     IN THE SUPREME COURT OF THE STATE OF DELAWARE


DEPARTMENT OF SERVICES  §
FOR CHILDREN, YOUTH     §
AND THEIR FAMILIES,     §
                        §                 No. 681, 2014
    Petitioner Below,   §
    Appellant,          §
                        §
    v.                  §                 Court Below – Family Court
                        §                 of the State of Delaware in
JANET FOWLER,           §                 and for New Castle County
JOHN TOWER, AND UNKNOWN §
FATHER,                 §                 File No. CN14-04728
                        §                 Pet. No. 14-24863
    Respondents Below,  §
    Appellees.          §

                      Submitted: August 19, 2015
                       Decided: August 26, 2015

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

Upon appeal from the Family Court. AFFIRMED.

Jonathan C. Harting, Esquire, Deputy Attorney General, Wilmington,
Delaware, for Petitioner Below, Appellant, Department of Services for
Children, Youth and Their Families.

John X. Denney, Jr., Esquire, Mattleman Weinroth & Miller, P.C., Newark,
Delaware, for Respondent Below, Appellee, Janet Fowler.



SEITZ, Justice:
                            I.     INTRODUCTION

      The Department of Services for Children, Youth and Their Families

(the “Department”) appeals from a September 18, 2014 Family Court order

finding that the Department failed to establish probable cause at a

Preliminary Protective Hearing (“PPH”) to retain an infant in the

Department’s custody. 1 The Department argues on appeal that the Family

Court failed to apply the correct probable cause standard when it dismissed

the Department’s petition. We find no merit to the Department’s argument

and affirm the judgment of the Family Court.

        II.   FACTUAL AND PROCEDURAL BACKGROUND

      The Department filed an emergency ex parte petition on September

12, 2014, alleging that A.F., a newborn infant, was dependent, neglected, or

abused by Mother, John Tower, and Unknown Father. 2 The Family Court

granted the Department’s ex parte petition, entered an order allowing

physical or constructive removal of A.F. from his parents, and awarded

temporary custody to the Department until further order of the court. As




1
  The Court previously assigned pseudonyms to the parties under Supreme Court Rule
7(d).
2
  App. to Opening Br. at 1 (Family Court Docket).

                                        2
required by Family Court Rule 212(a), the Family Court scheduled a PPH

for September 17, 2014.3

The Preliminary Protective Hearing

       At the PPH, Jennifer Colon, an investigative worker for the

Department, testified that the Department received a hotline report on

August 1, 2014, claiming Mother had given birth into a toilet and had

appeared to the hotline reporter to be high on drugs, with glassy eyes and

slurred speech.4 Colon also testified that she contacted Mother at St. Francis

Hospital, where Mother and child had been taken following the birth. Colon

observed Mother with slurred speech and incapable of holding a

conversation. 5 A.F. was born with methadone and benzodiazepines in his

system and remained in the hospital at the time of the PPH for opiate

dependence treatment. 6


3
  Family Court Rule of Civil Procedure 212(a) provides: “if an ex parte [preliminary
protective] order is granted, a preliminary protective hearing shall be scheduled before a
judge within 10 days of the entry of the ex parte order . . . .” “Upon a finding [at the
preliminary protective hearing] that probable cause exists to believe that a child continues
to be in actual physical, mental or emotional danger or there is substantial imminent risk
thereof or that a child has been abused or neglected, or continues to be dependent, the
Court shall continue the custody order in effect . . . pending an adjudicatory hearing in
accordance with 10 Del. C. § 1009.” The adjudicatory hearing “shall be scheduled within
30 days of the entry of the preliminary protective order.” Fam. Ct. R. Civ. P. 213(a). If
at the preliminary protective hearing, the Family Court does not find probable cause, “the
petition shall be dismissed and the child returned to the custody or guardianship of the
parent[] . . . .” Fam. Ct. R. Civ. P. 212(b).
4
  App. to Opening Br. at 11-12 (PPH Test. of Colon, Sept. 17, 2014).
5
  Id. at 12.
6
  Id. at 12-13.

