      IN THE SUPREME COURT OF THE STATE OF DELAWARE

    ABIGAIL ACORN and WENDALL                   §
    MALIC III,1                                 §
                                                §   No. 148, 2019
         Respondents Below,                     §
         Appellants,                            §
                                                §   Court Below–Family Court
         v.                                     §   of the State of Delaware
                                                §
    SETH LAYMEN and LAURA                       §
    LAYMEN,                                     §   File No. 17-09-02TS
                                                §   Petition No. 17-28003
         Petitioners Below,                     §
         Appellees.                             §

                             Submitted: August 21, 2019
                             Decided:   October 28, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                      ORDER

       After careful consideration of the appellants’ brief filed under Supreme

Court Rule 26.1(c), their attorneys’ motions to withdraw, the appellees’

response, and the Child Attorney’s response, it appears to the Court that:

       (1)    By order dated March 5, 2019, the Family Court terminated the

parental rights of the appellants, Abigail Acorn (“the Mother”) and Wendall

Malic III (“the Father”) (collectively, “the Parents”), with respect to their

children—a girl, born in 2013, and a boy, born in 2015 (“the Children”).


1
 The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule
7(d).
      (2)    The Mother’s and the Father’s appointed counsel on appeal have

filed a joint opening brief and motions to withdraw pursuant to Supreme Court

Rule 26.1(c). Counsel assert that they have reviewed the record and have

determined that no arguable claim for appeal exists. Counsel informed the

Parents of the provisions of Rule 26.1(c) and provided them with copies of

the motion to withdraw and the accompanying brief. Counsel submitted the

Parents’ concerns as “Appellants’ Points” in their brief on appeal. The

appellees, Seth Laymen and Laura Laymen, and the Child’s Attorney have

responded to counsel’s Rule 26.1(c) brief and argue that the Family Court’s

judgment should be affirmed.

      (3)    In April of 2015, the Division of Family Services (“DFS”)

opened an investigation into the Parents after receiving reports that they were

using heroin and did not have adequate food for the Children in the hotel room

where they were living.     DFS referred the Parents to treatment service

providers and directed them to update DFS about their progress. The Parents

failed to do so. Two months later, the Parents were arrested and charged with

various offenses stemming from their alleged illegal occupation of a

residence. Following their arrest, the Family Court awarded DFS emergency

custody of the Children. DFS immediately placed the Children with the




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Laymens. At the time, the Children were approximately nineteen months old

and four months old.

       (4)     After DFS filed its dependency and neglect petition, the

mandated hearings ensued.2 A dispositional hearing was held on July 21,

2015, and the Family Court approved case plans developed by DFS to

facilitate the reunification of the Parents with the Children. The approved

case plans for the Mother and the Father required that they: (i) receive

substance abuse treatment, (ii) obtain and maintain employment and

demonstrate an ability to provide for the Children financially, (iii) obtain and

secure stable housing, and (iv) receive mental health treatment. The Father’s

approved case plan also required that he attend a parenting workshop and

build a support network of family and friends. The case plans ensured the

Mother and the Father would have visits with the Children twice a week for

two hours.

       (5)     Over the next nine months, the court held a series of hearings to

review the progress the Parents had made toward reunification. In a series of

orders following the review hearings, the Family Court found that the

Children remained dependent in the Parents’ care due to the Parents’ ongoing


2
  When a child is removed from home by DFS and placed in foster care, the Family Court
is required to hold hearings at regular intervals under procedures and criteria detailed by
statute and the court’s rules. 13 Del. C. § 2514; Del. Fam. Ct. R. 212-219.


                                            3
struggle to obtain stable housing, steady employment, and reliable

transportation. On May 10, 2019, the court held a permanency hearing. At

that time, the Children had been residing with the Laymens for approximately

eleven months. With the Parents’ agreement, the permanency goal was

changed from reunification to the concurrent goals of guardianship and

termination of parental rights.

          (6)    After the goal change, the Father’s sister, a resident of North

Carolina, filed a petition for guardianship of the Children. The Laymens also

filed a petition for guardianship. After a hearing on the competing petitions

for guardianship, the court found that the Children remained dependent in

Mother and Father’s care, and that it was in the Children’s best interests that

they continue to reside with the Laymens. Accordingly, the court denied the

Father’s sister’s petition and awarded guardianship of the Children to the

Laymens in March 2017. The Father’s sister did not appeal the denial of her

petition.

          (7)     On September 7, 2017, the Laymens filed a filed a petition (“the

TPR petition”) seeking to terminate the Parents’ parental rights on the basis

of their failure to plan for the Children’s needs.3 The Laymens later amended

the TPR petition to include additional grounds for the termination of parental


3
    The Laymens also filed a petition to adopt the Children.


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rights, specifically: (i) abandonment (intentional and unintentional), (ii)

chronic abuse, and (iii) unexplained serious physical injury resulting from the

conduct or neglect of the Parents. The Parents opposed the Laymens’ petition.

      (8)    The Family Court held a hearing on the TPR petition over two

days in November 2018. The Parents appeared, represented by counsel. The

Family Court heard testimony from the Mother, the Father, the Children’s

foster care and adoption social worker, a licensed child psychologist, Mr.

