In re Marcella

834 A.2d 717, 2003 R.I. LEXIS 200, 2003 WL 22700774
CourtSupreme Court of Rhode Island
DecidedNovember 14, 2003
DocketNo. 2001-471-Appeal
StatusPublished
Cited by4 cases

This text of 834 A.2d 717 (In re Marcella) 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 Marcella, 834 A.2d 717, 2003 R.I. LEXIS 200, 2003 WL 22700774 (R.I. 2003).

Opinion

OPINION

PER CURIAM.

This case came before the Supreme Court on October 7, 2003, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. The respondent (respondent or mother) has appealed from a Family Court judgment terminating her parental rights to her daughter Marcella, who was born on December 30, 1990. After hearing the arguments of counsel and reviewing the memoranda of the parties, we are satisfied that cause has not been shown. Accordingly, we shall decide the appeal at this time.

Facts and Travel

The record discloses that Marcella is one of mother’s six children. In 1996, New York social services contacted the Depart[718]*718ment of Children, Youth and Families (DCYF) to request a home study concerning visitation with two of mother’s children who were in foster care in New York. At that time, mother already had voluntarily placed her son Ivan in a psychiatric hospital because of his behavioral problems; however, her daughters Leonora R., Ka-tira and Marcella were residing with her in Providence, Rhode Island. Based upon mother’s recent hospitalization for opiate withdrawal and her mental health problems, DCYF determined that mother was overwhelmed with caring for the children currently in the home and, consequently, denied the New York visitation request. DCYF created a case plan aimed at reunifying Ivan with mother and assisting her with the three children currently in her care. However, despite these case plans and referrals to drug treatment programs, the three children were removed from mother’s care in March 1999 after mother’s substance abuse relapse.

The evidence discloses that DCYF prepared numerous case plans, each with the goal of reunifying mother with her children. The objective of each plan was to help mother develop and maintain a substance-free lifestyle. Testimony of several counselors from various treatment programs establish that mother’s periods of sobriety were sporadic and brief. At times, mother would disappear for several weeks or months, only to be discovered at the Adult Correctional Institutions or off on various road trips in an attempt to “straighten out.” Despite DCYF’s numerous attempts to assist mother with her parenting skills, mental health issues and substance abuse problems, mother failed to complete any of her case plans. Consequently, in July 2000, DCYF filed a petition seeking the termination of her parental rights to Ivan, Leonora R. and Marcella.1

At the time of trial, Marcella was in DCYF custody and had been living in a pre-adoptive home with her paternal aunt for approximately one year. Her aunt testified that Marcella was adjusting well, that her grades were improving, and that she wished to adopt the child.

In a written decision, the trial justice found that DCYF had proven by clear and convincing evidence that: (1) Marcella had been in the care and custody of DCYF for more than twelve months, (2) that despite periods of sobriety, mother was “far less than compliant” with the numerous treatment plans that DCYF arranged for her, and (3) despite some progress at the time of trial, mother was unfit. Accordingly, having found mother to be unfit concerning all three children, the trial justice determined that termination of mother’s parental rights to Marcella was in Marcella’s best interests.

Standard of Review

When reviewing a termination of parental rights decree, “this Court examines the record to determine whether legally competent evidence exists to support the findings of the trial justice.” In re Brianna D., 798 A.2d 413, 414 (R.I.2002) (per curiam) (citing In re Kristen B., 558 A.2d 200, 205 (R.I.1989)). In examining the record, the findings of a trial justice are entitled to great weight and will not be disturbed unless the trial justice overlooked or misconceived material evidence or was otherwise clearly wrong. Kristen B., 558 A.2d at 204. To protect a parent’s fundamental right to the custody and care of his or her children, this Court has determined that a finding of unfitness must be made before a decree terminating parental rights may issue. In re Kristina [719]*719L., 520 A2d 574, 580 (R.I.1987). After a finding of unfitness, the best interest of the child outweighs all other considerations. Kristen B., 558 A.2d at 203. The state’s allegations to support termination must be proven by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599, 603 (1982).

Discussion

On appeal, respondent contends that the trial justice erred in finding her unfit because at the time of the hearing she had been sober for three months, had regularly visited her children, had obtained secure housing and was in a healthy relationship. Mother’s argument is based upon her assertion that under In re Ann Marie, 504 A.2d 464 (R.I.1986), “unfitness must exist at the time of the termination hearing,” and consequently, the trial justice erred when he “failed to acknowledge” mother’s accomplishments in the months before trial. (Emphasis added.)

The respondent’s argument is unpersuasive. Although she correctly asserts that evidence of sobriety at the time of trial should be admitted and considered by the trial justice, her assertion that such progress will necessitate denial of the termination is incorrect. In a series of opinions, this Court has upheld numerous termination decisions despite evidence of sobriety at the time of trial. In re Crystal C., 765 A.2d 842 (R.I.2001) (per curiam); In re Maya C., 764 A.2d 116 (R.I.2001) (per curiam); In re Erie K., 756 A.2d 769 (R.I. 2000) (per curiam); In re Kadijah A., 749 A.2d 587 (R.I.2000) (per curiam); In re Jovanny R., 725 A.2d 891 (R.I.1998) (mem). In fact, several of these opinions upheld a finding of unfitness when the parent had remained sober far longer than respondent’s three months of sobriety. See Crystal C., 765 A.2d at 843 (mother testified that she had been sober for one year before trial); Maya C., 764 A.2d at 118 (record revealed that at the time of trial mother had been in treatment for more than one year and mother testified that she had been sober for eight to nine months).

In this case, the trial justice properly admitted the testimony of Mary Jane Boucher (Boucher), a drug counselor at the CODAC program. Boucher testified that she had been treating mother from December 2000 through the time of trial in February 2001. She indicated that mother’s treatment consisted of weekly self-reporting, individualized therapy and random urine screens. Mother was compliant with treatment during the six weeks preceding trial; however, Boucher was unable to predict how long mother would have to continue treatment for her substance abuse problems.

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Bluebook (online)
834 A.2d 717, 2003 R.I. LEXIS 200, 2003 WL 22700774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marcella-ri-2003.