Opinion
No. 28, 2001
Submitted: July 22, 2002
Decided: August 8, 2002
Court Below — Family Court of the State of Delaware, in and for Sussex County File No. 00-08-06TPR.
Appeal dismissed.
Unpublished opinion is below.
CAROL LYNN BROWN and JOSEPH DEAN COOPER, Respondents Below-Appellants, v. DIVISION OF FAMILY SERVICES and CASA, Petitioners Below-Appellees. No. 28, 2001 In the Supreme Court of the State of Delaware. Submitted: July 22, 2002 Decided: August 8, 2002
Before VEASEY, Chief Justice, WALSH, HOLLAND, BERGER, and STEELE, Justices (constituting the Court en banc).
RANDY J. HOLLAND, Justice.
ORDER
This 8th day of August 2002, it appears to the Court that:
(1) Carol Lynn Brown ("Mother") and Joseph Dean Cooper ("Father") filed this appeal, pro se, from a Family Court judgment terminating their respective parental rights as to their two minor children. The Court appointed Margaret R. Cooper, Esquire to represent Mother and Father on appeal. After full briefing and oral argument before the Court en banc, we reversed the Family Court judgment on the ground that the parents were not given proper notice of their right to request court-appointed counsel and demonstrate their indigence in accordance with Lassiter v. Department of Social Services. Accordingly, we remanded the matter to the Family Court with directions to hold both the Lassiter hearing and the termination hearing on an expedited basis. Jurisdiction was retained.
Brown v. Division of Family Servs., 2002 WL 181252 (Del.Supr.).
452 U.S. 18, 33 (1981).
(2) On February 13, 2002, the Family Court informed this Court that the Mother's location was unknown and that, despite best efforts, the Family Court was unable to personally serve her with notice of the scheduled hearings. The Family Court therefore requested additional time to return the matter from remand in order to comply with the statutory requirements for effectuating service of process on Mother by publication in the newspaper. We granted an additional sixty days to return the matter from remand while encouraging the Family Court to continue pursuing every reasonable avenue to locate Mother and personally serve her. The record indicates that Mother ultimately was served personally with notice of the scheduled Family Court hearings on March 15, 2002.
DEL. CODE ANN. tit. 13 Del. C. § 1107(c) (requiring notice by publication in the newspaper once per week for three successive weeks).
(3) The Family Court issued its report following remand on April 25, 2002. In its report, the Family Court states that Father, represented by court-appointed counsel, appeared at the termination hearing and presented a signed, sworn document reflecting his consent to the termination of his parental rights. The Family Court reviewed with Father the provisions of the consent form and determined that Father had knowingly and voluntarily consented to the termination of his parental rights. The Family Court accepted Father's consent and ordered that his parental rights be terminated.
The Family Court held a Lassiter hearing on February 13, 2002, at which Father appeared and requested appointment of counsel. The Family Court found Father to be indigent and appointed counsel, Margaret Cooper, to represent him.
(4) As to Mother, the Family Court determined that Mother had been personally served with notice of the termination hearing and with notice of her right to seek the appointment of counsel for purposes of the hearing. The notice stated, among other things, that the Family Court would construe Mother's failure to appear at the hearing as a waiver of the right to counsel and a waiver of the right to oppose termination of her parental rights. Despite proper notice, Mother failed to appear at the hearing. The Family Court considered evidence presented by the Division of Family Services (DFS) and the Court Appointed Special Advocate (CASA). The Family Court found by clear and convincing evidence that Mother had failed to plan adequately for her children's physical needs or their mental and emotional health and development. The Family Court further found that both children had been in the care of DFS for more than a year, that DFS's efforts at reunification had been reasonable, and that it was in the children's best interest that Mother's parental rights be terminated for the purpose of adoption.
(5) Upon receipt of the Family Court's report following remand, the Clerk of this Court sent a letter, based upon the Family Court's findings on remand, requesting that counsel either file a stipulation of dismissal of the appeal or file a statement of counsel's position why the appeal should not be dismissed. Margaret Cooper, who previously had been appointed by this Court to represent both Mother and Father on appeal, wrote to the Clerk indicating that she could sign a stipulation of dismissal as to Father but that she could not reach Mother in order to determine Mother's position. Ms. Cooper further stated that, even if she could reach Mother, Mother consistently had refused to communicate with her. Ms. Cooper requested further direction from this Court.
(6) This Court directed Ms. Cooper to personally serve Mother with a letter notifying Mother that if she failed to respond within ten days, this Court would affirm the Family Court judgment given Mother's failure to pursue the appeal. Ms. Cooper wrote to the Court on June 26, 2002. She enclosed a copy of her letter to Mother and an affidavit from the process server who personally served Mother with the letter. Ms. Cooper stated that Mother had failed to respond to the letter. Ms. Cooper further stated that, while Mother's failure to respond appeared to reflect Mother's affirmative decision not to pursue the appeal, Ms. Cooper could not sign a stipulation on Mother's behalf agreeing to dismissal of the appeal. Thereafter, the Clerk directed Ms. Cooper to file a stipulation of dismissal on behalf of Father by July 22, 2002, which she did. The Clerk further indicated that this Court would take the matter under advisement as to Mother.
(7) Having considered this matter very carefully, we find it manifest that this appeal must be dismissed as to both Mother and Father. The record reflects that Mother was personally served with notice of the termination hearing on remand below and was warned that her failure to appear would be construed as her consent to termination of her parental rights. Mother failed to appear at the hearing. Furthermore, Mother was personally served with notice that her failure to pursue her appeal in this Court would result in affirmance of the Family Court's order terminating her parental rights. Despite this notice, Mother has failed to appear and prosecute her appeal. Her failure to respond and to diligently prosecute this matter can only be construed as her acquiescence in the Family Court's judgment terminating her parental rights.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family Court following remand, dated April 25, 2002, is AFFIRMED. This appeal is hereby DISMISSED. The mandate shall issue immediately.