            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    OLIVER LINDEL-PACKER,                        §
                                                 §      No. 481, 2018
          Respondent Below,                      §
          Appellant,                             §      Court Below: Family Court
                                                 §      of the State of Delaware
          v.                                     §      in and for Sussex County
                                                 §
    DIVISION OF FAMILY SERVICES                  §      File Nos. CS18-05-09TS
    and OFFICE OF CHILD                          §                CS18-05-10TS
    ADVOCATE                                     §
                                                 §      Petition Nos. 18-16216
          Petitioners Below,                     §                    18-16225
          Appellees.                             §

                                 Submitted: March 6, 2019
                                 Decided: April 22, 2019

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

                                          ORDER

         On this 22nd day of April 2019, upon consideration of the parties’ briefs and

the record on appeal, it appears that:

         (1)    The appellant, Oliver Lindel-Packer (the father), 1 appeals from a

Family Court Order permanently terminating his parental rights to his biological

daughter, Aria.2 The father makes two claims on appeal. First, he contends that

the Family Court improperly imputed the substance abuse issues of Aria’s mother

(the mother) to him and that this violated his right to due process under the United


1
    A pseudonym was assigned on appeal pursuant to Supr. Ct. R. 7(d).
2
    Her first name is used for privacy purposes.
States and Delaware Constitutions. Second, he contends that the Family Court’s

finding that the Division of Family Services (the “Division”) proved by clear and

convincing evidence that he failed to plan under 13 Del. C. § 1103(a)(5) was clearly

wrong and not sufficiently supported by the record.

      (2)   As to the father’s second argument, having considered this matter on

the briefs filed by the parties, we have determined that the final judgment of the

Family Court is supported by the record and should be affirmed on the basis of and

for the reasons assigned by the Family Court in its opinion dated August 21, 2018.

Accordingly, we will address only the father’s first argument.

      (3)   The pertinent facts are as follows. Aria was born on January 13, 2017.

She entered into the care of the Division on January 18, 2017, because she and the

mother tested positive for opiates and marijuana at the time of birth. At this same

time, the Division took custody of the mother’s other minor child, Michael, who has

an unknown biological father. On January 26, 2017, the mother and the father

(collectively, the parents) attended a preliminary protective hearing.      At this

hearing, they were found indigent and were each appointed counsel. The father

stipulated that probable cause existed to find Aria dependent in his care based on

housing. The mother waived her right to an adjudicatory hearing and stipulated to

a finding of dependency based on housing and her substance abuse. On May 25,

2017, following genetic testing which confirmed that the father is the biological


                                         2
father of Aria, the father agreed that Aria was dependent in his care and waived his

right to an adjudicatory hearing.

      (4)    The initial permanency plan of this proceeding was reunification of the

children with the parents. To this end, the Division created case plans for each

parent to complete.    Pursuant to their case plans, the mother began receiving

substance abuse treatment, and both parents participated in regular visitation with

the children. At a review hearing on May 25, 2017, the court learned that the

parents had obtained housing. Following another review hearing on November 2,

2017 (the “November Review Hearing”), the parents began having unsupervised

visits with the children and had two overnight weekend visits at their home. A

permanency hearing was held on January 25, 2018 (the “January Permanency

Hearing”). At the conclusion of that hearing, although the court explained that it

continued to be in the best interest of the children to remain in the custody of the

Division, the court found compelling reasons to continue to approve reunification as

the permanency plan.

      (5)    In March 2018, however, things turned for the worse. The parents lost

their housing and moved into a motel. At first, they continued to have visits at the

motel, but after March 15, 2018, their family interventionist, Betsy Bradley, had no

success contacting either parent, and neither the mother nor the father attempted to




                                         3
contact Ms. Bradley, the Court Appointed Special Advocate (the “Special

Advocate”), the Division, or their attorneys.

         (6)    The parents then failed to appear at their permanency review hearing

on April 19, 2018 (the “April Permanency Review Hearing”). At this hearing, the

parents’ loss of their housing, absence of contact with their attorneys and case

workers, and failure to visit with their children since March 15 were all brought to

the court’s attention. Because of this regression in progress, the Division moved to

change the permanency plan to termination of parental rights based on a failure to

plan under 13 Del. C. § 1103(a)(5).            In response, the parents’ attorneys each

informed the court that they had not heard from their clients since the January

Permanency Hearing and, as a result, could not take a position on behalf of their

clients.

