Timothy Harris v. Dept. of Services for Children and their ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
TIMOTHY HARRIS,l
No. 43, 2015
Respondent Below,
Appellant, Court Below—Family Court of
the State of Delaware in and for
v. New Castle County
DEPARTMENT OF SERVICES FOR
CHILDREN, YOUTH AND THEIR
FAMILIES/DIVISION OF FAMILY
SERVICES,
File No. l4-10-01TN
Pet. No. 14-26935
Petitioner Below,
Appellee,
and
COURT APPOINTED SPECIAL
ADVOCATE,
mmmmmmmmmmmmmmmmmammmm
Appellee.
Submitted: July 2, 2015
Decided: September 10, 2015
Before VALIHURA, VAUGHN and SEITZ, Justices.
0 R D E R
This 10‘11 day of September 2015, it appears to the Court that:
(1) The appellant, Timothy Harris (“Father”), has appealed the Family Court’s
order dated January 6, 2015, terminating his parental rights in his daughter born in 2010
' By Order dated February 4, 2015, the Court assigned a pseudonym to the appellant. Del. Supr. Ct. R.
7(d).
and his son born in 201] (collectively, the FChildren”).2 Father’s counsel (“Counsel”)
has filed an opening brief and a motion to withdraw under Supreme Court Rule 26.1(c).3
Counsel asserts that he has made a conscientious review of the record and the law and
can find no arguable grounds for appeal. In response to the Rule 26.1(c) brief filed by
Counsel, Father has submitted points for the Court’s consideration. The appellees, the
Division of Family Services (“DFS”) and the Court Appointed Special Advocate, have
reSponded to Counsel’s position and Father’s points and have moved to affirm the Family
Court judgment.
(2) The record reflects that Father is a Tier 11 registered sex offender having
been convicted in 2003 on four counts of unlawful sexual contact in the second degree
4 Father was incarcerated on a violation of
for having sexual contact with a minor.
probation during most of the underlying dependency/neglect and termination of parental
rights proceedings.
(3) DFS initiated dependency/neglect proceedings in October 2013 based on
concerns that the Children were dependent and neglected in their mother’s care. By ex
parte order the Family Court granted emergency custody of the Children to DFS. At the
preliminary protective hearing, and at each of the mandated review hearings that
2 The Family Court also terminated the parental rights of the Children’s mother. The Children’s mother is
not a party to this appeal.
3 See Del. Supt. Ct. R. 26.l(c) (governing appeals without merit in termination of parental rights cases).
4 On March 7, 2003, the Superior Court sentenced Father to eight years at Level V suSpended afier
eighteen months for Level [V and probation. Father is currently incarcerated on a violation of probation
and expects to be released in 2016.
2
followed, the Family Court found that the Children were dependent and continued
custody with DFS.
(4) In March 2014, DFS filed a “motion for no reasonable efforts” indicating
the Department had elected not to provide reunification services to Father? The Family
Court granted the motion in April 2014.
(5) In September 2014, DFS filed a petition to terminate Father’s parental
rights based on his felony convictions of offenses against a child‘5 and his failure to plan
adequately for the Children’s physical needs or mental and emotional health and
development? The Family Court scheduled a termination of parental rights (“TPR”)
hearing for October 2014.
(6) Father appeared with Counsel at the TPR hearing. At the outset of the
hearing, Father submitted a written consent to the termination of his parental rights and
asked to be excused from the remainder of the hearing. Before excusing Father and
Counsel from the hearing, the Family Court conducted a colloquy on the record to ensure
that Father understood the weight and effect of his decision to voluntarily terminate his
parental rights.8
5 See 13 Del. C. 1103(d) (providing in pertinent part that DFS is not required to perform reunification
services when the grounds for terminating parental rights is the respondent’s conviction of a felony level
offense against a child).
6 13 Del. C. § 1|03(a)(4)(a).
’ 13 Del. C. § 1103(5).
