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Abbott v. Department of Services For Children

Supreme Court of Delaware

June 13, 2019

CONNOR ABBOTT, [1] Respondent Below, Appellant,

          Submitted: May 16, 2019

          Court Below-Family Court of the State of Delaware File Nos. 18-04-04TN; CN15-04301, Petition Nos. 18-10763; 17-13700

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



         After consideration of the appellant's brief and motion to withdraw filed by the appellant's counsel under Supreme Court Rule 26.1(c), the responses, and the Family Court record, it appears to the Court that:

         (1) This is an appeal from the Family Court's order dated December 6, 2018 that terminated the appellant's ("Father") parental rights in his daughter ("Child"). The Family Court's order also terminated the parental rights of the Child's mother ("Mother"), whose separate appeal is currently pending before this Court, in six children, including the Child. We focus on the facts in the record as they relate to Father's appeal.

         (2) Father's counsel has filed a brief and a motion to withdraw under Supreme Court Rule 26.1(c). Father's counsel asserts that, based upon a conscientious review of the record, there are no arguably appealable issues. Counsel informed Father of the provisions of Rule 26.1(c) and provided him with a copy of the motion to withdraw and the accompanying brief. Counsel also informed Father of his right to supplement counsel's presentation. Father did not respond with any points that he wanted to present for the Court's consideration. The appellee, the Department of Services for Children, Youth and Their Families, Division of Family Services ("DFS"), and the Child's guardian ad litem have responded to the Rule 26.1(c) brief and argue that the Family Court's judgment should be affirmed.

         (3) The Child was born in February 2014. Mother had four older children and was pregnant with a sixth child when, in May 2017, DFS received an urgent referral that Mother had moved into the home of a man who had been substantiated for sexual abuse against one of the older children four years earlier. The family has a complicated history of involvement with the Family Court extending back to at least 2005, including allegations of sexual abuse of several of the children by various men and lengthy periods where at least some of the children were in the guardianship of various maternal relatives.

         (4) Father is registered as a Tier II sex offender because of a prior conviction for Unlawful Sexual Contact Second Degree, which did not involve the Child or any of her siblings. At the time that the children came into DFS's care, Father was living at Oxford House, a transitional sober housing facility. The Family Court granted ex parte custody of the children to DFS on May 5, 2017.

         (5) At a preliminary protective hearing on May 17, 2017, Mother stipulated as to probable cause for dependency concerning all the children. Father was not present for that hearing. Before the hearing, he had expressed interest in being considered as a placement option for the Child, but the Family Court noted that his status as a registered sex offender would require him to rebut the statutory presumption against his having custody.[2] The court found there was probable cause to believe the Child was dependent. The court also found that DFS had exercised reasonable efforts to prevent the Child's removal from the home and to place the Child with relatives.

         (6) Father appeared at an adjudicatory hearing on June 19, 2017. The Family Court appointed counsel to represent him for purposes of that hearing and ordered that different counsel would be appointed to represent him going forward; the court also ordered paternity testing to determine whether Father was the Child's father. Father stipulated to a finding of dependency due to his inability to provide housing for the Child. The Family Court again noted the presumption against his having custody. Mother stipulated to a finding of dependency because she had been charged with ten counts of Endangering the Welfare of a Child and a no-contact order was in place. The Family Court found that DFS had made reasonable efforts to prevent the removal of the Child from the home and to find an appropriate relative placement for the Child.

         (7) On July 18, 2017, the Family Court held a dispositional hearing. The DFS treatment worker testified regarding the elements of Father's case plan, which included a drug and alcohol evaluation, providing clean urine screens for six months, obtaining appropriate and stable housing, obtaining employment, taking a parenting class, and engaging in therapy individually and with the Child if necessary. Father continued to live in Oxford House for substance abuse treatment and needed to resolve outstanding legal issues. Because DFS had information suggesting that an existing court order prohibited Father from being around children, he also was required to provide verification that he was permitted to be around children. DFS was exploring options for placement of the Child with certain relatives of Father, including the Child's paternal grandmother and Father's brother ("Paternal Uncle"). Mother's case plan was also reviewed at the hearing, and the permanency plan remained reunification.

         (8) On October 12, 2017, the Family Court held a review hearing. Father was working full time, although he later lost his employment in December 2017. The no-contact order had been modified to allow supervised visits, but Father and the Child had not yet had any visits. He was attending sex offender therapy as a condition of probation. He was still living at Oxford House, and Oxford House reportedly had no concerns about his progress in substance abuse treatment. Paternal Uncle had filed a petition for guardianship of the Child. DFS had completed a satisfactory home visit and determined that Paternal Uncle and his wife appeared appropriate as a placement option, but a few days before the hearing DFS had learned that Paternal Uncle had been investigated as a perpetrator of sexual abuse of a four-year-old child in three different cases in 2006. Paternal Uncle had not disclosed those cases to DFS, claiming that he had forgotten. The Paternal Uncle's guardianship petition was later dismissed in November 2017.

         (9) The Family Court held another review hearing on January 5, 2018. Father's counsel was present, but Father did not appear ...

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