Upton v. DFS & Court Appointed Special

IN THE SUPREME COURT OF THE STATE OF DELAWARE
BRAD UPTON, §
§ No. 398, 2014
Respondent Below, §
Appellant, § Court Below—Family Court of
§ the State of Delaware in and for
v. § Sussex County
§
DIVISION OF FAMILY § File No. 13-07-02TS
SERVICES, § CPI No. 13-24321
§
Petitioner Below, §
Appellee, §
§
and §
§
COURT APPOINTED SPECIAL §
ADVOCATE, §
§
Appellee. §
Submitted: November 13, 2014
Decided: December 11, 2014
Before STRINE, Chief Justice, RIDGELY and VALIHURA, Justices.
ORDER
This 11th day of December 2014, upon consideration of the appellant’s
brief filed under Supreme Court Rule 26.1 (“Rule 26.1”), his attorney’s
motion to withdraw, and the responses of the appellees, Division of Family
Services (“DFS”) and the court appointed special advocate (“CASA”), it
appears to the Court that:
(1) The appellant, Brad Upton (“Father”), filed this appeal from the
Family Court’s order of July 1, 2014, terminating his parental rights in his
three daughters, Carly, born December 5, 2007, Chloe, born October 1,
2009, and Chelsea, born October 24, 2011 (collectively “the Children”).1
The parental rights of the Children’s mother (“mother”) were terminated in
the same order and are not at issue in this appeal.
(2) On appeal, Father’s counsel (“Counsel”) has filed an opening
brief and a motion to withdraw under Rule 26.1. Counsel asserts that, based
upon a complete and careful examination of the record, there are no arguably
appealable issues. Father has responded to Counsel’s presentation with a
written submission that raises several claims. DFS and CASA have
responded to the position taken by Counsel and the issues raised by Father
and have moved to affirm the judgment of the Family Court.
(3) The record reflects that, on February 29, 2012, DFS filed an
emergency dependency/neglect petition seeking custody of the Children on
the basis that the Children had witnessed an incidence of domestic violence
between mother and Father while in mother and Father’s home. At the time
of the petition, the two older children, Carly and Chloe, were in a
1
Having previously assigned a pseudonym to the appellant, the Court hereby assigns
pseudonyms to the children. Del. Supr. Ct. R. 7(d).
2
guardianship held by their paternal grandmother, Joan Davis (“Davis”), as a
result of prior dependency/neglect proceedings involving mother and
Father.2
(4) By ex parte order on March 1, 2012, the Family Court granted
temporary custody of the Children to DFS. At the March 22, 2012
preliminary protective hearing that followed, mother and Father stipulated,
subject to their respective positions on Davis’ guardianship, that the
Children were dependent, and that it was in the best interests of the Children
that custody remain with DFS.
(5) At the April 19, 2012 adjudicatory hearing, the Family Court
heard evidence on whether Davis should retain guardianship of Carly and
Chloe. At the conclusion of the hearing, the court rescinded the
guardianship previously awarded to Davis, after determining that Carly and
Chloe were neglected in Davis’ care. In its April 19, 2012 order, the court
ruled as follows:
[Davis] was supposed to be caring for [Carly and
Chloe] because they were in her guardianship in
2009 and 2010, when [they] were dependent in the
care of mother and father, mother and father were
unable to regain custody because they did not
complete their case plans for reunification.
Nonetheless, [Davis] placed [Carly and Chloe]
2
The Court hereby assigns a pseudonym to the paternal grandmother. Del. Supr. Ct. R.
7(d).
3
back in mother and father’s home, despite specific
direction from the Court not to do so, and in
violation of her obligations as a guardian. Since
[Davis] is no longer acting as a guardian of [Carly
and Chloe], and because they are dependent in the
care of mother and father, full custody of [Carly
and Chloe] is hereby awarded to [DFS]. As
indicated previously, because mother and father
have agreed that she is dependent in their care,
custody of [Chelsea] is awarded to DFS. DFS has
made reasonable efforts in this matter to prevent or
eliminate the need for removing the children from
their home and toward preserving and reunifying
the family.
(6) In late April 2012, Father entered into a reunification case plan
with DFS. 3 The case plan identified a number of problem areas that Father
needed to remediate to achieve reunification with the Children, namely
financial issues, family violence concerns, appropriate parenting, substance
abuse, emotional instability/mental health issues, housing problems, and
legal issues.
(7) Under the case plan, to demonstrate sufficient progress in the
identified problem areas, Father was required to: obtain employment or
other income to provide for the family’s basic needs, attend and complete a
parenting class, complete an approved domestic violence course for
perpetrators of domestic violence and follow any discharge
3
See Del. Fam. Ct. Civ. R. 220 (governing contents of case plans).