         (7)    At the close of the hearing, the court changed the permanency plan from

reunification to termination of parental rights. The court agreed “that something

significant has happened since January” and “that it doesn’t appear that Mom and

Dad are close to reunification,” explaining “they’re further away from reunification

than they were in January.”3 The court then noted the following reasons for its

decision: (1) the mother’s failure to comply with her substance abuse treatment, by

continuing to use marijuana, and her failure to complete mental health treatment; (2)


3
    App. to Appellant’s Opening Br. at A174.

                                               4
the insufficient evidence of the parents’ consistent employment; (3) the absence of

visits with the children since March and their failure to attend the children’s medical

appointments; (4) the parents’ lack of housing and their failure to use the resources

offered by the Division to obtain suitable housing; and (5) the parents’ failure to

attend the hearing and ask for more time on their reunification plans. A final

hearing was ultimately scheduled for July 26, 2018 (the “Termination Hearing”).

         (8)    The parents appeared at the Termination Hearing represented by their

court-appointed attorneys. Several witnesses testified at the hearing and were

subject to examination by the parents’ attorneys. The mother and the father each

testified as well. Following the Termination Hearing, on August 21, 2018, the

Family Court issued an Order that terminated the parents’ parental rights. The court

found that the Division established by clear and convincing evidence that the parents

“failed to plan adequately for the children’s physical needs or mental and emotional

health and development” under 13 Del. C. § 1103.4

         (9)    The court’s finding of a failure to plan is supported by the record, and

we affirm that ruling for the reasons assigned by it. As to the father’s first argument,

we have concluded that his right to due process was not violated by the Family

Court’s using the mother’s substance abuse issue as a reason to find that it continued




4
    Appellant’s Opening Br. Ex. A, at 6.

                                            5
to be in the children’s best interest to remain in foster care following both the

November Review Hearing and the January Permanency Hearing.

       (10) When reviewing a decision of the Family Court to terminate parental

rights, this Court conducts a “review of the facts and law, as well as the inferences

and deductions made by the trial court.”5 “We will not disturb a trial judge’s factual

findings unless they are clearly erroneous and justice requires that they be

overturned.” 6 “Moreover, this Court will not substitute its own opinion for the

inferences and deductions made by the Trial Judge where those inferences are

supported by the record and are the product of an orderly and logical deductive

process.”7 Our review is limited to an abuse of discretion when the trial judge has

correctly applied the appropriate law. 8 “To the extent that the issues on appeal

implicate rulings of law, we conduct a de novo review.”9

       (11) Although the father and the mother presented themselves to the Family

Court as a single-family unit throughout the proceedings and together sought

reunification with the children, the father now argues that the court improperly

imputed the mother’s issues of parental unfitness (her continued substance abuse) to




5
  Powell v. Dep’t. of Servs. for Children, Youth and their Families, 963 A.2d 724, 730 (Del. 2008).
6
  Arthur-Lawrence v. Div. of Family Servs., 884 A.2d 511, 2005 WL 2397523, at *5 (Del. Sept.
27, 2005) (Table).
7
  Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983).
8
  Powell, 963 A.2d at 731.
9
  Id. at 730-31.

                                                6
him and thus violated his constitutional right to due process. His argument pertains

only to the hearings and rulings occurring before March 2018—in particular, the

November Review Hearing and the January Permanency Hearing and their

respective rulings. He argues that by the time of those hearings he had substantially

complied with all elements of his case plan. The only issue left to resolve for the

purpose of reunification at that time was the mother’s continued marijuana use.

Accordingly, he makes two related arguments: (1) that imputing the mother’s issues

to him violated his right to procedural due process and (2) that his right to substantive

due process was violated because, by the time of the November Review Hearing, the

Division no longer had a compelling interest in keeping Aria out of his custody.

       (12) The father’s right to procedural due process was not violated. Citing

the three Mathews v. Eldridge factors, 10 he essentially argues that it was

procedurally improper for the court to impute to him the mother’s issues of parental

fitness in determining whether to continue to deprive him of custody of Aria. He

fails, however, to point to any procedural defect in the process. This is because he

was afforded adequate process. He was appointed counsel, who represented him



10
   424 U.S. 319, 334-35 (1976) (“[O]ur prior decisions indicate that identification of the specific
dictates of due process generally requires consideration of three distinct factors: First, the private
interest that will be affected by the official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute procedural requirement would
entail.”).

