            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    KAREN GIBSON,               §
                                §                       No. 604, 2016
            Respondent Below,   §
            Appellant,          §                       Court Below: Family Court of
                                §                       the State of Delaware
         v.                     §                       File No. CN15-03033
                                §                       Petition No. 16-13203
    DEPARTMENT OF SERVICES FOR §                        File No. CN15-02126
    CHILDREN AND THEIR FAMILIES §                                16-09-07TN
    and MATTHEW BARNES, and     §                       Petition Nos. 15-07560
    MICHELLE BARNES,            §                                     16-27360
                                §                       File No. CN15-02121
            Petitioners Below,  §                                16-09-06TN
            Appellees.          §                       Petition Nos. 15-07539
                                §                                     16-27619
                                §

                                  Submitted: October 11, 2017
                                  Decided: November 16, 2017

Before Valihura, Vaughn, and Traynor, Justices.

                                          ORDER

         On this 16th day of November 2017, upon consideration of the parties’ briefs

and the record on appeal, it appears that:

         (1)    Appellant, Karen Gibson1, appeals from a Family Court order granting

permanent guardianship of one of her children to the child’s paternal grandparents

and terminating her parental rights in two other children. She makes two claims on

appeal. She contends: (1) the Family Court erred in concluding by clear and


1
    A pseudonym was assigned on appeal pursuant to Supr. Ct. R. 7(d).
convincing evidence that the permanent guardianship and termination of her parental

rights was in the best interest of the children; and (2) the Family Court erred in

concluding by clear and convincing evidence that she failed to plan for the needs of

the children.

       (2)      Karen Gibson is the mother of Sandy G., born November 16, 2009, and

Ivy R. and Israel R. (“Twins”), born August 25, 2012.2 The children were removed

from their mother’s care on March 20, 2015, when the Department of Services for

Children, Youth and Their Families (“DSCYF”) filed for and received temporary

custody of all three children.

       (3)      DSCYF was contacted on March 18, 2015, regarding concerns of

medical neglect of the Twins and physical abuse of Sandy. A decision making

meeting was held the same day. The Twin’s physician, Deborah Consolini, M.D.,

expressed concerns about the medical wellbeing of the Twins. The Twins were

born premature with developmental complications causing them to spend the first

two years of their lives in a hospital setting. The Twins were discharged to Gibson’s

care in 2014 but Dr. Consolini found they were not attending scheduled medical

appointments and not making developmental progress. All three children resided



2
  Unless otherwise indicated, all facts are taken from the Family Court’s opinion and order
below, attached to Appellant’s Opening Brief as Exhibit 1.


                                                2
with Gibson and Mr. R in a garage like structure on the maternal grandparent’s

property. Gibson agreed to a safety plan under which the children would move into

the maternal grandparent’s main home and Gibson would take the Twin’s to all

medical appointments.

      (4)   On March 19, 2015, a DSCYF worker met with Sandy at her daycare

regarding physical abuse allegations, and Sandy was taken to A.I. DuPont Hospital

to be examined. She presented with bruising to her forehead, arms and legs,

including a bruise to her inner right thigh resembling a belt buckle, which Sandy

indicated were inflicted by Mr. R. The following day DSCYF visited the maternal

grandparent’s home and found that Gibson had not moved the children into the main

home as required by her safety plan. DSCYF’s emergency custody petition was

filed and granted by the Family Court that day.

      (5)   On March 25, 2015, a Preliminary Protective Hearing was held.

Gibson was present but Mr. R was not. The Family Court heard evidence regarding

the medical neglect of the Twins and allegations of the physical abuse of Sandy by

Mr. R. The Family Court found probable cause existed that the children were

dependent and found it in their best interest to remain in DSCYF custody.

      (6)   On April 22, 2015, an Adjudicatory Hearing was held. Gibson was

present but Mr. R was not. His whereabouts were unknown but DSCYF suspected



                                         3
he was living in Philadelphia. Gibson denied knowing his whereabouts or speaking

to him since the children entered DSCYF’s custody. Gibson stipulated to a finding

of dependency. In addition, Gibson entered into a case plan which included:

obtaining and maintaining stable housing and income; completing a parent education

course; completing mental health and substance abuse evaluations and any

recommended treatment; completing domestic violence and anger management

courses; attending the children’s medical appointments; and attending visitation with

the children.

