Unpreserved ADA Claims Do Not Defeat Delaware TPR Where DFS Was Excused from Case Planning and Prior Involuntary TPRs Independently Support Termination

1. Introduction

Shelby Davis v. Department of Services for Children, Youth and Their Families is a Delaware Supreme Court decision affirming a Family Court order terminating Shelby Davis’s (“Mother”) parental rights to her daughter (the “Child”), born in June 2024. The appeal arose in a procedural posture common in termination-of-parental-rights (“TPR”) cases: Mother’s appellate counsel filed a no-merit brief and a motion to withdraw under Supreme Court Rule 26.1(c), asserting the appeal presented no arguably appealable issues.

The case began when DFS sought emergency custody at birth after Mother tested positive for THC, had an extensive child-welfare history in Colorado and Delaware, had mental health and substance-abuse history, and had housing deemed unsuitable for children. After dependency-and-neglect proceedings and review hearings, DFS was excused from case planning and the permanency goal was changed to TPR based on prior involuntary terminations as to other children. DFS then filed a TPR petition alleging (i) failure to plan and (ii) prior involuntary termination(s).

On appeal, Mother attempted to raise a disability-accommodation fairness argument (referencing a Colorado decision under the ADA). The Delaware Supreme Court rejected that effort as unpreserved and unsupported by the record, and further held that the statutory grounds and best-interests determination were supported by clear and convincing evidence.

2. Summary of the Opinion

The Delaware Supreme Court affirmed the Family Court’s June 18, 2025 order terminating Mother’s parental rights. Applying established Delaware standards for reviewing TPR orders, the Court held:

• The Family Court’s factual findings were supported by the record and not clearly wrong.
• The Family Court correctly applied Delaware’s two-step TPR framework (statutory ground + best interests under 13 Del. C. § 722), each by clear and convincing evidence.
• Mother’s ADA-related argument was not raised below, lacked record support, and did not undermine the termination—especially because DFS had been excused from case planning due to prior TPRs and because prior involuntary terminations provided an independent statutory basis for termination.
• Because the appeal was wholly without merit, affirmance was appropriate and counsel’s motion to withdraw was declared moot.

3. Analysis

3.1. Precedents Cited

Wilson v. Div. of Fam. Servs., 988 A.2d 435 (Del. 2010)

The Court relied on Wilson for the appellate standards of review in TPR matters: legal rulings are reviewed de novo, while factual findings receive limited review to ensure they are supported by the record and not clearly wrong; if the law is correctly applied, review proceeds for abuse of discretion. This framing is pivotal in no-merit TPR appeals: it underscores how difficult reversal is absent a clear legal error or unsupported factual finding.

Shepherd v. Clemens, 752 A.2d 533 (Del. 2000)

Shepherd supplies the core two-step structure for Delaware TPR decisions: (1) proof of at least one statutory ground for termination; and (2) proof that termination is in the child’s best interests under 13 Del. C. § 722. The Supreme Court used Shepherd to confirm that the Family Court followed the correct decisional sequence and did not collapse “grounds” and “best interests” into a single inquiry.

Powell v. Dep't of Servs. for Children, Youth and Their Fams., 963 A.2d 724 (Del. 2008)

The Supreme Court cited Powell for the burden of proof: both the statutory ground and best-interests determinations must be established by clear and convincing evidence. This evidentiary standard—higher than preponderance but lower than beyond a reasonable doubt—is the guardrail against terminating parental rights on speculative or insufficient proof.

People in Interest of S.S., 2023 WL 12058523 (Colo. App. Mar. 30, 2023)

Mother relied on People in Interest of S.S., in which a Colorado appellate court reversed termination because the agency failed to prove it made reasonable ADA accommodations for Mother’s learning disability when devising a treatment plan. Delaware’s Supreme Court treated this citation as non-dispositive: the ADA argument was not raised in Delaware Family Court, and the record contained no evidence establishing the asserted learning disability or a need for accommodations. The Court’s treatment of S.S. reflects a common appellate principle: even persuasive out-of-state authority will not overcome (i) issue non-preservation and (ii) the absence of a factual record supporting the claim.

Davis v. Dep't of Servs. for Children, Youth, and Their Fams./Div. of Fam. Servs., 338 A.3d 1291, 2025 WL 315097 (Del. Jan. 28, 2025)

The Supreme Court referenced its own earlier affirmance of a prior TPR involving Mother (child born in 2022). This citation matters for two reasons:

• It confirms the “prior involuntary termination” history was not a disputed or unresolved predicate; it had been affirmed in Delaware.
• It strengthens DFS’s reliance on 13 Del. C. § 1103(a)(7) (prior involuntary terminations) and supports excusing DFS from case planning under § 1103(d).

People in Interest of M.S., Case No. 19JV624, Order (Colo. D. Ct. Oct. 11, 2021)

This Colorado termination order (child born in 2019) was part of the prior-TPR history the Family Court judicially noticed. Together with the Delaware prior TPR, it formed the factual substrate for DFS’s request to be excused from reunification planning and for an alternative statutory basis to terminate Mother’s rights in this case.

Schnell v. Dep't of Servs. for Children, Youth, & Their Fams., No. 306, 2025 (Del.)

The Court noted the Child’s father filed a separate appeal. While not analyzed on the merits here, the citation contextualizes that the proceedings involved two parents but the Court’s order addresses Mother’s appeal only.

3.2. Legal Reasoning

(a) Procedural posture: Rule 26.1(c) no-merit review

The Court applied the Rule 26.1(c) framework: counsel must conduct a conscientious review, advise the client of the right to submit points, and file a no-merit brief. The Court then independently reviews the record to determine whether the appeal is “wholly without merit.” Here, Mother submitted her own points; DFS and the Child’s attorney responded; and the Court concluded no arguably appealable issues existed.

