Supreme Court
No. 2022-226-Appeal. (P 19-5996)
In re A.N. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Lynch Prata, for the Court. The respondent, Francis N.1
(respondent or Francis), appeals from a Family Court decree finding that he
neglected his daughter, A.N. This case came before the Supreme Court pursuant to
an order directing the parties to appear and show cause why the issues raised in this
appeal should not be summarily decided. After considering the parties’ written and
oral submissions and reviewing the record, we conclude that cause has not been
shown and that this case may be decided without further briefing or argument. For
the reasons set forth herein, we affirm the decree of the Family Court.
1 Throughout the record, two spellings of the respondent’s name appear. We adopt the version contained in the transcripts for clarity. Additionally, the Court will refer to the respondent and A.N.’s mother by first name and last initial to protect the identity of the child. No disrespect is intended. -1- Facts and Travel
The Department of Children, Youth, and Families (DCYF or the department)
became involved with A.N.’s family on July 16, 2019, when the Rhode Island State
Police called the department’s Child Abuse Hotline to inform DCYF that respondent
had been arrested on felony criminal charges. The respondent was charged with two
counts of indecent solicitation of a child and one count of electronically
disseminating indecent material to a minor.
Kevin Palumbo, a Child Protective Investigator for the department (Mr.
Palumbo), opened an investigation into the allegations. Mr. Palumbo spoke to a
Rhode Island State Police detective who informed him that respondent was arrested
on July 15, 2019, for electronically disseminating indecent material to a minor and
for the indecent solicitation of a child. The detective also informed DCYF that
respondent “admitted that he had initiated communication about sex with a fictitious
13-year[-]old girl online.” The respondent further admitted to soliciting sex from a
person he believed to be a thirteen-year-old girl, requesting nude images, and that
he had sent a photograph of his penis to the fictitious thirteen-year-old. The detective
informed DCYF that respondent was prohibited from having any unsupervised
contact with children.
Thereafter, Mr. Palumbo met with Rachel N., A.N.’s mother and respondent’s
wife, at their home in Providence, Rhode Island. The investigator informed her that
-2- her husband had been charged with a sex crime and that he could not be in the home
with the children. Rachel stated that respondent would be moving to his mother’s
home and that she was unaware of his conduct online. Rachel also informed DCYF
that respondent had two other children with another woman; the investigator noted
in his report that their mother had obtained temporary custody of the two children
following respondent’s arrest. The respondent refused to discuss the criminal case
with the DCYF investigator; however, he agreed to move into his mother’s home
and to refrain from unsupervised contact with his children.
On December 26, 2019, DCYF filed the instant neglect petition, which alleged
that A.N.’s parents failed to provide her with a minimum degree of care, supervision,
or guardianship, and that she was without proper care or supervision. DCYF was
granted temporary custody of A.N. As of February 2020, A.N. resided with her
paternal aunt and stayed with her paternal grandmother on occasion. DCYF
informed Rachel, A.N.’s mother, that pursuant to the department’s policy, A.N.
needed to reside with her unless another residential arrangement was specifically
approved by DCYF.
Due to some discrepancies about A.N. and her father’s living situation, DCYF
filed an emergency motion for change of placement. In the motion, the department
-3- asserted that respondent had moved back into the family home, 2 that A.N. continued
to stay with her paternal aunt or paternal grandmother, that A.N.’s mother was
spending time with her at relatives’ homes, and that A.N. never returned to the family
home. Moreover, the department stated that A.N.’s mother and father failed to
maintain contact with DCYF and treatment providers, and that they failed to engage
in services. Consequently, DCYF indicated to the Family Court that there was “a
substantial, immediate danger to the child * * *.”
A permanency hearing was held on December 18, 2020. A decree entered
providing that the new case plan was approved and that the child would remain in
the care, custody, and control of DCYF until further order of the court. In relevant
part, the case plan required respondent to focus on change, engage in services,
control his impulses, work closely with the department, refrain from illegal conduct,
and provide the department with a sexual offender evaluation to assess the risk to
his daughter. The caseworker also encouraged respondent to move out of the home
“so [A.N.] is not displaced to other family member[s’] homes.” At a hearing on
October 21, 2021,3 DCYF offered to amend the petition to dependency for both
2 In its motion, DCYF explained that respondent informed the department that he could no longer live at his mother’s home because he needed an address as a condition of bail in the pending criminal case. 3 At the hearing, DCYF disclosed that the existing Family Court orders, which allowed respondent to have supervised visitation with his children, conflicted with a condition of bail set by the Superior Court in respondent’s criminal case that required him to have no contact with minors. Accordingly, the trial justice vacated the prior -4- parents. A.N.’s mother admitted to dependency; nonetheless, respondent declined
to do the same.
