Cross v. DSCYF/DFS

IN THE SUPREME COURT OF THE STATE OF DELAWARE

TESSA CROSS,1 §
§ No. 167, 2024
Respondent Below, §
Appellant, § Court Below–Family Court
§ of the State of Delaware
v. §
§ File No. 23-03-03TN
DEPARTMENT OF SERVICES § Petition No. 23-04711
FOR CHILDREN, YOUTH AND §
THEIR FAMILIES/DIVISION OF §
FAMILY SERVICES, §
§
Petitioner Below, §
Appellee. §
§
In the Interest of: §
RYDER CROSS (DOB 4/27/22) §

Submitted: September 9, 2024
Decided: October 31, 2024

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

ORDER

After consideration of the no-merit brief and motion to withdraw filed by the

appellant’s counsel under Supreme Court Rule 26.1(c), the appellee’s response, the

Child Attorney’s response, and the Family Court record, it appears to the Court that:

1
The Court previously assigned a pseudonym to the appellant under Supreme Court Rule 7(d).
(1) By order dated April 4, 2024, the Family Court terminated the parental

rights of the appellant, Tessa Cross (“Mother”), in her minor son, born in April 2022

(the “Child”).2 Mother appeals.

(2) On appeal, Mother’s counsel has filed an opening brief and a motion to

withdraw under Rule 26.1(c). Counsel asserts that he has conducted a conscientious

review of the record and the relevant law and has determined that Mother’s appeal

is wholly without merit. Counsel informed Mother of the provisions of Rule 26.1(c),

provided her with a copy of counsel’s motion to withdraw and the accompanying

brief, and advised her that she could submit in writing any additional points that she

wished for the Court to consider. Mother has not provided any points for the Court’s

consideration. The appellee, the Delaware Department of Services for Children,

Youth and Their Families/Division of Family Services (DSCYF), and the Child’s

Attorney have responded to counsel’s Rule 26.1(c) brief and argue that the Family

Court’s judgment should be affirmed.

(3) In June 2022, DSCYF filed for emergency custody of the Child after

receiving a hotline report that Mother was chasing a man—later adjudicated to be

the Child’s father (“Father”)—with a knife, while holding the Child (then a two-

month-old) in her arms. After police were called, Mother fled the scene in her vehicle

2
The Family Court’s order also terminated the parental rights of the Child’s father. We refer only
to facts in the record that relate to Mother’s appeal.

2
with the Child improperly restrained. With the filing of DSCYF’s dependency-and-

neglect petition, the mandated hearings ensued.3 As of the preliminary protective

hearing, Mother had pending criminal charges based on the incident that resulted in

DSCYF petitioning for custody of the Child. DSCYF was aware that Mother had

mental health and substance abuse issues because of its prior involvement with

Mother and three of her other children—involvement that resulted in Mother’s

voluntary termination of her parental rights in those children. The Family Court

found that the Child remained dependent in Mother’s care because of the alleged

domestic violence and Mother’s mental health and substance abuse treatment needs.

(4) As of the two-day adjudicatory hearing,4 the Child had recently been

hospitalized and intubated for pneumonia. DSCYF contacted Mother, who went to

the hospital and signed a consent for the Child’s medical treatment. Mother declined,

however, to wait for her treatment worker to arrive and see the Child. During the

Child’s three-week stay at the hospital, Mother failed to appear for several scheduled

visits with the Child. The Child’s paternal grandmother testified to ongoing domestic

violence between Mother and Father. DSCYF had not been able to communicate

consistently with Mother, and Mother failed to appear for the second day of the

3
When a child is removed from his home by DSCYF and placed in foster care, the Family Court
is required to hold hearings at regular intervals under procedures and criteria detailed by statute
and the court’s rules. 13 Del. C. § 2514; Del. Fam. Ct. Civ. Proc. R. 212-219.
4
The hearing had to be continued after one of the participating attorneys fell ill.

3
adjudicatory hearing. DSCYF was exploring relative placement options. The Family

Court found that the Child remained dependent in Mother’s care because of ongoing

domestic violence and that DSCYF had made reasonable efforts to prevent the

unnecessary removal of the Child from his home.

