120 A.3d 26 (Del.Fa. 2015), 14-11-4TK, Div. of Family Servs. v. S.P.

Docket Nº:File No 14-11-4TK. CPI No 14-32534
Citation:120 A.3d 26
Opinion Judge:WILLIAM N. NICHOLAS, Judge.
Party Name:DIV. OF FAMILY SERVICES, Petitioner v. S.P., Respondent
Attorney:Tetra Shockley, Esq., for Petitioner. Tabatha Castro, Esq., for Respondent.
Judge Panel:Before WILLIAM N. NICHOLAS, Judge of the Family Court of the State of Delaware:
Case Date:June 03, 2015
Court:Family Court of Delaware

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120 A.3d 26 (Del.Fa. 2015)



S.P., Respondent

File No 14-11-4TK. CPI No 14-32534

Family Court of Delaware, Kent

June 3, 2015

Date of Hearing April 7, 2015.

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Tetra Shockley, Esq., for Petitioner.

Tabatha Castro, Esq., for Respondent.

Before WILLIAM N. NICHOLAS, Judge of the Family Court of the State of Delaware:


Petition for Termination and Transfer of Parental Rights

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In The Interest Of: A.P., born 03/06/04

This is the Court's decision regarding a Petition for Termination and Transfer of Parental Rights filed by the Division of Family Services (" DFS" ), a division of the Department of Services for Children, Youth and Their Families (" Department" ). The Respondent is S.P., the adoptive father of A.P. (" the Child" ).


In March, 2014, S.P. was arrested for systematically sexually abusing the Child and for recording and distributing images of the abuse. The Department, through the DFS, filed for and received temporary emergency custody of the Child at that time. In September, 2014, S.P. pleaded guilty to one count of first-degree rape of a child under the age of twelve, one count of sexual exploitation of a child, and two counts of dealing in child pornography. He was sentenced to a total of seventy years in prison, and he is currently incarcerated.

In 2012, the Department had supported S.P.'s adoption of the Child. The Child was eight years old, and he had serious health issues including cerebral palsy and gastrointestinal problems. Based on the information presented by the Department at that time, another judge of this Court approved the adoption. As it happened, the information supplied by the Department was incomplete because it failed to include prior allegations of abuse against S.P.

Prior to seeking to become an adoptive parent, S.P. had been investigated by the Department for two separate allegations of abuse. S.P.'s stepsister alleged that S.P. had sexually molested her. Both S.P. and the stepsister were minors. The Department and law enforcement authorities investigated and interviewed the stepsister. The investigation elicited further disclosures from the step-sister that an adult uncle had allegedly abused her, too. After the stepsister made those disclosures, the focus of the investigation shifted to the uncle. The record indicates that the uncle was arrested, but it is unclear how his case was resolved. In any event, once the focus shifted to the uncle, investigation into S.P. ceased, and the Department closed that case without any finding against S.P. The other earlier investigation into S.P. involved allegations that S.P. had abused his three-year-old cousin. Those allegations were also sexual in nature, specifically that S.P. had fondled or otherwise touched the boy's buttocks. Again, for unknown reasons, the Department closed that case without further investigation and without any determination against S.P. For reasons explained below, the Department did not disclose these prior allegations of abuse to the Court during the adoption proceedings.1

During much of the instant proceedings, it was unclear to this Court whether S.P. attempted to hide the prior abuse allegations during the adoption proceedings. The allegations were not addressed in the

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adoption records, the adoption home study or any other filings submitted by S.P. or the Department. This Court was left to speculate whether S.P. was asked about the abuse and thereafter, omitted the information or provided false information, or whether S.P. was never asked. In the case of the former, the initial adoption could be seen as the product of a fraud upon the Court and potentially, voided or vacated.2 Voiding the adoption would have spared the Child the delay of lengthy termination proceedings and consistent with the prevailing statutory purpose, given the Child a quicker permanency decision.3 At a minimum, the circumstances under which S.P. became the Child's legal father were germane to whether termination of Parson's rights was in the Child's best interests. Ultimately, it became clear that S.P. was not questioned about the prior abuse by either the Department or the private agency that conducted the adoption home study. The allegations were also absent from the records submitted to the judge who reviewed the adoption petition. Because much of the information on this point was provided during the Court's discussion of the case with counsel in chambers, the Court held a hearing to memorialize the information in the Court's record.

On April 7, 2015, the Court held the final hearing on the petition to terminate S.P.'s parental rights. Though S.P. had initially opposed any termination of his parental rights, he eventually consented at the April 7 hearing. The Court also heard testimony from a Department witness regarding whether termination was in the Child's best interests. Thereafter, the Court reserved decision.


The unfortunate circumstances of this case require the Court to address both the failings in the original adoption procedures and also the instant petition to terminate S.P.'s parental rights.

A. The Department Failed to Disclose Mandatory Information About S.P. During the Adoption Proceedings.

This case has arisen largely as a result of the Department's mistaken attempt to limit, through administrative regulation, the information that the Department reviews and discloses to the Family Court regarding reports of abuse filed against prospective adoptive parents. Under § 309(d)(3) of Title 31, the Department must provide information regarding whether the prospective parents are " named to the Central Register as the perpetrator of a report of child abuse" (emphasis added). At the time § 309(d)(3) was enacted, the " Central Register" was a record of all reports of suspected child abuse received by the Department. Though § 309(d) has not been amended, the Department has since reinterpreted § 309(d)(3) to require only disclosure of reports that the Department determines to be substantiated. Substantiation refers to a finding by the Department that a preponderance of the evidence establishes that the alleged abuse occurred.4 For the reasons explained herein, this interpretation is error because § 309(d)(3) requires the Department to inform the Court of all

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reports of abuse, regardless of whether the Department classifies those reports as substantiated. As a result of its errant interpretation of § 309(d)(3), the Department failed to provide the Court with information regarding allegations against S.P. during the Court's prior adoption proceedings.

1. Statutory Structure and History of § 309

In 1990, the General Assembly enacted § 309(d) to ensure that prospective adoptive parents provide " fingerprints and other necessary information" so that the Department (or an adoption agency) can obtain the parents' criminal and child abuse history.5 Using the fingerprints and information, the Department is required to obtain (1) the individual's entire Delaware criminal history,6 (2) the individual's entire federal criminal history,7 and (3) a certification from the Department " as to whether the individual is named to the Central Register as the perpetrator of a report of child abuse." 8 The Department must then use " case-by-case judgment" to " assess the information and make a determination" as to whether the individual is suitable to become an adoptive or foster parent.9 Once the Department makes its determination, the Department must forward its conclusion, and its investigative results, to the Family Court as part of the adoption proceedings.10 The Court then uses this information in determining whether to approve the adoption.11 Thus, the ultimate determination of the suitability of the prospective adoptive parent rests with the Court, not the Department.

At the time § 309(d)(3) was enacted, " Central Register" referred to " a statewide central registry of all reports [of child abuse] made in the state " (emphasis added) as described at § 905(c) of Title 16.12 This central registry was established

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in 1974 when the General Assembly amended Title 16 to create Delaware's first mandatory reporting requirements for suspected cases of child abuse.13 Under that scheme, the Department was required to maintain a county-by-county registry of serious cases of reported abuse, and statewide, the Department was required to maintain a " central registry" of all reports of abuse made to the Department.14 Not surprisingly, the contemporaneous definition of " central registry" in Title 16 aligned with the description of " Central Register" used in § 309(d)(3).

Since its enactment, § 309(d) has not been amended or otherwise altered.15...

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