IN THE SUPREME COURT OF THE STATE OF DELAWARE
DEPARTMENT OF SERVICES §
FOR CHILDREN, YOUTH §
AND THEIR FAMILIES, §
§ No. 681, 2014
Petitioner Below, §
Appellant, §
§
v. § Court Below – Family Court
§ of the State of Delaware in
JANET FOWLER, § and for New Castle County
JOHN TOWER, AND UNKNOWN §
FATHER, § File No. CN14-04728
§ Pet. No. 14-24863
Respondents Below, §
Appellees. §
Submitted: August 19, 2015
Decided: August 26, 2015
Before STRINE, Chief Justice; VALIHURA, and SEITZ, Justices.
Upon appeal from the Family Court. AFFIRMED.
Jonathan C. Harting, Esquire, Deputy Attorney General, Wilmington,
Delaware, for Petitioner Below, Appellant, Department of Services for
Children, Youth and Their Families.
John X. Denney, Jr., Esquire, Mattleman Weinroth & Miller, P.C., Newark,
Delaware, for Respondent Below, Appellee, Janet Fowler.
SEITZ, Justice:
I. INTRODUCTION
The Department of Services for Children, Youth and Their Families
(the “Department”) appeals from a September 18, 2014 Family Court order
finding that the Department failed to establish probable cause at a
Preliminary Protective Hearing (“PPH”) to retain an infant in the
Department’s custody. 1 The Department argues on appeal that the Family
Court failed to apply the correct probable cause standard when it dismissed
the Department’s petition. We find no merit to the Department’s argument
and affirm the judgment of the Family Court.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Department filed an emergency ex parte petition on September
12, 2014, alleging that A.F., a newborn infant, was dependent, neglected, or
abused by Mother, John Tower, and Unknown Father. 2 The Family Court
granted the Department’s ex parte petition, entered an order allowing
physical or constructive removal of A.F. from his parents, and awarded
temporary custody to the Department until further order of the court. As
1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule
7(d).
2
App. to Opening Br. at 1 (Family Court Docket).
2
required by Family Court Rule 212(a), the Family Court scheduled a PPH
for September 17, 2014.3
The Preliminary Protective Hearing
At the PPH, Jennifer Colon, an investigative worker for the
Department, testified that the Department received a hotline report on
August 1, 2014, claiming Mother had given birth into a toilet and had
appeared to the hotline reporter to be high on drugs, with glassy eyes and
slurred speech.4 Colon also testified that she contacted Mother at St. Francis
Hospital, where Mother and child had been taken following the birth. Colon
observed Mother with slurred speech and incapable of holding a
conversation. 5 A.F. was born with methadone and benzodiazepines in his
system and remained in the hospital at the time of the PPH for opiate
dependence treatment. 6
3
Family Court Rule of Civil Procedure 212(a) provides: “if an ex parte [preliminary
protective] order is granted, a preliminary protective hearing shall be scheduled before a
judge within 10 days of the entry of the ex parte order . . . .” “Upon a finding [at the
preliminary protective hearing] that probable cause exists to believe that a child continues
to be in actual physical, mental or emotional danger or there is substantial imminent risk
thereof or that a child has been abused or neglected, or continues to be dependent, the
Court shall continue the custody order in effect . . . pending an adjudicatory hearing in
accordance with 10 Del. C. § 1009.” The adjudicatory hearing “shall be scheduled within
30 days of the entry of the preliminary protective order.” Fam. Ct. R. Civ. P. 213(a). If
at the preliminary protective hearing, the Family Court does not find probable cause, “the
petition shall be dismissed and the child returned to the custody or guardianship of the
parent[] . . . .” Fam. Ct. R. Civ. P. 212(b).
4
App. to Opening Br. at 11-12 (PPH Test. of Colon, Sept. 17, 2014).
5
Id. at 12.
6
Id. at 12-13.