                                                  7
from the first preliminary hearing through the Termination Hearing (and, now,

through this appeal). With the aid of counsel, he was able to present evidence,

cross-examine witnesses, and testify throughout the proceedings. These procedures

afforded him an opportunity to regain custody of Aria and thus prevented any

violation of his right to procedural due process.11 Because he has not identified any

procedural defect, his argument is really an attack on the substantive basis (the

mother’s continued substance abuse) for the court’s decisions to have Aria remain

in foster care and, therefore, is properly considered as an argument that his right to

substantive due process was violated.

       (13) The Family Court, however, did not violate the father’s right to

substantive due process either.         The “Due Process Clause of the Fourteenth

Amendment protects the fundamental right of parents to make decisions concerning

the care, custody, and control of their children.”12 “The State, therefore, may not

authorize the termination of the legal and social relationship between a parent and a

minor child absent a showing of a compelling state interest.” 13 This Court has

found that the State has a compelling interest in protecting a child “from




11
   Cf. Watson v. Div. of Family Servs., 813 A.2d 1101, 1111-12 (Del. 2002) (en banc) (finding a
procedural due process violation where an indigent parent was not appointed counsel until six
months into the termination proceeding).
12
   Troxel v. Granville, 530 U.S. 57, 66 (2000).
13
   In re Hanks, 553 A.2d 1171, 1177 (Del. 1989).

                                              8
circumstances which directly threaten or affect the minor’s physical or emotional

health.”14

         (14) The father claims that the Family Court violated his fundamental right

to custody of Aria because, by the time of the November Review Hearing, the

Division no longer had a compelling interest in keeping her out of his custody, thus

resulting in an erroneous deprivation of his fundamental right. He argues that the

Division did not have a compelling interest in depriving him of custody because the

primary reason, in his view, for depriving him of custody was the mother’s parental

unfitness—namely, her continued substance abuse.                    Apart from imputing the

mother’s parental issues to him, he argues, there were no other facts showing that he

was unfit to parent Aria. Based upon his completion of the substance abuse rule out

and mental health treatment, as required by his case plan, he now objects to the

court’s rulings that it continued to be in the best interest of the children to remain in

foster care following both the November Review Hearing and the January

Permanency Hearing.

         (15) The father’s substantive due process right was not violated because the

record shows that the Division had a compelling interest in depriving him of custody

of Aria—to protect her from circumstances, caused by the mother’s substance abuse,

that directly threatened her physical and emotional health. Although the primary


14
     Daber v. Div. of Child Protective Servs., 470 A.2d 723, 726 (Del. 1983).

                                                  9
barrier to the parents regaining custody of the children as of the November Review

Hearing and the January Permanency Hearing was the mother’s continued substance

abuse, the court did not err in finding that it continued to be in the children’s best

interest for them to remain in foster care (as opposed to the father regaining custody

of Aria). This is because the father continued to live in the same house as the

mother, who he knew had a substance abuse problem she needed to correct to

complete her plan, and returning Aria to the father would in effect give custody to

the mother as well. Moreover, the father never requested, personally or through his

attorney, that he be given custody of Aria at either of these hearings. Ultimately,

the Family Court could not grant him custody of Aria until the court could make a

finding that the mother’s issues with substance abuse were resolved or that the father

no longer lived with the mother. 15 Because it could not make either of those

findings following these hearings, the court did not err in keeping the children in

foster care. And because of the drastic change of events in March 2018 that led to

the termination of the parents’ parental rights, the father’s argument that he should

have regained custody of Aria after either of these hearings is effectively moot.




15
   The psychologist who evaluated the mother had previously testified that the children would be
at risk in the father’s care because he was living with the mother, who was still struggling with
substance abuse. App. to Appellant’s Opening Br. at A69-70. Specifically, the psychologist
said, “if that [the mother’s substance abuse] continues, obviously the children could not be returned
to them, if they’re in the same household and she is still struggling.” Id.

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

Court is AFFIRMED.

                                 BY THE COURT:

                                 /s/ James T. Vaughn, Jr.
                                 Justice




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