chlamydia and

genital herpes, which likely resulted from sexual contact. The New Castle County

Police began investigating possible sexual abuse of Nicole. The Children’s

2 See Allen v. Div. of Servs. for Children, Youth and their Families, No. 132, 2023 (Del.).

2 Advocacy Center tried to interview Valerie and Albert, but their developmental

delays made this impossible.

(4) In addition to the parents, who denied having sexual contact with

Nicole, the Children had been in the care of maternal relatives. DFS was unwilling

to place the Children with maternal relatives who were possible suspects in the

criminal investigation. The Children were originally placed with a paternal relative,

but she could not care for the Children in addition to her own children. The Children

were currently in two foster homes located next to one another. At the conclusion

of the hearing, the Family Court found probable cause to believe that the Children

were in physical, mental, or emotional danger and dependent based on the lack of

sufficient explanation for Nicole having chlamydia and herpes and the Children

appearing to be neglected as far as hygiene, medical care, and possibly education.

The Family Court also found that it was in the best interests of the Children to be in

DFS custody, that DFS had made reasonable efforts to prevent the unnecessary

removal of the Children from their home, and that DFS had made reasonable efforts

to place the Children in the same home. The Family Court subsequently appointed

OCA counsel to represent the Children.

(5) At the September 24, 2020 adjudicatory hearing, the Mother, unlike the

Father, did not stipulate to the Children’s dependency. The doctor who treated

Nicole testified that this was likely Nicole’s first exposure to herpes and that the

3 incubation period for herpes was two to twenty days. The parents had reported that

Mother was diagnosed with chlamydia while pregnant with Keith, but the doctor

testified that it was unlikely Nicole would have acquired chlamydia or herpes from

her birth. The doctor opined that it was most likely that Nicole contracted chlamydia

and herpes as a result of sexual abuse. The other children did not test positive for

sexually transmitted diseases.

(6) A DFS employee testified that all of the Children were behind on their

medical care, suffered developmental delays, were going to be evaluated, and should

receive some type of therapy. She also testified that the parents were not fully

cooperative in providing information about how Nicole could have contracted herpes

and chlamydia.

(7) The Mother testified that she did not know how Nicole contracted

herpes or chlamydia. She also testified that the Children had received some

therapeutic services and only one of them was behind on medical appointments. The

Mother was not presently working. The Family Court found that the Children were

dependent and should remain in DFS custody. The Family Court also found that

DFS had made reasonable efforts to place the Children with relatives.

(8) At the November 2, 2020 dispositional hearing, DFS submitted a case

plan for the Mother. The case plan required the Mother to complete a mental health

evaluation, follow any treatment recommendations, resolve all legal issues, obtain

4 and maintain employment, work with a family interventionist, complete a parenting

class, identify and utilize a social support system, and participate in marriage

counseling. The Mother had enrolled in a parenting class and was trying to schedule

a mental health evaluation. The parents were living together, but not speaking

because the Father had been having a sexual relationship with the maternal

grandmother. There was testimony that the Children had been brought up to date on

their shots and other medical needs. The Family Court found that the Children

remained dependent and should remain in DFS custody. The Family Court also

found that DFS was making reasonable efforts to reunify the Children with their

parents.

(9) At the January 26, 2021 review hearing, a DFS employee testified that

the Mother was doing well with her case plan. She had obtained full-time

employment, completed a parenting class, and was working with her family

interventionist on housing and budgeting. She had also undergone a mental health

evaluation. Albert and Nicole were receiving speech therapy, physical therapy, and

occupational therapy. Keith was receiving physical therapy, occupational therapy,

and assistance with anxiety and social relationships. The Family Court found that

the Mother’s progress on her case plan was satisfactory. The Family Court also

found that the Children remained dependent and should remain in DFS custody.

5 (10) The Family Court held a second review hearing on May 18, 2021. The

Mother was having weekly visitation with the Children, who were now residing in

the same foster home. The Mother had undergone a mental and cognitive health

evaluation and did not meet the criteria for diagnosis. The evaluator testified that

the Mother was overwhelmed and had not processed everything that had happened

to her family. She was enrolled in individual therapy and wanted to work on herself

before she pursued marital counseling. She had also maintained her employment.

The Children continued to receive therapy for their developmental delays. The

criminal investigation concerning Nicole had been closed; it remained unknown how

she contracted chlamydia or herpes. The Family Court found that both parents had

made progress on their case plans, but noted that they needed to find appropriate

housing as their current residence was too small for four children. The Family Court

also found that the Children remained dependent and should remain in DFS custody.