4
recommendations, undergo a substance abuse evaluation and comply with
any recommendations including recommended treatment, undergo a mental
health evaluation and comply with any recommendations including
recommended treatment, locate housing for himself and the Children, and
comply with conditions of court orders. The case plan noted that, as of April
19, 2012, Father was incarcerated on pending felony and misdemeanor
charges, but that Father’s incarceration “would not provide [Father] with
additional time to complete his case plan.”
(8) At the May 7, 2012 dispositional hearing, Father, mother, and
the CASA argued that DFS had failed to use due diligence, by not
identifying and providing notice to relatives within thirty days of placement
as required by federal statute. 4 The Family Court agreed, ruling that “DFS
has failed to exercise due diligence in this matter to identify and provide
notice to adult relatives.” Otherwise, the court found “that DFS has made
reasonable efforts in this matter toward preserving and reunifying the
family.”
4
See 42 U.S.C.A. § 671(a)(29) (providing that, within thirty days after the removal of a
child from the custody of the parent(s), the State shall exercise due diligence to identify
and provide notice to all adult grandparents and other adult relatives of the child
(including any other adult relatives suggested by the parents) that the child has been
removed from the custody of the parent(s) and explain the options the relative has to
participate in the care and placement of the child).
5
(9) At the review hearing on June 25, 2012, DFS submitted
evidence indicating that relatives had been notified about the placement of
the Children. At the conclusion of that hearing, and at the review hearings
that followed on September 17, 2012, November 19, 2012, and February 21,
2013, the Family Court found that the Children were dependent and that
DFS had made reasonable efforts at reunification.
(10) On February 25, 2013, DFS filed a motion requesting that the
court change the permanency goal from reunification to termination of
parental rights. The motion was considered at the permanency hearing on
April 8, 2013. At the conclusion of that hearing, the court granted the
motion and changed the permanency goal from reunification to termination.
In its April 8, 2013 order, the Family Court ruled:
[The Children] have been in the care of [DFS]
since March 1, 2012. [Carly] was four years old,
[Chloe] was two years old, and [Chelsea] was less
than six months old. [Carly and Chloe] had a
history of a prior placement with [DFS] in late
2009, at the time of [Chloe’s] birth, and a
subsequent guardianship with their paternal
grandmother. For a significant portion of their
lives, they have not been in the care of their
parents.
Mother and father have been working towards
reunification for the past year. . . . Several different
agencies have attempted to engage mother and
father in addressing the elements of their case
plans. Yet, mother and father have not completed
6
those case plans, and have not taken steps to show
that their daughters would no longer be dependent
in their care. The Court is unable to determine that
it would be safe for [the Children] to be returned to
the care of their parents. 5
(11) On July 12, 2013, DFS filed a petition to terminate Father’s
parental rights (“TPR petition”) on the ground that he had failed “to plan
adequately for [the Children’s] physical needs or mental and emotional
health and development.” 6 By order dated July 29, 2013, the court
scheduled a hearing for December 19, 2013, and at the December 19, 2013
hearing, the court scheduled the trial for March 20, 2014. On March 20,
2014, the trial was rescheduled until April 11, 2014, so that the court could
consider a petition for guardianship filed by Davis on February 10, 2014.
(12) On April 11, 2014, the court conducted an evidentiary hearing
on Davis’ petition for guardianship. After hearing testimony from Davis,
mother, Father, Davis’ prior landlord, the DFS treatment worker, the DFS
permanency worker, and the CASA, the Family Court denied the petition,
ruling that placement with Davis was not in the best interests of the
Children.
5
The Court notes that, although DFS was directed to “file its termination petition within
thirty days of the date of this order,” the record reflects that the April 8, 2013 order was
not mailed to the parties until June 25, 2013. The record does not reflect why the order
was not mailed until June 25, 2013.
6
13 Del. C. § 1103(a)(5).
7
(13) Immediately after ruling on the guardianship petition, the
Family Court began the trial on the TPR petition. At the outset of the trial,
mother voluntarily consented to a termination and transfer of her parental
rights in the Children.
(14) Over the course of the two-day trial, the Family Court heard
testimony from Father’s domestic violence treatment counselor, Father’s
alcohol and drug counselor, the DFS treatment worker, the DFS
permanency worker, the CASA, and Father. The Family Court also heard
testimony from a Department of Correction probation and parole supervisor,
concerning Father’s conviction and sentencing on July 19, 2013 for violation
of probation, for which Father was currently incarcerated.
