Unintentional Abandonment Requires Recent Action: A Prior Paternity Filing Outside the 18‑Month Lookback Does Not Satisfy 13 Del. C. § 1103(a)(3)a.2

1. Introduction

In Walker, Amanda v. Topher Halligan (Del. Supr. Mar. 6, 2026), the Supreme Court of Delaware affirmed the Family Court’s denial of a mother’s petition to terminate the father’s parental rights (“TPR”) so that the child’s stepfather could adopt. The record reflected years without contact or support from Father, while the Child was thriving with Mother and Stepfather. Yet the case turned on Delaware’s two-step TPR framework and the high, “clear and convincing” burden required to sever the parent-child relationship.

The key appellate issues were: (i) whether Mother proved “unintentional abandonment” under 13 Del. C. § 1103(a)(3); (ii) whether alleged deficiencies in Mother’s privately retained counsel warranted reversal; and (iii) whether the Family Court erred by not reaching “best interests” after finding no statutory ground for termination.

2. Summary of the Opinion

The Supreme Court affirmed. It agreed with the Family Court that Mother failed to prove a statutory ground for termination and therefore the court properly did not reach the best-interest inquiry. Importantly, the Court corrected part of the Family Court’s unintentional-abandonment analysis: a father’s paternity petition filed years earlier does not satisfy the statute’s requirement that, during the 18 months preceding the TPR filing, the parent must have filed or pursued a pending petition to establish paternity or a right to contact/visitation. Despite that clarification, Mother still lost because she did not prove one of the required additional grounds in § 1103(a)(3)b—specifically, she did not prove Father was “not able or willing to promptly establish and maintain contact” and pay reasonable support in a stepparent-adoption posture under § 1103(a)(3)b.2.

3. Analysis

3.1. Precedents Cited

  • Long v. Div. of Family Servs., 41 A.3d 367 , 37 0 (Del. 2012): Cited for the appellate standard of review in Family Court matters—deference to supported factual findings and logical inferences, with legal rulings reviewed de novo. This framing mattered because Mother’s appeal largely attacked fact-bound determinations about Father’s present willingness/ability to reengage.
  • In re Heller, 669 A.2d 25, 29 (Del. 1995): Reinforced the same review principles and the Court’s limited ability to make “independent findings” only where Family Court findings are “clearly erroneous.” The Supreme Court relied on this constraint in declining to disturb Family Court determinations about Father’s ability to pay and willingness to initiate therapy/contact.
  • Whitmore v. Robinson, 223 A.3d 417, 421 (Del. 2019): Used to emphasize (i) parental rights as fundamental liberties and (ii) the two-step statutory structure for TPR—statutory ground first, best interests second—both by clear and convincing evidence.
  • Troxel v. Granville, 530 U.S. 57, 66 (2000): Provided constitutional reinforcement for parental rights as a Due Process liberty interest. This constitutional backdrop explains Delaware’s insistence on strict adherence to the statute’s sequencing and burden of proof.
  • Shepherd v. Clemens, 752 A.2d 533, 537 (Del. 2000): The linchpin authority for the sequencing rule: “the best interest element … can be considered only after there has been a finding of an enumerated statutory basis for termination.” The Court applied Shepherd directly to reject Mother’s argument that the Family Court was required to reach best interests anyway.
  • Storm v. Dep't Servs. for Children, Youth & Their Families, 2025 WL 3046402 (Del. Oct. 31, 2025): Cited as a comparative unintentional-abandonment case where contact tapered after a caretaker stopped responding. It was used cautiously (the Court noted it had not directly resolved how a petitioner’s interference affects the “communicate or visit regularly” element), highlighting that Delaware jurisprudence in this slice of § 1103(a)(3) remains fact-sensitive.
  • Tannis v. Moen, 268 A.3d 754, 2021 WL 5858692 (Del. Dec. 10, 2021) (TABLE): Another comparative case illustrating that sporadic requests for updates, incarceration, failure to follow through with visits, and failure to participate in ordered processes can support termination. Here, by contrast, the dispositive failure was Mother’s inability to prove a required § 1103(a)(3)b ground.

3.2. Legal Reasoning

A. The two-step TPR structure strictly controls

Following Whitmore v. Robinson and Shepherd v. Clemens, the Court reaffirmed that Delaware TPR proceedings require: (1) proof of at least one enumerated statutory ground by clear and convincing evidence, and only then (2) proof that termination is in the child’s best interests by clear and convincing evidence. Because Mother failed step one, the Family Court did not err in stopping there.

B. The Court clarified the timing requirement in § 1103(a)(3)a.2

The most concrete doctrinal clarification in the decision concerns 13 Del. C. § 1103(a)(3)a.2, which asks whether, for at least 12 consecutive months within the 18 months preceding the filing, the respondent failed to “file or pursue a pending petition to establish paternity or to establish a right to have contact or visitation with the child.”

