IN THE SUPREME COURT OF THE STATE OF DELAWARE
ALEXIS TYSON,1 § No. 400, 2022 § Respondent Below, § Court Below—Family Court Appellant, § of the State of Delaware § v. § File No. 22-05-11TN § DEPARTMENT OF SERVICES § Petition No. 22-10461 FOR CHILDREN, YOUTH, AND § THEIR FAMILIES/DIVISION OF § FAMILY SERVICES, § § Petitioner Below, § Appellee. §
Submitted: March 17, 2023 Decided: May 18, 2023
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
After consideration of the appellant’s 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) This is an appeal from the Family Court’s order dated October 18, 2022,
and amended October 20, 2022, that terminated the appellant’s (“Mother”) parental
rights as to her twin children (“Children”) born in 2021. The Family Court’s order
1 The Court previously assigned pseudonyms to the appellant pursuant to Supreme Court Rule 7(d). also terminated the parental rights of the Children’s father, with his consent. We
focus on the facts in the record as they relate to Mother’s appeal.
(2) Mother’s counsel has filed a brief and a motion to withdraw under
Supreme Court Rule 26.1(c). Mother’s counsel asserts that, based upon a
conscientious review of the record, there are no arguably appealable issues. Counsel
informed Mother of the provisions of Rule 26.1(c) and provided her with a copy of
the motion to withdraw and the accompanying brief. Counsel also informed Mother
of her right to supplement counsel’s presentation. Mother did not respond with any
points that she wanted to present for the Court’s consideration. The Department of
Services for Children, Youth and Their Families, Division of Family Services
(“DSCYF”) as appellee and the Children’s attorney from the Office of the Child
Advocate have responded to the Rule 26.1(c) brief and argue that the Family Court’s
judgment should be affirmed.
(3) The Children were born in June 2021. Mother’s three older children
had been in the custody of Pennsylvania’s child welfare agency for approximately
three years. When Mother was pregnant with the Children, DSCYF had received
information relating to Mother’s health or mental health concerns. Notably, Mother
claimed that she was in treatment for depression, anxiety, bipolar disorder, and
attention deficit disorder. Her therapist disagreed that Mother was diagnosed with
bipolar disorder but opined that Mother struggled with post-traumatic stress
2 disorder, mood disorder, depressive disorder, as well as severe postpartum
depression following the birth of her older children. DSCYF referred the family to
Children and Families First for the Family Assessment and Intervention Program,
which assists parents with support for their children, and established a safety
agreement under which the parents would reside with the Children at the home of
the Children’s paternal aunt (“Paternal Aunt”).
(4) In July 2021, when the Children were approximately one month old,
DSCYF received a hotline report that Mother and Father were shoving one another
while one of them was holding one of the Children. Then, in August 2021, Father
took the children to the hospital, expressing concerns that the Children were having
breathing issues. On or around the same day, Paternal Aunt informed DSCYF that
Mother, Father, and the Children were no longer welcome to stay in her home.
DSCYF filed a petition for custody of the Children, alleging that there were concerns
about unstable housing, medical neglect, Mother’s mental health, and Father’s
physical health relating to seizures. The Family Court granted DSCYF’s petition for
custody, and the Children were placed in a foster home when they were less than
three months old.
3 (5) The mandated hearings ensued.2 Following the adjudicatory hearing in
October 2021, the Family Court found that the children were dependent because
there was domestic violence between the parents, Mother struggled with mental
health problems, there was a lack of stable housing, Mother was not cooperating
with the Pennsylvania agency that had custody of her older children, and for other
reasons. DSCYF developed a case plan for Mother, and the Family Court later found
the case plan to be reasonable. Mother’s case plan required her to schedule and
consistently attend appointments for her physical health; complete a mental health
evaluation and follow any recommended treatment; complete a substance abuse
evaluation; complete a parenting class and exhibit appropriate parenting behaviors
during her weekly visits with the Children; obtain and maintain consistent
employment; work with a family interventionist to create a budget to show that she
could support the children; secure stable housing for herself and the Children;
cooperate with the Pennsylvania child welfare agency to complete her case plan as
to the older children; and attend the Children’s medical appointments. Domestic
violence services were offered to Mother but were not a mandatory component of
her case plan.
