Sierra and Rodriguez v. DSCYFSierra and Rodriguez v. DSCYF
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
Upon appeal from the Family Court. AFFIRMED.
Brian T.N. Jordan, Esquire, Jordan Law, LLC, Wilmington, Delaware; Attorney for Respondent Below, Appellant Gianna Sierra.
George R. Tsakataras, Esquire, The Law Office of George R. Tsakataras, P.A., Wilmington, Delaware; Attorney for Respondent Below, Appellant Gilberto Rodriguez.
Eliza M. Hirst, Esquire, Office of the Child Advocate, Wilmington, Delaware; Attorney for Child, Giselle Rodriguez-Sierra.
Janice Rowe Tigani, Esquire, DEPARTMENT OF JUSTICE, Wilmington, Delaware; Attorney for Department for Children, Youth and their Families.
Mother and Father appeal from a Family Court order terminating their parental rights in Giselle, who was four months old when the Family Court first ordered her removed from the parents’ care. The court found Giselle was at risk of chronic and life-threatening abuse based on the previous unexplained serious injuries to her older sibling. The Family Court also found Mother and Father failed to plan for Giselle‘s physical needs and her mental and emotional health and development. Mother and Father challenge the sufficiency of the evidence supporting the termination of parental rights and raise a number of constitutional arguments on appeal. We find the arguments lack merit and affirm the Family Court‘s judgment.
I.
Gianna Sierra and Gilberto Rodriguez are Spanish-speaking parents of three children relevant to this proceeding.2 Prior to this action, the Department of Services for Children, Youth and their Families brought a dependency/neglect petition against the parents for serious physical injuries suffered by one of their children.3 In
December 2015, after the child was hospitalized, the Family Court found that “[c]lear and convincing evidence exists to believe that [a child] . . . has been abused” by both parents.4 The court continued that both parents “have collectively subjected [that child] to chronic abuse” and their “life-threatening abuse . . . caused [that child] to develop severe life-threatening head trauma.”5 The court found the parents’ explanations for what caused the injuries inconsistent with the medical findings. After the parents voluntarily relinquished their parental rights in
While the termination of parental rights proceeding was ongoing, Mother and Father had another child, Giselle. The parents took Giselle to the hospital several times over the following months, generally for routine visits. On August 30, 2016, Giselle came to the hospital “clenching her hands really tight” for unknown reasons.7 The hospital did not find signs of abuse. Shortly after, DSCYF sought emergency custody claiming that Giselle was “at risk of serious injury based on the family‘s substantiated DFS history.”8 The court agreed that there was probable cause of a substantial, imminent risk of danger to Giselle based on the previous serious injuries
to her sibling. The court granted custody to DSCYF, who placed four-month-old Giselle with an English-speaking foster family.
In a series of hearings between December 2016 and December 2018 the court assessed whether Giselle was “derivatively dependent” based on the court‘s previous finding that the parents had physically abused her older sibling. The court evaluated the derivative dependency issue by looking at three factors—whether the “prior finding demonstrate[d] such an impaired level of parental judgment as to create a substantial risk of harm for any child in that parents care;” whether the prior finding was proximate in time to the derivative proceedings; and whether the court could “reasonably conclude in the aggregate that the conditions resulting in the prior finding likely continue to exist.”9
The court found that all three factors favored finding the child derivatively dependent. According to the court, her older sibling‘s injuries were severe, they were proximate to when Giselle was last in the parents’ care, and they likely continued to exist.10 While DSCYF generally has a duty to pursue reasonable efforts to reunify the family, the court excused DSCYF from such efforts in light of the derivative dependency finding.11 But because the court also found that the parents
“should not necessarily be barred from exercising their parental rights for an indefinite period of time,” it ordered concurrent goals of reunification and TPR/adoption.12 As the court found, the parents “have a right to have available to them the opportunity to demonstrate that the Child will no longer be dependent in their care.”13 The court also increased visitation opportunities.14
When DSCYF eventually sought to terminate parental rights, it did so on three grounds—chronic and life-threatening abuse, unexplained serious injury, and failure to plan.17 The chronic and life-threatening abuse grounds are met when “[t]he parent has subjected a child to torture, chronic abuse, sexual abuse, and/or life-threatening abuse.”18 Because the statute was amended in 2009 to refer to ”a child” instead of ”the child,” the court reasoned it could consider whether Giselle was derivatively dependent based on the court‘s previous finding that the parents abused the older sibling.19
