Frost and Burton v. DSCYF/DFS

IN THE SUPREME COURT OF THE STATE OF DELAWARE

GEORGE FROST §
and JANE BURTON,1 §
§ No. 121 and 124, 2024
Respondents Below, § Consolidated
Appellants, §
§ Court Below: Family Court
v. § of the State of Delaware
§
DEPARTMENT OF SERVICES § File Nos. 23-02-1TK, 23-02-2TK
FOR CHILDREN, YOUTH, AND § Petition Nos. 23-01898, 23-02179
THEIR FAMILIES (DSCYF/DFS), §
§
Petitioner Below, §
Appellee. §

Submitted: December 4, 2024
Decided: February 24, 2025

Before SEITZ, Chief Justice; VALIHURA, and LEGROW, Justices.

ORDER

This 24th day of February, 2025, upon consideration of the parties’ briefs and

the record below, it appears to the Court that:

(1) The appellants (“Mother” and “Father”) share two sons: L.F., born

February 12, 2019, and T.F, born August 13, 2020. Father also has two sons from a

previous relationship: J.F., born October 12, 2013, and N.F., born October 22, 2015.

Mother and Father have jointly appealed a Family Court order (“TPR Order”) that

1
The Court previously assigned pseudonyms to the appellants under Supreme Court Rule 7(d).
1
terminated their respective parental rights to those four children (“the Children”).

Both Mother and Father have additional children with other partners, but those

children are not relevant in these proceedings.

(2) The Family Court held that Mother and Father failed to plan for the

Children’s physical needs and for their mental and emotional heath and development

as described by 13 Del. C. § 1103. The court further concluded that the Division of

Family Services (“the Division” or “DFS”) used reasonable efforts to prevent the

children’s removal and reunify the family, and that it was in the Children’s best

interest to terminate Mother and Father’s parental rights. Mother and Father appeal

each of the court’s findings and argue that the court abused its discretion in finding

clear and convincing evidence to terminate their parental rights. None of the

appellants’ arguments support reversal and we therefore AFFIRM the Family

Court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

(3) The Division’s contact with Mother and Father began several years

before the Children were removed from their care in 2022. Father and J.F. and N.F.’s

biological mother made numerous allegations of abuse and neglect against one

another, and Father was subject to several Protection from Abuse orders during their

marriage. The Division also received concerning reports about J.F. and N.F.’s

hygiene and the condition of the home. Mother and her two daughters (not subject

2
to this case) moved into Father’s home in 2018, shortly after his marriage to J.F. and

N.F.’s biological mother ended. Hotline reports and investigation by DFS during

this time once again revealed concerns about the Children’s hygiene and the

condition of the home.

(4) All four of the Children have extensive support needs. J.F. has a

diagnosis of Autism and developmental delays and was considered nonverbal while

in Mother and Father’s care due to his very limited speech. When he was removed

from Mother and Father’s care at age eight, J.F. was not yet toilet trained and wore

adult diapers. J.F. also requires extensive supports and specialized instruction for

his education. Father failed to address concerns raised by J.F.’s teacher during and

after the COVID-19 pandemic regarding J.F.’s skill regression associated with his

poor attendance and Father’s failure to accept school resources.2 J.F.’s teacher

observed that J.F. was often clothed only in a diaper and appeared unkempt during

online schooling sessions.

(5) N.F. was six years old when he was removed from Mother and Father’s

care, and he too was not toilet trained. N.F. has diagnoses of ADHD and disruptive

2
In April 2020, during the COVID-19 outbreak, J.F.’s school offered Chromebooks to each family
to access virtual instruction. Father declined a Chromebook and instead chose to use his cell phone.
J.F.’s teacher testified that the cell phone significantly limited the effectiveness of J.F.’s instruction
because it did not permit the full use of interactive programs or allow her to determine whether
J.F. was responding correctly. J.F. missed twenty-two days of instruction from March to June
2021, and twenty-four of thirty-six occupational therapy sessions between December 2020 and
June 2021.
3
mood dysregulation disorder, exhibits aggression toward others, and engages in self-

harm. He also suffers from a chronic eye condition caused by the herpes virus. N.F.

alleged that Father mistreated him and required crisis services and hospitalization at

the Rockford Center several times during the Family Court proceedings.3

(6) L.F. and T.F. also have developmental delays and behavioral issues.

L.F. is diagnosed with Autism. The family received Early Head Start services from

August 2020 until August 31, 2023, to provide Mother and Father with tools and

skills to engage with L.F. and T.F. and develop their fine motor, cognitive, language,

and social skills.

(7) The Division received repeated reports regarding the condition of the

family’s home, which code enforcement ultimately condemned on October 6, 2021.

The code enforcement officer testified that:

. . . the odor was so bad in the home that [she] had to immediately return
outside and get a mask just to continue the inspection. There was food, food
waste, and trash on the floor and furniture, and [her] shoes stuck to the floor
as she walked across it. There were signs of bedbugs, and cockroaches ran
throughout the home. Fecal smears were on the walls and dirty diapers were
on the floor.