2 See Kline v. Del. Div. Family Servs., 2023 WL 2259101, at *1 n.3 (Del. Feb. 28, 2023) (“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.” (citing 13 Del. C. § 2514; DEL. FAM. CT. R. CIV. PROC. 212-19)).
4 (6) DSCYF requested a permanency hearing within six months because the
Children were less than six months old when they entered DSCYF custody.3 On or
about April 20, 2022, DSCYF filed a motion to change the permanency plan from
reunification to concurrent goals of reunification and termination of parental rights
(“TPR”) and adoption. On or about April 22, 2022, DSCYF filed a petition for
termination of parental rights. Shortly thereafter, the Family Court changed the goal
for the Children to concurrent goals of reunification and TPR and adoption.
(7) The court continued to hold the required hearings and found that,
although Mother had made some progress on her case plan, the Children continued
to be dependent as to Mother. The Children were doing well in their foster home,
and the foster family was an adoptive resource. On September 19, 2022, the Family
Court held a hearing on the TPR petition. At the hearing, Father consented to the
termination of his parental rights. The court heard testimony from Mother, Father,
the DSCYF treatment worker, the DSCYF permanency worker, the Progressive Life
worker, and the Court Appointed Special Advocate appointed for the Children.
DSCYF also submitted evidence of Mother’s and Father’s mental health evaluations
3 See 13 Del. C. § 1103(a)(5)b (providing that the procedure for termination of parental rights may be initiated when it appears to be in the child’s best interest; the child is in DSCYF custody; the parent is not able or has failed to plan adequately for the child’s physical needs or mental and emotional health and development; and the “child has been in DSCYF custody or placed by a license agency for at least 6 months and the child came into care as an infant”).
5 and that Pennsylvania had terminated Mother’s parental rights as to her older
children on July 21, 2022.
(8) On October 18, 2022, the Family Court entered an order terminating
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
ALEXIS TYSON,1 § No. 400, 2022 § Respondent Below, § Court Below—Family Court Appellant, § of the State of Delaware § v. § File No. 22-05-11TN § DEPARTMENT OF SERVICES § Petition No. 22-10461 FOR CHILDREN, YOUTH, AND § THEIR FAMILIES/DIVISION OF § FAMILY SERVICES, § § Petitioner Below, § Appellee. §
Submitted: March 17, 2023 Decided: May 18, 2023
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
After consideration of the appellant’s 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) This is an appeal from the Family Court’s order dated October 18, 2022,
and amended October 20, 2022, that terminated the appellant’s (“Mother”) parental
rights as to her twin children (“Children”) born in 2021. The Family Court’s order
1 The Court previously assigned pseudonyms to the appellant pursuant to Supreme Court Rule 7(d). also terminated the parental rights of the Children’s father, with his consent. We
focus on the facts in the record as they relate to Mother’s appeal.
(2) Mother’s counsel has filed a brief and a motion to withdraw under
Supreme Court Rule 26.1(c). Mother’s counsel asserts that, based upon a
conscientious review of the record, there are no arguably appealable issues. Counsel
informed Mother of the provisions of Rule 26.1(c) and provided her with a copy of
the motion to withdraw and the accompanying brief. Counsel also informed Mother
of her right to supplement counsel’s presentation. Mother did not respond with any
points that she wanted to present for the Court’s consideration. The Department of
Services for Children, Youth and Their Families, Division of Family Services
(“DSCYF”) as appellee and the Children’s attorney from the Office of the Child
Advocate have responded to the Rule 26.1(c) brief and argue that the Family Court’s
judgment should be affirmed.
