IN THE SUPREME COURT OF THE STATE OF DELAWARE
ABIGAIL ACORN and WENDALL § MALIC III,1 § § No. 148, 2019 Respondents Below, § Appellants, § § Court Below–Family Court v. § of the State of Delaware § SETH LAYMEN and LAURA § LAYMEN, § File No. 17-09-02TS § Petition No. 17-28003 Petitioners Below, § Appellees. §
Submitted: August 21, 2019 Decided: October 28, 2019
Before VAUGHN, SEITZ, and TRAYNOR, Justices.
ORDER
After careful consideration of the appellants’ brief filed under Supreme
Court Rule 26.1(c), their attorneys’ motions to withdraw, the appellees’
response, and the Child Attorney’s response, it appears to the Court that:
(1) By order dated March 5, 2019, the Family Court terminated the
parental rights of the appellants, Abigail Acorn (“the Mother”) and Wendall
Malic III (“the Father”) (collectively, “the Parents”), with respect to their
children—a girl, born in 2013, and a boy, born in 2015 (“the Children”).
1 The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d). (2) The Mother’s and the Father’s appointed counsel on appeal have
filed a joint opening brief and motions to withdraw pursuant to Supreme Court
Rule 26.1(c). Counsel assert that they have reviewed the record and have
determined that no arguable claim for appeal exists. Counsel informed the
Parents of the provisions of Rule 26.1(c) and provided them with copies of
the motion to withdraw and the accompanying brief. Counsel submitted the
Parents’ concerns as “Appellants’ Points” in their brief on appeal. The
appellees, Seth Laymen and Laura Laymen, and the Child’s Attorney have
responded to counsel’s Rule 26.1(c) brief and argue that the Family Court’s
judgment should be affirmed.
(3) In April of 2015, the Division of Family Services (“DFS”)
opened an investigation into the Parents after receiving reports that they were
using heroin and did not have adequate food for the Children in the hotel room
where they were living. DFS referred the Parents to treatment service
providers and directed them to update DFS about their progress. The Parents
failed to do so. Two months later, the Parents were arrested and charged with
various offenses stemming from their alleged illegal occupation of a
residence. Following their arrest, the Family Court awarded DFS emergency
custody of the Children. DFS immediately placed the Children with the
2 Laymens. At the time, the Children were approximately nineteen months old
and four months old.
(4) After DFS filed its dependency and neglect petition, the
mandated hearings ensued.2 A dispositional hearing was held on July 21,
2015, and the Family Court approved case plans developed by DFS to
facilitate the reunification of the Parents with the Children. The approved
case plans for the Mother and the Father required that they: (i) receive
substance abuse treatment, (ii) obtain and maintain employment and
demonstrate an ability to provide for the Children financially, (iii) obtain and
secure stable housing, and (iv) receive mental health treatment. The Father’s
approved case plan also required that he attend a parenting workshop and
build a support network of family and friends. The case plans ensured the
Mother and the Father would have visits with the Children twice a week for
two hours.
(5) Over the next nine months, the court held a series of hearings to
review the progress the Parents had made toward reunification. In a series of
orders following the review hearings, the Family Court found that the
Children remained dependent in the Parents’ care due to the Parents’ ongoing
2 When a child is removed from home by DFS and placed in foster care, the Family Court is required to hold hearings at regular intervals under procedures and criteria detailed by statute and the court’s rules. 13 Del. C. § 2514; Del. Fam. Ct. R. 212-219.
3 struggle to obtain stable housing, steady employment, and reliable
transportation. On May 10, 2019, the court held a permanency hearing. At
that time, the Children had been residing with the Laymens for approximately
eleven months. With the Parents’ agreement, the permanency goal was
changed from reunification to the concurrent goals of guardianship and
termination of parental rights.
(6) After the goal change, the Father’s sister, a resident of North
Carolina, filed a petition for guardianship of the Children. The Laymens also
filed a petition for guardianship. After a hearing on the competing petitions
for guardianship, the court found that the Children remained dependent in
Mother and Father’s care, and that it was in the Children’s best interests that
they continue to reside with the Laymens. Accordingly, the court denied the
Father’s sister’s petition and awarded guardianship of the Children to the
Laymens in March 2017. The Father’s sister did not appeal the denial of her
petition.