The family resided at the Hope Center while their home was cleaned, and they

returned on December 23, 2021, when the condemnation order was lifted.

3
“[N.F.] has told his foster parent, Tiffany Adams, that he ‘is safe in foster care, because Ms. Gina
[Baker] told my daddy you can’t hit me anymore, so now daddy is nice to me.’ Father denies
mistreating [N.F.]” App. to OCA’s Answering Br. at C2.
4
(8) On January 21, 2022, Mother gave birth to another child, S.F, who died

at about three weeks of age. The Dover Police Department began investigating the

circumstances of S.F.’s death, and DFS received emergency ex parte custody of L.F.

and T.F on March 1, 2022, after unsuccessfully attempting to implement a safety

plan for Mother and Father.4 DFS also sought custody of J.F. and N.F. at that time,

but ultimately dismissed that petition and placed the two children with their

biological mother.

(9) On April 4, 2022, the Family Court held an Adjudicatory Hearing on

the Division’s petition for custody of L.F. and T.F. Mother and Father presented

evidence that some of the conditions that led to the home’s condemnation were the

landlord’s responsibility. The court found that Mother and Father were “not

currently able to meet the children’s basic needs on a fulltime basis.”5 The Family

Court also found that DFS had used reasonable efforts to maintain the family and

prevent Children’s unnecessary removal from the home.6

4
DFS entered into a series of safety agreements to keep the children in the home. The final safety
agreement was developed on or about February 17, 2022, and required that Gwen Barber stay with
the family and supervise the care of the children. Barber testified that Father locked her out of the
home on March 1, 2022, and the parents were unresponsive to attempts to contact them. DFS
attempted to salvage the safety plan by requiring that Father leave the home so that Barber would
stay, but Father never left and Barber refused to continue as the safety person.
5
More specifically, the court found that Mother and Father (1) failed to cooperate with safety
planning during the investigation into the death of their infant son; (2) “. . . struggle[d] to maintain
the home to basic minimal standard without support and while the children were in their care;”
and (3) were unable to meet the basic needs of the children regarding teaching and discipline by
ensuring that they attended school. App. to Opening Br. at A24.
6
DFS began providing services to Mother and Father before S.F.’s death to address concerns about
the Children’s safety and wellbeing, and DFS developed safety plans after S.F.’s death to attempt
5
(10) On April 22, 2022, DFS again filed for custody of J.F. and N.F. after

their biological mother was unable to care for them and there was evidence of

physical abuse in her home. On May 11, 2022, the court held an Adjudicatory

Hearing, which was waived by J.F. and N.F.’s biological mother but continued for

Father. The same day, the court held a Dispositional Hearing during which DFS

presented case plans for Mother and Father. The case plans largely overlapped and

included the following elements: Father will maintain employment, and Mother will

find a job or receive SSI benefits; Parents will maintain a clean and safe home;

Parents will complete a parenting class and show evidence of learning behaviors

from the class; Parents will attend the boys’ school and medical appointments, as

well as weekly visits; Parents will work with a Family Interventionist to improve

their parenting skills; and Mother will complete a Comprehensive Cognitive or

Mental Health evaluation7 and follow any resulting recommendations. The court

found that the Division had used reasonable efforts since the last hearing to achieve

permanency for the Children, but they remained dependent as to their parents.

to keep the family together. After the safety plans failed and the Children were removed from the
home, DFS used reasonable efforts to reunify the family by facilitating visitation and continuing
to offer services.
7
A psychological evaluation revealed that Mother suffered from PTSD, largely arising from S.F.’s
death, and that her cognitive functioning was in the borderline range. The Family Court denied the
Division’s request that Father also undergo a psychological evaluation after Father opposed the
requirement.
6
(11) On June 1, 2022, the Family Court convened an Adjudicatory Hearing

for Father regarding J.F. and N.F. The court found that Father had failed to meet the

boys’ educational and developmental needs and was “not currently able to

consistently provide basic care for the boys.”8 The court also found that the Division

made reasonable efforts to prevent J.F. and N.F.’s removal from the home, citing the

Division’s efforts in referring the family to services and contacting relatives to locate

alternative placements.

(12) On August 3, 2022, the Family Court held review hearings for all four

children. The court reviewed Mother and Father’s progress on their case plans and

determined that the Division was using reasonable efforts to reunify the family. The

Division obtained services for both the parents and children, purchased items for the

home, and expanded in-home visits between the family. The court heard evidence

that the medical examiner determined that S.F.’s cause of death was sudden infant

death syndrome (SIDS), and the investigation into S.F.’s death was closed. Both

parents were working with a family interventionist; Father was employed at Safeway

and Mother had applied for Social Security benefits; and the house remained

appropriate. Despite finding that Mother and Father had made progress on their

plans and that reunification remained the appropriate goal, the court continued

custody with DFS.

