Billings v. Department of Services for Children, Youth and Their Families

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL BILLINGS,1 §
§ No. 400, 2023
Respondent Below, §
Appellant, § Court Below–Family Court
§ of the State of Delaware
v. §
§ File No. 23-04-07TN
DEPARTMENT OF SERVICES § Petition No. 23-08512
FOR CHILDREN, YOUTH AND §
THEIR FAMILIES (DSCYF), §
§
Petitioner Below, §
Appellee. §

Submitted: April 3, 2024
Decided: June 4, 2024

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

ORDER

After consideration of the no-merit brief and motion to withdraw filed by

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

Child Attorney’s response, and the Family Court record, it appears to the Court that:

1
The Court previously assigned a pseudonym to the appellant under Supreme Court Rule 7(d).
(1) By order dated October 23, 2023, the Family Court terminated the

parental rights of the appellant, Michael Billings (“Father”), in his minor son (the

“Child”).2 Father appeals.

(2) On appeal, Father’s counsel has filed an opening brief and motion to

withdraw under Rule 26.1(c). Counsel asserts that she has conducted a conscientious

review of the record and the relevant law and has determined that Father’s appeal is

wholly without merit. Counsel informed Father of the provisions of Rule 26.1(c),

provided him with a copy of counsel’s motion to withdraw and the accompanying

brief, and advised him that he could submit in writing any additional points that he

wished for the Court to consider. Father has not provided any points for the Court’s

consideration. The appellee, the Delaware Department of Services for Children,

Youth and Their Families (DSCYF), and the Child’s Attorney have responded to

counsel’s Rule 26.1(c) brief and argue that the Family Court’s judgment should be

affirmed.

(3) In July 2022, following a home birth, the Child was taken to Christiana

Hospital where he tested positive for fentanyl and cocaine. In August, the Child was

transferred to Nemours Children’s Hospital because of respiratory complications. In

September, DSCYF petitioned for an ex parte custody order of the Child upon his

2
The Family Court’s order also terminated the parental rights of the Child’s mother, who
consented to the termination of her rights. We refer only to facts in the record that relate to
Father’s appeal.

2
release from the hospital because, among other things, the parents had not shown a

meaningful interest in the Child’s health or welfare, appeared to be homeless, and

lacked financial support. With the filing of DFS’s dependency-and-neglect petition,

the mandated hearings ensued.3

(4) As of the September 21, 2022 preliminary protective hearing, Father

was presumed to be the Child’s biological father but paternity had not yet been

confirmed. Father appeared to be homeless, had outstanding capiases, and had

refused in-person meetings with DSCYF. The Family Court found probable cause

existed to believe that the Child was dependent in Father’s care and that it was in the

Child’s best interests that he remain in DSCYF’s custody. The Family Court also

found that DSCYF had made reasonable efforts to identify family members as

placement resources. Indeed, DSCYF planned to place the Child with his paternal

uncle following the hearing.

(5) As of the October 18, 2022 adjudicatory hearing, at which Father failed

to appear, testing had confirmed that Father was the Child’s biological father. The

Child, who had been placed with Father’s brother and sister-in-law following the

preliminary protective hearing, was doing well in his placement. Since the

preliminary protective hearing, Father had had two appropriate visits with the Child,

3
When a child is removed from home by DSCYF and placed in foster care, the Family Court is
required to hold hearings at regular intervals under procedures and criteria detailed by statute and
the court’s rules. 13 Del. C. § 2514; Del. Fam. Ct. Civ. Pro. Rs. 212-219.

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but he told DSCYF that his work schedule prevented him from attending additional

visits. Although Father claimed to be employed, he had not provided DSCYF with

proof of employment. The Family Court found that the Child remained dependent

in Father’s care and that it was in the Child’s best interests that he remain in

DSCYF’s custody.

(6) In November 2022, the Family Court held a dispositional hearing to

review the case plan that DSCYF had developed to facilitate Father’s reunification

with the Child. Father failed to appear at the hearing. The Family Court reviewed

Father’s plan, found it to be reasonable, and adopted it as an order of the court.

