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Kennedy v. Division of Family Services

Supreme Court of Delaware

October 11, 2019

MARY KENNEDY, Respondent Below, Appellant,
DIVISION OF FAMILY SERVICES, Petitioner Below, Appellee.

          Submitted: August 14, 2019

          Court Below-Family Court of the State of Delaware File No. CN17-04312 Petition No. 18-37497

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          ORDER [1]

          James T. Vaughn, Jr. Justice.

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

         (1) The respondent-appellant ("Mother") filed this appeal from the Family

         Court's order dated January 7, 2019, following a preliminary protective hearing, in which the court found probable cause to believe that Mother's then three-year-old son (the "Child") would be dependent, neglected, or abused in her care and ordered that the Child's Father would have custody of the Child until the resolution of a private custody dispute that was pending before another Family Court judge.

         (2) In 2017, Mother filed a petition for custody of the Child. In October 2018, the Family Court appointed an attorney (the "Child's Attorney") to represent the Child's best interests in that case. In December 2018, the Child's Attorney filed a petition for an order of protection from abuse ("PFA") on behalf of the Child, alleging that Mother or her boyfriend were abusing the Child. The Family Court commissioner who presided over the ex parte PFA hearing[2] determined that the Child's Attorney did not have standing to file a PFA petition on the Child's behalf. But the commissioner found the allegations in the PFA petition to be very concerning and, on a sua sponte basis, granted custody of the Child to the Division of Family Services ("DFS"). On December 26, 2018, DFS filed a petition for emergency custody, which the Family Court granted in an ex parte order.

         (3) The Family Court held a preliminary protective hearing on January 2, 2019.[3] Mother and Father were present and requested the appointment of counsel. The court determined that Mother was indigent and appointed counsel for her. Because Father worked two jobs and was not able to provide the court with information concerning his income from one of them, the court declined to appoint counsel for Father at that time, but stated that if the case proceeded to an adjudicatory hearing, Father would have an opportunity to seek appointment of counsel before that hearing.

         (4) The evidence presented at the hearing, which included testimony from Mother, Father, and a DFS worker, reflected that, on at least four days over a period of several months, the Child arrived at day care with bruises on his face. Mother, her boyfriend, and the Child provided inconsistent or shifting explanations for the injuries. Moreover, two day care providers and one medical professional had expressed concerns to DFS regarding physical injuries that appeared on Mother's children when they were in her care. Mother had removed the Child from two day care providers within a short period of time; both moves occurred shortly after the provider had contact with DFS. In addition, Mother had a history with DFS dating to 2007, involving all five of her children. Mother's parental rights with respect to two of her children had been terminated, one involuntarily, and two of her other children were in guardianships. Mother also had a history of mental health issues, and she provided inconsistent testimony regarding the status of her treatment.

         (5) Father had no history of involvement with DFS. Father resided in a home with his girlfriend and their infant; he also had frequent visitation with his five-year-old son. The DFS worker assigned to the case assessed the home and had no concerns. A hair follicle screening performed on Father in March 2018 indicated that he had consumed substantial amounts of alcohol, but Brandywine Counseling had evaluated him in April 2018 and determined that he did not need substance abuse services. Mother had alleged that Father engaged in abusive behavior toward her and the Child. In support of her allegations, she presented Facebook posts and text messages that purported to have been created by Father, but Father's testimony and the circumstances surrounding the texts and posts suggested that Mother, rather than Father, had created the messages. The evidence presented at the hearing-including Mother's history of making false reports to law enforcement, for which she had previously served a year in prison in one instance-also raised significant questions about Mother's credibility more generally. Father had no criminal convictions, and certain charges brought against him as a result of allegations by Mother had been dismissed by the prosecutor based on Mother's lack of credibility.

         (6) At the conclusion of the preliminary protective hearing, the court determined that there was probable cause to believe that the Child would be dependent, neglected, or abused in Mother's care.[4] The court determined that there was not probable cause to believe that the Child would be dependent, neglected, or abused in Father's care and therefore rescinded custody of the Child from DFS to Father. Because that decision ended DFS's involvement in the matter, the court held that any further custody determination would be made in the custody case that was pending before another Family Court judge.

         (7) Mother's appointed counsel filed a notice of appeal from the Family Court's order. She also filed a motion to withdraw, in which she stated her belief that the appeal is without merit. This Court denied the motion to withdraw without prejudice and, although this case did not end with a termination of parental rights, directed Mother's counsel to proceed in accordance with Rule 26.1. Mother's counsel has filed a brief and a motion to withdraw under Supreme Court Rule 26.1(c), in which she asserts that, based upon a conscientious review of the record and the law, the appeal is without merit. Counsel informed Mother of the provisions of Rule 26.1 and provided her with a copy of the motion to withdraw and a draft of the Rule 26.1 brief. Counsel also informed Mother of her right to supplement counsel's presentation. Mother provided the points that she wanted to present for the Court's consideration, which counsel included in the brief that she filed with the Court. DFS has responded to the Rule 26.1(c) brief and argues that the Family Court's judgment should be affirmed.

         (8) On appeal, this Court reviews the Family Court's factual and legal determinations as well as its inferences and deductions.[5] We will not disturb the Family Court's rulings if the court's findings of fact are supported by the record and result from an orderly and logical deductive process.[6] We review legal rulings de novo.[7] If the Family Court correctly applied the law, then our standard of review is abuse of discretion.[8]

         (9) Within ten days of the entry of an ex parte order under 10 Del. C. § 2512(a), [9] the Family Court must hold a preliminary protective hearing.[10] At that hearing, the court must ...

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