June 2, 2023 Supreme Court
No. 2021-336-Appeal. (P 19-3074)
In re R.M. :
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, Luis M., appeals
from a Family Court decree terminating his parental rights to his daughter, R.M.,
born on March 25, 2018, pursuant to G.L. 1956 § 15-7-7(a)(2)(i) and (a)(3). The
decree also terminated the parental rights of the child’s mother, Esmeralda M.1 She
has a separate appeal from the decree pending before this Court.
This appeal 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 appeal
may be decided without further briefing or argument. For the reasons set forth in
this opinion, we affirm the decree of the Family Court.
1 To protect the identity of any children, in this opinion, we will use the children’s initials and the biological parents’ first names and last initials only. No disrespect is intended.
-1- I
Facts and Travel
When R.M. was born in 2018, respondent and Esmeralda were already
involved with the Department of Children, Youth, and Families. Esmeralda had four
other children who were the subjects of existing petitions for termination of parental
rights. See In re Manuel P., 252 A.3d 1211 (R.I. 2021). The respondent is the father
of one of those children, V.M.2 When DCYF was notified that Esmeralda was seen
with an infant on May 11, 2018, it filed an ex parte neglect petition and was granted
temporary custody of R.M. DCYF developed two case plans for respondent with a
goal of reunification. On February 5, 2019, however, respondent was arrested for
substance-related crimes and was incarcerated until February 17, 2021. During
some of that time period, Esmeralda was committed to Eleanor Slater Hospital for
mental health issues.
On June 10, 2019, DCYF filed a petition to terminate the parental rights (the
TPR petition) of respondent and Esmeralda pursuant to G.L. 1956 § 15-7-7(a)(2)(i)
and (a)(3). The TPR petition against respondent was based on his incarceration and
the child’s placement in the care of DCYF for more than twelve months. DCYF
alleged that there was not a substantial probability that the child could be returned
2 The respondent consented to an open adoption for V.M. on September 11, 2018. In re Manuel P., 252 A.3d 1211, 1214 n.5 (R.I. 2021).
-2- to respondent’s care within a reasonable period of time. Thereafter, on July 9, 2019,
the Family Court suspended visitation of both respondent and Esmeralda.
A trial on the TPR petition was held on April 5, 6, and 7, 2021.3 DCYF
presented testimony from Kimberly Marino, a social caseworker for DCYF;
Esmeralda; Jonny Lubo, a child protective investigator; Amanda Grandchamp, a
clinician for the Families Together program; and Jane Ahles, a casework supervisor
for DCYF. The respondent was called as a witness by DCYF, and he also testified
on his own behalf. In addition, the trial justice considered the two case plans
prepared for respondent, the Family Court Order regarding suspension of visitation,
judgments of conviction against respondent, a protective order granted in favor of
respondent against Esmeralda, and an affidavit supporting respondent’s request for
the protective order. We summarize the pertinent testimony of the various witnesses
as follows.
Kimberly Marino
DCYF first presented testimony from Kimberly Marino, a social caseworker
for DCYF. She stated that she first became involved with Esmeralda and her
children around April 2015. Marino testified that she was alerted that Esmeralda
was seen with an infant on May 11, 2018. Because a TPR petition had already been
3 In his written decision, the trial justice noted that this case was merged with the original neglect petition.
-3- filed concerning Esmeralda’s four other children, Marino indicated that a neglect
petition was filed immediately, and R.M. was placed into DCYF custody.
Marino testified that she immediately began to develop a case plan for R.M.
as it related to Esmeralda and respondent. Marino identified case plans for
respondent dated June 14, 2018, and December 26, 2018. Marino stated that her
case-planning concerns for respondent included his “history of criminal, violent
behavior, substance use, and parenting.” She indicated that the objectives for the
case plans relating to R.M. were developed from respondent’s case plan for V.M.
She stated that she went over the June case plan with respondent and provided him
with a copy. She testified that he never signed that plan because “he wanted to go
over it with his attorney first.” She could not recall meeting with respondent to go
over the second case plan, but she testified that the concerns remained the same.
