            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    HEYDON ILAN-HARPER,1        §
                                §
         Respondent Below,      §                 No. 315, 2018
         Appellant,             §
                                §                 Court Below—Family Court
         v.                     §                 of the State of Delaware
                                §
    DIVISON OF FAMILY SERVICES, §                 File No. 18-02-10TN
                                §                 CPI No. 18-05601
         Petitioner Below,      §
         Appellee.              §

                               Submitted: April 11, 2019
                               Decided:   May 8, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                        ORDER

         After consideration of the appellant’s brief and motion to withdraw filed by

the appellant’s counsel under Supreme Court Rule 26.1(c), the responses, and the

Family Court record, it appears to the Court that:

         (1)     This is an appeal from the Family Court’s order dated May 17, 2018

that terminated the appellant’s (“Father”) parental rights in his son (“Child”). The

Family Court’s order also terminated the parental rights of the Child’s mother

(“Mother”), who is not a party to this appeal. We therefore focus on the facts in the

record as they relate to Father’s appeal.



1
    The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d).
      (2)   Father’s counsel has filed a brief and a motion to withdraw under

Supreme Court Rule 26.1(c).        Father’s counsel asserts that, based upon a

conscientious review of the record, there are no arguably appealable issues. Counsel

informed 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 also informed Father

of his right to supplement counsel’s presentation. Father did not respond with any

points that he wanted to present for the Court’s consideration. The appellee, the

Department of Services for Children, Youth and Their Families, Division of Family

Services (“DFS”), and the counsel who was appointed to represent the interests of

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

judgment should be affirmed.

      (3)   The Child was born in January 2017. Mother had three other children,

none of whom were in her custody; her parental rights in one child had been

involuntarily terminated, and her parental rights in another child, who had been

seriously abused, had been voluntarily terminated. While the Child was still in the

hospital, DFS received a call reporting that the Child suffered from withdrawal

because of prenatal exposure to methadone and that Mother had fallen asleep

multiple times with the Child in her arms, even after hospital staff warned her that

such conduct was dangerous to the Child. The Family Court granted ex parte

custody of the Child to DFS on January 27, 2017.



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      (4)    At the preliminary protective hearing on February 1, 2017, the Family

Court appointed counsel to represent Mother. That morning, Mother identified

Father as the putative father of the Child. Father did not dispute being the Child’s

father and agreed to submit to genetic testing; the court ordered that Father also

would be appointed counsel. The court found there was probable cause to believe

the Child was dependent. The court also found that DFS had exercised reasonable

efforts to prevent the Child’s removal from the home.

      (5)    At an adjudicatory hearing on March 16, 2017, Father was adjudicated

to be the father of the Child as a result of paternity testing. The Family Court found

that the Child was dependent based on Mother’s recent drug use and her DFS history

and because Father had pending criminal charges and resided with Mother. The

Family Court found that DFS had exercised due diligence in trying to find a relative

placement for the Child.

      (6)    On March 31, 2017, the Family Court held a dispositional hearing. DFS

filed a motion seeking to be excused from case planning with Mother because of her

history with DFS, including the involuntary termination of her parental rights in one

of her older children, and her substance abuse history. The court deferred ruling on

the motion in order to allow Mother to submit a formal response. DFS submitted a

proposed case plan for Father, which included such elements as maintaining stable




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employment and suitable housing, ruling out mental health and substance abuse

issues, and resolving his criminal charges.

      (7)    On June 19, 2017, the Family Court held a review hearing. Both

parents were participating in supervised visits with the Child once each week, during

which they were interacting appropriately with the Child. Father was working with

a family interventionist as part of his case plan, had enrolled in a parenting class, and

was employed as a construction worker. His criminal charges remained outstanding.

The Family Court granted DFS’s motion to be excused from case planning with

Mother. The permanency goal for the Child remained reunification. The Family

Court held another review hearing on September 12, 2017, at which time Father’s

criminal charges were still pending.

      (8)    In October 2017, Father pleaded guilty to possession of crack cocaine

and was sentenced to probation. In January 2018, while on probation, Father was

arrested on additional drug charges and incarcerated. As a result, and because the

Child had been in foster care for more than a year, at a permanency hearing on

February 2, 2018, the Child’s attorney moved to change the permanency goal to

termination of parental rights (“TPR”) and adoption. DFS supported the goal

change. Because Father had made significant progress toward reunification before

incurring the new criminal charges, however, the Family Court changed the

permanency goal to concurrent goals of reunification and TPR/adoption. The court



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scheduled a review hearing for April 23, 2018, and ordered that if DFS filed and

served a TPR petition at least twenty days in advance, the court would hear the TPR

petition at that hearing.