      (7)       On May 19, 2015, a Dispositional Hearing was held. Gibson was

present but Mr. R was not. His location was not known and a warrant had been

issued for his arrest relating to Sandy’s abuse. Gibson stipulated to a finding of

dependency. Gibson’s DSCYF treatment worker testified that she provided Gibson

information on Section 8 housing options, contact information for domestic violence

counseling and anger management programs, and referred her to psychological and

substance abuse evaluations. On this date, the paternal grandparents filed a Petition

for Permanent Guardianship of Sandy.

      (8)       On September 24, 2015, a Review Hearing was held. Gibson and Mr.

R were present. Mr. R had been arrested in Philadelphia for second degree assault

of Sandy and endangering the welfare of a child. At the time of this hearing he was



                                         4
incarcerated pending trial. Gibson was living at a home in Philadelphia with

relatives of Mr. R but she denied knowing his whereabouts before his arrest.

Gibson’s DSCYF treatment worker told the Family Court that Gibson had attended

a case planning meeting on July 15, 2015, but failed to attend the next scheduled

meeting on September 22, 2015. DSCYF presented evidence that Gibson was still

residing in Philadelphia. The Family Court found the children remained dependent

by a preponderance of the evidence.

      (9)   On November 30, 2015, a Second Review Hearing was held with only

Gibson present. Mr. R was still incarcerated. Gibson had returned to the maternal

grandparent’s home. She was living in the upstairs of their main house. Gibson

was to notify DSCYF when the children’s beds were moved to the main home.

DSCYF presented evidence that Gibson had cancelled a case planning meeting

scheduled on October 5, 2015, but she had attended an Individualized Education

Program meeting for the Twins. The Family Court found the children remained

dependent by a preponderance of the evidence.

      (10) On December 21, 2015, Mr. R pled guilty to second degree assault of

Sandy and received a term of incarceration. A no-contact order was issued for

Sandy.

      (11) On February 11, 2016, the DSCYF Permanency Planning Committee



                                        5
met and recommended a goal change to Termination of Parental Rights (“TPR”) and

adoption for the Twins. As to Sandy, the Committee recommended a Permanent

Guardianship with the paternal grandparents.

      (12) A Third Review Hearing was held on February 22, 2016. Gibson and

Mr. R were present along with the Barnes. Gibson’s DSCYF treatment worker

testified that she spoke with Gibson about the importance of the counseling and

treatment programs in her case plan.        Gibson advised she planned to attend

domestic violence and anger management classes. The Family Court found the

children continued to be dependent by a preponderance of the evidence.

      (13) Gibson’s DSCYF treatment worker conducted a home assessment of

the maternal grandparent’s main house in February 2016. DSCYF determined the

housing to be appropriate, but Gibson’s case plan still had not been completed.

DSCYF filed Motions to Change the Goal on May 3, 2016, to reflect the changes

agreed upon by the Planning Committee at its February 11, 2016, meeting. The

maternal grandmother subsequently filed a Petition for Guardianship of the Twins

and the paternal grandparents filed a Petition for Permanent Guardianship of Sandy.

      (14) A Permanency Hearing was held May 16, 2016, at which Gibson and

Mr. R were present. The Court granted DSCYF’s Motions to Change as to the

Twins based on Gibson’s failure to complete her case plan and concerns about her



                                        6
ability to protect the children from domestic violence. The Family Court took

notice of Gibson’s appropriate housing, her attendance at mental health

appointments, and her efforts to gain employment, and kept a concurrent goal of

reunification for all the children.

