IN THE SUPREME COURT OF THE STATE OF DELAWARE

ALBERT ALLEN,

1

Respondent Below,

Appellant,

v.

DEPARTMENT OF SERVICES FOR 

CHILDREN, YOUTH AND THEIR 

FAMILIES,

Petitioner Below,

Appellee.

§

§ No. 132, 2023

§

§ Court Below—Family Court

§ of the State of Delaware

§ 

§ File No. 21-10-02TN

§ Petition No. 21-23292 

§ 

§ 

§

§

§

 Submitted: August 30, 2023

 Decided: October 17, 2023

Before SEITZ, Chief Justice; LEGROW and GRIFFITHS, Justices.

ORDER

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

26.1(c), his attorney’s motion to withdraw, the response of the Department of 

Services for Children, Youth and their Families (“DFS”), and the response of the 

Office of the Child Advocate (“OCA”), it appears to the Court that: 

(1) The respondent below-appellant, Albert Allen (“the Father”), appeals 

the Family Court’s order, dated March 23, 2023, terminating his parental rights to 

his children Valerie (born in 2014), Albert (born in 2016), Nicole (born in 2017), 

1 The Court previously assigned a pseudonym to the appellant and uses pseudonyms to refer to the 

appellant’s children in this order under Supreme Court Rule 7(d). 
2

and Keith (born in 2018) (“the Children”). The Family Court’s order also terminated 

the parental rights of the Children’s mother (“the Mother”), who filed a separate 

appeal.

2

 In this appeal, we focus on the facts in the record as they relate to the 

Father’s appeal. 

(2) On August 6, 2020, the Family Court granted DFS’s emergency 

petition for custody of the Children by ex parte order. The Family Court found that 

there were emergency conditions sufficient to find probable cause that the Children 

were in actual danger or that there was a substantial risk of danger because threeyear-old Nicole was recently diagnosed with chlamydia and genital herpes and the 

Children were medically neglected and developmentally delayed. The Family Court 

scheduled a preliminary protective hearing and appointed counsel to represent the 

Father.

(3) At the preliminary protective hearing on August 12, 2020, a DFS 

investigator testified that Nicole was originally taken to the emergency room for a 

fever and rash in late July. She was discharged, but returned the next day with 

stomach issues and a continuing fever. Nicole tested positive for chlamydia and 

genital herpes, which likely resulted from sexual contact. The New Castle County 

Police began investigating possible sexual abuse of Nicole. The Children’s 

2

See Zabel v. Div. of Servs. for Children, Youth and their Families, No. 130, 2023 (Del.).
3

Advocacy Center tried to interview Valerie and Albert, but their developmental 

delays made this impossible. 

(4) In addition to the parents, who denied having sexual contact with 

Nicole, the Children had been in the care of maternal relatives. DFS was unwilling 

to place the Children with maternal relatives who were possible suspects in the 

criminal investigation. The Children were originally placed with a paternal relative, 

but she could not care for the Children in addition to her own children. The Children 

were currently in two foster homes located next to one another. At the conclusion 

of the hearing, the Family Court found probable cause to believe that the Children 

were in physical, mental, or emotional danger and dependent based on the lack of 

sufficient explanation for Nicole having chlamydia and herpes and the Children 

appearing to be neglected as far as hygiene, medical care, and possibly education. 

The Family Court also found that it was in the best interests of the Children to be in 

DFS custody, that DFS had made reasonable efforts to prevent the unnecessary 

removal of the Children from their home, and that DFS had made reasonable efforts 

to place the Children in the same home. The Family Court subsequently appointed 

OCA counsel to represent the Children. 

(5) At the September 24, 2020 adjudicatory hearing, the Father stipulated 

to the dependency of the Children based on medical care. The doctor who treated 

Nicole testified that this was likely Nicole’s first exposure to herpes and that the 
4

incubation period for herpes is two to twenty days. The parents had reported that 

Mother was diagnosed with chlamydia while pregnant with Keith, but the doctor 

testified that it was unlikely Nicole would have acquired chlamydia or herpes from 

her birth. The doctor opined that it was most likely that Nicole contracted chlamydia 

and herpes as a result of sexual abuse. The other children did not test positive for 

sexually transmitted diseases. 