                                             3
          Colon testified she visited Mother at her home on August 6, 2014 for

an interview. Colon completed a full interview with Mother, though Colon

observed Mother’s speech to be slurred and found that Mother would lose

concentration when Colon asked questions. Mother said that she had given

birth to A.F. in the toilet because, when her water broke, she thought it was

urine and she needed to go to the bathroom. She told Colon she did not

know what to do when the baby and placenta were in the toilet and her legs

would not move. Mother claimed it was Tower who took her off the toilet

and removed the baby from the toilet. Colon also testified that, according to

the hotline report, it was the police officer responding to the scene who

removed the baby from the toilet, but that she had been unable to confirm

the report. 7

          Colon was also concerned about reports from the social worker and

nurses at St. Francis Hospital regarding Mother’s interactions with the baby.

Mother had gone to the hospital every day to visit A.F. until the Department

decided to take custody.       During those visits, nurses observed Mother

nodding off at times. She would ask the same question of them several

times in the same visitation session.8



7
    Id. at 13-14, 16-17.
8
    Id. at 14.

                                         4
       Colon testified that Mother is participating in a methadone program at

Brandywine Counseling to treat addiction to Percocet, and acknowledged

Mother had told Colon that Mother’s doctor had advised her not to

discontinue the methadone while she was pregnant. 9 She also testified that

Mother is living with the alleged father, Tower, and that the home is

appropriate. The home was stocked with food, had the necessary baby items

when she visited, and had working utilities.               Colon testified that the

Department had concerns about Tower because he admitted at one time to

planting heroin and Percocet on Mother to help her get into a rehabilitation

program. 10

       Tower testified at the PPH that he was the one who removed the baby

from the toilet after birth. He left to go to the bank and had called to check

on Mother while he was out. When she did not answer his call, he rushed

home. He testified that when he returned home, Mother called out to him,

saying she had delivered the baby in the toilet and he immediately called

911.11 Tower believed Mother did not realize she was in labor because the

methadone she was taking masked the pain. He testified that Mother only

takes the methadone as prescribed by Brandywine Counseling, and other


9
  Id. at 17, 23.
10
   Id. at 17-18.
11
   App. to Opening Br. at 37-38 (PPH Test. of Tower, Sept. 17, 2014).

                                           5
drugs as prescribed by her physicians.12 Tower claimed paternity of A.F. At

the time of the PPH, paternity testing had not yet been conducted. Tower

testified he was able to, and wanted to take care of A.F. 13

          The Court Appointed Special Advocate (“CASA”) and her counsel

also appeared at the PPH. The CASA opposed the Department’s request to

continue custody with the Department.

The Family Court Decision

          After hearing all the evidence, the Family Court concluded in a

September 18, 2014 order that the Department did not establish probable

cause to believe that A.F. was dependent, neglected, or abused in the care of

Mother and Tower. According to the Family Court, the Department failed to

establish that any of the drugs Mother was taking were taken without a

doctor’s knowledge of her condition or in violation of her physicians’

instructions. The court also credited Tower’s account of the circumstances of

A.F.’s birth over the report from the hotline.         The court viewed the

remainder of the Department’s evidence as insufficient to justify removal of

the child from the custody of his parents.

          The Department filed a motion for reargument. In a November 12,

2014 letter decision and order, the court denied the motion. The court

12
     Id. at 39-40.
13
     Id. at 40-41, 45-46.

                                       6
rejected the Department’s argument that the court “ignored or misapplied”

the probable cause requirement. The court believed it had correctly weighed

the testimony of the witnesses and other evidence introduced at the

evidentiary hearing, and considered the totality of the circumstances in

making its probable cause determination. The court acknowledged the low

burden of proof under the probable cause standard, but found that “it would

be error of the most egregious kind to ignore the testimony of contrary

witnesses just because [the Department] believes that dependency exists

based on its own investigation.” The court also permitted the Department to

renew the petition if circumstances changed based on new facts.