           (15) The maternal grandmother’s Petition for Guardianship of the Twins

was denied on September 16, 2016.                              The Family Court heard argument on

DSCYF’s Petitions for TPR for the Twins and the paternal grandparents Permanent

Guardianship of Sandy on October 26, 2016 and November 2, 2016. The Family

Court found the paternal grandparents were eligible to serve as Sandy’s permanent

guardians and they established grounds for permanent guardianship by clear and

convincing evidence.3 Further, the Family Court found by clear and convincing

evidence that Gibson failed to plan for the children’s needs and that DSCYF made

reasonable efforts to reunite the family. The Family Court terminated Gibson’s

parental rights in the Twins based on her failure to plan and the children’s best

interests.4

           (16) First, we agree on the record before us that the Family Court did not err

when granting the paternal grandparents’ Petition for Permanent Guardianship of




3
    Sandy’s father consented to the paternal grandparents’ petition for permanent guardianship.
4
    The Twins father, Mr. R, consented to termination of his parental rights.



                                                           7
Sandy. In granting a permanent guardianship request, a trial judge must find by

clear and convincing evidence that one of the statutory grounds for termination of

parental rights set forth in 13 Del. C. § 1103(a) has been met.5 The court then

decides whether permanent guardianship is in the best interest of the child.6 The

court must also find that adoption is not possible or appropriate and the proposed

guardian is suitable to serve as a guardian. 7 When reviewing whether evidence

justifying a termination of parental rights has been established, this Court conducts

a “review of the facts and law, as well as the inferences and deductions made by the

trial court.”8 “We will not disturb a trial judge’s factual findings unless they are

clearly erroneous and justice requires that they be overturned.”9 “Moreover, this

Court will not substitute its own opinion for the inferences and deductions made by

the Trial Judge where those inferences are supported by the record and are the

product of an orderly and logical deductive process.”10 Our review is limited to an

abuse of discretion when the trial judge has correctly applied the appropriate law.11

“To the extent that the issues on appeal implicate rulings of law, we conduct a de


5
   13 Del. C. § 2353 (a)(1).
6
   § 2353 (a)(3).
7
   § 2353 (a)(2)–(5).
8
   Powell v. Dep’t. of Servs. For Children, Youth and their Families, 963 A.2d 724, 730 (Del.
2008).
9
   Arthur-Lawrence v. Div. of Family Servs., 2005 WL 2397523, at *5 (Del. Sept. 27, 2005).
10
    Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983).
11
    Powell, 963 A.2d at 731.


                                                8
novo review.”12

         (17) Here, the trial court granted the paternal grandparents’ Petition for

Permanent Guardianship of Sandy after conducting a thorough review and providing

an explanation of every statutory factor required under 13 Del. C. §2353. The trial

court found by clear and convincing evidence that Gibson had failed to meet the 13

Del. C. §1103(a) statutory ground requiring her to adequately plan for her children.

The trial court found the paternal grandparents’ preference for guardianship over

adoption in an effort to maintain their grandparent-grandchild relationship with

Sandy to be appropriate.

         (18) The trial court conducted a section-by-section best interest analysis

under 13 Del. C. § 722, finding by clear and convincing evidence that permanent

guardianship was in Sandy’s best interest. Of the eight factors in the best interest

test, the court found factors 3, 4, 5, 6, 7, and 8, in favor of granting permanent

guardianship.

         (19) The first factor is the wishes of the child’s parent as to the child’s

custody and residential arrangement. Here, Gibson wanted custody of Sandy and,

as such, this was the only factor the court found in her favor.

         (20) The second factor is the wishes of the child as to custody and residential


12
     Id. at 730-31.


                                            9
arrangement. Here, Sandy was only six years old and no request was made for the

court to hear her wishes. The court found this factor did not apply.

      (21) The third factor is the child’s interactions and relationships with the

parents, family, and anyone else living with the family unit. Here, evidence was

presented that Sandy was living with the paternal grandparents in a loving

relationship. Sandy was placed with the paternal grandparents shortly after March

2015 when she was removed from her mother’s care. DSCYF presented evidence

that Sandy was “strongly bonded” to the paternal grandparents and that during home

visits Sandy interacted with the grandparents as if they were her parents. Sandy has

a good relationship with the paternal grandparents’ adult daughter who frequently

visits, takes Sandy to McDonalds, or brings Sandy to visit her friend who has a

daughter the same age as Sandy.