(6) A DFS employee testified that all of the Children were behind on their 

medical care, suffered developmental delays, were going to be evaluated, and should 

be receiving some type of therapy. She also testified that the parents were not fully 

cooperative in providing information about how Nicole could have contracted herpes 

and chlamydia. The Family Court found that the Children were dependent and 

should remain in DFS custody. The Family Court also found that DFS had made 

reasonable efforts to place the Children with relatives. 

(7) At the November 2, 2020 dispositional hearing, DFS submitted a case 

plan for the Father. The case plan required the Father to complete a mental health 

evaluation, follow any treatment recommendations, resolve all legal issues, work 

with a family interventionist, complete a parenting class, and participate in marriage 

counseling. The Father was employed and had provided information about his 

employment to DFS. The parents were living together, but not speaking because the 

Father had been having a sexual relationship with the maternal grandmother. In light 
5

of uncertainty concerning whether the Father could read English,3the court directed 

DFS to re-present the plan at the next hearing after ensuring that the Father could 

understand the document in English or have it interpreted for him. There was 

testimony that the Children had been brought up to date on their shots and other 

medical needs. The Family Court found that the Children remained dependent and 

should remain in DFS custody. The Family Court also found that DFS was making 

reasonable efforts to reunify the Children with their parents. 

(8) At the January 26, 2021 review hearing, the Family Court accepted the 

signed case plan, in English and Spanish, for the Father. The Father had a family 

interventionist, but was unable to complete the parenting class or mental health 

assessment until Spanish-speaking providers were identified. He was visiting the 

Children. He and the Mother were willing to do marriage counseling, although the 

Mother was exploring separate housing. Albert and Nicole were receiving speech 

therapy, physical therapy, and occupational therapy. Keith was receiving physical 

therapy, occupational therapy, and assistance with anxiety and social relationships. 

The Family Court found that the Father’s progress on his case plan was satisfactory, 

but expressed concern about the lack of Spanish-language services for him. The 

3 Throughout the court proceedings, there was an interpreter for the Father.
6

Family Court also found that the Children remained dependent and should remain in 

DFS custody. 

(9) The Family Court held a second review hearing on May 18, 2021. The 

Father was having weekly visitation with the Children, who were now residing in 

the same foster home. He had completed the mental health evaluation and was 

enrolled in a parenting class. Marital counseling had not begun because the Mother 

wanted to pursue therapy for herself first. The Children continued to receive therapy 

for their developmental delays. The criminal investigation concerning Nicole had 

been closed; it remained unknown how she contracted chlamydia or herpes. The 

Family Court found that both parents had made progress on their case plans, but 

noted that they needed to find appropriate housing as their current residence was too 

small for four children. The Family Court also found that the Children remained 

dependent and should remain in DFS custody. The Family Court directed DFS to 

submit a paper review in lieu of another review hearing as a permanency hearing 

would soon be needed.

(10) In the paper review, DFS reported that the Father had completed his 

parenting class and was having supervised visitation with the Children twice a week. 

DFS had substantiated both parents for sexual abuse of Nicole. The Children 

remained in the same foster home and were up to date on their medical treatment. 
7

The Family Court adopted the paper review and scheduled a hearing for September 

10, 2021.

(11) On August 18, 2021, DFS filed a motion to change the permanency 

plan from reunification to concurrent goals of reunification and termination of 

parental rights. The parents filed responses opposing the motion. OCA supported 

the motion. 

(12) On September 10, 2021, the Family Court held a permanency hearing. 

The parents were residing together and looking for housing. They did not object to 

concurrent goals of reunification and termination of parental rights. Nicole and 

Albert had tested positive for genetic abnormalities that cause significant 

developmental delays and increased risk of mental health issues. The Family Court 

found that both parents had made progress on their case plans, but expressed concern 

for how Nicole had contracted sexually transmitted diseases and the parents’ 

unwillingness or inability to explain how this had occurred. The Family Court 

granted DFS’s motion to change the permanency plan to concurrent goals of 

reunification and termination of parental rights. DFS filed a petition for termination 

of parental rights on October 7, 2021, but subsequently pursued trial reunification as 

the parents made progress on their case plans. 

