June 17, 2022
Supreme Court
In re Jae’La G. : No. 2021-23-Appeal. (PNG 16-612)
In re Jae’Ona G. : No. 2021-24-Appeal. (PNG 16-613)
In re Jae’Ona G. : No. 2021-25-Appeal. (P 18-5730)
In re Jae’La G. : No. 2021-26-Appeal. (P 18-5729)
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
Chief Justice Suttell, for the Court. The respondent father, Jason Smith,
appeals from a Family Court decree terminating his parental rights to his two
children, Jae’La G., born in May 2014, and Jae’Ona G., born in November 2015
(collectively the children), pursuant to G.L. 1956 § 15-7-7(a)(3).1 Although DCYF’s
1 There were neglect petitions and termination of parental rights petitions filed against the respondent with respect to both children. All petitions were heard and decided together. The four appeals were consolidated by order of this Court on July 27, 2021. The respondent is not challenging the findings of neglect.
-1- petitions were also filed against the children’s mother, Brittany G., she executed a
direct-consent adoption before trial and is thus not a part of these appeals.2
These consolidated appeals came before the Supreme Court pursuant to an
order directing the parties to appear and show cause why the issues raised in these
appeals 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 these appeals may be decided without further briefing or argument.
For the reasons set forth in this opinion, we affirm the decree of the Family Court.
I
Facts and Travel
The respondent first became involved with the Department of Children,
Youth, and Families in 2012 after an incident that involved Keandra, the mother of
his two sons, and Keandra’s then-twelve-year-old son, who is not respondent’s
child.3 In 2015, respondent pled nolo contendere to second-degree child abuse and
simple assault/domestic charges. The respondent was sentenced to a five-year
suspended sentence, with probation, and no contact with Keandra and her son.
2 To protect the identities of the children, in this opinion, we will use the children’s biological mother’s first name and last initial only. 3 We note that there are inconsistencies in the record as to the spelling of Keandra, Jae’La, and Jae’Ona. We utilize the spelling from the documents that were introduced as trial exhibits in Family Court. Keandra, her son, and respondent’s sons with Keandra are not a part of this case.
-2- Thereafter, respondent again came to the attention of DCYF in September
2016, when the department was contacted by the Central Falls Police Department to
report that there had been a domestic incident between respondent and Brittany.
After reviewing the DCYF history, it was discovered that respondent had been “red
flagged for criminal child abuse and neglect charges, domestic violence and potential
sex offender charges regarding a minor in Massachusetts.” Upon completing an
investigation, the DCYF child protective investigator indicated the case for neglect.
The criminal charges against respondent stemming from the 2016 incident were
dismissed at the request of Brittany and sealed on November 22, 2016.
On December 9, 2016, DCYF filed petitions alleging that the children were
neglected because (1) respondent failed to provide each child with a minimum
degree of care, supervision, or guardianship, and (2) each child was without proper
parental care and supervision. On December 12, 2016, a social worker with DCYF,
Jaimee Clerc, was assigned to the case. When Clerc’s involvement with the case
ended in February 2018, Barbara Silvia, a social caseworker, took over the assigned
case. In 2017, respondent became incarcerated after pleading nolo contendere to
possession of over 400 grams of marijuana with intent to deliver, and a violation of
his probation. The respondent was released in December 2017.
On November 27, 2018, DCYF filed petitions to terminate respondent’s
parental rights to the children (the TPR petitions). DCYF contended that each child
-3- had been in the custody or care of DCYF for at least twelve months, that respondent
had been offered or received services to correct the situation that led to the children
being placed in DCYF custody, and that there was not a substantial probability that
the children could safely return to respondent’s care within a reasonable period of
time.
A trial on the neglect petitions and the TPR petitions was held between
September 12, 2019, and September 15, 2020. On September 14, 2020, a
permanency hearing took place, at which the trial justice approved DCYF’s service
plan goal of adoption. Numerous exhibits were admitted into evidence during the
trial, including respondent’s psychiatric records, several certificates of completion
for programs that respondent completed while at the Adult Correctional Institutions,
three DCYF service plans for each child, records from the Providence Center, and
records from the Massachusetts Department of Children and Families. DCYF
presented witness testimony by John P. Parsons, Ph.D., Robert Tyler McMahon Jr.,
Jaimee Clerc, and Barbara Silvia.
-4- A
Testimony
Dr. John Parsons
At trial, Dr. Parsons testified as an expert in psychology with a specialization
in psychological assessments and assessments for children and families. Doctor
Parsons stated that he was asked to complete an evaluation in addition to conducting
an interactive session with the children; he conducted an assessment of respondent
and the children between March and June 2018. Doctor Parsons testified that he met
with respondent on March 30, 2018, the initial assessment date. Doctor Parsons
stated that, overall, there were “four extended sessions anywhere from between
[ninety] minutes to [two] hours” with respondent and a final session with the
children.
