IN TI-IE SUPREME COURT OF TI-[E STATE GF DELAWARE

RONALD SAl\/[PSON,l §
§ No.175, 2017
Respondent BeloW, §
Appellant, § Court BeloW_F amin Court
§ of the State of Delaware
v. §

§ File NO. cN16-03366
DEPARTMENT oF sERVICEs FoR § Pemion No. 16-15091
CHILDREN YoUTH AND THEIR
FAMILIES (DchF),

Petitioner BeloW,

§
§
§
§
Appellee. §

Submitted: August 25, 2017
Decided: October 25, 2017
Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
O R D E R
This 25th day of October 2017, upon consideration of the parties’ briefs and
the record below, it appears to the Court that:
(1) The appellant, Ronald Sampson (“the Father”), filed this appeal from a
March 21, 2017 F amin Court order accepting the Commissioner’s order granting
the Department of Services for Children Youth and Their Families’ (“DSCYF”)

petition for substantiation of the Father for abuse on the Child Protection Registry at

 

1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).

Child Protection Level IV.2 We find no error or abuse of discretion in the Family
Court’s decision. Accordingly, We affirm the Family Court’s judgment

(2) On May 23, 2016, DSCYF filed a petition for substantiation against the
Father based on his alleged sexual abuse of his then seven-year old daughter Who
has DoWn Syndrome (“the Daughter”). DSCYF attached a Notice of Intent to
Substantiate for Abuse or Neglect and Enter on Child Protection Registry, an
Amended Notice, and the Father’s request for a hearing in the Family Court. The
substantiation hearing Was scheduled for November 22, 2016.

(3) On November 15, 2016, the Father filed a motion for appointment of
counsel. At the beginning of the November 22, 2016 substantiation hearing, the
Family Court Commissioner denied the Father’s motion for appointment of counsel.
The Commissioner then heard testimony from the Daughter’s school nurse, the
Daughter’s teacher, a Children’s Choice social Worker, a Division of Family
Services supervisor, and the mother of the Daughter (“the Mother”). Before the
hearing, the Commissioner reviewed Child Advocacy Center (“CAC”) interviews
With the Daughter and her brother.

(4) In an order dated November 29, 2016, the Commissioner found by a

preponderance of the evidence that the Father had sexually abused the Daughter in

 

2 Dep ’t of Servs. for Children, Youth and T heir Families (DSCYF/DFS) v. R.S., 2017 WL
2418276 (Del. Fam. Ct. Mar. 21, 2017).

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2015 and 2016 and placed him on Level IV of the Children Protection Registry. In
an order dated December 2, 2016, the Commissioner clarified her denial of the
Father’s motion for appointment of counsel. On December 29, 2016, the Father
sought review of the Commissioner’s decision.

(5) In an order dated March 21, 2017, the F amin Court found the
Commissioner did not err in denying the Father’ s motion for appointment of counsel,
substantiating the Father for sexual abuse, and placing the Father on Level IV of the
Child Protection Registry. The Family Court accepted the Commissioner’s
November 29, 2016 order. This appeal followed.

(6) This Court’s review of a Family Court decision includes a review of
both the law and the facts.3 Conclusions of law are reviewed de novo.4 Factual
findings Will not be disturbed on appeal unless they are clearly erroneous.5 When
the determination of facts turns upon the credibility of witnesses who testified before
the trier of fact, this Court will not substitute its opinion for that of the trier of fact.6
On appeal, the Father’s arguments may be summarized as follows: (i) the Family
Court erred in denying his motion for appointment of counsel; and (ii) there was

insufficient evidence to support his substantiation for sexual abuse of the Daughter.

 

3 Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).