3
Colon testified she visited Mother at her home on August 6, 2014 for
an interview. Colon completed a full interview with Mother, though Colon
observed Mother’s speech to be slurred and found that Mother would lose
concentration when Colon asked questions. Mother said that she had given
birth to A.F. in the toilet because, when her water broke, she thought it was
urine and she needed to go to the bathroom. She told Colon she did not
know what to do when the baby and placenta were in the toilet and her legs
would not move. Mother claimed it was Tower who took her off the toilet
and removed the baby from the toilet. Colon also testified that, according to
the hotline report, it was the police officer responding to the scene who
removed the baby from the toilet, but that she had been unable to confirm
the report. 7
Colon was also concerned about reports from the social worker and
nurses at St. Francis Hospital regarding Mother’s interactions with the baby.
Mother had gone to the hospital every day to visit A.F. until the Department
decided to take custody. During those visits, nurses observed Mother
nodding off at times. She would ask the same question of them several
times in the same visitation session.8
7
Id. at 13-14, 16-17.
8
Id. at 14.
4
Colon testified that Mother is participating in a methadone program at
Brandywine Counseling to treat addiction to Percocet, and acknowledged
Mother had told Colon that Mother’s doctor had advised her not to
discontinue the methadone while she was pregnant. 9 She also testified that
Mother is living with the alleged father, Tower, and that the home is
appropriate. The home was stocked with food, had the necessary baby items
when she visited, and had working utilities. Colon testified that the
Department had concerns about Tower because he admitted at one time to
planting heroin and Percocet on Mother to help her get into a rehabilitation
program. 10
Tower testified at the PPH that he was the one who removed the baby
from the toilet after birth. He left to go to the bank and had called to check
on Mother while he was out. When she did not answer his call, he rushed
home. He testified that when he returned home, Mother called out to him,
saying she had delivered the baby in the toilet and he immediately called
911.11 Tower believed Mother did not realize she was in labor because the
methadone she was taking masked the pain. He testified that Mother only
takes the methadone as prescribed by Brandywine Counseling, and other
9
Id. at 17, 23.
10
Id. at 17-18.
11
App. to Opening Br. at 37-38 (PPH Test. of Tower, Sept. 17, 2014).
5
drugs as prescribed by her physicians.12 Tower claimed paternity of A.F. At
the time of the PPH, paternity testing had not yet been conducted. Tower
testified he was able to, and wanted to take care of A.F. 13
The Court Appointed Special Advocate (“CASA”) and her counsel
also appeared at the PPH. The CASA opposed the Department’s request to
continue custody with the Department.
The Family Court Decision
After hearing all the evidence, the Family Court concluded in a
September 18, 2014 order that the Department did not establish probable
cause to believe that A.F. was dependent, neglected, or abused in the care of
Mother and Tower. According to the Family Court, the Department failed to
establish that any of the drugs Mother was taking were taken without a
doctor’s knowledge of her condition or in violation of her physicians’
instructions. The court also credited Tower’s account of the circumstances of
A.F.’s birth over the report from the hotline. The court viewed the
remainder of the Department’s evidence as insufficient to justify removal of
the child from the custody of his parents.
The Department filed a motion for reargument. In a November 12,
2014 letter decision and order, the court denied the motion. The court
12
Id. at 39-40.
13
Id. at 40-41, 45-46.
6
rejected the Department’s argument that the court “ignored or misapplied”
the probable cause requirement. The court believed it had correctly weighed
the testimony of the witnesses and other evidence introduced at the
evidentiary hearing, and considered the totality of the circumstances in
making its probable cause determination. The court acknowledged the low
burden of proof under the probable cause standard, but found that “it would
be error of the most egregious kind to ignore the testimony of contrary
witnesses just because [the Department] believes that dependency exists
based on its own investigation.” The court also permitted the Department to
renew the petition if circumstances changed based on new facts.
Argument On Appeal
The Department raises a single argument on appeal; the Family Court
misapplied the probable cause standard at the PPH. It claims that the
Department presented sufficient evidence at the PPH to establish probable
cause to believe that A.F. was dependent as to Mother. 14 The Department
believes that its evidence at the hearing should have been accepted by the
Family Court as conclusive. The Family Court erred, according to the
Department, when it relied on the evidence presented by Mother, including
her explanations for her behavior, and by assessing the credibility of the
14
Opening Br. at 15.