Doctor Parsons indicated that he began respondent’s session with a clinical
review, wherein respondent disclosed that, when he was a juvenile, he had been
arrested for sexually assaulting a twelve-year-old girl, who he believed at the time
to be sixteen years old, and that he had been incarcerated for six months. Moreover,
respondent discussed his adult criminal history, including the issues of domestic
violence, child neglect, and criminal charges for possession of marijuana. The
-5- respondent indicated to Dr. Parsons that he smoked marijuana “two times per week
or one time per day[.]”
Doctor Parsons testified that he performed cognitive testing on respondent and
determined that respondent “was of low-average intelligence.” The respondent’s
responses to the doctor’s questions about his emotions and feelings were not an
accurate representation, according to Dr. Parsons. Similarly, Dr. Parsons reported
that respondent’s responses to a drug abuse screening were also inconsistent. Doctor
Parsons stated that respondent’s responses to a bipolar disorder stress checklist
struck him as odd, and that respondent’s answers to the Minnesota Multiphasic
Personality Inventory additionally struck him as invalid. Doctor Parsons testified
that respondent’s affect was flat with no emotions; he seemed irritable, but there
were no signs of overt anger, which struck Dr. Parsons as odd given the
circumstances.
For the parent/child portion of the assessment, Dr. Parsons explained that the
children were present in the office before respondent entered the session. When
respondent entered the room where the children were, respondent came in, sat in one
of the chairs, and did not speak for a few minutes; respondent did not acknowledge
the children, according to Dr. Parsons. Doctor Parsons found it to be significant that,
after observing the children playing, respondent asked either one or both children to
come sit on his lap; however, neither child responded, and they had their backs to
-6- respondent. Doctor Parsons testified that, eventually, one of the children crawled to
respondent on her hands and knees, and respondent picked her up and put her on his
lap.
Doctor Parsons further stated that the only time the children were “engrossed
in any way” was when respondent put cartoons on his telephone. The respondent
did not ask the children any questions, and they did not respond to him until he told
them to pick up toys at the end of the session, according to Dr. Parsons. Doctor
Parsons recounted that the older child cried hysterically after respondent told the
children to pick up the toys, and no one “said good-bye or hugged[.]” He stated that
this suggested that there was a clear absence of a showing that respondent cared to
show love and affection toward his children.
As for forensic recommendations and findings, Dr. Parsons stated that he
recommended that, despite respondent having taken a parenting class while in the
ACI, he needed to retake a parenting class “because there was no evidence of a bond,
no evidence of how to interact with his children.” He additionally recommended
substance abuse treatment and a psychiatric evaluation. Moreover, Dr. Parsons
recommended that respondent sign releases of information in order to allow Silvia,
the DCYF caseworker, to monitor compliance and progress. Doctor Parsons
maintained that it was a significant risk to reunify the children with respondent due
to respondent’s substance abuse history, multiple arrests, admission of sexual assault
-7- as a teenager, incarcerations, drug crimes, allegations of domestic violence, and his
“complete lack of parenting skills with [the children].”
On cross-examination, Dr. Parsons testified that respondent was cooperative
during the evaluation, although he missed an appointment on April 26, 2018. Doctor
Parsons acknowledged that respondent had mentioned that his greatest fear was
being a bad father, his mind was focused on his children, he was concerned about
his children, and his greatest worry was losing his family. Doctor Parsons conceded
that, based on those statements, respondent cared about his children. Doctor Parsons
further acknowledged that it was possible that there was no emotional bond between
respondent and the children because they were “in a strange place[.]” However, Dr.
Parsons added that it was respondent’s responsibility “to get up, go over and sit down
with them, explain what’s happening, ask how they’re doing, make good eye
contact.”
Robert Tyler McMahon Jr.
McMahon, a DCYF child protective investigator, testified that in 2016 he was
assigned to this case when the police department informed him that there had been
a domestic incident between respondent and Brittany. McMahon testified that, when
conducting a review of the DCYF history, he noticed that respondent had been
red-flagged for criminal child abuse and neglect charges, domestic violence, and
-8- potential sex offender charges. McMahon stated that a review of the police report
from the domestic incident that he was investigating revealed that the children were
home at the time of the incident. He further stated that a no-contact order was put
in place after the domestic incident.
Following the domestic incident, McMahon went to the ACI intake service
center to interview respondent. According to McMahon, he reviewed the allegations
against respondent and advised him of the no-contact order. McMahon testified that
respondent indicated to him that respondent had family out of state, and he had no
intention of returning to the home due to the no-contact order. McMahon testified
that he ultimately indicated respondent for neglect.