Argument On Appeal

          The Department raises a single argument on appeal; the Family Court

misapplied the probable cause standard at the PPH.         It claims that the

Department presented sufficient evidence at the PPH to establish probable

cause to believe that A.F. was dependent as to Mother. 14 The Department

believes that its evidence at the hearing should have been accepted by the

Family Court as conclusive. The Family Court erred, according to the

Department, when it relied on the evidence presented by Mother, including

her explanations for her behavior, and by assessing the credibility of the


14
     Opening Br. at 15.

                                       7
testimony of Tower and Colon. 15 The Department contends that the Family

Court cannot compare and contrast the evidence presented by the parties at a

PPH, but must confine its analysis to the Department’s knowledge and

beliefs. The Family Court must determine based on the evidence presented

by the Department whether that knowledge and those beliefs are sufficient in

themselves to support a finding that probable cause exists to believe that the

child is dependent.16

          Mother argues in response that it would be improper for the Family

Court to focus only on the Department’s knowledge and belief. The Family

Court’s rules, according to Mother, require the court to determine, not

whether the Department had probable cause to believe the child was

dependent and neglected when it filed its ex parte petition, but whether

probable cause exists to believe the child is dependent or neglected at the

time of the PPH. It is a fundamental due process right of a parent, Mother

contends, to contest the taking of custody of a child by the Department. The

PPH, in her view, is designed to give the parent an opportunity to contest the

Department’s allegations in an adversarial hearing. The Family Court judge

must, according to Mother, consider the evidence presented at the PPH as a

whole when making the probable cause determination.

15
     Id. at 17-21; Reply Br. at 6-7.
16
     Opening Br. at 14; Reply Br. at 6-7.

                                            8
                                III.   ANALYSIS

       When reviewing a Family Court's order in a dependency, neglect, and

abuse proceeding, we review the facts and law, as well as the inferences and

deductions made by the trial court. Issues of law are reviewed de novo. We

conduct a limited review of the factual findings to assure that the record

supports them and they are not clearly wrong. We will not disturb

inferences and conclusions the record supports and that are not clearly

wrong. If the trial court has correctly applied the law, our review is limited

to abuse of discretion. 17

       The Family Court Rules provide that, in a PPH, “the Court shall

determine whether the evidence demonstrates that probable cause exists to

believe that a child continues to be in actual physical, mental, or emotional

danger or there is a substantial imminent risk thereof.” Hearsay evidence is

admissible to meet the Department’s burden. 18 If the Family Court finds

probable cause to believe the foregoing danger exists or is imminent, or “that

a child has been abused or neglected, or continues to be dependent,” the




17
   Taylor v. Division of Family Services, 7 A.3d 485, 2010 WL 4145190, at *2 (Del. Oct.
22, 2010).
18
   Fam. Ct. R. Civ. P. 212(a).

                                          9
Court continues the ex parte custody order. 19        A child is considered

dependent as to a parent when the parent:

       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 . . . . 20

A child is considered neglected as to a parent when the parent:

       a. Is responsible for the care, custody, and/or control of the
       child; and
       b. Has the ability and 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, medical or other care
          necessary for the child's emotional, physical, or mental
          health, or safety and general well-being; or
          2. Chronically and severely abuses alcohol or a controlled
          substance, is not active in treatment for such abuse, and the
          abuse threatens the child's ability to receive care necessary
          for that child’s safety and general well-being; or
          3. Fails to provide necessary supervision appropriate for a
          child when the child is unable to care for that child’s own
          basic needs or safety, after considering such factors as the
          child's age, mental ability, physical condition, the length of
          the caretaker's absence, and the context of the child's
          environment. 21




