Div. of Family Servs. v. O'Bryan

• Decision Date: 31 May 2017
• Docket Number: No. 175, 2016,175, 2016
• Citation: 164 A.3d 58
• Parties: DIVISION OF FAMILY SERVICES, Respondent Below, Appellant, v. Mark O'BRYAN, Petitioner Below, Appellee.
• Court: United States State Supreme Court of Delaware

164 A.3d 58

DIVISION OF FAMILY SERVICES, Respondent Below, Appellant,

v.Mark O'BRYAN,¹ Petitioner Below, Appellee.

No. 175, 2016

Supreme Court of Delaware.

Submitted: May 3, 2017

Decided: May 31, 2017

Victoria Witherell, Esquire (argued) and Jonathan Harting, Esquire, Department of Justice, Wilmington, Delaware for Respondent Below, Appellant Division of Family Services.

Mark O'Bryan, Petitioner Below, Appellee, pro se.

Leslie B. Spoltore, Esquire, Fox Rothschild LLP, Wilmington, Delaware; George R. Tsakataras, Esquire, The Law Office of George R. Tsakataras, P.A., Wilmington, Delaware; Achille C. Scache, Esquire (argued), Giordano, DelCollo, Werb & Gagne, LLC, Wilmington, Delaware, Amicus Curiae in Support of Petitioner Below, Appellee, Mark O'Bryan.

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

SEITZ, Justice:

The Child Protection From Sex Offenders Act (the "Sex Offenders Act" or "Act") establishes "a rebuttable presumption that no sex offender shall be awarded sole or joint custody of any child, that no child shall primarily reside with a sex offender, and that no sex offender shall have unsupervised visitation with a child."² With certain exceptions, the sex offender can rebut the presumption by demonstrating his compliance with the conditions in the statute.

This appeal raises one issue—whether the Sex Offenders Act and its rebuttable presumption operate outside of Family Court custody proceedings. We conclude, as did the Family Court, that the General Assembly intended that the Act and its rebuttable presumption to operate only when the Family Court determines custody, residency, and visitation as part of a Family Court custody proceeding. We therefore affirm the Family Court's order.

I.

The facts of this case are essentially undisputed.³ Mark O'Bryan lives in Delaware with his wife, their daughter, and his wife's two daughters. They lived together as a family for over eight years. O'Bryan is the sole financial provider for the family.

On January 13, 2016, O'Bryan's wife hit and scratched him during an argument. O'Bryan called the police to de-escalate the situation. The police ended up filing criminal charges only against O'Bryan's wife. Although not involved in the altercation, one of O'Bryan's stepdaughters (then age 17) and his biological daughter (then age 2) were present during the incident. Because the children were witnesses to the fight, DFS conducted a follow up investigation.

DFS learned as part of its investigation that O'Bryan was a Tier II sex offender because of his 2002 guilty plea to rape fourth degree.⁴ DFS went to the family home on February 3, 2016, and told O'Bryan that, based on his status as a Tier II sex offender,⁵ and children living in the home, O'Bryan had to leave. O'Bryan left the family home that night.

The next day, O'Bryan filed a petition in the Family Court to return home. The Family Court granted the petition on an ex parte basis pending a hearing scheduled for February 9, 2016. At the February 9 hearing, DFS argued that the Sex Offenders Act prohibited O'Bryan from primarily residing with any child unless he rebutted the statutory presumption. O'Bryan, his wife, and a DFS representative testified at the hearing. His wife testified that she wanted her husband to return home, and that she had no concern about him being around her or her children.⁶ O'Bryan admitted that if the Act applied, he was unable to rebut the presumption because he did not complete his sex offender therapy.⁷

The Family Court judge asked the DFS witness whether there were concerns about the children's safety. The DFS witness testified that DFS had "no proof of anything" and had "no reason to believe that anything specifically ha [d] happened to these kids other than there had been domestic violence in their presence."⁸ O'Bryan also was not under any restrictions as a Tier II sex offender, such as restrictions limiting his contact with children.