The respondent’s case plans state that, based on his self-report and statements
made regarding selling drugs in September 2018, “[respondent] will accept services
to address documented history of substance use and will live a life free of drugs,
alcohol and other illegal substances.” The plans also required respondent to engage
in substance-abuse evaluation openly and honestly and engage in toxicology screens
at Family Court or with an outside provider.
Regarding substance abuse, Marino testified that previous documentation
from the Adult Correctional Institutions “had very specific recommendations” about
-4- respondent’s substance abuse. Further, Marino claimed that respondent,
respondent’s mother, and Esmeralda had also indicated that he abused substances.
Despite this, according to Marino, respondent stated that “he was clean” at the time.
Marino provided conflicting testimony regarding referrals and court orders to
address respondent’s suspected substance abuse. On direct examination, Marino
testified that there was an order for respondent to obtain random substance-abuse
screens. However, in response to the court’s inquiry, Marino testified that no orders
or referrals to substance-abuse screenings ever occurred with respect to R.M.’s case.
Instead, she indicated that DCYF was monitoring prior referrals for respondent and
Esmeralda.
Marino testified that respondent never provided any documentation of
substance-abuse treatment. She stated that respondent did provide a drug screen to
Roger Williams Hospital, but that DCYF never received the results. She recalled a
letter sent from a clinician at Roger Williams Hospital on July 3, 2018, that stated
respondent did not qualify for an evaluation for substance use.
To address parenting issues, Marino testified that respondent and Esmeralda
were referred to supervised visitations with the Families Together program.
Initially, she said, respondent and Esmeralda were referred together, but eventually,
respondent was re-referred individually. Marino stated that she was present for the
first visitation with respondent and Esmeralda. She recalled that respondent did a
-5- good job taking the baby when Esmeralda needed a break. She was not present for
other visitations, but she testified that the Families Together program had informed
her that respondent was not “parenting properly.”
Marino also testified about other interactions she had with Esmeralda and
respondent. Marino testified that DCYF was primarily “concerned” about
Esmeralda’s “mental health.” In particular, she testified regarding Esmeralda’s
mercurial conduct at the DCYF office. She also recalled Esmeralda missing
visitations because of hospitalizations and criminal charges. According to Marino,
because of Esmeralda’s ongoing mental health issues and “erratic behavior,” DCYF
pressed respondent to obtain a protective order against her. As for respondent,
Marino acknowledged that respondent’s visitations were “consistent.” Marino
confirmed that respondent had made positive progress with overcoming parenting
barriers. Still, Marino denied that respondent ever successfully completed the case
plan goals.
Marino indicated that she learned that respondent had been arrested in
February 2019. She also stated that she had no contact with respondent from January
2019 until June 2019, when the petition to terminate respondent’s parental rights
was filed. Marino testified that she filed a motion to suspend visitations in April
2019, which was granted on July 9, 2019.
-6- Marino testified about R.M.’s placement as well. When R.M. was first
removed from the parents’ custody, she was placed in a foster home with her
siblings. Marino stated that she visited the foster home and observed R.M. with her
foster family at least once a month until 2019, when Marino was taken off the case.
She observed that, at the time, R.M. was bonded to the home and that she “fit right
in” with her siblings. At trial, she also indicated that R.M.’s foster home is a
pre-adoptive home.
Esmeralda
DCYF also presented testimony from Esmeralda. Esmeralda testified that she
gave birth to R.M. on March 25, 2018, in the Dominican Republic. She admitted
that she did not inform DCYF that she was pregnant or that she gave birth.
Esmeralda also conceded that she kept the pregnancy a secret because she “didn’t
want [DCYF] removing [her] child.” Esmeralda further testified that respondent
was present for all the visitations she attended until October 2018, when respondent
filed a restraining order against her. She denied arguing with respondent during their
visitations with R.M.
Respondent
The respondent testified extensively, first in DCYF’s case-in-chief and then
on his own behalf. He testified that he was present on March 25, 2018, when R.M.