8
App. to Opening Br. at A31.
7
(13) The Family Court held a second review hearing for both cases on

October 31, 2022, and heard evidence that Father continued to work; there were no

concerns about the condition of the home; Mother had begun therapy and had

become more interactive with the children; and Mother and Father were committed

to regaining custody and were receiving services and regularly visiting the Children.

The court found that DFS continued to make reasonable efforts to reunify the family

by providing tailored interventions with Mother and Father to address the Children’s

significant needs. The court continued DFS custody of the Children.

(14) The next review hearing for both cases was on January 31, 2023. The

Family Court found that Mother and Father were making progress toward their

reunification goal,9 but that progress was achieved with extensive interventions and

supports in place. The parents had the Children in their care for only a few hours

each week and still required regular prompting to intervene with them. Because the

Children had been in the Division’s custody for over a year and Mother and Father

were still unable to reunify with the Children, the Family Court granted the

Division’s motion to change the permanency goal of the cases from reunification to

concurrent goals of reunification and termination of parental rights.

9
“Mother and Father are making progress toward reunification with [T.F. and L.F.]: they are
financially stable enough to maintain their home and are keeping it clean; Father has begun
domestic violence interventions and Mother is about to begin counseling; Mother has begun setting
expectations for the children’s behavior and Father is becoming more receptive to Mother’s input;
and most importantly Mother and Father are becoming more engaged and responsive to the
children.” Id. at A55.
8
(15) A Caregiver-Child Assessment performed by Dr. Joseph Zingaro was

also presented to the Family Court at the January 31 review hearing. Dr. Zingaro

offered several recommendations, including that (1) “Father and Mother must

demonstrate that they can maintain regular routines and expectations for the

children;”10 (2) “Mother and Father are more likely to be successful if [L.F. and T.F.]

are returned to their care before [N.F. and J.F.];”11 and (3) “the family’s team

members, including the children’s foster parents, should meet to identify very

specific behaviors and interventions likely to be successful with the children;

develop measurable benchmarks Mother and Father are expected to achieve; and

measure their behavior against a reasonable level of performance,”12 which Dr.

Zingaro suggested might be 80% of the time; and (4) he should reassess the family

in about six months.

(16) The Division held three team meetings in February 2023 to develop a

parenting plan with specific parenting skills for Mother and Father to master, as

recommended by Dr. Zingaro. Mother and Father reviewed and signed the plan on

February 21, 2023, and a DFS permanency worker, Amanda Niblett-Boggs, met

with them monthly thereafter to discuss their progress. Any concerns that Mother

10
Id.
11
Id.
12
Id.
9
and Father were not meeting expectations were discussed with them promptly by

either Ms. Niblett-Boggs or their family interventionist, Tianna Carter.

(17) In May 2023, the Division concluded that Mother and Father had made

sufficient progress on their case plans to allow a trial reunification for L.F. and T.F.

Mother and Father received support from DFS and the boys’ foster mother, Carissa

Stevens, in preparation for the two younger children’s return to the home.13 Trial

reunification began with an overnight visit on May 9, 2023. Next, DFS arranged a

weekend visit. On both occasions, DFS received reports from the children’s daycare

that L.F. arrived with a full pull-up. Ms. Niblett-Boggs and Ms. Carter addressed

this issue with Mother and Father and provided suggestions to prevent reoccurrence.

DFS then placed L.F. and T.F. in Mother and Father’s full-time care on May 26,

2023, and asked Dr. Zingaro to assess Mother and Father’s progress since his initial

evaluation.

(18) During the trial reunification, Mother and Father removed the children

from Expanding Our Kids’ World, where they had been enrolled while in foster care,

and placed them at a different childcare center. The director at the new center

disenrolled the children after approximately three weeks because they exhibited

13
Stevens shared very specific information with Mother and Father about L.F. and T.F.’s routines
and provided the parents with comfort items like stuffies and a sound machine. She shared these
routines through texts, video messages, and written documentation as reunification approached so
that the parents could continue the routines post-reunification. DFS helped to obtain furniture,
bedding, clothing, and toys for the children.
10
extreme behavioral difficulties.14 The boys then returned to Expanding Our Kids’

World. Ms. Stevens provided transportation to the daycare because Mother and

Father did not have drivers’ licenses or a vehicle.

(19) Concerns arose during the trial reunification regarding physical neglect

and Mother and Father’s ability to consistently meet the children’s basic needs. T.F.

and L.F.’s daycare teachers at Expanding Our Kids’ World reported concerns about

the children’s behavior and hygiene. The boys repeatedly arrived at daycare with

full pull-ups that appeared to have been urinated in multiple times. On at least one

occasion, there was evidence that the boys had not been wiped after bowel

movements. T.F. became aggressive toward his peers and teacher, and both boys

were visibly tired and often refused to eat. T.F. and L.F.’s teachers also documented

occasions on which the children arrived at school unclean.

