Clarifying “Failure to Plan” as a Ground for Termination of Parental Rights: Banks v. Division of Family Services

1. Introduction

In Banks v. Department of Services for Children, Youth and Their Families (2025), the Supreme Court of Delaware addressed the circumstances under which parental rights may be terminated for “failure to plan adequately for a child's needs” under 13 Del. C. § 1103(a)(5)(a). Emily Banks (“Mother”) appealed the Family Court’s order terminating her parental rights to her infant son. The Division of Family Services (“DFS”) and the Office of the Child Advocate defended the decision below. This case involved allegations of dependency and neglect, Mother’s inconsistent engagement with mental-health services, unstable housing, and very limited visitation over an eighteen-month period.

2. Summary of the Judgment

The Supreme Court affirmed the Family Court’s decision. It held that DFS had shown by clear and convincing evidence (1) Mother had failed to plan adequately for her child’s basic and developmental needs over the roughly eighteen months the child was in foster care, and (2) termination of her parental rights was in the child’s best interests. The Court sustained the Family Court’s findings that Mother did not secure stable housing, did not maintain consistent visitation, and did not comply with key elements of her reunification case plan—despite being granted extensions when she reported a housing-deposit scam. The Court further affirmed that the statutory framework requires proof of a ground for termination plus proof that termination is in the child’s best interests, both by clear and convincing evidence.

3. Analysis

3.1 Precedents Cited

• Shepherd v. Clemens, 752 A.2d 533 (Del. 2000): Established the two-step analysis under 13 Del. C. § 1103(a)—first, proof of a statutory ground; second, proof that termination is in the child’s best interests.
• Wilson v. Division of Family Services, 988 A.2d 435 (Del. 2010): Clarified the applicable standards of review—de novo review of legal rulings, limited review of factual findings, abuse-of-discretion if law correctly applied.
• Powell v. Department of Services for Children, Youth & Their Families, 963 A.2d 724 (Del. 2008): Confirmed that both statutory grounds and best-interest determinations must be proven by clear and convincing evidence.
• Kline v. Division of Family Services, 2023 WL 2259101 (Del. 2023): Described the statutory requirement for periodic hearings after a child’s removal from the home and the procedures under 13 Del. C. § 2514 and Family Court Rules.

These authorities guided the Supreme Court’s application of statutory criteria and standards of review. They reinforced that a parent’s failure to complete essential tasks in a DFS case plan—such as securing housing, maintaining visits, and complying with treatment—can satisfy the “failure to plan” ground.

3.2 Legal Reasoning

The Court applied the two-step statutory framework:

1. Ground for Termination: Under 13 Del. C. § 1103(a)(5)(a), DFS must show by clear and convincing evidence that a parent “failed to plan adequately for the child's needs.” In Banks, the Family Court found Mother remained in Maryland, provided no stable housing or lease, attended visits only sporadically (once in person in August 2023, four times total), and inconsistently engaged in mental-health treatment. The Supreme Court held these findings were not clearly erroneous.
2. Best-Interest Determination: Under 13 Del. C. § 722 and § 1103(a), the Court also considers factors such as the child’s safety, stability, and continuity of care in foster placement. The Family Court concluded the child was thriving in foster care, had a consistent caregiver, and that termination would serve his emotional and physical welfare. The appellate court found no abuse of discretion in this weighing of factors.

The Court further addressed Mother’s arguments that counsel had “failed” her and that DFS had unfairly characterized her housing. It held counsel’s Rule 26.1(c) motion to withdraw was proper—counsel conducted a conscientious review and found no meritorious appeal issues—and that Mother’s minimal progress did not undermine the overall finding of failure to plan.

3.3 Impact

This decision reaffirms Delaware’s rigorous enforcement of reunification case plans and clarifies that:

• Courts will grant extensions when a parent faces genuine obstacles (e.g., a housing scam), but subsequent inaction or inconsistency may still support termination.
• “Failure to plan” encompasses not only housing and visits but also follow-through on mental-health treatment and compliance with probation conditions.
• Parental rights will be terminated if clear and convincing evidence shows a prolonged period of insufficient engagement, even where a parent makes some progress.

Future litigants and courts should note that partial compliance with discrete case-plan elements does not necessarily defeat the “failure to plan” ground if overall progress is insufficient to assure the child’s well-being.

4. Complex Concepts Simplified

Dependency

A legal status defined in 10 Del. C. § 901(8) where a child’s caregiver cannot or will not provide necessary care (e.g., food, shelter, safety).

Termination of Parental Rights (TPR)

A court order that permanently ends the legal parent-child relationship, freeing the child for adoption.

Clear and Convincing Evidence

A medium-high standard of proof requiring a firm belief or conviction in the truth of the allegations.

Case Plan

A structured set of requirements (housing, treatment, visits, education) that a parent must complete to achieve reunification.

5. Conclusion

Banks v. DFS affirms that Delaware courts will terminate parental rights when a parent, over a substantial period, fails to make consistent, verifiable progress on critical reunification tasks. The decision clarifies the application of 13 Del. C. § 1103(a)(5)(a) and underscores that both statutory grounds and best-interest findings must be supported by clear and convincing evidence. This ruling sends a clear message: partial or sporadic compliance is insufficient where a child’s safety and stability demand reliable parental engagement.