-7- was born in the Dominican Republic. He confirmed that he and Esmeralda traveled
to the Dominican Republic to circumvent DCYF.
Regarding the case plans, respondent acknowledged receiving a copy of the
first case plan. The respondent maintained that he tried to cooperate with DCYF’s
services and recommendations. He denied that DCYF ever asked him to do random
drug screenings. Nevertheless, he testified that he attempted to obtain screenings
from two different providers. The respondent claimed that he attempted to obtain a
screening from CODAC Behavioral Healthcare, assuming it was affiliated with
DCYF, but CODAC personnel told him that they could not perform the screening
because he was not a client. After notifying Ahles and Marino, respondent said that
he went to Roger Williams Hospital for an assessment on his own accord. He
testified that Roger Williams Hospital deemed it unnecessary to continue treatment
and that the hospital sent a letter to DCYF relaying the same. The respondent stated
that he tried to communicate with DCYF after visiting Roger Williams Hospital, but
that he never heard anything back. He stated that he left voicemails for both Ahles
and Marino. He also testified that, around the same time, he had provided a sample
to Job Corps for a new job he was starting; however, he stated that Job Corps does
not keep such records.
The respondent maintained that he does not have a drug problem. He testified
that he had only smoked marijuana a few times when he was seventeen and that “it
-8- wasn’t for [him].” He also denied having any mental health problems. Contrary to
his case plan and testimony from Grandchamp, he denied ever telling Grandchamp
that he sold drugs.
The respondent also testified that he engaged with the Families Together
program and recalled the staff praising his work. He testified that he attended
approximately six meetings with the Families Together program and that he was on
time for those meetings. He also stated that, when he held R.M. during the
visitations, she behaved as a normal six- to eight-month-old would. He said that
during the visitations he was either holding R.M., watching her play, or otherwise
engaging with her. He testified that R.M. appeared happy and that he was able to
soothe her with a teething device when she was fussy. He also described
Grandchamp’s demeanor as “positive” after she observed him change R.M.’s diaper.
The respondent also testified that he expressed to Grandchamp that he “would love
to learn as much as [he] can to be the best father [he] could be” and to develop more
patience.
The respondent testified that, at the time of the visitations, he and Esmeralda
had not been in a relationship for “[a]bout a year.” He also indicated that during one
of the visitations, he became frustrated with Esmeralda trying to provoke him. He
testified that DCYF told him that it was in his and R.M.’s best interests for him to
obtain a restraining order against Esmeralda. The respondent also stated that there
-9- were additional issues with Esmeralda that prompted him to request a restraining
order. After the restraining order was entered, respondent testified, he did not have
contact with Esmeralda.
The respondent acknowledged that he was arrested for possession and
distribution of a controlled substance on or about February 5, 2019, and that it was
“pretty close” to a visitation with R.M. He confirmed that he ultimately pled guilty
to possession of and conspiracy to distribute heroin and to violating the terms of his
probation stemming from a prior conviction for second-degree robbery.
The respondent claimed to have continued his efforts to reunify once he was
incarcerated. He said that he attempted to participate in a parenting program while
he was incarcerated but he was not able to obtain visitations. The respondent also
stated that he attended the Providence Center’s four-month substance-abuse
program, but he did not present any documentation to support this testimony. The
respondent asserted that, in late 2019 and early 2020, he took five parenting classes
at the ACI before the classes were canceled due to the COVID-19 pandemic. The
record, however, does not contain any documentation to support this claim.
The respondent also denied ever telling DCYF that he did not want R.M. to
be brought to the ACI for visitations. He maintained that there should have been no
issue with V.M. or R.M. visiting at the ACI. In terms of contracting or spreading
- 10 - disease, he stated that the facilities were kept very clean and that his daughters would
have been at no greater risk than they would have been at a daycare or DCYF.
At the time of trial, respondent testified that he had a full-time job with Cardi’s
Furniture, where he earned between $700 and $800 per week. He also testified that,
at the time, he was living in a four-bedroom home with his mother and grandmother.
