Chapter 25

§ 2501 Intent and purpose. (a) The General Assembly hereby declares that there is a need for a clear statutory framework for the proper procedures and requirements for when the Department of Services for Children, Youth and Their Families [DSCYF] is granted custody of a dependent, neglected or abused child. (b) This chapter shall be liberally construed so that these purposes may be realized. (c) For the purposes of applicable state and federal law, any dependent, neglected or abused child in DSCYF custody shall be considered a ward of the State. 77 Del. Laws, c. 43, §  10 ; § 2502 Definitions. For the purposes of this chapter, unless the context indicates differently: (1) “Abuse” or “abused child” is as defined in § 901 of Title 10. (2) “Adult” is as defined in § 901 of Title 10. (3) “Best interests” is determined in accordance with § 722 of this title. (4) “Caregiver” means a person with whom the child is placed while in DSCYF custody including any licensed home or facility, including group homes, or any relative or nonrelative placement, including those not licensed by DSCYF. Caregiver shall not include secure facilities, facilities primarily operated for the detention of children adjudicated delinquent, accredited psychiatric residential treatment facilities or hospitals. (5) “Child” is as defined in § 901 of Title 10. (6) “Court” or “court” is as defined in § 901 of Title 10. (7) “Department” or “DSCYF” is as defined in § 901 of Title 10. (8) “Dependency” or “dependent child” is as defined in § 901 of Title 10. (9) “Division” or “DFS” means the Division of Family Services of the Department of Services for Children, Youth and Their Families. (10) “Foster parent” is as defined in § 2302 of this title. (11) “Guardian” is as defined in § 2302 of this title. (12) [Repealed.] (13) “Licensed agency” is as defined in § 901 of this title. (14) “Neglect” or “neglected child” is as defined in § 901 of Title 10. (15) “Parent” is as defined in § 2302 of this title. (16) “Parental responsibilities” is as defined in § 1101 of this title. (17) “Permanency” is as defined in § 2302 of this title. (18) “Reasonable and prudent parent standard” shall mean the standard characterized by careful and sensible parental decisions that maintain the health, safety and best interests of a child, while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child placed in such caregiver’s care while in DSCYF custody to participate in extracurricular, enrichment, cultural, and social activities. (19) “Relative” is as defined in § 901 of Title 10. (20) “School of origin” means as defined in § 202A(a) of Title 14. 77 Del. Laws, c. 43, §  10 ; 70 Del. Laws, c. 186, § 1 ; 80 Del. Laws, c. 363, § 1 ; 80 Del. Laws, c. 417, § 2 ; 81 Del. Laws, c. 92, § 3 ; 84 Del. Laws, c. 42, § 1 ; § 2503 Jurisdiction and venue. (a) The Family Court shall have jurisdiction over proceedings under this chapter to grant, modify and/or terminate DSCYF custody orders. (b) A petition for DSCYF custody under this chapter may be filed in the Family Court of any of the following counties: (1) The county in which the organization or persons, having legal or physical care, custody, or control of the child is located; or (2) The county in which the child resides. (c) The provisions of §§ 722, 724, 728(d)-(f) of this title and Chapters 7A and 24 of this title shall be applicable to proceedings filed under this chapter. 77 Del. Laws, c. 43, §  10 ; § 2504 Hearing procedure and notice requirements. (a) When a petition is filed under this chapter, the Court shall set a date for a hearing on the petition, and shall cause notice of time, place, and purpose of the hearing to be served as required in this section. (b) Notice of the time, place, and purpose of the hearing shall be served upon each parent, guardian, or licensed agency holding parental rights at the respondent’s last known address or to the address received in the petition. Notice to a parent must include the right to an attorney, if indigent, as provided in subsection (g) of this section. (c) If the Court finds that personal service within the State cannot be accomplished upon a party, the petitioner shall cause notice to be published either on a legal notices website established by the Court or in a newspaper of general circulation in the county where the respondent is most likely to be residing. (d) Personal service at any time prior to the hearing shall be sufficient to confer jurisdiction upon the Court. (e) Notice provided pursuant to this section shall constitute conclusive evidence of service and a hearing will then proceed at the time and date set, with or without the appearance of a