September 11, 2019.
Closed December 18, 2019.
Corrected: December 3, 2019
Below: Family Court of the State of Delaware. Petition No.
17-18582. File No. 17-06-07TN.
Timothy J. Snyder, Esquire, and Curtis J. Crowther, Esquire
(Argued), Young Conoway Stargatt & Taylor, LLP, Wilmington,
Delaware, for Appellant, Barry Whitmore.
W. Gonser, Esquire, Gonser & Gonser, P.A., Wilmington,
Delaware, and Achille C. Scache, Esquire (Argued), Giordano,
Delcollo, Werb & Gagne, Wilmington, Delaware, for Appellee,
SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, Justices;
MEDINILLA, Judge, constituting the Court en Banc. SEITZ,
Chief Justice, with whom Justice VALIHURA joins, concurring.
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.
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
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
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."
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.
father saw C.R. approximately ten times between September
2013 and August
19, 2014, 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.
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. " Since September 2015, the
mother has not wanted the father to have contact with C.R. or
receive cards, presents, or letters from him."
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.
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.
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. 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."  Another averment was that C.R. "
ha[d] developed a close relationship with the mother's
fiance," S.L. 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 ...