First, the court found the parents’ poor judgment created substantial risk of harm for any child because the older sibling suffered head injuries under the exclusive care of each parent, two weeks apart, as an 11-month-old child. Second, the court‘s abuse finding was proximate to the emergency custody order because of the severity of the sibling‘s head injuries, and the “fact that the parents never provided a reasonable explanation for those injuries.”20 And third, because the parents never provided a reasonable explanation for the sibling‘s injuries and they remained living together and in a relationship, the court found it “very difficult to
identify and plan out the optimal remedy.”21 The court also found that the parents did not learn how to protect young children from unsafe environments, the parents “have too many weaknesses in their parenting . . . to feel comfortable recommending that Child be returned to their care,” and the parents did not have the parenting skills to provide a consistent and predictable environment.22 Thus, the court found this ground supported terminating parental rights. It adopted the same analysis and conclusion for the unexplained serious injury ground of the statute.23
parents permanent guardians was not possible until the child was twelve years old. The court rejected postponing the decision for another nine years because Giselle was “entitled to permanency.”25 The court added that the parents were still together, not living with someone who could help protect Giselle, and had not sought services to address the past injuries to the older sibling. And finally, the court noted Giselle was in DSCYF custody for almost thirty months by the last hearing and deserved permanency. The court concluded that the parents failed to plan.
After finding grounds for termination, the court considered whether termination was in the child‘s best interests under the factors in
Finally, the court found it could consider the older sibling‘s previous injuries as evidence of domestic violence. Based on the strength of those three factors, the court found termination in Giselle‘s best interests and terminated Mother‘s and Father‘s parental rights.
We consolidated the parents’ appeals. On appeal we review the Family Court‘s decision for an abuse of discretion when the judge properly applied the law, and review issues of law de novo.28 “We will not disturb findings of fact unless they are clearly wrong and justice requires their overturn.”29 And “this Court will not substitute its own opinion for the inferences
II.
The Family Court must follow two steps before terminating parental rights.31 First, there must be at least one of the statutory grounds for termination under
determine whether severing parental rights is in the best interests of the child under the factors in
The Family Court relied on “derivative dependence” to find two statutory grounds had been met—
The parents do not challenge the court‘s use of a three-part test to assess derivative dependency, or that one of the factors weighed against them—impaired parental judgment due to the severity of the sibling‘s injuries incurred under the
exclusive care of each parent. Instead, they challenge the other two factors—proximity and whether the conditions are likely to continue to exist. For the proximity element, the court chose December 2015 as the start date, when the court first found abuse, and September 2016, when the parents last had unsupervised time with the child. Based on that duration, the court found the prior abuse proximate. The court also considered and rejected Father‘s arguments that the initial point should be when the injury occurred and the later point should be the present date, which at the time was over four years apart. And even if, according to the court, it considered the duration from the time of injury, March 2015, to September 2016, it was still proximate.
Father argues that the duration under consideration should have been the more than five years between the sibling‘s injuries and now, and that such time is not proximate. As evidence of their parental abilities, he adds that the parents completed services consistent with a case plan and the child was “actually safe and well cared for with” the parents for the first four
There are few reported cases on the proximity issue,37 and fewer in Delaware.38 The proximity element helps the court assess the ongoing risk of returning the child to the home. Setting the initial date at the time of injury is more consistent with this purpose because it better identifies a time of risk to the child than a court-planned hearing date. And setting the later date to the date of reunification is similarly more useful for assessing the risk to the child if returned home. While using those dates creates a longer duration than the Family Court considered in this case, it is not reversible error unless it caused the court‘s ultimate conclusion to be outside the factual record developed during the hearing. As noted earlier, the older sibling‘s injuries were severe, the parents voluntarily relinquished their parental rights in other children, and the court found that the parents lacked basic parenting skills to protect Giselle from future harm. Thus, even with the longer
duration, the Family Court would not have abused its discretion when it found the harm to Giselle‘s older sibling proximate for purposes of derivative dependency.
