Opinion
No. 480, 1998.
Decided: September 8, 1999.
Court Below: Family Court of the State of Delaware, in and for Kent County, File No. CK90-3988, Petition Nos. 98-00165 and 98-11714.
AFFIRMED.
Unpublished Opinion is below.
DOUGLAS E. RICHMOND, Petitioner Below, Appellant, v. DIVISION OF FAMILY SERVICES, RUTH WILSON, Respondents Below, Appellees. No. 480, 1998. Supreme Court of Delaware. Submitted: August 26, 1999. Decided: September 8, 1999.
Pseudonyms have been used to protect the identity of the parties to this appeal. Supr. Ct. R. 7(d).
Court Below: Family Court of the State of Delaware, in and for Kent County, File No. CK90-3988, Petition Nos. 98-00165 and 98-11714.
Before VEASEY, Chief Justice, WALSH and HARTNETT, Justices.
ORDER
This 8th day of September 1999, upon consideration of the briefs of the parties and the record, it appears to the Court that:
(1) Douglas E. Richmond (Father) appeals the October 6, 1998 order of a Family Court Judge denying reconsideration of an April 29, 1998 order of a Family Court Commissioner that held that his four children were dependent and that the Division of Family Services should retain custody of them. The appeal is without merit.
(2) On December 18, 1997, the Division of Family Services filed a dependency/neglect petition seeking custody of the four children of Douglas E. Richmond (Father) and Ruth Wilson (Mother). The paternal grandmother also filed a dependency/neglect petition. In an ex parte order, the Family Court awarded the Division of Family Services emergency custody of the children. On December 23, 1997, after a probable cause hearing was held, the Family Court directed that the Division of Family Services retain temporary custody pending an adjudicatory hearing.
(3) On December 31, 1997, the Mother filed a motion to modify custody and on April 24, 1998, the Father filed a motion to modify custody.
(4) After an adjudicatory hearing before the Family Court Commissioner on April 27, 1998, the Commissioner, on April 29, 1998, found that the children were dependent and that the Division of Family Services should retain custody. The court also denied the applications for custody by the Mother, the Father, and the paternal grandmother. The Mother, the paternal grandmother and the Father were present at the hearing. The Father was represented by counsel. No appeal to a Family Court Judge was taken from the April 29, 1998 Order entered by the Commissioner after the April 27, 1998 adjudicatory hearing.
(5) A telephone conference was held by a Family Court Judge on June 26, 1998 to determine the status of the case. Although the Judge believed that the cross petitions of the Mother and the Father for custody were addressed at the April 27, 1998 hearing before the Commissioner, he allowed the parties to show good cause in writing why the Judge should conduct a hearing on the parents' cross petitions for custody that were filed before the adjudicatory hearing. The Father indicated his position in writing.
(6) The Judge then scheduled a hearing to allow the parents to show cause why a hearing should be conducted on the petitions that they had filed before the April 27, 1998 Commissioner's hearing. At the hearing by the Judge held on October 6, 1998, counsel for Father was permitted to withdraw. The Mother advised the court that she was not in a position to adequately provide for her children at that time and that she did not seek a further hearing at that time. After a lengthy discussion and inquiry, the Judge concluded that the Father was attempting to appeal the April 29, 1998 Order of the Commissioner entered after the April 27, 1998 adjudicatory hearing. The Judge, by Order dated October 6, 1998 and mailed October 9, 1998, concluded that he could not reconsider the Commissioner's April 29, 1998 Order because the Father had not appealed it to a Family Court Judge within the time limit required.
(7) Title 10 section 915(d) of the Delaware Code states:
A Commissioner's order, including emergency ex parte orders, shall be an enforceable order of the Court.
(1) Any party . . . may appeal a final order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by rules of the Court, within 10 days from the date of a Commissioner's order. A judge of the Court shall make a de novo determination of those portions of the Commissioner's order to which objection is made. A judge of the Court may accept, reject or modify in the whole or in part the order of the Commissioner. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
DFS/B. R v. D. R, Del. Fam., C.A. No. 98-01964 (Apr. 29, 1998).
Id.
Id
In re D. R, Del. Fam., C.A. No. 98-00165 (Oct. 6, 1998).
Id.
Id.
Id.
Id.
10 Del. C. § 915(d) (emphasis added).
Family Court Civil Procedure Rule 53.1(b) also states that the appeal of a Commissioner's order must be filed with the Family Court within ten days from the date of the order. The April 29, 1998 Commissioner's Order, therefore, became final ten days after it was entered and not appealed. Because the Father did not appeal the Commissioner's Order within ten days, the Family Court Judge correctly held that he could not reconsider the rulings in the Commissioner's April 29, 1998 Order.
(8) Unfortunately for the Father, he lost his right to appeal the Commissioner's Order because he did not appeal it to a Family Court judge, as the statute requires, within ten days of its entry. The Father never filed an appeal from the Commissioner's Order in the Family Court and did not notify the Family Court that he desired to appeal it until the hearing before the Judge on October 6, 1998.
DCSE/Smith v. Neal, Del. Supr., 687 A.2d 1324 (1997); Redden v. McGill, Del. Supr., 549 A.2d 695, 698 (1988); Harvey v. Hamill, Del. Supr., No. 193, 1995, Berger, J. (June 23, 1995) (ORDER).
(9) The Father did seek to file an appeal from the Commissioner's Order on November 9, 1998 when he attempted to file an appeal of it in this Court. This Court, however, does not have jurisdiction to hear direct appeals from an order of a Family Court Commissioner. If the Father had appealed the April 29, 1998 Commissioner's Order within ten days, to a Family Court judge, the Judge would have been able to have considered his arguments regarding the April 27, 1999 hearing. Because, however, the Father did not appeal the Commissioner's Order within the ten day deadline to a Family Court Judge, the Family Court correctly held that it could not consider his arguments regarding the April 27, 1998 hearing before the Commissioner.
10 Del. C. § 915(d); DCSE/Smith v. Neal, 687 A.2d 1324 (finding an appeal of a Master's order not entered within the time limit provided by the statute is time barred and a final order); Redden v. McGill, 549 A.2d at 698; Harvey v. Hamill, Del.Supr., No. 193, 1995, Berger, J. (June 23, 1995) (ORDER).
(10) Father is apparently not without a remedy, however, because he indicated in his filings in this Court that the Division of Family Services has advised him that it intends to seek termination of his parental rights. If such a petition is filed, the Father may request the appointment of legal counsel if he is indigent. At a hearing on the petition, Father may call the witnesses mentioned in his briefs to offer any legally relevant evidence. If Father's parental rights are not terminated, he could file a new petition for custody, if the facts warrant.
Fam. Ct. Civ. R. 203; In re Heller, Del. Supr., 669 A.2d 25 (1995); In re Carolyn S. S., Del. Supr., 498 A.2d 1095 (1984).
See Maria S. v. Richard S., Del. Fam., C.A. No. CN96, 12130, 1998 WL 665572 (Apr. 8, 1998), at 7; Heather P. v. Short/DFS, Del.Fam., C.A. No. CN948301, 1996 WL 434495 (Apr. 4, 1996); Bernadette P. v. Martha T., Del. Fam., C.A. No. F-8801, 1993 WL 265117 (Feb. 23, 1993).
(12) Because the other arguments raised in the Father's briefs address the merits of the April 29, 1998 Commissioner's Order or they are without any legal foundation they need not be addressed.
(13) Father filed a supplemental brief on August 26, 1999. This writing does not comply with the Supreme Court Rule 16(a) (vi). Accordingly, the motion is a non-conforming paper under Rule 34 and must be stricken. Even if we could consider the supplemental brief, it does not raise any issues relevant to the issue decided herein.
NOW, THEREFORE, IT IS ORDERED pursuant to Rules 16(a) (vi) and 34 that the Appellant's August 26, 1999 document be, and the same hereby is, STRICKEN, and the October 6, 1998 Order of the Family Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
s/ Maurice A. Hartnett, III Justice