Jaimee Clerc
Clerc, a DCYF social worker, testified that, on December 16, 2016, neither
Brittany nor respondent appeared in court for the scheduled arraignment on the two
neglect petitions. Clerc further stated that, at the December 16, 2016 arraignment,
she expressed concerns to the court over “[t]he domestic violence situation that was
ongoing[,] * * * that mother was still allowing father into the home, [and] that there
had been * * * another [h]ot [l]ine call very recent to the arraignment date.” Clerc
confirmed that the Family Court hearing justice had charged her with removing the
children from the home at that time.
-9- After the arraignment, Clerc, a DCYF caseworker, and the police went to the
home in Central Falls. Clerc testified that respondent answered the door and told
them that Brittany had left a few days earlier with the children to go to Florida. Clerc
noted that, pursuant to the safety plan in place, respondent was supposed to have
moved out of the home “and not have any unsupervised contact with the children.”
Three days later, on December 19, 2016, Clerc, a DCYF caseworker, and the police
went back to the house; Clerc testified that respondent allowed only police into the
home. Clerc testified that respondent reported that he did not know where Brittany
and the children were. Clerc testified that they were eventually able to locate
Brittany and the children at a homeless shelter in Lowell, Massachusetts. On
December 23, 2016, the Family Court issued an order that the children were to be
placed in the temporary custody of DCYF.
On March 9, 2017, Clerc; her supervisor, Ms. Fernandes; and respondent met
at the DCYF office, according to Clerc. Clerc testified that the purpose of the
meeting was to go over respondent’s history and the services he needed to complete
for his case planning. Clerc confirmed that the service plan goal at that time was
reunification with either one or both parents. As to the services respondent was
asked to complete, Clerc testified that he was asked to participate in batterers’
intervention, which respondent indicated he had done before, and Clerc stated that
he was not “terribly receptive to doing it again.” Additionally, Clerc testified,
- 10 - respondent was asked to complete a parent/child evaluation, some parenting
services, and possibly a substance abuse evaluation to determine if substance abuse
services were necessary.
According to Clerc, on April 25, 2017, an e-mail was sent to respondent to
schedule parenting services and visitation, which initially was to be biweekly for
respondent. Clerc testified that it was her recollection that respondent missed the
first two scheduled visitations. She also testified that respondent had been referred
to Boys Town for parenting visitation services, but that, on May 9, 2017, she was
notified by Boys Town that respondent had not started the program. The following
day—May 10, 2017—Clerc was notified that respondent was incarcerated on
charges of possession of marijuana.
Clerc also testified regarding service plans; Clerc stated she created the first
two service plans. The plans required that respondent address significant parenting
concerns and domestic violence history by complying with court orders regarding
the child abuse charges, refraining from physical punishment, completing a
parent/child evaluation, completing all recommendations in that evaluation, and
maintaining adequate housing when released from the ACI. The respondent was
also required to complete anger management and domestic violence counseling,
utilize skills learned in counseling in interactions with others, and refrain from
abusive and intimidating interactions with others.
- 11 - Clerc further testified that, although she was present in court for the
permanency hearing on November 29, 2017, respondent was not because he was still
incarcerated at the ACI. However, Clerc stated, respondent was present in court for
a review date on February 16, 2018, because he had been released from the ACI.
Clerc testified that her assignment to the case ended on February 16, 2018.
Clerc testified that respondent provided copies of certificates of completion
for classes he completed while in the ACI. On cross-examination, Clerc stated that
respondent did not complete any services that DCYF referred him to while she was
involved with the case; however, she acknowledged that some of the classes
respondent completed at the ACI complied with the service plan. She added that
DCYF wanted respondent to complete a supervised visitation program at Boys Town
for feedback on visits.
Barbara Silvia
When Clerc’s assignment ended in February 2018, Silvia was assigned to the
case. At trial, Silvia testified that there was a no-contact order in place for
respondent and the children due to domestic violence issues. She added that, despite
the no-contact order, respondent was still in contact with the children because, when
she entered the home for a visit with Brittany and the children, the children yelled
out, “Daddy, daddy.” Moreover, Silvia testified that the children were removed from
- 12 - their mother’s care and placed back into nonrelative foster care when, in February
2018, a tip from the hot line revealed that respondent was with the children in a
restaurant.
Silvia and her supervisor, Betsy Aubin, met with respondent on March 20,
2018, to go over and develop service plans. Silvia testified that she developed a new
case plan in March when she was assigned to the case. As stated in the service
plans, respondent was required to complete a psychological parent/child evaluation;
follow recommendations; participate in a visitation program at the discretion of the
children’s clinician to increase parenting skills as well as learn the skills to maintain
safety and well-being; ensure that the children’s basic needs were met, including
maintaining housing that met the minimum housing standards; and sign releases of
information to allow DCYF to communicate with providers. Furthermore, the plan
required respondent to obey laws and abide by all conditions of probation,4 utilize
the skills learned from the batterers’ intervention program, and refrain from violent
or abusive behavior. The respondent was also required to engage in both mental
health counseling and a substance abuse evaluation that included weekly random
toxicology screenings, and he was required to follow recommendations.
