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Whitmore v. Robinson

Supreme Court of Delaware

December 2, 2019

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

         Submitted September 11, 2019.


          Case Closed December 18, 2019.

          Corrected: December 3, 2019

Page 418

          Court 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.

          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. SEITZ, Chief Justice, with whom Justice VALIHURA joins, concurring.


Page 419

         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

Page 420

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 fiance," 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 ...

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