Office of the Child Advocate v. Blanchester, Kaytlyn and Dylen Shipperd TPR

(2) On appeal, the Office of the Child Advocate ("OCA") contends that the Family Court committed legal error in its analysis of the statutory grounds for termination, and that the court's legal conclusions regarding Child's best interests cannot be reconciled with its factual findings, which relied in part on evidence outside the record. Mother cross-appeals the Family Court's determination that the Division of Family Services ("DFS") made reasonable efforts toward reunification. While this appeal was pending, DFS filed a new petition in the Family Court based on recent factual developments, and that petition is scheduled to be heard in the coming days. For the reasons that follow, we REMAND this case to the Family Court for further analysis of Child's best interests.

BACKGROUND

(3) On May 7, 2024, DFS obtained emergency custody of Child.¹Father stipulated to dependency, and the Family Court found that Child was dependent as to Mother based on the prior involuntary termination of her parental rights ("TPR") over another child and this Child's substance exposure at birth.²DFS provided both parents with case plans and pursued reunification.³

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(4) On January 16, 2025, DFS moved to change the permanency goal to concurrent goals of reunification and TPR.⁴Mother later began a trial reunification, which ended on April 21, 2025, when she was discharged from her sober-living residence following a positive drug screen for Adderall, a medication she was not prescribed.⁵

(5) Following Mother's setback, DFS filed a petition to terminate both parents' parental rights. As to Mother, DFS proceeded on two statutory grounds: (i) the prior involuntary TPR over another child, and (ii) failure to plan for this Child.⁶ As to Father, DFS asserted failure to plan.⁷At the TPR proceeding, the Family Court took judicial notice of Mother's prior involuntary TPR over the other child under 13 Del. C. § 1103(a)(7) but also conducted a failure-to-plan analysis under Section 1103(a)(5).⁸

Order (May 20, 2024)), A25 (Adjudicatory Hearing Order (June 12, 2024)), A28 (Dispositional Hearing Order (Aug. 19, 2024)), A40 (Judicial Review Hearing Order (Nov. 19, 2024)), A43 (Permanency Hearing Order (Feb. 11, 2025)), A47 (Post-Permanency Hearing Order (April 7, 2025)), A51 (Post-Permanency Hearing Order (July 8, 2025)); TPR Order at 16-17.

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(6) Under the two-part TPR analysis, the court first concluded that DFS had not established by clear and convincing evidence that Mother failed to adequately plan for Child under Section 1103(a)(5).⁹Nevertheless, the court proceeded to the second step and made factual findings regarding the best-interests factors under 13 Del. C. § 722. The court did not expressly weigh those factors but concluded that "Mother has established a record indicating [that] she is fit to parent this Child."¹⁰Having denied the petition as to Mother, the court did not reach the merits of DFS's petition to terminate Father's parental rights.

(7) During the termination proceedings, Mother moved for a finding that DFS had not made reasonable efforts toward reunification because the agency had substantially limited her visitation time following the April 2025 setback. The court disagreed: it found that DFS's reunification efforts had been reasonable during the custody proceedings.¹¹

(8) Both OCA and Mother appealed the trial court's holding. OCA challenged the Family Court's denial of the petition to terminate Mother's parental rights, raising three principal issues. First, OCA contended that the Family Court erred by failing to adjudicate the statutory ground based on Mother's prior

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involuntary termination of parental rights over another child under Section 1103(a)(7). Second, OCA argued that the Family Court improperly relied on its own independent research concerning substance-use treatment and recovery in evaluating Mother's commitment to recovery and fitness to parent. Third, OCA asserted that the Family Court's findings under Section 722's best-interests factors supported termination and were inconsistent with the court's ultimate denial of the petition. OCA therefore sought reversal and a remand for further proceedings.

(9) Mother filed a cross-appeal challenging the Family Court's determination that DFS made reasonable efforts toward reunification.¹²Mother contended that DFS improperly limited her visitation with Child in contravention of DFS's internal policy. She also maintained that the limitation on visitation violated her due process rights. Mother sought reversal of the Family Court's reasonable- efforts determination.

