Daylong v. Julious

• Court: Supreme Court of Delaware
• Decided: May 27, 2020
• Docket: 511, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

THEA L. DAYLONG,1 § No. 511, 2019 § Respondent Below, § Court Below—Family Court Appellant, § of the State of Delaware § v. § File No. 19-01-1TK § ANDREW S. JULIOUS, JR. and § Petition No. 19-00496 CALI JULIOUS § § Petitioners Below, § Appellees. §

Submitted: March 17, 2020 Decided: May 27, 2020

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

ORDER

After consideration of the brief and motion to withdraw filed by the

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

the Family Court record, it appears to the Court that:

(1) The respondent-appellant (“Mother”) filed this appeal from the Family

Court’s order dated November 12, 2019, terminating her parental rights in her minor

child, who is now five years old. The order also terminated the parental rights of the

Child’s biological father (“Father”); Father has not appealed.

1 The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d). (2) On appeal, Mother’s counsel has filed an opening brief and a motion to

withdraw under Supreme Court Rule 26.1. Mother’s counsel states that he is unable

to present a meritorious argument in support of the appeal. Mother has submitted

several points for this Court’s consideration. For the reasons that follow, we affirm

the judgment of the Family Court.

(3) The record reflects that shortly after the Child’s birth in January 2015,

the Delaware Division of Family Services (“DFS”) sought and obtained custody of

the Child, based on concerns about statements that Mother made to hospital staff

regarding her ability to care for the Child and DFS’s observations of Mother’s

housing situation. Father was incarcerated and is a registered sex offender because

of convictions for sex offenses, including sexual abuse of a minor. DFS placed the

Child in foster care with the petitioners-appellees (the “Appellees”). She remained

in foster care with the Appellees for more than a year.

(4) In September 2015, Mother’s sister (“Maternal Aunt”) filed a petition

for guardianship of the Child. On February 3, 2016, the Family Court awarded

guardianship of the Child to Maternal Aunt. With respect to dependency, the Family

Court found that Mother consented to the guardianship and that she lacked suitable

housing, failed to continue with mental health treatment, and could not financially

support the Child. Although the Child was thriving in the Appellees’ foster home

2 and was bonded with them, the court determined that, on balance, it was in the

Child’s best interests to be placed with a biological family member.

(5) After the Family Court awarded guardianship to Maternal Aunt,

Maternal Aunt allowed the Appellees a single, short visit with the Child and then

permitted no other contact. In August 2016, Appellees filed a petition for visitation.

The Family Court did not receive any response to the petition and ordered that the

Appellees would have visitation with the Child one weekend per month. Maternal

Aunt did not comply with the visitation order, and the Appellees moved for

contempt. At a contempt hearing, Maternal Aunt, with Mother’s support, confirmed

her willful failure to comply with the visitation order.

(6) Following the contempt proceedings, the Appellees had visitation with

the Child for one weekend each month from December 2016 through September

2017. In October 2017, however, Maternal Aunt did not meet the Appellees at the

exchange site for the visit. After an investigation, the Appellees learned that

Maternal Aunt had moved the Child to West Virginia. In January 2018, the

Appellees filed an emergency petition for guardianship of the Child. Mother and

Maternal Aunt did not appear at the hearing on January 22, 2018, and the court

awarded temporary guardianship of the Child to Appellees. The Appellees retrieved

the Child from West Virginia and returned her to Delaware.

3 (7) In July 2018, the Family Court held a full hearing on the merits of the

Appellees’ petition for guardianship, and in August 2018, the court terminated

Maternal Aunt’s guardianship and awarded guardianship of the Child to the

Appellees. The court determined that the facts on which the court had previously

based its finding of dependency had not changed in a meaningful way. In fact,

Mother had moved to Maryland and then West Virginia, where she lived with

relatives. The Child had never lived with her, and the relocation had reduced her

ability to have meaningful interaction with the Child. The Child had a strong and

positive relationship with the Appellees and had adjusted well to their household and

community activities. Mother, Father, nor Maternal Aunt appealed.

(8) On January 7, 2019, the Appellees filed a petition for termination of

parental rights (“TPR”) and a petition for adoption of the Child. At the Family

Court’s direction, A Better Chance for Our Children completed social studies for

both petitions. Mother appeared at the TPR hearing on October 25, 2019,

represented by court-appointed counsel; Father, who was incarcerated, did not

appear. The witnesses at the hearing were Mother, the Appellees, the child and

family specialist who completed the social studies, Maternal Aunt, and a friend of

Mother’s.

