IN THE SUPREME COURT OF THE STATE OF DELAWARE 

AUGUST KLINE,1

Respondent Below, 

Appellant, 

v. 

DELAWARE DIVISION OF 

FAMILY SERVICES, 

Petitioner Below, 

Appellee. 

§ 

§ No. 292, 2022 

§ 

§ 

§ Court Below–Family Court 

§ of the State of Delaware 

§ 

§ 

§ File No. 22-06-5TK 

§ Petition No. 22-11760 

§ 

§ 

Submitted: December 29, 2022 

Decided: February 28, 2023 

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices. 

 

ORDER

After consideration of the appellant’s brief filed under Supreme Court Rule 

26.1(c), her attorney’s motion to withdraw, the appellee’s response, the Child 

Attorney’s response, and the record on appeal, it appears to the Court that: 

(1) By order dated July 19, 2022, the Family Court terminated the parental 

rights of the appellant, August Kline (the “Mother”), in her minor daughter (the 

“Child”).2 The Mother appeals. 

1

 The Court previously assigned pseudonyms to the appellant under Supreme Court Rule 7(d). 

2

 The Family Court’s order also terminated the parental rights of the Child’s unknown father. We 

refer only to facts in the record that relate to the Mother’s appeal. 
2 

(2) On appeal, the Mother’s counsel has filed an opening brief and motion 

to withdraw under Rule 26.1(c). Counsel asserts that he has conducted a 

conscientious review of the record and the relevant law and has determined that the 

Mother’s appeal is wholly without merit. Counsel informed the Mother of the 

provisions of Rule 26.1(c), provided her with a copy of counsel’s motion to 

withdraw and the accompanying brief, and advised her that she could submit in 

writing any additional points that she wished for the Court to consider. The Mother 

has not provided any points for the Court’s consideration. The appellee, the 

Delaware Division of Family Services (DFS), and the Child’s Attorney have 

responded to counsel’s Rule 26.1(c) brief and argue that the Family Court’s 

judgment should be affirmed. 

(3) In the summer of 2021, the Mother, then pregnant with the Child, 

relocated to Delaware from Michigan and moved in with the Mother’s former foster 

sister, Aspyn, and her wife, Mallori. In August 2021, shortly after the Mother gave 

birth to the Child, DSF received a hotline call reporting, among other things, that the 

Mother was inattentive to the Child, was threatening hospital staff, and had prior 

history with child-protection services in Michigan. DFS met with the Mother and 

established a safety plan under which the Mother and the Child would continue to 

reside with Aspyn and Mallori and the Mother would not, among other things, cosleep with the Child. In September 2021, the Mother and Mallori engaged in a 
3 

heated argument and the Mother was asked to leave the home. At that time, the 

Mother, who was unemployed and now homeless, agreed to sign over guardianship 

of the Child to the Aspyn and Mallori. After the Mother rescinded her consent for 

the guardianship, the Family Court granted DFS’s ex parte petition for custody of 

the Child on September 27, 2021. 

(4) With the filing of DFS’s dependency-and-neglect petition, the 

mandated hearings ensued.3 At the preliminary protection hearing and the 

adjudicatory hearing, the Mother stipulated that the Child was dependent in her care 

and that it was in the Child’s best interest to remain in DFS’s custody. The Family 

Court found that DFS had made reasonable efforts to identify family members as 

placement resources. Indeed, the Mother, who grew up in foster care in Oklahoma, 

had not identified any relatives for DFS to contact. 

(5) In November 2021, the Family Court held a dispositional hearing to 

review the case plan that DFS had developed to facilitate the Mother’s reunification 

with the Child. The plan required the Mother—whose parental rights in the Child’s 

older sibling were involuntarily terminated in Michigan in 2018 and who had been 

diagnosed with depression and anxiety—to engage in mental-health counseling as 

well as undergo a mental-health evaluation and follow any treatment 

3

 When a child is removed from home by DFS and placed in foster care, the Family Court is 

required to hold hearings at regular intervals under procedures and criteria detailed by statute and 

the court’s rules. 13 Del. C. § 2514; Del. Fam. Ct. Civ. Pro. Rs. 212-219. 
4 

recommendations. The plan also called for the Mother to obtain stable employment 

and housing, establish a budget, and attend parenting classes. 