(10) While this appeal was pending, DFS filed a new TPR petition based on facts that developed after the Family Court issued its ruling. During oral argument, the parties advised us that a hearing on the new petition is scheduled for October 5,

2026.

(11) For the reasons that follow, we conclude that (i) DFS proved a statutory ground for termination as to Mother based on the prior TPR, (ii) the court's best-

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interests analysis was incomplete, and (iii) the Family Court erred by relying on materials outside the record that were not properly subject to judicial notice. We further hold that the Family Court did not err in finding that DFS made reasonable efforts toward reunification. We therefore affirm in part, reverse in part, and remand for further proceedings consistent with this order.

ANALYSIS

(12) "When reviewing the decision of the Family Court to terminate parental rights, this Court conducts a 'review of the facts and law, as well as the inferences and deductions made by the trial court.'"¹³Legal conclusions are reviewed de novo.¹⁴To the extent the court's decision relies on factual findings, we review those findings to ensure that they are supported by the record and are not "clearly wrong."¹⁵"This Court will not disturb inferences and deductions that are supported by the record and the product of an orderly and logical deductive process."¹⁶"If the

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Family Court has correctly applied the law, our review is limited to abuse of discretion."¹⁷

(13) Delaware law requires a trial court to undertake a two-step inquiry before terminating parental rights.¹⁸First, the court must determine by clear and convincing evidence that at least one statutory ground for termination exists under

13 Del. C. § 1103(a).¹⁹Second, if a statutory ground for termination exists, the court then must determine, again by clear and convincing evidence, whether termination is in the child's best interests under 13 Del. C. § 722.²⁰

(14) We therefore begin by addressing whether DFS proved a statutory ground for termination under 13 Del. C. § 1103(a). Although DFS asserted two grounds for termination as to Mother—her failure to plan under Section 1103(a)(5) and her prior involuntary termination of parental rights to another child under Section 1103(a)(7)—the court only needed to find one ground to satisfy the first step of the termination analysis.²¹

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(15) The Family Court acknowledged that Mother's parental rights to another child had been involuntarily terminated,²²but the court never expressly held that the prior termination satisfied Section 1103(a)(7). Instead, the court's analysis focused on Mother's failure to plan under Section 1103(a)(5). On appeal, however, the parties agree—and the record establishes—that Mother's prior involuntary termination satisfies Section 1103(a)(7). Accordingly, for purposes of further proceedings in this matter with respect to Mother, the statutory ground under Section 1103(a)(7) has been established by clear and convincing evidence.

(16) We turn now to the second step of the TPR analysis: the best-interests factors. If DFS establishes a statutory ground for termination, the Family Court must separately determine whether termination is in the child's best interests.²³In making that determination, the court must consider all relevant factors, including the eight factors enumerated in 13 Del. C. § 722(a).²⁴"It is well-established that the Family Court may assign different weights to the various best interests factors, and that in adoption, may be initiated when it appears to be in the child's best interest and 1 or more of the following grounds exist[.]" (emphasis added)).

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some cases one factor may counterbalance or even outweigh the rest."²⁵But the court ultimately must weigh the relevant considerations and determine whether clear and convincing evidence establishes that termination is in the particular child's best interests.²⁶We review that balancing for an abuse of discretion.²⁷

(17) The Family Court's decision faltered on the weighing step; the court did not clearly weigh the factors or expressly articulate a best-interests finding. Of the eight statutory factors, the Family Court found three factors—three, four, and eight—weighed in favor of termination;²⁸four factors—two, five, six, and seven— were neutral;²⁹and only one factor—Mother's and Father's wishes—weighed

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against termination.³⁰Yet the court did not thereafter weigh those findings or explain why the single factor weighing against termination, or any other consideration, outweighed the factors favoring termination.