(3) The Children were born in June 2021. Mother’s three older children
had been in the custody of Pennsylvania’s child welfare agency for approximately
three years. When Mother was pregnant with the Children, DSCYF had received
information relating to Mother’s health or mental health concerns. Notably, Mother
claimed that she was in treatment for depression, anxiety, bipolar disorder, and
attention deficit disorder. Her therapist disagreed that Mother was diagnosed with
bipolar disorder but opined that Mother struggled with post-traumatic stress
2 disorder, mood disorder, depressive disorder, as well as severe postpartum
depression following the birth of her older children. DSCYF referred the family to
Children and Families First for the Family Assessment and Intervention Program,
which assists parents with support for their children, and established a safety
agreement under which the parents would reside with the Children at the home of
the Children’s paternal aunt (“Paternal Aunt”).
(4) In July 2021, when the Children were approximately one month old,
DSCYF received a hotline report that Mother and Father were shoving one another
while one of them was holding one of the Children. Then, in August 2021, Father
took the children to the hospital, expressing concerns that the Children were having
breathing issues. On or around the same day, Paternal Aunt informed DSCYF that
Mother, Father, and the Children were no longer welcome to stay in her home.
DSCYF filed a petition for custody of the Children, alleging that there were concerns
about unstable housing, medical neglect, Mother’s mental health, and Father’s
physical health relating to seizures. The Family Court granted DSCYF’s petition for
custody, and the Children were placed in a foster home when they were less than
three months old.
3 (5) The mandated hearings ensued.2 Following the adjudicatory hearing in
October 2021, the Family Court found that the children were dependent because
there was domestic violence between the parents, Mother struggled with mental
health problems, there was a lack of stable housing, Mother was not cooperating
with the Pennsylvania agency that had custody of her older children, and for other
reasons. DSCYF developed a case plan for Mother, and the Family Court later found
the case plan to be reasonable. Mother’s case plan required her to schedule and
consistently attend appointments for her physical health; complete a mental health
evaluation and follow any recommended treatment; complete a substance abuse
evaluation; complete a parenting class and exhibit appropriate parenting behaviors
during her weekly visits with the Children; obtain and maintain consistent
employment; work with a family interventionist to create a budget to show that she
could support the children; secure stable housing for herself and the Children;
cooperate with the Pennsylvania child welfare agency to complete her case plan as
to the older children; and attend the Children’s medical appointments. Domestic
violence services were offered to Mother but were not a mandatory component of
her case plan.
2 See Kline v. Del. Div. Family Servs., 2023 WL 2259101, at *1 n.3 (Del. Feb. 28, 2023) (“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.” (citing 13 Del. C. § 2514; DEL. FAM. CT. R. CIV. PROC. 212-19)).
4 (6) DSCYF requested a permanency hearing within six months because the
Children were less than six months old when they entered DSCYF custody.3 On or
about April 20, 2022, DSCYF filed a motion to change the permanency plan from
reunification to concurrent goals of reunification and termination of parental rights
(“TPR”) and adoption. On or about April 22, 2022, DSCYF filed a petition for
termination of parental rights. Shortly thereafter, the Family Court changed the goal
for the Children to concurrent goals of reunification and TPR and adoption.
(7) The court continued to hold the required hearings and found that,
although Mother had made some progress on her case plan, the Children continued
to be dependent as to Mother. The Children were doing well in their foster home,
and the foster family was an adoptive resource. On September 19, 2022, the Family
Court held a hearing on the TPR petition. At the hearing, Father consented to the
termination of his parental rights. The court heard testimony from Mother, Father,
the DSCYF treatment worker, the DSCYF permanency worker, the Progressive Life
worker, and the Court Appointed Special Advocate appointed for the Children.
DSCYF also submitted evidence of Mother’s and Father’s mental health evaluations
3 See 13 Del. C. § 1103(a)(5)b (providing that the procedure for termination of parental rights may be initiated when it appears to be in the child’s best interest; the child is in DSCYF custody; the parent is not able or has failed to plan adequately for the child’s physical needs or mental and emotional health and development; and the “child has been in DSCYF custody or placed by a license agency for at least 6 months and the child came into care as an infant”).
