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Mason v. Division of Family Services

Supreme Court of Delaware

March 19, 2018

ANDRE MASON [1], Respondent Below, Appellant,
v.
DIVISION OF FAMILY SERVICES, Petitioner Below, Appellee, and OFFICE OF THE CHILD ADVOCATE, Appellee.

          Submitted: January 4, 2018

          Court Below-Family Court of the State of Delaware in and for New Castle County File No. 16-04-07TN Petition No. 16-10828

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

          ORDER

          Karen L. Valihura Justice

         This 19th day of March 2018, upon consideration of the appellant's brief under Supreme Court Rule 26.1(c), his attorney's motion to withdraw, and the appellees' responses and motions to affirm, it appears to the Court that:

          (1) In March 2015, the State Division of Family Services ("DFS") filed a dependency and neglect petition against a twenty-eight-year-old mother, concerning her three children born in 2005, 2006, and 2009, and the children's respective fathers. The Family Court granted emergency ex parte custody of the children to DFS. And at the mandated hearings that followed, the court continued custody with DFS for the duration of the dependency and neglect proceedings.

         (2) In April 2016, DFS filed a termination of parental rights petition seeking to terminate the parents' parental rights in the three children. By order dated May 24, 2017, the Family Court granted the petition and terminated the parental rights of each parent.

         (3) In this appeal, one of the fathers, Andre Mason, has appealed the Family Court's decision terminating his parental rights in his daughter, Olivia, born in February 2006.[2] Mason's counsel has filed a no-merit brief and a motion to withdraw under Supreme Court Rule 26.1(c). Mason's counsel asserts that she made a conscientious review of the record and found no arguable claim to raise on appeal. Mason has submitted points he would like the Court to consider on appeal. Counsel for DFS and the attorney guardian ad litem appointed to represent the children have responded to the no-merit brief, Mason's points, and have moved to affirm the Family Court's judgment.

          (4) Mason has been incarcerated for all-or nearly all-of Olivia's life and was incarcerated during both the dependency and neglect and the termination proceedings. In fact, Mason has been incarcerated in Delaware since April 2006, when he was extradited here and held in default of bail on charges of attempted first degree murder and weapon offenses.[3] He agreed to plead guilty to assault in the first degree, and was sentenced, effective April 5, 2006, to twenty years of Level V incarceration, suspended after fifteen years for two years of Level IV work release, suspended after six months for probation.[4] The Family Court estimated that Mason has approximately nineteen months left of incarceration.

         (5) Mason was appointed counsel for the dependency and neglect proceedings. He and his counsel participated in those proceedings. Mason also attended the two-day termination-of-parental-rights hearing and, through his counsel, presented testimony in support of his position that terminating his parental rights was not in Olivia's best interests.[5]

         (6) In Delaware, termination of parental rights is based on a two-step statutory analysis.[6] Both steps must be established by clear and convincing evidence.[7] First, the Family Court must determine whether there is a statutory basis for termination under 13 Del. C. § 1103(a). When, as in this case, the statutory basis for termination is an alleged failure or inability to plan, the court must find sufficient evidence of at least one additional statutory condition[8] and find that DFS "made bona fide, reasonable efforts to reunite the family."[9] Second, if the court finds a statutory basis for termination, the court then must determine, under the factors set forth in 13 Del. C. § 722(a), whether severing parental rights is in the best interest of the child.

         (7) In this case, the Family Court determined, first, that DFS presented clear and convincing evidence of a statutory basis for termination, namely Mason's inability to plan for Olivia's physical needs and mental and emotional health and development.[10] The court also found the existence of several additional statutory conditions, including that Olivia had been in the custody of DFS for over one year; that, due to his incarceration, Mason is incapable of discharging his parental responsibilities; that Mason is not able to assume promptly legal and physical custody of Olivia and to pay for her support; and that failure to terminate Mason's parental rights would cause Olivia continued emotional stability or physical risk.[11] When finding that failure to terminate Mason's parental rights would cause Olivia continued emotional stability or physical risk, the court considered other relevant factors and found that there was little likelihood that Mason can assume care of Olivia in the near future; that DFS did not thwart Mason's efforts to assert his rights; and that delaying Olivia's placement in a permanent home while awaiting Mason's release from incarceration would be detrimental to her emotional well-being.[12] As for DFS' efforts to provide family preservation services to Mason under 29 Del. C. § 9003(3)(b), the Family Court determined that Mason's extended incarceration prevented DFS from providing such services.

         (8) Second, the Family Court considered each of the best-interest factors and found that the following six factors favored terminating Mason's parental rights: Olivia's wishes;[13] the interaction and interrelationship of Olivia with Mason and other persons who may significantly affect her best interests; the mental and physical health of both Mason and Olivia; Olivia's adjustment to her home, school, and community; Mason's past and present compliance with his general rights and responsibilities as a parent; and Mason's criminal history.[14] The court found that one factor-Mason's wishes-weighed against terminating his parental rights.[15] On another factor-evidence of domestic violence-the court was neutral.[16]

         (9) On appeal, Mason claims that DFS failed to use reasonable efforts to reunify him with Olivia and discriminated against him because of his incarceration. Mason's claims are not supported by the record and are without merit. Under the governing statute, DFS is required to make reasonable efforts to reunite the family "whenever feasible."[17] This Court has held that when a parent is incarcerated for an extended period, it may not be feasible to attempt reunification.[18] In this case, the Family Court concluded that Mason's extended incarceration prevented his reunification with Olivia and that, under the circumstances, DFS was not required to offer a reunification case plan to Mason. We find no error or abuse of discretion in that ruling. Moreover, although DFS did not offer a reunification case plan to Mason, it appears from the record that DFS did explore paternal relative resources. At trial, Fred Conkey, the DFS treatment worker, testified that, at Mason's suggestion, he approached Mason's mother-Olivia's paternal grandmother-as a possible placement option for Olivia. Mason's mother told Conkey ...


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