Rice v. Division of Family Services

• Court: Supreme Court of Delaware
• Decided: January 13, 2022
• Docket: 206, 2021
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

BENJAMIN RICE,1 § No. 206, 2021 § Respondent Below, § Court Below—Family Court Appellant, § of the State of Delaware § v. § File No. CN20-11-1TK § DIVISION OF FAMILY § Petition No. 20-25578 SERVICES, § § In the interest of: Petitioner Below, § Thomas Howard Appellee. §

Submitted: November 10, 2021 Decided: January 13, 2022

Before SEITZ, Chief Justice; TRAYNOR 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 responses, and the

Family Court record, it appears to the Court that:

(1) The appellant Benjamin Rice (“Father”) filed this appeal from the

Family Court’s order dated June 1, 2021, terminating his parental rights over his

minor child (the “Child”). Father’s counsel has filed an opening brief and a motion

to withdraw under Supreme Court Rule 26.1. Father’s counsel states that she is

1 The Court previously assigned pseudonyms to the parties and the child under Supreme Court Rule 7(d). unable to present a meritorious argument in support of the appeal. Father has

submitted several points for this Court’s consideration. For the following reasons,

we affirm the judgment of the Family Court.

(2) The record reflects that the Child was born in April 2019 as a substance-

exposed infant.2 The Delaware Division of Family Services (“DFS”) opened an

investigation and then a treatment case; the concerns included Mother’s housing and

employment stability, mental health, substance abuse, and domestic violence.

Paternity had not been established; Mother had identified both Father and another

person as possible fathers.

(3) During a meeting between Mother, the other potential father, and DFS

in October 2019, Mother became uncooperative and a domestic-violence incident

occurred while the potential father was holding the Child, during which Mother

scratched the Child. DFS sought custody of the Child. On October 18, 2019, the

Family Court entered an ex parte order awarding emergency temporary custody of

the Child to DFS. DFS placed the Child in a foster home. The Family Court sent

notices to Mother and the potential fathers that a preliminary protective hearing was

scheduled for October 23, 2019 and advising them of their right to counsel. Father’s

notice was sent to the wrong address, but it was not returned.

2 The Family Court also terminated the parental rights of the Child’s mother (“Mother”). Because this appeal concerns only the termination of Father’s parental rights, we focus on the facts and procedural history as they relate to Father.

2 (4) At the preliminary protective hearing, Mother appeared, waived her

hearing, and requested an adjudicatory hearing. She also stated that the other

potential father was the Child’s father. Neither Father nor the other potential father

appeared at the hearing, and the court found dependency with respect to the potential

fathers based on their failure to appear. On October 31, 2019, the court issued orders

requiring the potential fathers to undergo paternity testing. The court sent the order

to Father at an incorrect address, but it was not returned.

(5) On November 26, 2019, the court held an adjudicatory hearing. Mother

appeared and stipulated that the Child was dependent. Neither Father nor the other

potential father appeared at the hearing, and the Family Court found the Child to be

dependent based on their failure to appear. The court also found that the potential

fathers had failed to appear for paternity testing and rescheduled the testing.

(6) On January 7, 2020, the Family Court held a dispositional hearing.

Father did not appear for that hearing. On February 10, 2020, the court entered an

order excluding the other potential father as the Child’s father based on the results

of genetic testing. On February 10, 2020, the court held a review hearing, and

Mother stated that she believed Father was the Child’s father. Father did not appear

at the hearing. The court again ordered that Father engage in paternity testing.

Following that hearing, DFS made contact with Father, spoke with him about

3 paternity testing, and obtained a correct address for him. The court reissued an order

for paternity testing to Father’s correct address.

(7) On April 13, 2020, the court held a review hearing. A DFS worker

testified that she had spoken with Father, notified him that he was required to engage

in paternity testing, and encouraged him to participate in the proceedings; she further

stated that Father had expressed reluctance to participate until paternity was

established. Father eventually joined the hearing very late. The court asked whether

he would like to have counsel appointed for him, and he declined. The court notified

Father that he was scheduled for paternity testing on May 14, 2020.