The respondent also testified about his probation terms, which required him to
provide “[c]lean urine,” maintain employment, and maintain lawful behavior. He
further testified that he does not spend time in “bad company” anymore, hoped that
he can be a productive member of society, and “God willing, be able to raise [his]
daughter.”
Amanda Grandchamp
DCYF also presented testimony from Amanda Grandchamp, a family
clinician with the Families Together program. Grandchamp testified that, from
August to October 2018, respondent and Esmeralda were referred to the Families
Together program for visitation, as provided in the case plan, “to gain knowledge of
different levels of child development, appropriate discipline, and boundary setting.”
Grandchamp also testified that, for “safety concerns,” the first few visitations were
held at the Providence DCYF office.
She stated that an initial intake with respondent and Esmeralda took place on
August 14, 2018. Grandchamp testified that, when she inquired of the parents’
- 11 - respective goals for the Families Together program, respondent said that he wanted
to work on patience. When asked about their relationship, respondent told
Grandchamp that he and Esmeralda had been in a relationship for six years, but at
that point, had been separated for a few months. Grandchamp also testified that
Esmeralda said that respondent’s family sold drugs. According to Grandchamp,
respondent replied to this by saying, “[w]e all sell drugs.”
Grandchamp testified that, after the initial intake, she supervised six
visitations with R.M. between August and October 2018. She stated that respondent
attended two visitations by himself in September and October 2018. Grandchamp
testified that Esmeralda had missed these two appointments because she was
“psychiatrically hospitalized.” During these visitations, Grandchamp confirmed that
respondent appeared to be sober, although, she felt, it was not clear whether
respondent was “of sound mind,” and so she recommended a psychological
evaluation.
According to Grandchamp, Esmeralda’s behavior was erratic and provocative
during the visitations. Except when Esmeralda was attempting to provoke
respondent, Grandchamp testified, there was minimal communication between the
two. Grandchamp stated that respondent was frequently frustrated with Esmeralda
and expressed that he thought it was a waste of time to meet with her. Both parents,
according to Grandchamp, would blame each other for their situation. In particular,
- 12 - respondent blamed Esmeralda’s involvement with the other children that opened
R.M.’s case to DCYF.
Grandchamp testified that Esmeralda’s behavior was “never consistent” and
that “[h]er mood changed frequently.” Grandchamp also recalled several instances
where Esmeralda behaved inappropriately with R.M. Because of her observations,
Grandchamp testified, she had concerns about respondent’s ability to protect the
baby. In particular, she testified that, when Esmeralda’s behavior appeared unstable,
she would sometimes “just take the baby from [respondent, and] he didn’t object.”
Grandchamp also testified that she was concerned with respondent’s ability to
parent. She noted that respondent struggled to change R.M.’s diaper and clean the
child properly. She also expressed concern about respondent’s knowledge of the
baby’s developmental stages because he would bring toys that were designed for
older children and hold the baby incorrectly. Further, Grandchamp testified that she
did not observe any bonding between respondent and the child.
Grandchamp testified that she could not recall discussing substance-abuse
screenings or evaluations with respondent. In Grandchamp’s final evaluation with
respondent, she recommended that he engage in another parenting program without
- 13 - Jane Ahles
DCYF also called Jane Ahles, the casework supervisor DCYF assigned to
R.M.’s case. Ahles testified that she became involved with Esmeralda’s children for
a period in 2014 and then again in August 2015 until October 2019. She became
involved in R.M.’s case on May 11, 2018, when R.M. was placed into DCYF
custody. Like Marino and Grandchamp, Ahles also testified about Esmeralda’s
erratic and inappropriate behavior at visitations.
Ahles testified that on September 5, 2018, respondent approached her and
discussed obtaining a restraining order against Esmeralda. She stated that he
vaguely referenced his relationship with Esmeralda and indicated that things were
not going well. She denied that DCYF had encouraged him to get the restraining
order.
