In re Gelvin B.

• Court: Supreme Court of Rhode Island
• Decided: May 26, 2021
• Docket: 19-443
• Status: Published

Opinion

May 26, 2021

Supreme Court

No. 2019-443-Appeal. (P 18-4947)

In re Gelvin B. :

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 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: Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Long, for the Court. The respondent mother, Melissa B. (mother or

respondent), appeals from a decree of the Family Court, issued pursuant to G.L. 1956

§ 15-7-7(a)(3), terminating her parental rights to her son, Gelvin. 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 in this opinion, we affirm the

decree of the Family Court.

Facts and Procedural History

Gelvin was born on June 16, 2017, at Women and Infants Hospital. Within

days of his birth, the Department of Children, Youth, and Families (DCYF or the

department) filed a neglect petition in an underlying companion case, P 17-2160,

-1- and placed Gelvin into nonrelative foster care. He has remained in the custody of

DCYF since that time.

On October 2, 2018, DCYF filed the present petition in Family Court to

terminate the parental rights of Gelvin’s mother and father.1 The Family Court

thereafter considered the neglect petition along with the termination petition. A

summary of facts accompanied the petition to terminate parental rights; the summary

detailed mother’s history with the department, including the prior removal of her

three older children from her care, as well as the criminal charges brought against

her concerning one of the older children.

The trial in mother’s case, both for neglect and termination of her parental

rights, began on July 8, 2019. DCYF asked the court to take judicial notice of

mother’s plea of nolo contendere to a criminal charge of neglect of a child and

submitted into evidence the three service plans developed to that point. The first

service plan, dated August 2017, stated a goal of reuniting Gelvin with mother, along

1 A hearing was held on February 27, 2019, during which a social worker from DCYF, Jennah Carpenter, testified that Gelvin Castro had been identified as the child’s father by the mother and confirmed through DNA testing. DCYF developed three case plans for the father with the goal of reunification, none of which the father availed himself of. Ms. Carpenter further testified that the father had no visitation with the child since his birth and had provided no financial support. The trial justice noted that the father had been served by publication and failed to appear at that hearing, and the trial justice defaulted him and terminated his parental rights. Gelvin was placed in nonrelative foster care while mother’s case remained pending. The father has not appealed to this Court. -2- with a concurrent goal of adoption. Mother was given weekly, supervised visitation

with Gelvin and was referred to the Boys Town Visitation Program (Boys Town).

Her plan requirements included completion of a parent/child evaluation; continued

participation in the Healthy Families America home-visiting program in which she

was enrolled; being “open and honest with her therapist”; and refraining from any

criminal activity.

Mother’s second service plan, developed in March 2018, included

unsupervised visitation but otherwise identified similar requirements for mother,

such as completion of a parent/child evaluation; engaging in recommended mental

health treatment and counseling; and refraining from criminal activity.

The third and final service plan, dated September 2018, modified Gelvin’s

permanency goal to adoption with a concurrent goal of guardianship and, once again,

required supervised visitation. However, mother’s requirements under the service

plan remained similar to those in the prior plans.

During the trial, DCYF solicited testimony from mother and two DCYF

caseworkers assigned to the family. Mother testified that, when she found out she

was pregnant with Gelvin, she went to the Women and Infants Behavioral Clinic and

engaged in the Healthy Families program. She explained that she continued

attending the Healthy Families program after Gelvin’s birth and placement into

foster care. Her weekly visitation with Gelvin progressed to two times per week—

-3- once each week at Boys Town, and once each week with Gelvin’s foster mother.

Later, visitation became loosely supervised, with the foster mother as the supervisor.

Mother also testified about what precipitated the return to weekly supervised

visits in the third service plan. In March 2018, she was scheduled to have an

overnight visit with Gelvin, but she was arrested the day before and held for thirty

days at the Adult Correctional Institutions. She explained that she “had a message

passed on” through a third party to let DCYF know her whereabouts. 2 After her

release from the ACI, DCYF did not refer mother to any additional services, despite

her requests. Mother stated that she sought referrals after her arrest because she

knew she had “messed up” and “wanted to do whatever [she] could to fix it[,]” but

never received a response from the department.

