IN THE SUPREME COURT OF THE STATE OF DELAWARE

CLAUDIA K. SANDERS,

1

Respondent Below,

Appellant,

v.

FRANK SANDERS and ANGELA 

SAWYER,

Petitioners Below,

Appellees.

§

§ No. 58, 2020

§

§ Court Below—Family Court

§ of the State of Delaware

§ 

§ File No. CN19-05435

§ Petition No. 19-29994

§ 

§

§

§

Submitted: October 2, 2020

Decided: December 3, 2020

Before VALIHURA, VAUGHN, and TRAYNOR Justices.

ORDER

After consideration of the parties’ briefs and the record below, it appears to 

the Court that: 

(1) The respondent below-appellant, Claudia K. Sanders (“the Mother”), 

filed this appeal from a Family Court order, dated January 9, 2020, entering a default 

judgment and granting the petition for guardianship of the Mother’s daughter (“the 

Child”) filed by the petitioners below-appellees, Frank Sanders and Angela Sawyer. 

For the reasons set forth below, the January 9, 2020 order must be vacated and this 

matter must be remanded to the Family Court for additional proceedings.

 

1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d). 
2

(2) The Child was born in 2014. Frank Sanders is the Child’s maternal 

grandfather (“the Grandfather”). Sawyer is the Child’s maternal step-grandmother 

(“the Step-Grandmother”). On October 23, 2019, the Grandfather and StepGrandmother filed a petition for guardianship of the Child.

(3) The petition for guardianship alleged that the Child was in the care of 

the maternal grandmother (“the Maternal Grandmother”) and that the current 

addresses of the Child’s parents were unknown. According to the Custody, 

Visitation, and Guardianship Disclosure Report, the Child had been living with her 

parents and Maternal Grandmother since the spring of 2018. The Grandfather and 

Step-Grandmother also filed affidavits stating that they did not know the parents’

current addresses. 

(4) The Grandfather and Step-Grandmother did not complete the portion 

of the guardianship petition relating to why they sought guardianship,

2 but alleged 

in a motion and affidavit for an emergency ex parte order that the parents were 

homeless, using drugs, and unable to care for the Child. The motion also alleged 

that the Maternal Grandmother was mentally ill, used drugs, and verbally abused the 

Child. The Family Court denied the motion for emergency relief.

 

2 This section required the petitioners to indicate whether the parents agreed to guardianship, the 

parents were deceased, or the child was dependent, neglected, or abused for the reasons set forth 

by the petitioners. 
3

(5) Notice to the parents was published in The News Journal newspaper on 

November 14, 2019. The notice stated that if the parents did not answer the petition 

within twenty days, the Family Court would hear the matter without further notice. 

According to the Family Court docket, the Child’s father (“the Father”) received the 

summons for the petition where he was incarcerated. 

(6) On December 10, 2019, the Family Court notified the Grandfather, 

Step-Grandmother, and the Father that a case management teleconference would be 

held on January 9, 2020. The notice warned that a party’s failure to appear could 

result in dismissal of the petition or entry of a default order. Although not reflected 

on the docket, the Family Court record includes the Father’s answer, dated 

December 13, 2019, disputing the allegations in the guardianship petition. 

(7) On January 9, 2020, neither parent appeared at the teleconference. As 

to the Mother, the Family Court found that there was jurisdiction by publication 

notice and that the matter could be heard without additional notice because the 

Mother failed to file an answer within twenty days of the publication notice. As to 

the Father, the Family Court found that he failed to comply with the December 10, 

2019 notice, which warned that entry of a default judgment was possible. The 

Family Court entered a default judgment awarding the Grandfather and StepGrandmother guardianship of the Child. This appeal followed. 
4

(8) On appeal, the Mother argues that she was not properly notified and 

that the Grandfather is keeping the Child from herself and other family members, 

including the Maternal Grandmother whom he is biased against, that the Child has 

lived with since birth. Relying on text messages attached to her opening brief, she 

contends that she provided the Grandfather with her address in November and 

believed he was filing for guardianship then. According to the Mother, she learned 

shortly before the holidays from the Maternal Grandmother’s paperwork that the 

Grandfather had applied for guardianship in October and that a hearing was 

scheduled for January 9, 2020 at 3:30 p.m. The Mother claims she went to the 

Family Court for the hearing, but was told it was a telephone hearing and that she 

could not be seen or heard by the judge. The Grandfather and Step-Grandmother 

contend that the Mother was aware of the guardianship proceedings, the paperwork 

for the January 9, 2020 hearing stated that it was a teleconference, and that the Child 

is safer with them than with the parents or Maternal Grandmother.