(20) Ms. Niblett-Boggs met with Mother and Father in their home on July

3, 2023, to address the concerns that were being reported by the daycare. Ms.

Niblett-Boggs informed Mother and Father that DFS would remove the children for

physical neglect if the reports continued. Mother and Father disputed the daycare’s

reports, and Ms. Niblett-Boggs suggested that the parents send her daily pictures to

14
The director of the new center, Dawn Landon, described instances of L.F. screaming, throwing
himself around, crawling around, and taking off his clothing. T.F. acclimated well at first, but
eventually became aggressive to the point of hitting a teacher. Landon testified that when she
reached out to Father for assistance on two occasions, he replied it was the daycare’s responsibility
to handle the issues. She further testified that she observed Father yell at Mother on multiple
occasions and that he was so aggressive and rude toward Mother that she contacted the Division.
11
show that the boys were clean, but they did not do so. Ms. Niblett-Boggs and Ms.

Carter met with Mother and Father again on July 18, 2023, and discussed the

ongoing concerns. After that meeting, DFS received another concerning report from

the daycare and made the decision to end the trial reunification.15 On July 21, 2023,

L.F. and T.F. were removed from Mother and Father’s home.

(21) The physical condition of Mother and Father’s home deteriorated again

after the trial reunification ended. Ms. Niblett-Boggs visited on August 29, 2023,

and noted that there was an overwhelming odor in the home, live and dead

cockroaches, and clogged sinks in the kitchen and downstairs bathroom. Ms.

Niblett-Boggs also testified that Father minimized or denied N.F.’s behavioral

issues, was consistently late to or absent from N.F.’s monthly medication

appointments, was resistant to working with T.F.’s daycare to manage his behaviors,

and generally did not interact much with J.F. during visits.

(22) Dr. Zingaro completed his updated caregiver assessment in August

2023. He concluded that Mother and Father do better with intensive support and

supervision but regress without it. His update reaffirmed that when Mother and

Father were presented with negative feedback, they dismissed it as a lie, and Father

15
T.F.’s daycare teacher, Kelsey Shaw, testified about a phone interaction she had with Father on
July 19, 2023. During the call, Father accused the daycare of submitting incorrect and untrue
reports to DFS and stated that the daycare was going to cause his children to be taken away from
him. Shaw testified that Father’s tone was very aggressive and demanding, and Landon reported
the phone call to Ms. Niblett-Boggs.
12
was very oppositional to help. He also opined that the Children do better when they

are in a different environment. He testified that the Children’s response to a positive

foster home environment and their regression when returning to Mother and Father’s

care (an “ABAB” design) gave “a tad more confidence”16 that the changes in the

Children’s behavior were attributable to the environment and not the passage of time

or other variables. Even without the benefit of an ABAB design, however, Dr.

Zingaro did not believe that Mother and Father were successfully meeting the

Children’s needs based on the information he gathered for his assessment.

(23) A Post-Permanency Review hearing and Termination of Parental

Rights (“TPR”) hearing was scheduled for September 6, 2023. But after the trial

reunification ended in July, Mother and Father filed a series of motions. At the

parties’ request, the Family Court heard oral argument and ruled on the motions in

lieu of proceeding with an evidentiary hearing on the TPR petition. The motions

included Father’s motion to exclude causation testimony under Delaware Rule of

Evidence 702. The Family Court held that the motion was premature and that

specific objections to testimony could be raised at trial. This order was not appealed

and no such objections were raised during trial.

(24) Mother and Father’s TPR trial was conducted over the course of three

days. Appellants opposed the termination of their parental rights. On February 26,

16
App. to OCA’s Answering Br. at C278–79.
13
2024, the Family Court issued its decision terminating Mother and Father’s parental

rights in the Children for failure to plan under 13 Del. C. § 1103. The court held that

DFS used reasonable efforts to provide reunification services, and that it was in the

Children’s best interest to terminate Mother and Father’s parental rights. Mother

and Father filed timely appeals.

ANALYSIS

(25) “When reviewing the 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.’”17 Legal conclusions are reviewed de

novo.18 To the extent the decision relies on factual findings, we review those

findings to ensure that they are supported by the record and are not “clearly

wrong.”19 This Court will not disturb inferences and deductions that are supported

by the record and are the product of an orderly and logical deductive process. 20 If

the Family Court has correctly applied the law, this Court’s standard of review is

abuse of discretion.21

17
Brock v. Dep’t of Servs. for Child., Youth, & Their Families, 272 A.3d 781, 787 (Del. 2022)
(quoting Powell v. Dep’t. of Servs. for Children, Youth & Their Families, 963 A.2d 724, 730 (Del.
2008)).
18
George v. Dep’t of Servs. for Child., Youth & Their Families, 150 A.3d 768, 2016 WL 6302525,
at *4 (Del. Oct. 27, 2016) (TABLE).
19
Bower v. Dep’t of Servs. for Child., Youth & Their Families, 142 A.3d 505, 2016 WL 3382353,
at *4 (Del. June 9, 2016) (TABLE).
20
Powell, 963 A.2d at 731.
21
Jones v. Lang, 591 A.2d 185, 186 (Del. 1991).
14
(26) Mother and Father submit three arguments on appeal: (i) the Family