Thereafter, the instant neglect petition was heard on January 11 and February
21, 2022. At the outset of trial, respondent’s counsel advised the court that his client
intended to invoke his Fifth Amendment privilege against self-incrimination. On
direct examination, respondent testified that he was A.N.’s father, that he resided in
Providence, Rhode Island, and that his parents helped support him and his daughter.
The respondent testified that he was looking for a job; however, he acknowledged
that he was not providing financial support to A.N. due to his unemployment status.
When asked about the last time he visited with A.N., respondent said that he had not
seen her and that he “tried reaching out to [the department], but everytime [he] talk[s]
to the worker, * * * it’s really bad.” He testified that the conversation goes
“nowhere” and that the DCYF caseworker “degrades” him.
When asked about the events leading up to DCYF’s filing of the neglect
petition against him, respondent repeatedly invoked his Fifth Amendment right
against self-incrimination. For instance, when asked about his arrest on July 15,
2019, he “[pled] the Fifth.” Likewise, when the DCYF attorney asked about his
interview with a state police detective, he invoked his Fifth Amendment privilege.
visitation orders. The trial justice explained that, if the Superior Court modified his bail conditions, respondent could have visitation at the department’s discretion, supervised only by DCYF. -5- When asked about his communication with or solicitation of a fictitious
thirteen-year-old girl, respondent maintained his right against self-incrimination.
The respondent also pled the Fifth Amendment when asked questions related to
whether he solicited nude images from a person he believed to be a thirteen-year-old
girl, whether he sent a photograph of his penis to the person he believed to be a
thirteen-year-old girl, and whether he communicated with her via text messages.
Moreover, respondent also invoked his right against self-incrimination when asked
about his contact with A.N. from July 2019 to October 2021. The respondent denied
that DCYF had contacted him about referrals to services.
On cross-examination by A.N.’s guardian ad litem, respondent said that he
had lived with his parents as of July 2019 per DCYF’s recommendation; but, he
declined to answer where he had lived before that and asserted his Fifth Amendment
privilege. The respondent also invoked his Fifth Amendment right when asked how
old his daughter was when he moved out and regarding questions about his pending
criminal case, when his computer was seized in 2010, and whether he had child
pornography on his computer in 2010.
With respect to DCYF’s initial investigation by Mr. Palumbo, respondent
invoked his Fifth Amendment right. The respondent did testify that the investigator
“didn’t let [him] speak and was very disrespectful. He pretty much was beating
[him] down.” The respondent felt that Mr. Palumbo prejudged the allegation and
-6- did not attempt to find the truth; he explained that the investigator “made a decision,
and that’s it.” The respondent recalled that it was “a very stressful scenario,” and
that the investigator made him “feel like [he] was already guilty.” He also testified
that the investigator had told him he needed to leave the home, but that he was
already packing to leave as he was advised. On examination by his attorney,
respondent said that currently he had regular visitation with his daughter, every
Friday, for an hour.
The department then called to the stand Yahayra Genao, the social caseworker
assigned to A.N.’s case since November 2020. The caseworker explained that
DCYF’s priority was the child’s safety and ensuring that she was supervised at all
times with her father, due to his pending criminal case. Ms. Genao recalled that she
asked respondent to submit to a sex offender evaluation, and was told that he had
already completed one, but declined to sign a release to the department. The
caseworker’s objective was to work with respondent on case planning and the
ultimate goal was reunification. She testified that respondent expressed a desire to
reunify with A.N. though he declined to engage in the necessary services to
effectuate reunification with his child. The caseworker clarified that the starting
point was to submit to the sex offender evaluation to assess the risk to A.N. Indeed,
the caseworker encouraged supervised visitation and wanted respondent to have a
relationship with his daughter. Starting in December 2020, respondent was allowed
-7- visitation with A.N. every weekend for four hours. However, respondent had
declined to comply with, or agree to, a case plan.