party so notified. (f) When a petition is filed under this chapter, the Court shall appoint an attorney authorized to practice law in this State to represent the child. When appointing an attorney, the Court may also appoint a Court Appointed Special Advocate volunteer to work in conjunction with the attorney. The rights, responsibilities and duties in representing the child are set forth in § 9007A of Title 29. For the purposes of the Child Abuse Prevention and Treatment Act (42 U.S.C. § 5106a, et seq.), the attorney for the child and the Court Appointed Special Advocate volunteer, if one is appointed, shall fulfill the role of guardian ad litem for the child. (g) A parent against whom a petition is filed under this chapter shall have the right to counsel at all stages of the court proceedings. The Court shall ensure an attorney authorized to practice law in this State is appointed to represent any parent who is indigent. The Court may refer a parent to a legal services entity contracted by the Court or to the Office of Defense Services for an indigency determination and appointment of an attorney. If necessary, the Court may make an indigency determination and directly appoint an attorney who is a member of the private bar. When emergency custody or other emergency relief is sought, the referral must occur contemporaneously with the issuance of the ex parte order pursuant to § 2512 of this title. The attorney shall serve as counsel for the indigent parent for the duration of the case, which includes serving as counsel in any appeal taken to the Supreme Court of Delaware and reinstatement of parental rights. In the event an indigent parent declines appointment of counsel, the Court shall include the waiver of appointment in its order. 77 Del. Laws, c. 43, §  10 ; 80 Del. Laws, c. 417, § 2 ; 83 Del. Laws, c. 96, § 7 ; 84 Del. Laws, c. 510, § 1 ; § 2505 Sanctions. The Court may impose such sanctions or remedies as the Court deems just and proper to ensure compliance with this chapter, including but not limited to: (1) Extra visitation or contact with the child when it is in the child’s best interest to do so; (2) The payment of costs and reasonable counsel fees of the person or agency applying for relief under this section; or (3) A fine in the discretion of the Court. 77 Del. Laws, c. 43, §  10 ; § 2506 Confidentiality of proceedings. All proceedings under this chapter and all records of such proceedings shall be held before the Court privately, except for reasons found sufficient to the Court, a hearing in any particular case may be made open to the public. 77 Del. Laws, c. 43, §  10 ; § 2507 Appeals. Appeal from any order or decree entered under this chapter shall lie to the state Supreme Court. No appeal shall lie from any order or decree under this chapter unless taken within 30 days from the date of such order or decree. 77 Del. Laws, c. 43, §  10 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 2510 Applicability. The provisions of this subchapter shall apply exclusively to the DSCYF when seeking and/or obtaining custody of a child on the basis of dependency, neglect or abuse. This subchapter shall not be construed as preventing DSCYF from obtaining or seeking guardianship, termination of parental rights and/or adoption regarding a child as provided for in Chapters 9, 11 and 23 of this title. This subchapter shall be liberally construed such that the child’s health and safety is the highest priority and of paramount concern as required by the Adoption and Safe Families Act, 42 U.S.C. § 671 et seq. and state law. 77 Del. Laws, c. 43, §  10 ; § 2511 Contents of DSCYF petition for custody. (a) The petition for DSCYF custody shall state: (1) Name and address of the petitioning agency; (2) Name, sex, date of birth of the child and, if known, the child’s school of origin; (3) The name and address of the parents, alleged father or presumed father, and if applicable, the name and address of any custodian or guardian. (4) If the name or address of any person or organization described in paragraph (a)(3) of this section is unavailable or unknown, DSCYF shall furnish detailed information concerning the efforts made to identify and locate such individual or organization; (5) The DSCYF allegations of dependency, neglect, and/or abuse against each parent; (6) Efforts, where practical, made by DSCYF to identify a fit and willing relative to care for the child; (7) A statement regarding why continuing the placement of the child in the home of the parents, guardian, custodian or caretaker is contrary to the welfare of the child; and (8) A statement why it is in the best interests of the child to be placed in DSCYF custody. 