            IN THE SUPREME COURT OF THE STATE OF DELAWARE

MATTHEW J. JACKSON, SR.,     §
                             §                      No. 302, 2017
     Respondent Below,       §
     Appellant,              §                      Court Below—Family Court
                             §                      of the State of Delaware
     v.                      §
                             §                      File No.     17-01-1TK
DIVISION OF FAMILY SERVICES, §                      Petition No. 17-00543
                             §
     Petitioner Below,       §
     Appellee.               §

                               Submitted: February 14, 2018
                               Decided:   March 29, 2018

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

                                          ORDER

         This 29th day of March 2018, upon consideration of the parties’ briefs and the

    record on appeal, it appears that:

         (1)    Matthew Jackson1 has appealed the Family Court’s June 28, 2017 Order

terminating his parental rights over his minor child. On appeal, Jackson claims that

no statutory basis for termination exists,2 and that termination is not in the child’s

best interests. For the reasons set forth below, we affirm.

         (2)    On November 19, 2015, Jackson returned home from work to find his

    three-month-old child soaking wet with urine, and the child’s mother (“Mother”)


1
    A pseudonym was assigned on appeal pursuant to Supr. Ct. R. 7(d).
2
    See generally 13 Del. C. § 1103(a).
    “drunk and passed out.”3 Jackson woke up Mother, and an argument ensued. After

    law enforcement arrived, Mother was arrested for a crime of domestic violence

    against Jackson, and the Division of Family Services (“DFS”) took emergency

    custody of the child.

         (3)    On November 30, 2015, the Family Court determined that probable

    cause existed for the child to remain in DFS custody. DFS eventually arranged for

    foster care, to which the child readily adapted. As a result, DFS filed a Motion to

    be Excused from Case Planning, seeking to forgo reunification services under 13

    Del. C. § 1103(d). The Family Court granted DFS’s motion on June 14, 2016.

         (4)    On May 16, 2017, DFS filed a Petition for Termination of Parental

    Rights against both Jackson and Mother. The Family Court held a hearing on May

    16, 2017. Mother did not appear. After hearing testimony from Jackson and several

    family-services employees, and after reviewing social reports, prior Involuntary

    Termination of Parental Rights Orders against Jackson and Mother, and certified

    criminal histories, the Family Court granted DFS’s termination-of-parental-rights

    petition as to both Jackson and Mother.

         (5)    This Court’s review of a Family Court decision includes both the facts

    and the law.4 We review conclusions of law de novo.5 Factual findings will not be


3
  App. to Office of the Child Advocate’s Ans. Br. at C8.
4
  Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).
5
  Id.


                                                   2
    disturbed unless clearly erroneous and unsupported by the record.6 If the Family

    Court correctly applied the pertinent law, we review for an abuse of discretion.7

            (6)   In reviewing a termination-of-parental-rights petition, the Family Court

    must employ a two-step analysis.8 First, there must be clear and convincing proof

    that a statutory basis for termination as set forth in 13 Del. C. § 1103(a) exists.

    Second, there must be a determination—again, by clear and convincing evidence—

    that termination is in the best interest of the child.9

            (7)   In this case, the Family Court found three statutory bases for

    termination: (i) failure to adequately plan;10 (ii) a felony offense against a child;11

    and (iii) previous involuntary termination of parental rights.12 Jackson challenges

    each.

            (8)   The Family Court concluded that DFS proved by clear and convincing

evidence the statutory ground for termination set forth in 13 Del C. § 1103(a)(5)—

failure to plan for the child’s physical needs or the mental and emotional health and

development of the child. Jackson claims that this failure-to-plan finding was clearly

erroneous pointing to evidence that he had made plans for reunification, identified



6
  Id.
7
  Parson v. Parson, 2002 WL 442399, at *1, 793 A.2d 310 (Del. 2002) (Table).
8
  Shepherd v. Clemens, 752 A.2d 533, 536–37 (Del. 2000).
9
  Powell v. Dep’t of Servs. for Children, Youth & Their Families, 963 A.2d 724, 731 (Del. 2008).
10
   13 Del. C. § 1103(a)(4)(a).
11
   13 Del. C. § 1103(a)(5).
12
   13 Del. C. § 1103(a)(6).


                                                   3
daycare facilities close to his home, requested that DFS reconsider their decision not

to plan for reunification, and owned a business that provided sufficient financial

security to allow him to care for the child.

          (9)    How the Family Court reached its conclusion that Jackson had failed to

plan for the child’s needs, health, and development is unclear. As even DFS notes,

“the Family Court does not discuss its reasoning at length for this statutory

ground.”13 It appears as though the court determined that the combination of (i) the

rebuttable presumption that sex offenders shall not be awarded child custody under

13 Del. C. §724A and (ii) the court’s June 14, 2006 order excusing DFS under 13

Del. C. § 1103(d) from its obligation to provide reunification and related services,

effectively precluded Jackson from planning for the child. But nothing in the

termination-of-parental rights statute or the cases construing it supports such a

conclusion in the absence of other clear and convincing evidence. To be sure, an

unrebutted presumption under 13 Del. C. § 724A may be an insurmountable obstacle

to an award of custody and an independent ground for termination of parental rights,

and the absence of DFS’s services might make planning more difficult. But they are

not, without more, sufficient to establish a separate statutory basis —under the guise

of failure to plan—for the termination of parental rights. To the extent the Family

Court’s finding of a failure to plan was based solely on the §724A presumption and


13
     Appellee Division of Family Services Answering Br. 21.


                                                    4
the June14, 2006 order without regard to other evidence, it is erroneous as a matter

of law. Otherwise, as a finding of fact, it is not supported by clear and convincing

evidence.

