Handlon, Colt v. DFS and OCA TPR

IN THE SUPREME COURT OF THE STATE OF DELAWARE

COLT HANDLON,1 §
§
Respondent Below, §
Appellant, §
§ No. 317, 2025
v. §
§ Court Below: Family Court
DIVISION OF FAMILY SERVICES § of the State of Delaware
and OFFICE OF THE CHILD §
ADVOCATE, § C.A. No. CS24-02-03TS
§
Petitioners Below, §
Appellees. §

Submitted: February 4, 2026
Decided: February 12, 2026

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

ORDER

The Court, having considered the briefs and the record below, and after oral

argument, rules as follows:

(1) Colt Handlon (“Father”) appeals from a Family Court decision

terminating his parental rights in his two minor children. For the first time on appeal,

Father raises constitutional arguments. For the reasons explained below, we hold

1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
that the court did not plainly err or exceed its discretion in terminating father’s

parental rights. Thus, we affirm.

(2) Father’s minor children (“Minor Children”) came under the care of the

Division of Family Services (“DFS”) in April 2023 after one of the Minor Children

ingested fentanyl and cocaine while being cared for by A.S. (“Mother”). The child

had to be revived with Narcan.2 At the time, Father was incarcerated on felony level

aggravated menacing charges. His counsel represented to the court that Mother was

one of his alleged victims.3

(3) Shortly thereafter, DFS created reunification case plans for both Mother

and Father. Among other things, Father’s plan required him to obtain a

psychological evaluation and follow the treatment recommendations.4 Dr. Joseph

Zingaro, who conducted Father’s evaluation, testified that he recommended a

substance abuse evaluation and anger management training.5 Over the next two

years, the Family Court held interim review and status hearings. At each juncture,

2
See App. to Opening Br. at A1 [hereinafter “A__”] (After-Hours Emergency DFS Req. for
Custody).
3
See A3 (Ex Parte Custody Order on DFS Filings); A12 (Statement of Father’s Counsel Waiving
Right to Contested Adjudicatory Hr’g).
4
See A65–73 (Father’s Reunification Case Plan).
5
App. to DFS Answering Br. at B9–10 [hereinafter “B__”] (Test. of Dr. Joseph Zingaro).

2
the court determined that it was in the best interests of the Minor Children to remain

in DFS custody.

(4) After being released from custody, Father was re-incarcerated in

February 2024 for about one year for violating the terms of his probation.6 When

Father was not incarcerated, he lived with his father, the Minor Children’s paternal

grandfather (“Paternal Grandfather”).7 Also during this two-year period, the Minor

Children’s paternal grandmother (“Paternal Grandmother”), who lived in South

Carolina, filed a petition for guardianship. South Carolina, however, denied two

separate Interstate Compact on the Placement of Children (“ICPC”) requests. An

approved ICPC request establishes that an out-of-state placement is acceptable to

the receiving state.8

(5) DFS eventually moved to terminate Mother and Father’s parental

rights. On May 22, 2025, the Family Court held a final termination of parental rights

and guardianship hearing. Even though the Family Court had granted Paternal

Grandmother’s earlier request for a hearing continuance, she did not appear. The

6
B24–26 (Test. of C. Bowden, Father’s Probation Officer); see also B74–75 (Test. of A. Hunt-
Goodge, DFS Treatment Worker).
7
See B75 (Test. of A. Hunt-Goodge, DFS Treatment Worker); A171 (Test. of Father).
8
See A150–51 (Nov. 25, 2024 ICPC Recons. Denial).

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Family Court dismissed her guardianship petition.9 That dismissal is not challenged

on appeal.

(6) On July 2, 2025, the Family Court issued its written decision

terminating Mother’s and Father’s parental rights. Only Father appeals that decision.