(9) This Court reviews the Family Court’s entry of a default judgment 

against a party for failure to appear for abuse of discretion.3 We are unable to 

determine whether the Mother’s failure to respond to the guardianship petition and 

appear at the January 9, 2020 hearing was the result of other’s actions, as she alleges, 

or her own lack of diligence. The factual issues the Mother raises on appeal were 

 

3 Fether v. McDew, 2020 WL 4544749, at *3 (Del. Aug. 6, 2020).
5

not presented to the Family Court in the first instance and are not properly a part of 

the record this Court can consider on appeal.4 The appropriate course was for the 

Mother to raise these issues in a motion to reopen the default judgment under Family 

Court Civil Rule 60(b) in the Family Court.

(10) Although we cannot resolve the notice issues raised by the Mother, we 

nonetheless must find that the Family Court abused its discretion in entering a 

default judgment on the guardianship petition. The grounds for establishment of a 

guardianship over a child are set forth in 13 Del. C. § 2330. This statute provides 

that, before granting guardianship, the Family Court shall find that each parent 

voluntarily consents to the guardianship or, after a hearing on the merits and by a 

preponderance of the evidence, that the child is dependent, neglected, or abused and 

that guardianship is in the best interests of the child.5 The guardianship statute 

defines dependency, neglect, and abuse in accordance with 10 Del. C. § 901.6 The 

best-interest factors are set forth in 13 Del. C. § 722.7 

 

4

See Supr. Ct. R. 9(a) (“An appeal shall be heard on the original papers and exhibits which shall 

constitute the record on appeal.”); Anderson v. Anderson, 2014 WL 4179116, at *1-2 (Del. Aug. 

21, 2014) (holding that the Court could not consider the father’s explanations for why he did not 

appear at a custody hearing because he did not present those explanations to the Family Court); 

Delaware Elec. Coop., Inc. v. Duphily, 703 A.2d 1202, 1207 (Del.1997) (holding that materials 

not offered into evidence and considered by the trial court are not part of the record on appeal).

5

13 Del. C. § 2330(a). 

6

13 Del. C. § 2302(1), (7), and (12).

7 These factors include: (i) the wishes of the parents; (ii) the wishes of the child; (iii) the interaction 

of the child with his parents, relatives and any other residents of the household; (iv) the child’s 

adjustment to his home, school, and community; (v) the mental and physical health of all 

individuals involved; (vi) past and present compliance of the parents with their rights and 
6

(11) In similar circumstances, this Court has held that the Family Court is 

required to make the findings required by statute even when one of the parties is in 

default. For example, in Fether v. McDew, this Court held that the Family Court 

was required to apply the standard set forth in 13 Del. C. § 729(c)(2), which 

incorporates the best-interest factors set forth in § 722, before modifying a shared 

residential placement custody order based on the mother’s failure to appear for 

mediation.

8

 Similarly, in Tatum v. Yost, which also involved a motion to modify a 

previous custody order that required the Family Court to determine what was in the 

best interests of the child under § 722, we ruled that the Family Court was “required 

to make a best interests determination even if one of the parties is in default.”9 And 

in Harper v. Harper, where the Family Court modified a custody order as requested 

by the mother after the father failed to appear for the hearing, this Court found that 

“the Family Court's entry of a default judgment against [f]ather without determining 

‘the best interests of the child’ in accordance with the required statutory factors 

constituted a clear abuse of discretion.”10

(12) The same reasoning applies here. Like § 729(c)(2), § 2330(a)(2) 

involves consideration of a child’s best interests. Under § 2330(a)(2), a party 

 

responsibilities to their child; (vii) evidence of domestic violence; and (viii) the criminal history 

of any party or resident of the household. 

8

2020 WL 4544749, at *3.

9

2007 WL 2323791, at *2 (Del. Aug. 15, 2007). 

10 Harper v. Harper, 826 A.2d 293, 296 (Del. 2003).
7

seeking guardianship must not only establish by a preponderance of the evidence 

that guardianship is in the best interests of the child, but also that the child is 

dependent, neglected, or abused. The order on appeal does not reflect that the Family 

Court made the findings required by § 2203(a) before granting the petition for 

guardianship. The Family Court’s award of guardianship by entry of default 

judgment without the necessary findings under § 2203(a) was an abuse of discretion. 

(13) We remand this matter to the Family Court for prompt reconsideration 

of the petition for guardianship, which shall include an evidentiary hearing (with 

notice to the parents)11 that will encompass the present circumstances of the parties 

and Child, as promptly as feasible. In light of the Child’s young age and residence 

with the Grandfather and Step-Grandmother for close to a year, she should remain 

with the Grandfather and Step-Grandmother until the Family Court resolves the 

petition for guardianship. 

NOW, THEREFORE, IT IS ORDERED that the default judgment entered on 

January 9, 2020 is VACATED. This matter is REMANDED for further proceedings 

consistent with this Order. Jurisdiction is not retained.

BY THE COURT:

/s/ James T. Vaughn, Jr. 

Justice

 

11 According to the Mother’s filings in this Court, she is currently living with the Maternal 

Grandmother. If that is no longer the Mother’s address, she must provide her current address to 

the Family Court.