No COVID-19 Excuse for Parental Inaction: Delaware Supreme Court Affirms TPR for Unintentional Abandonment and Failure to Plan

Introduction

In Storm v. Department of Services for Children, Youth and Their Families (DSCYF), Division of Family Services (DFS), the Delaware Supreme Court affirmed the Family Court’s termination of a father’s parental rights (TPR) to his daughter, born in November 2018. The appeal came to the Court under Supreme Court Rule 26.1(c) via a no-merit brief and counsel’s motion to withdraw. The Supreme Court conducted the required independent review and found no arguable issues for appeal, concluding that the Family Court’s factual findings were supported by the record and its legal conclusions were correct.

The case centers on a father who neither filed for custody nor established or exercised parental rights for an extended period, and whose inconsistent efforts after late re-engagement did not remedy a prolonged lack of contact and planning. The Court upheld termination on two statutory grounds—unintentional abandonment (13 Del. C. § 1103(a)(3)) and failure to plan (13 Del. C. § 1103(a)(5))—and concluded, after weighing the best-interest factors under 13 Del. C. § 722, that severance of parental rights was in the child’s best interests.

Notably, the Court rejected the father’s argument that COVID-19-era court closures prevented him from seeking custody, underscoring that filings remained available throughout the pandemic and that courthouses reopened to the public in June 2020. The Court also affirmed despite the Family Court’s abbreviated analysis of the additional sub-elements under § 1103(a)(3)(b), because the record independently satisfied the statutory requirements by clear and convincing evidence.

Summary of the Opinion

The Supreme Court affirmed the Family Court’s May 13, 2025 order terminating the father’s rights based on:

Unintentional abandonment under 13 Del. C. § 1103(a)(3), supported by clear and convincing evidence that, for at least 12 consecutive months within the 18 months preceding the TPR filing (February 13, 2024), the father failed to communicate with or regularly visit the child (no contact since March 2022), failed to initiate legal action to establish paternity or rights, and failed to demonstrate an ability and willingness to assume custody.
Failure to plan under 13 Del. C. § 1103(a)(5), in light of the child’s more than one year in DFS custody and the father’s incomplete compliance with case plan requirements, particularly his failure to engage in meaningful visitation and consistent cooperation with the ICPC home-study process.

The Court agreed with the Family Court that the child’s best interests favored TPR, especially given the child’s strong adjustment to her foster home (an adoptive resource), her expressed desire to remain there, her special needs (including autism and developmental delay), and the absence of a meaningful parent-child relationship with the father. The Court also confirmed that the father’s COVID-19 argument lacked merit because filing was available during pandemic restrictions and courthouses reopened in June 2020.

Having reviewed counsel’s no-merit brief and the full record, the Supreme Court held that the appeal was wholly without merit and affirmed, rendering counsel’s motion to withdraw moot.

Key Factual Timeline

2019: Mother consents to Maternal Grandmother’s guardianship; mother dies later that year. Father is named but not on birth certificate; paternity not established.
September 22, 2023: DFS obtains emergency custody after reports of abuse by Maternal Grandmother toward a sibling; father’s whereabouts unknown.
Fall 2023: Service on father by publication on Family Court website (Nov. 6). Father does not contact DFS despite learning from Maternal Grandmother by October that the child is in DFS custody.
January–February 2024: Permanency plan changes to TPR/adoption; DFS files TPR petition alleging intentional/unintentional abandonment and failure to plan, including against an unknown father.
May 2024: Father contacts DFS for the first time; paternity testing confirms father; counsel appointed; Zoom visits begin but are largely missed.
November 1, 2024: Hearing notes father’s limited visits and life instability; Family Court orders case planning but denies a goal of reunification.
May 13, 2025: TPR hearing reveals continued non-communication with DFS, ICPC closure by Pennsylvania due to non-cooperation/unemployment, and lack of meaningful visitation; Family Court terminates parental rights.

Analysis

Precedents and Authorities Cited

Wilson v. Division of Family Services, 988 A.2d 435 (Del. 2010):
Provides the appellate standards of review in TPR cases—legal rulings de novo, factual findings for clear error (supported by the record and not clearly wrong), and, if the law is applied correctly, review for abuse of discretion. The Supreme Court explicitly applied this framework in affirming the Family Court’s determinations.
Shepherd v. Clemens, 752 A.2d 533 (Del. 2000):
Establishes the two-step TPR analysis: (1) proof of a statutory ground for termination, and (2) proof that termination is in the child’s best interests under § 722. The Court followed Shepherd’s structure, confirming that both steps must be established by clear and convincing evidence.
Powell v. DSCYF, 963 A.2d 724 (Del. 2008):
Reinforces that both the statutory ground and best interests must be established by clear and convincing evidence. The Court repeatedly referenced this evidentiary standard in assessing the sufficiency of the Family Court’s findings.
Administrative Order No. 3 (Mar. 22, 2020) and Administrative Order No. 7 (June 5, 2020):
These orders refuted the father’s claim of pandemic-based impossibility. AO No. 3 required courts to provide mechanisms (e.g., drop boxes, email, mail) for public filings even while courthouses were closed; AO No. 7 announced courthouses would reopen June 15, 2020. The Supreme Court used these orders to reject the argument that COVID-19 prevented the father from filing custody petitions or otherwise asserting his parental rights.
Statutes: 13 Del. C. § 1103(a)(2), (a)(3), (a)(5), (b) (grounds for TPR, including intentional/unintentional abandonment and failure to plan) and 13 Del. C. § 722 (best-interest factors).