      (9)    DFS filed a petition for termination of parental rights on February 22,

2018. In March 2018, Father pleaded guilty to one count of Drug Dealing under 16

Del. C. § 4754. Mother was personally served with the TPR petition on March 27,

2018, and publication for Mother and Father appeared in the newspaper on March

30, April 6, and April 13, 2018.

      (10) Mother and Father appeared with counsel for the TPR hearing on April

23, 2018. At the time, Father was incarcerated and expected to be released no earlier

than October 2018. The court heard testimony from Father, Mother, and two social

workers who were familiar with the family and the Child’s foster family. The court

also admitted documentary evidence including the parents’ criminal histories, a

social report, information from Mother’s Facebook account, and information

relating to Mother’s DFS history. The testimony reflected that Father had made

significant progress on his case plan before he became incarcerated after nearly eight

grams of heroin were found in his home in January 2018. The evidence further

suggested that Father maintained an ongoing relationship with Mother, despite his

knowledge of her DFS history and his claim that they were no longer in a

relationship. Based primarily on Father’s back-to-back drug convictions and his



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incarceration, the Family Court found by clear and convincing evidence that Father

was unable to plan adequately for the Child’s physical, mental, and emotional

needs.2 The Family Court further found by clear and convincing evidence that (i)

the Child had entered DFS’s care as an infant and had been in care for more than six

months;3 (ii) Father was incapable of discharging his parental responsibilities due to

extended or repeated incarceration;4 (iii) because of Father’s incarceration, he was

unable to promptly assume legal and physical custody of the Child and to pay for

the Child’s support;5 and (iv) failure to terminate Father’s relationship with the Child

would result in continued emotional instability or physical risk to the Child because

Child had been in care for sixteen months, Father was not able to care for the Child

because of Father’s incarceration, and the Child had been in the care of a foster

family that was an adoptive resource for more than a year.6 The Family Court next

found that DFS had made reasonable efforts to reunify the family. Finally, the

Family Court considered the best interest factors under 13 Del. C. § 722 and found,

by clear and convincing evidence, that termination of parental rights was in the

Child’s best interests.




2
  13 Del. C. § 1103(a)(5).
3
  Id. § 1103(a)(5)a.1.
4
  Id. § 1103(a)(5)a.3.
5
  Id. § 1103(a)(5)a.4.
6
  Id. § 1103(a)(5)a.5.


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

determinations as well as its inferences and deductions.7 We will not disturb the

Family Court’s rulings if the court’s findings of fact are supported by the record and

result from an orderly and logical deductive process.8 We review legal rulings de

novo.9 If the Family Court correctly applied the law, then our standard of review is

abuse of discretion.10

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

separate inquiries.11 First, the Family Court must determine whether the evidence

presented meets one of the statutory grounds for termination.12 Second, the Family

Court must determine whether termination of parental rights is in the best interests

of the child.13     Both of these requirements must be established by clear and

convincing evidence.14 After careful consideration of the parties’ positions and the

record on appeal, we conclude that there is ample evidence supporting the Family

Court’s termination of Father’s parental rights. There was no error or abuse of

discretion by the Family Court.



7
  Long v. Div. of Family Servs., 41 A.3d 367, 370 (Del. 2012).
8
  In re Heller, 669 A.2d 25, 29 (Del. 1995).
9
  Id.
10
   CASA v. Dep’t of Servs. for Children, Youth and Their Families, 834 A.2d 63, 66 (Del. 2003).
11
   Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
12
   Id. at 537. See 13 Del. C. § 1103(a) (listing the grounds for termination of parental rights).
13
   Shepherd, 752 A.2d at 537. See 13 Del. C. § 722(a) (listing factors for consideration when
determining the best interests of the child).
14
   Powell v. Dep’t of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731 (Del. 2008).


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

Court is AFFIRMED. The motion to withdraw is moot.



                                  BY THE COURT:

                                  /s/ Collins J. Seitz, Jr.
                                         Justice




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