4 Silvia testified that she contacted respondent’s probation officer to get information on the conditions of his probation so that they could be incorporated into his services.
- 13 - As a result of Silvia’s March 2018 meeting with respondent, she completed
referrals for respondent’s services; respondent was referred to Dr. Parsons. Silvia
testified, however, that she could not make a referral to the Providence Center
because “parents need to make their own referrals for that agency[,]” although she
encouraged respondent to do so. She later testified that she did assist respondent in
enrolling at the Providence Center by sending him certified mail to verify his
address. Silvia additionally testified that, while visits had been set up between
Brittany and the children, visits had not been arranged for respondent because there
was a court order stating that visits had to be clinically recommended for the
children, which at that time had not yet occurred. Silvia stated that the order had
been modified following the parent/child evaluation, and visitation was approved by
the children’s clinician. Silvia acknowledged that she contacted authorities in
Massachusetts, where respondent’s mother lived, to determine whether the children
could be placed with her. She testified that Massachusetts declined placement of the
children with respondent’s mother.
Silvia testified that, on May 2, 2018, there was a hearing in which parent/child
sessions had been permitted at the recommendation of the children’s clinician.
Thereafter, with the clinician’s approval, monthly visits with respondent were
established. Silvia testified that the visits initially occurred at the DCYF office, but
that respondent later received a referral for the Northern Rhode Island Visitation
- 14 - Center, a program that provides “wraparound” services with the family. Silvia
explained that she considered that to be an appropriate program because “the goal
remained reunification at that time,” and respondent had completed the parent/child
evaluation with Dr. Parsons as well as reported that he was engaged in services
through the Providence Center for mental health services.
Next, Silvia testified on the third set of service plans provided for respondent,
dated September 20, 2018. Those plans closely mirrored the previous plans;
however, the requirement for a psychiatric evaluation had been added. Silvia further
testified that respondent had signed releases for DCYF to obtain his juvenile records
from Massachusetts. Silvia stated that respondent denied being registered as a sex
offender and reported that he had been involved in an incident in Massachusetts as
a minor but it was “plead [sic] out to a different charge.” Silvia testified that, on
July 26, 2018, she had a conversation with respondent on the telephone, in which
she reminded respondent that the substance abuse screenings were to be conducted
weekly; according to Silvia, respondent told her that the screenings were only being
completed on a monthly basis.
Silvia testified that, on July 27, 2018, she supervised a visit between
respondent and the children, and she described the children as hesitant and nervous
to greet respondent. She stated that respondent provided snacks and allowed the
children to play games on his telephone. Silvia confirmed that this was the first
- 15 - meeting between respondent and the children in a DCYF setting. The respondent
was accepted into the Northern Rhode Island Visitation Center program in late
August 2018, but he did not start services until October 2018, according to Silvia.
Silvia testified that the program required respondent to be engaged in mental health
counseling, and that he had discontinued his services with the Providence Center.
Thus, respondent was not able to start services until October because he had to attend
two mental health counseling services before visitation could begin.
Silvia testified that she was not aware whether respondent maintained
engagement in the mental health treatment because, on October 31, 2018, DCYF
was ordered by the court to file TPR petitions within thirty days. She also testified
that, to her knowledge, respondent did not attend the weekly toxicology screenings.
Additionally, Silvia testified that the children were doing well and that they had been
together in the same placement since their removal from the home in December
2016, except for two months when they were returned to their mother’s care.
On cross-examination, Silvia confirmed that, on February 24, 2019, she
received an e-mail from respondent asking to meet and for the names of service
providers. When asked if that was in accordance with the service plan, Silvia
responded that it was not, because the service plan goal at that time was not
reunification, due to the court order to file the TPR petitions within thirty days.
Silvia stated that, after the filing of the TPR petitions in November 2018,
- 16 - respondent’s monthly visitations remained the same. Silvia stated that, although
visits remained in place, respondent stopped visiting in November and December
2018, and he did not reengage in the visitations until after a court hearing in March
2019.
Additionally, Silvia acknowledged that respondent sent her e-mails through
July 2019 to set up visits, and respondent had invited her in October 2018 to inspect
his apartment that he had obtained for the children. Silvia testified that respondent
and the children attended a session with Dr. Parsons, which was a part of the service
plan. Although respondent attended two sessions with Northern Rhode Island
Visitation Center in October and November 2018, Silvia testified, respondent then
missed a session and never reengaged. Silvia further stated that, upon respondent
missing the session and not reengaging, he was sent a ten-day notice and ultimately
was discharged from the program in January 2019 for noncompliance.