Ahles verified that she spoke with respondent about his case plan and his
needs for services related to substance abuse and random screens on a number of
occasions. She testified that respondent produced a letter from Roger Williams
Hospital stating that, because he had self-reported as not having a problem with
substances and tested negative, they did not feel that he needed a substance-abuse
evaluation. Ahles also indicated that she continued to recommend that respondent
be referred for both mental health and substance-abuse counseling. She stated that
when she encouraged respondent to comply with the case plan, he denied having a
- 14 - substance-abuse problem, claimed that he did not need counseling, and consistently
blamed Esmeralda for the problems. She stated that he would sign releases but
would not follow through with any type of referrals “because he said he didn’t need
them.” She could not recall any formal referrals for mental health counseling. Ahles
stated that DCYF provided respondent with “a referral for substance abuse” and “a
couple of choices” of providers and that respondent ultimately “chose Roger
Williams.”
Ahles testified that respondent was eventually referred to an individual
visitation program. According to her testimony, Ahles later learned that, after an
individual visitation on February 4, 2019, respondent was arrested, along with family
members, for charges related to substance distribution and possession. Ahles was
additionally informed about respondent’s incarceration at the ACI in connection
with the arrest.
Ahles testified that DCYF is required to continue to attempt to provide
visitation when an individual is incarcerated. She indicated that she did not discuss
the prospect of respondent continuing to have visits with R.M. once respondent was
incarcerated. She did, however, indicate that she had a discussion with respondent
at an unspecified hearing. She stated that she offered to arrange visitation but “he
declined * * * and said he would be getting out soon and he would prefer to visit
[R.M.] with DCYF in the community, rather than have her come to the ACI.” She
- 15 - testified that, after respondent had not been released for several months, DCYF filed
a motion to suspend visitations, which was subsequently granted in July 2019.
The Family Court Decision
On October 14, 2021, the trial justice issued a decision.4 The trial justice
determined that DCYF had met its burden of proof for the TPR petition by presenting
“clear and compelling evidence.” He found by clear and convincing evidence that
R.M. “remained in foster care for more than twelve months; that the parent was
offered or received services to correct the situation which led to the child being
placed; and 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 need for a permanent home.” He further found that “both parents
are unfit by reason of conduct and conditions seriously detrimental to the child, such
as institutionalization of the parents, including imprisonment of such duration to
render it improbable for the parents to care for the child for any extended period of
time.” In particular, he found that respondent’s “suspected substance abuse,
4 The trial justice issued an amended decision on November 23, 2021, where he corrected the spelling of names. There were no substantive changes.
- 16 - domestic violence, criminal behavior and subsequent incarceration” prevented
reunification with R.M.
The trial justice found that respondent was unfit because of his “actions and
inactions.” In particular, the trial justice found that respondent did not make efforts
to take the steps needed to reunify with his daughter. This determination was based
on the trial justice’s finding that respondent “spurned” DCYF’s referrals to
substance-abuse and batterers’ intervention programs. The trial justice also focused
on the fact that respondent’s criminal behavior led to his incarceration and loss of
contact with R.M. He found that, based on the child’s age and her need for a
permanent home, there was no likelihood of change in a reasonable time. He also
found that there was no parental bond between respondent and R.M. The trial justice
found, therefore, by clear and convincing evidence that respondent was an unfit
parent.
Next, the trial justice addressed whether DCYF made reasonable efforts to
reunify respondent and the child. He reiterated that the major impediments to
reunification were respondent’s “criminal behavior, domestic violence, * * *
suspected substance abuse, and his lack of protective capacity.” The trial justice
found that DCYF made referrals for a supervised visitation and parenting program
for respondent. The trial justice also noted that respondent was referred to a second
visitation program, but shortly thereafter he was arrested and incarcerated for the
- 17 - next two years. The trial justice highlighted the fact that respondent failed to accept
responsibility for R.M. being placed into DCYF custody and consistently blamed
the mother. He also noted that respondent never obtained random toxicology
screens. While the trial justice acknowledged respondent’s progress with the
Families Together program, he also recognized that it was respondent’s arrest and
incarceration that led to the suspension of visitations with R.M. The trial justice also
discussed respondent’s failure to submit documentation to the court concerning his
participation in a parenting program while he was incarcerated.
