JARMON v. DEPARTMENT OF SERVICES FOR CHILDREN, 249, 2006 (Del. 2006)

No. 249, 2006.Supreme Court of Delaware.Submitted: October 4, 2006.
Decided: November 2, 2006.

Court Below: Family Court of the State of Delaware in and for New Castle County File No. 05-05-04TN.

Before STEELE, Chief Justice, BERGER and JACOBS,
Justices.

ORDER
MYRON T. STEELE, Chief Justice.

This 2nd day of November 2006, on consideration of the briefs of the parties, it appears to the Court that:

(1) The respondent-appellant, Delores Jarmon (Mother) filed an appeal from the Family Court order terminating her parental rights in her minor daughter, Raimyia Jackson. Mother argues that the trial judge abused his discretion by finding that terminating Mother’s parental rights was in Raimyia’s best interest.[1]
Department of Services for Children, Youth and Their Families argues that the Family Court’s judgment terminating Mother’s parental rights should be affirmed because it was in Ramyia’s best interests. Because the Family Court’s decision is supported by the record and is not clearly erroneous, we AFFIRM.

(2) Mother is the natural parent of Raimyia,[2] who was born on June 4, 2001 and is the sole subject of this action.[3] On October 22, 2004, DSCYF removed Raimyia and another child from the care and custody of their Mother because of Mother’s active drug use and lack of appropriate housing.[4] Mother admitted that while the children were in her care she did not work, could not provide stable housing, and used illegal drugs. On November 9, 2004, Mother spoke with a DSCYF treatment worker, and they scheduled a meeting for the purpose of developing a case plan for reunification. They planned to hold the meeting at an address that Mother gave the DSCYF worker. Mother, however, did not attend the meeting and the address that the Mother had provided turned out to be a vacant house.[5]

(3) Mother did not attend any of the hearings in connection with Raimyia’s removal and, despite DSCYF’s efforts, she never met with DSCYF to devise a reunification plan.[6] DSCYF placed Raimyia in foster care on October 27, 2004 and later moved her to Charlotte Bush’s home on February 2, 2005.[7] Mother did not visit Raimyia in the first three months after Raimyia’s removal. Mother claimed that she visited Raimyia while she was in Bush’s care; however, at trial there was no evidence corroborating Mother’s visitation.

(4) On March 19, 2005, Bush permitted Raimyia to leave her home with Raimyia’s maternal grandmother. Later that day, the police arrested Mother and Grandmother in a “crack house” raid. Police found Raimyia in the house walking around barefoot in a room filled with broken glass, crack pipes, and animal feces. Police arrested Mother and ordered her to have no contact with Raimyia.[8]

(5) While Mother was incarcerated, she had a meeting with DSCYF on May 26, 2005. DSCYF informed Mother that they had changed their goal of reunification to termination of parental rights. DSCYF advised Mother to confer with her attorney and contact DSCYF when she was released from prison. DSCYF also instructed Mother to advise DSCYF regarding whether the no contact order was still in effect.[9]

(6) The Family Court held Mother’s Termination of Parental Rights Hearing on November 28, 2005. At that time, Mother was still serving time for the March 19, 2005 incident and had just been sentenced to three months in the Crest program followed by three months of work release. Mother remained under a no contact order at the time of trial. Mother testified that during her incarceration, she planned for Raimyia’s care by receiving her GED and completing a job readiness program and parenting class. Mother also sent Raimyia books that Mother had read onto a tape as part of the prison’s Read Aloud program. Mother also trained in food service, and she testified that she planned to work as a cook upon her release.

(7) Mother testified that after work release she wanted to move into the Friendship House program. That program allows eligible applicants to find independent housing that is suitable for reunification with their children upon completion of their sentence. Mother maintains that she can remain sober and provide appropriate care for all of her children.

(8) The trial judge held that DSCYF had established a statutory ground for termination of parental rights by clear and convincing evidence because Mother has failed to plan adequately for Raimyia’s physical needs as well as her mental and emotional health and development, and continues to be unable to so plan under 13 Del. C. § 1103 (a)(5).[10] The trial judge also found that it was in Raimyia’s best interests to terminate Mother’s parental rights and granted the termination petition. Mother argues on appeal that the trial judge’s decision that it is in Raimyia’s best interests to terminate Mother’s parental rights is not sufficiently supported by the record and is clearly erroneous.

(9) “On appeal from the Family Court’s termination of parental rights, this Court will uphold the Family Court’s factual findings if they are sufficiently supported by the record and are not clearly wrong.”[11] This Court will not disturb inferences and deductions that are supported by the record.[12] “If the trial court has correctly applied the pertinent law, our review is limited to abuse of discretion.”[13]

(10) In Delaware, the trial judge must conduct a multistep analysis when making the decision to terminate parental rights. First, under 13 Del. C. § 1103, the trial judge determines whether Mother has failed to plan and whether there is clear and convincing proof of at least one of the enumerated statutory grounds for termination.[14] Here, the trial judge found that DSCYF had established a statutory ground for termination, and Mother does not challenge the trial judge’s ruling under this first prong.

