Tannis v. Moen

• Court: Supreme Court of Delaware
• Decided: December 10, 2021
• Docket: 129, 2021
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

WINSTON L. TANNIS,1 § § No. 129, 2021 Respondent Below, § Appellant, § § Court Below–Family Court v. § of the State of Delaware § LEORA D. MOEN, § § File No. 19-08-05TS Petitioner Below, § Petition No. 19-23599 Appellee. §

Submitted: September 24, 2021 Decided: December 10, 2021

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

ORDER

After careful 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 the

record on appeal, it appears to the Court that:

(1) By order dated April 7, 2021, the Family Court terminated the parental

rights of the appellant, Winston L. Tannis (the “Father”) with respect to his eight-

year-old daughter (the “Child”).2 The Father has appealed.

(2) The Father’s appointed counsel on appeal has filed an opening brief and

1 The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d). 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 recite only the facts in the record that relate to the Father’s appeal. motion to withdraw under Rule 26.1(c). Counsel asserts that he has conducted a

conscientious review of the record and the relevant law and has determined that the

appeal is wholly without merit. In accordance with Rule 26.1(c)(i), however,

counsel has identified one arguably appealable claim for the Court to consider.

Counsel informed the Father of the provisions of Rule 26.1(c), provided him with a

copy of counsel’s motion to withdraw and the accompanying brief, and advised him

that he could submit in writing any additional points for the Court’s consideration

on appeal. The Father has not identified any points for the Court’s consideration.

The appellee, Leora Moen (the “Maternal Grandmother”), has filed a response to

counsel’s Rule 26.1(c) brief and argues that the Family Court’s judgment should be

affirmed.

(3) The record reflects that on February 12, 2013—when the Child was less

than two months old—the Family Court awarded the Maternal Grandmother

guardianship of the Child with the consent of her parents. Under the terms of the

court’s order, visitation between the Child and her parents was permitted. In August

2019, the Maternal Grandmother filed a petition (“TPR Petition”) seeking to

terminate the parental rights of the Child’s parents on the grounds of abandonment

(intentional and unintentional) and failure to plan. At the Father’s request, the

Family Court appointed counsel to represent him in the TPR proceedings.

(4) On September 29, 2020, the parties convened via the Zoom video-

2 conferencing platform for the TPR hearing. Because the Child’s mother consented

to the TPR Petition, the evidence presented at the hearing primarily concerned the

Father’s involvement in the Child’s life and his ability to assume her care. The

Family Court heard testimony from the Father, the Child’s licensed clinical social

worker, an ex-girlfriend of the Father’s with whom he shares two children, the ex-

girlfriend’s sister, the ex-girlfriend’s mother, the Maternal Grandmother’s former

mother-in-law, the Maternal Grandmother’s current mother-in-law, the Maternal

Grandmother’s husband, the Maternal Grandmother, the social worker who

conducted a court-ordered social study, and the Father’s mother.

(5) The testimony at the TPR hearing fairly established that, on multiple

occasions, the Father asked the Maternal Grandmother for pictures of the Child and

updates on the Child’s milestones. However, the evidence presented also reflected

that the Father: (i) failed to follow through with planned visits and last visited with

the Child in the spring of 2018; (ii) has never petitioned the Family Court for

visitation; (iii) owes over nine thousand dollars in back child support; (iv) has never

contacted the Child’s daycare or school; (v) has not attended any of the Child’s

doctor’s appointments since 2014; (vi) has been incarcerated for much of the Child’s

life; (vii) has a history of domestic violence; and (viii) failed to participate in the

court-ordered social study. The testimony also established that the Child has lived

continuously with the Maternal Grandmother since 2013 and has a loving

3 relationship with the Maternal Grandmother and her husband.

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

April 7, 2021. The court rejected the Maternal Grandmother’s argument that

termination of the Father’s parental rights was appropriate due to intentional

abandonment. But the court found by clear and convincing evidence that the Father

had unintentionally abandoned the Child3 and that the Father had failed to plan for

the Child.4 After balancing the best-interests factors under 13 Del. C. § 722(a), the

court also found by clear and convincing evidence that termination of the Father’s

parental rights was in the Child’s best interest.5

(7) Our review of the Family Court’s decision to terminate an individual’s

parental rights involves consideration of the facts and law, as well as the inferences

and deductions made by the Family Court.6 We review legal rulings de novo.7 We

conduct a limited review of the factual findings of the Family Court to assure that

they are sufficiently supported by the record and are not clearly erroneous. 8 If the

trial judge has correctly applied the law, our review is limited to abuse of discretion.9

3 13 Del. C. § 1103(a)(2)b. 4 Id. § 1103(a)(5)b. 5 Id. § 1103(a). 6 Wilson v. Div. of Fam. Servs., 988 A.2d 435, 439-40 (Del. 2010). 7 Id. at 440. 8 Id. 9 Id. 4 (8) The statutory procedure for terminating parental rights requires two

separate inquiries.10 First, the Family Court must determine whether the evidence

presented satisfies one of the statutory grounds for termination.11 Second, the court

must determine whether termination of parental rights is in the best interest of the

child.12 Both of these statutory requirements must be established by clear and

convincing evidence.13

(9) The Father has not submitted any points for this Court’s consideration

on appeal. Appointed counsel has set forth one arguable issue, namely that the

Family Court, when considering the best-interests factors, gave too little weight to

the Father’s opposition to the TPR Petition and to the fact that, due to her young age,

the Child was capable of adjusting to being placed in the Father’s care.

(10) This Court has carefully reviewed the record, including the TPR

hearing transcript, the Family Court’s decision, and the positions of the parties. We

agree with counsel that the Family Court should have found that the Father’s wishes

weighed against termination when it weighed the best-interests factors. But the

record reflects ample evidence to support the Family Court’s termination of the

Father’s parental rights based on unintentional abandonment and failure to plan and

10 Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000). 11 Id. at 537. 12 Id. See also 13 Del. C. § 1103(a); 13 Del. C. § 722(a) (listing factors to be considered when determining the best interest of the child). 13 Powell v. DSCYF, 963 A.2d 724, 731 (Del. 2008). 5 that such termination is clearly in the Child’s best interest. We therefore conclude

that the Father’s appeal is wholly without merit and devoid of any arguably

appealable issue. And we are satisfied that the Father’s counsel made a

conscientious effort to examine the record and the law and properly determined that

the Father could not raise a meritorious claim in this appeal.

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/ James T. Vaughn, Jr. Justice