Court erred by finding that Mother and Father failed to plan for the Children under

13 Del. C. § 1103; (ii) the Family Court erred by holding that DFS used reasonable

efforts to provide reunification services and prevent removal of the Children; and

(iii) the Family Court erred by finding that was in the Children’s best interest to

terminate Mother and Father’s parental rights.22

A. The Family Court did not abuse its discretion by finding clear and
convincing evidence that Mother and Father failed to adequately plan for
the Children under 13 Del. C. § 1103(a)(5).

(27) A petition to terminate parental rights requires a court to undertake a

two-step analysis.23 Under the first step, the Family Court considers whether the

Division has established by clear and convincing evidence a statutory basis for

termination under Section 1103. 24 In this case, DFS sought to prove that Mother

and Father failed to plan for the Children’s physical needs and mental and emotional

health and development under Section 1103(a)(5).25 When termination is sought

based upon failure to plan, the Family Court also must conclude that at least one of

the conditions set forth in Section 1103(a)(5)(a) is met.26 Appellants do not contest

22
Id. at 37.
23
Powell, 963 A.2d at 731 (citing 13 Del. C. § 1103(a); Div. of Fam. Serv. v. Hutton, 765 A.2d
1267, 1271 (Del. 2001)).
24
Id. (citing 13 Del. C. § 1103(a)(1)–(8); Hutton, 765 A.2d at 1271). The second step is a best-
interest analysis, which we will address in connection with the third claim on appeal.
25
See Appellee DFS’ Answering Br. at 19; Appellants’ Opening Br. Ex. A (“TPR Order”) at 2.
26
Powell, 963 A.2d at 731 (citing 13 Del. C. § 1103(a)(5)(a); Hutton, 765 A.2d at 1271).
15
that an enumerated statutory condition was met, as the Children had been in the

Division’s care for over one year.27

(28) Mother and Father argue that the Family Court erred by finding clear

and convincing evidence that they failed to adequately plan for the Children’s needs

because (i) Appellants substantially complied with their case plans;28 and (ii) the

court considered the “unreliable” testimony of Dr. Zingaro.29

(29) Regarding Mother and Father’s first argument, the relevant inquiry is

not whether Appellants made some progress toward completing their case plans, but

rather,

‘[w]hether the conditions that led to the child’s placement . . . continue to exist
and there appears to be little likelihood that these conditions will be remedied
at an early date which would enable [parents] to discharge parental
responsibilities so that the child can be returned to [parents] in the near
future.’30

Moreover, “the crucial factor should be the child's welfare, both material and

psychological.”31 If a parent has failed to fulfill any requirement of their DFS case

27
Appellants’ Opening Br. at 24 n.8.
28
Id. at 24–27.
29
Id. at 27–29.
30
Brown v. Div. of Fam. Services, 14 A.3d 507, 511 (Del. 2011) (quoting 13 Del. C. §
1103(a)(5)(a); Powell v. Div. of Family Servs., 2011 WL 252950, at *2 (Del. Jan. 27, 2011)).
31
Briggs v. Dep't of Servs. for Children, 308 A.3d 168, 2023 WL 7127571 at *2 (Del. Oct. 30,
2023) (TABLE) (quoting In re Three Minor Child., 406 A.2d 14, 17 (Del. 1979) (citations
omitted)).
16
plan necessary to provide adequate care for their child, Section 1103(a)(5) will be

satisfied even where a parent has otherwise completed the case plan.32

(30) The Family Court found clear and convincing evidence that Mother and

Father are unable to consistently meet the Children’s basic physical needs and were

residing in the same conditions that led to the Children’s placement with DFS after

their home was condemned in 2021. Mother and Father’s case plans stated that they

would maintain a clean and safe home, but concerns persisted regarding the parents’

ability to do so.33 The home’s condition rapidly deteriorated in August 2023 after

the trial reunification period ended and the children no longer were living there. As

the Family Court noted, the evidence demonstrates that Mother and Father “maintain

minimal household standards only when under supervision, receiving services, or,

more recently, with the hearing on these matters looming.”34 The court’s conclusion