Ms. Genao advised the court that respondent and his wife were living at the
same home and A.N. was staying with her paternal aunt. The respondent’s visits
with his daughter were supervised by A.N.’s paternal aunt and grandmother until
October 2021, when the trial justice learned of his bail conditions in the pending
criminal case. 4 After that point, Ms. Genao reached out to respondent to discuss a
plan for visitation, but he would not return her phone calls or engage in case
planning. From October 2021 to January 2022, Ms. Genao explained that she had
no contact with respondent due to his refusal to engage with DCYF. Prior to that
point, Ms. Genao spoke to respondent monthly.
After the department rested its case, respondent declined to present any
witnesses. The respondent, through his counsel, argued that there was insufficient
evidence that the criminal allegations posed a threat to his daughter. The respondent
conceded that the trial justice had discretion to draw inferences because he asserted
his Fifth Amendment right against self-incrimination but argued that it was not
mandatory. He said that, while the neglect proceedings were civil in nature, they
4 On November 4, 2021, a Superior Court justice granted respondent’s motion to modify bail conditions to allow supervised contact with his children and other children under the age of sixteen. -8- were also quasi-criminal and it would be improper to draw negative inferences
regarding his Fifth Amendment right.
In response, the department argued the trial justice could draw a negative
inference from the fact that respondent asserted his Fifth Amendment privilege to
questions related to his pending criminal case. DCYF maintained that respondent’s
lack of testimony supported its allegation that he neglected A.N. Likewise, A.N.’s
guardian ad litem argued that there was clear and convincing evidence that
respondent had neglected his daughter and that it was proper for the court to draw a
negative inference from his invocation of his Fifth Amendment privilege as this was
a civil matter. Notably, the guardian ad litem argued, respondent ceased visitation
with A.N. when the Family Court ordered that DCYF supervise visitation and he had
no contact with DCYF thereafter, effectively abandoning A.N. since October 2021.
On April 18, 2022,5 the trial justice issued her decision granting DCYF’s
neglect petition against respondent and ordering that A.N. be committed to the care,
custody, and control of the department until further order of the court. In rendering
5 The respondent’s criminal case was disposed of before the trial justice issued a decision in this case. The respondent pled nolo contendere to one count of indecent solicitation of a child, and he was sentenced to a five-year suspended sentence and five years of probation. The court also required that respondent engage in a sex offender program and register as a sex offender. The other two counts were dismissed pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure. There is no evidence in the record to indicate that this information was brought to the trial justice’s attention before she issued her decision in this case. -9- her decision, the trial justice explained that respondent’s testimony was “evasive and
hostile.” She referenced his invocation of his Fifth Amendment right against
self-incrimination when asked questions about his residence, the pending criminal
charges, and where he was living at the time he was charged. Furthermore, the trial
justice explained that respondent invoked his Fifth Amendment privilege when he
was asked about sending a photograph of his penis to a person he believed to be a
thirteen-year-old girl, whether he knew the person he was communicating with was
a thirteen-year-old girl, whether he solicited the fictitious child for nude images or
sex, and whether his computer was confiscated in 2010 in relation to a criminal
investigation for possession of child pornography.
Ultimately, the trial justice found by clear and convincing evidence that
respondent had failed to demonstrate any protective capacity or willingness to
address the issues that led to DCYF’s filing of the neglect petition. She explained
that respondent lacked any insight as to the department’s concerns regarding A.N.’s
safety in light of the criminal charges against him. The trial justice reasoned that
“based on the social caseworker’s and [respondent’s] testimony and evidence
introduced at trial, this [c]ourt may and does draw inferences from [respondent]
invoking his Fifth Amendment [r]ight when asked about [the] specific conduct and
circumstances” that led to the instant neglect case. Moreover, respondent conceded
that he was unemployed and was providing no financial support to his daughter. The
- 10 - trial justice found by clear and convincing evidence that respondent neglected A.N.
based on the risk of harm to her relative to his pending criminal allegations, and his
failure to provide her with a minimum degree of care, supervision, or guardianship.
The trial justice further found that A.N. was without proper care and supervision
with respect to respondent.
The Family Court ordered that A.N. be placed with her mother, that
respondent continue to have visitation supervised by DCYF, and that he was
required to undergo a sexual offender risk assessment. A decree entered consistent
with the trial justice’s decision. Thereafter, respondent filed a timely notice of
appeal.
