Delaware Cases July 28, 2023: In re G. & B. P.

Case Description

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Petition for Adoption

Before the HONORABLE JAMES G. MCGIFFIN, JR., JUDGE of the Family Court of the State of Delaware:

JAMES G. MCGIFFIN JR., JUDGE

On March 17, 2023, S---- and M--------- S----- petitioned to adopt G------ and B-----P------, two boys freed for adoption by the August 11, 2022, order terminating the parental rights of their parents.

These boys were born with serious physical and developmental challenges. The Delaware Division of Family Services became the custodian of the boys on June 7, 2021, while the boys were in treatment at a hospital in a Neo-natal Intensive Care Unit. DFS arranged placement with the S------ while the children remained hospitalized. Within a few weeks B----- became part of the S----- household. G------ moved back and forth from the hospital and eventually he, too, became a full-time member of this foster family.

The Court reviewed this placement several times in proceedings related to the Dependency/Neglect Petition for Custody prosecuted by DFS. As late as April 11, 2022, the Court noted that the children were thriving in the S----- home.

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On May 27, 2022, DFS removed the boys from the S----- home. DFS received information that caused the agency to question the suitability of Ms. S---- as a placement resource. DFS learned from a hotline report that Ms. S---- had "thoughts" of harming one of the children and was exploring the possibility of in-patient treatment for her own mental health issues. The hotline report apparently did not suggest that the children were neglected or abused.

In conversation with Ms. S----- after this revelation, DFS learned that Ms. S----- failed to disclose her mental health history to DFS.

DFS closed the S----- foster home on June 7, 2022. That decision and notice to the S----- was documented on July 25, 2022. The S----- filed timely an administrative appeal of the decision to close their foster home, received by DFS on August 26, 2022. DFS delayed scheduling the appeal hearing until January 25, 2023, five months. The Hearing Officer affirmed the DFS decision to close the S----- foster home.

Upon removal from the Severe home, the boys were each placed in a pre-adoptive foster home. B------'s foster parents have filed a petition for adoption. G------'s foster parent acknowledges that she is a potential long-term placement for the child.

The S----- seek consideration by this Court as an adoptive resource for both boys. They admit that their petition for adoption does not include the statutory requirement of proof of consent to the adoption by DFS. They admit that the boys are not placed with them and that the children were not placed with them "for adoption." The S----- argue that the actions of DFS in

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delaying the administrative hearing deprived them of due process of law. They also argue that DFS has unfettered control over the adoption process to the detriment of the P------ boys.

According to the decision of the Hearing Officer, Ms. S----- participated in mental health treatment before the boys were placed in her home. The record before me does not include information about the details of the vetting process for foster parents employed by DFS, so I cannot determine if Ms. S----- was candid during that process. She admitted concern that the stigma that follows consumers of mental health treatment services might compromise her candidacy as a foster care provider. The record indicates that her concern was valid.

The Hearing Officer found it significant that Ms. S----- testified she could not remember what she said to her therapist that may have prompted a hotline report. I note that the record has no information about the date of the therapy appointment during which she made the disclosure, but assuming it was the day of the hotline report, eight months passed before the hearing. The Hearing Officer found that Ms. S-----'s inability to recall the specifics of that particular conversation with her therapist (with whom she met weekly) bolstered the credibility of the DFS case. But what was the DFS case he found credible?

DFS did not establish that the boys were abused or neglected in the care of the S-----. DFS did not establish that Ms. S-----'s mental health put the boys at real risk. However, the record in this case raises a serious question about why a health care provider made the hotline call.

The statute that mandates reporting of child abuse and neglect states:

Any person, agency, organization or entity who knows or in good faith suspects child abuse or neglect shall make a report. 16 Del. C. § 903(a).

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Did the therapist hear Ms. S-----'s expression of her response to the tremendous stress of caring for two medically fragile infants as child abuse? Did the therapist hear it as child neglect? The only direct evidence in this record about the hotline call is that DFS reacted to it.

If Ms. S-----experienced "passive homicidal ideation," does that equate to child abuse or child neglect? Not under our statute.

Also unsettling about this process is the unaddressed but glaring fact that Ms. S----- is a person with a disability and she was closed out of the foster care program because DFS learned of the disability. The Hearing Officer dismissed any suggestion that there was an issue about whether DFS complied with the statutory requirement to act in a manner "compatible with due process of law." The Hearing Officer described this requirement as the obligation to decide on a basis other than a prohibited basis. He listed "race, sex, color, creed,... etc." as those prohibited bases. "Disability" is part of that "etc." he did not mention. Both the Americans with Disabilities

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and Section 504 of the Rehabilitation Act define as a person with a disability an individual with a mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment. No qualified person with a disability may be excluded from participation in the foster care program based on disability. DFS had an obligation to perform a fact-based individualized assessment of Ms. S-----. There is no evidence in this record that DFS fulfilled the obligation.

The ultimate irony is that S---- did what DFS requires of many, if not most, of the parents involved in Delaware's child welfare system - she engaged with a therapist for help in dealing with the stress of parenting.

These unaddressed anomalies and unconscionable delays do not avail the S----- on this petition. While DFS mishandled much of the administrative hearing process, this petition does not meet the statutory requirements for the relief the S----- seek.

The petition is dismissed.

IT IS SO ORDERED.