(8) On June 18, 2020, the Family Court entered an order declaring Father

to be the Child’s father based on the results of genetic testing. On July 6, 2020, the

Family Court held a review hearing, which Father attended. Mother testified that

Father had engaged in domestic violence against her during their relationship and

testified regarding Father’s use of drugs. Father admitted that he had been convicted

of possession of marijuana twice in the past year and that he had past convictions for

driving under the influence and vehicular assault and reckless endangerment. Near

the end of the hearing, the court and Father engaged in a colloquy regarding the

appointment of counsel. Father stated that he would like the court to appoint an

attorney and stated that his annual income was $75,000. The court determined that

he did not qualify for court-appointed counsel.

4 (9) On August 12, 2020, the court held an adjudicatory and dispositional

hearing for Father. The DFS worker testified that she began working with the family

on October 31, 2019. She met Father in March 2020, discussed with him the need

for paternity testing, and began to include him in the family discussions. Father told

her that he did not want to start planning for reunification at that time, but instead

wanted to wait until paternity testing was completed. After paternity was established

in June 2020, Father began visiting with the Child and had approximately three or

four visits by the time of the August 2020 hearing. The court also heard testimony

regarding Father’s criminal history, including substance-related charges and

convictions. The court approved the case plan that DFS prepared for Father, which

included a domestic-violence evaluation and participation in any recommended

services; completion of a parenting class; weekly visitation with the Child; and a

substance-abuse evaluation and compliance with any recommended treatment.

(10) On November 2, 2020, when the Child had been in foster care for over

a year, DFS filed a motion to change the permanency plan from reunification to

concurrent goals of reunification and termination of parental rights for the purpose

of adoption. On November 17 and 20, 2020, the Family Court held a permanency

hearing. During the hearing on November 17, 2020, Father requested appointment

of counsel. Because his employment had changed, the court determined that he was

eligible for a court-appointed attorney and that counsel would be appointed, but the

5 court was unable to appoint an attorney in time to participate in the November 17

and 20, 2020 permanency hearing. The court therefore deferred determination of

the permanency plan with respect to Father until he had an opportunity to consult

with counsel. After hearing evidence regarding Mother’s progress on her case plan,

the court changed the permanency plan with respect to Mother to concurrent

planning, as requested by DFS. The court also heard evidence regarding Father’s

progress on his case plan. Father was working on parenting classes and had recently

learned that he needed to complete domestic-violence classes. Father was having

successful weekly visits with the Child. Father had appropriate housing at his

mother’s home, and he had changed his employment to accommodate his visits with

the Child. Father had completed the substance-abuse evaluation and no further

treatment had been recommended, but he had not disclosed his recent marijuana-

related charges to the evaluator, nor had a urine screen been completed. Because of

ongoing concerns about Father’s drug use, the court ordered that Father complete a

urine screen within seventy-two hours. It does not appear that the court-ordered

urine screen was ever completed.

(11) On December 29, 2020, the court held a permanency hearing for Father,

at which he appeared represented by counsel. Father stipulated to change the

permanency plan to concurrent planning, and DFS agreed to give Father an

6 additional ninety days to work on his case plan. Father indicated that he would like

to increase his visitation with the Child, and DFS agreed to increased visitation.

(12) On March 23, 2021, the court held a review hearing. Father appeared

at the hearing, represented by counsel. He expressed that he wanted custody of the

Child. He responded to DFS’s concerns about delays in his completion of his case

plan by emphasizing that paternity had not initially been established and that he felt

that he had gotten fully involved after his paternity was confirmed. Father had

completed his parenting class on February 1, 2021. Although Father had changed

jobs often, he was working and had a small monthly budget surplus, when expenses

for the Child were not included. Father was scheduled for visits with the Child twice

per week, though he had missed several visits. Father was enrolled in the

recommended domestic-violence classes. He had participated in orientation on

August 26, 2020 and was scheduled for intake in early September, but he failed to

appear. He appeared for the rescheduled intake in later September. Father started

attending a thirty-week program on January 27, 2021; at the time of the hearing, he

had attended five classes and missed two. Successful completion of the program

would require Father to miss no more than five classes.