7
testimony of Tower and Colon. 15 The Department contends that the Family
Court cannot compare and contrast the evidence presented by the parties at a
PPH, but must confine its analysis to the Department’s knowledge and
beliefs. The Family Court must determine based on the evidence presented
by the Department whether that knowledge and those beliefs are sufficient in
themselves to support a finding that probable cause exists to believe that the
child is dependent.16
Mother argues in response that it would be improper for the Family
Court to focus only on the Department’s knowledge and belief. The Family
Court’s rules, according to Mother, require the court to determine, not
whether the Department had probable cause to believe the child was
dependent and neglected when it filed its ex parte petition, but whether
probable cause exists to believe the child is dependent or neglected at the
time of the PPH. It is a fundamental due process right of a parent, Mother
contends, to contest the taking of custody of a child by the Department. The
PPH, in her view, is designed to give the parent an opportunity to contest the
Department’s allegations in an adversarial hearing. The Family Court judge
must, according to Mother, consider the evidence presented at the PPH as a
whole when making the probable cause determination.
15
Id. at 17-21; Reply Br. at 6-7.
16
Opening Br. at 14; Reply Br. at 6-7.
8
III. ANALYSIS
When reviewing a Family Court's order in a dependency, neglect, and
abuse proceeding, we review the facts and law, as well as the inferences and
deductions made by the trial court. Issues of law are reviewed de novo. We
conduct a limited review of the factual findings to assure that the record
supports them and they are not clearly wrong. We will not disturb
inferences and conclusions the record supports and that are not clearly
wrong. If the trial court has correctly applied the law, our review is limited
to abuse of discretion. 17
The Family Court Rules provide that, in a PPH, “the Court shall
determine whether the evidence demonstrates that probable cause exists to
believe that a child continues to be in actual physical, mental, or emotional
danger or there is a substantial imminent risk thereof.” Hearsay evidence is
admissible to meet the Department’s burden. 18 If the Family Court finds
probable cause to believe the foregoing danger exists or is imminent, or “that
a child has been abused or neglected, or continues to be dependent,” the
17
Taylor v. Division of Family Services, 7 A.3d 485, 2010 WL 4145190, at *2 (Del. Oct.
22, 2010).
18
Fam. Ct. R. Civ. P. 212(a).
9
Court continues the ex parte custody order. 19 A child is considered
dependent as to a parent when the parent:
a. Is responsible for the care, custody, and/or control of the
child; and
b. Does not have the ability and/or financial means to provide
for the care of the child; and
1. Fails to provide necessary care with regard to: food,
clothing, shelter, education, health care, medical care or
other care necessary for the child's emotional, physical or
mental health, or safety and general well-being . . . . 20
A child is considered neglected as to a parent when the parent:
a. Is responsible for the care, custody, and/or control of the
child; and
b. Has the ability and financial means to provide for the care of
the child; and
1. Fails to provide necessary care with regard to: food,
clothing, shelter, education, health, medical or other care
necessary for the child's emotional, physical, or mental
health, or safety and general well-being; or
2. Chronically and severely abuses alcohol or a controlled
substance, is not active in treatment for such abuse, and the
abuse threatens the child's ability to receive care necessary
for that child’s safety and general well-being; or
3. Fails to provide necessary supervision appropriate for a
child when the child is unable to care for that child’s own
basic needs or safety, after considering such factors as the
child's age, mental ability, physical condition, the length of
the caretaker's absence, and the context of the child's
environment. 21
19
Fam. Ct. R. Civ. P. Rule 212(b).
