Opinion
FILE NO.: CN16-06568 CPI NO.: 16-36361
01-29-2018
DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES, Petitioner v. L [Redacted] M [Redacted] , A [Redacted] W [Redacted] , and B [Redacted] M [Redacted] , Respondents In the Interest of: L [Redacted] M [Redacted] (d.o.b. [Redacted] / [Redacted] / [Redacted] )
CASE HISTORY:
Ex Parte Order: 11/22/16
PPH Order: 11/30/16
Adjudicatory Hearing Order: 1/12/2017
Adjud/Dispositional Hearing Order: 3/3/2017
Dispositional/Review Hearing Order: 3/15/2017
Review Hearing Order: 6/29/2017
Review Hearing Order: 10/10/2017 PRESENT FOR THE HEARING
Jonathan Harting, DAG
Lanora Boyd, DSCYF
Lauren Berry, DSCYF
Renee Duval, Child Atty.
Laura McGowan, CASA
Tahira Ayyaz, CASA Coordinator
L [Redacted] M [Redacted] , Mother
Nicholas Kondraschow, Mother's Child Atty.
David Holloway, Mother's Atty.
A [Redacted] W [Redacted] , Father
Mary Anne Detweiler, Father's Atty.
Keya Hackett, New Behavioral Network
Amanda August, Life Lines VISITATION ORDER
On November 28, 2017, the Court held a Permanency Hearing regarding L [Redacted] M [Redacted] ("L [Redacted] "), born [Redacted] , [Redacted] . The Court entered a separate Order setting forth the other findings made at this hearing at which time the Court continued the goal of reunification with Mother. At the conclusion of the hearing, counsel for Father requested that Father be granted unsupervised visitation upon completion of his sex offenders' treatment program and DFS opposed visitation. The Court indicated that it understood 13 Del .C . §724A(e) to bar all visitation between Father and L [Redacted] based upon his conviction of Rape in the 4th Degree but allowed the submission of argument on the matter and set up a schedule for the submission of memoranda. Briefing was completed on December 26, 2017 and this is the Court's decision on the matter of Father's visitation.
ESSENTIAL FACTS
The relevant facts are essentially undisputed. Father was convicted of Rape in the 4th Degree in which Mother was the victim. L [Redacted] was born as the result of the unlawful sexual relationship between Father, who was 25 years of age at the time L [Redacted] was born and Mother, who was 15 years of age at the time L [Redacted] was born. L [Redacted] was born [Redacted] , [Redacted] . While the charges were pending but before the conviction Father had some supervised visits with L [Redacted] at the DFS office which have been described in earlier orders.
SUMMARY OF ARGUMENTS
Father argues that the statutory limitation in §724A(e) between a sex offender parent and the child resulting from the sex offense is not applicable to supervised visitation and does not absolutely prohibit unsupervised visitation but rather subjects a decision on unsupervised visitation to the rebuttable presumption outlined in §724A(a) and (b). Father further argues that reading the statute as creating an absolute bar to visitation between a parent and the child produced as a result of a statutory rape would produce a nonsensical result. Father's counsel argued at the hearing that there were also constitutional issues with the statute, although the arguments laid out in the memoranda are focused on the statutory construction aspects and really only vaguely reference the constitutional protections afforded to parents' custody and visitation rights.
STATUTE: 13 Del. C. §724 (e)
The statute in question reads as follows:
If a child is conceived and subsequently born, as the result of an act of rape of any degree or unlawful sexual intercourse, in either the first or second degree with the mother, the biological father of said child shall not be permitted
visitation privileges under this section. This subsection shall apply only where the father pleads guilty or nolo contender, or is convicted of any degree of rape or unlawful sexual intercourse, in either the first or second degree. 13 Del. C. §724A(e).