      (22) The trial court found Gibson sporadically visited Sandy. The paternal

grandparents stated Sandy would go months without asking about Gibson or seeing

her. Gibson testified Sandy would be excited to see her and DSCYF reported Sandy

would allow mother to physically interact with her. The paternal grandparents

testified Sandy’s behavior was defiant and disrespectful following visits with

Gibson. Sandy has seen the Twins during her visits with Gibson. Gibson has two

older children who had not visited with Sandy. The maternal grandparents have not



                                        10
visited since Sandy entered DSCYF custody.

      (23) The fourth factor is the child’s adjustment to home, school, and

community. Here, evidence was presented that Sandy initially was clingy, afraid

of the dark, and exhibited behavioral issues, all of which have been addressed during

Sandy’s and the paternal grandparents’ joint counseling sessions with Sandy’s

counselor. Sandy is the “teacher’s helper” at school and gets along with her

classmates. It was reported that she missed one day of school over the past year.

The paternal grandparents testified that Sandy likes to sing, dance, and do

gymnastics, and they encourage her to be an active participant in their church.

      (24) The fifth factor is the mental and physical health of all individuals

involved. Here, when Sandy moved in with her paternal grandparents, she had

cavities and decaying teeth. The paternal grandparents had many of her baby-teeth

removed and Sandy now regularly sees a dentist. Sandy also has asthma which is

maintained through regular use of an inhaler. Under the paternal grandparents’

care, Sandy continued to see a counselor on a monthly basis, sometimes bi-weekly,

to address behavioral issues.

      (25) The sixth factor is the past and present compliance by the parents with

their rights and responsibilities to their children. Here, Gibson has sporadically

visited Sandy. She has provided no financial support to the paternal grandparents.



                                         11
Sandy remained in DSCYF custody “due to repeated findings of dependency by a

preponderance of the evidence.”

      (26) The seventh factor is evidence of domestic violence. Here, Sandy

entered DSCYF’s custody with extensive bruising and a mark on her inner thigh

resembling a belt buckle. Gibson’s love interest, Mr. R, was charged with abusing

Sandy. Gibson maintained the injuries caused by Mr. R were an accident, and that

he only intended to scare Sandy. Further, the court heard testimony that Gibson

may have been maintaining an ongoing relationship with Mr. R. and that Gibson

allowed Sandy to have telephone contact with Mr. R. The paternal grandparents

admitted to occasionally spanking Sandy. The paternal grandfather admitted to a

probation before judgment sentence imposed eight years prior for offensive touching

and third degree assault after he slapped his adult-aged daughter. The paternal

grandfather also admitted an incident of domestic violence with his first wife over

twenty years ago.

      (27) Finally, the eighth factor is the criminal history of any party or any

resident of the household.    Here, the paternal grandfather has the offensive

touching, third degree assault charges, and additional motor vehicle infractions.

The paternal grandmother has no Delaware criminal history. Gibson was convicted

of shoplifting twice since the children entered DSCYF custody and has a 2012



                                        12
conviction for third degree assault. At the time of the Family Court’s October 26,

2016, hearing Gibson had an active capias for failure to appear relating to pending

charges of theft under $1,500.

         (28) After the best interest analysis under 13 Del. C. § 722, the court

examined the emotional, mental, physical, and financial suitability of the paternal

grandparents to serve as Sandy’s permanent guardian.13 Here, the court found the

paternal grandparents had no physical or mental health issues that would prevent

them from caring for Sandy. The couple received disability income and Social

Security income. They own their home and have a mortgage, although they were a

month behind on utility payments. They acknowledged the requirement to maintain

sufficient income in order to financially provide for Sandy. Sandy had been in the

paternal grandparents’ care for over a year at the time of the hearing and they

testified they are committed to assuming all rights and responsibilities for raising

Sandy until the age of majority.

         (29) The Family Court granted the paternal grandparents’ Petition for

Guardianship of Sandy after thoroughly analyzing all statutory requirements of 13

Del. C. § 2353. The court found: Gibson eligible to have her parental rights in

Sandy terminated under one of the sections in 13 Del. C. § 1103(a); Permanent


13
     13 Del. C. § 2353 (a)(4).


