Submitted: May 31, 2019
Below-Family Court of the State of Delaware File Nos.
CK17-03850, CK14-02301 Petition Nos. 17-33357, 17-30023
STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
STRINE, JR. CHIEF JUSTICE.
consideration of the parties' briefs and the record on
appeal, it appears to the Court that:
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.
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.
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.
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.
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.
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.
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.
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.
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