Legal Reasoning

The Supreme Court endorsed the Family Court’s findings on two independent statutory grounds and its best-interest determination.

1) Unintentional abandonment under § 1103(a)(3)

Unintentional abandonment requires proof, by clear and convincing evidence, that during at least 12 consecutive months of the 18 months before the TPR filing, the parent failed to do all of the following:

Communicate with or regularly visit the child,
File a petition to establish paternity or a legal right to have contact or visitation, and
Manifest an ability and willingness to assume legal and physical custody.

The record established that the father had no visits or meaningful contact from approximately March 2022 to late 2024, did not file to establish paternity or seek custody during that period, and did not demonstrate a concrete ability and willingness to assume custody (e.g., employment instability; uncooperative with ICPC; lack of sustained contact with DFS; minimal visitation).

Section 1103(a)(3)(b) also requires one of several additional facts. The Court acknowledged the Family Court did not undertake a complete written analysis of these additional items, but the record showed the predicate in § 1103(a)(3)(b)(1) was met: the child was not in the other parent’s custody (the mother was deceased, and the child was in DFS custody), and the father was unable to promptly assume custody and pay reasonable support (given lack of documented support, late and inconsistent employment, and an incomplete ICPC home assessment). The Supreme Court’s affirmance thus reflects that where the record plainly establishes a required sub-element by clear and convincing evidence, an abbreviated trial court analysis may be deemed harmless.

2) Failure to plan under § 1103(a)(5)

Failure to plan focuses on whether the parent has satisfactorily addressed the problems necessitating DFS custody and completed case-plan tasks sufficient to safely reunify. The record supported the Family Court’s finding that:

The child had been in DFS custody for more than one year.
Although DFS attempted to case plan (and later created and sent a plan in January 2025), the father did not engage meaningfully. He ceased communication with the permanency worker for months, failed to provide verification of substance abuse treatment or mental health compliance beyond partial documentation, and did not attend the child’s medical appointments.
Visitation was sporadic and not “meaningful.” The father missed seven of ten scheduled Zoom visits, stopped visits without coordinating alternatives when the child struggled, and did not follow through on in-person visitation despite being offered solutions; he did not communicate about his alleged transportation barriers.
The ICPC process was closed by Pennsylvania due to non-cooperation and unemployment; no home assessment was completed. Only on the eve of the TPR hearing did the father start new employment.

Taken together, these findings showed the father did not complete critical plan components—especially consistent visitation and cooperation with ICPC and DFS—necessary to assure the child’s safety and permanency.

3) Best interests under § 722

The Family Court placed greatest weight on factors (2) the child’s wishes, (3) her relationship with her parents and relatives, (4) her adjustment to home, school, and community, and (6) the parents’ past and present compliance with parental responsibilities. The evidence showed:

The child was thriving in her foster home (an adoptive resource) and wanted to remain there.
She had no meaningful relationship with the father, who did not call to inquire about her well-being, did not attend her medical appointments, and had been absent for more than two years prior to late 2024.
She had special needs—including autism, developmental delay, chromosomal microduplication, anemia, and urinary incontinence—being addressed in the foster placement.
The father had a sustained period of non-compliance with parental duties; last-minute employment and limited recent counseling did not offset the prolonged pattern of non-engagement.

On these facts, the Family Court concluded, and the Supreme Court agreed, that TPR served the child’s best interests by securing a stable, permanent placement.

4) Rejection of the COVID-19 argument

The father contended he could not file for custody after 2020 because “the courts were closed for many years due to Covid.” The Supreme Court rejected this assertion outright, citing Administrative Order No. 3 (requiring continued filing access via drop box, email, or mail) and Administrative Order No. 7 (reopening courthouses June 15, 2020). The Court emphasized the public could submit filings throughout the pandemic and that the father’s inaction from 2020 through 2023 could not be excused on that basis.

