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Duncan v. Smith

Supreme Court of Delaware

July 30, 2019

AMY DUNCAN, [1] Respondent Below, Appellant,
v.
PAMELA SMITH, Petitioner Below, Appellee, CINDY DUNCAN, FREDRICK DUNCAN, JR., FREDRICK DUNCAN, SR., Respondents Below, Appellees, AMY DUNCAN, Respondent Below, Appellant,
v.
CINDY DUNCAN, FREDRICK DUNCAN, SR., Petitioners Below, Appellees, FREDRICK DUNCAN, JR., Respondent Below, Appellee.

          Submitted: May 31, 2019

          Court Below-Family Court of the State of Delaware File Nos. CK17-03850, CK14-02301 Petition Nos. 17-33357, 17-30023

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

          ORDER

          LEO E. STRINE, JR. CHIEF JUSTICE.

         Upon consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         (1) The appellant, Amy Duncan ("Mother"), and the appellee Fredrick Duncan, Jr. ("Father") have three children-Grant, Iris, and Heather. Grant is now four years old, Iris is eight, and Heather is twelve. Mother filed this appeal from a Family Court order that, among other things, granted guardianship of Grant to the appellees Fredrick Duncan, Sr. ("Paternal Grandfather") and Cindy Duncan ("Paternal Grandmother" and, together with Paternal Grandfather, the "Paternal Grandparents"). The order also denied the petition of the appellee Pamela Smith ("Maternal Grandmother") for guardianship of the children. Mother appeals the order solely to the extent it awarded guardianship of Grant to the Paternal Grandparents, arguing that the Family Court's factual findings do not support its conclusion that Grant is dependent. For the reasons discussed below, we reverse.

         (2) On August 25, 2014, before Grant was born, the Paternal Grandparents filed a petition for guardianship of Heather and Iris, and a Commissioner of the Family Court granted the accompanying motion for emergency guardianship. Mother and Father, who it appears may have been undergoing inpatient treatment in Florida at the time, failed to appear at a mediation conference on October 23, 2014, and a Commissioner entered a default order granting guardianship of Heather and Iris to the Paternal Grandparents, with visitation to occur as mutually agreed by the parties.

         (3) After Mother and Father returned from Florida, Heather and Iris began living with them again, although the Paternal Grandparents continued to have guardianship. In April 2017, Mother and Father filed a petition to rescind guardianship of Heather and Iris. The Family Court denied the parents' petition for rescission on October 23, 2017. The court found that the Paternal Grandparents paid the parents' living expenses; Mother and Father did not have fulltime employment; and Mother and Father had not demonstrated that they were financially able to support and care for Heather and Iris. The court was also concerned that the parents continued to suffer from substance abuse issues.

         (4) On September 25, 2017 the Paternal Grandparents filed a petition for guardianship of Grant. They alleged that Mother and Father were in drug rehabilitation and had no means of supporting Grant. They also alleged, without any factual specificity, "possible neglect" of Grant. In her answer to the petition, Mother indicated that she could provide clean drug screens and had provided clean screens to the Paternal Grandparents; that the Paternal Grandmother was emotionally and mentally abusive to Heather and Iris; that Paternal Grandfather suffered from Parkinson's disease, which placed the children at risk when they were in his care; and that she worked as a server at a restaurant in Wilmington and part-time for a friend's house-flipping company.

         (5) A few weeks after the Paternal Grandparents filed their petition for guardianship of Grant, Maternal Grandmother filed a petition for guardianship of Heather and Iris, alleging that Heather and Iris were dependent, neglected, or abused in the Paternal Grandparents' care. Mother supported Maternal Grandmother's petition. Maternal Grandmother also filed a motion for emergency guardianship of Heather and Iris, which the Family Court denied.

         (6) The court held a hearing on the petitions for guardianship on November 9, 2018. At the hearing, Maternal Grandmother orally amended her petition, in order to request guardianship of Grant as well.

         (7) The testimony provided at the hearing reflected that in mid-October 2018-approximately a year after the grandparents filed their guardianship petitions and just a few weeks before the hearing on the guardianship petitions-Mother and Father separated. Mother moved to Maternal Grandmother's home in Lewes, Delaware, and could no longer work at the restaurant in Wilmington. She therefore applied to truck-driving school and was awaiting financial approval and an opportunity to begin the four-week program. At the time of the separation, Mother and Father placed Grant in the Paternal Grandparents' care, because the parents could not afford daycare and to allow time for Mother to complete her move to Lewes. After moving to Lewes, Mother applied, and was approved, for the State Purchase of Care program and, using that assistance, had secured a place for Grant at a daycare in Lewes.

         (8) At the time of the hearing, Grant had been staying with the Paternal Grandparents for a few weeks. Paternal Grandmother did not allege that Grant was abused when he was living with Mother. But Paternal Grandmother believed that Grant's clothes were not clean and testified that trash and clothes had been strewn around Mother's and Father's house and mattresses were placed on the floor. By contrast, no one provided any testimony that the conditions at Paternal Grandmother's home, where Mother had moved after the parents' separation, were not suitable for children.

         (9) The Family Court granted the Paternal Grandparents' petition for guardianship of Grant. The court found that Grant was dependent because (i) Mother was not financially independent, having recently separated from Father and relying on Maternal Grandmother for housing and to pay expenses while Mother "plans to attend school to hopefully obtain a job to support herself"; and (ii) by placing Grant with the Paternal ...


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