Finally, based on R.M.’s placement with loving foster parents who intend to
adopt her as well as her bond with her foster parents, sister, and half-brother, the trial
justice ultimately found that termination of respondent’s parental rights was in the
best interests of the child.
A decree terminating respondent’s parental rights to R.M. was entered on
November 24, 2021. The respondent filed a timely notice of appeal.5
5 The respondent originally appeared pro se, but then moved to have counsel appointed on May 5, 2022, and the public defender entered an appearance on May 17, 2022. On June 10, 2022, respondent filed an emergency motion to remand this case so that he could move to reinstate visitations. This Court denied the motion on June 17, 2022.
- 18 - II
Standard of Review
“Natural parents have a fundamental liberty interest in the care, custody, and
management of their children.” In re Jae’La G., 276 A.3d 378, 389 (R.I. 2022)
(quoting In re Manuel P., 252 A.3d at 1218). “That interest ‘does not evaporate
simply because they have not been model parents or have lost temporary custody of
their child to the state.’” Id. (brackets omitted) (quoting In re Manuel P., 252 A.3d
at 1218). “The fundamental right of parents, however, is ‘not absolute.’” Id.
(brackets omitted) (quoting In re Manuel P., 252 A.3d at 1218). Before terminating
a parent’s rights, the Family Court must find that the parent is unfit. Id. “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 1040, 1051 (R.I. 2020) (quoting In re Violet G.,
212 A.3d 160, 166 (R.I. 2019)).
“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
- 19 - or the trial justice overlooked or misconceived material evidence.” Id. (quoting In re
Amiah P., 54 A.3d at 451).
III
Discussion
On appeal, respondent argues that the trial justice erred in finding that (1) he
is unfit to parent R.M.; (2) DCYF’s efforts at reunification were reasonable; and (3)
termination of respondent’s parental rights is in R.M.’s best interests. We address
each of these arguments in turn.
Parental Fitness
The respondent first argues that the trial justice erred in finding he was unfit.
In particular, respondent avers that he demonstrated that he had “made significant
efforts to reunify with [R.M.], often without the assistance that DCYF was required
to provide.” The respondent emphasizes that DCYF referred him to only one
service, the Families Together program, for supervised visitations with R.M. He
also emphasizes Marino’s and Grandchamp’s testimonies regarding his positive
progress and engagement with the program. Further, he claims that Marino’s and
Ahles’s “waffling, speculative testimony” did not specify any referrals for other
services.
The respondent also argues that the trial justice’s finding that there was not a
substantial probability of a safe return in a reasonable time was clearly wrong
- 20 - because the trial justice misconceived and overlooked evidence. He claims that the
trial justice overlooked his testimony that he attended classes while he was
incarcerated. Furthermore, respondent underscores that he obtained a restraining
order against Esmeralda, creating a safer and more stable environment for R.M. He
also highlights that he was released from prison before the trial which, according to
respondent, is a crucial fact that has been considered by this Court in other cases
involving unfitness of an incarcerated parent. Thus, respondent argues that the trial
justice’s finding that he is unfit due to a refusal to engage with his case plan or
incarceration is clearly wrong.
Before terminating a respondent’s parental rights pursuant to § 15-7-7(a)(2)(i)
and (a)(3), the trial justice must find by clear and convincing evidence that:
“(2) The parent is unfit by reason of conduct or conditions seriously detrimental to the child; such as, but not limited to, the following:
“(i) Institutionalization of the parent, including imprisonment, for a duration as to render it improbable for the parent to care for the child for an extended period of time;
“* * *
“(3) The child has been placed in the legal custody or care of [DCYF] for at least twelve (12) months, and the parents were offered or received services to correct the situation that 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
- 21 - period of time considering the child’s age and the need for a permanent home[.]” Sections 15-7-7(a)(2)(i), (a)(3).
