       IN THE SUPREME COURT OF THE STATE OF DELAWARE

    VIVIAN A. THOMPSON, 1                   §
                                            §
        Respondent Below,                   §   No. 410, 2014
        Appellant,                          §
                                            §   Court Below—Family Court
        v.                                  §   of the State of Delaware,
                                            §   in and for Kent County
    DIVISION OF FAMILY SERVICES,            §   File No. 12-10-1TK
                                            §   Petition No. 12-32909
        Petitioner Below,                   §
        Appellee.                           §

                            Submitted: October 30, 2014
                            Decided: November 18, 2014

Before STRINE, Chief Justice, RIDGELY, and VALIHURA, Justices

                                  ORDER

        This 18th day of November 2014, upon consideration of the

appellant’s brief filed under Supreme Court Rule 26.1(c), her attorney’s

motion to withdraw, and the response and motion to affirm filed by the

Division of Family Services (“DFS”), it appears to the Court that:

        (1)   The Family Court terminated the parental rights of the

appellant, Vivian A. Thompson (“Mother”), with respect to her four-year-




1
 The Court previously assigned pseudonyms to the parties under Supreme Court Rule
7(d).
old son, Chad, 2 in an order dated July 9, 2014. 3 This is Mother’s appeal

from the termination of her parental rights.

         (2)    Mother’s appointed counsel has filed an opening brief and a

motion to withdraw under Supreme Court Rule 26.1(c). Counsel asserts that

she has reviewed the record and has determined that no arguable claim for

appeal exists.        By letter, Mother’s counsel informed Mother of the

provisions of Rule 26.1(c) and provided her with a copy of the motion to

withdraw and accompanying brief. Although notified of her right to submit

points for this Court’s consideration, Mother has not submitted any points.

DFS has filed a response to counsel’s Rule 26.1 brief and has moved to

affirm the Family Court’s judgment.

         (3)    The record reflects that Chad was born in March 2010. In July

2010, DFS opened a treatment case for Mother because Mother was unable

to meet the medical needs of Chad and Chad was too young to protect

himself and make his needs known. Throughout 2010 and 2011, DFS had

concerns regarding where Mother resided, her mental health, and Chad’s

delayed development. In 2012, DFS became concerned that Chad was not


2
    “Chad” is a pseudonym hereby assigned to Mother’s son.
3
  The Family Court’s order also terminated the parental rights of the Child’s father
(“Father”). That portion of the Family Court’s order is the subject of a separate appeal.
Thompson v. Div. of Family Servs., No. 425, 2014 (Del.).



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safe in Mother’s presence and that Mother’s mental health issues remained

untreated.

      (4)    On March 29, 2012, the Family Court granted DFS’s

emergency petition for custody of Chad. The Family Court concluded that

there were sufficient emergency conditions indicating that Chad was

dependent, neglected, and/or abused and should not remain in Mother’s care

because Mother had serious mental health problems and could not provide

the necessary care and protection for Chad.

      (5)    A preliminary protective hearing was held on April 4, 2012.

Counsel was appointed to represent Mother, who contested DFS’s actions.

After hearing testimony, the Family Court held that Chad continued to be

dependent or neglected, there was probable cause for DFS to have temporary

custody, and that DFS had made reasonable efforts to prevent placement of

Chad outside the home of his natural parents.

      (6)    An adjudicatory hearing was held on May 16, 2012.        The

Family Court was advised that Mother agreed to Chad remaining in the

custody of DFS and had signed a case plan before the hearing. The elements

of the case plan included, among other things, Mother maintaining safe and

stable housing, developing a household budget, working with a parent aide

to obtain a better understanding of child development, undergoing a



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psychological examination, following any treatment recommendations, and

signing consent forms so DFS could communicate with her mental health

providers. The Family Court concluded that DFS made reasonable efforts to

prevent placement of Chad outside the home of his natural parents and it was

in the best interests of Chad to remain in DFS’s custody.

      (7)    A review hearing for Mother and a dispositional hearing for

Father was held on June 19, 2012. DFS expressed concerns regarding

Mother’s behavior during visits with Chad and noted that Mother had

recently undergone a mental health evaluation. The Family Court concluded

that DFS was making reasonable efforts to reunify Chad with his family and

it was in the best interests of Chad to remain in DFS’s custody.

      (8)    A review hearing for Mother and an adjudicatory hearing for

Father was held on July 18, 2012.          Mother’s mental health had been

evaluated by Dr. Joseph Zingaro.          According to Dr. Zingaro, Mother

suffered a variety of mental health issues, including post-traumatic stress

disorder (“PTSD”) and borderline personality disorder.             Dr. Zingaro

believed that a child placed with Mother would be at physical and emotional

risk. Mother was not seeing her therapist, was overwhelmed by caring for

more than one child, and did not have stable housing. The Family Court

concluded that DFS was making reasonable efforts to reunify Chad with his



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family, it was in the best interests of Chad to remain in DFS’s custody, and

DFS had made reasonable efforts to seek permanency.

      (9)    DFS filed a Motion to Change Goal to termination of parental

rights (“TPR”). A permanency hearing was held on September 6, 2012.

