DFS sought termination of parental rights for failure to plan and alternatively, “abandonment.” One father voluntarily gave up his parental rights to his son, while mother and the father of the other son opposed termination.

     Q.H. claimed that his son was entitled to protection under the Indian Child Welfare Act, 25 U.S.C. § 1903 et seq. The Court denied this claim because he was unable to provide any evidence that his son was a member of an Indian tribe as defined in the statute.

     The Court then conducted the analysis for termination of parental rights for failure to plan under 13 Del. C. § 1103(a)(5). The Court found that DFS had proven not only the required one, but all five statutory factors by clear and convincing evidence. Among those factors that were relevant were that Mother had never requested services, and that she had requested that all planning be done with her grandmother.

     Although DFS was not required to plan with Maternal great-grandmother, it nevertheless did so in good faith. The Court concluded that MGGM was not a viable adoptive resource given the inadequacy of her home, her dependence on others for transportation, her lack of financial resources, and her failing health and advanced age. The Court also expressed concern with the continued presence in the home of family members with extensive histories of domestic violence and mental illness, where MGGM still did not recognize the significant problems such presence posed to the boys' development.

     The Court also determined that Q.H. had abandoned his son: he had never seen his son, he had never paid child support, and he would remain incarcerated for many years.

     The Court went through the seven factors constituting the “best interest of the child” set forth in 13 Del. C. § 722. Among these factors, the Court found the following particularly relevant: the boys' adjustment to their current home; the health of those involved; parents' past and present compliance with their rights and responsibilities to their children under 13 Del. C. § 701; and the substantial history of domestic violence involving Mother and other members of the family, many of which had occurred in MGGM's trailer. The Court concluded that the brothers' natural bond and their strong relationship to their foster family also favored termination. The Court found that separating the boys, by sending one of them out of the state to live with a blood relative, would not be in the children's best interest.

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