Father’s plan required him to: (i) obtain and maintain stable housing; (ii) complete

a mental health evaluation and follow any recommended treatment; (iii) complete a

substance abuse evaluation, follow any recommended treatment, and sign consent

forms to permit DSCYF to monitor his progress; (iv) resolve his outstanding

capiases; (v) provide proof of employment to DSCYF; and (vi) complete a parenting

class.

(7) On February 7, 2023, the Family Court held a review hearing. As of

the hearing, Father had scheduled a mental health evaluation as well as a substance

abuse evaluation and was enrolled in parenting classes. However, Father was not

visiting with the Child on a consistent basis, did not have stable housing, and had

not provided proof of employment to DSCYF. The Family Court found that the

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Child remained dependent in Father’s care because the issues surrounding the

dependency finding at the adjudicatory hearing had not yet been resolved. Mindful

that the Child came into DSCYF’s care as an infant, the Family Court advised Father

that the dependency-and-neglect proceedings would move quickly and that he

should bring evidence of any progress that he had made on his case plan to the next

review hearing.

(8) On April 17, 2023, the Family Court held a second review hearing.

Father failed to appear at the hearing. DSCYF reported that Father had completed a

mental health evaluation and follow-up treatment had not been recommended.

Father had also completed a substance abuse evaluation, but DSCYF suspected that

Father had not been honest about his substance abuse issues during the evaluation,

given his pending drug-related criminal charges. DSCYF had therefore advised

Father that he needed to undergo a follow-up substance abuse evaluation to satisfy

this component of his case plan. Father had the aforementioned pending criminal

charges, had not been in contact with his attorney since the February review hearing,

had not provided DSCYF with proof of employment, and was not consistently

visiting with the Child. DSCYF did not have any updated information regarding

Father’s housing situation. At the conclusion of the hearing, the Family Court found

that Father had made little progress on his case plan and that it was in the Child’s

best interests that he remain in DSCYF’s custody. The Family Court also noted that

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DSCYF had filed a motion to change the permanency plan from reunification to

termination of parental rights for purposes of adoption and that the Child’s Attorney

supported the motion. The Family Court scheduled a permanency hearing for June

1, 2023.

(9) Having received no response from Father (or the Child’s mother), the

Family Court granted DSCYF’s motion to change the permanency plan before the

permanency hearing. On April 28, 2023, DSCYF filed a termination-of-parental-

rights (TPR) petition on the basis of Father’s failure to plan adequately for the

Child’s physical needs or mental and emotional health and development.

(10) As of the permanency hearing, at which Father failed to appear, DSCYF

acknowledged that Father had completed the mental-health and parenting-class

components of his case plan. However, Father: (i) continued to live with the Child’s

paternal grandmother, a housing situation that DSCYF deemed inappropriate

because it was temporary; (ii) had not submitted to a follow-up substance abuse

evaluation, (iii) had two sets of pending criminal charges, and (iv) had cancelled

three of six visits with the Child since the last hearing. The Child continued to do

well in his paternal uncle and aunt’s home and had bonded with their biological

daughter, who is the same age as the Child. The Family Court was able to contact

Father by telephone and scheduled a time for him to meet with his attorney before

the TPR hearing.

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(11) At the September 22, 2023 TPR hearing, the Family Court heard

testimony from Father, the Child’s foster mom, the DSCYF treatment supervisor,

and the court appointed special advocate coordinator. The evidence presented fairly

established that Father had successfully completed the mental-health and parenting-

class components of his case plan. However, the evidence also showed that Father

had not completed the substance-abuse or stable-housing components of his case

plan. Moreover, Father had only recently (two days before the TPR hearing)

obtained employment and had not provided proof of his employment or income to

DSCYF. Father also admitted that he had not visited with the Child since July 13,

2023, and had not made day care arrangements for the Child in the event that Father

was permitted to take him home following the TPR hearing. During the course of

his testimony, Father revealed that, unbeknownst to DSCYF, he had had his parental

rights involuntarily terminated in another, older biological child who lives in South

Carolina and had recently learned that he is the biological father of another child

currently in DSCYF custody.

(12) Father’s DSCYF treatment worker’s supervisor opined that Father’s

visits with the Child had simply not been consistent enough for DSCYF to assess his

ability to parent appropriately. Finally, the Child’s foster mother testified that she

and her husband were adoptive resources for the Child, who was thriving in their

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home. Following the hearing, the Family Court issued a written order terminating

Father’s rights in the Child on the basis of his failure to plan. This appeal followed.