(7) On September 7, 2017, the Laymens filed a filed a petition (“the
TPR petition”) seeking to terminate the Parents’ parental rights on the basis
of their failure to plan for the Children’s needs.3 The Laymens later amended
the TPR petition to include additional grounds for the termination of parental
3 The Laymens also filed a petition to adopt the Children.
4 rights, specifically: (i) abandonment (intentional and unintentional), (ii)
chronic abuse, and (iii) unexplained serious physical injury resulting from the
conduct or neglect of the Parents. The Parents opposed the Laymens’ petition.
(8) The Family Court held a hearing on the TPR petition over two
days in November 2018. The Parents appeared, represented by counsel. The
Family Court heard testimony from the Mother, the Father, the Children’s
foster care and adoption social worker, a licensed child psychologist, Mr.
Laymen, Mrs. Laymen, the Father’s sister, the Father’s aunt, and the Father’s
grandmother. The testimony reflected that the Parents had been clean and
sober since December 2015. However, the testimony also reflected that: (i)
the Parents continued to struggle with obtaining and maintaining stable
housing, (ii) the Parents had failed to address their mental health issues until
after the TPR petition had been filed and more than two years after the
Children were removed from their custody, (iii) the Parents had not obtained
financial stability, (iv) the Parents had visitation with the Children for only
one hour once a month since the Laymens had been awarded guardianship in
March 2017, and (iv) the Parents could not immediately resume custody and
financial support of the Children because they had not filed a motion to
rescind the guardianship. The Family Court also heard evidence that the
Children experienced acute anxiety when placed in situations where they
5 feared the Laymens would abandon them. Importantly, the Family Court also
heard from the child psychologist who testified that the Children were very
bonded to the Laymen family and that a change in placement would be very
disruptive to the Children’s emotional development.
(9) Following the hearing, the Family Court issued a written decision
dated March 5, 2019. The court rejected the Laymens’ arguments that
termination of the Parents’ rights was appropriate due to abandonment,
chronic abuse, or serious injury. However, the Family Court found clear and
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
ABIGAIL ACORN and WENDALL § MALIC III,1 § § No. 148, 2019 Respondents Below, § Appellants, § § Court Below–Family Court v. § of the State of Delaware § SETH LAYMEN and LAURA § LAYMEN, § File No. 17-09-02TS § Petition No. 17-28003 Petitioners Below, § Appellees. §
Submitted: August 21, 2019 Decided: October 28, 2019
Before VAUGHN, SEITZ, and TRAYNOR, Justices.
ORDER
After careful consideration of the appellants’ brief filed under Supreme
Court Rule 26.1(c), their attorneys’ motions to withdraw, the appellees’
response, and the Child Attorney’s response, it appears to the Court that:
(1) By order dated March 5, 2019, the Family Court terminated the
parental rights of the appellants, Abigail Acorn (“the Mother”) and Wendall
Malic III (“the Father”) (collectively, “the Parents”), with respect to their
children—a girl, born in 2013, and a boy, born in 2015 (“the Children”).
1 The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d). (2) The Mother’s and the Father’s appointed counsel on appeal have
filed a joint opening brief and motions to withdraw pursuant to Supreme Court
Rule 26.1(c). Counsel assert that they have reviewed the record and have
determined that no arguable claim for appeal exists. Counsel informed the
Parents of the provisions of Rule 26.1(c) and provided them with copies of
the motion to withdraw and the accompanying brief. Counsel submitted the
Parents’ concerns as “Appellants’ Points” in their brief on appeal. The
appellees, Seth Laymen and Laura Laymen, and the Child’s Attorney have
responded to counsel’s Rule 26.1(c) brief and argue that the Family Court’s
judgment should be affirmed.
