Abbott v. DSCYF & DFS

• Court: Supreme Court of Delaware
• Decided: June 13, 2019
• Docket: 5, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

CONNOR ABBOTT,1 § No. 5, 2019 § Respondent Below, § Court Below—Family Court Appellant, § of the State of Delaware § v. § File Nos. 18-04-04TN; § CN15-04301 DEPARTMENT OF SERVICES § FOR CHILDREN, YOUTH, AND § Petition Nos. 18-10763; THEIR FAMILIES/DIVISION OF § 17-13700 FAMILY SERVICES, § § Petitioner Below, § Appellee. § § In the Interest of: § Mia Franks §

Submitted: May 16, 2019 Decided: June 13, 2019

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

ORDER

After consideration of the appellant’s brief and motion to withdraw filed by

the appellant’s counsel under Supreme Court Rule 26.1(c), the responses, and the

Family Court record, it appears to the Court that:

(1) This is an appeal from the Family Court’s order dated December 6,

2018 that terminated the appellant’s (“Father”) parental rights in his daughter

1 The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d). (“Child”). The Family Court’s order also terminated the parental rights of the

Child’s mother (“Mother”), whose separate appeal is currently pending before this

Court, in six children, including the Child. We focus on the facts in the record as

they relate to Father’s appeal.

(2) Father’s counsel has filed a brief and a motion to withdraw under

Supreme Court Rule 26.1(c). Father’s counsel asserts that, based upon a

conscientious review of the record, there are no arguably appealable issues. Counsel

informed Father of the provisions of Rule 26.1(c) and provided him with a copy of

the motion to withdraw and the accompanying brief. Counsel also informed Father

of his right to supplement counsel’s presentation. Father did not respond with any

points that he wanted to present for the Court’s consideration. The appellee, the

Department of Services for Children, Youth and Their Families, Division of Family

Services (“DFS”), and the Child’s guardian ad litem have responded to the Rule

26.1(c) brief and argue that the Family Court’s judgment should be affirmed.

(3) The Child was born in February 2014. Mother had four older children

and was pregnant with a sixth child when, in May 2017, DFS received an urgent

referral that Mother had moved into the home of a man who had been substantiated

for sexual abuse against one of the older children four years earlier. The family has

a complicated history of involvement with the Family Court extending back to at

least 2005, including allegations of sexual abuse of several of the children by various

2 men and lengthy periods where at least some of the children were in the guardianship

of various maternal relatives.

(4) Father is registered as a Tier II sex offender because of a prior

conviction for Unlawful Sexual Contact Second Degree, which did not involve the

Child or any of her siblings. At the time that the children came into DFS’s care,

Father was living at Oxford House, a transitional sober housing facility. The Family

Court granted ex parte custody of the children to DFS on May 5, 2017.

(5) At a preliminary protective hearing on May 17, 2017, Mother stipulated

as to probable cause for dependency concerning all the children. Father was not

present for that hearing. Before the hearing, he had expressed interest in being

considered as a placement option for the Child, but the Family Court noted that his

status as a registered sex offender would require him to rebut the statutory

presumption against his having custody.2 The court found there was probable cause

to believe the Child was dependent. The court also found that DFS had exercised

reasonable efforts to prevent the Child’s removal from the home and to place the

Child with relatives.

(6) Father appeared at an adjudicatory hearing on June 19, 2017. The

Family Court appointed counsel to represent him for purposes of that hearing and

ordered that different counsel would be appointed to represent him going forward;

2 13 Del. C. § 724A.

3 the court also ordered paternity testing to determine whether Father was the Child’s

father. Father stipulated to a finding of dependency due to his inability to provide

housing for the Child. The Family Court again noted the presumption against his

having custody. Mother stipulated to a finding of dependency because she had been

charged with ten counts of Endangering the Welfare of a Child and a no-contact

order was in place. The Family Court found that DFS had made reasonable efforts

to prevent the removal of the Child from the home and to find an appropriate relative

placement for the Child.

