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Upton v. Division of Family Service

Supreme Court of Delaware

December 11, 2014

BRAD UPTON, Respondent Below, Appellant,
v.
DIVISION OF FAMILY SERVICES, Petitioner Below, Appellee, and COURT APPOINTED SPECIAL ADVOCATE, Appellee

Submitted November 13, 2014

Case Closed December 30, 2014.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Court Below--Family Court of the State of Delaware in and for Sussex County. File No. 13-07-02TS. CPI No. 13-24321.

Before STRINE, Chief Justice, RIDGELY and VALIHURA, Justices.

ORDER

Karen L. Valihura, Justice

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 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] 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 ...

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