The Family Court began by observing that, “[I]n Delaware, a two-step analysis must

be completed when determining whether to terminate parental rights.”10 First, the

court observed, it “must determine that an enumerated statutory basis to terminate

parental rights has been established under Title 13, Section 1103(a) of the Delaware

Code.”11 Second, it must find that “termination of parental rights is in the child’s

best interest” under factors provided for in 13 Del. C. § 722(a).12

(7) After noting that Mother consented to termination of her parental rights,

the Family Court analyzed the statutory basis for terminating Father’s parental

rights. Applying a clear and convincing evidence standard, it found that Father

“failed to plan adequately for the physical needs or mental health and emotional

health and development of [the Minor Children].”13 The Family Court supported its

9
A36–38 (Family Ct. Op. Dismissing Paternal Grandmother’s Pet. for Guardianship).
10
Opening Br. Ex. A (Family Ct. Op. on Termination of Parental Rights at 17 [hereinafter “Op.”]).
11
Id.
12
Id.
13
Id. at 18; see 13 Del. C. § 1103(a)(5).

4
conclusion with the following factual findings: “there have been huge gaps in

[Father’s] contact with the [Minor Children], due to his incarceration;”14 Father did

not “appropriately address[] substance abuse concerns;”15 and Father had not

“engaged in anger management treatment.”16 Although the court considered

Father’s request for more time to complete his case plan and address his domestic

violence concerns, it found that the Minor Children’s two year custody status and

Father’s continuing substance abuse and anger management issues weighed strongly

in favor of termination.17

(8) The Family Court also found by clear and convincing evidence that the

best interest factors weighed in favor of terminating Father’s parental rights. When

the Minor Children first came into foster care, the court noted, “they did not

understand simple things, such as how to walk on steps or how to walk from grass

to a sidewalk.” Now, because of “exposure to normal activities,” “they run around

and play like normal five-year-old kids.”18 In addition, although the Minor Children

were still too young to testify about their wishes, the Family Court considered that

14
Op. at 21.
15
Id.
16
Id. at 22.
17
See id. at 22–23.
18
Id. at 25.

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the Office of the Child Advocate (“OCA”), which represented the Minor Children,

favored terminating parental rights.19

(9) While weighing the best interest factors, the court also factored in the

possibility of placement with members of Father’s extended family. At one time the

court believed “that this matter might possibly resolve itself through an award of

guardianship to members of Father’s extended family in South Carolina.”20

Ultimately, however, the court found that “a home in South Carolina was not

approved, and members of the Father’s family in South Carolina did not appear for

a guardianship hearing[.]”21 Considering Father’s history of domestic violence and

failure to address his substance abuse and anger management issues, the Family

Court terminated Father’s parental rights.

(10) On appeal, Father argues that the trial court erred in terminating his

parental rights because it “failed to meaningfully consider alternative remedies.”

Specifically, Father argues that, “[i]n light of the existence of suitable family and the

absence of an adoptive resource to effectuate permanency for the Minor Children,”

strict scrutiny applied to DFS’s motion. According to Father, the State did not

demonstrate that terminating his parental rights was the least restrictive means to

19
Id. at 24.
20
Id.
21
Id.

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advance a compelling State interest.22 Notably, Father does not allege a procedural

due process violation.23

(11) In response, DFS argues that, as an initial matter, Father did not raise

his constitutional argument in the Family Court. Thus, it should be reviewed for

plain error. Regardless, DFS argues that the State met its burden even if heightened

scrutiny was warranted.24 DFS contends that, contrary to Father’s suggestion, “the

trial court considered all available permanency options” for the Minor Children.25

Similarly, OCA argues that Father’s assertion that the trial court “failed to

meaningfully consider alternative remedies” was “unsupported by the record.”26 In

other words, OCA contends, other “alternative remedies” were “not viable.”27

(12) Father agrees that his constitutional arguments are reviewed for plain

error.28 “Plain errors are ‘material defects which are apparent on the face of the

record, which are basic, serious, and fundamental in their character, and which

22
Opening Br. 10.
23
Id. at 35 (“Father concedes that all procedural due process requirements were met . . . .”).
24
See DFS Answering Br. 32–47.
25
Id. at 9.
26
OCA Answering Br. 7.
27
Id.
28
Oral Argument Video at 4:41–50 (“The Court: You concede that this substantive due process
argument was not raised below, is that correct? Counsel: I do concede that this is a plain error
standard of review today, yes.”).