Impact and Forward-Looking Consequences

Clarification on pandemic-era filings: The Court’s express reliance on Administrative Orders 3 and 7 puts to rest the notion that COVID-19 closures categorically excused parental inaction in child welfare proceedings. Parents asserting pandemic-based barriers must show actual, case-specific impediments—not generalized closure claims—because filing options remained available.
Record-supported affirmance despite abbreviated analysis: The Supreme Court affirmed unintentional abandonment even though the Family Court did not fully articulate the § 1103(a)(3)(b) analysis. This underscores that, on appellate review, clear record evidence satisfying statutory sub-elements can cure a terse or incomplete written analysis. That said, trial courts should strive to make explicit, comprehensive findings to avoid avoidable appellate issues.
Paternity timing does not reset abandonment analysis: The father’s post-petition establishment of paternity did not insulate him from an abandonment finding measured across the relevant pre-filing window. Practitioners should advise alleged fathers to promptly assert and establish paternity and seek legal rights without delay.
“Meaningful visitation” matters: The Court’s emphasis on missed virtual visits, cessation of visits due to the child’s distress without arranging alternatives, and failure to communicate logistical obstacles signals that merely scheduling or sporadically attending visits is insufficient. Parents must consistently engage, proactively address barriers, and demonstrate reliability—especially where the child experiences emotional fallout from missed contact.
ICPC cooperation is essential: The closure of the father’s ICPC file for non-cooperation and unemployment, and the lack of a home assessment, weighed heavily against him on both abandonment and failure-to-plan grounds. Parents seeking interstate placement must timely provide housing/employment details and fully cooperate with home-study requirements.
Documentation is critical: Claims of sobriety or treatment completion carried little weight without verifiable documentation. Likewise, absence of evidence of financial support, attendance at medical appointments, or inquiries about the child’s well-being undermined the father’s position. Parties should contemporaneously gather and produce proof of compliance.
Weight of best-interest factors in special-needs cases: Where a child has significant developmental and medical needs and is thriving in a stable, adoptive foster placement, the adjustment to home and the child’s expressed wishes receive substantial weight. Late-emerging parental compliance typically will not overcome prolonged instability and lack of relationship.

Complex Concepts Simplified

Unintentional abandonment (13 Del. C. § 1103(a)(3)):
A parent can “unintentionally” abandon a child by failing, over a required period, to (1) visit/communicate regularly, (2) take legal steps to establish rights (e.g., paternity or visitation), and (3) show an ability and willingness to take custody. Additional statutory conditions (e.g., child not in the other parent’s custody and the parent unable to promptly assume custody and pay support) must also be shown.
Failure to plan (13 Del. C. § 1103(a)(5)):
Once DFS has custody for a year or more, TPR can be based on a parent’s failure to complete a case plan that would allow safe reunification—typically involving substance/mental health treatment, stable housing and employment, visitation, and compliance with court or probation obligations.
Best-interest analysis (13 Del. C. § 722):
The court considers multiple factors (including the child’s wishes, relationships, adjustment to home/school/community, and the parents’ compliance with responsibilities) to decide whether TPR is best for the child. Not all factors carry equal weight in every case; the court focuses on those most relevant to the child’s welfare.
Clear and convincing evidence:
A high burden of proof requiring that the evidence produce a firm belief or conviction in the truth of the allegations—more than a mere preponderance but less than beyond a reasonable doubt.
ICPC (Interstate Compact on the Placement of Children):
A statutory framework that governs placement of children across state lines. It requires cooperation with home studies and approval by the receiving state before a child can be placed with an out-of-state parent or caregiver.
Rule 26.1(c) no-merit briefs:
When appellate counsel, after a conscientious review, finds no meritorious issues for appeal, counsel may file a “no-merit” brief and move to withdraw. The Supreme Court then independently reviews the record to determine if any non-frivolous issues exist before ruling on the appeal.

Concluding Observations

Storm v. DSCYF reinforces several practical and doctrinal points in Delaware TPR law. Substantively, the decision shows how the unintentional abandonment and failure-to-plan grounds operate in tandem when a parent has long been absent, engages late, and provides incomplete compliance amid a child’s increasing need for stability—especially where the child has significant special needs and thriving placement in an adoptive foster home. Procedurally, it underscores that appellate affirmance can rest on a clear-and-convincing record even if the trial court’s written analysis on a sub-element is brief, though comprehensive trial findings remain best practice.

The Court’s express rejection of the father’s COVID-based excuse has broader implications. The pandemic did not suspend parental obligations to seek legal rights or maintain contact, given ongoing filing mechanisms and the reopening of courthouses by mid-2020. Parents and counsel should be prepared to document concrete efforts and obstacles—not generalized assertions—to withstand abandonment or failure-to-plan allegations.

Ultimately, the decision is a cautionary tale: intermittent, last-minute efforts rarely overcome years of non-involvement and non-compliance. Delaware courts will prioritize the child’s stability, safety, and well-being, and where the record shows clear and convincing evidence on statutory grounds and best interests, TPR will be affirmed—even on a no-merit appeal.