77 Del. Laws, c. 43, §  10 ; 70 Del. Laws, c. 186, §  1 ; § 2512 Grounds for DSCYF custody; preliminary injunction. (a) When emergency custody or other emergency relief is sought by DSCYF, the Court may issue an ex parte order awarding emergency custody to DSCYF and order removal of a child from the home upon the establishment that: (1) Continuation in the home is contrary to the welfare of the child; and (2) Probable cause exists to believe that: a. A child continues to be in actual physical, mental or emotional danger or there is a substantial imminent risk thereof or; b. Immediate or irreparable harm may result to the child if such an order is not issued. (b) Prior to granting an adjudicatory order for DSCYF custody, the Court shall find after a hearing on the merits, or accept the agreement of the parties, that: (1) As to each parent, the child is dependent, neglected or abused; (2) It is in the child’s best interests to be in DSCYF custody. (c) Should the elements of subsection (b) of this section be met, the Court shall also determine after a hearing on the merits or accept the agreement of the parties, the nature and extent, if any, of any contact, sharing of information and/or visitation between the parent and the child. In making such a determination, the Court shall apply the best interests of the child standard set forth in § 722 of this title, unless Chapter 7A or § 728(d)-(f) of this title apply. 77 Del. Laws, c. 43, §  10 ; § 2512A Enforcement of DSCYF custody order. A law-enforcement officer may enter private property to take physical custody of a child for the purpose of enforcing a court order granting DSCYF custody of the child when such order requests the assistance of a law-enforcement officer. 83 Del. Laws, c. 461, § 4 ; § 2513 Termination, modification or rescission of DSCYF custody order. (a) Termination. — Except as otherwise specified in this chapter, DSCYF custody of a child terminates: (1) Upon the child’s death; (2) Upon adoption of the child; (3) When the child reaches the age of majority; (4) Upon the granting of a guardianship petition pursuant to Chapter 23 of this title; or (5) As otherwise ordered by the Court. (b) Modification. — Except as otherwise specified in this chapter, a DSCYF custody order may be modified at any time. In making a determination to modify the order the Court shall apply the best interests of the child standard and Chapter 7A and § 728(d)-(f) of this title, if applicable. (c) Rescission. — Except as otherwise specified in this chapter, DSCYF custody may be rescinded upon a judicial determination that the child is no longer dependent, neglected or abused in the parent’s care. The Court may rescind custody to the original custodial arrangement between the parents or an alternative custodial arrangement as determined by the Court to be in the child’s best interests. 77 Del. Laws, c. 43, §  10 ; § 2514 Court findings for children in DSCYF custody. Should the Court find the elements of § 2512(b) of this title, have been met, the Court shall make findings and issue orders at each subsequent hearing regarding the following: (1) What the permanency plan is, and whether DSCYF has made reasonable efforts to finalize that permanency plan; (2) If the permanency plan is another planned permanent living arrangement, a. Whether the child is at least 16 years of age, as this plan is prohibited for any child less than age 16. b. Whether DSCYF has documented its intensive, ongoing, and, as of the date of the hearing, unsuccessful efforts made by DSCYF to return the child home or secure placement of the child with a fit and willing relative, including adult siblings, a legal guardian, or an adoptive parent, including thorough efforts that utilize search technology including social media, to find biological family members for the child. c. What the child’s desired permanency outcome is by asking the child, or where not feasible, the child’s legal representative. d. What are the compelling reasons that it continues to not be in the child’s best interests to be returned home, adopted, placed with a legal guardian or with a fit and willing relative. (3) Whether DSCYF has ensured: a. The caregiver is exercising the reasonable and prudent parent standard. b. The child has regular, ongoing opportunities to engage in age- or developmentally-appropriate activities, and that any barriers to participation have been identified and addressed. c. The child has been consulted in an age-appropriate manner about the opportunities of the child to participate in the activities. 