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Jacbos v. Division of Family Services

Supreme Court of Delaware

February 26, 2019

GINA JACBOS, [1] Respondent Below, Appellant,
v.
DIVISION OF FAMILY SERVICES, Petitioner Below, Appellee, and OFFICE OF THE CHILD ADVOCATE, Appellee.

          Submitted: December 26, 2018

          Court Below: Family Court of the State of Delaware File No. 18-03-5TK Petition No. 18-06555

          Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.

          ORDER

          KAREN L. VALIHURA JUSTICE

         (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.

         (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.

         (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 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 ...


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