            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    MARY KENNEDY,1                              §
                                                §   No. 45, 2019
          Respondent Below,                     §
          Appellant,                            §   Court Below—Family Court
                                                §   of the State of Delaware
          v.                                    §
                                                §   File No. CN17-04312
    DIVISION OF FAMILY                          §   Petition No. 18-37497
    SERVICES,                                   §
                                                §
          Petitioner Below,                     §
          Appellee.                             §


                               Submitted: August 14, 2019
                               Decided: October 11, 2019

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                       ORDER

         After consideration of the brief and motion to withdraw filed by the

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

the Family Court record, it appears to the Court that:

         (1)     The respondent-appellant (“Mother”) filed this appeal from the Family

Court’s order dated January 7, 2019, following a preliminary protective hearing, in

which the court found probable cause to believe that Mother’s then three-year-old

son (the “Child”) would be dependent, neglected, or abused in her care and ordered



1
    The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d).
that the Child’s Father would have custody of the Child until the resolution of a

private custody dispute that was pending before another Family Court judge.

         (2)     In 2017, Mother filed a petition for custody of the Child. In October

2018, the Family Court appointed an attorney (the “Child’s Attorney”) to represent

the Child’s best interests in that case. In December 2018, the Child’s Attorney filed

a petition for an order of protection from abuse (“PFA”) on behalf of the Child,

alleging that Mother or her boyfriend were abusing the Child. The Family Court

commissioner who presided over the ex parte PFA hearing2 determined that the

Child’s Attorney did not have standing to file a PFA petition on the Child’s behalf.

But the commissioner found the allegations in the PFA petition to be very

concerning and, on a sua sponte basis, granted custody of the Child to the Division

of Family Services (“DFS”). On December 26, 2018, DFS filed a petition for

emergency custody, which the Family Court granted in an ex parte order.

         (3)     The Family Court held a preliminary protective hearing on January 2,

2019.3 Mother and Father were present and requested the appointment of counsel.

The court determined that Mother was indigent and appointed counsel for her.

Because Father worked two jobs and was not able to provide the court with

information concerning his income from one of them, the court declined to appoint



2
    See 10 Del. C. § 1043 (governing the process for ex parte and emergency hearings in PFA cases).
3
    DEL. FAM. CT. CIV. R. 214(a).


                                                  2
counsel for Father at that time, but stated that if the case proceeded to an adjudicatory

hearing, Father would have an opportunity to seek appointment of counsel before

that hearing.

      (4)       The evidence presented at the hearing, which included testimony from

Mother, Father, and a DFS worker, reflected that, on at least four days over a period

of several months, the Child arrived at day care with bruises on his face. Mother,

her boyfriend, and the Child provided inconsistent or shifting explanations for the

injuries. Moreover, two day care providers and one medical professional had

expressed concerns to DFS regarding physical injuries that appeared on Mother’s

children when they were in her care. Mother had removed the Child from two day

care providers within a short period of time; both moves occurred shortly after the

provider had contact with DFS. In addition, Mother had a history with DFS dating

to 2007, involving all five of her children. Mother’s parental rights with respect to

two of her children had been terminated, one involuntarily, and two of her other

children were in guardianships. Mother also had a history of mental health issues,

and she provided inconsistent testimony regarding the status of her treatment.

      (5)       Father had no history of involvement with DFS. Father resided in a

home with his girlfriend and their infant; he also had frequent visitation with his

five-year-old son. The DFS worker assigned to the case assessed the home and had

no concerns. A hair follicle screening performed on Father in March 2018 indicated



                                           3
that he had consumed substantial amounts of alcohol, but Brandywine Counseling

had evaluated him in April 2018 and determined that he did not need substance abuse

services. Mother had alleged that Father engaged in abusive behavior toward her

and the Child. In support of her allegations, she presented Facebook posts and text

messages that purported to have been created by Father, but Father’s testimony and

the circumstances surrounding the texts and posts suggested that Mother, rather than

Father, had created the messages. The evidence presented at the hearing—including

Mother’s history of making false reports to law enforcement, for which she had

previously served a year in prison in one instance—also raised significant questions

about Mother’s credibility more generally. Father had no criminal convictions, and

certain charges brought against him as a result of allegations by Mother had been

dismissed by the prosecutor based on Mother’s lack of credibility.