4 Id.

5 Id.

6 Wife (JF. V.) v. Husband (0. W. V., Jr.), 402 A.2d 1202, 1204 (Dei. 1979).

(7) The Father argues the Family Court’s denial of his motion for
appointment of counsel deprived him of procedural due process. “The right to have
counsel appointed at State expense in any proceeding is determined by the due
process requirements in the United States Constitution and the Delaware
Constitution.”7 Under the United States Constitution, due process “is not a fixed
concept but implicitly means ‘fundamental fairness’ in the context of specific
circumstances.”8 The Delaware Constitution “explicitly guarantee[s] fundamental
fairness in the administration of justice for the citizens of Delaware, with regard to
the specific context, in all causes of action.”9

(8) In deciding what due process requires, both the United States Supreme
Court and this Court evaluate the factors set forth in Mathews v. Eldrz'dge.‘° These
factors are: (i) the private interests at stake; (ii) the government’s interest; and (iii)
the risk the procedures used will result in erroneous decisions.ll In the context of
tei“rnination-of-parental-right proceedings, the United States Supreme Court has held
the Due Process Clause does not require the appointment of counsel for indigent

parents in every proceeding12 Delaware courts follow a case-by-case approach to

 

7 Watson v. Dz'v. of Family Servs., 813 A.2d 1101, 1106 (Del. 2002) (citing U.S. Const. amend.
XIV, § 1 and Del. Const. art. I, § 9).

8 Id. (citing Lassiter v. Dep ’t Soc. Servs., 452 U.S. 18, 31 (1981)).

9 Wazson, 813 A.2diioi,1108.

10 Eldridge, 414 U.s. 319, 335 (1976); Warson, 813 A.2d at 1108.

ll Eldridge, 414 U.S. at 335.

12 Lassz'ter, 452 U.S. at 32-33.

the appointment of counsel in termination, as well as dependency/neglect
proceedings, but routinely appoint counsel to represent indigent parents in such
proceedings13

(9) The Father argues that parents have a strong private interest in having
custody of their children and that the risk of an erroneous deprivation of that right
outweighs the government’s interest in summary adjudication As the
Commissioner and Family Court recognized, however, this was a substantiation
proceeding, not a dependency/neglect or termination-of-parental-rights proceeding
The potential consequences of a substantiation hearing_-placement on the Child
Protection Registry_are significantly different than the potential consequences of a
termination of parental rights hearing. “The primary purpose of the Child Protection
Registry is to protect children and to ensure the safety of children in child care, health
care and public education facilities.”14 Placement on Level IV of the Child
Protection Registry makes a person ineligible for employment with places like the
Division of Services for Children, Youth and Their Families, public schools,
daycares, and healthcare facilities.15

(10) According to the Father, his Level IV placement will not have any

bearing on his employment or ability to find work, but could guarantee termination

 

13 Warson, 813 A.2d at 1108
1416 Del. C. § 921.
15 16 Del. C. § 923(b)(4).

of his parental rights and preclude his visitation with the Daughter under 13 Del. C.
§ 726A. The Family Court acknowledged that DSCYF had filed a petition for
termination of the Father’s parental rights and that the Family Court had appointed
counsel for the Father in those proceedings and the related dependency/neglect
proceedings The Family Court noted, however, that there is no right to appointment
of counsel in many civil proceedings, including protection-from-abuse and child-
custody hearings The Family Court concluded that the substantiation and
terrnination-of`-parental-rights proceedings were not so closely related as to require
the appointment of counsel for the Father in the substantiation proceedings The
Family Court stated that it might consider the Father’s placement on the Child
Protection Registry in the termination-of-parental~rights proceedings, but the Father
would have counsel in those proceedings and the Family Court would “consider
independently of the Commissioner the same evidence in determining whether
Father sexually abused the Child and if so, whether that abuse should properly lead
to the termination of parental rights.”16

(11) Contrary to the Father’s contentions, the substantiation finding did not
guarantee termination of his parental rights Termination of parental rights is subject

to a higher burden of proof_clear and convincing evidence_than a substantiation

 

16 R.S., 2017 WL 2418276, at *4. The Family Court subsequently terminated the parental rights
of both parents That ruling is currently on appeal in No. 339, 2017.

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proceeding_preponderance of the evidence.17 As to visitation under § 726A, which
the Father did not raise in the Family Court, Section 726A prohibits all visitation
and contact between a parent and child if the parent is found to have sexually abused
the child by a preponderance of the evidence until the Family Court “considers
testimony from a certified mental health professional who is the therapist for the
child, as to whether such a custodial, residential or visitation arrangement is in the
child's best interests.” The finding in the substantiation proceeding that the Father
sexually abused the Daughter did not mean the Father was permanently deprived of
contact with the Daughter.

