Unpreserved Strict-Scrutiny Challenges in Delaware TPR Appeals Are Limited to Plain-Error Review

Introduction

In Handlon, Colt v. DFS and OCA TPR (Del. Feb. 12, 2026), the Delaware Supreme Court affirmed the Family Court’s termination of a father’s parental rights to two minor children who entered State custody after a near-fatal ingestion of fentanyl and cocaine while in their mother’s care. The father’s reunification plan required, among other things, evaluation and treatment addressing substance use and anger management. Over roughly two years, the children remained in Division of Family Services (“DFS”) custody while the father experienced significant incarceration gaps and did not complete key plan components. Meanwhile, the paternal grandmother sought guardianship in South Carolina, but South Carolina denied two Interstate Compact on the Placement of Children (“ICPC”) requests, and she ultimately failed to appear at the guardianship hearing.

On appeal, the father pivoted to constitutional framing: for the first time he argued that the termination decision should have been subject to “strict scrutiny,” and that the State failed to prove termination was the “least restrictive means” given purported family alternatives and the claimed absence of an adoptive resource.

Summary of the Opinion

The Court affirmed on two central grounds:

  • Because the father’s constitutional theory was raised for the first time on appeal, it was reviewed only for plain error. The Court held there was no plain error in the Family Court’s failure to apply strict scrutiny, particularly where Delaware precedent has “declined to apply” that heightened scrutiny framework in similar parental-rights contexts.
  • Independently, the Court held the Family Court did not exceed its discretion in finding (by clear and convincing evidence) both: (1) a statutory basis for termination under 13 Del. C. § 1103(a)(5) (failure to plan adequately), and (2) that termination was in the children’s best interests under 13 Del. C. § 722(a).

Analysis

Precedents Cited

1) Plain-error framework and limits on “new” constitutional theories on appeal

  • Suber v. State: The Court relied on Suber to restate Delaware’s modern plain-error methodology and its four-question structure (adequate record; forfeiture not waiver; “plainness”; and effect on substantial rights). This mattered because it set the analytic gatekeeping: the father’s strict-scrutiny argument could not be assessed as if preserved, but only through the narrow lens of plain error.
  • Wainwright v. State: Quoted via Suber for the foundational definition of plain error as “basic, serious, and fundamental” defects apparent on the record that deprive a party of substantial rights or show manifest injustice. This reinforced the high bar the father had to clear.
  • Johns v. State: Quoted via Suber for the proposition that an error cannot be “plain” where neither binding authority has definitively resolved the issue and other courts are divided. The Court used this principle to dispose of the father’s claim that strict scrutiny was constitutionally required: absent definitive binding authority adopting that standard for these circumstances, failure to apply it cannot be “plain” error.

2) Delaware parental-rights jurisprudence on standards of review (and the Court’s refusal to constitutionalize a strict-scrutiny template)

  • Sierra v. Dept. of Svs. for Child., Youth & their Fams.: Cited for the observation that the U.S. Supreme Court recognizes parental rights as fundamental but has generally avoided selecting a single, across-the-board standard of review for all parental-rights cases. This undercut the father’s premise that strict scrutiny is the required constitutional baseline.
  • Schnell v. Dept. of Svs. for Child., Youth & their Fams.: Cited as a recent Delaware decision rejecting an argument akin to the father’s—i.e., that termination is unconstitutional “as applied” because the statutory scheme does not embed a “least restrictive means” requirement. The Court treated Schnell (together with Sierra) as confirming that Delaware has not adopted the father’s proposed strict-scrutiny/least-restrictive-means overlay.

3) Statutory basis for termination: “failure to plan” under § 1103(a)(5)

  • Powell v. Dept. of Svs. for Child., Youth & their Fams.: Cited for the operative articulation of § 1103(a)(5): when a child has been in DFS custody for at least one year and the parent has failed to plan adequately for the child’s needs, health, and development, termination may be supported (upon clear and convincing evidence). The Court used Powell to frame the statutory threshold the Family Court applied.
  • O'Conner v. Department of Services for Children, Youth and their Families: Used as an on-point comparator for “failure to plan,” where termination was affirmed because parents were inconsistent in mental health/substance abuse treatment and failed to complete required classes. The Court analogized the father’s noncompletion of substance abuse and anger management components (and inconsistent contact) to the deficiencies in O’Conner, reinforcing that the Family Court’s finding fit within established Delaware applications of § 1103(a)(5).

4) Domestic-violence presumptions and placement constraints

  • Butler v. Evans: Cited to emphasize that a domestic-violence finding can trigger a statutory presumption affecting custody outcomes under 13 Del. C. § 705A. The Court leveraged this principle not only as part of the risk assessment for the father, but also to explain why placing the children with the paternal grandfather (with whom the father continued to reside) raised legal and policy barriers: § 705A includes a presumption against a child primarily residing with a perpetrator of domestic violence.

