         IN THE SUPREME COURT OF THE STATE OF DELAWARE

    ANDREW BRANCH,1                          §
                                             §
        Respondent Below-                    §   No. 289, 2016
        Appellant,                           §
                                             §
        v.                                   §   Court Below—Family Court
                                             §   of the State of Delaware,
    DIVISION OF FAMILY SERVICES              §   in and for Sussex County
    and COURT APPOINTED SPECIAL              §   File No. CS15-05-01TS
    ADVOCATE,                                §   Petition No. 15-12929
                                             §
        Petitioners Below-                   §
        Appellees.                           §

                           Submitted: October 20, 2016
                             Decided: January 9, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices

                                      ORDER

       This 9th day of January 2017, upon consideration of the appellant’s brief

filed under Supreme Court Rule 26.1(c), his attorney’s motion to withdraw, and the

responses filed by the Division of Family Services (“DFS”) and the Court

Appointed Special Advocate (“CASA”), it appears to the Court that:

       (1)   On May 13, 2016, the Family Court terminated the parental rights of

the respondent-appellant, Andrew Branch (“the Father”), in his two minor children,




1
 The Court previously assigned a pseudonym to the appellant pursuant to Supreme Court Rule
7(d). The Court also has assigned pseudonyms to the children in this Order.
Ashley (born September 6, 2013) and Grace (born August 21, 2014). This is the

Father’s appeal from the termination of his parental rights.2

       (2)    The Father’s appointed counsel on appeal has filed an opening brief

and a motion to withdraw from representation under Supreme Court Rule 26.1(c).

Counsel asserts that she has conducted a conscientious review of the record and the

relevant law and has determined that the appeal is wholly without merit. Under

Rule 26.1(c)(i), however, counsel has identified one arguable claim for the Court to

consider. By letter, counsel informed the Father of the provisions of Rule 26.1(c)

and provided him with a copy of the motion to withdraw and the accompanying

brief. Counsel informed the Father that he could submit in writing any additional

points for the Court’s consideration on appeal. Although he orally stated his

intention to do so, the Father failed to submit any additional points in writing for

counsel to include with the Rule 26.1(c) brief. DFS and the CASA each have filed

a response to counsel’s Rule 26.1 brief and have moved to affirm the Family

Court’s judgment.

       (3)    The record reflects that, on December 20, 2013, DFS was granted

emergency custody of Ashley, who was then three-months-old. The Family Court

found Ashley to be dependent in her parent’s care because of the Father’s

incarceration, domestic violence issues, and substance abuse issues and because of
2
 The girls’ mother voluntarily consented to the termination of her parental rights and is not a
party to this appeal.


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the Mother’s homelessness, mental health issues, and substance abuse issues. The

Father, through his court-appointed counsel, waived both the preliminary

protective hearing on December 31, 2013 and the adjudicatory hearing on January

27, 2014 and stipulated to Ashley’s dependency due to the Father’s incarceration.

At the February 24, 2014 dispositional hearing, the Family Court approved the

Father’s reunification case plan, which required the Father, among other things, to

maintain employment and housing, to attend scheduled visitation with Ashley, and

to receive evaluations for domestic violence, substance abuse, and mental health

issues and follow any recommendations for treatment.

      (4)    On May 19, 2014 and August 4, 2014, the Family Court held two

review hearings. Although the Father had made some progress toward his case

plan, the Family Court found that it was in Ashley’s best interests to remain in

DFS’ custody. The Family Court held a supplemental hearing on August 18, 2014

to determine if the Father’s domestic violence counseling satisfied the requirement

of his case plan that he complete anger management counseling. The Family Court

concluded that it did not. By the time of that hearing, the Mother had already

informed the Family Court of her intention to consent to termination of her

parental rights.

      (5)    On August 25, 2014, DFS was granted emergency custody of Grace,

who was born on August 21, 2014. After his paternity was established, the Father



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waived his preliminary protective hearing and stipulated to a finding of probable

cause that Grace was dependent in his care. On October 27, 2014, the Family

Court held an adjudicatory hearing regarding Grace and a third review hearing

regarding Ashley. The Father contested that Grace would be dependent in his care.

After consideration of the evidence, the Family Court found that the Father had not

completed the elements of his case plan that required evaluation and counseling for

domestic violence, anger management, and substance abuse issues. The trial court

concluded that both girls would be dependent in the Father’s care and that it was in

their best interests to remain in DFS’ custody.        At the December 8, 2014

dispositional hearing, the Father received his case plan for Grace, which required

him, among other things, to complete intensive outpatient drug treatment, one-on-

one domestic violence counseling, and anger management counseling.

      (6)   In December 2014 and January 2015, respectively, DFS filed motions

seeking to establish permanency plans with respect to each girl. In February 2015,

the petitions were consolidated. In March 2015, the Family Court deferred ruling

on the permanency plans for either child and granted the parents an additional 90

days to work toward completing their respective case plans. In June 2015, the

Family Court held a consolidated hearing on DFS’ permanency petitions. The

Family Court found that the Father’s continued actions relating to domestic

violence and his failure to complete the required counseling indicated that the



                                         4
Father was unlikely to change his conduct and complete his plan. Therefore, the

Family Court changed the goal for both girls from reunification to termination of

parental rights/adoption.

      (7)    Thereafter, the parental grandmother filed a petition for guardianship,

which was supported by the Father but was opposed by the Mother and the CASA.

After a hearing, the Family Court denied the petition for guardianship. At that

time, the Mother indicated her consent to termination of her parental rights. On

March 7, 2016, the Family Court held a termination of parental rights hearing as to

the Father. The Father appeared at the courthouse but left before the hearing

started. Although his then-counsel requested to withdraw his appearance because

the Father was not there to state his position on the TPR petition, the Family Court

asked counsel to proceed with the hearing as if the Father objected to the petition.

      (8)    The Family Court heard from multiple witnesses at the TPR hearing,

including the children’s foster care supervisor, a DFS caseworker, Ashley’s

therapist, the Father’s domestic violence counselor, and the Father’s substance

abuse counselor. The testimony of the State’s witnesses established that, although

the Father recently had some appropriate visits with the children, he had not made

significant progress toward other elements of his case plan because he had failed to

complete individual domestic violence counseling and intensive substance abuse

counseling. The testimony further established that the girls had come into DFS’



                                          5
custody as infants and each child had lived with her respective foster family

throughout that period. Each girl had closely bonded with her respective foster

family, and each foster family wished to adopt their foster daughter.

          (9)    In its written opinion, the Family Court found clear and convincing

evidence that the children had come into DFS’ care as infants and had remained in

DFS’ care for more than six months,3 that DFS had made reasonable efforts to

reunify the Father with the children, that the Father had failed to plan adequately

for the children’s needs,4 and that termination of the Father’s parental rights was in

the children’s best interests.5 In making the determination that termination was in

the children’s best interests, the Family Court considered all of the factors set forth

in 13 Del. C. § 722 and found that the evidence as to each factor weighed in favor

of terminating the Father’s parental rights.

          (10) The Father has not raised any challenge to the Family Court’s

decision on appeal. Appointed counsel has set forth one arguable issue, namely

that DFS unreasonably delegated its reunification efforts and case supervision to a

non-party parent aide, who did not reasonably assist the Father in completing his

case plan in a way that accounted for the Father’s diagnosed cognitive deficit of

“mild mental retardation.”

3
    11 Del. C. § 1103(a)(5)a1.
4
    Id. § 1103(a)(5).
5
    Id. § 1103(a).


                                           6
           (11) In response, DFS argues that there is more than sufficient evidence in

the record to reflect that DFS appropriately monitored all of the services being

provided to the Father, that the services were provided to the Father in a manner

that he could understand despite his cognitive limitations, and that the Father did

understand and was capable of fulfilling his case plan despite his limitations.

           (12) 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. 6 We review legal rulings de novo.7 We conduct a

limited review of the factual findings of the trial court to assure that they are

sufficiently supported by the record and are not clearly wrong. 8 If the trial judge

has correctly applied the law, our review is limited to abuse of discretion.9

           (13) The statutory procedure for terminating parental rights requires two

separate inquires.10 First, the court must determine whether the evidence presented

meets one of the statutory grounds for termination. 11 Second, the court must

determine whether termination of parental rights is in the best interest of the


6
 Scott v. DSCYF, 2012 WL 605700 (Del. Feb. 27, 2012) (citing Wilson v. Div. of Fam. Services,
988 A.2d 435, 439-40 (Del. 2010)).
7
    Wilson v. Div. of Fam. Services, 988 A.2d 435, 440 (Del. 2010).
8
     Id.
9
    Powell v. DSCYF, 963 A.2d 724, 731 (Del. 2008).
10
     Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
11
   Id. at 537. See also 13 Del. C. § 1103(a)(1-8) (listing the grounds for termination of parental
rights).


                                                 7
child.12 When the statutory basis for termination of parental rights is failure to plan

adequately for the child’s physical, mental, or emotional needs, 13 there must be

proof of a least one additional statutory factor14 and proof that DFS made bona fide

reasonable efforts to reunify the family and preserve the family unit.15 All of these

requirements must be established by clear and convincing evidence.16

          (14) In this case, the Family Court found clear and convincing evidence

that the Father’s parental rights should be terminated on the statutory basis of

failure to plan adequately for the children’s needs. 17 This Court has carefully

reviewed the record, including all of the hearing transcripts, the Family Court’s

decision, and the positions of the parties. Contrary to the Father’s counsel’s

arguable point on appeal, the record reflects sufficient evidence to support the

Family Court’s finding that DFS made reasonable efforts to reunify the Father with

the children. We conclude there is ample evidence on the record to support the

Family Court’s termination of the Father’s parental rights on the statutory basis

that he failed to plan for the children and that termination was in the children’s best



12
  13 Del. C. § 722(a)(1)-(8) (listing factors to be considered when determining the best interest
of the child).
13
     Id. § 1103(a)(5).
14
     Id. § 1103(a)(5)a,b (listing additional factors).
15
     In re Hanks, 553 A.2d 1171, 1179 (Del. 1989).
16
     Powell v. DSCYF, 963 A.2d 724, 731 (Del. 2008).
17
     13 Del. C. § 1103(a)(5).


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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.

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

Court is AFFIRMED. The motion to withdraw is moot.

                                         BY THE COURT:


                                         /s/ James T. Vaughn, Jr.
                                                 Justice




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