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Below v. Division Of Family Services

Supreme Court of Delaware

June 17, 2019

MARION GARRETT, [1] Respondent Below, Appellant,
v.
DIVISION OF FAMILY SERVICES, Petitioner Below, Appellee.

          Submitted: April 22, 2019

          Court Below-Family Court of the State of Delaware File Nos. 17K-10-8TK & 17-10-9TK Petition Nos. 17-33033 & 17-33052

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

          ORDER

          Gary F. Traynor Justice

         Upon consideration of the appellant's brief filed under Supreme Court Rule 26.1, her attorney's motion to withdraw, the response of the Division of Family Services ("DFS"), and the response of the attorney ad litem, it appears to the Court that:

         (1) The respondent below-appellant, Marion Garrett ("the Mother"), filed an appeal from the Family Court's decision, dated December 5, 2018, terminating her parental rights to her two daughters ("Children").[2] On appeal, the Mother's counsel ("Counsel") has filed an opening brief and motion to withdraw under Supreme Court Rule 26.1. 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. The Mother has submitted points for the Court's consideration. In response to Counsel's submission, DFS and the Children's attorney ad litem, have moved to affirm the Family Court's termination of the Mother's parental rights.

         (2) The older daughter was born in 2011 and the younger daughter was born in 2013. On August 30, 2016, DFS was awarded temporary custody of the Children by emergency ex parte order. DFS alleged that the family had been involved with DFS for several months, the family had been residing at a hotel since mid-July, the Mother was unemployed and lacked funds to pay for a place to stay, and there were no other family members or friends who could take care of the Children.

         (3) At the preliminary protective hearing on September 7, 2016, the Family Court appointed counsel to represent the Mother. The Mother stipulated to the Children's dependency or neglect based on her homelessness and continued mental health issues. She also waived protective and adjudicatory hearings and requested a reunification case plan. The Family Court found that the Children continued to be dependent or neglected and that the Children continued to be in, or there was substantial imminent risk of, actual physical, mental or emotional danger. The Family Court also found that DFS had exercised due diligence to identify and notify all grandparents and adult relatives of the Children.

         (4) On October 6, 2016, the Family Court held a dispositional hearing. The Children were in a different foster care home after the initial foster care parent expressed concern with the older child's behavioral issues. The Mother's case plan included a mental health evaluation and compliance with any mental health treatment recommendations, working with a parent aide, finding and maintaining housing, and obtaining employment. DFS had communicated with the maternal grandmother (who had the Mother's two older children) about the Children, but she was unable to care for them. The Family Court found that Children continued to be dependent, it was in their best interests to remain in DFS custody, and DFS was making reasonable efforts toward reunification.

         (5) On January 3, 2017, the Family Court held a review hearing. The Mother's progress on her case plan included working with a parent interventionist, finding possible employment, and moving in with the family of her girlfriend. The older child had alleged that the husband of the girlfriend's mother had abused her, but he was not living in the home. The older child attended trauma-focused therapy every other week.

         (6) On April 5, 2017, the Family Court held another review hearing. The Family Court found that the Mother had been doing well on her case plan at the last review hearing, but had since missed several visits with the Children because she felt overwhelmed. Based on the Mother's mental health evaluation, it was recommended that she engage in psychotherapy to address her experience as a victim of domestic violence and to develop coping mechanisms. The older child was moved to a different foster home after behaving in a dangerous and aggressive manner toward the younger child. The older child continued to see a therapist.

         (7) On July 11, 2017, the Family Court held another review hearing. The Mother was attending visits with the Children more regularly since the last hearing. She had a therapist for her mental health issues, but was seeing him inconsistently. The Mother was no longer living with her girlfriend and was not employed. The older child had extreme temper tantrums and continued to see a therapist.

         (8) On August 30, 2017, the Family Court held a permanency review hearing. The Family Court found the Mother's progress on her case plan was inconsistent. She had missed four out of eight visits with the Children, failed to address her past issues with domestic violence, and needed to reengage with the parent interventionist. She had obtained employment and was seeing her therapist consistently. She was also pregnant and living again with her girlfriend. The older child's behavior was improving. The Family Court authorized DFS to add termination of parental rights/adoption as a concurrent goal to the permanency plan and warned the Mother that time was running out on her time to complete the case plan. DFS filed petitions for termination of parental rights on October 27, 2017.

         (9) On November 27, 2017, the Family Court held a review hearing. The older child continued to see a therapist and the younger child had started therapy due to some behavioral issues the foster mother had noticed. The Mother had stable housing and made significant progress in her therapy, which also addressed the domestic violence she had survived. DFS wanted to see how the Mother coped with the new baby before attempting trial reunification with the Children. Based on the Mother's significant progress on her case plan in the preceding three months, the ...


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