(7) On July 18, 2017, the Family Court held a dispositional hearing. The

DFS treatment worker testified regarding the elements of Father’s case plan, which

included a drug and alcohol evaluation, providing clean urine screens for six months,

obtaining appropriate and stable housing, obtaining employment, taking a parenting

class, and engaging in therapy individually and with the Child if necessary. Father

continued to live in Oxford House for substance abuse treatment and needed to

resolve outstanding legal issues. Because DFS had information suggesting that an

existing court order prohibited Father from being around children, he also was

required to provide verification that he was permitted to be around children. DFS

was exploring options for placement of the Child with certain relatives of Father,

including the Child’s paternal grandmother and Father’s brother (“Paternal Uncle”).

4 Mother’s case plan was also reviewed at the hearing, and the permanency plan

remained reunification.

(8) On October 12, 2017, the Family Court held a review hearing. Father

was working full time, although he later lost his employment in December 2017.

The no-contact order had been modified to allow supervised visits, but Father and

the Child had not yet had any visits. He was attending sex offender therapy as a

condition of probation. He was still living at Oxford House, and Oxford House

reportedly had no concerns about his progress in substance abuse treatment. Paternal

Uncle had filed a petition for guardianship of the Child. DFS had completed a

satisfactory home visit and determined that Paternal Uncle and his wife appeared

appropriate as a placement option, but a few days before the hearing DFS had learned

that Paternal Uncle had been investigated as a perpetrator of sexual abuse of a four-

year-old child in three different cases in 2006. Paternal Uncle had not disclosed

those cases to DFS, claiming that he had forgotten. The Paternal Uncle’s

guardianship petition was later dismissed in November 2017.

(9) The Family Court held another review hearing on January 5, 2018.

Father’s counsel was present, but Father did not appear at that hearing because of

snowy conditions.

(10) On March 20, 2018, DFS filed a motion to change the permanency goal

from reunification to termination of parental rights (“TPR”) and adoption. At a

5 review hearing on March 27, 2018, the DFS treatment worker testified regarding

Father’s progress on his case plan. Father had held full-time employment for two

months and was saving money for his own housing, but was living between friends’

and family members’ homes. He had completed parenting classes and was involved

in weekly therapy. Father and the Child had not had visits, but Father had been in

contact with the Child’s therapist. The court adjudicated Father to be the Child’s

father, based on the results of genetic testing. On April 4, 2018, the court granted

DFS’s motion to change the permanency goal to TPR and adoption.

(11) On April 2, 2018, DFS filed a petition to terminate Mother’s and

Father’s parental rights as to the Child. Trial on the TPR petition, and on separate

petitions to terminate parental rights as to the other children, was held on September

14 and 24, 2018, October 24, 2018, and November 9, 2018. Although Father

attended three of the four trial dates, and his counsel participated in all of the

hearings, Father did not present any evidence to overcome the presumption against

his having custody, nor did he present any evidence that he had suitable housing for

the Child. He elected not to testify during the proceedings. The Child’s therapist

testified that Father had contacted her about setting up counseling sessions with

Father and the Child, but the therapist declined to schedule them because DFS had

not established visitation between Father and the Child. Mother testified that before

the Child entered foster care, Father had visited and had brought clothing and toys

6 for the Child, but Father and the Child had never lived together. When confronted

with the allegations that the man Mother and the children were living with before

the children entered care had sexually abused the Child, Mother insisted the

allegations were false. When asked about the two Child Advocacy Center interviews

of the Child—during which the Child said that the man had “kissed her ‘pee pee,’”

“tried to ‘make me have a baby in my stomach,’” and “touched her on her butt with

a ‘nail’ when she was sleeping in her pajamas in her bed”—Mother described the

interviews as “hilarious.” During closing arguments, Father’s counsel

acknowledged that Father could not have custody of or unsupervised visits with the

Child because of his status as a sex offender. Father therefore supported

guardianship with the Child’s maternal grandmother, who had filed a petition for

guardianship of all six children.