(11) The next inquiry requires a “determination that severing the parental right is in the best interests of the child.”[15] Under the Best Interest standard, there must be “clear and convincing evidence that termination of parental rights is essential to the child’s welfare.”[16] The factors enumerated in 13 Del. C. § 722(a)[17] govern the Family’s Court’s Best Interest determination in a termination of parental rights proceeding.[18] The Family Court weighs each factor as appropriate and considers all relevant evidence in order to arrive at a decision that reflects the child’s best interests.[19] Mother argues that the trial judge did not weigh these factors properly.

(12) The first statutory factor to be considered is the wishes of the child’s parents.[20] The trial judge considered Mother’s wishes weighed against the termination of parental rights. Mother argues that this factor should have been given more weight. The interests of the child, however, must prevail where the interests of the child conflict with those of the parents.[21] Although Mother claims she does not want her parental rights terminated, her actions reflect otherwise. Mother has been repeatedly incarcerated since Raimyia’s birth. While Mother was caring for Raimyia, Mother used drugs and committed criminal offenses, including the March 19, 2005 offense. The trial judge’s decision that Raimyia’s interests must prevail over Mother’s interests is correct as a matter of law.

(13) The Family Court next considered the second factor, the child’s wishes.[22] The trial judge determined that four-year-old Raimyia was too young to express an opinion and correctly deemed this factor neutral.[23]

(14) Third, the trial judge considered Raimyia’s other significant relationships, including those with parents, grandparents, or siblings.[24] Mother argues that the trial judge failed to consider Raimyia’s bond with her maternal family members and erred by deciding that this factor weighed heavily in favor of termination. The trial judge found that Raimyia did not have a significant relationship with Mother because Raimyia has been in foster care since October 2004. Before that, Raimyia lived with her Grandmother. The trial judge properly concluded that Raimyia did not have a positive, significant relationship with her Grandmother because of her Grandmother’s chronic substance abuse and Raimyia’s exposure to that environment.[25]

(15) The trial judge then considered Raimyia’s adjustment to home, school and community under the fourth factor.[26] The trial judge found this factor to be neutral or slightly favorable to termination. The court noted that Raimyia is well adjusted in Bush’s home although there was no evidence indicating Raimyia would not be able to adjust to another placement, if necessary. Mother argues that this factor should have been deemed neutral, but cites no law or facts to support her argument. This Court will not give conclusory arguments, without more, any weight.

(16) The trial judge next considered the mental and physical health of all persons involved under the fifth factor.[27]
The trial judge noted Mother’s chronic drug history, but deemed this factor neutral, because Raimyia is healthy and the parties did not present any evidence indicating that Mother’s health would render her incapable of caring for Raimyia. Mother argues that this factor should have weighed against termination of parental rights because DSCYF did not present any evidence that Mother has any physical or mental health issues. Mother also contends that her recent sobriety should weigh in her favor. In his finding of fact, however, the trial judge noted that Mother has only been drug-free since her incarceration and has never voluntarily sought treatment.[28] Because Mother asserts no other factual basis to support her contention that the trial judge abused his discretion, we will not disturb his findings.

(17) Sixth, the trial judge considered the parents’ past and present compliance with their rights and responsibilities to their child under 13 Del. C. § 701.[29] The trial judge found that this factor weighed heavily in favor of termination of parental rights.[30] Mother argues that the trial judge failed to consider her relationship with Raimyia before Mother’s incarceration. Specifically, Mother contends that the trial judge did not give proper weight to evidence presented regarding Mother’s visitation. The argument is without merit. The issue is Mother’s credibility, and the trial judge did not believe Mother’s testimony regarding her visitation with Raimyia.[31] “When determination of facts turns on a question of credibility and the acceptance or rejection of the testimony of witnesses appearing before him, those findings of the [t]rial [j]udge will be approved upon review, and we will not substitute our opinion for that of the trier of fact.”[32]
In this case, the trial judge made specific findings, did not find Mother credible, and we must approve his findings.

(18) Under the seventh factor, the trial judge considered any evidence of domestic violence.[33] The trial judge deemed this factor neutral because the parties did not present any evidence at trial regarding this factor.

(19) The trial judge then weighed the criminal history of any party or member of the child’s household.[34] The trial judge logically concluded that this factor weighs heavily in favor of termination of parental rights. That conclusion is supported by the record. Both Mother and Grandmother have criminal histories and committed criminal drug offenses in Raimyia’s presence. Mother argues that the trial judge improperly balanced her criminal history against her upcoming release from prison.[35] The trial judge properly noted that Mother has been incarcerated for most of Raimyia’s life, and Mother’s total history of substance abuse and neglect overrides the mere possibility of rehabilitation or reunification with Raimyia.

(20) Mother’s contentions are focused on issues of fact, which this Court reviews for abuse of discretion. Because the trial judge’s decision is supported by the record and is not clearly erroneous, we must conclude that he did not abuse his discretion.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Family Court is AFFIRMED.