Late-Filed Non-Relative Guardianship Petitions Need Not Delay TPR Proceedings—and Issues Not Substantively Briefed Are Waived

1. Introduction

In Carrie Lloyd v. Department of Services for Children, Youth, and Their Families, the Delaware Supreme Court affirmed a Family Court judgment terminating a mother’s parental rights to two children, J.L. and J.R. The mother (“Mother”) raised two principal appellate issues: (1) whether the Family Court erred in finding she “failed to plan” under 13 Del. C. § 1103(a)(5); and (2) whether the Family Court was required to consider a non-relative guardianship petition filed shortly before the final termination hearing.

The Supreme Court’s order addresses both the substantive termination framework (especially the “failure to plan” ground) and appellate procedure (waiver for inadequate briefing), while also clarifying the Family Court’s discretion to manage its docket in light of tight statutory timelines for termination-of-parental-rights (“TPR”) decisions.

2. Summary of the Opinion

  • The Court affirmed the Family Court’s termination decision.
  • On the “failure to plan” ground, the Court affirmed substantially on the Family Court’s reasoning, emphasizing that “substantial completion” of a case plan is not dispositive if the underlying conditions leading to placement persist.
  • On the guardianship issue, the Court held the argument was waived for lack of substantive briefing and, in any event, would fail because the Family Court acted within its discretion in refusing to consider a late-filed, unserved, non-relative guardianship petition that would have disrupted statutory deadlines and required additional mandatory procedures.

3. Analysis

A. Precedents Cited

Powell v. Div. of Fam. Servs.

The order relies on Powell v. Div. of Fam. Servs. for the key framing of the “failure to plan” analysis: the relevant inquiry is not whether a parent has “substantially completed” a case plan, but whether the “conditions that led to the child’s placement . . . continue to exist.” This shifts the focus from checklist compliance to real-world parental capacity and child safety.

United States v. Johnson and Sierra v. DSCYF

Addressing Mother’s waived Fifth Amendment/due process theories (and noting they were not preserved below), the Court explained:

  • Under United States v. Johnson, the privilege against self-incrimination is personal; Mother could not assert it on behalf of the father.
  • Under Sierra v. DSCYF, although parents may invoke the privilege, they do not have “the right to avoid the consequences” of providing no explanation for a child’s injuries. The Court used this principle to reject the premise that a parent can refuse engagement with core protection concerns yet still claim entitlement to reunification.

Taylor v. Div. of Fam. Servs.

The Court cited Taylor v. Div. of Fam. Servs. to rebut the argument that successful care of a newborn necessarily demonstrates capacity to safely parent the children at issue. The Supreme Court reiterated that doing well with one child does not “to any appreciable degree” establish ability to care for another child subject to a TPR petition, especially where the circumstances and risks differ.

In re COVID-Related Restrictions on Religious Servs. (and Kost v. Kozakiewicz)

For appellate waiver, the Court invoked In re COVID-Related Restrictions on Religious Servs. to enforce the rule that an opening brief must fully state the grounds for appeal with supporting argument and authority; mere “casual mention” is insufficient. The order quotes the principle (via Kost v. Kozakiewicz) that cursory treatment does not preserve an issue for review.

Clark v. Div. of Fam. Servs. and Ralston v. DSCYF

Mother cited Clark v. Div. of Fam. Servs. and Ralston v. DSCYF to argue the Family Court had to consider guardianship before terminating rights. The Supreme Court found both inapposite on this record:

  • Clark v. Div. of Fam. Servs. concerned a context where family members had voluntarily stayed their guardianship petition pending the TPR outcome, and the Family Court was required to implicitly consider guardianship as part of the best-interests analysis. Here, the petition was filed by a non-relative and was filed extremely late.
  • Ralston v. DSCYF held a father’s due process rights were not violated when the court refused to hear a guardianship petition before terminating rights, undercutting (rather than supporting) Mother’s claim of a required sequencing in her favor.

Americas Mining Corp. v. Theriault

On docket control and scheduling, the Court relied on Americas Mining Corp. v. Theriault for the general principle that trial judges have discretion to resolve scheduling matters and control their dockets—discretion the Family Court properly exercised in refusing to derail a pending final TPR hearing.

