ABIGAIL ACORN and WENDALL MALIC III , Respondents Below, Appellants,
SETH LAYMEN and LAURA LAYMEN, Petitioners Below, Appellees.
Submitted: August 21, 2019
Below-Family Court of the State of Delaware File No.
17-09-02TS, Petition No. 17-28003
VAUGHN, SEITZ, and TRAYNOR, Justices.
Collins J. Seitz, Jr. Justice.
careful consideration of the appellants' brief filed
under Supreme Court Rule 26.1(c), their attorneys'
motions to withdraw, the appellees' response, and the
Child Attorney's response, it appears to the Court that:
order dated March 5, 2019, the Family Court terminated the
parental rights of the appellants, Abigail Acorn ("the
Mother") and Wendall Malic III ("the Father")
(collectively, "the Parents"), with respect to
their children-a girl, born in 2013, and a boy, born in 2015
Mother's and the Father's appointed counsel on appeal
have filed a joint opening brief and motions to withdraw
pursuant to Supreme Court Rule 26.1(c). Counsel assert that
they have reviewed the record and have determined that no
arguable claim for appeal exists. Counsel informed the
Parents of the provisions of Rule 26.1(c) and provided them
with copies of the motion to withdraw and the accompanying
brief. Counsel submitted the Parents' concerns as
"Appellants' Points" in their brief on appeal.
The appellees, Seth Laymen and Laura Laymen, and the
Child's Attorney have responded to counsel's Rule
26.1(c) brief and argue that the Family Court's judgment
should be affirmed.
April of 2015, the Division of Family Services
("DFS") opened an investigation into the Parents
after receiving reports that they were using heroin and did
not have adequate food for the Children in the hotel room
where they were living. DFS referred the Parents to treatment
service providers and directed them to update DFS about their
progress. The Parents failed to do so. Two months later, the
Parents were arrested and charged with various offenses
stemming from their alleged illegal occupation of a
residence. Following their arrest, the Family Court awarded
DFS emergency custody of the Children. DFS immediately placed
the Children with the Laymens. At the time, the Children were
approximately nineteen months old and four months old.
After DFS filed its dependency and neglect petition, the
mandated hearings ensued. A dispositional hearing was held on
July 21, 2015, and the Family Court approved case plans
developed by DFS to facilitate the reunification of the
Parents with the Children. The approved case plans for the
Mother and the Father required that they: (i) receive
substance abuse treatment, (ii) obtain and maintain
employment and demonstrate an ability to provide for the
Children financially, (iii) obtain and secure stable housing,
and (iv) receive mental health treatment. The Father's
approved case plan also required that he attend a parenting
workshop and build a support network of family and friends.
The case plans ensured the Mother and the Father would have
visits with the Children twice a week for two hours.
Over the next nine months, the court held a series of
hearings to review the progress the Parents had made toward
reunification. In a series of orders following the review
hearings, the Family Court found that the Children remained
dependent in the Parents' care due to the Parents'
ongoing struggle to obtain stable housing, steady employment,
and reliable transportation. On May 10, 2019, the court held
a permanency hearing. At that time, the Children had been
residing with the Laymens for approximately eleven months.
With the Parents' agreement, the permanency goal was
changed from reunification to the concurrent goals of
guardianship and termination of parental rights.
After the goal change, the Father's sister, a resident of
North Carolina, filed a petition for guardianship of the
Children. The Laymens also filed a petition for guardianship.
After a hearing on the competing petitions for guardianship,
the court found that the Children remained dependent in
Mother and Father's care, and that it was in the
Children's best interests that they continue to reside
with the Laymens. Accordingly, the court denied the
Father's sister's petition and awarded guardianship
of the Children to the Laymens in March 2017. The
Father's sister did not appeal the denial of her
September 7, 2017, the Laymens filed a filed a petition
("the TPR petition") seeking to terminate the
Parents' parental rights on the basis of their failure to
plan for the Children's needs. The Laymens later amended
the TPR petition to include additional grounds for the
termination of parental rights, specifically: (i) abandonment
(intentional and unintentional), (ii) chronic abuse, and
(iii) unexplained serious physical injury resulting from the
conduct or neglect of the Parents. The Parents opposed the
Family Court held a hearing on the TPR petition over two days
in November 2018. The Parents appeared, represented by
counsel. The Family Court heard testimony from the Mother,
the Father, the Children's foster care and adoption
social worker, a licensed child psychologist, Mr. Laymen,
Mrs. Laymen, the Father's sister, the Father's aunt,
and the Father's grandmother. The testimony reflected
that the Parents had been clean and sober since December
2015. However, the testimony also reflected that: (i) the
Parents continued to struggle with obtaining and maintaining
stable housing, (ii) the Parents had failed to address their
mental health issues until after the TPR petition had been
filed and more than two years after the Children were removed
from their custody, (iii) the Parents had not obtained
financial stability, (iv) the Parents had visitation with the
Children for only one hour once a month since the Laymens had
been awarded guardianship in March 2017, and (iv) the Parents
could not immediately resume custody and financial support of
the Children because they had not filed a motion to rescind
the guardianship. The Family Court also heard evidence that
the Children experienced acute anxiety when placed in
situations where they feared the Laymens would abandon them.
Importantly, the Family Court also heard from the child
psychologist who testified that the Children were very bonded
to the Laymen family and that a change in placement would be
very disruptive to the Children's emotional development.
Following the hearing, the Family Court issued a written
decision dated March 5, 2019. The court rejected the
Laymens' arguments that termination of the Parents'
rights was appropriate due to abandonment, chronic abuse, or
serious injury. However, the Family Court found clear and
convincing evidence that the Parents had failed to plan
adequately for the responsibility of raising the Children.
The court found further that, even if the Parents were
financially secure and able to provide the Children with
stable housing and other basic needs, the Parents would
struggle to fulfill their parental responsibility to meet the
Children's emotional needs. The Family Court noted that
the Children had been residing with the Laymens for ...