80 Del. Laws, c. 363, § 1 ; § 2515 Authority to order transition plan and adult mental or behavioral health diagnosis. (a) When a child 17 years of age or older is in the custody of DSCYF, the Court may order the Department of Health and Social Services to determine whether the child qualifies for adult mental health or behavioral health services and, if so, to coordinate with DSCYF to develop and implement a transition plan for mental or behavioral health services for the child. The Court may further order that the transition plan include any of the following: (1) An appropriate adult mental or behavioral health diagnosis for the child. (2) A list of prospective adult services for which the child might qualify. (3) Any other information or relief that the Court finds relevant to the child’s transition to adulthood. (b) DSCYF or the Department of Health and Social Services, or the appropriate divisions of either, shall develop and submit the transition plan that the Court has ordered under this section in a timely manner, as the Court directs. 81 Del. Laws, c. 164, § 1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 2520 Duties and rights of parents under a DSCYF custody order. (a) Unless the parental rights have been terminated, a parent whose child is in DSCYF custody may petition for and seek enforcement of: (1) An order for visitation, contact, and/or information regarding the child if not otherwise prohibited by law; (2) Unless otherwise ordered by the Court or authorized by statute, an order that DSCYF is required to make reasonable efforts at reunifying the child with such parent; (3) An order rescinding custody from DSCYF to the parent. (b) Unless the parental rights have been terminated, a parent whose child is in DSCYF custody maintains the right, unless otherwise ordered by the Court, to: (1) Consent to certain medical or mental health care for the child as set forth in § 2521(2) of this title. (2) Consent to educational decisions for the child, subject to applicable state and federal law, as set forth in § 2521(4) of this title. (3) Attend and participate in school related meetings and activities related to the child, attend extracurricular activities, attend medical/dental appointments, and access medical/dental records regarding the child. (c) Unless parental rights have been terminated, a parent whose child is in DSCYF custody shall have the following duties: (1) To support the child financially as provided for in Chapter 5 of this title, unless just cause exists under § 506 of this title; (2) To engage in offered services to alleviate or mitigate the causes necessitating placement in DSCYF custody, in cases where the DSCYF is providing reunification services to the parents. 77 Del. Laws, c. 43, §  10 ; § 2521 Powers and duties of the DSCYF as custodian of the child. Upon the Court granting custody to DSCYF, DSCYF shall be vested with the following powers and duties: (1) To provide for appropriate placement of the child, within or outside of this State, unless otherwise ordered by Court or controlled by statute, with reasonable notice prior to any change in placement given to the child’s attorney and Court Appointed Special Advocate volunteer. (2) To consent to medical care for the child, including medical examination, medical treatment including surgical procedures and mental health treatment other than inpatient psychiatric hospitalization, except as provided in § 5003(f) of Title 16. DSCYF shall make reasonable efforts to obtain the consent of the parent, and to notify the child’s attorney and Court Appointed Special Advocate volunteer, prior to obtaining medical care. (3) To continue the child in the child’s school of origin, or when not feasible or not in the child’s best interests, to immediately enroll the child in school pursuant to § 202 of Title 14. The Court shall determine if the school placement is in the child’s best interest. (4) To consent to educational decisions, subject to applicable state and federal law, including disciplinary proceedings and consequences, and academic needs; and to request the appointment of an education decision maker under § 930 of Title 10 or an educational surrogate parent under § 3132 of Title 14 when appropriate. DSCYF shall make reasonable efforts to obtain the consent of the parent, and to notify the child’s attorney and Court Appointed Special Advocate volunteer, prior to making any educational decisions on behalf of the child. (5) To request a credit report for the child annually after the child reaches the age of 14 years old and to inspect the credit report for any potential identity theft as described in § 854 of Title 11, and, from ages 18 through 23, to assist the youth who was previously in DSCYF’s custody