Case Summary: Case Summary: This case stems from a termination of parental rights petition filed by DFS on January 12, 1998. Quintana, the minor child, was 21 months old at the time. The case went to trial in Family Court in December of 1999 and February of 2000. On March 27, 2000, the Family Court denied the petition. At that time, Quintana was nearly 4 years old. At trial, mother conceded that she had failed to plan for her daughter's return to her; however, she argued that TPR was not in Quintana's best interests. Specifically, she argued that Quintana had a significant bond with her mother, that she had a biological link to her mother and that guardianship would provide permanency to Quintana without severing the parent/child relationship.
     The trial court found that despite mother conceding failure to plan, the grounds had not been met. Specifically, the court held that each element of § 1103(a)(5) must be met in order to prevail. In addition, the Family Court held that TPR was not in Quintana's best interests, specifically focusing on the biological link between parent and child.
     On appeal, DFS argued that guardianship was not permanency for Quintana. It also argued that the Family Court erred in its conclusion that all elements of 13 Del. C. § 1103(a)(5) must be met in order to prevail, and Mother conceded this point. Mother again argued that TPR was not in Quintana's best interests.
     The Delaware Supreme Court held that the Family Court erred in its analysis of failure to plan. The Court held that the petitioner must only satisfy one of the elements in § 1103(a)(5) in order to prevail. It then found that the records supported the Family Court's conclusion that termination was not in Quintana's best interests. Most significantly, the Supreme Court found that the trial court's decision did consider the importance of permanency in denying the TPR. The Court held that "adoption is not in the best interest of the child in this case, but a guardianship would provide Quintana with the 'safe, stable, custodial environment' in which to be raised that rises to the level of permanency." The trial court concluded that this is not "a case where the child is going to be left in limbo."

     From the Child's Perspective: The latin definition of limbo in roman catholic theology is a "place on the border of hell". The American Heritage Dictionary of the English Language, 3rd ed., 1996. When child welfare experts talk of limbo and permanency, they speak of assuring a child and the child's caregiver that they will have a safe, secure and stable environment to grow up in without fear of removal. Unfortunately, no lesser legal alternative than termination of parental rights can ensure Quintana that she will forever reside with her foster mother. While the foster mother has indicated a commitment to raising Quintana throughout her childhood, and mother has not requested a return of custody to her at this time, mother has the right to petition the trial court for custody for the remainder of Quintana's minority. It matters not whether DFS has custody or foster mother has guardianship. Delaware law requires the return of custody to a parent by a non-parent if that parent can show by a preponderance of the evidence the he or she is able to provide "adequate care" for the child. Therefore, a guardianship (whether or not assisted) in Delaware is not legally secure from modification, and therefore does not meet the intent of permanency as set out in the 1997 Adoption and Safe Families Act.
     We are also troubled by the Family Court's heavy reliance on a "biological link" and the acknowledgement of same by the Delaware Supreme Court. All children who are the subject of termination of parental rights petitions' have a "biological link" to their parents. The U.S. Supreme Court has even held that "mere existence of a biological link does not merit equivalent constitutional protection". Lehr v. Robertson, 103 S.Ct. 2985, 2993 (1983). Being a parent has little to do with biology, and much more to do with a "full commitment to the responsibilities of parenthood . . [such as] participating in the rearing of [the] child". Id. Equally important is the permanent caregiver's acknowledgement of the biological link, and a child's need to know, understand and respect from where he/she came. However, to make a "biological link" a compelling factor in a best interests analysis would deprive countless abused and neglected children in Delaware from experiencing a "forever family".

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