Moreover, Silvia stated that DCYF did not receive the substance abuse
screenings that respondent reported that he was doing monthly with the Providence
Center. Regarding batterers’ intervention training, Silvia testified, respondent
completed the training prior to engaging services with her, and he submitted a copy
of the completed form. Silvia testified that she did not know whether respondent
completed mental health counseling and a psychiatric evaluation, which was a
required service respondent had to complete. Silvia acknowledged that, prior to the
- 17 - filing of the TPR petitions, respondent attended two counseling sessions at LifeSpan
after being discharged from the Providence Center.
Respondent
The respondent provided extensive testimony, both for DCYF and on his own
behalf. Beginning with his testimony for the department, respondent stated that he
had been charged with second-degree child abuse, to which he pled nolo contendere,
and no services were put in place by DCYF after that incident. He testified that he
completed batterers’ intervention as a part of his probation. At the time respondent
testified, he was still on probation for the child abuse and marijuana charges. The
respondent stated that he spent nine months in the ACI for the marijuana charge and
was released in December 2017. Furthermore, respondent acknowledged that, when
he was sixteen, he was accused of statutory rape, but pled to a lesser charge of
aggravated assault.
The respondent admitted that a domestic incident took place involving
Brittany in 2016, although he stated that no “physical argument” occurred. He also
testified that the children, along with Brittany’s older child, who is not respondent’s
child, were present in the home at the time of the incident. The respondent denied
that McMahon went over a safety plan with him in 2016 or that he had agreed to
leave the home at that time. However, respondent testified that, when DCYF told
- 18 - him to leave the home, he did. According to respondent, when the criminal case was
dismissed in 2016, he returned to the home because McMahon did not specify that
the DCYF case was separate and distinct from the criminal case.
The respondent stated that, when Clerc was looking for Brittany and the
children, he did not know where they were. He admitted that he did not file a
missing-persons report. The respondent denied that Clerc set up any services for
him, asked him to address parenting issues, or required him to undergo a parent/child
evaluation. The respondent additionally could not recall whether Clerc had asked
him to complete anger management or domestic violence counseling. Likewise,
respondent stated that Silvia did not ask him to complete anger management and
domestic violence counseling. The respondent testified that he was not told that he
had to go to substance abuse treatment, and thus he was not in substance abuse
treatment. He confirmed completing a parent/child evaluation with Dr. Parsons.
In March 2018, respondent testified, he met with Silvia and Aubin and
discussed his attendance at the Providence Center. He stated that he went to his
appointments at the Providence Center, but later switched his provider to LifeSpan.
The respondent testified that the first time he went to the Providence Center for those
services was in September 2018, because it took some time for him to get an
appointment. He testified that he attended two visits at the Northern Rhode Island
- 19 - Visitation Center, but respondent stopped attending when the plan goal changed to,
what he deemed to be, the termination of parental rights.
On cross-examination, respondent testified that, regarding his sons with
Keandra, he had visitation with them twice a week and spoke to them on the
telephone two to three times a day. The respondent stated that he was a full-time
student at the Community College of Rhode Island, where his educational focus was
general studies. Additionally, respondent testified, he obtained his GED while he
was at the ACI, and he also earned certificates of completion related to substance
abuse, job search skills, parenting skills, and counseling. The respondent
acknowledged that he continued to smoke marijuana recreationally about once a
week.
The respondent testified that he sent an e-mail in January 2018 to DCYF
inquiring about reunification. At that time, the children had been reunited with
Brittany. The respondent stated that he had also reached out to Silvia by e-mail,
asking for referrals, but that Silvia said, according to respondent, that, because
DCYF was focused on termination, referrals for services would no longer be made.
The court-appointed guardian ad litem next cross-examined respondent. The
respondent acknowledged that there were three warrants issued for his arrest when
he failed to appear in court while the child abuse charges were pending. The
respondent contended that it was not his fault that he missed the court dates, and he
- 20 - ultimately voluntarily surrendered himself. The respondent stated that the child
abuse charge stemmed from when he accidentally elbowed Keandra’s son during an
incident with Keandra.
On redirect examination by DCYF, respondent admitted that, when he was
arrested in 2017, he had a serious marijuana problem. His heavy marijuana use
began when his children were removed, according to respondent. The respondent
further admitted that there had been a substantiated Massachusetts investigation for
excessive and inappropriate discipline with the sons he shares with Keandra.
On further examination by his attorney, respondent confirmed that he was still
on probation at the time of trial for the 2017 marijuana conviction, and that he had
not violated the terms of his probation. On recross-examination by the guardian ad
litem, respondent confirmed that there was a Massachusetts order in place to “keep
separate” from Keandra and her son when respondent was charged with child abuse
and domestic simple assault in 2012.