(18) Instead, the court ended its best-interests analysis with a discussion of Mother's progress and present fitness:

Mother's current mental health and substance use treatment is a powerful and valuable experience. Mother has accepted the opportunity to learn about herself and her world from a perspective not reached by all addicts: sobriety. She has learned the hard way. She is committed to recovery. She has completed parenting skills training. She is housed and employed. She has resolved her criminal charges and complies with probation requirements. She increased her involvement with the child until DFS made her stop. But she is well prepared to help this Child avoid that same hard road. Mother was not fit to parent her second child, but Mother has established a record indicating she is fit to parent this Child.³¹

(19) Mother's fitness was a permissible consideration in determining Child's best interests, but it did not eliminate the Family Court's obligation to weigh all relevant considerations under Section 722 and adequately explain its conclusion regarding Child's best interests.³²

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(20) We have held that a trial court's best-interests determination is

"flexible."³³Under Section 722, a court "may assign different weights to the various best interests factors,"³⁴but that flexibility requires the trial court to articulate the reasoning that led to its ultimate conclusion. Without a reasoned weighing of the factors, we cannot determine whether the denial or grant of such a petition resulted from "an orderly and logical deductive process"³⁵or review what considerations the trial court believed outweighed findings to the contrary.

(21) Accordingly, the appropriate remedy is to remand this case for a new best-interests determination. On remand, the Family Court should consider on a proper evidentiary record³⁶whether termination is in Child's best interests. Given the impending hearing on the newly filed TPR petition, the Family Court should consider the existing factual record together with any additional admissible evidence submitted by the parties in connection with the new petition.³⁷After considering inflexible manner" and give the Family Court discretion to consider parental fitness. 272 A.3d at 788-90. But present fitness is a consideration within the best-interests inquiry; it cannot substitute for the inquiry itself.

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that evidence, the Family Court should make new factual findings concerning the relevant Section 722 factors, explain the relative weight that it assigns to those factors and any other relevant considerations, and expressly determine whether clear and convincing evidence establishes that termination is in Child's best interests.

(22) Our decision to remand also requires us to resolve OCA's claim that the Family Court erred by relying on several sources that were not introduced into evidence and about which the parties had no notice.³⁸It is well settled that the Family Court generally must resolve disputed factual matters on the evidence presented and any additional facts that may properly be the subject of judicial notice.³⁹In Tribbitt

v. Tribbitt, we explained that although "a judge may take judicial notice of a fact outside the record, that fact must not be subject to reasonable dispute and the parties must be given prior notice and an opportunity to challenge judicial notice of that fact."⁴⁰

(23) OCA argues that the court expanded the evidentiary record without following the rules regarding judicial notice. When it evaluated the significance of Mother's April 2025 use of Adderall, the court cited an FDA source concerning Court first must determine whether clear and convincing evidence establishes an independent statutory ground for termination of Father's parental rights under 13 Del. C. § 1103.

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Adderall, a publication from the Substance Abuse and Mental Health Services Administration addressing recovery, and a scholarly article distinguishing a "lapse"

from a "relapse."⁴¹The Family Court then applied those materials to Mother's conduct, concluding as a factual matter that she had experienced a "slip" rather than a relapse and that she remained in recovery in 2026.⁴²

(24) The additional materials considered by the Family Court were not properly subject to judicial notice. The Family Court did not notify the parties that it intended to rely on those sources before issuing its decision, leaving the parties without an opportunity to address either the propriety of judicial notice or the nature of the facts being noticed and their significance to the issues.⁴³Neither party introduced those materials, no witnesses testified about them, and the parties had no opportunity to present evidence or argument concerning the difference between a

"lapse" and a "relapse"—a distinction the Family Court viewed as important.⁴⁴

(25) Delaware Rule of Evidence 201 permits courts to take judicial notice of adjudicative facts that are not subject to reasonable dispute because they "[c]an

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be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Here, the Family Court drew on sources outside the record to resolve a factual dispute: whether Mother remained in recovery or whether she had relapsed.⁴⁵Definitions of recovery, lapse, and relapse may be more opinion than fact; they are subject to reasonable dispute; and it is not clear that the sources cited are beyond reasonable questioning. The court then applied its chosen definitions to reason that DFS's use of the term "relapse" "obscure[d] the significance of the short time during which Mother separated from the treatment."⁴⁶ We cannot conclude that this error was harmless because the materials the court considered informed its conclusion that Mother remained in recovery and its ultimate determination that she was "committed to recovery" and "fit to parent this Child."⁴⁷On remand, the court should confine its analysis to the evidence admitted into the record by the parties or materials that are properly subject to judicial notice.