(6) As of the December 21, 2021 three-month review hearing, the Mother 

had not yet undergone a mental-health evaluation. The Mother had been unable to 

take her prescribed medications because her medication-management appointments 

had been canceled because of a lack of providers. Although the Mother wished to 

return to Michigan, she was currently renting a room in Delaware. DFS had 

concerns about the home because another resident told DFS that she intended to 

petition for a protection-from-abuse order against the Mother. The Mother was, 

however, enrolled in parenting classes, engaged with a family interventionist, and 

enjoying regular visits with the Child. 

(7) In the weeks leading up to the February 14, 2022 six-month review 

hearing, the Mother had moved to Oklahoma to live with a cousin but had since 

decided to return to Michigan and resume living with her friend Tiffany. The Mother 

participated in the six-month review hearing remotely. Before leaving Delaware, 

the Mother had completed a psychological evaluation with Patrick Zingaro, PsyD. 

Dr. Zingaro recommended that the Mother participate in additional counseling and 

undergo a psychiatric evaluation in light of her previous treatment for trauma and 

her belief that she was suffering from post-partum depression. Notably, the 

Mother’s DFS treatment worker had advised the Mother that it would be difficult for 
5 

DFS to provide her with services (including referrals) if she was living in another 

state. Although the Mother had completed a parenting class and was participating 

in virtual visits with the Child, she had not obtained stable housing or employment. 

(8) Before the April 26, 2022 permanency hearing, DFS filed a motion to 

change the permanency plan from reunification to termination of parental rights 

(TPR) for the purpose of adoption. As of the permanency hearing, the Mother was 

living with Tiffany in Michigan and had returned to the job she held before she 

relocated to Delaware in 2021. The Mother had neither obtained stable housing nor 

undergone a psychiatric evaluation. Although the Mother testified that she did not 

feel she needed mental-health therapy, she had purportedly been engaged with a 

licensed counselor for approximately one month. The counselor, who testified that 

she was a “certified life coach,” had not reviewed the Mother’s medical records, did 

not know what medications the Mother was taking, and did not believe that the 

Mother had any mental-health issues. The DFS treatment worker explained that it 

was difficult for the Child to engage in virtual visits with the Mother given an 

infant’s short attention span. The Mother had not visited with the Child in person 

since January, and the Mother had not had any contact with the Child’s courtappointed special advocate in several weeks. At the conclusion of the hearing, the 

Family Court changed the permanency goal from reunification to the concurrent 

goals of reunification and TPR for the purpose of adoption. 
6 

(9) On June 13, 2022, DFS filed a petition for the termination of the 

Mother’s parental rights in the Child on two bases: the Mother’s failure to plan and 

the Mother’s prior involuntary TPR. On July 11, 2022, the parties convened for the 

TPR hearing. The Family Court heard testimony from the Mother, the therapist with 

whom the Mother had recently begun working in Michigan, Aspyn, Mallori, Tiffany, 

the DFS treatment supervisor, the Child’s DFS permanency worker, a former Texas 

police officer responsible for investigating a sexual assault the Mother had reported, 

and the Child’s foster mother. 

(10) As of the TPR hearing, the Mother had completed components of her 

case plan: she had attended parenting classes, was employed, and had recently 

obtained approval of her housing in Michigan under the Interstate Compact on the 

Placement of Children. Evidence presented also fairly established, however, that the 

Mother had not addressed the critical mental-health component of her case plan. In 

early 2022, the Mother had travelled to Texas to visit a man who allegedly sexually 

assaulted her. The Mother, who had initially been argumentative with DFS about 

her need for mental-health counseling, had only just began therapy in earnest in May, 

and the therapist had not yet explored with the Mother the circumstances 

surrounding her prior TPR or her childhood trauma. Notably, the Mother had not 

disclosed to her therapist that she had recently been a victim of sexual assault. 
7 

Finally, the Mother had not undergone the psychiatric evaluation recommended by 

Dr. Zingaro. 