                                        13
Guardianship was in Sandy’s best interest; and the paternal grandparents were

suitable to become Permanent Guardians. The record supports the Family Court’s

findings.

       (30) Next, we agree on the record before us that the Family Court did not err

in terminating Gibson’s parental rights in the Twins. Under Delaware law, a trial

judge must conduct a two-step analysis when deciding whether or not to terminate

parental rights. 14    First, the judge must determine whether there is clear and

convincing evidence that one of the grounds for termination enumerated in 13 Del.

C. § 1103(a) has been met.15 If one of the enumerated grounds for termination has

been met, the trial judge next determines if there is clear and convincing evidence

that termination of parental rights is in the best interest of the child as defined under

13 Del. C. § 722.16 “[W]here termination of parental rights is sought primarily on

the ground that a parent has failed, or was unable, to plan adequately for a child’s

needs . . . the trial court is required to make appropriate findings of fact and

conclusions of law” regarding the State’s compliance with the Child Welfare Act of

198017 and 29 Del. C. §§ 9003.18


14
   Powell v. Dep’t. of Servs. For Children, Youth and their Families, 963 A.2d 724, 731 (Del.
2008).
15
   Id.
16
   Id.
17
   42 U.S.C. §§ 608, 620-28, 670-76 (1982).
18
   Matter of Burns, 519 A.2d 638, 649 (Del. 1986).


                                               14
         (31) Here, the record supports the Family Court’s determination, by clear

and convincing evidence, that Gibson had failed to plan for the physical and mental

needs of Sandy and the Twins.19 All three children had been in DSCYF’s custody

for over one year and seven months at the time of the hearing.20 The court found

Gibson had failed to satisfy her case plan that was signed on April 2, 2015.

         (32) The Family Court heard evidence about Gibson completing the housing

portion of her case plan but noted concern over her pattern of leaving the home in

favor of residing with Mr. R.

         (33) Gibson remained unemployed and the court found she had not

demonstrated the ability to support the children financially. This was evident from

her struggles to support herself in light of her inability to pay the necessary $14 fee

to the Visitation Center to visit her children while in DSCYF care. Further, she

intended to rely upon Social Security income for the benefit of the Twins that was

unascertainable.        Gibson obtained additional shoplifting convictions while the

children were in DSCYF care. The court noted Gibson had not been attending all

the children’s doctors’ appointments, specifically for the Twins who have special

medical needs. Gibson had gone periods of three months and two months without



19
     13 Del. C. § 1103 (a)(5).
20
     § 1103 (a)(5)1.


                                            15
visiting the children since they entered the State’s care.

      (34) The Family Court expressed concern over the domestic violence

elements of Gibson’s case plan. Based on evidence at the Permanency Hearing, the

Family Court determined Gibson did not demonstrate the ability to implement the

skills or knowledge she learned, if any, from her domestic violence and anger

management courses. Gibson refused to assign any blame to Mr. R for injuring

Sandy and continued to insist the buckle shaped bruise on her thigh was the result of

an accident. Gibson facilitated phone contact between Mr. R and Sandy in violation

of the no-contact order that was in place. Evidence was presented that Gibson was

carrying on a relationship with Mr. R. A DSCYF intern testified to seeing Gibson

and Mr. R together on a SEPTA train from Philadelphia to Wilmington just two

weeks prior to the Family Court’s Permanency Hearing. The court was troubled

that Gibson moved to Philadelphia while Mr. R was wanted for abusing Sandy

instead of remaining at the maternal grandparent’s home to work on reunification

with the children. The court found Gibson had not shown the ability to protect the

children from domestic violence and found she would likely expose them to Mr. R

if they were returned to her custody.

      (35) In addition to finding that Gibson failed to plan for the children’s care,

the code requires clear and convincing evidence that one or more statutory



                                          16
conditions be met.21 Here, the Family Court analyzed all five factors under 13 Del.

C. § 1103(a)(5)–even though only one factor is necessary to be found by clear and

convincing evidence–and found factors 1, 4, and 5 applied. Section 1103(a)(5)1

requires the children be in DSCYF custody for at least one year. Here, Gibson’s

children had been in the State’s custody for one year and seven months.