(3) In April of 2015, the Division of Family Services (“DFS”)
opened an investigation into the Parents after receiving reports that they were
using heroin and did not have adequate food for the Children in the hotel room
where they were living. DFS referred the Parents to treatment service
providers and directed them to update DFS about their progress. The Parents
failed to do so. Two months later, the Parents were arrested and charged with
various offenses stemming from their alleged illegal occupation of a
residence. Following their arrest, the Family Court awarded DFS emergency
custody of the Children. DFS immediately placed the Children with the
2 Laymens. At the time, the Children were approximately nineteen months old
and four months old.
(4) After DFS filed its dependency and neglect petition, the
mandated hearings ensued.2 A dispositional hearing was held on July 21,
2015, and the Family Court approved case plans developed by DFS to
facilitate the reunification of the Parents with the Children. The approved
case plans for the Mother and the Father required that they: (i) receive
substance abuse treatment, (ii) obtain and maintain employment and
demonstrate an ability to provide for the Children financially, (iii) obtain and
secure stable housing, and (iv) receive mental health treatment. The Father’s
approved case plan also required that he attend a parenting workshop and
build a support network of family and friends. The case plans ensured the
Mother and the Father would have visits with the Children twice a week for
two hours.
(5) Over the next nine months, the court held a series of hearings to
review the progress the Parents had made toward reunification. In a series of
orders following the review hearings, the Family Court found that the
Children remained dependent in the Parents’ care due to the Parents’ ongoing
2 When a child is removed from home by DFS and placed in foster care, the Family Court is required to hold hearings at regular intervals under procedures and criteria detailed by statute and the court’s rules. 13 Del. C. § 2514; Del. Fam. Ct. R. 212-219.
3 struggle to obtain stable housing, steady employment, and reliable
transportation. On May 10, 2019, the court held a permanency hearing. At
that time, the Children had been residing with the Laymens for approximately
eleven months. With the Parents’ agreement, the permanency goal was
changed from reunification to the concurrent goals of guardianship and
termination of parental rights.
(6) After the goal change, the Father’s sister, a resident of North
Carolina, filed a petition for guardianship of the Children. The Laymens also
filed a petition for guardianship. After a hearing on the competing petitions
for guardianship, the court found that the Children remained dependent in
Mother and Father’s care, and that it was in the Children’s best interests that
they continue to reside with the Laymens. Accordingly, the court denied the
Father’s sister’s petition and awarded guardianship of the Children to the
Laymens in March 2017. The Father’s sister did not appeal the denial of her
petition.
(7) On September 7, 2017, the Laymens filed a filed a petition (“the
TPR petition”) seeking to terminate the Parents’ parental rights on the basis
of their failure to plan for the Children’s needs.3 The Laymens later amended
the TPR petition to include additional grounds for the termination of parental
3 The Laymens also filed a petition to adopt the Children.
4 rights, specifically: (i) abandonment (intentional and unintentional), (ii)
chronic abuse, and (iii) unexplained serious physical injury resulting from the
conduct or neglect of the Parents. The Parents opposed the Laymens’ petition.
(8) The Family Court held a hearing on the TPR petition over two
days in November 2018. The Parents appeared, represented by counsel. The
Family Court heard testimony from the Mother, the Father, the Children’s
foster care and adoption social worker, a licensed child psychologist, Mr.
Laymen, Mrs. Laymen, the Father’s sister, the Father’s aunt, and the Father’s
grandmother. The testimony reflected that the Parents had been clean and
sober since December 2015. However, the testimony also reflected that: (i)
the Parents continued to struggle with obtaining and maintaining stable
housing, (ii) the Parents had failed to address their mental health issues until
after the TPR petition had been filed and more than two years after the
Children were removed from their custody, (iii) the Parents had not obtained
financial stability, (iv) the Parents had visitation with the Children for only
one hour once a month since the Laymens had been awarded guardianship in
March 2017, and (iv) the Parents could not immediately resume custody and
financial support of the Children because they had not filed a motion to
rescind the guardianship. The Family Court also heard evidence that the
Children experienced acute anxiety when placed in situations where they
5 feared the Laymens would abandon them. Importantly, the Family Court also
heard from the child psychologist who testified that the Children were very
bonded to the Laymen family and that a change in placement would be very
disruptive to the Children’s emotional development.