“ See generally Wilson v. Div. of Family Sam, 988 A.2d 435 (Del. 2010) (discussing statutory
requirements to conduct a colloquy on a consent to termination of parental rights).
3
(7) In Delaware, termination of parental rights is based on a two-step statutory
analysis.9 First, the Family Court must determine whether there is clear and convincing
evidence of a statutory basis for termination.'0 If the Family Court determines there is a
statutory basis for termination, the Family Court must determine whether there is clear
and convincing evidence that severing parental rights is in the best interest of the child.ll
(8) In Father’s case, the Family Court concluded there was clear and
convincing evidence of a statutory basis for terminating Father’s parental rights by
consent. Also, after thoroughly considering the best interest factors and making factual
findings as to each, the Family Court found it was in the Children’s best interests to
terminate Father’s parental rights.
(9) This Court’s review of a decision to terminate parental rights requires
consideration of the facts and the law as well as the inferences and deductions made by
the Family Court.12 To the extent rulings of law are implicated, our review is de nova.”
To the extent issues implicate rulings of fact, we conduct a limited review of the factual
findings of the Family Court to assure that they are sufficiently supported by the record
14
and are not clearly wrong. This Court will not disturb inferences and deductions that
9 13 Del. C. § 1 103(3).
'0 Id. Shepherd v. Clemens, 752 A.2d 533, 537 (Del. 2000).
” See l3 Del. C. § 722(a)(1)-(8) (listing best interest factors). Powell 0. Dep '1 of Set-v. for Children.
Youth & Their Families, 963 A.2d 724, 731 (Del. 2008).
'3 Wilson v. Div. ofFamin Sent, 988 A.2d 435, 439-40 (Del. 2010) (citing cases).
'3 Id. at 440.
I4
are supported by the record and the product of an orderly and logical deductive process.”
If the Family Court has correctly applied the law, our review is limited to abuse of
discretion.”
(10) In this case, having carefully considered the parties’ submissions on appeal
and the Family Court record, we conclude there is clear and convincing evidence
supporting the Family Court’s termination of Father’s parental rights by consent and
because termination was in the Children’s best interests. Father’s written consent for
termination of his parental rights included all of the elements required by the governing
statutes.” Nothing in the record suggests that Father misunderstood or misapprehended
the nature and consequences of his consent.I8
(11) Father’s points on appeal do not contest his written or verbal consent to
the termination of his parental rights. Rather, Father contends that he should have had
supervised visitation with the Children when he was incarcerated and on probation, and
he requests “some form of visitation and open adOption” with the Children. Father’s
contention is without merit, and his request is unavailing. Under the sentence imposed
for his criminal convictions and as a condition of his probation, Father was not allowed to
‘5 Id.
[6
'7 I3 Del. C. §§ l 106, 1 106A (governing termination of parental rights by consent, consent requirements,
and contents of consent to terminate and transfer parental rights).
'8 Wilson v. Div. ofFamin Sew, 988 A.2d 435, 440 (Del. 2010) (“Generally, in evaluating the validity or
an individual’s consent, this Court must consider: first, whether it was ‘the product of a free and
deliberate choice’ . . . and second, whether it was ‘made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to abandon it.””) (citing DeJesus v. State,
655 A.2d 1 ISO, l I92 (Del. I995), superseded by statute on other grounds, quoting Moran v. Burbiue, 475
US. 412, 42] (1986)».
5
have contact with any child, including the Children. In the written consent signed by
Father, and in the colloquy with the Family Court, Father stated that he understood that
he was giving up all rights in the Children. When parental rights are terminated, “the
rights, duties, privileges, and obligations” between the person whose parental rights are
terminated and the child “cease to exist?”
(12) This Court can discern no abuse of discretion in the Family Court’s factual
findings and no error in the court’s acceptance of Father’s written consent to terminate
and transfer parental rights. We are satisfied that Counsel made a conscientious effort to
examine the record and the law and preperly 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. Counsel’s motion to withdraw is moot.
BY THE COURT:
Ju ce