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Division of Family Services v. O'Bryan

Supreme Court of Delaware

May 31, 2017

DIVISION OF FAMILY SERVICES, Respondent Below, Appellant,
v.
MARK O'BRYAN, [1] Petitioner Below, Appellee.

          Submitted: May 3, 2017

         Court Below-Family Court of the State of Delaware File No: CN16-01443 Petition No: 16-03036

         Upon appeal from the Family Court: AFFIRMED.

          Victoria Witherell, Esquire (argued) and Jonathan Harting, Esquire, Department of Justice, Wilmington, Delaware for Respondent Below, Appellant Division of Family Services.

          Mark O'Bryan, Petitioner Below, Appellee, pro se.

          Leslie B. Spoltore, Esquire, Fox Rothschild LLP, Wilmington, Delaware; George R. Tsakataras, Esquire, The Law Office of George R. Tsakataras, P.A., Wilmington, Delaware; Achille C. Scache, Esquire (argued), Giordano, DelCollo, Werb & Gagne, LLC, Wilmington, Delaware, Amicus Curiae in Support of Petitioner Below, Appellee, Mark O'Bryan.

          Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

          SEITZ, Justice.

         The Child Protection From Sex Offenders Act (the "Sex Offenders Act" or "Act") establishes "a rebuttable presumption that no sex offender shall be awarded sole or joint custody of any child, that no child shall primarily reside with a sex offender, and that no sex offender shall have unsupervised visitation with a child."[2]With certain exceptions, the sex offender can rebut the presumption by demonstrating his compliance with the conditions in the statute.

         This appeal raises one issue-whether the Sex Offenders Act and its rebuttable presumption operate outside of Family Court custody proceedings. We conclude, as did the Family Court, that the General Assembly intended that the Act and its rebuttable presumption to operate only when the Family Court determines custody, residency, and visitation as part of a Family Court custody proceeding. We therefore affirm the Family Court's order.

         I.

         The facts of this case are essentially undisputed.[3] Mark O'Bryan lives in Delaware with his wife, their daughter, and his wife's two daughters. They lived together as a family for over eight years. O'Bryan is the sole financial provider for the family.

         On January 13, 2016, O'Bryan's wife hit and scratched him during an argument. O'Bryan called the police to de-escalate the situation. The police ended up filing criminal charges only against O'Bryan's wife. Although not involved in the altercation, one of O'Bryan's stepdaughters (then age 17) and his biological daughter (then age 2) were present during the incident. Because the children were witnesses to the fight, DFS conducted a follow up investigation.

         DFS learned as part of its investigation that O'Bryan was a Tier II sex offender because of his 2002 guilty plea to rape fourth degree.[4] DFS went to the family home on February 3, 2016, and told O'Bryan that, based on his status as a Tier II sex offender, [5] and children living in the home, O'Bryan had to leave. O'Bryan left the family home that night.

         The next day, O'Bryan filed a petition in the Family Court to return home. The Family Court granted the petition on an ex parte basis pending a hearing scheduled for February 9, 2016. At the February 9 hearing, DFS argued that the Sex Offenders Act prohibited O'Bryan from primarily residing with any child unless he rebutted the statutory presumption. O'Bryan, his wife, and a DFS representative testified at the hearing. His wife testified that she wanted her husband to return home, and that she had no concern about him being around her or her children.[6]O'Bryan admitted that if the Act applied, he was unable to rebut the presumption because he did not complete his sex offender therapy.[7]

         The Family Court judge asked the DFS witness whether there were concerns about the children's safety. The DFS witness testified that DFS had "no proof of anything" and had "no reason to believe that anything specifically ha[d] happened to these kids other than there had been domestic violence in their presence."[8]O'Bryan also was not under any restrictions as a Tier II sex offender, such as restrictions limiting his contact with children.

         On March 8, 2016, the court granted O'Bryan's petition to return home, and held that:

13 Del. C. § 724A does not on its face provide for the removal of a parent from the home of an intact family, nor can the Court conclude that the legislature intended for the statute to apply in such a manner. Section 724A merely creates a presumption that a sex offender parent will not be awarded custody, primary residency[, ] or unsupervised visitation by the Court, without first rebutting the presumption. The Court is not awarding any type of custody or residency in instances where there is no dispute between parents or between a parent and DFS. In instances where there is no ongoing custody issue, the registered party is not required to rebut the presumption and there actually is no forum in which to apply the presumption.[9]

         DFS has appealed the Family Court's order and argues that the Sex Offenders Act prohibits any children from residing with a Tier II or III sex offender unless the sex offender first rebuts the Act's presumption by satisfying the six conditions in the Act. In response, O'Bryan contends that the Family Court correctly interpreted the Sex Offenders Act. According to O'Bryan, the Act only operates in Family Court custody proceedings. In other words, the Act does not grant DFS authority to require a sex offender to leave a family home. Our review of the Family Court's interpretation of the Act is de novo.[10]

         II.

         The General Assembly enacted the Sex Offenders Act "to protect children from sex offenders by presuming that it is not in the best interests of a child to be placed in a custodial, residential or unsupervised visitation arrangement with a sex offender, regardless of whether the sex offender's victim was an adult or a child."[11]A "sex offender" is "any person designated by the courts of this State as a Risk Assessment Tier II or III sex offender under § 4121 of Title 11, or a person designated and treated as such by a court or a jurisdiction outside of Delaware, regardless of whether the sex offender's victim was an adult or a child."[12] Section 724A of the Act imposes a rebuttable presumption "that no sex offender shall be awarded sole or joint custody of any child, that no child shall primarily reside with a sex offender, and that no sex offender shall have unsupervised visitation with a child."[13] With certain exceptions, a sex offender can overcome the presumption by satisfying the six factors listed in the Act.[14] The Family Court decided that the rebuttable presumption operated only in pending custody proceedings, which can include not just legal custody, but also residency and visitation determinations by the Family Court.

         DFS's argument on appeal is relatively simple. Recognizing that "custody" is "awarded" under the statute, which implies a pending Family Court custody proceeding, DFS parses the language of § 724A into "three separate and distinct dependent clauses": (1) the "Custody Clause" - "that no sex offender shall be awarded sole or joint custody of any child"; (2) the "Residency Clause" - "that no child shall reside primarily with a sex offender"; and (3) the "Visitation Clause" - "that no sex offender shall have unsupervised visitation with a child."[15] According to DFS, if each of the clauses operate independently, the Residency Clause "states clearly and unequivocally that no child shall reside with a sex offender" and "does not limit the residency prohibition to children who are the subject of a pending petition."[16] Thus, ...


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