5 and that Pennsylvania had terminated Mother’s parental rights as to her older
children on July 21, 2022.
(8) On October 18, 2022, the Family Court entered an order terminating
Mother’s parental rights. The court issued an amended order on October 20, 2022.
The court held that DSCYF had established, by clear and convincing evidence, two
of the statutory grounds for termination of parental rights: involuntary termination
of Mother’s parental rights over another child4 and failure to plan adequately for the
Children within the statutory timeframe.5 As to Mother’s failure to plan, the court
found that Mother completed the parenting class, substance abuse, and physical
health components of her case plan. But it found that Mother did not adequately
address her mental health needs; had not obtained a source of income or means to
support the Children; lacked adequate housing; failed to cooperate with the
Pennsylvania child welfare agency as to the older Children; and did not attend all of
the Children’s medical appointments. The court also found, by clear and convincing
evidence, that DSCYF had made reasonable efforts to reunify the family. Applying
the best interest factors,6 the Family Court found that DSCYF had established, by
4 13 Del. C. § 1103(a)(7). 5 Id. § 1103(a)(5). 6 See 13 Del. C. § 1103(a) (providing that parental rights may be terminated if one of several statutory grounds is established and “it appears to be in the child’s best interest”); id. § 722 (setting forth factors that the court may consider when determining the best interests of a child).
6 clear and convincing evidence, that it was in the Children’s best interests to terminate
Mother’s parental rights. Mother has appealed.
(9) 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.7 We review legal
rulings de novo.8 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.9 If the Family Court correctly applied the law, then our standard of
review is abuse of discretion.10
(10) The statutory framework under which the Family Court may terminate
parental rights requires two separate inquiries.11 First, the court must determine
whether the evidence presented meets one of the statutory grounds for termination.12
When the statutory basis for termination is failure to plan, the Family Court must
also find proof of at least one additional statutory condition.13 Second, if the Family
Court finds a statutory basis for termination of parental rights, then the court must
7 Wilson v. Div. of Family Servs., 988 A.2d 435, 439-40 (Del. 2010). 8 Id. at 440. 9 Id. 10 Id. 11 Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000). 12 Id. at 537. See 13 Del. C. § 1103(a) (listing the grounds for termination of parental rights). 13 13 Del. C. § 1103(a)(5)a-e (listing additional conditions, including that the child has been in DSCYF custody or placed by a licensed agency for at least one year, or for six months if the child came into care as an infant).
7 determine whether terminating parental rights is in the best interests of the child.14
Both of these requirements must be established by clear and convincing evidence.15
(11) Mother has not submitted any points for this Court’s consideration on
appeal. Mother’s appointed counsel represents that she has determined that no
arguably appealable issue exists. After careful consideration of the parties’ positions
and the record on appeal, we conclude that the judgment of the Family Court should
be affirmed on the basis of the Family Court’s determination, as set forth in its
thorough and well-reasoned decision dated October 20, 2022, that there was clear
and convincing evidence that Mother had failed to plan adequately for the Children’s
needs, that DSCYF had made reasonable reunification efforts, and that termination
of Mother’s parental rights was in the best interests of the Children. Those
conclusions are well-supported by the record.16 Thus, we affirm.
14 Shepherd, 752 A.2d at 537. See 13 Del. C. § 722(a) (listing factors for consideration when determining the best interests of the child). 15 Powell v. Dep’t of Servs. for Children, Youth & Their Families, 963 A.2d 724, 731 (Del. 2008). 16 Because the finding that Mother failed to plan adequately for the Children’s needs established a statutory basis for termination, we express no opinion regarding whether the statutory ground of prior involuntary termination, 13 Del. C.§ 1103(a)(7), was satisfied in the circumstances of this case.
8 NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Gary F. Traynor Justice