Shipman v. Division of Social Services , 454 A.2d 767 ( 1982 )

454 A.2d 767 (1982)

Betty Jo and Roy SHIPMAN,^[*] Petitioners-Below, Appellants,
v.
DIVISION OF SOCIAL SERVICES and Children's Bureau of Delaware, Inc., Respondents-Below, Appellees.
In the Matter of Sheila Margaret SHIPMAN,^[*] a minor child.

Family Court of Delaware, New Castle County.

October 25, 1982.

Frederick S. Kessler, Roeberg & Frabizzio, Wilmington, for petitioners-below, appellants.

Carol S. Widing, Dept. of Justice, Wilmington, for respondent-below, appellee, Div. of Social Services.

L. Susan Faw, Richards, Layton & Finger, Wilmington, for respondent-below, appellee, Children's Bureau of Delaware, Inc.

Supplemental Opinion on Remand

GALLAGHER, Judge:

On October 14, the Supreme Court of the State of Delaware entered a mandate by virtue of which the above case was remanded to this court for reconsideration in light of the decision of the Supreme Court of the United States in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), and the decision of the Supreme Court of Delaware in Patricia A.F.V. v. James R.F., Del.Supr., 451 A.2d 830, 1982, with further briefing on the appeal being stayed pending this court's decision with jurisdiction reserved.^[1]

The preamble to the order recites in part:

... (T)his appeal is directly affected by the United States Supreme Court's recent decision in Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 [71 L. Ed. 2d 599] (1982) in which the Court declares unconstitutional the application of the preponderance of the evidence standard in termination of parental rights proceedings. . .

The appeal to the Supreme Court of Delaware is from a decision of this court on October 9, 1981, terminating the parental rights of Betty Jo and Roy Shipman in their minor child, Sheila Margaret Shipman.^[2] While this court's decision did not mention the quantum of evidence that was required to terminate parental rights,^[3] the evidentiary standard adhered to by this court in view of the decision of the Supreme Court of this State in Matter of Five Minor Children, Del.Supr., 407 A.2d 198 (1979), was preponderance of the evidence. This court will review the evidentiary standards and then the evidence that was considered before ordering termination of parental rights in light of the proper evidentiary standard.^[4] In passing, I will mention the four different standards that are most often applied in weighing evidence.

The lowest standard of proof is substantial evidence, meaning such relevant evidence as a reasonable mind might accept as adequate to support a conclusion — more than a scintilla but less than a preponderance. Olney v. Cooch, Del.Supr., 425 A.2d 610, 614 (1981); Del. Alcoholic Bev. v. Alfred I duPont Sch., Del.Supr., 385 A.2d 1123 (1978). This standard is most often utilized by an appellate court in determining whether there is sufficient evidence in the record to support the conclusions of fact made by a trial court.

The next standard of proof is preponderance of the evidence, meaning such relevant evidence as will enable the court to determine the identity of the litigant who should prevail, the weight of the evidence tipping in favor of that litigant. Reynolds v. Reynolds, Del.Supr., 237 A.2d 708 (1967); Warwick v. Addicks, Del.Super., 35 Del. 43, 157 A. 205 (1931). Thus, if the evidence is in even balance then the litigant having the burden of persuasion by a preponderance of the evidence will fail to sustain that burden. Guthridge v. Penn-Mod., Inc., Del.Super., 239 A.2d 709 (1967). The preponderance standard, prior to Santosky, supra, was applied by this court following the instruction of the Supreme Court of Delaware in Matter of Five Minor Children, supra.

The third standard of evidence is clear and convincing evidence, a higher evidentiary standard than mere preponderance Walsh v. Bailey, Del.Supr., 197 A.2d 331 (1964), 32A C.J.S., Evidence § 1023 and 29 Am.Jur.2d, Evidence § 1167. This is the standard of evidence now required for termination of parental rights by virtue of Santosky, supra, and Patricia A.F.V. v. James R.F., supra.^[5] The Supreme Court of the United States in Santosky, supra, declared clear and convincing to be a higher evidentiary than mere preponderance but a lesser standard than proof beyond a reasonable doubt, the fourth standard of evidence which is merely mentioned here.

NOTES

[*] A pseudonym adopted to protect the privacy of the parties.

[1] Similar to the approach of the Delaware Supreme Court, is the approach taken in Pennsylvania. The Pennsylvania Superior Court in view of Santosky v. Kramer, supra, and a Pennsylvania Supreme Court holding in In re Adoption of David C., Pa.Supr., 479 Pa. 1, 387 A.2d 804 (1978), holding that the quantum of proof required for termination of parental rights is preponderance of the evidence, remanded the case to the trier of fact who had observed the witnesses and their demeanor to reevaluate the evidence in light of Santosky, supra. In re G.J.A., Pa.Super., 450 A.2d 80, (1982).

[2] One opinion with respect to this case appears as Shipman v. Division of Social Services, Del. Fam.Ct., 442 A.2d 101 (1981).

[3] Interestingly, this court did state on page 2 of the opinion "... that the clear and proper course calls for immediate termination of parents' parental rights."

[4] There is no question of retroactivity involved here because the Santosky principle is being applied to a case still pending on direct review at the time the Santosky principle was announced. Brown v. Louisiana, 447 U.S. 323, 100 S. Ct. 2214, 65 L. Ed. 2d 159 (1980); Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965); and State v. Deputy, Del. Supr., 433 A.2d 1040, 1045 (1981).

[5] The clear and convincing evidentiary standard was adopted and applied by this court in Division of Social Services v. Tusiki, Del.Fam. Ct., 446 A.2d 1109, 1111 (1982).