Division of Family Services v. K.B.
2013 Del. Fam. Ct. LEXIS 8
Del. Fm. Ct.2013Background
- DFS moves to dismiss TPR and reopen March 30, 2012 order; seeks APPLA instead of TPR.
- Children express strong wish against adoption; CASA/Government support varies.
- History: emergency custody in 2008; March 2012 goal changed to TPR; petition filed April 27, 2012.
- February 7, 2013 hearing featured extensive testimony on bonds and visitation with mother.
- Mr. P and wife provide long-term placement; weekly visitation continues; behavior improving.
- Court ultimately grants APPLA and dismisses TPR, scheduling permanency-review for June 13, 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to reopen the judgment under Rule 60(b) | DFS seeks 60(b)(6) relief; argues unnecessary to reopen | Court should not reopen; permanency goal review suffices | Denied reopening; court may review permanency goal without reopening |
| Whether to dismiss the TPR petition under Rule 41(a)(2) | DFS seeks voluntary dismissal to pursue APPLA | No plain legal prejudice; case specifics favor dismissal | GRANTED; TPR petition dismissed; APPLA favored |
| Whether APPLA is the appropriate permanency goal | APPLA supported by compelling circumstances and child wishes | APPLA not appropriate; TPR best for children | GRANTED; APPLA declared the permanency goal |
| Best interests under Section 722 factors support APPLA | Children’s preferences against adoption and close bond with mother weigh in | Bond with mother exists but may not override adoption risk | APPLA is in the children’s best interests under the circumstances |
Key Cases Cited
- In re Frazer, 721 A.2d 920 (Del.1998) (appointment of counsel to advocate children's wishes in Frazer)
- Draper v. Gardner Defined Plan Trust, 625 A.2d 859 (Del.1993) (standard for Rule 41(a)(2) voluntary dismissal; plain legal prejudice)
- Brown v. DFS, 803 A.2d 948 (Del.2002) (best interests factors and permanency review context)
- In re Stevens, 652 A.2d 18 (Del.1995) (best interests framework under §722)
- Powell v. DSCYF, 963 A.2d 724 (Del.2008) (statutory considerations for permanency planning)
- Clark v. Clark, 47 A.3d 513 (Del.2012) (context on parental rights and permanency)