The court also found that, in the aggregate, the conditions causing the prior finding “likely continue to exist.”39 Because the parents did not offer any explanation for the injuries to the older sibling, the court could not determine whether the cause persisted. Further, the court found “no evidence” the parents “have focused any services on learning how to protect young children from unsafe environments,” and noted the State‘s expert testified that the parents “have too many weaknesses in their parenting for her to feel comfortable recommending that Child be returned to their care.”40 Although the court recognized that the parents completed activities typical of a case plan, they did not overcome its finding that the cause of the prior injuries likely continued to persist. The record supports the court‘s conclusion that the conditions resulting in the sibling‘s injury “likely continue to exist.”41
The parents raise several constitutional issues on appeal. They argue that DSCYF should have searched for a Spanish-speaking foster home and should not have relied on the language barrier to support termination.42 Father also argues that the statute relied on by the court to excuse DSCYF from pursuing reasonable reunification efforts under certain circumstances before terminating parental rights is unconstitutional. And, Father argues, the court improperly infringed on the parents’ Fifth Amendment rights when it relied on the older sibling‘s unexplained injuries to terminate their parental rights.
Parents must be accorded due process before terminating parental rights.43 To decide what process is due, this Court weighs the three factors from the United States Supreme Court‘s decision Mathews v. Eldridge.44 The first factor considers the private interests affected by the official action.45 No one disputes the significance of the private interest affected here—the right to parent.46 The second factor is the
risk of “erroneous deprivation of the interest through the procedures used and the probable value of any additional or substitute procedural safeguards.”47 And the final factor is the government‘s interests at stake.48 As this Court has stated, the government‘s interests are also important, including protecting the welfare of minor children, fostering an accurate decision, and economic efficiency.49 In cases like this—when both the private and governmental interests at stake are significant—the second factor is “pivotal.”50
A.
First, we address whether DSCYF should have searched for a Spanish-speaking foster family before placing her in an English-speaking home. We note that the claim is not that Giselle had to be
English-speaking placement created “an insurmountable language barrier between the pair.”52 And, they argue, the court relied on an expert that “blamed Mother‘s parenting rather than the apparent language barrier” to find that Mother and child “are not attuned to one another” and, ultimately, to terminate their parental rights.53
Our review of the record, however, does not support a due process violation. Although language should be considered in placements, the court did not violate the parents’ due process rights because whatever language barrier existed did not lead to the court‘s decision to terminate parental rights. First, once the Family Court decided that the statutory grounds for termination had been met through its derivative dependency determination, DSCYF was excused from making reasonable efforts to unify the family, including efforts to prevent a language barrier. Further, when considering witness testimony to assess the best interests of the child, neither the witnesses nor the court relied on any language barrier to evaluate the parents’ fitness as parents.
Testifying for DSCYF, Ms. Magana Luna, a bilingual family interventionist, observed bi-weekly visitations beginning in June 2017, felt that the visits were “strong/adequate,” and did not express a concern about a language barrier.54 Ms.
Randall, a licensed clinical social worker, testified to “a largely negative assessment of the parent-child relationship” after observing two supervised visits.55 After administering two assessments that test “caregivers in four domains (structure, engagement, challenge and nurture) over ten different age-appropriate activities,”56 Ms. Randall concluded that the parents “exhibit[ed] ‘obvious deficient parenting’ which can lead to abuse and/or neglect of a child,” and the child was not attached to the parents “at least in part due to their ‘inability to parent.‘”57 As for a language barrier, Ms. Randall was unconcerned, with only minor notes about the parents’ inability to understand Giselle‘s English and Mother‘s decision to teach Spanish when she should have been focused on another activity.58
because it “should be used for parental guidance and treatment planning.”59 And he testified it was “crucial” that children maintain contact with biological parents and recommended keeping a legal relationship between the child and parents.60 He did not, however, focus on a language barrier. Finally, Mother testified that Giselle could understand some of her Spanish during the assessments, but not all of it.61
The testimony shows that none of the witnesses relied on a language barrier to support their observations and opinions, even though the parents had the opportunity to challenge the basis of those opinions during the hearings. The court also did not rely on a language barrier to conclude that the parents lack the necessary parenting skills. Thus, there was not such a risk of erroneous deprivation of parental rights to find a due process violation.
B.
Father also argues that the statute excusing the State from pursuing reasonable efforts to reunify the family is unconstitutional on its face and as applied because it is not the least restrictive means available to the State for terminating parental rights.
Because parenting is a fundamental right, Father argues, the State must allow for some sort of case planning before terminating parental rights.