Laymen, Mrs. Laymen, the Father’s sister, the Father’s aunt, and the Father’s

grandmother. The testimony reflected that the Parents had been clean and

sober since December 2015. However, the testimony also reflected that: (i)

the Parents continued to struggle with obtaining and maintaining stable

housing, (ii) the Parents had failed to address their mental health issues until

after the TPR petition had been filed and more than two years after the

Children were removed from their custody, (iii) the Parents had not obtained

financial stability, (iv) the Parents had visitation with the Children for only

one hour once a month since the Laymens had been awarded guardianship in

March 2017, and (iv) the Parents could not immediately resume custody and

financial support of the Children because they had not filed a motion to

rescind the guardianship. The Family Court also heard evidence that the

Children experienced acute anxiety when placed in situations where they



                                       5
feared the Laymens would abandon them. Importantly, the Family Court also

heard from the child psychologist who testified that the Children were very

bonded to the Laymen family and that a change in placement would be very

disruptive to the Children’s emotional development.

      (9)    Following the hearing, the Family Court issued a written decision

dated March 5, 2019. The court rejected the Laymens’ arguments that

termination of the Parents’ rights was appropriate due to abandonment,

chronic abuse, or serious injury. However, the Family Court found clear and

convincing evidence that the Parents had failed to plan adequately for the

responsibility of raising the Children. The court found further that, even if the

Parents were financially secure and able to provide the Children with stable

housing and other basic needs, the Parents would struggle to fulfill their

parental responsibility to meet the Children’s emotional needs. The Family

Court noted that the Children had been residing with the Laymens for nearly

four years and, after balancing the best interests factors under 13 Del. C. §

722, the court concluded that it was in their best interests to terminate the

Parents’ parental rights.

      (10) 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




                                       6
deductions made by the Family Court.4 We review legal rulings de novo.5

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.6

If the trial judge has correctly applied the law, our review is limited to abuse

of discretion.7

       (11) The statutory procedure for terminating parental rights requires

two separate inquires.8 First, the court must determine whether the evidence

presented meets one of the statutory grounds for termination.9 If the Family

Court finds a statutory basis for termination of parental rights, the court must

determine whether, considering the factors enumerated at 13 Del. C. § 722,

severing parental rights is in the best interests of the child.10 It is incumbent

on the petitioner—the Laymens in this case—to prove by clear and convincing

evidence that there is a statutory basis for termination of parental rights and

that the best interests analysis favors termination.11




4
  Scott v. DSCYF, 2012 WL 605700, at *1 (Feb. 27, 2012).
5
  Wilson v. DFS, 988 A.2d 435, 440 (Del. 2010).
6
  Id.
7
  Powell v. DSCYF, 963 A.2d 724, 731 (Del. 2008).
8
  Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
9
  Id. at 537. See also 13 Del. C. § 1103(a) (listing the grounds for termination of parental
rights).
10
   13 Del. C. § 722(a) (listing the factors to be considered when determining the best
interest of the child).
11
   Powell, 963 A.2d at 731.


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       (12) On appeal, the Parents argue that: (i) the Family Court did not

consider the Parents’ wishes when it denied Father’s sister’s petition for

guardianship; (ii) the record reflects that Parents had, in fact, addressed the

elements of their case plans; and (iii) it was not in the Children’s best interests

to terminate the Parents’ parental rights. Parents also make new claims of

stable housing, employment, the existence of a support system, mental health

treatment, and reliable transportation.

       (13) After careful consideration of the parties’ respective positions on

appeal and a thorough review of the record, the Court has determined this

appeal should be affirmed on the basis of and for the reasons assigned by the

Family Court in its March 5, 2019 decision. We find no error in the Family

Court’s application of the law to the facts. The Family Court found clear and

convincing evidence that the parents had failed to plan adequately for the

Children’s needs,12 that the Children had resided with the Laymens in excess

of one year, 13 that the Parents were incapable of discharging parental

responsibilities,14 and that termination of the Parents’ parental rights was in

the best interests of the Children.15 Those conclusions are well-supported by




12
   13 Del. C. § 1103(a)(5).
13
   13 Del. C. § 1103(a)(5)b.1.
14
   13 Del. C. § 1103(a)(5)b.2.
15
   13 Del. C. § 1103(a); 13 Del. C. § 722(a).


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the record. Because an appeal is heard on the evidence submitted to the trial

court, we cannot consider Parents’ new claims of financial stability and

emotional support. 16 Also, this Court has no jurisdiction to consider the

Parents’ objection to the Family Court’s denial of the Father’s sister’s petition

for guardianship.17

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

Family Court is AFFIRMED. The motions to withdraw are moot.

                                               BY THE COURT:

                                               /s/ Collins J. Seitz, Jr.
                                                      Justice




16
   Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented
for review; provided, however, that when the interests of justice so require, the Court may
consider and determine any question not so presented.”); Delaware Elec. Coop., Inc. v.
Duphily, 703 A.2d 1202, 1206 (Del. 1997) (“It is a basic tenet of appellate practice that an
appellate court reviews only matters considered in the first instance by a trial court. Parties
are not free to advance arguments for the first time on appeal.”).
17
   Hughes v. DFS, 836 A.2d 498, 506 (Del. 2003).


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