(9) Following the hearing, the Family Court issued a written decision
dated March 5, 2019. The court rejected the Laymens’ arguments that
termination of the Parents’ rights was appropriate due to abandonment,
chronic abuse, or serious injury. However, the Family Court found clear and
convincing evidence that the Parents had failed to plan adequately for the
responsibility of raising the Children. The court found further that, even if the
Parents were financially secure and able to provide the Children with stable
housing and other basic needs, the Parents would struggle to fulfill their
parental responsibility to meet the Children’s emotional needs. The Family
Court noted that the Children had been residing with the Laymens for nearly
four years and, after balancing the best interests factors under 13 Del. C. §
722, the court concluded that it was in their best interests to terminate the
Parents’ parental rights.
(10) On appellate review of a termination of parental rights, this Court
is required to consider the facts and the law as well as the inferences and
6 deductions made by the Family Court.4 We review legal rulings de novo.5
We conduct a limited review of the factual findings of the trial court to assure
that they are sufficiently supported by the record and are not clearly wrong.6
If the trial judge has correctly applied the law, our review is limited to abuse
of discretion.7
(11) The statutory procedure for terminating parental rights requires
two separate inquires.8 First, the court must determine whether the evidence
presented meets one of the statutory grounds for termination.9 If the Family
Court finds a statutory basis for termination of parental rights, the court must
determine whether, considering the factors enumerated at 13 Del. C. § 722,
severing parental rights is in the best interests of the child.10 It is incumbent
on the petitioner—the Laymens in this case—to prove by clear and convincing
evidence that there is a statutory basis for termination of parental rights and
that the best interests analysis favors termination.11
4 Scott v. DSCYF, 2012 WL 605700, at *1 (Feb. 27, 2012). 5 Wilson v. DFS, 988 A.2d 435, 440 (Del. 2010). 6 Id. 7 Powell v. DSCYF, 963 A.2d 724, 731 (Del. 2008). 8 Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000). 9 Id. at 537. See also 13 Del. C. § 1103(a) (listing the grounds for termination of parental rights). 10 13 Del. C. § 722(a) (listing the factors to be considered when determining the best interest of the child). 11 Powell, 963 A.2d at 731.
7 (12) On appeal, the Parents argue that: (i) the Family Court did not
consider the Parents’ wishes when it denied Father’s sister’s petition for
guardianship; (ii) the record reflects that Parents had, in fact, addressed the
elements of their case plans; and (iii) it was not in the Children’s best interests
to terminate the Parents’ parental rights. Parents also make new claims of
stable housing, employment, the existence of a support system, mental health
treatment, and reliable transportation.
(13) After careful consideration of the parties’ respective positions on
appeal and a thorough review of the record, the Court has determined this
appeal should be affirmed on the basis of and for the reasons assigned by the
Family Court in its March 5, 2019 decision. 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 the parents had failed to plan adequately for the
Children’s needs,12 that the Children had resided with the Laymens in excess
of one year, 13 that the Parents were incapable of discharging parental
responsibilities,14 and that termination of the Parents’ parental rights was in
the best interests of the Children.15 Those conclusions are well-supported by
12 13 Del. C. § 1103(a)(5). 13 13 Del. C. § 1103(a)(5)b.1. 14 13 Del. C. § 1103(a)(5)b.2. 15 13 Del. C. § 1103(a); 13 Del. C. § 722(a).
8 the record. Because an appeal is heard on the evidence submitted to the trial
court, we cannot consider Parents’ new claims of financial stability and
emotional support. 16 Also, this Court has no jurisdiction to consider the
Parents’ objection to the Family Court’s denial of the Father’s sister’s petition
for guardianship.17
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Family Court is AFFIRMED. The motions to withdraw are moot.
BY THE COURT:
/s/ Collins J. Seitz, Jr. Justice
16 Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented.”); Delaware Elec. Coop., Inc. v. Duphily, 703 A.2d 1202, 1206 (Del. 1997) (“It is a basic tenet of appellate practice that an appellate court reviews only matters considered in the first instance by a trial court. Parties are not free to advance arguments for the first time on appeal.”). 17 Hughes v. DFS, 836 A.2d 498, 506 (Del. 2003).