20
10 Del. C. § 901(8).
21
10 Del. C. § 901(18).
10
We disagree with the Department that the Family Court should have
accepted the Department’s evidence as conclusive at a PPH. The Family
Court judge at a PPH is not a rubber stamp for the Department. Unlike the
ex parte application procedure for a preliminary protective order, where the
parents do not participate, the court must convene a PPH within ten days of
the preliminary order, and allow the parents and others to be heard on the
dependency claim. At the hearing, the parents can respond to the
dependency charges and the judge can assess their credibility. 22 Before
reaching a probable cause determination, the court must weigh all the
evidence presented at the hearing, including the hearsay presented by the
Department and the parents, consider the totality of the circumstances, and
determine whether the State has met its burden to prove probable cause.23
The court in this case was free to credit Mother’s explanations for her
behavior, and to determine that Tower’s account of the circumstances of
A.F.’s birth should be given more weight than the account presented by the
Department. We find no error in the Family Court’s conduct of the hearing,
22
Division of Family Services v. L.C., 2002 WL 1932501, at *6 (Del. Fam. Ct. Jan. 17,
2002).
23
“Probable cause is an elusive concept which avoids precise definition. Generally, it
lies ‘somewhere between suspicion and sufficient evidence to convict.’ [I]t exists when
the ‘facts and circumstances . . . (are) sufficient in themselves to warrant a man of
reasonable caution in the belief . . . .’” Cochran v. State, 372 A.2d 193, 195 (Del. 1977).
See also L.C., 2002 W.L. 1932501, at *4 (quoting Cochran in describing the probable
cause standard in the context of a PPH).
11
weighing of the evidence, and considering all of the evidence in making its
probable cause determination.
The Department relies heavily on State v. Maxwell,24 where this Court
reversed a Superior Court order suppressing the results of a blood alcohol
test based on a lack of probable cause. We reversed because the Superior
Court required the State to negate all innocent explanations of the facts
observed by the police officer before probable cause could be established,
thereby imposing on the State a burden of proof higher than probable cause.
The Maxwell case is distinguishable. Maxwell involved a
retrospective review in a suppression hearing of a probable cause
determination made by a police officer before taking a blood sample. 25
Here, the Family Court Rules require a judge to conduct the PPH and hear
evidence in an adversarial setting in advance of a probable cause
determination. The Family Court determines “whether the evidence
demonstrates that probable cause exists to believe” 26 that custody should be
continued with the Department under the statute and the court’s rules. The
Family Court Rules do not restrict the Family Court judge to a review of the
24
624 A.2d 926 (Del. 1993).
25
21 Del. C. § 2740 of the Delaware Code provides that a blood test to determine the
presence of alcohol may be performed when an officer has probable cause to believe that
a person was driving, operating or in physical control of a vehicle while under the
influence of alcohol.
26
Fam. Ct. R. Civ. P. 212(b) (emphasis added).
12
evidence presented by the Department. 27 As we observed in Maxwell, the
probable cause determination must not be made based on the facts in
isolation, but instead on “the totality of the circumstances.” 28
IV. CONCLUSION
We recognize and respect the Department’s deep concern for A.F.,
given the circumstances of his birth, his mother’s serious addiction
problems, and other issues. But, we do not agree with its contention that the
Family Court cannot consider all the evidence in making the difficult
decisions entrusted to it in these cases. As to this point, it is clear that the
Family Court considered the Department’s position very seriously, finding
the probable cause determination in this case to be “a very, very close
call.” 29 The CASA for A.F. was also “very torn” but agreed with Mother
that probable cause did not exist.30 Whether we would have made different
factual findings and reached a different conclusion is not the standard of
review in this Court on appeal. We cannot say that the Family Court erred
as a matter of law, abused its discretion, or that the court’s factual findings
were clearly wrong.
27
We also note that, unlike Maxwell, where the factual record at the suppression hearing
was undisputed, the parents vigorously contested the Department’s version of the facts.
28
Maxwell, 624 A.2d at 928.
29
App. to Opening Br. at 55 (PPH Transcript).
30
Id. at 50.
13
NOW, THEREFORE IT IS ORDERED that the judgment of the
Family Court is AFFIRMED.
14