Section 1103(d) of Title 13 provides that DSCYF “is not required to perform, but is not prohibited from performing, reunification and related services” when DSCYF seeks termination on certain grounds.62 Those grounds, described as “aggravating factors,” include abandonment, prior felony conviction, involuntary termination of parental rights over a sibling, chronic abuse or life-threatening abuse, or unexplained serious physical injury.63
We presume statutes are constitutional unless there is clear and convincing
considering parental rights in the termination context, however, the Mathews standard applies to due process concerns.66 As noted earlier, we must weigh how the “no reasonable efforts statute” affects the risk of erroneous deprivation and probable value of additional procedures—in this case requiring reasonable efforts to reunification, which includes providing the parents a case plan to complete.
For a facial challenge to succeed, the statute cannot be valid under any set of circumstances.67 In other words, every application of the no reasonable efforts statute must cause an impermissible risk of erroneous deprivation, or stated in reverse, requiring reasonable efforts must create at least some likelihood of preventing an erroneous termination.68 Here, the no reasonable efforts statute expresses the General Assembly‘s intent that for the categories of cases where
planning is excused, the behaviors are so serious and the risk to the child is so high that requiring planning would only further endanger the child.69 And DSCYF‘s burden to prove by clear and convincing evidence that there are grounds for termination and termination is in the child‘s best interests adds protection against erroneous deprivations.70
Turning to the as-applied challenge, where Father claims that the statute is not valid when applied to the particular circumstances of this case,73 he argues that had DSCYF pursued reasonable efforts, it would have provided a case plan and, upon its completion, been compelled to return Giselle to her parents.74 But the court allowed the parents to try and show they could be fit parents and found that they completed many activities typically included in a case plan.75 Despite those actions, the court found the parents unfit to care for Giselle. Further, it is unlikely the parents could have completed a case plan without explaining adequately the sibling‘s injuries and providing a remedy, or that completing a case plan would have been sufficient to avoid termination. As a result, requiring reasonable efforts to reunify the family would likely not have led to a different result, and there was not an impermissible risk of erroneous termination of parental rights.76
Father also claims that the court improperly conditioned their parental rights on admitting culpability for the injuries to the older sibling. According to Father, the condition improperly pitted their fundamental right to parent against their Fifth Amendment right against self-incrimination.
The court found that the parents did not have Fifth Amendment rights in this case because it was not a criminal proceeding. This is incorrect. Under the Fifth Amendment, an individual has the right to refuse to answer “official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”77 The State may not penalize an individual for exercising a constitutional right.78 Although the court applied the law incorrectly, for the reasons below, we do not find a constitutional violation.
Father points to statements by DSCYF and the Family Court as evidence that reunification was conditioned on admitting criminal conduct involving the older sibling‘s injuries. For example, DSCYF would have case-planned with one parent if the other admitted responsibility for the injuries to the child‘s sibling.79 And the court reasoned, in part, that because they did not “admit[] culpability,” the unexplained injuries to the older sibling supported terminating parental rights.80 This, Father argues, “crippled their fundamental rights to parenthood by conditioning preservation of one fundamental right on waiver of another.”81
We first note that Father did not testify, and Mother did not address the right not to self-incriminate in the Family
times, a state agency removes a child because of the parents’ alleged improper or abusive conduct. When the parents are in the best and only position to know reliably what happened, the tension between the Fifth Amendment and parental rights is inevitable. When this happens, it is important to distinguish between an affirmative order requiring admission, which violates the right not to self-incriminate, and an order setting reasonable conditions for returning the child that are not related directly to culpability.83
Here, the court had to find the home safe before returning the child. The severity of the sibling‘s injuries and the lack of reasonable explanation contributed to the court finding the home unsafe—without knowing the cause, the court could not determine a remedy. To refute that finding, the parents had to show that the home was safe. If that conflicts with the parents’ admission of culpability, the court
could reasonably prioritize the safety of the child. The parents had the right not to incriminate themselves, but they did not have the right to avoid the consequences of no explanation for the injuries. Further alleviating the Fifth Amendment concern, the court found the lack of explanation was “not dispositive alone,” and it provided additional reasons for why it concluded that “the conditions resulting in the prior findings likely continue to exist.”84 Thus, the parents were not penalized even if they had invoked their Fifth Amendment rights during the hearing.
IV.
We affirm the Family Court‘s judgment terminating parental rights in Giselle.