(15) By order dated July 1, 2014, the Family Court terminated
Father’s parental rights on the ground that he had failed to plan for the
Children’s needs and that termination was in the Children’s best interest.
When considering best interest factor eight, concerning “the criminal history
of any party,” the court found:
Father is currently incarcerated, due to substance
abuse issues. He is participating in intensive
treatment. The earliest that he can expect to be
released from prison is June 2015. At that time, all
three of his children will have remained in foster
care, for the second time, for over three years. The
Court does not believe that father will be able to
complete all the terms of his case plan while
8
incarcerated, so that he will be able to care for his
daughters upon his release.
This appeal followed.
(16) This Court’s review of a Family Court order terminating
parental rights requires that we consider the facts and the law. 7 When issues
implicate rulings of law, our review is de novo. 8 When issues implicate
rulings of fact, we conduct a limited review of the Family Court’s factual
findings to assure that they are sufficiently supported by the record and are
not clearly wrong.9 We do not disturb inferences and deductions that are
supported by the record and are the product of an orderly and logical
deductive process.10 If the Family Court has correctly applied the law, our
review is limited to abuse of discretion. 11
(17) In Delaware, the termination of parental rights requires a two-
step analysis. 12 The Family Court must first identify a statutory basis for
termination 13 and second, determine what is in the best interest of the
7
Wilson v. Div. of Family Serv., 988 A.2d 435, 439-40 (Del. 2010).
8
Id. at 440.
9
Id.
10
Id.
11
Id.
12
Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
13
Id. at 537. See 13 Del. C. § 1103(a) (listing grounds for termination of parental rights).
9
child. 14 Also, when the statutory basis for termination is failure to plan15
there must be proof of at least one additional statutory condition 16 and proof
that DFS made bona fide reasonable efforts to preserve the family unit.17 It
is incumbent on the petitioner to prove by clear and convincing evidence
that there is a statutory basis for termination, and that the best interest
analysis favors termination.18
(18) Having carefully reviewed the parties’ positions on appeal and
the Family Court record, we conclude that there is clear and convincing
evidence supporting the termination of Father’s parental rights on the basis
of his failure to plan and because termination was in the Children’s best
interest. The record reflects that Father did not complete the major aspects
of his case plan despite DFS’ reasonable efforts at reunification, and that the
Children are well-adjusted in their current pre-adoptive home.
(19) In his written submission, Father challenges the termination of
his parental rights, claiming that the court over-emphasized his incarceration
and underestimated the progress he can make on his case plan while
14
Shepherd v. Clemens, 752 A.2d at 537. See 13 Del. C. § 722(a) (listing best interest
factors).
15
13 Del. C. § 1103(a)(5).
16
See id. at a., b. (listing additional conditions).
17
In re Hanks, 553 A.2d 1171, 1179 (Del. 1989).
18
Powell v. Dep’t of Serv. for Children, Youth & Their Families, 963 A.2d 724, 731 (Del.
2008).
10
incarcerated. Father also claims that the court undervalued his relationship
to the Children and the Children’s wishes to be placed with a family
member. Third, Father claims that DFS did not make adequate or
reasonable efforts on behalf of the Children as evidenced by allegations that
Carly was physically abused in a Dover foster home. Finally, Father claims
that the Family Court unfairly denied Davis’ guardianship petition.
(20) Father’s claim concerning the Family Court’s denial of Davis’
petition for guardianship is unavailing. Davis did not appeal the April 11,
2014 denial of her guardianship petition. As a result, Father has no standing
to challenge that decision. 19
(21) Father’s remaining claims are without merit. Contrary to
Father’s claims, the record contains ample evidence supporting the Family
Court’s findings that Father failed to make adequate progress on his case
plan, and that DFS made bona fide reasonable efforts to reunify Father with
the Children. The record also reflects that the Family Court carefully
considered the best interest factors and made factual findings that guided its
decision that the termination of Father’s parental rights was in the best
interest of the Children.
19
Lane v. Div. of Family Serv., 2014 WL 1272264 (Del. Mar. 27, 2014).
11
(22) Having carefully reviewed the parties’ positions and the record
on appeal, the Court can discern no abuse of discretion in the Family Court’s
factual findings and no error in the court’s application of the law to the facts
when terminating Father’s parental rights. We therefore conclude that
Father’s appeal is wholly without merit and devoid of any arguably
appealable issue. We are satisfied that Counsel made a conscientious effort
to examine the record and the law and properly determined that Father could
not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the motions to affirm
filed by DFS and CASA are GRANTED. The judgment of the Family Court
is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Karen L. Valihura
Justice
12