32
Id. (citing Griffin v. Dep't of Servs. for Child., Youth & Their Fams., 296 A.3d 882, 2023 WL
3046056, at *2 (Del. Apr. 21, 2023) (TABLE) (holding that termination of parental rights was
supported by the record where the parent failed only to obtain stable housing as required by case
plan)); Arthur-Lawrence v. Div. of Fam. Servs., 884 A.2d 511, 2005 WL 2397523, at *3–6 (Del.
Sept. 27, 2005) (TABLE) (holding that termination of parental rights was supported by the record
where the parent failed to complete two parts of a seven-part case plan); George, 2016 WL
6302525, at *4–5 (holding that termination of parental rights was supported by the record where
the parent completed twenty-five percent of their case plan); Whitmore v. Robinson, 223 A.3d 417,
425–26 (Del. 2019) (Seitz, C.J., concurring) (noting that the Family Court often terminates
parental rights solely on a failure to satisfy their DFS-provided case plan)) (emphasis added).
33
Mother and Father assert that, during the period that the Division had custody of the Children,
there were no concerns about the condition of the home until August 2023. Appellants’ Opening
Br. at 25. Although there were no major issues like those found during the unannounced home
inspection in August, Ms. Niblett-Boggs and Ms. Carter addressed cleanliness issues in the home
on multiple occasions, including for sticky floors and food around the home. App. to DFS’
Answering Br. at B152.1, B155–156.
34
TPR Order at 60.
17
that Mother and Father failed to maintain a clean and safe home is supported by the

record and is the product of an orderly and logical deductive process, which itself is

sufficient to constitute a failure to plan under 13 Del. C. § 1103(a)(5).

(31) Next, Mother and Father argue that the court erred when it “relied” on

the testimony of Dr. Zingaro in finding that they failed to plan, as well as when

considering his testimony regarding the Children’s behaviors.35 As a preliminary

matter, Father failed to raise this evidentiary objection during trial. Father filed a

pre-trial motion under Delaware Rule of Evidence 702 to exclude causation

testimony from Dr. Zingaro and several DFS workers. 36 The Family Court held that

the motion was premature and that specific objections to such testimony could be

raised at trial.37 Father did not object at trial and the Family Court therefore did not

address the argument at trial or in the TPR Order. Consequently, this argument was

not preserved for appeal.38

(32) We may excuse a waiver under Supreme Court Rule 8 if the trial court

committed plain error and the interests of justice require review.39 We find no basis

35
Appellants’ Opening Br. at 28.
36
App. to Opening Br. at A64.
37
Id.
38
Del. Sup. Ct. R. 8; see Pollard v. State, 284 A.3d 41, 42 (Del. 2022) (discussing how Rule 8
precludes review of issues not raised in the trial court unless the interests of justice require it);
Damiani-Melendez v. State, 55 A.3d 357, 359 (Del. 2012) (“A ‘[f]ailure to make an objection at
trial constitutes a waiver of [a] defendant's right to raise that issue on appeal, unless the error is
plain.’”) (citing Wainwright v. State, 504 A.2d 1096, 1100 (Del.1986) (citations omitted); Del.
Sup. Ct. R. 8).
39
See Pollard, 284 A.3d at 42; Damiani-Melendez, 55 A.3d at 359.
18
to reverse the Family Court under that standard. Mother and Father criticize Dr.

Zingaro’s “ABAB analysis,” but the Family Court made no reference to this analysis

when it held that Mother and Father failed to properly plan for the Children. In

referencing Dr. Zingaro’s assessments, the Court simply stated that “the evidence

fully supports [Dr. Zingaro’s] conclusion that the family does well with intensive

services, but that when these are withdrawn, consistently regress ‘to their own

mean’—a mean not adequate to meet the Children’s needs (or the needs of any one

of them).”40 Testimony to which the parents did not object and on which the Family

Court did not rely does not serve to undermine the court’s factual findings or its legal

conclusions.

(33) The Family Court correctly applied the law to its factual findings in

concluding that Mother and Father failed to plan under 13 Del. C. § 1103(a)(5). 41

Accordingly, the court did not abuse its discretion.

B. The Family Court did not abuse its discretion by finding clear and
convincing evidence that DFS used reasonable efforts to prevent removal
of the Children and provide reunification services.

(34) When termination is sought on the ground of failure to plan under

Section 1103(a)(5), the Family Court must find that DFS made bona fide, reasonable

40
TPR Order at 64.
41
See Powell, 963 A.2d at 731; Interest of Stevens, 652 A.2d 18, 23 (Del. 1995).
19
efforts towards reunification.42 This requirement is based on federal and state law.43

Mother and Father argue that DFS failed to provide them with percentage levels of

compliance to their case plans, and “abruptly, without notice to the parents” ended

trial reunification, constituting a failure to provide reasonable efforts to prevent

removal and facilitate reunification.44 We disagree.