       (6)     At the conclusion of the preliminary protective hearing, the court

determined that there was probable cause to believe that the Child would be

dependent, neglected, or abused in Mother’s care.4 The court determined that there

was not probable cause to believe that the Child would be dependent, neglected, or

abused in Father’s care and therefore rescinded custody of the Child from DFS to




4
  See id. (providing that at a preliminary protective hearing, the Family Court must decide “whether
the evidence establishes that probable cause exists to believe” that “[a]s to each parent, the child
is dependent, neglected, or abused or there is a substantial imminent risk thereof,” and “[i]t is in
the best interests of the child to be in the custody” of DFS).


                                                 4
Father. Because that decision ended DFS’s involvement in the matter, the court held

that any further custody determination would be made in the custody case that was

pending before another Family Court judge.

         (7)     Mother’s appointed counsel filed a notice of appeal from the Family

Court’s order. She also filed a motion to withdraw, in which she stated her belief

that the appeal is without merit. This Court denied the motion to withdraw without

prejudice and, although this case did not end with a termination of parental rights,

directed Mother’s counsel to proceed in accordance with Rule 26.1. Mother’s

counsel has filed a brief and a motion to withdraw under Supreme Court Rule

26.1(c), in which she asserts that, based upon a conscientious review of the record

and the law, the appeal is without merit. Counsel informed Mother of the provisions

of Rule 26.1 and provided her with a copy of the motion to withdraw and a draft of

the Rule 26.1 brief. Counsel also informed Mother of her right to supplement

counsel’s presentation. Mother provided the points that she wanted to present for

the Court’s consideration, which counsel included in the brief that she filed with the

Court. DFS has responded to the Rule 26.1(c) brief and argues that the Family

Court’s judgment should be affirmed.

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

determinations as well as its inferences and deductions.5 We will not disturb the


5
    Long v. Div. of Family Servs., 41 A.3d 367, 370 (Del. 2012).


                                                 5
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.6 We review legal rulings de

novo.7 If the Family Court correctly applied the law, then our standard of review is

abuse of discretion.8

       (9)    Within ten days of the entry of an ex parte order under 10 Del. C. §

2512(a),9 the Family Court must hold a preliminary protective hearing.10 At that

hearing, the court must determine whether there is probable cause to believe that:

              (1) As to each parent, the child is dependent, neglected, or
                  abused, or there is a substantial imminent risk thereof, and
              (2) It is in the best interests of the child to be in the custody of
                  [DFS].11

If the court finds that such probable cause exists, DFS will have custody of the child

pending further proceedings.12 If the court finds that such probable cause has been

established “with respect to only one parent, the Court may rescind custody to the


6
  In re Heller, 669 A.2d 25, 29 (Del. 1995).
7
  Id.
8
  CASA v. Dep’t of Servs. for Children, Youth and Their Families, 834 A.2d 63, 66 (Del. 2003).
9
  Section 2512(a) provides that the Family Court may issue an ex parte order awarding emergency
custody to DFS if it finds that:
                (1) Continuation in the home is contrary to the welfare of the child; and
                (2) Probable cause exists to believe that:
                    (a) A child continues to be in actual physical, mental or emotional
                        danger or there is a substantial imminent risk thereof or;
                    (b) Immediate or irreparable harm may result to the child if such an
                        order is not issued.
13 Del. C. § 2512(a)
10
   DEL. FAM. CT. CIV. R. 214(a).
11
   Id. R. 214(b).
12
   Id. R. 214(c).