(13) On May 12, 2021, the court held a hearing on DFS’s petition for

termination of parental rights. The Child had been in foster care for approximately

one year and seven months. Mother did not appear for the hearing; Father appeared,

7 represented by counsel. Based on the evidence presented at the hearing, the Family

Court found that Father had attended twelve domestic-violence classes, had missed

four, and could only miss one more class in the thirty-class series without being

suspended and required to restart the course from the beginning. Father had

completed his parenting class and was employed as a carpenter, earning

approximately $885 per month, which left a budget surplus when no expenses for

the Child were included. Father was scheduled for two visits with the Child each

week. The visits went very well, but Father had canceled four visits because of his

work schedule. Father testified that he used marijuana to unwind and acknowledged

that he had recently received a civil violation for marijuana possession. He also

acknowledged that he did not have a valid driver’s license because of unpaid child

support for his daughter who lived in another state, but that he nevertheless drove a

car.

(14) The DFS treatment worker testified that she had first contacted Father

by letter in February 2020 and had spoken with him by phone on February 22, 2020.

The DFS worker invited Father to participate in the April 13, 2020, hearing, but

Father denied paternity and explained that he wanted to wait until paternity testing

was completed before becoming involved. The DFS worker had no concerns about

Father’s housing at his mother’s house, but was concerned about his employment

because he had worked five different jobs in the past year. The DFS worker was

8 also concerned that Father had not made more progress in the domestic-violence

classes, based on Mother’s statement that Father physically assaulted her and

inconsistent statements from Father regarding the nature of their relationship.

(15) The court also reviewed Father’s criminal history, which included

several arrests, convictions, and violations involving marijuana, including within

two weeks of the hearing; a 2014 conviction for possessing, purchasing, owning or

controlling a firearm by a person prohibited; a 2013 conviction for criminal

impersonation; and 2011 or 2012 convictions for second-degree vehicular assault

and first-degree reckless endangering. The DFS worker also had ongoing concerns

about Father’s substance abuse and lack of treatment, particularly in light of the fact

that Father had not disclosed any marijuana use during the evaluation and had

disclosed only the assault conviction—and not his drug-related convictions and

arrests—when asked about his criminal history during the substance-abuse

evaluation. Father explained that he had not disclosed those issues because he did

not believe his marijuana use was a problem.

(16) Considering Father’s case plan and the evidence presented, the court

found that Father had not satisfied the element of his case plan regarding financial

and resource management because of his employment instability. The court

determined that Father had only partially satisfied the element of his case plan

regarding visitation with the Child because he had attended only approximately half

9 of the visits after requesting that the visits be increased to twice per week. The court

found that Father had not completed the domestic-violence element of the case plan

because he had already missed four classes and continued to engage in a relationship

with Mother that he described as toxic and despite evidence that he was both a victim

and perpetrator of domestic violence in that relationship. The court also determined

that Father had not satisfied the substance-abuse element of his case plan because he

was not truthful during his evaluation regarding his criminal history and his

marijuana use. Applying 13 Del. C. § 1103(a)(5)a, the Family Court found that DFS

had established, by clear and convincing evidence, that Father had failed to plan

adequately for the Child’s needs and that there were grounds for terminating Father’s

parental rights under the statute. The court also determined that DFS had made

reasonable efforts to reunify Father with the Child. Finally, applying 13 Del. C. §

722(a), the court determined that it was in the Child’s best interests to terminate

Father’s parental rights. The court therefore terminated Father’s parental rights.

Father has appealed to this Court.