(35) The Family Court repeatedly found during dependency proceedings

that DFS was using reasonable efforts to develop and implement Mother and

Father’s case plans, which targeted their well-known needs and were reasonably

designed to return the Children to their care.45 The Family Court explained in the

TPR Order that:

The Division promptly arranged for family intervention services, which
included helping Mother and Father with budgeting, applications for various
services, with their visits with the children, and with pragmatic parenting tips
and suggestions. It timely referred Mother for a psychological evaluation and
then to a mental health provider. It provided Father a program designed to
reduce the risk of domestic violence and referred him and Mother to a
parenting course. In the meantime, DFS provided Mother and Father regular
and meaningful visits with all four Children, designed in a way to permit them
separate time with each set of siblings and to permit the brothers to see each
other as well. The Division held three team meetings in February 2023 alone
to develop a Parenting Plan for Mother and Father as recommended by Dr.
Zingaro as part of his Caregivers Assessment. It then carefully planned a trial

42
In re Hanks, 553 A.2d 1171, 1179 (Del. 1989).
43
Powell, 963 A.2d at 738 (“Federal law provides that ‘reasonable efforts shall be made to preserve
and reunify families . . . to make it possible for a child to safely return to the child's home.’
Delaware law requires DFS to provide reunification services to families and to prepare written
case plans and review those plans semi-annually.”) (quoting 42 U.S.C. § 671(a)(15)(B)(ii); 29 Del.
C. §§ 9003(3)-(5)).
44
Appellants’ Opening Br. at 31–32.
45
TPR Order at 66.
20
reunification for [L.F. and T.F] and provided significant services to help
Mother and Father Succeed during the reunification.46

(36) As to Mother and Father’s argument that DFS failed to provide them

with updates on their percentage of compliance in accordance with the 80%

threshold suggested by Dr. Zingaro, 47 this fact does not indicate that DFS failed to

fulfill its duty. Dr. Zingaro recommended that DFS “develop measurable

benchmarks Mother and Father are expected to achieve; and measure their

benchmarks against a reasonable level of performance,” proving examples such as:

“’Mother and Father shall attend 80% of the children’s medical appointments and

school meetings,’ or ‘Mother and Father shall read to each child 15 minutes each

day, 80% of the time.’”48

(37) As recommended by Dr. Zingaro, the Division held three team

meetings in February 2023 to develop a parenting plan for Mother and Father that

identified discrete parenting skills and measurable goals, e.g., responding to the

Children’s toileting cues and managing food portions.49 Although the Division did

not update Mother and Father with their compliance percentages, Ms. Niblett-Boggs

testified that she met with Appellants monthly to discuss their progress toward these

46
Id.
47
Appellants’ Opening Br. at 31.
48
App. to Opening Br. at A54.
49
TPR Order at 46–47.
21
goals.50 Either Ms. Niblett-Boggs or Ms. Carter promptly voiced concerns that

Mother and Father were not meeting expectations.51 Although Mother and Father

contend that “DFS deprived the parents” of the opportunity to “stay apprised of their

progress and know what DFS expected from them,”52 the record demonstrates

otherwise. The Division’s failure to calculate mathematical rates of compliance does

not constitute a failure to make reasonable efforts to reunify the family, especially

given the Division’s other substantial efforts.

(38) Moreover, the record contradicts Mother and Father’s argument that

DFS ended trial reunification without any discussion with them and “without any

justifiable safety concerns.”53 To the contrary, the parents had notice of the

Division’s concerns during trial reunification and knew that the boys would be

removed from the home if the concerns continued. Nevertheless, the daycare

continued to report concerns about the children’s hygiene and care. The Family

Court expressly concluded that “the evidence is clear, and the Court is convinced,

that DFS used reasonable efforts both to avoid the Children’s removal from their

home and to reunify Mother and Father with the Children.”54 The Family Court’s

50
App. to OCA’s Answering Br. at C243–44.
51
Id. at C259–60.
52
Appellants Opening Br. at 34.
53
Id.
54
TPR Order at 67.
22
conclusion is supported by the record and is the product of a logical deductive

process.

C. The Family Court did not abuse its discretion by finding clear and
convincing evidence that terminating Appellants’ parental rights was is
in the Children’s best interest.

(39) Under the best-interest standard, which is the second step in the

termination-of-parental-rights analysis, “there must be ‘clear and convincing’

evidence that termination of parental rights is essential to the child’s welfare.”55

Section 722(a) governs the Family Court’s best-interest determination and

enumerates eight factors that the court must consider in making its decision.56 The

factors, however, should not be applied mechanically. The court should consider all

55
Powell, 963 A.2d at 733 (citing Hutton, 765 A.2d at 1272 (citations omitted)).
56
The best-interest factors enumerated in Section 722(a) are:
(1) The wishes of the child's parent or parents as to his or her custody and residential
arrangements;
(2) The wishes of the child as to his or her custodian or custodians and residential
arrangements;
(3) The interaction and interrelationship of the child with his or her parents, grandparents,
siblings, persons cohabiting in the relationship of husband and wife with a parent of the
child, any other residents of the household or persons who may significantly affect the
child's best interests;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to
their child under [13 Del. C. § 701];
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
(8) The criminal history of any party or any other resident of the household including
whether the criminal history contains pleas of guilty or no contest or a conviction of a
criminal offense. 13 Del. C. § 722(a)
23
relevant factors, give weight to different factors as warranted under the

circumstances, and balance the facts against one another.57

(40) Mother and Father argue that the Family Court failed to give weight to

several “undisputed facts” when concluding that termination of their parental rights

was in the Children’s best interest.58 But the record reflects that the Family Court

expressly addressed all the best-interest factors and recounted the evidence that it

deemed relevant to each. The Family Court weighed testimony and made factual

findings that guided its decision. The court considered the facts relied on by Mother

and Father against their failure to consistently meet any one of the Children’s most

basic needs.59 Ultimately, the court determined that factors two, three, four, five,

and six were dispositive and outweighed considerations under factors one, seven,

and eight.60

(41) Although Mother and Father expressed their desire to have the Children

reside with them61 (factor one), the interests of the child must prevail where they

conflict with those of the parents. 62 The parents contend that the Children who are

able expressed a preference to live with their parents,63 but the court noted that the