Mother testified that she would consent to TPR if Chad was placed with her

aunt and Father’s parental rights were terminated, she had little family

support, she needed more counseling before she could care adequately for

Chad, and that she would make a better aunt than mother. Mother had

successfully completed a parenting course, but had not received mental

health counseling since July. DFS stated that Mother could continue to work

on her case plan elements even if the goal was changed to TPR.

      (10) In a decision dated September 19, 2012, the Family Court

granted the Motion to Change Goal. The Family Court found that Mother

had failed to complete significant elements of her case plan, was unlikely to

acquire the necessary parenting skills in the near future, and due to the

personal trauma she suffered at the hands of Father (who was also her

father), was unlikely to be in a position to provide for Chad’s emotional and

physical well-being in the foreseeable future. On October 2, 2012, DFS

filed a petition for TPR.




                                     5
      (11) A TPR hearing was originally scheduled for April 25, 2013. At

the hearing, the Family Court granted Father’s request for new counsel and

ordered that the hearing be rescheduled. The TPR hearing was rescheduled

for September 3, 2013, but was rescheduled again after Father’s counsel

requested a continuance due to a death in his family.

      (12) A TPR hearing was held on February 24, 2014. The Family

Court heard testimony from Dr. Zingaro, a police officer who responded to a

domestic dispute between Mother and her boyfriend, two women Mother

resided with before DFS obtained custody of Chad, a DFS treatment worker,

a parent aide case manager, two DFS permanency workers, Mother,

Mother’s aunt, Father, Chad’s foster father, and the Court Appointed Special

Advocate (“CASA”). The testimony established that Mother had failed to

complete significant portions of her case plan.

      (13) Mother had not obtained stable housing and was residing with a

relative she had previously accused of engaging in inappropriate conduct.

Before DFS removed Chad from Mother’s care, witnesses testified that

Mother would leave Chad in his high chair for extended periods and neglect

to feed him or change his diapers. Although Mother completed a parenting

class, witnesses observed Mother occasionally become unreasonably upset

when Chad behaved in a way that was normal for a child of his age and



                                      6
development. Mother’s visitation with Chad was inconsistent in 2012, but

became more consistent over time. Mother attended only some of Chad’s

medical appointments and testified that she had to attend a number of her

own medical appointments because she had ovarian cancer.

          (14) Mother had serious mental health issues, but failed to obtain

consistent treatment for those issues. She frequently changed treatment

providers and sometimes refused to sign medical releases, preventing DFS

from verifying that she was obtaining consistent treatment. Dr. Zingaro

testified that he believed Mother had difficulty taking care of herself, let

alone a child. The CASA also testified that she did not believe Mother could

care adequately care for Chad, who was developmentally delayed and had

special needs.

          (15) In an order dated July 9, 2014, the Family Court found, based

on clear and convincing evidence, that Mother had failed to plan adequately

for the Child,4 and that termination of Mother’s parental rights was in the

Child’s best interest. 5 The Family Court also found that the Child had been
                                                    6
in the custody of DFS for more than one year,           there was a history of

4
    13 Del. C. § 1103(a)(5)(a).
5
    Id. § 1103(a).
6
    Id. § 1103(a)(5)(a)(1).



                                       7
neglect by Mother, 7 and Mother was unable to assume promptly the care and

custody of Chad.8 In the same decision, the Family Court also terminated

Father’s parental rights.

           (16) On appellate review of a termination of parental rights, this

Court is required to consider the facts and the law as well as the inferences

and deductions made by the Family Court. 9 We review legal rulings de

novo.10 We conduct a limited review of the factual findings of the Family

Court to assure that they are sufficiently supported by the record and are not

clearly wrong. 11 If the trial judge has correctly applied the law, our review

is limited to abuse of discretion. 12

           (17) In reviewing a petition for termination of parental rights, the

Family Court must employ a two-step analysis. 13 First, the Family Court

must determine whether the evidence presented meets one of the statutory



7
    Id. § 1103(a)(5)(a)(2).
8
    Id. § 1103(a)(5)(a)(4).
9
    Wilson v. Div. of Fam. Services, 988 A.2d 435, 439-40 (Del. 2010).
10
     Id.
11
     Id.
12
     Id.
13
     Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).



                                             8
grounds for termination. 14         Second, the Family Court must determine

whether termination of parental rights is in the best interest of the child.15

Both of these requirements must be established by clear and convincing

evidence.16

       (18) We have carefully reviewed the parties' submissions and the

record below, including the transcript of the TPR hearing. We conclude that

there is ample record evidence supporting the Family Court's termination of

Mother’s parental rights based on failure to plan and that termination was

clearly in the Child’s best interest. We find no abuse of discretion in the

Family Court’s factual findings and no error in its application of the law to

the facts. Accordingly, we affirm the judgment below.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the

Family Court is AFFIRMED. The motion to withdraw is moot.

                                             BY THE COURT:

                                             /s/ Karen L. Valihura
                                                 Justice


14
  Id. at 537. See also 13 Del. C. § 1103(a)(1-8) (listing grounds for termination of
parental rights).
15
  13 Del. C. § 722(a)(1-8) (listing factors to be considered when determining best interest
of child).
16
  Powell v. Dept of Servs. For Children, Youth & Their Families, 963 A.2d 724, 731
(Del. 2008).



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