(b) The two-step Delaware TPR framework

The Court reiterated and applied Delaware’s two-part statutory scheme:

1. Statutory ground under 13 Del. C. § 1103(a); and
2. Best interests under 13 Del. C. § 722.

Both steps require clear and convincing evidence.

(c) Statutory grounds: failure to plan and (independently) prior involuntary terminations

The Family Court terminated under 13 Del. C. § 1103(a)(5)(b) (failure to plan; child in custody for more than six months). The Supreme Court endorsed the Family Court’s core factual conclusions: the Child had never lived with Mother; Mother lacked financial resources; housing conditions were unsafe; Mother missed multiple visits; and mental health/substance/domestic-violence concerns remained insufficiently addressed.

Critically, the Supreme Court added that even if Mother’s case-plan-related arguments mattered, there was also clear and convincing evidence supporting termination under 13 Del. C. § 1103(a)(7) based on prior involuntary terminations—making that history an independent, alternative ground. This “alternative statutory ground” reasoning significantly reduces the materiality of disputes about reunification services when the legislature has authorized TPR based on certain prior adjudications.

(d) Reasonable efforts and excusal from case planning

The record reflected the Family Court found DFS made reasonable efforts to prevent removal and later changed the permanency goal to TPR and excused DFS from case planning. The Supreme Court emphasized that DFS had been excused because Mother’s parental rights to two other children had been previously terminated and those terminations were not reversed. In that posture, Mother’s attempt to import an ADA-based “accommodations in the treatment plan” theory was undermined: there was no preserved ADA claim and, as a matter of case posture, DFS was not required to continue reunification planning after being excused.

(e) Best interests: § 722 factor balancing

The Family Court weighed the § 722 factors and found factors 3, 4, 5, and 6 favored TPR; factor 1 favored denial (Mother’s wishes); and factors 2, 7, and 8 were neutral. The Supreme Court accepted that balancing and the conclusion that termination served the Child’s best interests, particularly given the Child’s stability in foster care and bond with foster parents who wished to adopt, and the lack of observed bonding with Mother.

(f) Mother’s ADA fairness argument: preservation and record support

The Court disposed of Mother’s ADA argument on two reinforcing bases:

• Non-preservation: Mother “did not invoke the ADA below,” so the Family Court did not rule on ADA compliance and no developed ADA record existed for appellate review.
• No evidentiary foundation: the record was “devoid of evidence” that Mother had a learning disability requiring accommodations by DFS.

The opinion thereby functions as a cautionary precedent: ADA-based objections in child-welfare matters must be raised timely and supported with evidence in the trial court, especially where they are aimed at the adequacy of services or planning.

3.3. Impact

• Issue preservation in TPR appeals: The decision reinforces that appellate courts will not entertain newly raised ADA theories absent trial-level invocation and a supporting record. Practically, parents and counsel who believe disabilities affect service access must raise accommodation requests and objections during Family Court proceedings.
• Alternative grounds reduce service-plan litigation: By emphasizing that prior involuntary terminations under § 1103(a)(7) independently supported termination, the opinion signals that disputes about case planning may be less likely to change outcomes when a prior-TPR ground is properly established.
• Reaffirmation of Rule 26.1(c) discipline: The opinion illustrates the Court’s role in independently vetting no-merit TPR appeals, which can streamline appellate dockets while still safeguarding against wrongful termination through record review.
• Best-interests analysis remains fact-centric: The Court’s acceptance of the Family Court’s factor balancing underscores that stability, bonding, and parental compliance remain central best-interests considerations, especially for very young children who have never lived with the parent.

4. Complex Concepts Simplified

Termination of parental rights (TPR)

A court order permanently ending the legal parent-child relationship. It is among the most serious civil orders and therefore requires heightened proof.

No-merit brief (Supreme Court Rule 26.1(c))

A filing by appointed counsel stating that, after careful review, no non-frivolous issues exist for appeal. The client may still submit their own arguments, and the Court conducts an independent review before affirming.

Clear and convincing evidence

A high evidentiary standard requiring evidence that produces a firm belief or conviction in the truth of the allegations—more demanding than “more likely than not.”

Statutory grounds vs. best interests

Delaware requires both: a legally defined ground for termination (e.g., failure to plan; prior involuntary TPR) and a separate finding that termination benefits the child when considering the § 722 factors.

Reasonable efforts / excused from case planning

Child welfare agencies usually must try to prevent removal and to reunify families through planning and services. But Delaware law can allow the court to excuse ongoing reunification planning in specified circumstances—here, due to prior involuntary terminations.

Judicial notice

A court’s recognition of certain facts or prior orders without requiring new proof, such as prior case orders and prior termination decisions.

ADA (Americans with Disabilities Act) in child welfare

The ADA can require reasonable accommodations in how services are offered to a parent with a qualifying disability. This case emphasizes that such claims must be raised in the trial court and supported by evidence showing a disability and the need for accommodations.

5. Conclusion

The Delaware Supreme Court’s decision in Shelby Davis v. Department of Services for Children, Youth and Their Families reaffirms Delaware’s structured TPR framework and highlights a practical appellate lesson: disability-based challenges to reunification efforts must be preserved and supported in the Family Court record. The opinion further underscores that when prior involuntary terminations exist, DFS may be excused from case planning and the prior-TPR ground under § 1103(a)(7) can independently support termination—making the outcome less susceptible to later challenges about service-plan design.