19
   Fam. Ct. R. Civ. P. Rule 212(b).
20
   10 Del. C. § 901(8).
21
   10 Del. C. § 901(18).

                                      10
       We disagree with the Department that the Family Court should have

accepted the Department’s evidence as conclusive at a PPH. The Family

Court judge at a PPH is not a rubber stamp for the Department. Unlike the

ex parte application procedure for a preliminary protective order, where the

parents do not participate, the court must convene a PPH within ten days of

the preliminary order, and allow the parents and others to be heard on the

dependency claim.          At the hearing, the parents can respond to the

dependency charges and the judge can assess their credibility. 22 Before

reaching a probable cause determination, the court must weigh all the

evidence presented at the hearing, including the hearsay presented by the

Department and the parents, consider the totality of the circumstances, and

determine whether the State has met its burden to prove probable cause.23

The court in this case was free to credit Mother’s explanations for her

behavior, and to determine that Tower’s account of the circumstances of

A.F.’s birth should be given more weight than the account presented by the

Department. We find no error in the Family Court’s conduct of the hearing,


22
   Division of Family Services v. L.C., 2002 WL 1932501, at *6 (Del. Fam. Ct. Jan. 17,
2002).
23
   “Probable cause is an elusive concept which avoids precise definition. Generally, it
lies ‘somewhere between suspicion and sufficient evidence to convict.’ [I]t exists when
the ‘facts and circumstances . . . (are) sufficient in themselves to warrant a man of
reasonable caution in the belief . . . .’” Cochran v. State, 372 A.2d 193, 195 (Del. 1977).
See also L.C., 2002 W.L. 1932501, at *4 (quoting Cochran in describing the probable
cause standard in the context of a PPH).

                                            11
weighing of the evidence, and considering all of the evidence in making its

probable cause determination.

       The Department relies heavily on State v. Maxwell,24 where this Court

reversed a Superior Court order suppressing the results of a blood alcohol

test based on a lack of probable cause. We reversed because the Superior

Court required the State to negate all innocent explanations of the facts

observed by the police officer before probable cause could be established,

thereby imposing on the State a burden of proof higher than probable cause.

       The Maxwell case is distinguishable.                  Maxwell involved a

retrospective review in a suppression hearing of a probable cause

determination made by a police officer before taking a blood sample. 25

Here, the Family Court Rules require a judge to conduct the PPH and hear

evidence in an adversarial setting in advance of a probable cause

determination.      The Family Court determines “whether the evidence

demonstrates that probable cause exists to believe” 26 that custody should be

continued with the Department under the statute and the court’s rules. The

Family Court Rules do not restrict the Family Court judge to a review of the


24
   624 A.2d 926 (Del. 1993).
25
   21 Del. C. § 2740 of the Delaware Code provides that a blood test to determine the
presence of alcohol may be performed when an officer has probable cause to believe that
a person was driving, operating or in physical control of a vehicle while under the
influence of alcohol.
26
   Fam. Ct. R. Civ. P. 212(b) (emphasis added).

                                          12
evidence presented by the Department. 27 As we observed in Maxwell, the

probable cause determination must not be made based on the facts in

isolation, but instead on “the totality of the circumstances.” 28

                              IV.     CONCLUSION

        We recognize and respect the Department’s deep concern for A.F.,

given the circumstances of his birth, his mother’s serious addiction

problems, and other issues. But, we do not agree with its contention that the

Family Court cannot consider all the evidence in making the difficult

decisions entrusted to it in these cases. As to this point, it is clear that the

Family Court considered the Department’s position very seriously, finding

the probable cause determination in this case to be “a very, very close

call.” 29   The CASA for A.F. was also “very torn” but agreed with Mother

that probable cause did not exist.30 Whether we would have made different

factual findings and reached a different conclusion is not the standard of

review in this Court on appeal. We cannot say that the Family Court erred

as a matter of law, abused its discretion, or that the court’s factual findings

were clearly wrong.



27
   We also note that, unlike Maxwell, where the factual record at the suppression hearing
was undisputed, the parents vigorously contested the Department’s version of the facts.
28
   Maxwell, 624 A.2d at 928.
29
   App. to Opening Br. at 55 (PPH Transcript).
30
   Id. at 50.

                                           13
     NOW, THEREFORE IT IS ORDERED that the judgment of the

Family Court is AFFIRMED.




                            14