(12) The procedures used by the Family Court in this case created little risk
of an erroneous result. The Father received notice of DSCYF’s intent to substantiate
him for sexual abuse of the Daughter. Between the first notice of intent to
substantiate in April 2016 and the substantiation hearing in November 2016, the
Father had more than sufficient time to prepare. At the substantiation hearing, the
Commissioner answered the Father’s questions, explained how to cross~examine

DSCYF’s witnesses, and gave him information about presenting his own case,

 

17 Compare Pace v. Dep ’t of Servs. for Children, Youth and T heir Familz'es, 963 A.2d 724, 731
(Del. 2008) (recognizing termination of parental rights requires clear and convincing evidence of
at least one of the grounds for termination of parental rights under 13 Del. C. § 1103(a) and clear
convincing evidence that termination of parental rights is in the best interest of the child) with 16
Del. C. § 925A(a) (providing person will be placed on the Child Protection Registry if the court
finds by a preponderance of the evidence that the person committed an act of abuse or neglect that
was based on the same incident as alleged in the notice of intent to substantiate and the person
poses a risk of future harm to children).

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including his option to testify. Balancing the Father’s interest in the effect of the
substantiation proceeding on his potential employment and relationship with the
Daughter, the government’s interest in the welfare of children under the Child
Protection Registry, and the small risk of an erroneous result, we conclude the
Family Court did not err in denying the Father’s motion for appointment of counsel.

(13) The Father’s remaining claims relate to the sufficiency of the evidence
supporting the Commissioner’s conclusion that he sexually abused the Daughter and
should be placed on Level IV of the Child Protection Registry. To place a person
on the Child Protection Registry, the Family Court must determine by a
preponderance of the evidence, af`ter a hearing on the merits or the agreement of the
parties, that the person committed an act of abuse of neglect based on the same
incident as alleged in the notice of the intent to substantiate and the person poses a
risk of future harm to children.18 The evidence presented by DSCYF included: (i)
the testimony of the Daughter’s teacher and school nurse that they had observed the
Daughter engaging in sexually inappropriate behavior; (ii) the social worker’s
testimony that she observed the Father touching the Daughter inappropriately,
including putting his hand down the back of her pants and kissing her frequently on

the mouth; and (iii) the Daughter’s statement in the CAC interview that the Father

 

18 13 Del. C. § 925A.

had licked her butt. In his defense, the Father: (i) elicited testimony that the Daughter
was in foster care when she displayed inappropriate behavior; (ii) argued no criminal
charges were filed, and he could not have sexually abused the Daughter during
supervised visits; and (iii) elicited testimony from the Mother that she had never
observed the Father touch the Daughter inappropriately

(14) The Father contends the evidence was insufficient because most of it
consisted of child hearsay. Under 13 Del. C. § 724(d)(2), a child’s out-of-court
statement may be admitted into evidence if reasonable notice of the intention to offer
the statement is made to all of the parties, the statement is shown to possess
particularized guarantees of trustworthiness, and the Family Court finds the child is
unavailable due to the child’s physical or mental disability. The Father had notice
of DSCYF’s intention to offer the Daughter’s CAC interview into evidence and
consented to admission of the interview. The Commissioner did not err in finding
the CAC interviews trustworthy as a result of the forensic interview process and the
Daughter unavailable due to her disability (Down Syndrome).

(15) The Father also argues he did not have the opportunity to call witnesses,
but he did not raise this as an objection to the Commissioner’s order. In any event,
the record reflects the Father called the Mother as a witness and did not subpoena
any witnesses Finally, the Father contends that the Commissioner erred in relying

upon character evidence that was inadmissible under Rule 404, but he fails to

identify the evidence he is referring to or where he raised that objection in the
substantiation hearing. Having carefully reviewed the record and the parties’
submissions on appeal, we conclude the Family Court did not err in finding there
was sufficient evidence, including the Daughter’s statement in the CAC interview
and the testimony of the social worker, to support the Commissioner’s findings

NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED.

BY TI-IE COURT:

/s/ Garv F. Travnor
Justice

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