B. Legal Reasoning

1) “Failure to Plan” under 13 Del. C. § 1103(a)(5)

The Supreme Court affirmed the Family Court’s “failure to plan” determination largely by adopting the Family Court’s reasoning, with the controlling lens supplied by Powell v. Div. of Fam. Servs.: completion of services is not the end point; the court asks whether the risks and conditions that required state intervention remain. In other words, a case plan is a means to a safety outcome, not a scorecard that guarantees reunification.

2) Waiver and Preservation of Issues

The Court applied two related waiver doctrines:

  • Failure to preserve in the trial court: Mother’s Fifth Amendment/due process and “newborn child” arguments were not raised in Family Court and thus were waived.
  • Failure to substantively brief on appeal: Mother’s expert-testimony point and the guardianship argument were deemed waived because they were not developed with coherent legal analysis and supporting authority, as required by Delaware appellate rules (as explained in In re COVID-Related Restrictions on Religious Servs.).

3) Discretion to Decline Consideration of a Late-Filed, Non-Relative Guardianship Petition

Even aside from waiver, the Court held the Family Court acted within its discretion in not considering the guardianship petition filed five business days before the final TPR hearing, where the petition was also not served on the State or the Office of the Child Advocate.

The Court’s reasoning turned on statutory timing and mandatory process:

  • Under 13 Del. C. § 1108(b)(2), the Family Court must issue a TPR decision within 30 days of the final hearing.
  • Guardianship proceedings carry their own hearing and decision timeline (cited by the Court as 13 Del. C. §§ 2326, 2355, 1107(a)), including a decision deadline within 45 days after the hearing.
  • For non-relative guardianship petitions, DSCYF must assess the proposed guardian and submit a report at least one week before the guardianship hearing (13 Del. C. §§ 2324A(a), 2354).

Given these requirements, considering the petition would have forced the Family Court to stay the TPR final hearing, conduct a separate statutory guardianship process (including the Department’s assessment and report), and then reschedule the final TPR hearing—undermining the TPR statute’s command for prompt adjudication. The Court emphasized that the proposed guardian had two months between the first and final TPR hearing dates to file, but waited until the last moment.

C. Impact

  • TPR proceedings will not be readily derailed by last-minute guardianship filings: Particularly where a non-relative petition is filed late and not properly positioned for statutory compliance, the Family Court may proceed to decision without pausing TPR timelines.
  • Reinforcement of “outcome-focused” reunification analysis: By reaffirming Powell v. Div. of Fam. Servs., the Court signals that parents must show that the conditions leading to placement have been remedied, not merely that services were attended or completed.
  • Stricter appellate practice consequences: The decision underscores that Delaware’s Supreme Court will enforce waiver for undeveloped arguments, including in high-stakes family cases.

4. Complex Concepts Simplified

“Failure to plan” (13 Del. C. § 1103(a)(5))
A ground for terminating parental rights when a parent has not made adequate arrangements or progress to safely care for the child, measured by whether the problems that caused removal have actually been fixed—not just whether the parent participated in services.
Waiver on appeal
If an argument is not properly raised in the trial court, or if it is mentioned on appeal without developed reasoning and legal support, the Supreme Court may refuse to consider it.
Non-relative guardianship
A guardianship request by someone who does not fall within the statutory definition of “Relative” (see 13 Del. C. § 2302(16)), which triggers additional assessment and reporting requirements before the court can hold a guardianship hearing.
Docket control / scheduling discretion
Trial courts have authority to manage their calendars and enforce deadlines to ensure cases move efficiently—especially where statutes impose decision deadlines.

5. Conclusion

The Delaware Supreme Court’s order affirms termination of Mother’s parental rights and crystallizes two practical rules. First, under Powell v. Div. of Fam. Servs., “substantial completion” of a case plan does not defeat a “failure to plan” finding when the original safety concerns persist. Second, a last-minute, non-relative guardianship petition—particularly one not properly served and not capable of fitting within mandatory statutory processes—need not be entertained in a way that delays a final TPR hearing and the statute’s prompt decision requirement. Layered over both holdings is a clear procedural message: issues not preserved below or not substantively briefed on appeal will be treated as waived, even in termination cases.