Black v. DSCYF

• Court: Supreme Court of Delaware
• Decided: April 8, 2020
• Docket: 339, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARIUS BLACK,1 § § No. 339, 2019 Respondent Below, § Appellant, § § v. § Court Below–Family Court § of the State of Delaware DEPARTMENT OF SERVICES FOR § CHILDREN, YOUTH AND THEIR § File No. 19-02-06TN FAMILIES (DSCYF), § Petition No. 19-04579 § Petitioner Below, § Appellee. § § IN THE INTEREST OF: § Hayden Peters §

Submitted: January 28, 2020 Decided: April 8, 2020

Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, Justices.

ORDER

Upon consideration of the appellant’s brief filed under Supreme Court Rule

26.1(c), his attorney’s motion to withdraw, the appellee’s response and motion to

affirm, and the Child’s attorney’s response, it appears to the Court that:

1 The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d). (1) The Family Court terminated the parental rights of the appellant,

Marius Black (“the Father”), in his minor daughter (“the Child”) by order dated July

8, 2019. 2 The Father appeals.

(2) In April 2018, the Department of Services for Children, Youth and

Their Families (“DSCYF”) opened a treatment case involving the Child, born in

2017, and the Child’s mother (“the Mother”) after receiving a report that there were

concerns for the safety of the Child because of drug use in the home. DSCYF put a

safety plan in place, providing that the Child was not to have unsupervised contact

with the Mother. In May 2018, DSCYF received an urgent hotline report that the

Mother was under the influence of drugs and had thrown the Child to the ground

repeatedly. DSCYF petitioned the Family Court for an ex parte order for custody of

the Child. In its petition, DSCYF averred that it had been unable to locate the Father

in the course of its open treatment case to assess his appropriateness as a caregiver

for the Child. The court granted custody of the Child to DSCYF on May 4, 2018.

With the filing of DSCYF’s dependency and neglect petition, the mandated hearings

ensued.3

2 The Family Court’s order also terminated the parental rights of the Child’s mother, who is not a party to this appeal. We only recite the facts in the record as they relate to the Father’s appeal. 3 When a child is removed from home by DSCYF 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.

2 (3) The Family Court held a preliminary protective hearing on May 9,

2018. The Child had been placed with her maternal grandmother (“the Maternal

Grandmother”). The Father was not present. DSCYF proffered that the Father had

been contacted and was planning to attend a team meeting the following day. The

Father arrived at the conclusion of the hearing and was given notice of the

adjudicatory hearing.

(4) The Family Court held an adjudicatory hearing on June 6, 2018. The

Father arrived twenty minutes late. DSCYF had concerns about the Father because,

although he had regular contact with the Child, he had been unaware of DSCYF’s

open treatment case concerning the Child. DSCYF also had misgivings about the

Father’s history of drug use and his lack of knowledge of the Mother’s substance

abuse history. The Father testified that he was receiving regular substance abuse

treatment and that he resided with his sister or, on occasion, with his mother. The

Father stipulated that the Child was dependent in his care to allow DSCYF the

opportunity to investigate whether his sister’s home was an appropriate placement

and to explore the Father’s ability to provide for the Child’s daycare needs.

Following the hearing, the Family Court appointed counsel to represent the Father.

The Family Court found that DSCYF had made reasonable efforts to prevent the

unnecessary removal of the Child from the home and had exercised due diligence in

3 identifying and notifying the Child’s family members of the dependency and neglect

proceedings.

(5) The Family Court held a dispositional hearing on July 3, 2018. The

Child had been removed from the Maternal Grandmother’s home and placed with a

foster family. The Father was living with his sister, with whom DSCYF had

concerns because she had a lengthy DSCYF history. The Father had lost his cell

phone, which made it difficult for him to receive services and to schedule visits with

the Child. The Father’s case plan was admitted into evidence. The case plan

required that he: (i) undergo a substance abuse evaluation and follow any

recommendations for treatment, (ii) complete parenting classes, and (iii) work with

a family interventionist to obtain suitable housing and stable employment. The

Child was doing well in foster care. The Family Court found that DSCYF was

making reasonable efforts toward reunification.

(6) On September 25, 2018, the Family Court held a review hearing. The

Father was visiting with the Child, working for a temp agency, and had started

parenting classes. But the Father continued to reside with his sister, with whom,

according to DSCYF, it would not be appropriate for the Child to reside. The Father

tested positive for marijuana and PCP when he appeared for his drug and alcohol

evaluation. DSCYF was concerned that he was under the influence at his last visit

4 with the Child. The Child continued to do well in the foster home. The Family

Court found that DSCYF was making reasonable efforts toward reunification.

(7) The Family Court held another review hearing on December 17, 2018,

and the Father failed to appear. Although he was on target to complete parenting

classes at the end of that month, the Father had failed to follow up with substance

abuse treatment, had not been meeting with his family interventionist, had missed a

team meeting, was unemployed, and continued to reside with his sister. A number

of visits with the Child had to be cancelled after the Father failed to confirm them.

The Child continued to do well in the foster home. The Family Court found that

DSCYF had made reasonable efforts to reunify the family.

(8) On February 15, 2019, DSCYF filed a motion to change the goal from

reunification to termination of parental rights for the purpose of adoption. On March

12, 2019, the Family Court held another review hearing. Although the Father had

completed his parenting classes and semi-regularly attended visits with the Child, he

had been discharged from substance abuse treatment due to lack of contact. When

he returned for an intake assessment, he tested positive for marijuana and was

referred to treatment. The family interventionist had scheduled four meetings with

the Father and he did not attend any of them. He remained unemployed and

continued to reside with his sister. The Child continued to thrive in foster care. At

5 the conclusion of the hearing, the court granted DSCYF’s motion to change the goal

and scheduled a termination of parental rights (“TPR”) hearing.