(5) At the September 20, 2022 dispositional hearing, the Family Court

reviewed the case plan that DSCYF had developed to facilitate Mother’s

reunification with the Child. Mother’s case plan required Mother—who had

previously undergone a mental health evaluation at the direction of DSCYF and was

currently serving a probationary sentence for criminal charges—to: (i) engage in the

recommended mental health treatment and to complete a domestic violence offender

program; (ii) undergo a substance abuse evaluation and follow any recommended

treatment; (iii) notify DSCYF of any new criminal charges or hearing dates and

successfully complete probation; (iv) engage with a family interventionist to create

a budget, search for employment, and complete a parenting class; (v) acquire and

maintain stable housing; and (vi) work with the Child’s medical providers as needed

and comply with any treatment recommendations. As of the dispositional hearing,

the Child had adjusted well to his foster home and had follow-up appointments

scheduled with a gastroenterologist and a pulmonologist. Mother continued to arrive

at visits with Father, despite the parties having a court-ordered no-contact order in

place.

4
(6) As of the December 16, 2022 review hearing, Mother had completed

two parenting classes and was participating in a third. DSCYF had made a referral

to a mental health provider because Mother wanted a second opinion regarding her

mental health diagnoses. Mother was engaged with her family interventionist,

employed part-time, and engaged with domestic violence offender programming.

Because Mother had been consistently visiting with the Child, DSCYF had increased

her visitation to three days per week. However, Mother had not yet completed a

substance abuse evaluation, was on home confinement for new DUI charges, and

was behind on her rent payments. Mother admitted that she was living with Father

but opined that domestic violence was not an issue because she was engaged with

domestic violence offender programming. The Child was doing well in foster care

but continued to suffer from acid reflux and receive breathing treatments. The Child

had had several medical visits, one of which Mother attended. The Family Court

found that Mother’s compliance with her case plan had been mixed and observed

that she had not completed the housing and substance-abuse components of her case

plan. The court also noted its concern with Mother’s history of domestic violence.

The Family Court advised Mother to attend the Child’s medical appointments and

to speak with her DSCYF workers and her attorney to determine how she could

complete the outstanding elements of her case plan. The court scheduled a second

review hearing for March 8, 2023.

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(7) In February 2023, DSCYF moved to change the Child’s permanency

goal from reunification to termination-of-parental-rights (TPR) for the purpose of

adoption. As of the March 8, 2023 review hearing, Mother: (i) had undergone a

mental health evaluation with Dr. Joseph Zingaro; (ii) had completed a substance

abuse evaluation; (iii) had filed for a protection-from-abuse (PFA) order against

Father; (iv) was employed full-time; and (v) was no longer living with Father.

Mother was also working with her family interventionist for housing referrals and

had completed multiple parenting courses. However, Dr. Zingaro opined that Mother

was unable to safely parent the Child because her mental functioning and emotional

maturity was that of a 14- or 15-year-old child. The Family Court found that

Mother’s compliance with her case plan had been mixed and changed the

permanency goal from reunification to the concurrent goals of reunification and TPR

for the purpose of adoption. The day after the review hearing, DSCYF filed a TPR

petition on the basis of Mother’s failure to plan for the Child’s physical needs or

mental and emotional health and development.

(8) As of the May 30, 2023 permanency hearing, Mother had made

significant progress on her case plan. Specifically, Mother: (i) had obtained a two-

year PFA order against Father; (ii) was attending weekly therapy sessions and

learning anger management skills; (iii) was compliant with the terms of her

probation; (iv) had completed three parenting classes; and (v) was enrolled in

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domestic violence offender programming. Mother was also employed and had paid

the first month’s rent on a two-bedroom apartment. Finally, Mother was actively

engaged during her visits with the Child. The Child was prescribed a nebulizer to

use as needed and had an upcoming appointment with a neurologist but was

otherwise thriving in his foster home. At DSCYF’s request, the Family Court stayed

DSCYF’s TPR petition.

(9) As of the September 21, 2023 post-permanency hearing, Mother was

no longer making progress on her case plan. Mother was noncompliant with her

mental health treatment and had angrily confronted her family interventionist—

evidence, in DSCYF’s view, that Mother was not implementing the anger

management strategies that she had been learning in therapy. Mother claimed to be

working at Paramount Health Care, but Paramount had advised DSCYF that no one

with Mother’s name had ever been employed there. Mother had also been

unsuccessfully discharged from domestic violence offender programming and was

living in a shelter. DSCYF had explored the relative placement options identified by

Mother and considered them inappropriate. The Child was flourishing in foster care.