and continues to receive transitional and independent living services through a DSCYF-contracted provider in reviewing and repairing the youth’s credit. (6) To ensure, consistent with DSCYF case and placement planning responsibilities under federal and state law, that the child’s service plan provides the opportunity to participate in age-appropriate or developmentally-appropriate activities and experiences to promote healthy child and adolescent development. (7) To ensure standards and policies are in place, consistent with the reasonable and prudent parent standard. (8) To provide training and monitoring to all caregivers, regardless of whether they are required to meet the DSCYF licensing requirements, on the reasonable and prudent parent standard. Training on the reasonable and prudent parent standard shall include parenting skills for children who have experienced trauma, healthy sexual development, and implementing the standard for children with special needs. Such training shall be provided annually to all licensed caregivers, and upon placement, to all nonlicensed caregivers. (9) To provide each child in DSCYF custody with new luggage for the child to use for the transportation of personal belongings when the child is entering DSCYF custody, moving from 1 foster care placement to another, or exiting foster care. DSCYF is not required to provide new luggage to a child who has already been provided with and remains in possession of new luggage provided by DSCYF. a. For purposes of this paragraph, “new luggage” means a suitcase, duffel bag, backpack, or similar container that is designed to hold an individual’s personal belongings and has not been previously used. Under no circumstance does “new luggage” include a disposable bag or trash bag. b. The Department must establish and maintain a supply of new luggage to be used to transport the personal belongings of children in DSCYF custody and develop procedures for the storage and distribution of new luggage intended for children in custody. c. When providing new luggage to a child in DSCYF custody, DSCYF must take into account the child’s age, mobility, personal items to be transported, and preferences. d. DSCYF may not use or require a child to use disposable bags or trash bags to transport any personal items while in DSCYF custody. e. DSCYF may solicit and accept gifts, grants, and donations of any kind and from any source to carry out the provisions of this subsection. f. On or before December 1 of each year, DSCYF must submit a report to the Governor, the President Pro Tempore of the Senate, the Speaker of the House of Representatives, and the Director and Librarian of the Division of Legislative Services, containing a description of the current supply of new luggage and inventory management procedures for the new luggage supply maintained under this subsection. (10) To maintain any other powers and duties as conferred by statute in the Delaware Code. 77 Del. Laws, c. 43, §  10 ; 78 Del. Laws, c. 361, §  1 ; 80 Del. Laws, c. 363, § 1 ; 80 Del. Laws, c. 417, § 2 ; 81 Del. Laws, c. 91, § 2 ; 83 Del. Laws, c. 300, § 1 ; 83 Del. Laws, c. 432, § 1 ; 84 Del. Laws, c. 255, § 36 ; 84 Del. Laws, c. 478, § 1 ; § 2522 Rights of children in DSCYF custody. (a) All dependent, neglected and abused children in DSCYF custody under this chapter shall have the following rights in accordance with their ages and developmental levels, unless prohibited by court order: (1) To be informed of the reason they have been placed in DSCYF custody. (2) To receive water, food, shelter, and clothing that is necessary and appropriate for their ages and individual needs. (3) To be free from abuse or neglect. (4) To have assistance in obtaining access to medical, vision, and dental treatment that is necessary and appropriate for their ages and individual needs; and to have assistance in obtaining access to necessary and appropriate mental health and substance abuse treatment if the need for such treatment is identified. (5) To receive appropriate placement services. (6) To contact and visit with their parents, siblings in DSCYF custody, and other individuals, including their own child in DSCYF custody. If such contact or visitation is inappropriate, the child has the right to be notified of the reason for that decision. (7) To have assistance in obtaining access to an education, at their schools of origin when feasible, with minimal disruption to their education when they are placed in DSCYF custody. (8) To participate in the formation and maintenance of their foster care service, transitional and independent living and transition plans, where applicable; and beginning