The Family Court treated Father’s 2018 petition to adjudicate paternity as defeating this element. The Supreme Court disagreed: because the statute focuses on the respondent’s conduct in the 18 months before the TPR petition, an old paternity filing outside that window cannot satisfy § 1103(a)(3)a.2. Otherwise, a parent who once filed for paternity could be insulated from a later unintentional-abandonment theory despite subsequent extended disengagement—an interpretation the Court rejected as incompatible with the statute’s structure and temporal focus.

C. The Court avoided resolving a potentially important “interference” question under § 1103(a)(3)a.1

The Family Court found Mother created barriers to Father’s contact (blocking, moving without disclosing an address, restricting access by paternal relatives). On appeal, the Supreme Court observed it had not directly addressed how such conduct bears on the “communicate or visit regularly” element in § 1103(a)(3)a.1. The Court signaled skepticism that interference should excuse lack of actual contact at a.1, noting that Delaware law provides a procedural remedy: a sidelined parent can seek Family Court intervention—and that “seeking such relief” is more directly captured by a.2 (petitions to establish contact/visitation).

Nevertheless, the Supreme Court expressly declined to decide this interpretive issue because Mother’s claim failed elsewhere: she did not establish a qualifying § 1103(a)(3)b ground.

D. The dispositive failure: § 1103(a)(3)b.2 was not proven

In a stepparent-adoption context, Mother proceeded under § 1103(a)(3)b.2, which required proof that Father was “not able or willing to promptly establish and maintain contact with the child and pay reasonable support.” The Family Court found:

  • Father was willing to promptly establish and maintain contact (he filed a custody-modification petition and agreed to therapy to develop a relationship).
  • Father was gainfully employed and could pay reasonable support (even though he had paid none historically).

Applying the deferential fact-review standards from Long v. Div. of Family Servs. and In re Heller, the Supreme Court held these findings were sufficiently supported by the record and upheld the conclusion that Mother failed to prove § 1103(a)(3)b.2 by clear and convincing evidence. Thus, even with a.2 satisfied (as clarified by the Supreme Court), the overall unintentional-abandonment ground still failed because both prongs—(a) and at least one (b) ground—are required.

E. Ineffective assistance / deficient performance of privately retained counsel did not drive reversal

The Court stated that Mother’s argument about her privately retained counsel’s inadequate presentation did not establish reversible error. The Order does not develop a separate doctrinal test here; rather, it treats the claim as not outcome-determinative given the statutory and evidentiary posture.

3.3. Impact

  • Statutory lookback period has teeth: The decision makes clear that § 1103(a)(3)a.2 is assessed within the 18-month lookback; an older paternity filing does not satisfy the requirement. Petitioners and respondents should focus on what (if anything) was filed or pursued in the relevant window.
  • “Prompt” reengagement can defeat § 1103(a)(3)b.2 even after years of noninvolvement: In stepparent-adoption cases, evidence that a respondent is presently willing to reestablish contact (e.g., filing a custody petition, agreeing to therapy) and has the ability to pay support may block termination under b.2, even where past efforts were, as the Family Court put it, “abysmal.”
  • Sequencing remains rigid: The ruling reinforces that Delaware courts cannot reach best interests unless a statutory ground is first proven, a recurring point likely to shape trial strategy (ensuring the statutory-ground record is fully developed before pivoting to best-interest evidence).
  • Open question preserved: The Court’s discussion hints that interference by the custodial parent may not negate the “actual contact” inquiry in a.1, because the statute separately tests whether the respondent pursued court relief in a.2. Future cases may crystallize whether, and to what extent, custodial obstruction is relevant to a.1, to b.4 (“detrimental to the child”), or to equitable assessment of proof.

4. Complex Concepts Simplified

  • Termination of parental rights (TPR): A court order permanently ending a parent’s legal relationship with a child. Because it is so severe, the proof burden is high.
  • Clear and convincing evidence: A heightened standard of proof—more than “preponderance of the evidence,” less than “beyond a reasonable doubt.” The evidence must produce a firm belief that the allegations are true.
  • Two-step test (Delaware): (1) Prove a statutory ground (like abandonment). (2) Prove termination is in the child’s best interests. If step (1) fails, the court does not reach step (2).
  • Unintentional abandonment under § 1103(a)(3): Not merely “absence.” The statute requires proof of certain failures during a defined time period (subsection (a)) and at least one additional condition (subsection (b)), such as inability/unwillingness to promptly reestablish contact and support in a stepparent adoption.
  • “Lookback period”: A statute-defined window of time the court must examine—here, the 18 months before the TPR filing (with a required consecutive 12-month period inside it).

5. Conclusion

Walker, Amanda v. Topher Halligan strengthens Delaware’s statutory rigor in TPR litigation in two main ways. First, it clarifies that § 1103(a)(3)a.2 is evaluated strictly within the 18 months preceding the TPR filing; a long-ago paternity action does not satisfy the element. Second, it underscores how demanding the combined (a) + (b) structure is for unintentional abandonment—particularly under § 1103(a)(3)b.2, where a respondent’s present ability and professed willingness to promptly reestablish contact and support can defeat termination despite a troubling historical record. The decision also reaffirms the non-negotiable sequencing rule from Shepherd v. Clemens: without a proven statutory ground, best interests are not reached.