Standard of Review
Rule 22(b) of the Family Court Rules of Juvenile Proceedings provides that a
“determination that a child is dependent, neglected, or abused shall be made based
on findings of fact and upon clear and convincing evidence * * *.” R. Juv. P. 22(b).
“It is well settled that the clear and convincing standard is ‘a higher standard of proof
than that of a fair preponderance of the evidence but less than that required for proof
beyond a reasonable doubt.’” In re Sophia M., 204 A.3d 605, 609 (R.I. 2019)
(quoting In re Emilee K., 153 A.3d 487, 497 (R.I. 2017)). This Court has emphasized
that “the clear and convincing standard is significant, * * * and requires that the
fact-finder form a clear conviction without hesitancy of the truth of the precise facts
- 11 - in issue.” Id. (internal quotation marks, citations, and brackets omitted).
“Nonetheless, it remains true that a trial justice’s ‘findings are entitled to great
weight and will not be reversed on appeal unless the trial justice overlooked or
misconceived material evidence, or was otherwise clearly wrong.’” Id. (quoting In
re Madlyn B., 187 A.3d 1105, 1118-19 (R.I. 2018)). “Accordingly, on appeal, this
Court will ‘examine the record to determine whether legally competent evidence
exists in it to support findings made by the trial justice.’” Id. (quoting In re Adner
G., 925 A.2d 951, 957 (R.I. 2007)).
Discussion
On appeal, respondent argues that this Court should vacate the Family Court’s
finding of neglect against him because the trial justice erred by drawing adverse
inferences from his assertion of his Fifth Amendment right against
self-incrimination. Indeed, he maintains that “[i]t is clear the trial court erred in[]
attributing evasiveness and hostility to the simple assertion of a constitutional right.”
He further argues that the Family Court’s “leap, hop[,] and jump to infer that he had
neglected his daughter * * * beggar[s] due process requirements, * * * [and] rest[s]
on a record devoid of factual support * * *.” The respondent contends that the
adverse inferences drawn from his pending criminal case were insufficient to support
a finding of neglect. He claims that the trial justice overlooked the fact that his
- 12 - family was intact prior to DCYF involvement, that he was invested in reunification,
and that his family was supportive.
Conversely, DCYF avers that the trial justice’s finding of neglect should be
affirmed as it was based on clear and convincing evidence. The department argues
that this Court has held that the Family Court has properly drawn adverse inferences
when a parent refused to participate in case planning or answer certain questions at
trial. In support of its argument, DCYF relies on our holdings in In re Rita F., 64
A.3d 1220 (R.I. 2013), In re Jazlyn P., 31 A.3d 1273 (R.I. 2011), In re Destiny D.,
922 A.2d 168 (R.I. 2007), and In re Rosalie H., 889 A.2d 199 (R.I. 2006). Indeed,
the department contends that respondent’s alleged criminal conduct posed a risk to
A.N. and that the trial justice was justified to attribute evasiveness and hostility to
his testimony. Additionally, the department clarified that the trial justice relied on
other evidence in finding that respondent neglected A.N., i.e., that respondent
demonstrated an indifference to his daughter’s needs by choosing to reside at the
family home, effectively displacing the child. Likewise, respondent refused
visitation supervised by DCYF, failed to provide any financial support for his
daughter, and refused to release his completed sex offender evaluation. The Office
of the Court Appointed Special Advocate (CASA) also asks this Court to affirm the
trial justice’s finding of neglect as it was supported by clear and convincing evidence
- 13 - and maintains that it was proper to draw adverse inferences when respondent
repeatedly invoked his right against self-incrimination.
“The Fifth Amendment privilege against self-incrimination ‘may properly be
invoked in a civil proceeding regardless of whether there is a pending criminal matter
arising out of the same set of factual circumstances.’” In re Rosalie H., 889 A.2d at
206 (quoting Tona, Inc. v. Evans, 590 A.2d 873, 875 (R.I. 1991)). Moreover, “the
Fifth Amendment does not forbid adverse inferences against parties to civil actions
when they refuse to testify.” Id. (quoting LaSalle Bank Lake View v. Seguban, 54
F.3d 387, 390 (7th Cir. 1995)). “Rather, a party’s silence should be considered in
light of all the other evidence.” Id.
