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Whitmore v. Robinson

Supreme Court of Delaware

December 2, 2019

BARRY WHITMORE, Respondent Below, Appellant,
v.
MICHELLE ROBINSON [1] , Petitioner Below, Appellee.

          Submitted: September 11, 2019

          Corrected: December 3, 2019

          Court Below: Family Court of the State of Delaware Petition No. 17-18582 File No. 17-06-07TN

         Upon appeal from the Family Court. REVERSED and REMANDED.

          Timothy J. Snyder, Esquire, and Curtis J. Crowther, Esquire (Argued), Young Conoway Stargatt & Taylor, LLP, Wilmington, Delaware, for Appellant, Barry Whitmore.

          Andrew W. Gonser, Esquire, Gonser & Gonser, P.A., Wilmington, Delaware, and Achille C. Scache, Esquire (Argued), Giordano, Delcollo, Werb & Gagne, Wilmington, Delaware, for Appellee, Michelle Robinson.

          Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, Justices; MEDINILLA, Judge, [2] constituting the Court en Banc.

          VAUGHN, JUSTICE

         The appellant, Barry Whitmore (the father), appeals from a Family Court order granting the petition of appellee, Michelle Robinson (the mother), to terminate his parental rights to their now eight-year-old child, C.R. His rights were terminated under 13 Del. C. § 1103(a)(5) for his alleged failure or inability to plan for the child's physical needs or mental and emotional health and development. The father brings four claims on appeal. The first is a claim that the Family Court committed legal error when it applied the definition of "necessary care" in 10 Del. C. § 901(17) as part of its analysis of the criteria which must be shown to justify termination of parental rights under 13 Del. C. § 1103(a)(5). The other three claims challenge the sufficiency of the evidence.

         We have concluded that the father's first claim has merit. In order to terminate parental rights under 13 Del. C. § 1103(a)(5), the Family Court must find that the parent is "not able, or [has] failed, to plan adequately for the child's physical needs or mental and emotional health and development." It is evident from the Family Court's opinion that the court applied the definition of necessary care contained in Title 10 as the "relevant definition" in assessing whether the father had failed to plan for his child under 13 Del. C. § 1103(5). The definition of necessary care, however, applies only in Chapter 9 of Title 10. It is not one of the criteria governing whether parental rights should be terminated under 13 Del. C. § 1103(a)(5). The Family Court's use of the definition of necessary care as a factor in determining whether the father failed or was unable to plan for the child was material legal error requiring reversal of the Family Court's judgment and remand for further proceedings.

         I. Facts and Procedural History

         C.R. was born on September 17, 2011. The mother and the father resided together with C.R. first at the maternal grandmother's home and then at the paternal grandmother's home until January 2012, when C.R. was four months old. The mother and C.R. then moved back in with the maternal grandmother, and the father moved to an unknown location. Four months later, in May 2012, the father moved back in with the paternal grandmother. From May 2012 until July 2013, the father had regular contact with C.R. In August 2013, the mother and the father moved into an apartment together with C.R. Around September 17, 2013 (C.R.'s second birthday), the mother found evidence of the father's drug use (needles in a pouch under the bed) and moved out. The father stayed at the apartment for a couple of months. From December 2013 to early 2014, however, his residence was unknown. He may have lived with his father or a girlfriend, but he eventually became homeless due to his heroin addiction.

         The father was placed under a child support order on February 26, 2014, at which time he was unemployed. That order reflected that he had "prospective employment."[3] He had not provided financial support to the mother for C.R. between September 2013 and February 2014. He paid support for about three months after the order was entered but then stopped. At the time of the termination-of-parental-rights hearing (TPR hearing), he was $9, 800 in arrears on his child support obligation. By May 2014, he was active in his drug addiction and had lost his job and housing.

         The father saw C.R. approximately ten times between September 2013 and August 19, 2014, [4] when he was arrested and incarcerated for armed robbery. He then had no contact with C.R. for six to eight weeks. From late September or early October 2014 until August 27, 2015, he had, at most, two phone calls per week with C.R.

         The mother indicated that she wanted to stop all contact between the father and C.R. sometime around the end of August 2015, when the father told her that he faced up to twenty years in prison.[5] "Since September 2015, the mother has not wanted the father to have contact with C.R. or receive cards, presents, or letters from him."[6] As a result, the father has not had any contact with C.R. since then. The mother learned of the father's actual sentence (more than ten years) in October 2015. At the time of the TPR hearing, his scheduled release date was February 2028. Although the father testified that he last had contact with C.R. by telephone in October 2015, the Family Court found that the last contact was in September 2015.

         The father filed a petition for visitation in December 2015, but it was returned to him due to a procedural irregularity in the petition. He then refiled his petition on February 9, 2016. On December 19, 2016, following an unsuccessful mediation, an interim visitation order was entered granting the father telephone and mail contact with C.R. at the mother's residence and the paternal grandparents' residence when C.R. was in their care.