(13) On January 11, May 2, October 17, and November 3, 2022, the Family 

Court held post-permanency review hearings. The resulting orders reflect that the 
8

parents continued making progress on their case plans and DFS returned the 

Children to the parents for trial reunification on August 4, 2022. The Mother gave 

birth to a fifth child on August 5, 2022. DFS had suspected the Mother was pregnant, 

but she denied it and produced a negative pregnancy test. 

(14) In late September, Albert’s teacher told DFS that Albert was coming to 

school unclean, sleeping in class, and misbehaving. Nicole’s teacher also reported 

that Nicole was misbehaving. During an unannounced visit to the family in 

November, a DFS employee observed that the house was very unclean with a smell 

of urine throughout. DFS also expressed concerns about a lack of food, a full-size 

pillow in the new baby’s crib that raised concerns as to how the baby was safely 

sleeping, and Valerie, Albert, and Nicole not wearing their prescribed glasses. The 

Family Court found that the parents had made little progress on their case plans and

that the Children should remain in DFS custody. The Family Court scheduled a 

post-permanency review hearing and termination of parental rights hearing for 

February 23rd and 24th. On November 7, 2022, DFS removed the Children from 

the parents’ home and returned them to foster homes.

4

 

(15) On February 23 and 24, 2023, the Family Court held a post-permanency 

hearing and a termination of parental rights hearing. The Family Court heard 

4 DFS also obtained custody of the new baby.
9

testimony from the Father, the Mother, two DFS employees, Nicole’s kindergarten 

and special education teacher, and the Mother’s family interventionist. The 

testimony reflected that the Father had completed mental health and psychosexual 

evaluations. The mental health evaluation recommended that he receive therapy. 

The Father received therapy between May 2022 and November 2022, but then 

stopped to begin marriage counseling that never commenced. He admitted that he 

was on probation in 2021 and 2022 for leaving the scene of an accident and driving 

without a license in Pennsylvania. In March 2022, the Father was charged with 

driving under the influence in Pennsylvania. That charge was outstanding at the 

time of the hearing. He had previously pleaded guilty to driving under the influence 

in 2014 or 2015. 

(16) The Father had completed a parenting class and done some work with 

a family interventionist. The Father and the Mother had obtained appropriate 

housing, but it was in an unacceptable condition when DFS conducted an 

unannounced visit in November 2022. According to the Mother’s family 

interventionist, the condition of the home became progressively worse during the 

trial reunification. A DFS employee testified that the parents rectified the condition 

of the home after the Children’s removal. There was also testimony that the Father 

had a child with another woman in 2022 and might be seeking custody of that child.
10

(17) The Children were in two different foster homes and continued to 

receive a variety of services and therapies for their developmental delays. The 

Father was unable to identify the types of services and therapies the Children were 

receiving, but said he would pursue the appropriate ones for the Children if they 

were returned to him. Nicole had suffered several herpes outbreaks, including one 

during trial reunification when her parents did not seek treatment and instead sent 

her to school. Nicole’s teacher testified that at the beginning of the school year when 

Nicole was living with her parents she would come into school very fatigued and 

rarely speak until after lunch. In November when Nicole was no longer living with 

her parents, she was less tired and more engaged in class and with her classmates. 

She also started coming to school with her glasses. 

