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Beamer v. Division of Family Services

Supreme Court of Delaware

July 10, 2019

KAITLYN BEAMER [1] , Respondent Below, Appellant,
v.
DIVISION OF FAMILY SERVICES, Petitioner Below, Appellee.

          Submitted: May 9, 2019

          Court Below-Family Court of the State of Delaware File No. CS18-03-03TS

          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, Kaitlyn Beamer ("the Mother"), filed an appeal from the Family Court's decision, dated December 7, 2018, terminating her parental rights over her son ("the Child").[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 not submitted any points for the Court's consideration. In response to Counsel's submission, DFS and the Child's attorney ad litem have moved to affirm the Family Court's termination of the Mother's parental rights. After careful consideration, this Court concludes that the Family Court's judgment should be affirmed.

         (2) The Child was born in May 2015. On July 21, 2016, DFS was awarded temporary custody of the Child by emergency ex parte order. DFS alleged that the Mother, who had recently come to Delaware from Florida, was currently homeless and was suspected to have active substance-abuse issues as well as untreated mental-health issues. There were also concerns that the Mother would flee to Florida with the Child.

         (3) At the preliminary protective hearing on July 25, 2016, the Family Court appointed counsel to represent the Mother. The Mother contested whether there was probable cause to believe the Child was dependent, neglected or abused, or that there was a substantial imminent risk thereof, in her care. A DFS employee testified that they received a hotline report in June that the Child was abused and neglected by the Mother. The employee made contact with the Child's maternal grandmother who was living in a debris-crowded residence inappropriate for a child. The maternal grandmother reported that she had fought recently with the Mother, the Mother was using synthetic heroin, that the Mother had mental-health problems and was seeking to avoid DFS, and that the Mother was not caring for the Child well. The maternal grandmother had recently dropped the Mother and Child off near the Maryland state line.

         (4) DFS made contact with the Mother after receiving a report that she was acting erratically near a restaurant in Seaford. The Mother, the maternal grandmother, and the maternal great-grandmother had gotten into a fight at the restaurant. A DFS employee spoke to all three women at the police station. At that time, the Mother's pupils appeared to be pinpoint, which can be indicative of someone using opiates, and she was shaking and sweating. With the Mother's consent, DFS developed a safety plan for the Child to live with the maternal great-grandmother and for the Mother to have supervised visits. The maternal great-grandmother was only available as a temporary placement for the Child because of her age and health issues. In light of this and the Mother's refusal to comply with the safety plan as discussed below, DFS obtained emergency ex parte custody of the Child and placed him with a foster family.

          (5) DFS learned that the Florida Child Protective Services had received a medical neglect report for the Child shortly after he was born at home with severe jaundice. The Florida medical neglect case was closed as unsubstantiated. At the Mother's first supervised visit with the Child, she appeared ill and behaved erratically. She threatened to return to Florida and revoked her consent to the child safety plan. She also refused to undergo substance-abuse and mental-health evaluations, despite her previous agreement to do so as part of the safety plan. The Mother testified that she had no substance-abuse problems, but took Lexapro for her anxiety. As a pagan, the Mother opposed vaccines and immunizations. The Mother hoped to move somewhere in Florida where her friends could support her.

         (6) The Family Court found there was probable cause to believe that the Child was dependent, neglected or abused, or that there was a substantial risk thereof. Probable cause factors included unstable housing, allegations of substance-abuse and untreated mental-health issues, medical concerns for the Child, and the Mother's risk of flight. The Family Court also found that it was in the best interests of the Child to be in DFS's custody, that DFS had made reasonable efforts to prevent the unnecessary removal of the Child from his home, and that DFS exercised due diligence to identify adult relatives of the Child.

         (7) On August 22, 2016, the Family Court held an adjudicatory hearing for the Mother as the suspected father had not yet undergone genetic testing. The Mother stipulated to a finding of dependency based on her mental-health issues, but understood that additional elements would be included in the reunification case plan. She waived her right to an adjudicatory hearing.

         (8) The psychologist who evaluated the Mother's mental health testified that the Mother met the criteria for generalized anxiety disorder and adjustment disorder with depression. He was puzzled by some of the Mother's statements and believed that six months of counseling might allow a therapist to determine if the Mother had additional mental-health issues. He also testified that the Mother was unable to explain why her pagan beliefs included opposition to vaccines and immunizations. The Mother told a DFS worker that she would become a Jehovah's Witness so the Child would not receive shots.

         (9) Based on the Mother's stipulation, the Family Court found that the Child was dependent and should remain in DFS's custody. The Family Court also found that DFS had made reasonable efforts to prevent the unnecessary removal of the Child from his home and to identify adult relatives of the Child. The Family Court granted DFS's motion (supported by the Child's attorney ad litem and opposed by the Mother) to schedule the Child for vaccinations.