On March 8, 2016, the court granted O'Bryan's petition to return home, and held that:

13 Del. C. § 724A does not on its face provide for the removal of a parent from the home of an intact family, nor can the Court conclude that the legislature intended for the statute to apply in such a manner. Section 724A merely creates a presumption that a sex offender parent will not be awarded custody, primary residency[,] or unsupervised visitation by the Court, without first rebutting the presumption. The Court is not awarding any type of custody or residency in instances where there is no dispute between parents or between a parent and DFS. In instances where there is no ongoing custody issue, the registered party is not required to rebut the presumption and there actually is no forum in which to apply the presumption.⁹

DFS has appealed the Family Court's order and argues that the Sex Offenders Act prohibits any children from residing with a Tier II or III sex offender unless the sex offender first rebuts the Act's presumption by satisfying the six conditions in the Act. In response, O'Bryan contends that the Family Court correctly interpreted the Sex Offenders Act. According to O'Bryan, the Act only operates in Family Court custody proceedings. In other words, the Act does not grant DFS authority to require a sex offender to leave a family home. Our review of the Family Court's interpretation of the Act is de novo .¹⁰

II.

The General Assembly enacted the Sex Offenders Act "to protect children from sex offenders by presuming that it is not in the best interests of a child to be placed in a custodial, residential or unsupervised visitation arrangement with a sex offender, regardless of whether the sex offender's victim was an adult or a child."¹¹ A "sex offender" is "any person designated by the courts of this State as a Risk Assessment Tier II or III sex offender under § 4121 of Title 11, or a person designated and treated as such by a court or a jurisdiction outside of Delaware, regardless of whether the sex offender's victim was an adult or a child."¹² Section 724A of the Act imposes a rebuttable presumption "that no sex offender shall be awarded sole or joint custody of any child, that no child shall primarily reside with a sex offender, and that no sex offender shall have unsupervised visitation with a child."¹³ With certain exceptions, a sex offender can overcome the presumption by satisfying the six factors listed in the Act.¹⁴ The Family Court decided that the rebuttable presumption operated only in pending custody proceedings, which can include not just legal custody, but also residency and visitation determinations by the Family Court.

DFS's argument on appeal is relatively simple. Recognizing that "custody" is "awarded" under the statute, which implies a pending Family Court custody proceeding, DFS parses the language of § 724A into "three separate and distinct dependent clauses": (1) the "Custody Clause"—"that no sex offender shall be awarded sole or joint custody of any child"; (2) the "Residency Clause"—"that no child shall reside primarily with a sex offender"; and (3) the "Visitation Clause"—"that no sex offender shall have unsupervised visitation with a child."¹⁵ According to DFS, if each of the clauses operate independently, the Residency Clause "states clearly and unequivocally that no child shall reside with a sex offender" and "does not limit the residency prohibition to children who are the subject of a pending petition."¹⁶ Thus, according to DFS, it had the power to require O'Bryan to leave the family home until he rebutted the statutory presumption.

By isolating the clauses in § 724A, however, and treating them as independent requirements, DFS violates a fundamental rule of statutory construction—that a statute's words and phrases should not be read in isolation.¹⁷ Instead, the statute must be read as a whole, mindful of the legislative intent expressed in the purpose of the statute.¹⁸ When the clauses referring to "custody," "residency," and "visitation" are placed in their proper statutory context, it is apparent that they are all terms of art used in custody proceedings and do not operate as stand-alone restrictions. Thus, the General Assembly intended § 724A's rebuttable presumption to operate only when the Family Court determines custody, residency, and visitation as part of a Family Court custody proceeding.

A.

The Sex Offenders Act is part of Subchapter II of Chapter 7A of Title 13, which deals exclusively with Family Court custody proceedings. In a Family Court custody proceeding, the court determines "the legal custody and residential arrangements for a child in accordance with the best interests of the child."¹⁹ Whether the parents are awarded joint custody or one parent has sole legal custody, the Family Court must determine "with which parent the child shall reside and a schedule of visitation with the other parent ...."²⁰ Thus, it is logical that the Sex Offenders Act would refer not just to the court's custody "award," but also to its residency and visitation determinations in custody proceedings. Indeed, the statutes governing custody proceedings require that the custody determination be made in compliance with the Sex Offenders Act—"[a] custody proceeding between parents shall be determined in accordance with §§ 722, 729, and Chapter 7A [The Child Protection from Domestic Violence and Sex Offenders Act] of this title, whichever shall apply."²¹

B.

Turning to the language of the Sex Offenders Act, DFS's interpretation cannot be reconciled with the General Assembly's use of the term "rebuttable presumption." A rebuttable presumption "is a true rule of evidence and its only effect is to shift the burden of producing evidence."²² Without a pending case, there is no burden of proof to shift. Here, the only way O'Bryan could have rebutted the presumption—as DFS suggested he should—is if a proper party in a custody case under Chapter 7 of Title 13 brought a petition under that Chapter for custody, residency, or visitation against him.²³

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