The Family Court directed DFS to submit a paper review in lieu of another review

hearing as a permanency hearing would soon be needed.

(11) In the paper review, DFS reported that the Mother was employed,

receiving counseling, and was having supervised visitation with the Children twice

a week. She had not begun marital counseling. DFS had substantiated both parents

for sexual abuse of Nicole. The Children remained in the same foster home and

6 were up to date on their medical treatment. The Family Court adopted the paper

review and scheduled a hearing for September 10, 2021.

(12) On August 18, 2021, DFS filed a motion to change the permanency

plan from reunification to concurrent goals of reunification and termination of

parental rights. The parents filed responses opposing the motion. OCA supported

the motion.

(13) On September 10, 2021, the Family Court held a permanency hearing.

The parents were residing together and looking for housing. They did not object to

concurrent goals of reunification and termination of parental rights. Nicole and

Albert had tested positive for genetic abnormalities that cause significant

developmental delays and increased risk of mental health issues. The Family Court

found that both parents had made progress on their case plans, but expressed concern

for how Nicole had contracted sexually transmitted diseases and the parents’

unwillingness or inability to explain how this had occurred. The Family Court

granted DFS’s motion to change the permanency plan to concurrent goals of

reunification and termination of parental rights. DFS filed a petition for termination

of parental rights on October 7, 2021, but subsequently pursued trial reunification as

the parents had made progress on their case plans.

(14) On January 11, May 2, October 17, and November 3, 2022, the Family

Court held post-permanency review hearings. The resulting orders reflect that the

7 parents continued making progress on their case plans and DFS returned the

Children to the parents for trial reunification on August 4, 2022. The Mother gave

birth to a fifth child on August 5, 2022. DFS had suspected the Mother was pregnant,

but she denied it and produced a negative pregnancy test. The Mother’s counselor

had discharged her for dishonesty.

(15) In late September, Albert’s teacher told DFS that Albert was coming to

school unclean, sleeping in class, and misbehaving. Nicole’s teacher also reported

that Nicole was misbehaving. During an unannounced visit to the family in

November, a DFS employee observed that the house was very unclean with a smell

of urine throughout. DFS also expressed concerns about a lack of food, a full-size

pillow in the new baby’s crib that raised concerns as to how the baby was safely

sleeping, and Valerie, Albert, and Nicole not wearing their prescribed glasses. The

Family Court found that the parents had made little progress on their case plans and

that the Children should remain in DFS custody. The Family Court scheduled a

post-permanency review hearing and termination of parental rights hearing for

February 23rd and 24th. On November 7, 2022, DFS removed the Children from

the parents’ home and returned them to foster homes.3

3 DFS also obtained custody of the new baby.

8 (16) On February 23 and 24, 2023, the Family Court held a post-permanency

hearing and a termination of parental rights hearing. The Family Court heard

testimony from the Father, the Mother, two DFS employees, Nicole’s kindergarten

and special education teacher, and the Mother’s family interventionist. The

testimony reflected that the Mother had completed mental health and psychosexual

evaluations. She received counseling between May 2021 and August 2022 when her

therapist discharged her for being dishonest about her pregnancy. She began seeing

another counselor a few months later. The Mother lied about being pregnant because

she was worried DFS would take the new baby. The Father and the Mother had

obtained appropriate housing, but it was in an unacceptable condition when DFS

conducted an unannounced visit in November 2022.

(17) The Mother testified that she and the Father had retained a cleaning

service and found a nanny after DFS removed the Children from the home in

November. A DFS employee testified that the condition of the home was rectified

after the Children’s removal. The Mother identified her father and one of the

Children’s foster parents as part of her support network. She also claimed, for the

first time, to receive $5,000 a month from the Father’s landscaping business in

addition to her income from working at Amazon. She admitted that she had never

told DFS about this income despite requests from DFS for proof of income.

According to the Mother’s family interventionist, the condition of the home became

9 progressively worse during the trial reunification. There was also testimony that the

Father had a child with another woman in 2022 and might be seeking custody of that

child.

(18) The Children were in two different foster homes and continued to

receive a variety of services and therapies for their developmental delays. The

Mother testified about the types of therapy the Children had received and were

receiving. Nicole had suffered several herpes outbreaks, including one during trial

reunification when her parents did not seek treatment and instead sent her to school.

Nicole’s teacher testified that at the beginning of the school year when Nicole was

living with her parents she would come into school very fatigued and rarely speak

until after lunch. In November when Nicole was no longer living with her parents,

she was less tired and more engaged in class and with her classmates. She also

started coming to school with her glasses.