(9) The evidence presented at the hearing reflected that in May 2018—

several months after the Family Court had awarded guardianship to the Appellees

4 and the Child had returned to Delaware—Mother moved from Maryland to Tornado,

West Virginia to live with Maternal Aunt. Five months later, she relocated to

Charleston, West Virginia to live with another sister.

(10) The order awarding guardianship to the Appellees allowed visitation

between Mother and the Child at the Appellees’ discretion. After she moved to West

Virginia, Mother had contact with the Child via video calls, but the Appellees limited

contact after Mother began cursing, yelling, and making inappropriate comments

during the video calls. Mother never filed a petition for visitation, although she

testified that a Family Court clerk told her that she was not permitted to file a petition

for visitation after the Appellees filed their TPR petition.

(11) Mother also testified at the hearing that on the following day she would

be moving to Gulfport, Mississippi, where she would stay with a friend and the

friend’s family and hoped to secure employment at a Wal-Mart store. She further

testified that she had married Father, a convicted sex offender, in December 2018,

and that she would be happy for him to have contact with young children, including

the Child. Mother had not paid any child support for the Child’s care.

(12) The testimony of the Appellees and the child and family specialist who

performed the social studies indicated that the Child was well adjusted to the

Appellees’ home and had a good relationship with the Appellees; the members of

their family, including their young daughters; and the members of their community.

5 The Child was active in karate and the Appellees’ church. At the hearing, Mother’s

counsel took the position that “we have nothing negative to say about” the

environment and care the Appellees had provided for the Child and asked that the

guardianship be continued, rather than terminating Mother’s parental rights.

(13) On appeal, Mother has presented a number of points for the Court’s

consideration, which may be fairly summarized as follows: (i) the Family Court

erroneously prevented her from presenting evidence at the hearing; (ii) the Appellees

interfered with Mother’s contact with the Child; (iii) the Family Court erroneously

denied her motion requesting that the court interview the Child regarding her wishes

and erroneously considered the Child’s out-of-court statement to the child and

family specialist regarding her desire to live with the Appellees; (iv) the disparity

between Mother’s and the Appellees’ financial circumstances is not a basis for

terminating Mother’s parental rights; (v) she told her attorney that she is filing for

divorce from Father, but that information was not provided to the court; and (vi) the

fact that her sister’s children had been taken into foster care should not have affected

the outcome of Mother’s TPR proceeding.

(14) This Court’s review of the Family Court’s decision to terminate

parental rights entails consideration of the facts and the law as well as the inferences

and deductions made by the Family Court.2 To the extent that the Family Court’s

2 Wilson v. Div. of Fam. Servs., 988 A.2d 435, 439-40 (Del. 2010).

6 rulings of law are implicated, our review is de novo.3 The Delaware statute

governing the termination of parental rights requires a two-step analysis.4 First,

there must be proof of a statutory basis for termination.5 Second, there must be a

determination that termination of parental rights is in the best interests of the child.6

Both requirements must be established by clear and convincing evidence.7

(15) In its November 12, 2019 decision, the Family Court concluded that the

Appellees had proven by clear and convincing evidence that Mother had failed to

adequately plan for the Child’s physical needs or mental and emotional health and

development.8 Specifically, the Family Court found that Mother had opted to move

to West Virginia and planned to move to Mississippi; there was no evidence in the

record that Mother had ever obtained adequate, safe housing for herself and the

Child; that Mother was completely out of contact with the Child from January 2018

to April 2018 and from June 2018 to September 9, 2018; Mother had used her contact

since that time not “as opportunities to nurture and encourage the child, but to

3 Id. 4 See 13 Del. C. § 1103 (listing grounds for termination of parental rights); Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000). 5 Shepherd, 752 A.2d at 537. 6 Id. 7 Powell v. Dep’t of Servs. for Children, Youth, & Their Families, 963 A.2d 724, 731 (Del. 2008). 8 See 13 Del. C. § 1103(a)(5)b (permitting termination of parental rights based on the parent’s failure “to plan adequately for the child’s physical needs or mental and emotional health and development” if, in the case of a child in the home of a guardian, the child has been in the guardian’s home for at least one year and the court “finds the respondent is incapable of discharging parental responsibilities, and there appears to be little likelihood that the respondent will be able to discharge such parental responsibilities in the near future”).