at age 14: a. To be actively engaged and consulted in the development and implementation of those services and plans, as well as in any revisions or additions to those services or plans; and b. At the option of the child, to involve 2 individuals in case planning that are selected by the child and who are not a foster parent or caseworker for the child, except that DSCYF may reject an individual so selected by the child if DSCYF has good cause to believe the individual would not act in the best interests of the child, and 1 individual so selected by the child may be designated to be the child’s advisor and, as necessary, advocate with respect to the application of the reasonable and prudent parent standard to the child. (9) To have regular and meaningful access to and have confidential contact with their caseworkers and attorneys or court-appointed special advocates. (10) To be notified, attend, and participate in court hearings and to speak to the judge regarding any decision that may have an impact on their lives. (11) To have their confidentiality protected as required by state and federal law. (12) To receive transitional and independent living services and supports beginning at age 16 if eligible and if resources are available. (13) To have the opportunity to participate in age-appropriate or developmentally-appropriate activities and experiences to promote healthy development, and to have those opportunities explained to them in an age- and developmentally-appropriate manner, consistent with the reasonable and prudent parent standard. (14) To report any violation of their rights or the violation of the rights of others without being punished or retaliated against for such reporting. (15) To have these rights explained in an age-appropriate manner, and for youth age 14 and older to sign an acknowledgement that the rights have been explained, and to receive a copy of the rights set forth in this section. (b) Any child aggrieved by a violation of this section may motion the court, through an attorney or court-appointed special advocate, for appropriate equitable relief. 80 Del. Laws, c. 144, §  1 ; 80 Del. Laws, c. 363, § 1 ; 83 Del. Laws, c. 300, § 1 ; § 2523 Duties, authority and liability protection of caregivers to children in DSCYF custody. (a) Caregivers of children in DSCYF custody have the responsibility and authority to exercise the reasonable and prudent parent standard to provide or withhold permission for children in their care to participate in and experience age-appropriate or developmentally-appropriate activities and experiences, including extracurricular, cultural and social enrichment. The authority of a caregiver: (1) Must be exercised using the reasonable and prudent parent standard and the caregiver’s actions do not conflict with any applicable court order or service plan; and (2) May be exercised without the prior approval of DSCYF or the Court. (b) In determining whether a decision of a caregiver is reasonable and prudent according to § 2502 of this title, the following should be considered: (1) The child’s age, maturity and developmental level to maintain the overall health and safety of the child. (2) The potential risk factors to the child or to others and the appropriateness of the activity and experience for extracurricular, cultural or social enrichment. (3) The wishes of the child. (4) The wishes of the parent. (5) The best interests of the child based on information known by the caregiver. (6) The importance of encouraging the child’s emotional and developmental growth. (7) The importance of supporting the child in developing skills to successfully transition to adulthood, including guidance on healthy sexual development. (8) The importance of providing the child with the most family-like living experience possible. (9) Any special needs or accommodations that the child may need to safely participate in the activity or experience. (c) A caregiver is not liable for harm caused to a child who participates in an activity or experience approved by the caregiver if all of the following circumstances are met: (1) The caregiver acts in accordance with the reasonable and prudent parent standard. (2) The caregiver has completed the required training relating to the reasonable and prudent parent standard prior to giving the approval. (3) The approval does not conflict with any applicable court order or service plan. This section does not remove or limit any existing liability protection afforded by any other law. 80 Del. Laws, c. 363, § 1 ; 70 Del. Laws, c. 186, § 1 ; 81 Del. Laws, c. 127, § 1 ; 84 Del. Laws, c. 42, § 1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } }