# Shepherd v. Clemens > Supreme Court of Delaware · May 11, 2000 · 752 A.2d 533 URL: https://www.frixlaw.com/law-library/cases/9710612 ## Case - **Full name:** Glenn and Bonita SHEPHERD, Plaintiffs Below, Appellants, v. Rita CLEMENS, A/K/A Rita Shepherd and Greg Howe, Respondents Below, Appellees - **Court:** Supreme Court of Delaware - **Decided:** May 11, 2000 - **Citations:** 752 A.2d 533; 2000 Del. LEXIS 189; 2000 WL 634632 - **Precedential status:** Published - **Opinion:** Dissent by Berger - **Judges:** Veasey, Walsh, Holland, Hartnett, Berger - **Cited by:** 99 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9710612 ## How later opinions describe it (automated extraction) - stating, “No court has held that the mere fact of biological fatherhood, that was the result of a conception during a criminal act and that is unaccompanied by a relationship with the child, creates an interest that the United States Constitution protects in the name of liberty.” ## Opinion text BERGER, Justice, dissenting. The majority’s decision is disturbing at many levels. First, it ignores the trial court’s findings of fact in favor of its own and, in doing so, goes well beyond our appellate function. Second, the majority fails to appreciate that Christopher can and will have a stable, loving and permanent relationship with the Shepherds even if they do not adopt him. Third, the majority stresses the fact that Father engaged in unlawful sexual relations with Mother and that, under a statute that does not apply, Father would be denied visitation. Since the statute has no bearing on this proceeding, it provides no support for the majority’s decision. Finally, the majority imposes a result that may make Christopher’s life less complicated over the short term, but is likely to have serious adverse consequences as Christopher gets older. For all of these reasons, I would affirm the decision of the trial court and allow Christopher, Father and Father’s family to share in each others’ lives. The standard for appellate review of a trial court’s factual findings is highly deferential. The trial court’s findings will not be disturbed unless they “clearly are wrong....” 32 Stated another way, the findings must be upheld as long as they are “logical and supported by the record ....” 33 There is a good reason for this standard. Appellate courts do not have a complete picture of the evidence. They do not hear the witness’s tone of voice, see his reactions, or observe the interaction with other family members in the courtroom. When a witness changes his testimony, as in this case, and tries to explain why he did not mean exactly what he said at a prior hearing, the witness’s demeanor can be critical to the fact finder’s evaluation of his credibility. The trial court found that, during the relevant time period, Father failed to make reasonable and consistent payments for Christopher’s support and failed to communicate and visit regularly with Christopher. The third element of abandonment, however, is failure to “manifest the ability and willingness to exercise pa *543 rental responsibilities.” 34 The trial court found that the Shepherds had not satisfied their burden of proving this element by clear and convincing evidence. The trial court noted that Father is employed, has a supportive family and suitable housing. In addition, Father made at least a minimal effort to establish visitation and arrange for support. Finally, the trial court noted the CASA’s observation that Father was earnest in his desire to see Christopher and the testimony about Father sobbing in his bedroom because he wanted a chance to know his son. Is this record support for the trial court’s finding? Certainly. The majority never identifies any factual findings of the trial court that were clearly wrong, unsupported, or illogical. It simply makes its own, independent findings without ever seeing or hearing a single witness. It says that Father failed to manifest the ability or willingness to assume parental responsibilities because: (i) he did not pay support; (ii) he did not seek visitation; and (iii) he agreed that the Shepherds should have custody of Christopher. Two of these findings, however, are repetitious. Failure to support and failure to visit are the first two elements of abandonment. The remaining element is failure to manifest ability and willingness to exercise parental responsibilities. The majority defeats the statutory scheme by using the first two elements to establish the third. The only additional fact relied on by the majority is Father’s agreement that the Shepherds should have custody of Christopher. How does that fact demonstrate Father’s unwillingness or inability to exercise parental responsibilities? Every time a divorced parent agrees that his former spouse should have custody of the children, does that mean the parent is unwilling or unable to exercise parental responsibilities? Of course not. Father should not be criticized, let alone deprived of all parental rights, because he is thinking of his child’s best interest and recognizes that Christopher should grow up in the Shepherd family- The majority also substitutes its judgment for the trial court’s on the question of Christopher’s best interest. On this important point, the majority seems to have lost sight of the family’s circumstances. Christopher is now, and always will be, living with his relatives. He is not temporarily in the home of foster parents or would-be adoptive parents. Thus, there is no need to terminate parental rights so that a non-relative custodian may adopt a child and establish a family unit. Christopher has all of the permanence, stability and identity of being a legal member of the Shepherd family. All that the majority is doing by terminating Father’s parental rights is depriving Christopher of the benefit of growing up knowing his father and his father’s family. The majority never even addresses why it would not be in Christopher’s best interest to know his father. It simply announces that the trial court’s conclusion is not supported by the record. After making its findings to justify the termination of Father’s parental rights, the majority goes to some length analyzing a statutory rapist’s parental rights. This is most troubling since the statute under discussion (i) does not apply to Father because it did not exist in this form at the time he had sexual relations with Mother; and (ii) would not have applied to Father even if it had existed in this form because Father did not plead guilty to any degree of rape. Why, then, does the majority dwell on this subject? One cannot help but conclude that the majority was looking for a way to make Father seem less worthy of protection under the law. While I do not condone Father’s past relationship with his underage girlfriend, he accepted criminal responsibility for his actions and was punished for his wrongdoing in accordance with law. There is no justification for the majority’s imposition of additional *544 punishment on him and his child in the form of termination of parental rights. Finally, the majority never addresses the implications of its decision. Christopher is being raised by his grandparents, the Shepherds. He now believes that his mother is his sister; his aunt and uncle are his siblings; and his grandparents are his parents. He does not know that he has a whole group of relatives that the Shepherds prevented him from growing up knowing and loving. He also does not know that his missing family is African American. How will this deprivation affect Christopher when he gets older and either is told, or learns the truth on his own? The CASA noted that race is an issue in this case and that it is extremely important for Christopher to know his heritage and be proud of his identity. The CASA suggested that professional help will be needed to deal with the confusion Christopher will experience when he learns the truth. Yet the majority does not even consider this most difficult issue — one that undoubtedly will be part of Christopher’s future. Our State was a leader in the country when it recognized the special needs of families by creating a separate Family Court devoted to domestic relations and children. Every day our Family Court judges balance the conflicting needs of families like the Shepherds and Howes and make decisions to promote the best interests of children like Christopher. Termination of parental rights is a drastic and permanent step that must be undertaken in appropriate cases. This is not such a case. Christopher could continue in the Shepherd’s custody, as a full member of their family, without completely depriving Father of his parental rights. The Family Court then could decide on visitation for Father and his family, setting whatever conditions, counseling requirements, or the like, that the Court deems appropriate under the law. This Court simply cannot claim to know better than the trial judge who lived with this case and met the families. There is absolutely no need to terminate Father’s parental rights in order to provide comfort, security, or legal status for Christopher. And there will be no way for Christopher to make up for all the childhood activities and family events and celebrations that the majority is forcing him to miss while growing up. It is a shame, and the law did not require this result. . Division of Family Services v. Harrison, Del.Supr., 741 A.2d 1016, 1020 (1999). . In re Kelly Stevens, Del.Supr., 669 A.2d 33, 34 (1995). . 13 Del.C. § 1101(1)a.3. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9710612. Public record. Not legal advice.