Opinion
No. 159, 2003.
Submitted: April 25, 2003.
Decided: May 16, 2003.
Court Below Family Court of the State of Delaware, in and for Sussex County File No. 98-8-1-TK
Before VEASEY, Chief Justice, BERGER, and STEELE, Justices.
ORDER
This 16th day of May 2003, upon consideration of the notice to show cause and the responses thereto, as well as the motion to dismiss and responses thereto, it appears to the Court that:
(1) The appellant, John Stafford, filed a notice of appeal in this Court on March 24, 2003 from an order of the Family Court dated December 13, 2002. The Family Court's December 2002 order vacated an earlier order, dated July 25, 2001, terminating Stafford's and Lisa Bentley's respective parental rights as to their minor son. The effect of the December 2002 decision was to reinstate Stafford's and Bentley's parental rights.
(2) On March 28, 2003, the Clerk of this Court issued a notice to Stafford to show cause why the appeal should not be dismissed for Stafford's failure to file his notice of appeal within 30 days of the Family Court's order. Thereafter, the Division of Family Services filed a motion to dismiss the appeal as untimely.
See DEL. SUPR.CT.R. 6; DEL. CODE ANN. tit. 10, § 1051(c) (1999).
(3) Stafford, through his counsel, filed a response to the notice to show cause. Stafford contends that he was never notified that there were proceedings filed in 2002 to vacate the Family Court's 2001 termination order. Moreover, Stafford asserts that never received a copy of the Family Court's order vacating its termination order and reinstating his parental rights until February 2003 when he was served with a petition for child support. Stafford asserts that his appeal should be deemed timely filed because his notice of appeal was filed within 30 days of his receiving notice of the Family Court's December 2002 decision.
(4) DFS filed a reply to Stafford's response. DFS does not seriously dispute Stafford's claim that he never received a copy of the Family Court's decision reinstating his parental rights until February 2003. DFS asserts, however, that Stafford received constructive notice of the decision when a copy of DFS' petition to vacate was mailed to him at his last known address and was not returned as undeliverable. DFS further argues that Stafford had an obligation to keep the Family Court informed of any address changes, even after the Family Court issued its July 25, 2001 decision terminating Stafford's parental rights. Furthermore, DFS concludes that, even if Stafford did not receive notice of the Family Court reinstatement proceedings and decision, Stafford was not prejudiced in any way because he had no right to oppose reinstatement of his parental rights.
(5) We have considered the parties' respective positions carefully. We find DFS' suggestion that Stafford had no right, or alternatively waived his right, to be notified and appear at the reinstatement proceedings to be unfathomable.
Accordingly, DFS' motion to dismiss is denied. The rule to show cause is discharged.
(6) Nonetheless, we conclude that this matter should be remanded to the Family Court for consideration of Stafford's motion for relief from judgment under Family Court Civil Rule 60(b). The Family Court is directed to issue its decision on the motion within 60 days and to provide this Court with a copy of its decision.
Jurisdiction will be retained.
NOW, THEREFORE, IT IS ORDERED that the motion to dismiss is DENIED. This matter is REMANDED for further proceedings consistent with this order. Jurisdiction is retained.