(19) On March 23, 2023, the Family Court issued a written decision

terminating the parental rights of the Mother. The Family Court found that DFS had

established by clear and convincing evidence that the Mother had failed to plan

adequately for the Children’s needs under 13 Del. C. § 1103(a)(5) and the Children

had been in the care of DFS for more than a year. The Family Court recognized that

the Mother had completed some elements of her case plan, but found that she did

not finish her therapy, did not complete marriage counseling with the Father, failed

10 to provide credible testimony and evidence concerning the sufficiency of her

income, failed to identify a sufficient social support system, and had failed to

maintain her home in a safe and appropriate condition for the Children. The Family

Court also found, by clear and convincing evidence, that DFS had made reasonable

efforts to reunify the family. Applying the best-interest factors under 13 Del. C. §

722, the Family Court found that factors 1 (wishes of the parent), 7 (evidence of

domestic violence) and 8 (criminal history) supported denial of the petition and

factors 2 (wishes of the children),4 3 (the interaction and relationship of the children

with family members), 4 (the children’s adjustment to home, school, and the

community), 5 (the mental and physical health of all individuals involved), and 6

(past and present compliance of the parent with the rights and responsibilities to their

children under 13 Del. C. § 701). The Family Court concluded that DFS had

established, by clear and convincing evidence, that termination of the Mother’s

parental rights was in the Children’s best interests. This appeal followed.

(20) The Mother’s counsel (“Counsel”) filed a brief and motion to withdraw

under Supreme Court Rule 26.1(c). Counsel represents that she has made a

conscientious review of the record and the law and found no meritorious argument

in support of the appeal. Counsel informed the Mother of the provisions of Rule

4 In light of the youth and developmental delays of the Children, the Family Court relied on OCA’s support for the petition to find that this factor supported granting the petition.

11 26.1(c) and provided her with a copy of the motion to withdraw and the

accompanying brief. Counsel also informed the Mother of her right to submit any

points she wished this Court to consider. The Mother has submitted several points

for this Court’s consideration. DFS and OCA ask this Court to affirm the Family

Court’s termination of parental rights.

(21) The Mother’s points on appeal may be summarized as follows: (i)

Valerie, Albert, and Nicole attended school while in their parents’ care; (ii) the

Children received therapy at school with Nicole and Albert also receiving therapy at

home; and (iii) when DFS came to the house in November 2022, she had just come

back from the grocery store and showed DFS that they had food and baby formula.

(22) This Court’s review of the Family Court’s decision to terminate

parental rights entails consideration of the facts and law as well as the inferences and

deductions made by the Family Court.5 To the extent that the Family Court’s rulings

of law are implicated, our review is de novo.6 The statute governing the termination

of parental rights requires a two-step analysis.7 First, the Family Court must

determine whether the evidence presented meets one of the statutory grounds for

termination.8 Second, the Family Court must determine whether termination of

5 Wilson v. Div. of Fam. Servs., 988 A.2d 435, 439-40 (Del. 2010). 6 Id. 7 13 Del. C. § 1103; Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000). 8 Powell v. Dep't of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731-32 (Del. 2008). 12 parental rights is in the best interests of the child.9 Both of these requirements must

be established by clear and convincing evidence.10

(23) We construe the Mother’s points as arguing that the Family Court erred

in finding that she failed to plan adequately for the Children’s needs and that

termination of her parental rights was in the Children’s best interests. Having

considered the parties’ positions and the record on appeal, we conclude that the

Mother’s appeal is wholly without merit. There is ample evidence supporting the

Family Court’s termination of the Mother’s parental rights based on her failure to

plan and that such termination is clearly in the Children’s best interests. This

evidence included the Mother’s unwillingness or inability to explain how her three-

year old child contracted chlamydia and herpes, most likely as a result of sexual

abuse, while in her care, failing to seek treatment for this child when she was

suffering an outbreak and instead sending her to school, and failing to maintain a

safe home for the Children and meet their needs during trial reunification. We find

no error in the Family Court’s application of the law to the facts and no abuse of

discretion in the Family Court’s factual findings.

9 13 Del. C. § 1103(a) (providing that parental rights may be terminated if one of several statutory grounds is established and “it appears to be in the child's best interest”); id. § 722 (setting forth factors that the court may consider when determining the best interests of a child). 10 Powell, 963 A.2d at 731. 13 NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT:

/s/ N. Christopher Griffiths Justice