Testifying on his own behalf, respondent stated that he did everything that
was required of him by DCYF. He stated that he had attended counseling at the
Providence Center approximately two times, but the appointments were not as
frequent as he was “comfortable with” and he needed to see a psychiatrist for
medication. He stated that it was for those reasons that he switched from the
Providence Center to LifeSpan, where he received helpful treatment. In addition,
- 21 - respondent stated, he leased an apartment with bedrooms for the children and his
two sons when they visited, and he had been going to school as well as working two
jobs, earning $250 per week. The respondent testified that he was in anger
management treatment at the Providence Center, and he went to Common Sense
Parenting, Open Doors, and Boys Town.
B
Motion to Dismiss and the Trial Justice’s Decision
When DCYF rested, counsel for respondent moved to dismiss the TPR
petitions, arguing that DCYF had failed to demonstrate by a preponderance of the
evidence that respondent was an unfit parent, that he had failed to comply with the
service plan, and that DCYF had failed to show that there was a reasonable
likelihood that the children could not be reunified with respondent. The guardian ad
litem contended that the motion to dismiss was not a valid motion; rather, it should
have been one for directed verdict. Moreover, she argued that DCYF had met its
burden of proving by clear and convincing evidence that respondent’s rights should
be terminated. The trial justice denied the motion, citing to what he deemed
compelling testimony from both Silvia and Dr. Parsons.
On October 1, 2020, the trial justice delivered a bench decision. The trial
justice stated that the decision was “based upon the most weighty, relevant and
credible evidence.” The trial justice found by clear and convincing evidence that the
- 22 - children had been neglected by respondent. This determination was based on the
fact that the children had been removed from respondent’s care for over two years,
visitation occurred only in supervised settings, and there was no evidence as to what
support respondent provided for the children. The trial justice focused on Dr.
Parsons’ testimony that respondent showed little affect and did not ask any personal
questions about the children.
Turning next to the issue of termination of parental rights, the trial justice
noted that Clerc testified that respondent was unwilling to discuss his criminal
history and unwilling to participate in batterers’ intervention and that, despite
referrals to parenting and visitation programs such as Boys Town, respondent failed
to engage in those services during Clerc’s involvement in the case. Moreover, the
trial justice found that, when Silvia was assigned to the case, she went over the
service plans with respondent in March 2018. The trial justice noted that there was
a safety plan in effect, which was violated when respondent was spotted at a
restaurant with the children, and the children were subsequently removed from
Brittany’s care. The trial justice also found that respondent did not comply with the
weekly toxicology screening requirement. The trial justice noted that Silvia was
unable to verify that respondent complied with the requirement of mental health
counseling at the Providence Center.
- 23 - The trial justice was most impressed by the testimony of Clerc and Silvia. He
stated that, when Clerc was assigned to the case, respondent did not complete any of
his service plan requirements. Although Silvia acknowledged that respondent had
completed some tasks when she was assigned to the case, he did not complete all
tasks. Silvia was especially concerned with respondent’s failure to address
substance abuse issues due to his marijuana use. The trial justice found it of note
that Dr. Parsons felt that reunification of the children with respondent presented a
serious risk, and that the doctor stated that respondent needed a parenting program.
The trial justice found that DCYF had carefully developed three service plans
to address why the children were in placement, and that respondent never fully
completed a service plan. The trial justice ultimately decided that, by clear and
convincing evidence, respondent was unfit to parent the children and had failed to
comply with and complete his service plans. In addition, the trial justice found that
it was in the best interest of the children that the parental rights of respondent be
terminated. A decree entered setting forth the trial justice’s findings of fact and
granting the neglect and TPR petitions on November 20, 2020, and respondent filed
timely notices of appeal.
- 24 - II
Standard of Review
“Natural parents have a fundamental liberty interest in the care, custody, and
management of their children.” In re Manuel P., 252 A.3d 1211, 1218 (R.I. 2021)
(quoting In re Rylee A., 233 A.3d 1040, 1051 (R.I. 2020)). That interest “does not
evaporate simply because they have not been model parents or have lost temporary
custody of their child to the [s]tate.” Id. (quoting In re Indiana M., 230 A.3d 577,
583 (R.I. 2020)). The fundamental right of parents, however, is “not absolute[.]” Id.
(quoting In re Indiana M., 230 A.3d at 586). The Family Court justice must find
that the parent is unfit before terminating a parent’s rights. E.g., In re Violet G., 212
A.3d 160, 166 (R.I. 2019). “Given the drastic and irreversible nature of a termination
of parental rights decree, ‘the right to due process requires that the state support its
allegations by clear and convincing evidence.’” In re Rylee A., 233 A.3d at 1051
(quoting In re Violet G., 212 A.3d at 166).
“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 at 166
(quoting In re Amiah P., 54 A.3d 446, 451 (R.I. 2012)). Those findings “are entitled
to great weight, and this Court will not disturb them unless they are clearly wrong
- 25 - or the trial justice overlooked or misconceived material evidence.” Id. (quoting In re
Amiah P., 54 A.3d at 451).