Legal Reasoning

A. The Court’s threshold move: “plain error” forecloses a first-time strict-scrutiny reversal

The Court’s decisive reasoning was procedural-constitutional rather than substantive-constitutional: even if strict scrutiny were a plausible theory in the abstract, the question on appeal was whether the Family Court’s failure to apply it was plain error. Applying Suber v. State and Johns v. State, the Court held it could not be “plain” to omit a test Delaware has not adopted—especially where the father conceded Delaware had recently “declined to apply” his proposed approach in Sierra v. Dept. of Svs. for Child., Youth & their Fams. and Schnell v. Dept. of Svs. for Child., Youth & their Fams..

This is the opinion’s most salient doctrinal signal: a litigant cannot use an appeal (under plain-error review) to constitutionalize a new “least restrictive means” requirement for termination proceedings where binding authority has not already imposed it.

B. Merits review under Delaware’s established two-step termination framework

After disposing of “plain error,” the Court confirmed that the Family Court stayed within its discretion under Delaware’s standard two-step approach:

  1. Statutory ground (§ 1103(a)): The Family Court found (by clear and convincing evidence) that the father “failed to plan adequately” under 13 Del. C. § 1103(a)(5), emphasizing gaps in contact caused by incarceration, ongoing substance issues, and non-engagement in anger management.
  2. Best interests (§ 722): The Family Court found termination served the children’s best interests, citing developmental improvements in foster care, the Office of the Child Advocate’s position, and the lack of a viable, approved family placement alternative.

C. “Alternative remedies” and the Court’s treatment of kinship placement

The father’s appellate theme—“the court failed to meaningfully consider alternative remedies”—was met with record-based rebuttal:

  • ICPC denials: The Court treated South Carolina’s denial of two ICPC requests as legally dispositive on the specific out-of-state guardianship path. It highlighted the Family Court’s correct statement: Delaware cannot place children in an out-of-state home without that state’s ICPC approval.
  • Non-participation: Beyond ICPC, the paternal grandmother’s missed visits and failure to appear at the guardianship hearing undermined any claim that guardianship was a workable alternative.
  • In-home risk constraints: The Court explained why recruitment of the paternal grandfather as an adoptive option was not straightforward where the father continued to reside in the same home—intersecting with the domestic-violence-related presumption in 13 Del. C. § 705A(b).

Impact

  • Appellate posture matters: The decision reinforces that constitutional arguments—especially requests for heightened scrutiny—must be raised in the Family Court. Otherwise, a parent faces the steep “plain error” standard, under which unsettled constitutional theories will almost never yield reversal.
  • No backdoor “least restrictive means” requirement: By tying “plainness” to the absence of binding authority and pointing to Sierra and Schnell, the Court effectively signals continued resistance to importing a generalized strict-scrutiny/least-rerestrictive-means template into Delaware’s termination statute.
  • Kinship placement remains important but bounded by ICPC and safety presumptions: The opinion underscores practical and legal limits: out-of-state kinship placement is constrained by ICPC approval, and domestic-violence presumptions can constrain placements that would otherwise appear “familial.”
  • Time-in-care pressures are legitimized: The Court’s reference to 42 U.S.C. § 675(5)(E) reinforces the policy that children cannot wait indefinitely for parental rehabilitation; statutory timelines help justify moving from reunification to termination when progress is insufficient.

Complex Concepts Simplified

  • Termination of parental rights (TPR): A court order permanently ending the legal parent-child relationship.
  • Clear and convincing evidence: A heightened proof standard—more than “preponderance,” less than “beyond a reasonable doubt”—requiring a firm belief that the claim is true.
  • Plain error: A very narrow appellate doctrine allowing review of issues not raised below only when the mistake is obvious under existing law and seriously affects substantial rights.
  • Strict scrutiny / least restrictive means: The toughest form of constitutional review; the government must show a compelling interest and that its action is narrowly tailored and the least restrictive way to achieve that interest. The Court held the Family Court did not plainly err by not using this test because Delaware has not adopted it for TPR in the manner the father proposed.
  • ICPC (Interstate Compact on the Placement of Children): A binding process requiring the receiving state to approve an out-of-state placement before a child can be placed there legally.
  • Domestic-violence presumption (13 Del. C. § 705A): A statutory presumption against awarding custody—or allowing a child to primarily reside—with a “perpetrator of domestic violence,” unless rebutted.

Conclusion

Handlon is most significant for its appellate-rule clarity: when a parent raises a constitutional “strict scrutiny/least restrictive means” argument for the first time on appeal from a termination decision, Delaware Supreme Court review is confined to plain error, and the failure to apply strict scrutiny is not “plain” where Delaware precedent has not adopted that framework. On the merits, the Court reaffirmed Delaware’s two-step termination analysis—statutory ground under 13 Del. C. § 1103 plus best interests under 13 Del. C. § 722—and emphasized that kinship alternatives must be legally viable (including ICPC approval) and consistent with safety presumptions such as 13 Del. C. § 705A. The decision thus fortifies the procedural importance of issue preservation and underscores how statutory timelines, case-plan noncompliance, and placement-law constraints shape termination outcomes.