7 express anger over the circumstances and to entice the child to Mother’s home”;

Mother had not provided any support for the Child; and there was no suggestion in

the record that Mother would be able to discharge parental responsibilities in the

future. The Family Court also considered the statutory best interest factors and

concluded that it was in the Child’s best interests that Mother’s parental rights be

terminated.

(16) We have carefully reviewed the parties’ submissions as well as the

record below, including the transcript of the TPR hearing. We conclude that the

evidence supports the Family Court’s termination of Mother’s parental rights on the

statutory ground of failure to plan and on the ground that the termination is in the

best interests of the Child. We also conclude that Mother’s arguments do not support

reversal.

(17) First, Mother argues, without specificity, that the Family Court

erroneously prevented her from presenting evidence at the hearing. The transcript

of the hearing does not support Mother’s argument. To the extent that the Family

Court limited the use of certain evidence of Mother’s employment based on her

failure to produce the evidence in discovery, Mother was represented by counsel at

the TPR hearing and testified regarding her employment and earnings history.

Mother does not contend that the court excluded evidence that would have

demonstrated significantly different information than what was presented at the

8 hearing. In any event, the rules of evidence and civil procedure apply in TPR

proceedings,9 and we have not identified any basis to conclude that the Family Court

erred in its evidentiary rulings.

(18) Second, Mother argues that the Appellees interfered with her contact

with the Child. The record reflects that Mother chose to move to West Virginia,

which limited her ability to have in-person contact with the Child, and that the

Appellees allowed video-call contact when Mother requested it and the parties could

agree on scheduling, until Mother used the contact to engage in inappropriate

conversations with the Child. Moreover, even crediting Mother’s testimony that a

Family Court clerk told her that she could not file a petition for visitation after the

TPR petition was filed, Mother did not seek any contact with the Child during

approximately six months in 2018, nor did she request a visitation order during the

one-year period between when the Child was placed in a guardianship with the

Appellees and when the Appellees filed the TPR petition.

(19) Third, Mother contends that the Family Court erroneously denied her

motion requesting that the court interview the Child regarding her wishes and

erroneously considered the Child’s out-of-court statement to the child and family

specialist regarding her desire to live with the Appellees. Given the very young age

9 See generally Moore v. Hall, 62 A.3d 1203, 1210 (Del. 2013) (stating that parents who desire to represent themselves in a TPR proceeding must understand that they will have to comply with the rules of evidence and civil procedure).

9 of the Child, we find no abuse of discretion in the Family Court’s decision not to

interview her regarding her wishes.10 With respect to the consideration of the

Child’s statement to the child and family specialist, Mother was represented by

counsel and did not present this issue to the Family Court in the first instance; we

therefore will not consider it on appeal.11

(20) Fourth, Mother argues that the disparity between Mother’s and the

Appellees’ financial circumstances is not a basis for terminating her parental rights.

This argument misstates the Family Court’s conclusions. Parental responsibilities

include providing for a child’s “physical needs” and her “mental and emotional

health and development.”12 The Family Court found that Mother had failed to plan

adequately for those needs because she moved away from the Child, failed to obtain

adequate housing, did not provide support for the Child, failed to maintain contact

with the Child for significant periods of time, and did not use the contact she did

have in a positive manner. We do not find any reversible error in the court’s

conclusions.

10 See Frost v. Div. of Family Servs., 2013 WL 989363, at *5 (Del. Mar. 12, 2013) (declining to find that the Family Court did not properly exercise its discretion when declining to interview children, based on reservations of the oldest child’s therapist and the “very young age” of the three other children). 11 DEL. SUPR. CT. R. 8. 12 13 Del. C. § 1103(a)(5).

10 (21) Fifth, Mother contends that she told her attorney that she planned to file

for divorce from Father, but that her attorney did not provide that information to the

court. We see no grounds for reversal on the basis of her post-hearing, purported

intent to file for divorce.

(22) Finally, Mother argues that the fact that her sister’s children had been

taken into foster care should not have affected the outcome of Mother’s TPR

proceeding. Mother’s counsel did not raise any objection when the Appellees’

counsel elicited testimony from Mother regarding the removal of the sister’s children

by West Virginia child welfare authorities while Mother was living with the sister

and her family.13 Moreover, the Family Court’s decision does not reference those

circumstances or indicate that they were a factor in the court’s decision. In the

absence of any error or abuse of discretion, we conclude that the Family Court’s

judgment must be affirmed.

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

Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Chief Justice

13 DEL. SUPR. CT. R. 8.