III
Discussion
A
Parental Fitness
On appeal, respondent argues that the trial justice erred in finding that he was
unfit. In particular, respondent takes issue with the trial justice’s finding that he
“failed to comply, and complete his case plans.” The respondent avers that he had
substantially complied with the service plans, and a finding of unfitness was “at
odds” with the evidence presented. The respondent asserts that DCYF sought “to
minimize the worth of the programs and classes he attended while incarcerated.”
DCYF argues that a finding of unfitness was supported by the evidence in that
respondent “failed to complete a number of [service] plan requirements.” Similarly,
the guardian ad litem contends that the evidence supported the trial justice’s findings
that respondent was unfit. The guardian ad litem further argues that respondent was
unable to address his own case plan needs, “which resulted in a lack of cooperation
with the array of services that the Department attempted to provide for
[respondent’s] family to facilitate reunification.”
- 26 - Before terminating parental rights, pursuant to § 15-7-7(a)(3), the trial justice
must find by clear and convincing evidence that the parent is unfit. Specifically, the
statute states that a trial justice shall terminate any and all legal rights of the parent
to the children if the trial justice finds by clear and convincing evidence that
“[t]he 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[.]” Section 15-7-7(a)(3).
“This Court has said that the ‘refusal to cooperate with the objectives of the case
plans constitutes clear and convincing evidence of a lack of interest in the child[ren]
and, as such, could properly serve as a basis for a finding of parental unfitness.’” In
re Elana W., 249 A.3d 287, 294 (R.I. 2021) (brackets omitted) (quoting In re James
H., 181 A.3d 19, 27 (R.I. 2018)).
In finding respondent unfit, the trial justice found by clear and convincing
evidence that the children had been in the care of DCYF for a period in excess of
twelve months—since February 2018. Moreover, his determination rested on
respondent’s failure to comply with several requirements and/or services that DCYF
included in the service plans, such as those related to parenting skills, violence
prevention, and substance abuse. The trial justice found that, while Clerc was
- 27 - assigned to the case, until February 2018, respondent failed to complete any of the
services to which he had been referred. The trial justice explicitly stated that Clerc
referred respondent “to the Boys Town Visitation and Parenting Services
program[,]” in which respondent did not engage. We view the trial justice’s findings
as supported by legal and competent evidence, namely, the testimony provided by
Clerc, Silvia, and Dr. Parsons. Additionally, the trial justice found that respondent
was tasked with completing weekly toxicology screenings; however, respondent
admitted to completing them only monthly. While we acknowledge respondent’s
efforts during his incarceration, we are also of the opinion that respondent failed to
proactively continue engaging in the required services upon his release from the
ACI.
Accordingly, our review of the record convinces us that legally competent
evidence exists to support the trial justice’s findings as to parental unfitness.
Reasonable Efforts to Reunify
The respondent further argues that his conduct and DCYF’s effort in
providing reasonable visitation were relevant factors in determining whether DCYF
made reasonable efforts toward reunification. The respondent submits that, despite
his completing a parent/child evaluation, DCYF filed the TPR petitions instead of
making referrals consistent with Dr. Parsons’ recommendations. The respondent
- 28 - further contends that suspending visitation until it was approved by the children’s
clinician was not consistent with DCYF’s obligation “to offer services to strengthen
the parent-child relationship and to preserve the bond.” Again, respondent notes that
he substantially complied with all service plan tasks.
DCYF counters by arguing that the department cannot be faulted for a lack of
visits when the Family Court was justified in conditioning visitation on the
recommendations from the children’s clinician and the outcome of Dr. Parsons’
evaluation. Moreover, DCYF maintains that the Family Court was aware of
respondent’s “history of domestic violence and drug use.” DCYF further asserts that
the Family Court correctly found that the service plans were carefully developed,
and respondent never fully completed a plan. The guardian ad litem also argues that
the record amply supports the trial justice’s findings of 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[ren]’s removal from the parent’s care.’” In re Gelvin
B., 251 A.3d 503, 510 (R.I. 2021) (quoting In re Violet G., 212 A.3d at 167). We
have held that DCYF does not need to “demonstrate that it took extraordinary
efforts”; rather, DCYF must “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 Violet G., 212 A.3d at 167). This Court has stated that
- 29 - reasonable efforts is “a subjective standard subject to a case-by-case analysis, taking
into account, among other things, the conduct and cooperation of the parents.” In re
Jose Luis R.H., 968 A.2d 875, 882 (R.I. 2009) (quoting In re Natalya C., 946 A.2d
198, 203 (R.I. 2008)). We have previously held that reasonable efforts include
“suitable arrangements for visitation[.]” Id. (quoting In re Nathan F., 762 A.2d 1193,
1195 (R.I. 2000)).