Mother also testified about an incident on July 11, 2018, when, after an

anonymous call to the DCYF hotline, the police discovered Gelvin in her home

unsupervised. At the time, Gelvin was placed with a paternal great-aunt who

facilitated the unauthorized visit. Mother acknowledged that she knew it was against

the court order but explained that she missed her son and “wanted to be around

him[.]”

2 Mother gave testimony in her own defense in addition to testifying as part of DCYF’s case-in-chief. -4- Mother discussed the services in which she was enrolled to make her fit to

parent Gelvin. She found a therapy program at Family Services, attended therapy

there for two years (less a five-month lapse in insurance), and remained engaged in

therapy at the time of the trial. She testified that she was “opening up more” with

her therapists, which was helping her.

Lastly, mother testified that she requested a referral to a parent/child

evaluation but did not receive one. Mother denied ever declining such a referral.

She also testified that her DCYF caseworker, Jennah Carpenter, was difficult to

reach; she said they met face-to-face only when in court.

Ms. Carpenter testified that she had worked with the family since before

Gelvin was born. She explained that mother needed to work on her judgment in

parenting, as well as her outstanding mental health and substance issues; she

conceded that mother was working on the latter issues and engaging in counseling

when Gelvin was born. Ms. Carpenter did not think mother completed an updated

mental health evaluation, as the service plans required, or resumed drug screens after

being released from the ACI. She testified that mother was inconsistent and guarded

with therapy; she further explained that she did not refer mother to other services

because mother “need[ed] to engage in counseling * * * so changing her counselor

wasn’t going to do anything.” Ms. Carpenter also testified that DCYF asked mother

to participate in a parent/child evaluation with Gelvin but that she declined.

-5- Additionally, on examination by counsel for the CASA guardian ad litem, Ms.

Carpenter stated that, although mother was required to refrain from criminal activity,

she was arrested twice in March 2018.

Ms. Carpenter explained that Gelvin had been in his current, nonrelative

placement since July 2018, and was “very bonded” with his foster family. Moreover,

according to Ms. Carpenter, that home could be a permanency source for Gelvin if

mother’s parental rights were terminated.

Jane Ahles, Ms. Carpenter’s supervisor at DCYF, also testified. Ms. Ahles

confirmed Ms. Carpenter’s testimony regarding mother having declined a

parent/child evaluation.

In closing arguments, mother contended that she successfully completed Boys

Town, the only service to which she had been referred, and that DCYF failed to

continue reunification efforts after her arrest. She argued that DCYF based its

petition to terminate her parental rights on her arrests for nonviolent crimes, which,

according to mother, is an insufficient basis to terminate an individual’s parental

rights.

DCYF and the CASA guardian ad litem both argued that DCYF had made

reasonable efforts to reunite mother with her son. 3

3 Counsel for DCYF also took issue with mother’s inability to recall exactly when visitation became “loosely supervised.” Counsel argued, “If I had not had my child in that length of time * * * that date would be burned in my memory[.]” We note -6- The trial justice issued a bench decision on August 16, 2019. He summarized

the testimony and stated that he had taken judicial notice of P2/16-19CR, wherein

mother “received three years probation for criminal neglect and cruelty to a child[,]”

a case involving another one of her children to whom she no longer has any legal

rights. He noted that mother’s other two children had permanency under the terms

of guardianships. The trial justice found by clear and convincing evidence that the

credibility of Ms. Carpenter and Ms. Ahles “far outweigh[ed] that of [mother]” on

the issue of whether mother was referred to a parent/child evaluation and refused.

He also found that mother did not engage fully with the Family Services program or

remain free of criminal activity, both of which were requirements of her service

plans. He found that mother had “failed to provide Gelvin with a minimum degree

of care, supervision or guardianship” and therefore, neglected him. He found that,

prior to Gelvin’s removal from his mother’s care, DCYF had “exercised reasonable

efforts to prevent or eliminate the need to remove him from the care of his mother”

and that there was not “a reasonable probability” that Gelvin could “be able to be

returned to his mother’s care within a reasonable period of time[.]” Additionally, he

found that it was not in Gelvin’s best interest to be placed with mother, that mother

the impropriety of such a statement in closing arguments, which “should focus on the evidence educed at trial” and should not become an opportunity for counsel to interject themself into the case in this way. State v. Farley, 962 A.2d 748, 757 (R.I. 2009). -7- was unfit, and that Gelvin was thriving with the foster parents who could offer him

permanency. For those reasons, the trial justice found that it was in Gelvin’s best

interest that mother’s parental rights be terminated.

A decree terminating mother’s parental rights entered on August 26, 2019.

Mother filed a timely notice of appeal to this Court. On appeal, mother asserts that

the trial justice made three determinations that were in error: (1) that mother was an

unfit parent and Gelvin’s safe return to her within a reasonable time was improbable;

(2) that DCYF met its burden to show that it made reasonable efforts to achieve

reunification between mother and her son; and (3) that it was in Gelvin’s best interest

to “forever sever his relationship with his mother.”

Termination of Parental Rights

“On appeal, this Court reviews termination of parental rights rulings by

examining the record to establish whether the Family Court justice’s findings are

supported by legal and competent evidence.” In re Violet G., 212 A.3d 160, 166 (R.I.

2019) (quoting In re Amiah P., 54 A.3d 446, 451 (R.I. 2012)). “These findings are

entitled to great weight, and this Court will not disturb them unless they are clearly

wrong or the trial justice overlooked or misconceived material evidence.” Id.

(quoting In re Amiah P., 54 A.3d at 451). “Such findings must be supported by clear

and convincing evidence.” Id. “Natural parents have a fundamental liberty interest

in the care, custody, and management of their children.” Id. (quoting In re Amiah P.,

-8- 54 A.3d at 451). “Before terminating a parent’s rights to his or her child, the Family

Court justice must find that the parent is unfit.” Id. (brackets omitted) (quoting In re

Amiah P., 54 A.3d at 451). “However, once the Family Court justice determines

parental unfitness, the best interests of the child outweigh all other considerations.”

Id. (brackets omitted) (quoting In re Amiah P., 54 A.3d at 451).

In the instant case, the petition to terminate respondent’s parental rights was

filed pursuant to § 15-7-7(a)(3), which states:

“(a) The court shall, upon a petition duly filed by a governmental child placement agency or licensed child placement agency after notice to the parent and a hearing on the petition, terminate any and all legal rights of the parent to the child, including the right to notice of any subsequent adoption proceedings involving the child, if the court finds as a fact by clear and convincing evidence that:

“* * *

“(3) The child has been placed in the legal custody or care of the department for children, youth, and families for at least twelve (12) months, and the parents were offered or received services to correct the situation which led to the child being placed; provided, that there is not a substantial probability that the child will be able to return safely to the parents’ care within a reasonable period of time considering the child’s age and the need for a permanent home[.]”

It is undisputed that Gelvin had been in the legal care of DCYF for more than

twelve months at the time of the filing of the petition. We therefore will address

-9- each of mother’s contentions regarding the other requirements for the granting of a

petition for the termination of parental rights in the Family Court.

A

Parental Fitness

“It is indeed a basic principle that, ‘before parental rights may be terminated,

a specific finding of parental unfitness must be made.’” In re James H., 181 A.3d

19, 26 (R.I. 2018) (quoting In re Max M., 116 A.3d 185, 193 (R.I. 2015)). “A parent

is deemed unfit when the parent has ‘exhibited behavior or conduct that is seriously

detrimental to the child, for a duration as to render it improbable for the parent to

care for the child for an extended period of time.’” In re Violet G., 212 A.3d at 166

(brackets omitted) (quoting § 15-7-7(a)(2)(vii)). In addition, “a parent’s lack of

interest in his or her child evidenced by an unwillingness to cooperate with DCYF

services can be a basis for a finding of unfitness.” In re James H., 181 A.3d at 26-

27 (quoting In re Max M., 116 A.3d at 194).

The trial justice’s finding of unfitness is well-supported by the record in the

present case. Mother did not comply with her service plan when she failed to avoid

criminal activity and was arrested the day before her first planned overnight visit

with her son. In addition, she had an unsupervised visit with her son, which she

knew was against the court order in effect at that time. She admitted to both

instances during trial. Finally, although she sought therapy, mother did not fully

- 10 - engage with her therapist which, given the two instances mentioned above, was

particularly necessary for her to become a fit parent for Gelvin. Thus, the trial

justice’s finding of unfitness is supported by clear and convincing, legally competent

evidence.

B

Reasonable Efforts

Section 15-7-7(a)(3) “mandates that DCYF establish by clear and convincing

evidence that it offered ‘services that amount to a reasonable effort to correct the

situation that led to the child’s removal’ from the parent’s care.” In re Violet G., 212

A.3d at 167 (brackets omitted) (quoting In re Lauren B., 78 A.3d 752, 760 (R.I.

2013)). DCYF need not “demonstrate that it took ‘extraordinary efforts.’” Id.

(brackets omitted) (quoting In re Lauren B., 78 A.3d at 760). “Rather, the law

requires that DCYF employ ‘reasonable efforts,’ and the reasonableness of such

efforts ‘must be determined from the particular facts and circumstances of each

case.’” Id. (quoting In re Joseph S., 788 A.2d 475, 478 (R.I. 2002)).

The trial justice found that DCYF had referred mother to services in the form

of the Boys Town program. He also found credible the testimony of Ms. Carpenter

and Ms. Ahles regarding DCYF’s attempt to refer mother to a parent/child

evaluation, notwithstanding mother’s statements to the contrary. Such a finding is

entitled to “a substantial amount of deference * * * due to the fact that the trial justice

- 11 - has had an opportunity to appraise witness demeanor and to take into account other

realities that cannot be grasped from a reading of a cold record.” Tsonos v. Tsonos,

222 A.3d 927, 934 (R.I. 2019) (quoting In re Estate of Ross, 131 A.3d 158, 167 (R.I.

2016)). Additionally, the record reveals that DCYF worked both toward increasing

mother’s visitation and transitioning to unsupervised visitation, which shows a

progression toward reunification, as contemplated by the first two service plans.

Although DCYF certainly did not engage in “extraordinary efforts,” the trial

justice’s finding that DCYF engaged in “reasonable efforts” to reunify mother and

Gelvin is likewise supported by legally competent evidence.4

C

Best Interests of the Child

“Once DCYF has demonstrated parental unfitness and has shown that it made

reasonable efforts at reunification, the analysis then shifts to the overarching issue

of the best interests of the child, a determination that outweighs all others.” In re

Violet G., 212 A.3d at 167 (quoting In re Kristina L., 520 A.2d 574, 580 (R.I. 1987)).

This Court is always mindful of the import “of the ‘significance of severing the bond

between parent and child[.]’” Id. at 168 (quoting In re Alexis L., 972 A.2d 159, 170

4 We caution DCYF that, although mother had a history with the department involving her other children, it was not a forgone conclusion that mother would be an unfit parent to Gelvin. DCYF is required to make reasonable efforts to reunify each child with his or her parent. - 12 - (R.I. 2009)). However, it is undeniable that the best interests of the child “outweigh

all other considerations.” In re Briann A.T., 146 A.3d 866, 874 (R.I. 2016) (quoting

In re Brooklyn M., 933 A.2d 1113, 1126 (R.I. 2007)).

The trial justice found that Gelvin had bonded with his foster family, who

could offer him permanency if the respondent’s parental rights were terminated. He

further found that it was unlikely that Gelvin could be placed with the respondent

within a reasonable amount of time, given the justice’s other findings regarding the

respondent’s unfitness. The trial justice’s finding that the respondent’s termination

of parental rights was in Gelvin’s best interest is, like his other findings, supported

by legally competent evidence.

Conclusion

For the reasons set forth in this opinion, we affirm the decree appealed from

and return the record in this case to the Family Court.

Chief Justice Suttell did not participate.

- 13 - 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 Gelvin B.

No. 2019-443-Appeal Case Number (P 18-4947)

Date Opinion Filed May 26, 2021

Justices Goldberg, Robinson, Lynch Prata, and Long JJ.

Written By Associate Justice Melissa A. Long

Source of Appeal Providence County Family Court

Judicial Officer from Lower Court Associate Justice Stephen J. Capineri

For Petitioner:

Benjamin Copple Department of Children, Youth and Families

Lauren E. Nixon Court Appointed Special Advocate Attorney(s) on Appeal For Respondent:

Charlene E. Pratt Office of the Public Defender

Kara J. Maguire Office of the Public Defender

SU-CMS-02A (revised June 2020)