(18) On March 23, 2023, the Family Court issued a written decision 

terminating the parental rights of the Father. The Family Court found that DFS had 

established by clear and convincing evidence that the Father had failed to plan 

adequately for the Children’s needs under 13 Del. C. § 1103(a)(5) and the Children 

had been in the care of DFS for more than a year. The Family Court recognized that 

Father had completed some elements of his case plan, but found that he did not finish 

his therapy, did not complete marriage counseling with the Mother, had pending 

criminal charges for driving under the influence, and had failed to maintain his home 

in a safe and appropriate condition for the Children. The Family Court also found, 
11

by clear and convincing evidence, that DFS had made reasonable efforts to reunify 

the family. Applying the best-interest factors under 13 Del. C. § 722, the Family 

Court found that factors 1 (wishes of the parent) and 7 (evidence of domestic 

violence) supported denial of the petition and factors 2 (wishes of the children),

5 3 

(the interaction and relationship of the children with family members), 4 (the 

children’s adjustment to home, school, and the community), 5 (the mental and 

physical health of all individuals involved), 6 (past and present compliance of the 

parent with the rights and responsibilities to their children under 13 Del. C. § 701), 

and 8 (criminal history of any party) supported granting the petition. The Family 

Court concluded that DFS had established, by clear and convincing evidence, that 

termination of the Father’s parental rights was in the Children’s best interests. This 

appeal followed.

(19) The Father’s counsel (“Counsel”) filed a brief and motion to withdraw 

under Supreme Court Rule 26.1(c). Counsel represents that he has made a 

conscientious review of the record and the law and found no meritorious argument 

in support of the appeal. Counsel informed the Father of the provisions of Rule 

26.1(c) and provided him with a copy of the motion to withdraw and the 

accompanying brief. Counsel also informed the Father of his right to submit any 

5

In light of the youth and developmental delays of the Children, the Family Court relied on OCA’s 

support for the petition to find that this factor supported granting the petition.
12

points he wished this Court to consider. The Father has submitted several points for 

this Court’s consideration. DFS and OCA ask this Court to affirm the Family 

Court’s termination of parental rights. 

(20) The Father’s points on appeal may be summarized as follows: (i) 

Valerie, Albert, and Nicole attended school while in their parents’ care; (ii) the 

Children received therapy at school with Nicole and Albert also receiving therapy at 

home; and (iii) when DFS came to the house in November 2022, he had just come 

back from the grocery store and showed DFS that they had food and baby formula. 

(21) This Court’s review of the Family Court’s decision to terminate 

parental rights entails consideration of the facts and law as well as the inferences and 

deductions made by the Family Court.

6

 To the extent that the Family Court’s rulings 

of law are implicated, our review is de novo.

7

 The statute governing the termination 

of parental rights requires a two-step analysis.8 First, the Family Court must 

determine whether the evidence presented meets one of the statutory grounds for 

termination.9 Second, the Family Court must determine whether termination of 

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

7

Id.

8

13 Del. C. § 1103; Shepherd v. Clemens, 752 A.2d 533, 536-37 (Del. 2000).

9 Powell v. Dep't of Servs. for Children, Youth and Their Families, 963 A.2d 724, 731-32 (Del. 

2008).
13

parental rights is in the best interests of the child.10 Both of these requirements must 

be established by clear and convincing evidence.11 

(22) We construe the Father’s points as arguing that the Family Court erred 

in finding that he failed to plan adequately for the Children’s needs and that 

termination of his parental rights was in the Children’s best interests. Having 

considered the parties’ positions and the record on appeal, we conclude that the 

Father’s appeal is wholly without merit. There is ample evidence supporting the 

Family Court’s termination of the Father’s parental rights based on his failure to plan 

and that such termination is clearly in the Children’s best interests. This evidence 

included the Father’s unwillingness or inability to explain how his three-year old 

child contracted chlamydia and herpes, most likely as a result of sexual abuse, while 

in his care, failing to seek treatment for this child when she was suffering an outbreak 

and instead sending her to school, and failing to maintain a safe home for the 

Children and meet their needs during trial reunification. We find no error in the 

Family Court’s application of the law to the facts and no abuse of discretion in the 

Family Court’s factual findings.

10 13 Del. C. § 1103(a) (providing that parental rights may be terminated if one of several statutory 

grounds is established and “it appears to be in the child’s best interest”); id. § 722 (setting forth 

factors that the court may consider when determining the best interests of a child).

11 Powell, 963 A.2d at 731.
14

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

Court is AFFIRMED. The motion to withdraw is moot. 

BY THE COURT:

/s/ N. Christopher Griffiths

Justice