In deciding this issue, the trial justice found that DCYF carefully developed
three service plans, and respondent never completed a plan. As to visitation, we note
that Clerc testified that, until May 2017, visitation was biweekly; however,
respondent missed the first two visits and never contacted Boys Town to engage in
parenting services and supervised visitation. Additionally, Dr. Parsons reported that,
during the parent/child evaluation, respondent made little effort to engage with the
children. Silvia also testified to setting up visitation services at the Northern Rhode
Island Visitation Center, with which respondent failed to comply until October 2018.
Silvia further testified that respondent was ultimately discharged from the visitation
center in January 2019 due to missing sessions and for noncompliance with the
program. The trial justice found the testimony of Clerc, Silvia, and Dr. Parsons to
be “clear, convincing, credible, and compelling.” This Court has previously stated
that “[s]uch a finding is entitled to ‘a substantial amount of deference due to the fact
that the trial justice has had an opportunity to appraise witness demeanor and to take
- 30 - into account other realities that cannot be grasped from a reading of a cold record.’”
In re Gelvin B., 251 A.3d at 510 (deletion omitted) (quoting Tsonos v. Tsonos, 222
A.3d 927, 934 (R.I. 2019)). We similarly are of the opinion that respondent’s
argument regarding conditioned visitation is unpersuasive. The conditioned
visitation was ordered by the Family Court and was not a discretionary decision
made by DCYF. See In re Kristen B., 558 A.2d 200, 204 (R.I. 1989) (“The
suspensions of visitation were always court ordered and not discretionary with
DCF.”).
We therefore decline to declare the conclusion made by the trial justice on the
issue of reasonable efforts to reunify as clearly erroneous.
C
Due Process
As his final argument, respondent contends that the Family Court made
conclusive merit findings prior to the completion of the trial that were “prejudicial
and violated fundamental notions of fairness and due process, both procedural and
substantive, under the Fifth Amendment to the United States Constitution.” The
respondent is specifically referencing the permanency hearing conducted by the trial
justice on September 14, 2020, wherein DCYF was seeking approval for a service
plan change to adoption. Altogether, respondent maintains that the trial justice’s
“prejudicial” ruling on reasonable efforts and determination that the children could
- 31 - not be safely reunited with respondent “made the resulting ‘Decision’ on termination
a foregone conclusion.” DCYF argues that the Family Court was statutorily required
to conduct a permanency hearing within a twelve-month period.
We likewise view respondent’s argument as unavailing. Pursuant to
G.L. 1956 § 40-11-12.1(a), DCYF is required to file a motion requesting a
permanency hearing on the status of the child within a twelve-month period after a
child is placed in the care of DCYF. When determining the order of permanency,
the court considers factors that include:
“(1) The appropriateness of the department’s plan for service to the child and parent; “(2) What services have been offered to strengthen and reunite the family; “(3) Where return home of the child is not likely, what efforts have been or should be made to evaluate or plan for other modes of care; “(4) Any further efforts that have been, or will be made, to promote the best interests of the child; and “(5) The child’s health and safety shall be the paramount concern.” Section 40-11-12.1(d)(1)–(5).
Under § 40-11-12.2(a), at the permanency hearing, DCYF must present a written
reunification and/or permanency plan to the court for approval. The plan must
include, among other options, whether and, if applicable, when the child will be
placed for adoption. Section 40-11-12.2(a).
At the conclusion of the permanency hearing in the present case, the trial
justice, in approving the service plan, found that DCYF had exercised reasonable
- 32 - efforts to reunite the children with respondent, which is a factor that the trial justice
was to consider. See § 40-11-12.1(d). He further noted that the TPR petitions, filed
in November 2018, were pending and were still being heard by the court at that time.
The trial justice stated, “The [c]ourt shall continue with hearing the TPR and make
a decision at the end of the evidence being completed.” We view no error in the
permanency hearing conducted by the trial justice and the subsequent decision
thereon, as it was statutorily required of the trial justice upon motion by DCYF.
IV
Conclusion
For the reasons stated herein, we affirm the decree of the Family Court
terminating the respondent’s parental rights with respect to his children, Jae’La G.
and Jae’Ona G. The papers may be remanded to the Family Court.
- 33 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET In re Jae’La G. In re Jae’Ona G. Title of Case In re Jae’Ona G. In re Jae’La G. No. 2021-23-Appeal. (PNG 16-612)
No. 2021-24-Appeal. (PNG 16-613) Case Number No. 2021-25-Appeal. (P 18-5730)
No. 2021-26-Appeal. (P 18-5729)
Date Opinion Filed June 17, 2022
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Chief Justice Paul A. Suttell
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 Attorney(s) on Appeal Andrew J. Johnson Court Appointed Special Advocate For Respondent: Robert J. Caron, Esq.
SU-CMS-02A (revised June 2020)