WHETHER STATUTE IS AMBIGUOUS AND SUBJECT TO DIFFERENT
INTERPRETATION THAN PLAIN LANGUAGE
Father contends that this subsection should not be read in isolation but rather with the rest of Title 13 of the Code, mindful of the legislative intent expressed in the purpose of the statute. Division of Family Services v. O'Bryan, 164 A. 2d 58, 62 (Del. Supr. 2017). He notes that the provisions contained in §724A(e) were previously located at 13 Del. C. §728(d) which was contained in the chapter dealing with parents and children in custody and visitation cases but was later transferred to where it currently resides within the section dealing with the "unsupervised visitation, custody and residence" of a child to a sex offender. Father argues that the intent of the Sex Offenders' Act is to protect children from sex offenders by presuming that it is not in the best interests of a child to be placed in a custodial, residential or unsupervised visitation arrangements with a sex offender, regardless of whether the sex offender's victim is an adult or child. DSCYF responds that the language in §724A(e) is unambiguous and that since there is no ambiguity the plain meaning of the statutory language controls. DSCYF contests Father's assertion that that the legislature intended to include §724A(e) in the rebuttable presumption regarding "unsupervised visitation, custody and residence" when the language was moved to the Sex Offenders' Act from §728 dealing with custody and visitation. DSCYF argues that by moving the section to §724A the legislature demonstrated a desire to keep the prohibition intact and that they could have made amendments to the language at that time but chose not to do so.
The Court finds that the language of §724A is clear and unambiguous and there is no reason to look for another interpretation. A general heading or topic would not supersede a specific and clear statutory provision. The legislature has had opportunities to amend the language and did amend the language in 1998, but has not amended the prohibition on visitation. The statute is clear that the prohibition is limited to children conceived of rape.
The Court is aware that the statute also states fathers convicted of unlawful sexual intercourse in the 1
Father next argues that the language of (e) is overridden by the language of (a) which provides that custody, residence and unsupervised visitation are subject only to a presumption against visitation which may be rebutted. He bases this argument on the language in §724A(a) that states "notwithstanding other provisions of this title". Father argues that the "notwithstanding clause" signifies that the subsection (e) prohibition is overridden or "swept aside" by the enumerated rebuttable presumption standards. Citing U. S. v. Novak, 476 F.3d 1041, 1046 (9th Cir 2007). The Court views it differently. The Court reads the "notwithstanding" language as referring to other portions of Title 13 and §728 in particular which requires the Court to provide a parent with frequent and meaningful contact. It is those provisions and not §724A(e) that is swept aside. Thus, despite the language of §728 regarding custody, residence and visitation, which gives parents custody and visitation rights, the presumption in §724A(a) applies which can restrict those rights. This interpretation makes far more sense.
WHETHER OR NOT READING SUBSECTION (e) AS ESTABLISHING
CONCLUSIVELY THAT A CHILD PRODUCED AS A RESULT OF A
STATUTORY RAPE CAN NEVER HAVE ANY VISITATION WITH THE FATHER
WOULD PRODUCE A NONSENSICAL RESULT.
Father argues that if the Court were to determine that §724A(e) created a complete bar to even supervised visitation it would create an absurd result given the other provisions of the Sex Offenders Act, which allow for the possibility of visitation between a parent and a child who is the victim of the sexual offense, if the offender satisfies all the requirements of the rebuttable presumption and if a certified mental health official testified that as to the visitation being in the child's best interests. 13 Del. C. §724A(c). Father argues that a statute is ambiguous "if a literal reading of the statute would lead to an unreasonable or absurd result not contemplated by the legislature." Citing Division of Family Services v. James, 128 A.3d 635 (Del. Supr. 2015). Father also reminds the Court that a statute must be read as a whole mindful of the legislative intent expressed in the purpose of the statute. O'Bryan at 62. He contends that the statute would be discordant if a father of a child produced through a statutory rape were prohibited from having contact with his child while a father who victimized his child could obtain sole custody of that child under the statute. Father cites the case of B. R. v. C. M., 2007 Del. Fam. Ct. LEXIS 59. The Court in B.R. v. C. M. analyzed the predecessor statute to §724A(e) which was at that time §728(d) and was housed within the subchapter dealing with custody and visitation.