(17) 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.3 To the extent that the Family Court’s

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

10 rulings of law are implicated on appeal, our review is de novo.4 The Delaware statute

governing the termination of parental rights requires a two-step analysis.5 First,

there must be proof of a statutory basis for termination.6 Second, there must be a

determination that termination of parental rights is in the best interests of the child.7

Both requirements must be established by clear and convincing evidence.8

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

consideration. First, he argues that the Family Court erred by terminating his

parental rights based on his employment changes. He contends that he was

terminated from jobs for missing work to attend classes required under his case plan

and for visits with the Child; that he communicated with DFS regarding those issues;

and that he repeatedly found other jobs, consistently earning at least $17.00 per hour.

If the Family Court had terminated Father’s parental rights based solely on his job

changes, we might agree with Father that the decision was in error in the context of

this case, where Father had stable, suitable housing and family support to assist with

caring for the Child.9 But the Family Court here found that Father had failed to

4 Id. at 440. 5 See 13 Del. C. § 1103 (listing grounds for termination of parental rights); Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000). 6 Shepherd, 752 A.2d at 537. 7 Id. 8 Powell v. Dep’t of Servs. for Child., Youth, & Their Families, 963 A.2d 724, 731 (Del. 2008). 9 Cf. Craft v. Div. of Fam. Servs., 2012 WL 603978, at *4-5 (Del. Feb. 24, 2012) (stating that parental “‘unfitness cannot be based on poverty and lifestyle which do not reflect a lack of concern for and ability to care for the children or an unwillingness to receive the child as part of a family,’” and comparing cases involving termination of parental rights based on housing and employment

11 satisfy numerous elements of his case plan, including the domestic-violence and

substance-abuse elements. Moreover, even though the court granted Father

additional time to complete his plan, he failed to do so, in part because of the delay

resulting from his reluctance to engage with DFS until paternity was established.

(19) Second, Father acknowledges that he waited to become involved in the

proceedings until paternity was established, but argues that he has now completed

all of the classes that DFS required, including the domestic-violence program. He

also argues that he should not have been required to complete a domestic-violence

program because the requirement was based on “hearsay” and “an accident.” After

careful review of the record, we find no reversible error. The Family Court heard

testimony from Mother that Father had engaged in domestic violence against her;

the court also was presented with evidence that Mother had been found guilty of

third-degree assault after she stabbed Father, yet Father continued to engage with

her. Father’s argument that the court should not have required him to complete a

domestic-violence program turns on issues of witness credibility, and we therefore

will not substitute our judgment for that of the Family Court.10 Moreover, because

instability (quoting In the Matter of Five Minor Child., 407 A.2d 198, 200 (Del. 1979), partially overruled on other grounds by Patricia A.F. v. James R.F., 451 A.2d 830 (Del. 1982)). 10 See Butler v. Evans, 2021 WL 245258, at *2 (Del. Jan. 25, 2021) (“On issues of witness credibility, we will not substitute our judgment for that of the trier of fact.”).

12 an appeal is heard on the evidence submitted to the trial court, we cannot consider

Father’s claim that he has now completed the domestic-violence program.11

(20) Third, Father argues that the Family Court erred by terminating his

parental rights because he has fully complied with DFS’s demands and the

requirements of his case plan, and the Child should be with his family. The Family

Court’s findings that Father had failed to complete important aspects of his case plan

at the time of the hearing—when the Child had been in foster care for more than a

year and a half and when Father’s paternity had been established for nearly a year—

and that termination of his parental rights was in the Child’s best interests were well

supported by the record. As stated above, Father’s contention that he later completed

his case plan does not create a basis for reversing the Family Court’s judgment. We

find no error in the Family Court’s application of the law to the facts and are satisfied

that Father’s counsel made a conscientious effort to examine the record and the law

and properly determined that Father could not raise a meritorious claim on appeal.

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

Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT:

/s/ Tamika R. Montgomery-Reeves Justice

11 Birch v. Dep’t of Servs. for Child., Youth, & Their Families, 2020 WL 3884827, at *4 (July 9, 2020).