7
clearly deprive an accused of a substantial right, or which clearly show manifest

injustice.’”29 As we recently explained in Suber v. State, “[t]o consider issues under

plain error review, four questions must be answered.”30 Those questions are

whether: (i) there is an adequate record; (ii) the error was forfeited and not waived;

(iii) the error was plain; and (iv) the error adversely affected the substantial rights of

the party.31

(13) To resolve Father’s argument, we can go straight to whether the Family

Court plainly erred by not engaging in strict scrutiny review. “An error cannot be

plain ‘if neither this Court nor any other binding authority (which . . . includes the

United States Supreme Court) has definitively ruled on the issue, and if other courts

are divided.’”32 Father concedes that we have “declined to apply” his proposed

heightened scrutiny analysis in two recent cases.33 Thus, the Family Court could not

have plainly erred in applying existing Delaware precedent.

29
Suber v. State, __ A.3d __, 2026 WL 184867, at *5 (Del. Jan. 15, 2026) (quoting Wainwright v.
State, 504 A.2d 1096, 1100 (Del. 1986)).
30
Id.
31
Id. at *5–6.
32
Id. at *5 (quoting Johns v. State, __ A.3d __, 2025 WL 3637521, at *9 (Del. Dec. 16, 2025)).
33
Opening Br. at 35; see Sierra v. Dept. of Svs. for Child., Youth & their Fams., 238 A.3d 142, 156
(Del. 2020) (“The Supreme Court of the United States has described parental rights as
fundamental, but has generally avoided deciding on a particular standard of review for all cases
addressing parental rights.”); Schnell v. Dept. of Svs. for Child., Youth & their Fams., 338 A.3d
1279, 1286–87 (Del. 2025) (rejecting respondent-appellant’s argument that a § 1103 statutory basis

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(14) Next, we review the Family Court’s decision to see whether the court

exceeded its discretion. Under 13 Del. C. § 1103(a)(5), if a child is in DFS custody

for at least one year and the Family Court finds by clear and convincing evidence

that “the parent is unable or has failed to plan adequately for the child’s needs, health

and development,” the court has a statutory basis to terminate parental rights.34

Here, the Family Court found that Father “failed to adequately plan” because in the

two-year period the Minor Children were in DFS custody, there were large gaps in

the Father’s contact with the Minor Children, and Father failed to address his

substance abuse and anger management issues.

(15) In O’Conner v. Department of Services for Children, Youth and their

Families, we affirmed a Family Court decision to terminate parental rights where the

court found that the parents “failed to adequately plan” when “[n]either parent had

completed the required parenting classes or been consistent in their mental health or

substance abuse treatment.”35 Like O’Conner, the record here establishes that Father

did not take any steps to address his alcohol and anger management issues,36 which

for terminating parental rights was unconstitutional as applied because it did not incorporate a
“least restrictive means” component).
34
Powell v. Dept. of Svs. for Child., Youth & their Fams., 963 A.2d 724, 731 (Del. 2008).
35
82 A.3d 730, 2013 WL 6389794, at *2 (Del. Dec. 5, 2013) (TABLE).
36
See B92 (Test. of Father) (admitting that other than a parenting class, at the time of the final
termination hearing, he had not completed any elements of his reunification case plan); App. to
OCA Answering Br. at C50–51 [hereinafter “C__”] (Test. of A. Hunt-Goodge, DFS Treatment
Worker) (testifying that as of the termination of parental rights hearing, Father “has not been []

