The Decision: This case involves two small children who were 20 months and 7 months old at the time of the termination of parental rights trial. At trial on November 10, 1999, the mother voluntarily relinquished her rights to these two children. Approximately 45 days later, mother appealed, arguing that her consent was not knowing and voluntary. Mother argued that since she did not want to physically sign the papers to give up her rights, forcing the court to do the voluntary relinquishment colloquy under oath and on the record, her relinquishment was not voluntary.

     The Delaware Supreme Court accepted the untimely appeal, and subsequently held that when mother agreed to terminate her rights to her children, it was not knowingly, voluntarily and intelligently done. The Court first focused on the voluntariness aspect finding that her unwillingness to sign the papers raised serious questions as to the voluntariness of the waiver. The Supreme Court also expressed concern about the information Ms. Casner received during the colloquy with the court. Ms. Casner received information from the judge explaining that if her rights were terminated, she and her children would exist as if they were strangers, without the right to know anything about their lives. The Supreme Court found that mother's counsel attempted to minimize these statements. Finally, the Court was concerned that Ms. Casner was pressured to make this decision too quickly. The Court held, " Considering the totality of the circumstances, the record does not support a finding that Casner knowingly, voluntarily and intelligently consented to the termination of her parental rights." On September 14, 2000, The Delaware Supreme Court reversed and remanded the case for a new hearing. On November 8, 2000, the Family Court involuntarily terminated Ms. Casner's rights.

     From the Child's Perspective: As advocates for children, our primary focus is considering the effect of this decision on the children involved in the particular case. We advocate with the child's sense of time in mind. In this case, the petition to terminate Ms. Casner's rights was filed in June of 1999 and rights were terminated in November of 1999. The final brief in this case was submitted to the Delaware Supreme Court in August of 2000 and a decision rendered five weeks later. In the lives of these children, this is an eternity. In fact, during the pendency of this case, the young girl doubled in age from 16 months in June of 1999 to 31 months in September 2000. The young boy was four months old when he was added to the TPR petition and was 17 months old when the Supreme Court reversed. During this time, secure attachments are being formed, developmental milestones are being achieved and innocent lives are progressing without any idea of the potential legal devastation that is lurking.

     While parental rights deserve protection, children's lives are paramount and these cases deserve prompt attention. The Office is encouraged that the Supreme Court has asked for proposed rule changes to expedite these cases, and is hopeful that all parties will begin to view these cases from the perspective of a child's sense of time. Even where a child has lived for several years with a family who wishes to adopt him or her, neither the family, the agency or the attorneys can assure that little child that he or she can always remain there, until the court process is finalized. Children who experience foster care always fear removal, replacement and lack of certainty as to where they will sleep the following night. The Casner children, have never had the security of knowing they will always have a "forever family".

     This case is also significant because of the uncertainty that any voluntary termination of parental rights may bring in the future. If parents are allowed to withdraw their consent, agencies may be hesitant to allow parents to make decisions that are in the best interests of their children when that decision is termination of parental rights. Instead, to protect the children and ensure permanency more quickly, agencies may be forced to take an adversarial role against a parent who wants to do the right thing for his or her child by voluntarily relinquishing his or her parental rights.

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