(9) At the June 21, 2019 TPR hearing, the Family Court heard testimony

from the Father, the Mother, the DSCYF treatment and permanency workers, each

parent’s family interventionist, the Mother’s substance abuse counselor, and the

Child’s court-appointed special advocate. The testimony reflected that the Father’s

lack of a cellular phone hindered his ability to make progress on his case plan and

complicated scheduling visits with the Child. Although the Father was appropriate

during visits and the Child was bonded to him, the Father’s attendance at visits had

been inconsistent. The Father had attended twenty-nine of a possible forty-two visits

with the Child. Of the visits he missed, he failed to confirm eleven of the visits and

was a no-show for two visits. In April 2019, it appeared that the Father was under

the influence of drugs at one visit—he appeared dazed and spent a portion of the

visit coloring by himself.

(10) The Father testified that he continued to live with his sister and that he

considered her home to be an appropriate living environment for the Child. DSCYF

maintained, however, that the sister’s criminal background and history with DSCYF

weighed against placement of the Child in her home. The Father admitted that he

was still using marijuana but stated that he was now seeking help for his substance

abuse problem. The Father claimed he was working under the table for an unnamed

6 employer and earning approximately $150.00 per week. The Family Court also

heard testimony regarding DSCYF’s unsuccessful efforts to find another relative

placement for the Child.

(11) Following the hearing, the Family Court issued a written decision,

finding that the Father had failed to plan adequately for the Child’s physical and

emotional needs.4 The Family Court also found that the Child had entered DSCYF’s

care and had been in care for more than one year,5 the Father was not able or willing

to assume promptly legal and physical custody of the Child and to pay for the Child’s

support,6 and failure to terminate the Father’s rights over the Child would result in

continued emotional instability or physical risk to her because of the Father’s on-

going inability to provide consistently for her care.7 The Family Court next found

that DSCYF had made reasonable efforts to reunify the family. Finally, the Family

Court considered the best interests factors under 13 Del. C. § 722 and found that

termination of parental rights was in the Child’s best interests.8

(12) On appeal, the Father’s counsel filed an opening brief and a motion to

withdraw under Supreme Court Rule 26.1(c). The Father’s counsel asserts that she

has reviewed the record and has determined that no arguable claim for appeal exists.

4 13 Del. C. § 1103(a)(5). 5 13 Del. C. § 1103(a)(5)a.1. 6 13 Del. C. § 1103(a)(5)a.4. 7 13 Del. C. § 1103(a)(5)a.5. 8 13 Del. C. § 1103(a).

7 The Father’s counsel informed the Father of the provisions of Rule 26.1(c), and

provided her with a draft of the 26.1(c) brief and a copy of her motion to withdraw.

The Father provided one point for the Court’s consideration, which counsel

incorporated in her Rule 26.1(c) brief. The Father asks this Court to consider the

following point: he is able to provide for the Child and get the Child the things she

needs. DSCYF and the Child’s Attorney have responded to the Rule 26.1(c) brief

and have moved to affirm the Family Court’s judgment.

(13) On appeal, this Court is required to consider the facts and the law as

well as the inferences and deductions made by the Family Court. 9 We review legal

rulings de novo.10 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

erroneous.11 If the trial judge has correctly applied the law, then our standard of

review is abuse of discretion. 12 On issues of witness credibility, we will not

substitute our judgment for that of the trier of fact.13

(14) The statutory framework under which the Family Court may terminate

parental rights requires two separate inquiries.14 First, the court must determine

9 Wilson v. Division of Family Servs., 988 A.2d 435, 439-40 (Del. 2010). 10 Id. at 440. 11 Id. 12 Id. 13 Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979). 14 Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).

8 whether the evidence presented meets one of the statutory grounds for termination.15

If the Family Court finds a statutory basis for termination of parental rights, the court

must determine whether, under 13 Del. C. § 722, severing parental rights is in the

best interests of the child.16 Both of these requirements must be established by clear

and convincing evidence.17

(15) After careful consideration of the parties’ respective positions on

appeal and a thorough review of the record, the Court has determined that this appeal

should be affirmed on the basis of the Family Court’s thorough and well-reasoned

July 8, 2019 decision. We find no error in the Family Court’s application of the law

to the facts. The Family Court found that the evidence was clear and convincing

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

been in DSCYF custody in excess of one year, that the Father was unable to assume

prompt legal and physical custody of the Child and to pay for the Child’s support,

that failure to terminate the Father’s rights would result in the Child’s continued

emotional instability or physical risk, and that termination of the Father’s rights was

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

record. To the extent that the Father argues that he is now capable of caring for the

15 Id. at 537. See also 13 Del. C. § 1103(a) (enumerating the grounds for termination of parental rights). 16 Shepherd, 752 A.2d at 537. 17 Powell v. DSCYF, 963 A.2d 724, 731-32 (Del. 2008).

9 Child, an appeal is heard on the evidence submitted to the trial court, and we cannot

consider any new claim of financial stability.18

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

Court is AFFIRMED. Counsel’s motion to withdraw is moot.

BY THE COURT:

/s/ Gary F. Traynor Justice

18 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.”).