This Court has stated that “refusal to cooperate with the objectives of the case
plans constitutes clear and convincing evidence of a lack of interest in the child 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) (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 R.M. had been in the care of DCYF for a period in excess of twelve
months—since May 2018. Moreover, R.M. had been in DCYF custody for eight
months before respondent was incarcerated for substance-related offenses. The trial
justice also found that, while DCYF offered services to respondent, he refused to
meaningfully engage with DCYF and most of the services offered to him,
particularly those related to mental health, suspected substance abuse, and criminal
behavior. The trial justice found that respondent denied any issues that DCYF
identified as barriers to reunification, and therefore he could not avail himself of the
services needed to achieve his case plan objectives. The trial justice also explicitly
stated that it was respondent’s substance-related criminal behavior that led to his
incarceration and his loss of contact with R.M. for most of her life.
Although respondent’s progress with supervised visitations at the Families
Together program is noted, we are also of the opinion that his steadfast refusal to
- 22 - accept responsibility for his role in R.M.’s removal to DCYF custody supports the
trial justice’s finding that respondent is unfit and that there is “no likelihood of a
successful reunification with [respondent] within a reasonable time * * *.”
The circumstances of R.M.’s clandestine birth, respondent’s complicity with
Esmeralda to conceal R.M. from DCYF, respondent’s criminal conduct and
incarceration, and his lack of bonding with the child are indicative of conditions in
respondent’s life that are seriously detrimental to a child. Yet, respondent refused
to acknowledge a need for services. See In re Elana W., 249 A.3d at 294. At this
time, R.M. is about five years old and has spent all but one and a half months in
DCYF custody. Therefore, considering R.M.’s age and her need for a permanent
home, our review of the record convinces us that legally competent evidence exists
to support the trial justice’s finding as to parental unfitness.
Reasonable Efforts to Reunify
The respondent further argues that the trial justice erred in finding that DCYF
made reasonable efforts to “encourage and strengthen the parental relationship.”
Section 15-7-7(b)(1). The respondent submits that DCYF most keenly failed to
undertake reasonable efforts by failing to provide him with referrals to appropriate
services. He claims that DCYF ignored his self-assessments and that the case plans
required him to dishonestly report that he was suffering from substance abuse.
Further, respondent argues that DCYF failed to communicate or make suitable
- 23 - visitation arrangements with R.M. during his incarceration. He asserts that Ahles’s
testimony that respondent refused visitations at an unspecified hearing was not
credible, especially in light of her statement that she did not discuss the prospect of
continuing visitations after he was incarcerated.
Before terminating a respondent’s parental rights in accordance
with § 15-7-7(a)(3), DCYF must establish “by clear and convincing evidence that it
offered services that amount to a reasonable effort to correct the situation that led to
the children’s removal from the parent’s care.” In re Jae’La G., 276 A.3d at 391
(brackets omitted) (quoting In re Gelvin B., 251 A.3d 503, 510 (R.I. 2021)). DCYF
need not “‘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 Gelvin B., 251 A.3d at 510). Whether DCYF’s efforts were reasonable should
be analyzed subjectively, “taking into account, among other things, the conduct and
cooperation of the parents.” Id. (quoting In re Jose Luis R.H., 968 A.2d 875, 882
(R.I. 2009)); In re Raymond C., 864 A.2d 629, 633-34 (R.I. 2005).
The trial justice found that “[t]he major impediments to reunification with
[respondent] were his criminal behavior, domestic violence, his suspected substance
abuse and his lack of protective capacity.” To address these issues, the trial justice
found, DCYF developed two case plans in June and December 2018. The trial
- 24 - justice found that these case plans required respondent to “attend random toxicology
screens at Family Court or another agency, if necessary; engage openly and honestly
in a substance abuse evaluation and participate in batterers’ intervention and anger
management programs and mental health counseling.” Despite the case plan goals
and DCYF’s attempts to engage respondent, the trial justice found that respondent
“spurned their referrals” by refusing services and denying responsibility for DCYF
involvement. Further, the trial justice found, even though respondent was referred
to and participated in six visitations with the Families Together program and an
additional visitation program, respondent was arrested and incarcerated for the next
two years for substance-related charges.