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fit parent in a custodial arrangement and in a time and manner as determined by the

Court to be in the best interests of the child.”13 Moreover, the “finding of probable

cause may be based in whole or in part on hearsay evidence.”14

          (10) The points Mother raises on appeal may be summarized as follows: (i)

the witnesses and attorneys were not credible, lied, and presented false and irrelevant

information at the hearing, and they attacked Mother’s credibility; (ii) the court and

the attorneys mishandled the hearing; (iii) the court overlooked certain evidence,

including evidence of Father’s alcohol use, a video of Father dancing with a gun,

and a prior termination of parental rights; (iv) the court should have ignored certain

evidence regarding one of Mother’s other children and should have considered other

evidence regarding that child; (v) the Child’s Attorney lacked standing to file the

PFA petition; and (vi) the Child’s Attorney never tried to work with Mother.

          (11) After careful consideration of Mother’s arguments and the record on

appeal, we conclude that the judgment of the Family Court should be affirmed. We

find no error in the Family Court’s application of the law to the facts. The matter

came before the Family Court in the posture of a preliminary hearing. The court

considered the evidence presented at the hearing and found probable cause that the

Child would be dependent, neglected, or abused in Mother’s care. That was not a



13
     Id. R. 214(e).
14
     Id. R. 214(f).


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final adjudication of the Child’s dependency; rather, it would have been subjected

to further examination and factual development—and a more exacting legal

standard15—had the Family Court also found probable cause that the Child would

be dependent, neglected, or abused in Father’s care. But because the court did not

make that finding with respect to Father, DFS’s petition was dismissed and the

matter was closed, with further proceedings to occur in the pending custody matter

to determine the custodial arrangement for the parents and the Child going forward.

       (12) At a preliminary protective hearing, the court must weigh all the

evidence presented, including the hearsay presented by DFS and the parents,

consider the totality of the circumstances, and determine whether DFS has met its

burden to prove probable cause.16 When the determination of facts turns on a

question of the credibility of the witnesses appearing before the trial court, we will

not substitute our opinion for that of the trier of fact.17 The court in this case was

free to credit Father’s testimony regarding issues such as the Facebook posts and

text messages and the video of Father dancing with a gun, and to give more weight




15
   See Dep’t of Servs. for Children, Youth & Their Families v. Fowler, 122 A.3d 778, 783 n.23
(Del. 2015) (noting that probable cause “is an elusive concept which avoids precise definition,”
which generally “lies somewhere between suspicion and sufficient evidence to convict,” and
“exists when the facts and circumstances [are] sufficient in themselves to warrant a man of
reasonable caution in the belief” (internal quotations omitted)).
16
   Id. at 783.
17
   Shimel v. Shimel, 2019 WL 2142066, at *2 (Del. May 14, 2019).


                                               8
to Father’s and others’ testimony than to Mother’s regarding disputed facts.18 The

court also did not abuse its discretion by considering Mother’s history involving

other children.19

       (13) We need not decide whether the Child’s Attorney had standing to file a

PFA petition on the Child’s behalf because the Family Court commissioner

dismissed the PFA petition. Mother’s argument that the Child’s Attorney did not try

to work with Mother does not provide a basis for reversal because the attorney was

appointed to represent the child’s best interests, not to engage in any particular

activities that Mother might have wished.20

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

Court is AFFIRMED. The motion to withdraw is moot.

                                              BY THE COURT:


                                              /s/ James T. Vaughn, Jr.
                                              Justice




18
   Fowler, 122 A.3d at 783.
19
   See 10 Del. C. § 901(8), (18) (providing that when making a finding of neglect or dependency,
“consideration may be given to dependency, neglect, or abuse history of any party”).
20
   See generally 13 Del. C. § 721(c) (providing that, in a custody proceeding, the Family Court
“may, in the interest of the child, appoint an attorney to represent the child in the proceedings”);
DEL. FAM. CT. CIV. R. 207(a) (providing that in a dependency, neglect, or abuse proceeding, the
Family Court “shall appoint an attorney authorized to practice law in this state or a Court
Appointed Special Advocate (‘CASA’) to represent the best interests of the child.”).


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