         (10) On September 26, 2016, the Family Court held a dispositional hearing. The Mother's case plan for reunification was accepted into evidence without objection. The case plan elements included the Mother's consistent visitation with the Child, compliance with the psychologist's recommendations for mental-health counseling for at least six months, completion of a substance-abuse evaluation and compliance with any recommendations for treatment, completion of a parenting class, employment, and safe housing. The DFS treatment worker testified that the Mother had recently tested positive for barbiturates. The Mother had missed her last two visits with the Child, but otherwise the visits were going well. The Family Court granted the request of the Child's attorney ad litem for increased visitation (twice a week instead of once a week) with the Mother. The Family Court found that the Child was dependent and should remain in DFS's custody. The Family Court also found that DFS was making reasonable efforts to reunify the Child with the Mother.

         (11) On November 21, 2016, the Family Court held a review hearing. The Mother arrived for the hearing, left after telling her attorney that she did not want to be there, and then joined the hearing late. The DFS treatment worker testified that the genetic testing confirmed the identity of the father, who lived in Washington. DFS was starting the application process under the Interstate Compact for the Placement of Children ("ICPC"). Since the last hearing, the Mother had cancelled, missed, or failed to confirm most of the scheduled visits with the Child. She also left two visits early, one after twenty minutes because she was having an anxiety attack and feared rejection. The Mother was not receiving mental-health or substance-abuse treatment. She had also failed to start a parenting class. The Mother worked with her mother cleaning houses, but had not provided any proof of income. The Family Court found that the Mother had made minimal progress on her case plan, that the Child continued to be dependent, and that DFS had made reasonable efforts toward reunification.

         (12) On February 13, 2017, the Family Court held a second review hearing. The Mother had only visited the Child twice since the last hearing. The Mother testified that she had left messages about visits, but her calls were not returned. The foster care worker testified that visits were always on Tuesdays and Thursdays as long as the Mother confirmed the day of the visit or the day before that she would attend the visit, and the Mother was not doing that. The worker also testified that she would return any messages the Mother left for her.

         (13) The Mother had met a psychiatric nurse practitioner, who diagnosed the Mother with anxiety and adjustment disorder and prescribed Lexapro, which the Mother declined to take. The Mother testified that she did not refuse to take Lexapro, which she did not feel she needed, and was open to taking it. The Mother continued to deny any problems with substance abuse, but had seen a substance-abuse counselor twice and had a negative urine screen. She had not yet completed parenting classes. The Mother continued to earn money cleaning houses but, as before, had not provided any proof of income. The Child, who had moved to a new foster home, had accidentally burned himself on a stove, but was otherwise doing well. The Family Court found that the Mother had made some progress on her case plan, but expressed concern that she only visited the Child twice in a three-month period. The Family Court found that the Child was dependent and should remain in DFS's custody. The Family Court also found that DFS was making reasonable efforts toward permanency for the Child.

         (14) On May 8, 2017, the Family Court held a third review hearing. The Mother failed to appear for the hearing. The ICPC application was denied because the father had moved and not provided a new address. He provided his new address to the Washington ICPC worker. The foster care worker testified that the Mother had attended thirteen out of twenty-two scheduled visits, with seven of the missed visits attributable to the Mother and two of the missed visits attributable to the foster care agency. Visits generally went well, but the Mother had to be told twice not to let the Child eat packets of artificial sugar. The Mother had completed parenting classes. The Mother was receiving substance-abuse counseling through Brandywine Counseling and could also receive mental-health counseling there. She had two positive urine screens for barbiturates. She continued to clean houses with her mother, but had not provided any proof of income. The treatment worker testified that the Mother often did not respond to her calls or letters. The Child was doing well in foster care.

         (15) The Family Court found that the Mother had made some progress, albeit late, on her case plan. The Family Court found that the Child was dependent and should remain in DFS's custody. The Family Court also found that DFS was making reasonable efforts toward permanency for the Child.

         (16) On August 7, 2017, DFS filed a motion to change the plan from reunification to termination of parental rights for purposes of adoption. The Family Court ruled that the motion would be considered at the next hearing. At the August 21, 2017 permanency hearing, DFS and the Mother stipulated that the Mother had made more progress on her case plan and should have more time to complete her case plan with the goal of reunification remaining in effect. The ICPC process for the Father was ongoing.

         (17) The Mother had attended eleven of twenty-eight offered visits with the Child, with thirteen of the missed visits attributable to the Mother and four of the missed visits attributable to the foster care agency or for another reason. The Mother testified that she often forgot to confirm visits in advance as she was required to do. The DFS treatment worker testified that if the Mother improved her visitation attendance, DFS would consider unsupervised visits as well as longer visits and possible overnight visits. The Mother was receiving mental-health and substance- abuse counseling through Brandywine Counseling. All of the Mother's urine screens ...


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