         On January 3, 2017, the mother filed a motion and affidavit seeking an emergency ex parte order to stop the contact ordered by the interim order until after a hearing on the merits.[7] Among the allegations contained in the motion was an allegation that, "Based on Facebook postings it appears that Father is involved in a gang while in jail and his behavior continues to be inappropriate and questionable."[8]Another averment was that C.R. "ha[d] developed a close relationship with the mother's fiancé," S.L.[9] The Family Court granted the motion the next day, with the contact stayed pending a hearing on the father's petition for visitation. In this appeal the father has argued that the mother's allegation concerning the Facebook posting was untrue; in fact, at the TPR hearing, the Family Court judge observed that "I have no evidence that it [wa]s a gang sign."[10]

         Approximately January 16, 2017, the father filed a Petition for Rule to Show Cause, which asked that "the court order be enforced as it was ordered" and that the mother have C.R. available for phone contact as the interim visitation order stated.[11]The record does not seem to indicate what action, if any, the Family Court took on that petition.

         The father's petition was finally heard on April 20, 2017. Relying on 13 Del. C. § 728(d), which applies to visitation "to be conducted in a correctional facility," and its determination of what was in C.R.'s best interests, the Family Court denied the father's petition for visitation and ordered that "he not write or call [C.R.] until [C.R.] is eight-years old and has been told by Mother about Father."[12] Effectively, in other words, the father was ordered to have no contact with C.R.

         In response to a petition for visitation filed by the father on December 11, 2017, the Family Court amended the order to provide that "Mother shall send to father, yearly on May 1, a letter noting [C.R.'s] physical health, educational status, and general well-being."[13] The record does not reflect that such a report was ever sent.

         The record indicates that the paternal grandparents exercised some visitation with C.R. which continued after the father's incarceration. When the mother decided to end contact between C.R. and the father in September 2015, however, she conditioned continued visitation with the paternal grandparents on their not talking with C.R. about his father. On July 26, 2016, the paternal grandparents filed their own petition for visitation. Their petition was consolidated with the father's petition for visitation and both were scheduled to be heard together on April 20, 2017. At the start of the hearing on the grandparents' petition, the mother, father and paternal grandparents consented to a schedule of paternal grandparent visitation which was approved by the court. Among the provisions of the order was one that "At no time prior to [C.R.]'s eighth birthday shall Grandparents discuss with [C.R.] or in his hearing range, his biological Father or where he is, unless prior approval is granted by Mother in writing."[14]

         On June 15, 2017, the mother filed her petition to terminate the father's parental rights. Shortly thereafter, in October 2017, she and her fiancé, S.L., were married. On June 27, 2018, after a hearing, the Family Court concluded that the mother had met her burden of establishing that the father had "failed to plan" for the child under 13 Del. C. § 1103(a)(5) and that it was in the best interest of the child to terminate the father's parental rights.

         II. Discussion

         In In re Stevens this Court recognized that:

Parental rights arise from a natural relationship and are fundamental liberties which the law has traditionally recognized. Those rights may not be abrogated in the absence of the most compelling reasons. In Delaware, the statutory standard is two-fold: proof of an enumerated statutory ground and a determination that severing the parental tie would be in the best interest of the child. This Court has consistently ruled that the statutory scheme recognizes "the parent's strong interest in his or her child" which will be terminated only upon "a showing, by clear and convincing evidence, that the parent is unable to meet the statute's guidelines." [15]

         To terminate the father's parental rights for failure to plan for the child, the mother was required to establish by clear and convincing evidence that (1) termination of the father's parental rights is in the best interest of the child, (2) the father is not able, or has failed, to plan adequately for the child's physical needs or mental and emotional health and development, (3) the child resided in the mother's home for at least one year; and (4) the father is incapable of discharging parental responsibilities, and there appears to be little likelihood that the father will be able to discharge such parental responsibilities in the near future.[16] We have previously observed that "[t]hese criteria are concerned with basic needs of a healthy child" and are compelling reasons for terminating parental rights.[17]

         The father first contends that the Family Court misapplied the requirement that it be shown that he had failed, or was unable, to plan adequately for the child's physical needs or mental and emotional health and development. It did so, he argues, by applying the definition of necessary care contained in 10 Del. C. § 901(17) as part of its analysis of the father's alleged failure to plan. Section 901(17) defines necessary care as "a type and degree of personalized attention that will tend to advance a child's physical, mental, emotional, moral and general well-being."[18] The first sentence of § 901 provides that the definitions set forth therein apply "[f]or the purposes of this chapter, unless the context indicates differently."[19] Section 1031 of Title 10 of the Delaware Code, contained in Chapter 9, exemplifies the use of the definition of necessary care. It authorizes the Family Court to "[o]rder a child's custodian to exercise such care and perform such acts as may be reasonably necessary to insure that the child shall obey the law and receive necessary care."[20]

         Necessary care focuses on a custodian's duty to give personalized attention to a child's well-being. The definition of necessary care, by the terms of the statute containing that definition, however, applies only to the provisions of Chapter 9 of Title 10, and there is no context which extends it to the provisions of 13 Del. C. § 1103(a)(5). Necessary care is not one of the criteria set forth in 13 Del. C. § 1103(a)(5) for determining whether a parent's parental rights should be terminated. The criteria of that section focus not on personalized attention but on a parent's responsibility to plan for the child's overall physical needs and mental and emotional health and development.[21]

         It is evident from the Family Court's opinion that the court made material use of the Title 10 definition of necessary care in arriving at its determination that the father is unable, or has failed, to plan adequately for the child's physical needs or mental and emotional health and development. The Family Court reasoned that:

The Court does not accept the suggestion that an incarcerated parent can provide for a child's "necessary care" as it relates to food, clothing, shelter, education, health care, medical care or other care necessary for the child's emotional, physical or mental health, or safety and general well-being by proxy through friends and family, however; even if the ...

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