           (36) After determining one of the statutory grounds of 13 Del. C. §1103(a)

has been met, the Family Court must determine if the TPR is in the child’s best

interest under 13 Del. C. § 722. The factors are the same as those in the analysis

regarding the paternal grandparents’ Petition for Permanent Guardianship of Sandy.

The court analyzed these factors as to the Twins and found factors 4, 5, 6, 7, and 8

supported granting the TPR.

           (37) The first factor is the wishes of the child’s parent as to the child’s

custody and residential arrangement. Here, Gibson wanted custody of the Twins.

This was the only factor the court found in her favor. The court noted she did not

take the adequate steps to reunite with the children for the nearly two years they were

in DSCYF custody.

           (38) The second factor is the wishes of the child as to custody and a

residential arrangement. Here, the Twins were only four years old and no request


21
     Id.


                                            17
was made for the court to hear their wishes. The court found this factor did not

apply.

         (39) The third factor is the child’s interactions and relationships with the

parents, family, and anyone else living with the family unit. Here, the Twins

resided in a hospital for the first two years of their lives. After their discharge they

remained with Gibson for only eight months before DSCYF removed them from her

custody. The court found the Twins have spent more time in a hospital and State

custody during their lives than with Gibson. Gibson sporadically visited the Twins

during their time in DSCYF custody, sometimes going up to three months without

seeing them. The maternal grandparents and Gibson’s older son did not visit the

Twins while they were in foster care.

         (40) The fourth factor is the child’s adjustment to home, school, and

community.       Here, the court found Gibson failed to provide a suitable living

environment for the children. In DSCYF care, the Twins have been attending

daycare and have been making developmental progress.

         (41) The fifth factor is the mental and physical health of all individuals

involved. Here, while in foster care, the Twins have received all necessary medical

treatment and have demonstrated strides in physical and occupational therapy.

They improved their language, motor skills, and are able to run and speak. One



                                          18
Twin was on strict dietary guidelines when he entered DSCYF care but had since

been weaned off the requirements. DSCYF contended the Twins medical care is a

full-time job with significant commitments. Gibson had not been attending medical

appointments while the Twins were in DSCYF custody. She admitted to not

knowing their current medical needs.

      (42) The sixth factor is the past and present compliance by the parents with

their rights and responsibilities to their children. Here, the Twins are in foster care

because of Gibson’s failure to provide care for them. Gibson failed to complete her

case plan, did not have employment, and had not been providing financial support

for the children.

      (43) The seventh factor is evidence of domestic violence. Here, the Twins’

entered DSCYF custody partly because of the abuse of their sister by Mr. R.

      (44) Finally, the eighth factor is the criminal history of any party or any

resident of the household. Here, Gibson was convicted of shoplifting twice since

the children entered DSCYF custody and has a 2012 conviction for third degree

assault. At the time of the Family Court’s October 26, 2016, hearing Gibson had

an active capias for failure to appear relating to pending charges of theft under

$1,500.

      (45) Finally, after finding one of the statutory grounds for TPR exists and



                                          19
determining TPR to be in the children’s best interest, the court must conclude

whether DSCYF made reasonable efforts to reunify Gibson with her children.

Here, the Family Court found DSCYF presented Gibson with a reasonable case plan

which addressed housing, finances, domestic violence, mental health, substance

abuse, parenting, legal issues, and visitation. Gibson failed to appear for DSCYF

case planning meetings and visitation with the children multiple times. DSCYF

representatives testified to often having problems reaching mother via email or

phone. Gibson failed to attend medical appointments after DSCYF gave her notice.

The Visitation Center deactivated Gibson’s case for her failure to appear for

visitation dates.

      (46) The Family Court thoroughly analyzed each element of 13 Del. C.

§1103(a) and clear and convincing evidence was presented that TPR was in the best

interest of the Twins. The record supports the Family Court’s order.

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

Court is AFFIRMED.

                                         BY THE COURT:

                                         /s/ James T. Vaughn, Jr.
                                         Justice




                                       20