DSCYF argues that the question before the Court regarding this argument is whether there is a rational public policy behind the statutory language. DSCYF argues that "unless the result is so absurd that it cannot be reasonably attributed to the legislature" the Court must construe the statute based upon the clear language. Citing Progressive Northern Ins. v. Mohr, 47 A.3d 492-496-96 (Del. Supr. 2012). DSCYF argues that the public policy objectives of subsection (e) is both protective toward a class of innocent mothers and retributive against the criminal behavior of the sex offender fathers. The State contends that the statute prevents the offender father from using the Family Court proceedings to re-victimize or re-insert themselves into the mother's personal life, possibly for years.
The legislature chose to move §728(d) to §724A(e) for a reason. When the legislature moved the statute to its present home, there was an opportunity to revise it if there were concerns that it was not clear. This Court does not have to determine whether or not B. R. v. C. M. was correctly decided or not as there was a marked change in the way the Court weighs evidence of sex offenses when the Sex Offenders Act became law. Additionally, this is a trial court decision which is not binding upon another trial judge. While certainly most aspects of the law regarding custody and visitation of children are governed by the best interest of the child, this phrase is not an absolute or final word in all custody and visitation issues. For example, if a third party seeks guardianship, the Court doesn't even arrive at whether or not the guardianship is in the best interest of the child if the grounds for guardianship are not established. Thus, the parents may retain custody even if it's not in their best interest. Likewise, in third party visitation cases, the petitioner must satisfy the other elements of the statute before the Court looks at whether or not such visitation is in the child's best interest. Therefore, the best interest of the child does not trump all other provisions of the law.
The Court agrees with DSCYF that the Court can uphold the clear language of the statute if there is a rational public policy behind it. What Father's argument fails to even acknowledge is that Mother is also a child. Mother and other similarly situated victims of statutory rape are children themselves. The other provisions of Chapter 7 of Title 13 of the Code regarding custody and visitation do not protect her and others in her situation from being re-victimized by their rapists. These chapters only protect the children of the parties. While this may not have been violent in the sense there was not a physically violent assault it was not a consensual act by virtue of Mother's age at the time. It was still rape and could have a long-term impact on Mother and other mothers in her situation. Custody and visitation cases can allow the other party to probe into very intimate details of one another's personal life and can go on for years, which can further re-victimize the victim. On-going custody litigation can subject Mother to questioning by her rapist in court repeatedly as custody and visitation is always subject to modification based upon the "best interest of the child." The Court also notes that this does not necessarily preclude Father from ever having a relationship with his child. If allowed by his criminal sentencing and if Mother, as an adult, has custody of L [Redacted] and chooses to allow a relationship between Father and L [Redacted] she may do so. The Court will just not be involved and will not require her to do so by Order.
WHETHER 724A(e) IS UNCONSTITUTIONAL IF APPLIED AS A BAR TO
VISITATION
While not clearly presented as a constitutional issue as much as one of statutory construction, the Court does find that the statute is constitutional. The Court acknowledges that parental rights are "fundamental liberties" which may not be abrogated absent compelling circumstances. In Re Stevens, 652 A.2d 18, 24 (Del. 1995). The Court finds that the State has a compelling interest in protecting victims of rape including statutory rape from being re-victimized by their rapists as described above. §724A(e) is narrowly construed and has a rational and legitimate public purpose to protect rape victims from further emotional trauma and the Court does not find that it is unconstitutional. See DSCYF v. S.S and T.C., 2012 WL 101000634.
IT IS SO ORDERED this 29th day of January, 2018 that Father's request for Visitation is Denied. 1-29-18
Date Written Order Issued
/s/ _________
FELICE GLENNON KERR, JUDGE FGK/pmw Cc: Counsel and DFS via email
Respondent(s) via regular mail
Date emailed: 1-29-18
Date mailed: 1-29-18
st or 2nd degree if there are any remaining minor children born of these convictions as this crime was changed to rape in 1998. The Court further notes that the 1998 change from unlawful sexual intercourse to rape demonstrated an intent on the part of the legislature to consider rape, including statutory rape more seriously. Thus, the inclusion of statutory rape for those sentenced under the new statute in 728(d) when it was not included before 1998 would make sense if there were fathers who already had visitation under the old statute.