In Tona, Inc., we explained that there are limitations on the right to invoke the
Fifth Amendment privilege. Tona, Inc., 590 A.2d at 876. Whether the privilege
applies in a particular context “must be determined by the court on a
question-by-question basis.” Id. “The mere threat of criminal prosecution is
insufficient to justify a blanket assertion of the Fifth Amendment privilege.” Id. We
have held that the Fifth Amendment did not preclude the use of a mother’s prior
statements to police, which were obtained in connection with a criminal
investigation into the death of a three-year-old who was in the mother’s care, after
she refused to testify in a proceeding to terminate parental rights to her children. See
In re Destiny D., 922 A.2d at 173-74.
- 14 - In this instance, the trial justice was entitled to draw adverse inferences against
respondent who refused to answer questions about his pending criminal case or
DCYF’s investigation and instead repeatedly invoked his Fifth Amendment right
against self-incrimination. See In re Rita F., 64 A.3d at 1231 (“[I]t was proper for
the trial justice to draw an adverse inference when respondent refused to answer any
questions whatsoever.”); see also In re Rosalie H., 889 A.2d at 206 (rejecting
parents’ argument that participating in DCYF case plans would subject them to
criminal liability and holding that trial justice did not infringe upon parents’ right
against self-incrimination); In re Amber P., 877 A.2d 608, 616 (R.I. 2005) (holding
that trial justice was entitled to weigh respondent’s failure to submit to sex offender
counseling in considering DCYF’s termination petition).
When asked about the events leading up to DCYF’s filing of the neglect
petition, respondent repeatedly invoked his Fifth Amendment privilege. The
respondent refused to answer questions regarding his arrest or the circumstances that
led to the criminal case or DCYF’s involvement with A.N. There were several
instances in which respondent invoked the Fifth Amendment, even with respect to
questions that were not in connection with his criminal case, such as where he was
living when DCYF opened its investigation and his contact with A.N. from July
2019 to October 2021. The trial justice’s finding that respondent was “evasive and
hostile” is well supported by the record. In light of all the other evidence adduced
- 15 - at trial, it was appropriate for the trial justice to draw adverse inferences when
respondent refused to answer questions regarding his pending criminal charges,
DCYF’s investigation, his residence, or his contact with the child. See In re Rita F.,
64 A.3d at 1231; In re Rosalie H., 889 A.2d at 206; In re Amber P., 877 A.2d at 616.
After our careful examination of the record, we conclude that there exists clear
and convincing evidence to support the trial justice’s finding of neglect. The record
is replete with evidence that the respondent failed to meaningfully engage with
DCYF relative to case planning or services. The respondent refused visitation
supervised by the department, refused to provide his completed sex offender
evaluation to his caseworker to assess the risk to A.N., and had no contact with his
caseworker for months leading up to trial. In this case, the respondent manifested a
blatant disregard for A.N.’s safety in relation to his pending criminal charges and
her needs by displacing his daughter from the family home to instead live with
relatives, in effect abandoning her to prioritize his own needs. See In re Rosalie H.,
889 A.2d at 208 (finding that parents’ “wholesale rejection of the services provided
to them, while their children were in DCYF custody for over two years,
demonstrated that [parents] exalted their own interests over those of their children”);
see also In re Alan W., 665 A.2d 877, 878 (R.I. 1995) (affirming termination of
father’s parental rights where “father put his own interests before those of his son,
who had been in foster care for almost two years”). Significantly, the respondent
- 16 - conceded that he not only displaced the child from the family home but further
provided no financial support to her. While the respondent insists that he was
committed to reunification with his daughter, the record before us tells a different
tale. We are satisfied that there is clear and convincing evidence to support the trial
justice’s finding that the respondent neglected A.N. based on the risk of harm to her
in relation to his pending criminal charges and his failure to provide her with a
minimum degree of care, supervision, or guardianship. Therefore, we discern no
error.
Conclusion
For the reasons set forth herein, we affirm the decree of the Family Court.
The record may be returned to that tribunal.
- 17 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case In re A.N.
No. 2022-226-Appeal. Case Number (P 19-5996)
Date Opinion Filed July 31, 2024
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Associate Justice Erin Lynch Prata
Source of Appeal Providence County Family Court
Judicial Officer from Lower Court Associate Justice Elizabeth Ortiz
For Petitioner:
Benjamin Copple Department of Children, Youth and Families Attorney(s) on Appeal Andrew J. Johnson Court Appointed Special Advocate For Respondent:
George J. West, Esq.
SU-CMS-02A (revised November 2022)