Branch v. DFS and Court Appointed Special Advocate ( 2017 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ANDREW BRANCH,1 §
§
Respondent Below- § No. 289, 2016
Appellant, §
§
v. § Court Below—Family Court
§ of the State of Delaware,
DIVISION OF FAMILY SERVICES § in and for Sussex County
and COURT APPOINTED SPECIAL § File No. CS15-05-01TS
ADVOCATE, § Petition No. 15-12929
§
Petitioners Below- §
Appellees. §
Submitted: October 20, 2016
Decided: January 9, 2017
Before VALIHURA, VAUGHN, and SEITZ, Justices
ORDER
This 9th day of January 2017, upon consideration of the appellant’s brief
filed under Supreme Court Rule 26.1(c), his attorney’s motion to withdraw, and the
responses filed by the Division of Family Services (“DFS”) and the Court
Appointed Special Advocate (“CASA”), it appears to the Court that:
(1) On May 13, 2016, the Family Court terminated the parental rights of
the respondent-appellant, Andrew Branch (“the Father”), in his two minor children,
1
The Court previously assigned a pseudonym to the appellant pursuant to Supreme Court Rule
7(d). The Court also has assigned pseudonyms to the children in this Order.
Ashley (born September 6, 2013) and Grace (born August 21, 2014). This is the
Father’s appeal from the termination of his parental rights.2
(2) The Father’s appointed counsel on appeal has filed an opening brief
and a motion to withdraw from representation under Supreme Court Rule 26.1(c).
Counsel asserts that she has conducted a conscientious review of the record and the
relevant law and has determined that the appeal is wholly without merit. Under
Rule 26.1(c)(i), however, counsel has identified one arguable claim for the Court to
consider. By letter, counsel informed the Father of the provisions of Rule 26.1(c)
and provided him with a copy of the motion to withdraw and the accompanying
brief. Counsel informed the Father that he could submit in writing any additional
points for the Court’s consideration on appeal. Although he orally stated his
intention to do so, the Father failed to submit any additional points in writing for
counsel to include with the Rule 26.1(c) brief. DFS and the CASA each have filed
a response to counsel’s Rule 26.1 brief and have moved to affirm the Family
Court’s judgment.
(3) The record reflects that, on December 20, 2013, DFS was granted
emergency custody of Ashley, who was then three-months-old. The Family Court
found Ashley to be dependent in her parent’s care because of the Father’s
incarceration, domestic violence issues, and substance abuse issues and because of
2
The girls’ mother voluntarily consented to the termination of her parental rights and is not a
party to this appeal.
2
the Mother’s homelessness, mental health issues, and substance abuse issues. The
Father, through his court-appointed counsel, waived both the preliminary
protective hearing on December 31, 2013 and the adjudicatory hearing on January
27, 2014 and stipulated to Ashley’s dependency due to the Father’s incarceration.
At the February 24, 2014 dispositional hearing, the Family Court approved the
Father’s reunification case plan, which required the Father, among other things, to
maintain employment and housing, to attend scheduled visitation with Ashley, and
to receive evaluations for domestic violence, substance abuse, and mental health
issues and follow any recommendations for treatment.
(4) On May 19, 2014 and August 4, 2014, the Family Court held two
review hearings. Although the Father had made some progress toward his case
plan, the Family Court found that it was in Ashley’s best interests to remain in
DFS’ custody. The Family Court held a supplemental hearing on August 18, 2014
to determine if the Father’s domestic violence counseling satisfied the requirement
of his case plan that he complete anger management counseling. The Family Court
concluded that it did not. By the time of that hearing, the Mother had already
informed the Family Court of her intention to consent to termination of her
parental rights.
(5) On August 25, 2014, DFS was granted emergency custody of Grace,
who was born on August 21, 2014. After his paternity was established, the Father
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waived his preliminary protective hearing and stipulated to a finding of probable
cause that Grace was dependent in his care. On October 27, 2014, the Family
Court held an adjudicatory hearing regarding Grace and a third review hearing
regarding Ashley. The Father contested that Grace would be dependent in his care.
After consideration of the evidence, the Family Court found that the Father had not
completed the elements of his case plan that required evaluation and counseling for
domestic violence, anger management, and substance abuse issues. The trial court
concluded that both girls would be dependent in the Father’s care and that it was in
their best interests to remain in DFS’ custody. At the December 8, 2014
dispositional hearing, the Father received his case plan for Grace, which required
him, among other things, to complete intensive outpatient drug treatment, one-on-
one domestic violence counseling, and anger management counseling.
(6) In December 2014 and January 2015, respectively, DFS filed motions
seeking to establish permanency plans with respect to each girl. In February 2015,
the petitions were consolidated. In March 2015, the Family Court deferred ruling
on the permanency plans for either child and granted the parents an additional 90
days to work toward completing their respective case plans. In June 2015, the
Family Court held a consolidated hearing on DFS’ permanency petitions. The
Family Court found that the Father’s continued actions relating to domestic
violence and his failure to complete the required counseling indicated that the
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Father was unlikely to change his conduct and complete his plan. Therefore, the
Family Court changed the goal for both girls from reunification to termination of
parental rights/adoption.