(11) The evidence presented further established that the Mother had not been 

interacting with the Child or her caregivers in a meaningful manner for some time. 

Although arrangements had been made for the Mother to participate in the Child’s 

medical visits via Zoom, the Mother had not availed herself of them. Of the six 

virtual visits facilitated by the permanency worker, the Mother had missed two. 

Perhaps most importantly, the Mother had not seen the Child in person in almost six 

months, and the Child was not bonded to the Mother. On the other hand, the Child 

was bonded to her foster mother, an adoptive resource, and her foster mother’s 

family, friends, and community. Following the hearing, the Family Court issued a 

written order terminating the Mother’s rights in the Child on the dual bases of the 

Mother’s failure to plan and the Mother’s prior involuntary TPR. This appeal 

followed. 

(12) On appeal, this Court is required to consider the facts and the law as 

well as the inferences and deductions made by the Family Court.4 We review legal 

rulings de novo.

5

 We conduct a limited review of the factual findings of the trial 

court to assure that they are sufficiently supported by the record and are not clearly 

4 Wilson v. Div. of Family Servs., 988 A.2d 435, 439-40 (Del. 2010). 

5

Id. at 440. 
8 

erroneous.6 If the trial judge has correctly applied the law, then our standard of 

review is abuse of discretion.7 On issues of witness credibility, we will not substitute 

our judgment for that of the trier of fact.8

(13) The statutory framework under which the Family Court may terminate 

parental rights requires two separate inquiries.9 First, the court must determine 

whether the evidence presented meets one of the statutory grounds for termination.10 

When the statutory basis for termination is failure to plan, the Family Court must 

also find proof of at least one additional statutory condition.11 If the Family Court 

finds a statutory basis for termination of parental rights, the court must determine 

whether, under 13 Del. C. § 722, severing parental rights is in the best interests of 

the child.12 Both of these requirements must be established by clear and convincing 

evidence.13

(14) Here, the Family Court found that DFS had proved, by clear and 

convincing evidence, that the termination of the Mother’s parental rights was 

appropriate based on her failure to plan adequately for the Child’s physical needs or 

6

Id. 

7

Id. 

8 Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979). 

9 Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000). 

10 Id. at 537. 

11 13 Del. C. § 1103(a)(5)(a)(1)-(5) (listing additional conditions). 

12 Shepherd, 752 A.2d at 536-37. 

13 Powell v. Dep’t of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731 (Del. 

2008).
9 

mental and emotional health and development14 and that the Child, who came into 

DFS’s care as an infant, had been in DFS custody for more than six months.15 The 

Family Court also found that DFS had proved, by clear and convincing evidence, 

that the Mother had previously had her parental rights in the Child’s sibling 

involuntarily terminated.16 Finally, the Family Court examined the best-interests 

factors set out in 13 Del. C. § 722 and found, by clear and convincing evidence, that 

termination of the Mother’s parental rights was in the Child’s best interests. 

(15) The Mother has not submitted any points for this Court’s consideration 

on appeal. Appointed counsel represents that he has determined that no arguably 

appealable issue exists. Having carefully reviewed the parties’ positions and the 

record on appeal, we find that the Family Court’s factual findings are supported by 

the record, and we can discern no error in the court’s application of the law to the 

facts. We therefore conclude that the Mother’s appeal is wholly without merit and 

devoid of any arguably appealable issue. We are satisfied that the Mother’s counsel 

made a conscientious effort to examine the record and the law and properly 

determined that the Mother could not raise a meritorious claim in this appeal. 

14 13 Del. C. § 1103(a)(5). 

15 Id. § 1103(a)(5)(a)(1). 

16 Id. §1103(a)(6). 
10 

NOW, THEREFORE, IT IS ORDERED that the judgment of the Family 

Court is AFFIRMED. Counsel’s motion to withdraw is moot. 

BY THE COURT: 

 /s/ Collins J. Seitz, Jr. 

 Chief Justice