In re Jonathan P.

819 A.2d 198, 2003 R.I. LEXIS 87, 2003 WL 1818186
CourtSupreme Court of Rhode Island
DecidedApril 8, 2003
DocketNo. 2001-65-Appeal
StatusPublished
Cited by2 cases

This text of 819 A.2d 198 (In re Jonathan P.) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jonathan P., 819 A.2d 198, 2003 R.I. LEXIS 87, 2003 WL 1818186 (R.I. 2003).

Opinion

OPINION

PER CURIAM.

The respondent, Julio A. (Julio or respondent), appeals from a Family Court decree terminating his parental rights to his two children, Jonathan and Mercedes. This case came before the Supreme Court for oral arguments on January 22, 2003, following an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. Having reviewed the record and the parties’ briefs, and having considered the oral arguments, we are of the opinion that cause has not been shown and proceed to decide the appeal at this time. For the reasons indicated below, we affirm the decree of the Family Court justice.

On March 31, 1999, the Department of Children, Youth and Families (DCYF or department) acquired temporary custody of Jonathan and Mercedes after their mother sought psychiatric treatment at a hospital and claimed that she no longer could provide care for her children. The mother later voluntarily terminated her parental rights. At that time, Jonathan was just over one year old and Mercedes was barely two months old. Julio, the children’s natural father, contacted the department one week later and set up a meeting to discuss his children’s situation. Representatives of DCYF explored Julio’s criminal and DCYF background and provided a psychological examination, which Julio voluntarily attended.

The Bureau of Criminal Information background check revealed charges including drug possession, larceny, domestic violence and sexual assault. In fact, Julio pled guilty to a charge of assault against Jonathan’s and Mercedes’s mother. A DCYF background check indicated that Julio was the subject of an investigation for child molestation. The psychological examination resulted in a diagnosis of a tendency towards substance and physical abuse, borderline intellectual functioning and a personality disorder with paranoid and self-defeating features.

A representative of the department formulated three case plans for Julio, all with the ultimate goal of reunification. Those case plans originated on May 28, 1999, November 18, 1999, and May 18, 2000, and listed the following objectives for Julio: (1) maintain a substance-free lifestyle, (2) provide a safe' and stable home for himself and his children, (3) avoid reoffending, (4) cooperate with visitation plans, and (5) prevent domestic disputes or violence from affecting the children. Julio signed the first of these three case plans. The department prepared the last two case plans when Julio was in prison and it sent the plans to him, but Julio never returned them. These case plans called for substance abuse and domestic violence counseling and required Julio to follow the recommendations resulting from his psychiatric evaluation. Julio failed to adhere to many of the conditions and stipulations of all three case plans.

In June 1999, Julio was arrested and charged for an incident that occurred in Massachusetts in 1994. On October 2, 2000, he pleaded guilty to the charges relating to that arrest: four counts of indecent assault and battery on a child under fourteen and four counts of rape of a child [200]*200under sixteen. He was sentenced to five years in prison and ten years of probation upon release. In October 1999, he admitted that he neglected his children. Exactly one year after his arrest, Julio received service of a summons concerning petitions for termination of his parental rights to Jonathan and Mercedes.

The petitions alleged parental unfitness pursuant to G.L.1956 § 15 — 7—7(a)(2)(i) (incarceration), § 15-7-7(a)(2)(ii) (cruel or abusive conduct), § 15-7-7(a)(2)(iii) (chronic substance abuse), § 15-7-7(a)(3) (child in DCYF custody for twelve months), and § 15-7-7(a)(4) (abandonment). A trial commenced on November 17, 2000. Julio was not present because of his imprisonment.

Before trial, Julio’s counsel filed a motion for a continuance, a motion for an independent psychological evaluation, and a motion to take his own deposition. The trial justice denied Julio’s motion for a continuance1 and continued the motion for an independent psychological examination until after the state’s psychologist testified. The trial justice also denied Julio’s motion for a deposition but permitted him to submit an affidavit at the close of the state’s case. Julio, however, was not permitted to review the transcripts reflecting what had transpired in his absence. After the state’s psychologist testified, the trial justice found no bias and denied Julio’s motion for an independent examination. On November 22, 2000, the trial justice determined that there was clear and convincing evidence that Julio was unfit and terminated his parental rights. A final decree was entered on December 15, 2000. The respondent timely appealed.

When reviewing a Family Court decree terminating a parent’s rights, we accord the trial justice’s findings great weight and will not disturb those findings unless they are clearly wrong or unless the trial justice overlooked or misconceived material evidence. See In re Jason L., 810 A.2d 765, 767 (R.I.2002) (per curiam). “Consequently, we examine the record to determine whether any legally competent evidence exists to support the trial justice’s findings.” Id. (quoting In re Chaselle S., 798 A.2d 892, 895 (R.I.2002)).

The respondent contends that (1) the trial justice failed to afford him a meaningful opportunity to present evidence to the Family Court because he had no access to transcripts before making his affidavit and, besides the lack of access to the transcripts, he had no opportunity to consult with his attorney before cross-examination of the state’s witnesses; and (2) the trial justice erred in refusing to grant his motion for an independent psychological evaluation because Julio believed that the finding of unfitness rested in part on his psychological condition.

We turn to In re Brandon A., 769 A.2d 586 (R.I.2001), for guidance on respondent’s first contention. In that case we concluded that a parent who is incarcerated in another state may substitute personal appearance with appearance of counsel when a personal appearance is impossible. Id. at 589. When it is not possible, “the Family Court justice should ascertain whether — in light of due-process considerations — alternative means of participation in the proceedings can be afforded to a respondent.” Id. at 591. This Court indicated that participation by “deposition, telephone, or with the help of transcripts and communication with counsel” are all [201]*201acceptable forms of participation that protect respondent’s due process rights. Id. Two months later, this Court interpreted In re Brandon A to mean that “an out-of-state incarcerated parent should be given an opportunity for reasonable participation * * *." In re Ginger G., 775 A.2d 255, 258 (R.I.2001).

The prison in which Julio was incarcerated would have allowed a deposition or would have allowed Julio a once-a-day, thirty-minute telephone conversation with his attorney. In response to Julio’s motion for a deposition, the trial justice stated:

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Bluebook (online)
819 A.2d 198, 2003 R.I. LEXIS 87, 2003 WL 1818186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jonathan-p-ri-2003.