At the conclusion of the hearing, the Family Court ordered Brandywine Counseling

& Community Services (BCCS) to release its records regarding Mother’s substance

abuse evaluation and treatment. After the parties received the BCCS records—which

reflected that Mother had misrepresented her use of illegal substances and criminal

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history as well as the fact that Mother had not followed BCCS’s treatment

recommendations—the Family Court scheduled a TPR hearing.

(10) At the January 23, 2024 TPR hearing, the Family Court heard testimony

from Mother, Mother’s DSCYF treatment worker, the Child’s DSCYF permanency

worker, the Child’s foster mother, a social worker for Children & Families First, and

the Child’s court-appointed special advocate. The evidence presented fairly

established that Mother had re-engaged with services in the month before the TPR

hearing. But DSCYF remained gravely concerned about Mother’s mental health

treatment because it was a significant component of her case plan and Mother had

been inconsistent with her compliance during the pendency of the dependency-and-

neglect proceedings. Mother was also still on probation, having recently been

incarcerated for violating its terms, and she had tested positive for marijuana two

weeks before the TPR hearing. The Child’s permanency worker had observed a visit

between Mother and the Child and opined that Mother was unresponsive to the

Child’s cues and relied on television to entertain the Child. Mother had also visited

the Child during his recent hospitalization for RSV and tried to remove him from the

hospital room against medical advice. Finally, Mother had previously lied about

being employed and had provided fake paystubs to DSCYF at the September 2023

post-permanency hearing. Following the hearing, the Family Court terminated

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Mother’s parental rights in the Child on the basis of her failure to plan. This appeal

followed.

(11) On appeal, this Court is required to consider the facts and the law as

well as the inferences and deductions made by the Family Court.5 We review legal

rulings de novo.6 We conduct a limited review of the factual findings of the trial

court to assure that they are sufficiently supported by the record and are not clearly

erroneous.7 If the trial judge has correctly applied the law, then our standard of

review is abuse of discretion.8 On issues of witness credibility, we will not substitute

our judgment for that of the trier of fact.9

(12) The statutory framework under which the Family Court may terminate

parental rights requires two separate inquiries.10 First, the court must determine

whether the evidence presented meets one of the statutory grounds for termination.11

When the statutory basis for termination is failure to plan, the Family Court must

also find proof of at least one additional statutory condition.12 If the Family Court

5
Wilson v. Div. of Family Servs., 988 A.2d 435, 439-40 (Del. 2010).
6
Id. at 440.
7
Id.
8
Id.
9
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
10
Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
11
Id. at 537.
12
13 Del. C. § 1103(a)(5)(a)-(e) (listing additional conditions).

9
finds a statutory basis for termination of parental rights, the court must then

determine whether, under 13 Del. C. § 722, severing parental rights is in the child’s

best interest.13 Both of these requirements must be established by clear and

convincing evidence.14

(13) Here, the Family Court found that DSCYF had proved, by clear and

convincing evidence, that the termination of Mother’s parental rights was

appropriate based on her failure to plan adequately for the Child’s physical needs or

mental and emotional health and development15 and that the Child, who came into

care as an infant, had been in DSCYF custody for well over six months.16 The

Family Court then examined the best-interests factors set out in 13 Del. C. § 722

and—giving significant weight to factor 5 (the mental and physical health of the

individuals involved)—found, by clear and convincing evidence, that termination of

Mother’s parental rights was in the Child’s best interest.

(14) Having carefully reviewed the parties’ positions and the record on

appeal, we find that the Family Court’s factual findings are supported by the record,

and we can discern no error in the court’s application of the law to the facts. We

13
Shepherd, 752 A.2d at 536-37.
14
Powell v. Dep’t of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731 (Del.
2008).
15
13 Del. C. § 1103(a)(5).
16
Id. § 1103(a)(5)(b).

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therefore conclude that Mother’s appeal is wholly without merit and devoid of any

arguably appealable issues. We are satisfied that Mother’s counsel made a

conscientious effort to examine the record and the law and properly determined that

Mother could not raise a meritorious claim in this appeal.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court be AFFIRMED. Counsel’s motion to withdraw is moot.

BY THE COURT:

/s/ Karen L. Valihura______________
Justice

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