57
Brock, 272 A.3d at 790; Bower, 2016 WL 3382353, at *4.
58
Appellants’ Opening Br. at 37.
59
TPR Order at 67–69.
60
Id. at 74–77.
61
Appellants’ Opening Br. at 37.
62
Powell, 963 A.2d at 733 (citing 13 Del. C. § 1113; In re Burns, 519 A.2d 638, 644 (Del. 1986)).
63
Appellants’ Opening Br. at 37.
24
Children were not interviewed as part of the dependency proceedings, and the

Children’s attorney and their CASA supported the termination of Mother and

Father’s parental rights (factor two).64

(42) As to the parents’ assertation that the Children interact well among

themselves and as a family,65 the court explained that although T.F. and L.F. are

bonded to one another, they likely do not have the same attachment to their siblings,

and N.F.’s aggression posed a risk to the younger children (factor three).66 Mother

and Father contend that termination is not in the Children’s best interest, pointing

out that N.F. continued to engage in aggressive behavior outside the home and no

known persons were interested in adopting the Children.67 But immediate adoption

is not always possible, and the court noted that each of the Children had made

“significant progress in their development” while in foster care (factor four).68

64
TPR Order at 68–69.
65
Appellants’ Opening Br. at 37.
66
TPR Order at 69–70. The Family Court explained that the appellants’ home was crowded—
there were seven children living there at the time the Children were removed. Id. L.F. and T.F.
were toddlers when they were removed from Appellants’ custody. Id. at 70. N.F. and J.F. are in
different foster homes and only see one another, as well as L.F. and T.F., for a few hours each
week. Id. The Children do, however, have well-developed relationships with Mother and Father.
Id. at 69.
67
Appellants’ Opening Br. at 37.
68
TPR Order at 76. The Family Court explained that the Children are receiving the respective IEP,
speech, behavioral, and occupational therapy that they require and are making progress on their
individual goals. Id. at 70–71. For example, J.F. is no longer considered nonverbal and is toileting
successfully, and although N.F.’s behaviors remain challenging, the frequency of his outbursts has
decreased, and his academic performance has begun to improve. Id. at 70–73.
25
(43) Although Mother and Father contend that the Family Court failed to

give proper weight to the progress that they made on their respective case plans69

(factor six), the court specifically stated:

To her credit, Mother continues her mental health treatment and completed a
parenting program. To his credit, Father completed both a parenting program
for domestic violence interrelations; his interactions with Mother have
improved (best interest factor 7). Neither parent has any significant
criminality that risks the Children’s welfare (best interest factor 8). However,
these considerations are outweighed by other factors.70

Namely, as to factor six, the Family Court found that the parents had not consistently

met their obligations to provide for the Children’s basic care and educational needs.71

Mother and Father attended some of the Children’s health appointments, but Father

was often late and did not always engage appropriately with the provider. 72 The

court also noted that, “even after repeated interventions and with extensive help,

Mother and Father were not able to provide the type of specialized care the younger

children [needed] during their trial reunification.”73

(44) The Children’s special needs compounded the demands on Mother and

Father, who themselves have cognitive, developmental, mental, or behavioral health

needs (factor five). The court explained that it was “satisfied that these needs

69
Appellants’ Opening Br. at 38.
70
TPR Order at 76 (emphasis added).
71
Id.
72
Id. at 73.
73
Id. at 78.
26
necessitate substantial, permanent supports for Mother and Father, and make it

nearly certain that Mother and Father will not, together or individually, be able to

consistently meet their parenting responsibilities (best interest factors 5 and 6).”74

(45) The Family Court thoroughly discussed and made written factual

findings as to all the best-interest factors enumerated in Section 722(a) and

determined through an orderly and logical deductive process that the termination of

Mother and Father’s parental rights was in the Children’s best interest.75 The parents

have not shown that the Family Court abused its discretion in performing the best-

interest analysis.

For the foregoing reasons, we conclude that there is no merit to Mother and

Father’s appeal. NOW, THEREFORE, IT IS ORDERED that the judgment of the

Family Court is AFFIRMED.

BY THE COURT:

/s/ Abigail M. LeGrow
Justice

74
Id. at 75.
75
TPR Order at 67–71.
27