(7) Thereafter, the parental grandmother filed a petition for guardianship,
which was supported by the Father but was opposed by the Mother and the CASA.
After a hearing, the Family Court denied the petition for guardianship. At that
time, the Mother indicated her consent to termination of her parental rights. On
March 7, 2016, the Family Court held a termination of parental rights hearing as to
the Father. The Father appeared at the courthouse but left before the hearing
started. Although his then-counsel requested to withdraw his appearance because
the Father was not there to state his position on the TPR petition, the Family Court
asked counsel to proceed with the hearing as if the Father objected to the petition.
(8) The Family Court heard from multiple witnesses at the TPR hearing,
including the children’s foster care supervisor, a DFS caseworker, Ashley’s
therapist, the Father’s domestic violence counselor, and the Father’s substance
abuse counselor. The testimony of the State’s witnesses established that, although
the Father recently had some appropriate visits with the children, he had not made
significant progress toward other elements of his case plan because he had failed to
complete individual domestic violence counseling and intensive substance abuse
counseling. The testimony further established that the girls had come into DFS’
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custody as infants and each child had lived with her respective foster family
throughout that period. Each girl had closely bonded with her respective foster
family, and each foster family wished to adopt their foster daughter.
(9) In its written opinion, the Family Court found clear and convincing
evidence that the children had come into DFS’ care as infants and had remained in
DFS’ care for more than six months,3 that DFS had made reasonable efforts to
reunify the Father with the children, that the Father had failed to plan adequately
for the children’s needs,4 and that termination of the Father’s parental rights was in
the children’s best interests.5 In making the determination that termination was in
the children’s best interests, the Family Court considered all of the factors set forth
in 13 Del. C. § 722 and found that the evidence as to each factor weighed in favor
of terminating the Father’s parental rights.
(10) The Father has not raised any challenge to the Family Court’s
decision on appeal. Appointed counsel has set forth one arguable issue, namely
that DFS unreasonably delegated its reunification efforts and case supervision to a
non-party parent aide, who did not reasonably assist the Father in completing his
case plan in a way that accounted for the Father’s diagnosed cognitive deficit of
“mild mental retardation.”
3
11 Del. C. § 1103(a)(5)a1.
4
Id. § 1103(a)(5).
5
Id. § 1103(a).
6
(11) In response, DFS argues that there is more than sufficient evidence in
the record to reflect that DFS appropriately monitored all of the services being
provided to the Father, that the services were provided to the Father in a manner
that he could understand despite his cognitive limitations, and that the Father did
understand and was capable of fulfilling his case plan despite his limitations.
(12) On appellate review of a termination of parental rights, this Court is
required to consider the facts and the 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 trial court to assure that they are
sufficiently supported by the record and are not clearly wrong. 8 If the trial judge
has correctly applied the law, our review is limited to abuse of discretion.9
(13) The statutory procedure for terminating parental rights requires two
separate inquires.10 First, the court must determine whether the evidence presented
meets 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
6
Scott v. DSCYF, 2012 WL 605700 (Del. Feb. 27, 2012) (citing Wilson v. Div. of Fam. Services,
988 A.2d 435, 439-40 (Del. 2010)).
7
Wilson v. Div. of Fam. Services, 988 A.2d 435, 440 (Del. 2010).
8
Id.9
Powell v. DSCYF, 963 A.2d 724, 731 (Del. 2008).
10
Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
11
Id. at 537. See also 13 Del. C. § 1103(a)(1-8) (listing the grounds for termination of parental
rights).
7
child.12 When the statutory basis for termination of parental rights is failure to plan
adequately for the child’s physical, mental, or emotional needs, 13 there must be
proof of a least one additional statutory factor14 and proof that DFS made bona fide
reasonable efforts to reunify the family and preserve the family unit.15 All of these
requirements must be established by clear and convincing evidence.16
(14) In this case, the Family Court found clear and convincing evidence
that the Father’s parental rights should be terminated on the statutory basis of
failure to plan adequately for the children’s needs. 17 This Court has carefully
reviewed the record, including all of the hearing transcripts, the Family Court’s
decision, and the positions of the parties. Contrary to the Father’s counsel’s
arguable point on appeal, the record reflects sufficient evidence to support the
Family Court’s finding that DFS made reasonable efforts to reunify the Father with
the children. We conclude there is ample evidence on the record to support the
Family Court’s termination of the Father’s parental rights on the statutory basis
that he failed to plan for the children and that termination was in the children’s best
12
13 Del. C. § 722(a)(1)-(8) (listing factors to be considered when determining the best interest
of the child).
13
Id. § 1103(a)(5).
14
Id. § 1103(a)(5)a,b (listing additional factors).
15
In re Hanks, 553 A.2d 1171, 1179 (Del. 1989).
16
Powell v. DSCYF, 963 A.2d 724, 731 (Del. 2008).
17
13 Del. C. § 1103(a)(5).
8
interest. We find no abuse of discretion in the Family Court’s factual findings, and
no error in its application of the law to the facts.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
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