9
is particularly notable because his alcohol relapse in February 2024 was one of the

reasons Father’s probation officer cited for re-incarceration.37

(16) Furthermore, Father was a “perpetrator of domestic violence,” which

creates a “presumption that precluded [Father] from having legal and physical

custody of the [Minor Children].”38 Father still had “four months” of a “26-week

domestic violence program” left to complete,39 which he did not begin “until the

[Minor Children] had been in foster care for almost 2 years.”40 As the Family Court

correctly observed, parents are not “afforded an indefinite amount of time to

complete their reunification case plans.”41 And under federal law, “in the case of a

child who has been in foster care under the responsibility of the [s]tate for 15 of the

most recent 22 months,” the state is required to file a petition to terminate parental

compliant with the case plan that was put before him and he still has not completed any element
expect for parenting class . . . .”).
37
See, e.g., C19–21 (Test. of C. Bowden, Father’s Probation Officer) (testifying that Father was
“unsuccessfully discharged from the American Treatment Network” because “he did not make it
to several appointments and continued to test positive for alcohol”).
38
Butler v. Evans, 246 A.3d 556, 2021 WL 245258, at *2 (Del. Jan. 25, 2021) (TABLE) (citing 13
Del. C. § 705A (“Notwithstanding other provisions of this title, there shall be a rebuttable
presumption that no perpetrator of domestic violence shall be awarded sole or joint custody of any
child.”)).
39
Op. at 23.
40
Id. at 27.
41
Id. at 22.

10
rights.42 Here, it is undisputed that the Minor Children were in DFS custody since

April 2023.

(17) In addition to a statutory basis for termination, the Family Court did not

exceed its discretion when it found, by clear and convincing evidence, that it was in

the best interests of the Minor Children to terminate Father’s parental rights. The

factors the Family Court uses to determine whether termination is in a child’s best

interest are set forth in 13 Del. C. § 722. There is no real dispute that, based on the

record before the Family Court, these factors weighed heavily in favor of terminating

Father’s parental rights.

(18) Father’s argument on appeal is largely focused on the court’s decision

to not place the Minor Children with family members – the third factor. The Family

Court “believed at one point that this matter might possibly resolve itself through an

award of guardianship to members of Father’s extended family in South Carolina.”43

But South Carolina denied two separate ICPC requests to place the Minor Children

with their Paternal Grandmother. The second ICPC denial notes that Paternal

Grandmother “has demonstrated [a] continued lack of motivation and cooperation”

and neither she nor her household members had “completed fingerprint background

42
42 U.S.C. § 675(5)(E).
43
Op. at 24.

11
checks, nor provided forms and information requested.”44 As the Family Court judge

explained to Paternal Grandmother, a “Delaware judge cannot place [the Minor

Children] in your home and grant you guardianship in South Carolina unless South

Carolina approves[.] That’s the law.”45 The ICPC denials aside, the Paternal

Grandmother missed a scheduled virtual visit with the Minor Children on their

birthday,46 refused to meet with the Minor Children when she was in Delaware,47

and failed to appear at the May 2025 guardianship hearing, despite receiving a

continuance of the first hearing. No one other than Paternal Grandmother petitioned

the court for guardianship of the Minor Children. To the extent Father contends that

DFS should have done more to encourage Paternal Grandfather to become an

adoptive resource, we note that, because Father continues to reside with Paternal

Grandfather, the same statutory policy preventing placement with Father applies to

Paternal Grandfather.48

44
A151 (Nov. 25, 2024 ICPC Recons. Denial).
45
A133 (Post-Permanency Hr’g Tr.).
46
C61–62 (Test. of V. Siegel, Foster Parent).
47
C55–56 (Test. of J. Jackson, DFS Permanency Worker).
48
See 13 Del. C. § 705A(b) (“Notwithstanding other provisions of this title, there shall be a
rebuttable presumption that no child shall primarily reside with a perpetrator of domestic
violence.”) (emphasis added).

12
(19) The Family Court took great care to consider the best interests of the

Minor Children and Father’s life circumstances that prevented him from providing

for their appropriate care. The court did not plainly err or exceed its discretion in

terminating Father’s parental rights in the Minor Children.

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

Family Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr.
Chief Justice

13