(13) On appeal, this Court is required to consider the facts and the law as

well as the inferences and deductions made by the Family Court.4 We review legal

rulings de novo.5 We conduct a limited review of the factual findings of the trial

court to assure that they are sufficiently supported by the record and are not clearly

erroneous.6 If the trial judge has correctly applied the law, then our standard of

review is abuse of discretion.7 On issues of witness credibility, we will not substitute

our judgment for that of the trier of fact.8

(14) The statutory framework under which the Family Court may terminate

parental rights requires two separate inquiries.9 First, the court must determine

whether the evidence presented meets one of the statutory grounds for termination.10

When the statutory basis for termination is failure to plan, the Family Court must

also find proof of at least one additional statutory condition.11 If the Family Court

4
Wilson v. Div. of Family Servs., 988 A.2d 435, 439-40 (Del. 2010).
5
Id. at 440.
6
Id.
7
Id.
8
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
9
Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).
10
Id. at 537.
11
13 Del. C. § 1103(a)(5)(a)(1)-(5) (listing additional conditions).

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finds a statutory basis for termination of parental rights, the court must then

determine whether, under 13 Del. C. § 722, severing parental rights is in the best

interests of the child.12 Both of these requirements must be established by clear and

convincing evidence.13

(15) Here, the Family Court found that DSCYF had proved, by clear and

convincing evidence, that the termination of Father’s parental rights was appropriate

based on his failure to plan adequately for the Child’s physical needs or mental and

emotional health and development14 and that the Child, who came into DSCYF’s

care as an infant, had been in DSCYF custody for more than six months.15 The

Family Court then examined the best-interests factors set out in 13 Del. C. § 722 and

found, by clear and convincing evidence, that termination of Father’s parental rights

was in the Child’s best interests.

12
Shepherd, 752 A.2d at 536-37.
13
Powell v. Dep’t of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731 (Del.
2008).
14
13 Del. C. § 1103(a)(5).
15
Id. § 1103(a)(5)(a)(1). The Family Court also cited Father’s involuntary TPR involving his
older son in South Carolina and DSCYF’s involvement with his other child in Delaware as an
additional statutory condition. See id. § 1103(a)(5)(a)(2). Because it appears that DSCYF did not
know of either of these proceedings when it filed the TPR petition, we affirm the Family Court’s
decision on the ground that DSCYF established by clear and convincing evidence the additional
statutory condition that the Child came into care as an infant and had been in DSCYF custody for
six months at the time of the TPR hearing.

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(16) Father has not submitted any points for this Court’s consideration on

appeal. Appointed counsel represents that she has determined that no arguably

appealable issue exists but also states that if “required to make an argument,” she

would argue that the evidence supported a finding that Father had completed the

housing, employment, and substance-abuse components of his case plan.16 But

Father testified that: (i) he was aware that DSCYF did not consider his current

housing situation stable or appropriate; (ii) he had not scheduled, much less

completed, a follow up substance-abuse evaluation; and (iii) he had not provided

proof of his employment or income to DSCYF. We therefore find no merit to

counsel’s hypothetical argument.

(17) Having carefully reviewed the parties’ positions and the record on

appeal, we find that the Family Court’s factual findings are supported by the record,

and we can discern no error in the court’s application of the law to the facts. We

therefore conclude that Father’s appeal is wholly without merit and devoid of any

arguably appealable issue. We are satisfied that Father’s counsel made a

conscientious effort to examine the record and the law and properly determined that

Father could not raise a meritorious claim in this appeal.

16
Opening Br. at 17. But once counsel has made a conscientious examination of the record and
the law and concluded that the appeal is wholly without merit, she should not pose hypothetical
arguments that she has already determined to be without merit. Rather, counsel should refer to
any facts, evidence, or significant pretrial and trial applications and rulings that may support the
appeal and provide the appellant’s points, if any. Del. Supr. Ct. Rule 26.1(c)(i).

10
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court be AFFIRMED. Counsel’s motion to withdraw is moot.

BY THE COURT:

/s/ Karen L. Valihura
Justice

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