(26) Finally, Mother challenges the trial court's reasonable-efforts finding. The parties dispute whether we must reach this issue because 13 Del. C. § 1103(d) provides that "DSCYF is not required to perform reunification or related services"

when the Family Court finds by clear and convincing evidence that the respondent's

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parental rights over another child have been involuntarily terminated.⁴⁸Although the Family Court took judicial notice in February 2026 of Mother's prior involuntary termination,⁴⁹the record is unclear whether the Family Court made the clear-and- convincing finding contemplated by Section 1103(d). Moreover, for much of the proceedings DFS pursued concurrent goals of reunification and termination.⁵⁰We need not resolve the effect of Section 1103(d), however, because Mother's challenge to the Family Court's reasonable-efforts determination fails on the merits.

(27) DFS's obligation to provide reunification services arises under Title 29, Chapter 90. Section 9003 directs DFS to provide "a variety of facilities and services to children, youth, and their families," including "preplacement, preventive services, and reunification services."⁵¹The statute does not prescribe a particular combination of reunification services for every case. Rather, the reasonableness of DFS's efforts depends on the circumstances presented, including the conditions that led to Child's

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placement, the barriers to reunification that arise during the proceedings, and DFS's efforts to address those conditions.⁵²

(28) The fact-specific nature of the inquiry is borne out in the cases applying it. In Tilden v. Hayward, the Court of Chancery concluded that "neither the Child Welfare Act nor appropriate Delaware law mandates specific preventive or reunification services as necessary components of a meaningful case plan."⁵³The Court further explained that the governing statutes "fail to define what preventive and reunification services must be provided,"⁵⁴and the services necessary to satisfy the State's reunification responsibilities are "necessarily driven by the particular facts and circumstances of a specific case."⁵⁵In Division of Family Services v. Cheryl B., the Family Court similarly emphasized that the adequacy of reunification efforts depends on the services offered and the circumstances of the case, rather than whether DFS provided the precise assistance preferred by the parent.⁵⁶

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(29) Nonetheless, Mother contends that DFS's decision to maintain a two- hour weekly visitation schedule after she returned to a sober living facility in May 2025 was inconsistent with DFS Policy 1005.⁵⁷Policy 1005 provides that visitation plans should be developed jointly with the parents and that increased or reduced visitation "should be related to an assessment of safety and not linked to other measurements."⁵⁸Mother argues that, when questioned about why visitation was not expanded after May 2025, DFS's witnesses could not identify a specific safety concern, thereby contravening DFS's own policy.⁵⁹That argument, however, focuses narrowly on DFS's visitation decisions during a discrete portion of the proceeding rather than the entirety of the reunification efforts that DFS pursued.

(30) In evaluating whether DFS made reasonable efforts toward reunification, the Family Court properly considered the entire period during which Child was in DFS custody and the totality of DFS's actions.⁶⁰From Child's entry into DFS custody through the TPR proceedings, DFS explored relative resources; developed a case plan addressing Mother's substance use, mental and behavioral health, housing, employment, parenting, criminal and probation matters, and

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visitation; monitored Mother's progress; and communicated with treatment providers.⁶¹DFS also adjusted visitation over time in response to Mother's progress.⁶²Following the unsuccessful trial placement in April 2025, DFS resumed supervised visitation while continuing to provide reunification services as Mother reengaged in treatment and sober living.⁶³The visitation schedule also complied with the court's orders.⁶⁴DFS's failure to articulate a safety reason for not increasing visitation during a particular period does not negate the overall reasonableness of its reunification efforts.⁶⁵

(31) On the complete record, the Family Court did not clearly err in finding that DFS made reasonable efforts toward reunification. Accordingly, we affirm the Family Court's reasonable-efforts holding.

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NOW, THEREFORE, IT IS ORDERED that this matter is REMANDED for further proceedings consistent with this Order. Jurisdiction is not retained.

BY THE COURT:

/s/ Abigail M. LeGrow Justice

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