At the outset, we note that, notwithstanding Marino’s testimony that there was
an order for respondent to obtain random substance-abuse screens, no such order
existed in R.M.’s case. In fact, the case plans with respect to R.M’s case did not
specify random screens. Instead, the plans provided, following an open and honest
evaluation, “father to engage in toxicology screens at Family Court or other agency
if necessary.”
Based upon our review of the record, however, we are satisfied that the
findings of the trial justice are supported by legal and competent evidence and are
thus entitled to great weight. We decline to disrupt them.
- 25 - The evidence presented at trial demonstrates that DCYF referred respondent
to a supervised visitation and parenting program. Although respondent arrived at
these visitations on time and sober, staff observed his failure to interfere when
Esmeralda’s erratic behavior endangered R.M. Additionally, despite being on
probation for second-degree robbery, the circumstances of respondent’s arrest and
subsequent conviction evince a continuation of his criminal behavior. Even so,
respondent denied any responsibility and consistently asserted that Esmeralda was
the sole impetus for DCYF’s involvement with R.M. His minimal cooperation with
DCYF is an indication of his inability to put R.M.’s interests before his own and his
lack of protective capacity.
We have previously stated that the “state does not guarantee success and will
not be burdened with ‘holding the hand of a recalcitrant parent.’” In re Raymond C.,
864 A.2d at 634 (quoting In re Kristen B., 558 A.2d 200, 204 (R.I. 1989)). Thus,
taking into account that it was ultimately respondent’s own criminal conduct that
interrupted his visitations with R.M. and his refusal to meaningfully cooperate with
DCYF, we decline to disrupt the trial justice’s finding that DCYF’s efforts were
reasonable under the circumstances. See In re Jae’La G., 276 A.3d at 391. “Such 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 into account
other realities that cannot be grasped from a reading of a cold record.’” In re Gelvin
- 26 - B., 251 A.3d at 510 (deletions omitted) (quoting Tsonos v. Tsonos, 222 A.3d 927,
934 (R.I. 2019)).
Child’s Best Interests
Finally, respondent argues that the trial justice erred when he determined that
it was in R.M.’s best interests for respondent’s parental rights to be terminated. In
particular, respondent claims that the trial justice overlooked several matters,
including his progress with the Families Together program, his stable employment
and living situation, his successful parole, and his love for and desire to raise R.M.
“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. Severing the bond between the parent and child is a
substantial disruption. See In re Alexis L., 972 A.2d 159, 170 (R.I. 2009). But it is
in “the best interests of children to have a safe and nurturing environment in which
to live, learn and grow.” Id.
The trial justice is permitted to consider relationships and bonds that have
formed in a foster home. See In re Alexis L., 972 A.2d at 170. The trial justice found
that R.M. is happy and thriving in her pre-adoptive foster home. He further found
that R.M. is bonded to her foster parents, as well as with her biological sister and
half-brother. Additionally, R.M. is roughly five years old, and the respondent has
- 27 - had no contact with her for over four years. As such, we are satisfied that the
evidence presented in this case clearly supports the trial justice’s determination that
it is in R.M.’s best interests to terminate the respondent’s parental rights so that she
may be adopted by the foster parents who have raised her.
IV
Conclusion
For the reasons stated herein, we affirm the decree of the Family Court
terminating the respondent’s parental rights. The papers may be remanded to the
Family Court.
- 28 - 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 R.M.
No. 2021-336-Appeal. Case Number (P 19-3074)
Date Opinion Filed June 2, 2023
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 Chief Judge Michael B. Forte
For Petitioner:
Benjamin Copple Department of Children, Youth and Families
Attorney(s) on Appeal Andrew J. Johnson Court Appointed Special Advocate For Respondent:
Camille A. McKenna Rhode Island Public Defender
SU-CMS-02A (revised November 2022)