(12) The Family Court found by clear and convincing evidence that Father

was unable to plan adequately for the Child’s physical needs or her mental and

emotional health and development.3 The Family Court further found by clear and

convincing evidence that (i) the Child had been in DFS’s care for more than a year;4

(ii) Father had not completed a case plan and was incapable of promptly assuming

legal and physical custody of the Child and to pay for her support 5; (iii) Father had

3 13 Del. C. § 1103(a)(5). 4 Id. § 1103(a)(5)a.1. 5 Id. § 1103(a)(5)a.4.

7 made no showing of an ability to care for the Child;6 and (iv) changing the Child’s

physical custody and placing her in the care of Father, whom she had not seen in a

year, would be emotionally and physically detrimental because there was no

evidence of a bond between the Child and Father.7 The court emphasized that since

the time that the Child entered foster care, Father had lived at the substance abuse

recovery center and at a men’s shelter and had not proved that he could provide

stable housing for the Child. The court also noted that Father had been convicted of

Unlawful Sexual Contact in the Second Degree8 and had not rebutted the

presumption against his having custody of the Child or unsupervised visits set forth

in 13 Del. C. § 724A.

(13) The Family Court next found by clear and convincing evidence that

DFS had made reasonable efforts to reunify the family. Finally, the Family Court

considered the best interest factors under 13 Del. C. § 722 and found, by clear and

convincing evidence, that termination of parental rights was in the Child’s best

interests.

(14) On appeal, this Court reviews the Family Court’s factual and legal

determinations as well as its inferences and deductions.9 We will not disturb the

6 Id. § 1103(a)(5)a.5.C. 7 Id. § 1103(a)(5)a.5.D. 8 See 11 Del. C. § 768 (“A person is guilty of unlawful sexual contact in the second degree when the person intentionally has sexual contact with another person who is less than 18 years of age or causes the victim to have sexual contact with the person or a third person.”). 9 Long v. Div. of Family Servs., 41 A.3d 367, 370 (Del. 2012).

8 Family Court’s rulings if the court’s findings of fact are supported by the record and

result from an orderly and logical deductive process.10 We review legal rulings de

novo.11 If the Family Court correctly applied the law, then our standard of review is

abuse of discretion.12

(15) The statutory procedure for terminating parental rights requires two

separate inquiries.13 First, the Family Court must determine whether the evidence

presented meets one of the statutory grounds for termination. 14 Second, the Family

Court must determine whether termination of parental rights is in the best interests

of the child.15 Both of these requirements must be established by clear and

convincing evidence.16

(16) After careful consideration of the parties’ positions and the record on

appeal, we conclude that the judgment of the Family Court should be affirmed on

the basis of, and for the reasons stated in, the Family Court’s thorough and well-

reasoned decision dated December 6, 2018. We find no error in the Family Court’s

application of the law to the facts. The Family Court found clear and convincing

evidence that Father had failed to plan adequately for the Child’s needs, that DFS

10 In re Heller, 669 A.2d 25, 29 (Del. 1995). 11 Id. 12 CASA v. Dep’t of Servs. for Children, Youth and Their Families, 834 A.2d 63, 66 (Del. 2003). 13 Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000). 14 Id. at 537. See 13 Del. C. § 1103(a) (listing the grounds for termination of parental rights). 15 Shepherd, 752 A.2d at 537. See 13 Del. C. § 722(a) (listing factors for consideration when determining the best interests of the child). 16 Powell v. Dep’t of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731 (Del. 2008).

9 had made reasonable reunification efforts, and that termination of Father’s parental

rights was in the best interests of the Child. Those conclusions are well-supported

by the record. Thus, we affirm.

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

Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice