          IN THE SUPREME COURT OF THE STATE OF DELAWARE

AMY DUNCAN,1                        § No. 610, 2018
    Respondent Below, Appellant,    §
                                    § Court Below—Family Court
     v.                             § of the State of Delaware
                                    §
PAMELA SMITH,                       § File No. CK17-03850
     Petitioner Below, Appellee,    § Petition No. 17-33357
                                    §
CINDY DUNCAN,                       §
FREDRICK DUNCAN, JR.,               §
FREDRICK DUNCAN, SR.,               §
     Respondents Below, Appellees,  §
__________________________________________________________________

AMY DUNCAN,                                         §   No. 610, 2018
   Respondent Below, Appellant,                     §
                                                    §   Court Below—Family Court
         v.                                         §   of the State of Delaware
                                                    §
CINDY DUNCAN,                                       §   File No. CK14-02301
FREDRICK DUNCAN, SR.,                               §   Petition No. 17-30023
    Petitioners Below, Appellees,                   §
                                                    §
FREDRICK DUNCAN, JR.,                               §
    Respondent Below, Appellee.                     §

                                Submitted: May 31, 2019
                                Decided: July 30, 2019

Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.




1
    The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
                                     ORDER

       Upon consideration of the parties’ briefs and the record on appeal, it appears

to the Court that:

      (1)    The appellant, Amy Duncan (“Mother”), and the appellee Fredrick

Duncan, Jr. (“Father”) have three children—Grant, Iris, and Heather. Grant is now

four years old, Iris is eight, and Heather is twelve. Mother filed this appeal from a

Family Court order that, among other things, granted guardianship of Grant to the

appellees Fredrick Duncan, Sr. (“Paternal Grandfather”) and Cindy Duncan

(“Paternal Grandmother” and, together with Paternal Grandfather, the “Paternal

Grandparents”). The order also denied the petition of the appellee Pamela Smith

(“Maternal Grandmother”) for guardianship of the children. Mother appeals the

order solely to the extent it awarded guardianship of Grant to the Paternal

Grandparents, arguing that the Family Court’s factual findings do not support its

conclusion that Grant is dependent. For the reasons discussed below, we reverse.

      (2)    On August 25, 2014, before Grant was born, the Paternal Grandparents

filed a petition for guardianship of Heather and Iris, and a Commissioner of the

Family Court granted the accompanying motion for emergency guardianship.

Mother and Father, who it appears may have been undergoing inpatient treatment in

Florida at the time, failed to appear at a mediation conference on October 23, 2014,

and a Commissioner entered a default order granting guardianship of Heather and


                                         2
Iris to the Paternal Grandparents, with visitation to occur as mutually agreed by the

parties.

       (3)   After Mother and Father returned from Florida, Heather and Iris began

living with them again, although the Paternal Grandparents continued to have

guardianship.    In April 2017, Mother and Father filed a petition to rescind

guardianship of Heather and Iris. The Family Court denied the parents’ petition for

rescission on October 23, 2017. The court found that the Paternal Grandparents paid

the parents’ living expenses; Mother and Father did not have fulltime employment;

and Mother and Father had not demonstrated that they were financially able to

support and care for Heather and Iris. The court was also concerned that the parents

continued to suffer from substance abuse issues.

       (4)   On September 25, 2017 the Paternal Grandparents filed a petition for

guardianship of Grant.      They alleged that Mother and Father were in drug

rehabilitation and had no means of supporting Grant. They also alleged, without any

factual specificity, “possible neglect” of Grant. In her answer to the petition, Mother

indicated that she could provide clean drug screens and had provided clean screens

to the Paternal Grandparents; that the Paternal Grandmother was emotionally and

mentally abusive to Heather and Iris; that Paternal Grandfather suffered from

Parkinson’s disease, which placed the children at risk when they were in his care;




                                          3
and that she worked as a server at a restaurant in Wilmington and part-time for a

friend’s house-flipping company.

      (5)    A few weeks after the Paternal Grandparents filed their petition for

guardianship of Grant, Maternal Grandmother filed a petition for guardianship of

Heather and Iris, alleging that Heather and Iris were dependent, neglected, or abused

in the Paternal Grandparents’ care. Mother supported Maternal Grandmother’s

petition. Maternal Grandmother also filed a motion for emergency guardianship of

Heather and Iris, which the Family Court denied.

      (6)    The court held a hearing on the petitions for guardianship on November

9, 2018. At the hearing, Maternal Grandmother orally amended her petition, in order

to request guardianship of Grant as well.

      (7)    The testimony provided at the hearing reflected that in mid-October

2018—approximately a year after the grandparents filed their guardianship petitions

and just a few weeks before the hearing on the guardianship petitions—Mother and

Father separated. Mother moved to Maternal Grandmother’s home in Lewes,

Delaware, and could no longer work at the restaurant in Wilmington. She therefore

applied to truck-driving school and was awaiting financial approval and an

opportunity to begin the four-week program. At the time of the separation, Mother

and Father placed Grant in the Paternal Grandparents’ care, because the parents

could not afford daycare and to allow time for Mother to complete her move to


                                            4
Lewes. After moving to Lewes, Mother applied, and was approved, for the State

Purchase of Care program and, using that assistance, had secured a place for Grant

at a daycare in Lewes.

      (8)    At the time of the hearing, Grant had been staying with the Paternal

Grandparents for a few weeks. Paternal Grandmother did not allege that Grant was

abused when he was living with Mother. But Paternal Grandmother believed that

Grant’s clothes were not clean and testified that trash and clothes had been strewn

around Mother’s and Father’s house and mattresses were placed on the floor. By

contrast, no one provided any testimony that the conditions at Paternal

Grandmother’s home, where Mother had moved after the parents’ separation, were

not suitable for children.

      (9)    The Family Court granted the Paternal Grandparents’ petition for

guardianship of Grant. The court found that Grant was dependent because (i) Mother

was not financially independent, having recently separated from Father and relying

on Maternal Grandmother for housing and to pay expenses while Mother “plans to

attend school to hopefully obtain a job to support herself”; and (ii) by placing Grant

with the Paternal Grandparents, “Mother and Father made the decision that they

were unable to care for [Grant] at that time.”




                                          5
       (10) On appeal, this Court reviews the Family Court’s factual and legal

determinations as well as its inferences and deductions.2 We will not disturb the

Family Court’s rulings on appeal if the court’s findings of fact are supported by the

record and its explanations, deductions, and inferences are the product of an orderly

and logical reasoning process.3 We review legal rulings de novo.4 If the Family

Court correctly applied the law, then our standard of review is abuse of discretion.5

On issues of witness credibility, we will not substitute our judgment for that of the

trier of fact.6

       (11) On appeal, Mother argues that the Family Court erred by (i) failing to

make factual findings sufficient to support the court’s conclusion that Grant is

dependent, as required by 13 Del. C. § 2330(a)(2)(a), and (ii) failing to afford Mother

a presumption that returning Grant to her care and custody is in Grant’s best interests.

Mother also contends that the Family Court’s factual findings relating to Grant do

not support the court’s conclusion that guardianship with the Paternal Grandparents

is in Grant’s best interests.

       (12) Mother did not consent to the Paternal Grandparents’ guardianship of

Grant. Therefore, under 11 Del. C. § 2330(a), before granting a guardianship



2
  Long v. Div. of Family Servs., 41 A.3d 367, 370 (Del. 2012).
3
  In re Heller, 669 A.2d 25, 29 (Del. 1995).
4
  Id.
5
  CASA v. Dep’t of Servs. for Children, Youth and Their Families, 834 A.2d 63, 66 (Del. 2003).
6
  Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
                                               6
petition the Family Court was required to find that (i) Grant is “dependent, neglected

or abused and the reasons therefor” and (ii) it is in Grant’s best interests for the

guardianship to be granted.7 The Paternal Grandparents, as the parties seeking

guardianship, had the burden of establishing both dependency and best interests by

a preponderance of the evidence.8 The guardianship statute defines dependency in

accordance with 10 Del. C. § 901.9 10 Del. C. § 901(8) provides as follows:

               “Dependency” or “dependent child” means that a person:

           a. Is responsible for the care, custody, and/or control of the child;
              and

           b. Does not have the ability and/or financial means to provide for
              the care of the child; and

                1. Fails to provide necessary care with regard 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; or

               2. The child is living in the home of an “adult individual” who
                  fails to meet the definition of “relative” in this section on an
                  extended basis without an assessment by DSCYF, or its
                  licensed agency; or

               3. The child has been placed with a licensed agency which
                  certifies it cannot complete a suitable adoption plan.

           In making a finding of dependency under this section, consideration
           may be given to dependency, neglect, or abuse history of any party.10

7
  11 Del. C. § 2330(a)(2).
8
  Id.
9
  See 13 Del. C. § 2302(7) (referring to 10 Del. C. § 901 for the definition of dependency).
10
   10 Del. C. § 901(8).
                                                7
Grandparents are “relatives” under Section 901.11

       (13) In this case, the Family Court based its determination of dependency on

two facts: Mother’s lack of financial independence and the parents’ placing Grant

in the care of the Paternal Grandparents in the wake of the parents’ separation. We

conclude that these grounds are insufficient to support a finding of dependency under

13 Del. C. § 2330(a)(2)(a) and 10 Del. C. § 901(8).

       (14) First, the Family Court’s factual findings regarding Mother’s lack of

financial independence are insufficient to support a finding of dependency. A child

is dependent under the statute only if the parent lacks the financial means to provide

for the care of the child and actually fails to provide necessary care.12 The court did

not find facts indicating that Grant was not receiving appropriate care when he was

living with Mother during the year between when the Paternal Grandparents filed

for guardianship and when the guardianship hearing occurred. The testimony at the

hearing reflected that, during that period, Mother worked while Father stayed home

with Grant;13 Mother regularly took Grant to his medical appointments;14 and Mother

was compliant with her methadone treatment and had clean drug screens. Although

Mother appears to have relied heavily on family members to provide care for Grant


11
   Id. § 901(20).
12
   10 Del. C. § 901(b), (b)(1).
13
   Transcript of Hearing, Nov. 9, 2018, at 93-94.
14
   Id. at 92-93.
                                                8
while she worked, that is not unusual in many families and neither the Family

Court’s decision nor the transcript of the hearing indicate that she failed to provide

or obtain appropriate care for him at any time. Parents frequently rely on family

members to assist with child care, and a parent’s enlisting others to help does not

establish dependency. Indeed, the statutory definition of dependency supports that

conclusion, as extended placement in a nonrelative’s home without DSCYF

involvement is sufficient to support a finding of dependency, while extended

placement in a relative’s home is not.15 Moreover, it was the unfortunate timing of

the parents’ separation in relation to the hearing—and Mother’s accompanying move

to Lewes—that resulted in Mother’s moving in with her mother and not being

employed at the time of the hearing. But, the move to the Maternal Grandmother’s

house itself cuts against the rationality of the Family Court’s ruling. The Mother’s

mother has a house adequate for children and, along with the Mother, is capable of

adequately providing for Grant.

          (15) Second, Mother’s and Father’s decision to entrust Grant to the care of

his grandparents during a transitional period also is insufficient to find him

dependent. As noted above, a parent’s decision to place a child with a relative, as

opposed to a nonrelative, is not grounds for a finding of dependency under the




15
     10 Del. C. § 901(b)(2).
                                           9
statute.16 In addition, although the testimony at the hearing did not reflect that

Mother and Father indicated how long they planned for Grant to stay with the

Paternal Grandparents, it also did not reflect that they intended it to be a permanent

arrangement or that Mother entirely abdicated her responsibilities to care for Grant.

Indeed, Mother remained involved with Grant, as evidenced by the fact that shortly

after the parents placed Grant in the Paternal Grandparents’ care, Paternal

Grandmother reported that Grant had a fever and she was going to take him to see

the doctor, but Mother insisted that she would take him instead.17

          (16) We respect that the Family Court is familiar with this family and had

determined in 2017 that Heather and Iris remained dependent. But the parents’

circumstances may have been different at that time; Heather and Iris are different

children than Grant; and Heather has some substantial medical and behavioral issues.

We also recognize that the Family Court had the opportunity to assess the credibility

of the witnesses, which we do not on a paper record. But the court’s written decision

does not reflect that the court discounted Mother’s credibility regarding her

employment and care for Grant in the year preceding the guardianship hearing, nor

do the court’s reasons for finding dependency indicate that the court found that

Mother actually provided insufficient care to Grant during that period. For these



16
     Id.
17
     Transcript of Hearing, Nov. 9, 2018, at 103:15-23.
                                                 10
reasons, we conclude that the Family Court’s factual findings, as set forth in its

decision, are insufficient to support a determination that the Paternal Grandparents

proved, by a preponderance of the evidence, that Grant is dependent under Section

901. In light of our conclusion regarding dependency, we need not reach Mother’s

arguments concerning the Family Court’s application of the best interest factors.

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

Court relating to the guardianship of Grant is REVERSED.              The matter is

REMANDED to the Family Court for further proceedings consistent with this order.

Jurisdiction is not retained.

                                             BY THE COURT:
                                             /s/ Leo E. Strine, Jr.
                                             Chief Justice




                                        11