         (10) Nevertheless, the Family Court correctly concluded that other statutory

grounds for termination exist: First, the court found that, Jackson’s 1979 Unlawful

Sexual Intercourse conviction was a basis for termination under 13 Del. C. §

1103(a)(4)a. of Title 11. Jackson acknowledges this conviction, but argues that he

“does not believe that such conviction, from when he was technically still a minor,

was meant to be applied to terminate his parental rights nearly forty years later.”14

From the record, however, it appears that Jackson was convicted of this offense as

an adult.15 And, in any event, 13 Del. C. §1103(a)(4)a. draws no distinction between

convictions based on crimes committed as a minor and those committed as an adult,

nor does it contain a staleness exception. The record supports the Family Court’s

determination that this conviction provides a basis for termination of parental rights

under § 1103(a)(4)a.

         (11) The Family Court, relying upon prior Family Court orders, also found

that DFS had established the statutory ground for termination set forth in 13 Del C.

§ 1103(a)(6), more particularly, that “[t]he respondent's parental rights over a sibling



14
     Appellant’s Opening Br. at 12.
15
     App. to Appellant Division of Family Services Answering Br. at B170.


                                                    5
of the child who is the subject of the petition have been involuntarily terminated in

a prior proceeding.” Jackson disagrees, claiming that because the Family Court’s

previous Termination of Parental Rights Orders improperly relied on Jackson’s 1979

conviction to satisfy the prior-felony-conviction statutory ground, DFS cannot rely

on the Family Court’s previous Involuntary Termination of Parental Rights Orders

to satisfy the prior-involuntary-termination statutory ground.16           Because, as

discussed above, the predicate of Jackson’s argument lacks merit, so too does its

conclusion.

          (12) Although two statutory bases for termination exist, DFS was also

required to prove “by clear and convincing evidence that termination of parental

rights is essential to the child’s welfare.”17 In making that determination, the Family

Court must consider all relevant factors including: (i) the wishes of the child’s

parents; (ii) the wishes of the child; (iii) the child’s interaction with his parents and

others who may affect his best interests; (iv) the child’s adjustment to his home,

school, and community; (v) the mental and physical health of all individuals

involved; (vi) whether the parents have complied with their rights and




16
     13 Del. C. § 1103(a)(6).
17
     In re Burns, 519 A.2d 638, 643 (Del. 1986).


                                                   6
responsibilities to their child; (vii) evidence of domestic violence; and (viii) the

parents’ criminal history.18

       (13) The Family Court carefully reviewed the § 722 factors and found that

(ii) (child’s wishes), (iii) (interaction with parents and others), (iv) (adjustment to

home, school, etc.), (vii) (domestic violence), and (viii) (criminal history) weighed

in favor of termination, and factors (i) (parents’ wishes), (v) (mental/physical

health), and (vi) (parents’ compliance) weighed against. Jackson focuses his appeal

on factors (vii) (domestic violence) and (viii) (criminal history).

       (14) Jackson argues that the Family Court erred in finding that the domestic-

violence factor weighed in favor of termination, noting that the Family Court failed

to cite any evidence that Jackson perpetrated domestic violence. A review of the

record undermines Jackson’s claims. In a previous termination, Jackson stated that

“domestic violence, including frequent arguing and acts of physical violence, played

a large part in the dissolution of [his] second marriage.”19 Moreover, Jackson’s

relationship with Mother was fraught with “frequent verbal arguments [escalating]

into physical altercations,”20 such as ‘[busting her lip] with his hand, grabb[ing] her




18
   13 Del. C. § 722(a) (listing relevant factors to be considered when determining “the legal
custody and residential arrangements for a child in accordance with the best interests of the
child.”).
19
   See App. to Div. of Family Servs. Ans. Br. at B153.
20
   Id. at B153-B154.


                                                    7
face, chok[ing] her, and threaten[ing] to kill her.”21 As such, the record supports the

Family Court’s domestic-violence determination.

           (15) Finally, Jackson argues that his criminal history should not weigh in

favor of termination. As Jackson has been arrested over nine times and has at least

four convictions, we are satisfied that the Family Court did not abuse its discretion

in its consideration of this factor in conducting its best-interest analysis.

           (16) In sum, despite our disagreement with the Family Court’s failure-to-

plan finding, we find that the Family Court’s findings that there is a statutory basis

for the termination of Jackson’s parental rights and that the termination is in the best

interest of the child are supported by clear and convincing evidence. Therefore, the

Family Court did not err in concluding that Jackson’s parental rights should be

terminated.

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

Court is AFFIRMED.

                                         BY THE COURT:


                                         /s/ Gary F. Traynor
                                         Justice




21
     Id.


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