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Lindel-Packer v. Division of Family Services

Supreme Court of Delaware

April 22, 2019

OLIVER LINDEL-PACKER, Respondent Below, Appellant,
v.
DIVISION OF FAMILY SERVICES and OFFICE OF CHILD ADVOCATE Petitioners Below, Appellees.

          Submitted: March 6, 2019

          Court Below: Family Court of the State of Delaware in and for Sussex County File Nos. CS18-05-09TS CS18-05-10TS Petition Nos. 18-16216 18-16225

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

          ORDER

          James T. Vaughn, Jr. Justice.

         On this 22nd day of April 2019, upon consideration of the parties' briefs and the record on appeal, it appears that:

         (1) The appellant, Oliver Lindel-Packer (the father), [1] appeals from a Family Court Order permanently terminating his parental rights to his biological daughter, Aria.[2] The father makes two claims on appeal. First, he contends that the Family Court improperly imputed the substance abuse issues of Aria's mother (the mother) to him and that this violated his right to due process under the United States and Delaware Constitutions. Second, he contends that the Family Court's finding that the Division of Family Services (the "Division") proved by clear and convincing evidence that he failed to plan under 13 Del. C. § 1103(a)(5) was clearly wrong and not sufficiently supported by the record.

         (2) As to the father's second argument, having considered this matter on the briefs filed by the parties, we have determined that the final judgment of the Family Court is supported by the record and should be affirmed on the basis of and for the reasons assigned by the Family Court in its opinion dated August 21, 2018. Accordingly, we will address only the father's first argument.

         (3) The pertinent facts are as follows. Aria was born on January 13, 2017. She entered into the care of the Division on January 18, 2017, because she and the mother tested positive for opiates and marijuana at the time of birth. At this same time, the Division took custody of the mother's other minor child, Michael, who has an unknown biological father. On January 26, 2017, the mother and the father (collectively, the parents) attended a preliminary protective hearing. At this hearing, they were found indigent and were each appointed counsel. The father stipulated that probable cause existed to find Aria dependent in his care based on housing. The mother waived her right to an adjudicatory hearing and stipulated to a finding of dependency based on housing and her substance abuse. On May 25, 2017, following genetic testing which confirmed that the father is the biological father of Aria, the father agreed that Aria was dependent in his care and waived his right to an adjudicatory hearing.

         (4) The initial permanency plan of this proceeding was reunification of the children with the parents. To this end, the Division created case plans for each parent to complete. Pursuant to their case plans, the mother began receiving substance abuse treatment, and both parents participated in regular visitation with the children. At a review hearing on May 25, 2017, the court learned that the parents had obtained housing. Following another review hearing on November 2, 2017 (the "November Review Hearing"), the parents began having unsupervised visits with the children and had two overnight weekend visits at their home. A permanency hearing was held on January 25, 2018 (the "January Permanency Hearing"). At the conclusion of that hearing, although the court explained that it continued to be in the best interest of the children to remain in the custody of the Division, the court found compelling reasons to continue to approve reunification as the permanency plan.

         (5) In March 2018, however, things turned for the worse. The parents lost their housing and moved into a motel. At first, they continued to have visits at the motel, but after March 15, 2018, their family interventionist, Betsy Bradley, had no success contacting either parent, and neither the mother nor the father attempted to contact Ms. Bradley, the Court Appointed Special Advocate (the "Special Advocate"), the Division, or their attorneys.

         (6) The parents then failed to appear at their permanency review hearing on April 19, 2018 (the "April Permanency Review Hearing"). At this hearing, the parents' loss of their housing, absence of contact with their attorneys and case workers, and failure to visit with their children since March 15 were all brought to the court's attention. Because of this regression in progress, the Division moved to change the permanency plan to termination of parental rights based on a failure to plan under 13 Del. C. § 1103(a)(5). In response, the parents' attorneys each informed the court that they had not heard from their clients since the January Permanency Hearing and, as a result, could not take a position on behalf of their clients.

         (7) At the close of the hearing, the court changed the permanency plan from reunification to termination of parental rights. The court agreed "that something significant has happened since January" and "that it doesn't appear that Mom and Dad are close to reunification," explaining "they're further away from reunification than they were in January."[3] The court then noted the following reasons for its decision: (1) the mother's failure to comply with her substance abuse treatment, by continuing to use marijuana, and her failure to complete mental health treatment; (2) the insufficient evidence of the parents' consistent employment; (3) the absence of visits with the children since March and their failure to attend the children's medical appointments; (4) the parents' lack of housing and their failure to use the resources offered by the Division to obtain suitable housing; and (5) the parents' failure to attend the hearing and ask for more time on their reunification plans. A final hearing was ultimately scheduled for July 26, 2018 (the "Termination Hearing").

         (8) The parents appeared at the Termination Hearing represented by their court-appointed attorneys. Several witnesses testified at the hearing and were subject to examination by the parents' attorneys. The mother and the father each testified as well. Following the Termination Hearing, on August 21, 2018, the Family Court issued an Order that terminated the parents' parental rights. The court found that the Division established by clear and convincing evidence that the parents "failed to plan adequately for the children's physical needs or mental and emotional health and development" under 13 Del. C. § 1103.[4]

         (9) The court's finding of a failure to plan is supported by the record, and we affirm that ruling for the reasons assigned by it. As to the father's first argument, we have concluded that his right to due process was not violated by the Family Court's using the mother's substance abuse issue as a reason to find that it continued to be in the children's best ...


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