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Baker-Sage v. Division of Family Services

Supreme Court of Delaware

February 28, 2019

TIFFANY BAKER-SAGE [1], Respondent Below, Appellant,
v.
DIVISION OF FAMILY SERVICES, Petitioner Below, Appellee, and OFFICE OF THE CHILD ADVOCATE, Appellee.

          Submitted: January 11, 2019

          Court Below: Family Court of the State of Delaware File No. 18-04-1TK Petition No. 18-09707

          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 13, 2018, terminating the parental rights of Tiffany Baker-Sage ("Mother") in her four-year-old and six-year-old daughters ("the Children"). The parental rights of the Children'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 met with counsel on November 9, 2018, to relay her concerns. Counsel summarized Mother's concerns and submitted them as "Appellant's Points" in the brief on appeal. Counsel for the Division of Family Services and for the Children's court-appointed special advocate have responded to the Rule 26.1(c) brief and have moved to affirm the Family Court's judgment.

         (3) On November 7, 2016, the Division of Family Services ("DFS") was granted temporary legal custody of the Children on an emergency basis on the grounds that Mother and the Children's father were homeless. With the filing of DFS's dependency and neglect petition on November 8, 2016, the mandated hearings ensued.[2] At each of the hearings, the Family Court found that the Children were dependent and that it was in their best interests to remain in DFS's care and custody. The court also found that DFS had made reasonable efforts to reunify the family.

         (4) Shortly after the Children were taken into the care and custody of DFS, Mother moved to New Jersey and began living in a motel room with a friend. Mother gave birth to a baby on June 8, 2017. New Jersey took custody of the baby on June 13, 2017.

         (5) DFS developed a case plan for Mother's reunification with the Children, and New Jersey Child Protective Services ("NJCPS") developed a case plan for Mother's reunification with the baby. Both plans identified lack of appropriate housing and lack of income as major obstacles to reunification as well as Mother's health issues-both physical and mental-and the Children's special needs.

         (6) In late February 2018, the Family Court changed the permanency goal from reunification to concurrent goals of reunification and termination of parental rights and adoption. DFS filed its petition for termination in April 2018, and an evidentiary hearing was held on June 19, 2018. Several witnesses testified at the hearing, including Mother; Yanely Rosa, Mother's NJCPS permanency worker; Natasha Simms, Mother's DFS treatment worker; Bridgette George, the Children's foster care treatment coordinator; Beautiful White, the Children's permanency worker; and Ginny Terczak, the Children's court-appointed special advocate.

         (7) In Delaware, the termination of parental rights is based on a two-step statutory analysis.[3] First, the Family Court must determine whether there is a statutory basis for termination under 13 Del. C. § 1103.[4] 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.[5] 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.[6]

         (8) In its July 13, 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 [the Children's] needs, health and development" under § 1103(a)(5).[7] The Family Court found that Mother had failed to satisfy a number of her case plan requirements for reunification, "including those most necessary to provide adequate care for the children, i.e., housing and income." The record supports this finding.

         (9) When the statutory basis for termination is failure to plan, there must be proof of at least one additional statutory condition[8] and proof that DFS made bona fide reasonable efforts to preserve the family unit.[9] In this case, the Family Court found proof of additional statutory conditions, as follows: (i) the Children had been in the custody of DFS for over a year and a half; (ii) there was history of neglect, abuse or lack of care of another child, namely Mother's child who was taken into state custody in New Jersey in June 2017; (iii) Mother was not able to assume legal and physical custody of the Children and to pay for their support; and (iv) failure to terminate Mother's parental rights will result in continued emotional instability or physical risk to the Children.[10] The record supports these findings.

         (10) On the reasonableness of DFS's efforts to reunite the family, the Family Court found that DFS developed a case plan with Mother and coordinated with NJCPS to provide Mother with the recommended services. Having reviewed the record, including the case plan signed by Mother, we agree with these findings and with the Family ...


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