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Supreme Court
No. 2005-306-Appeal.
(96-1303-5)
In re Alvia K.                                                                                        :
Present:  Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Chief Justice Williams, for the Court.   The respondent, Frederick K. (respondent),
appeals a judgment of the Family Court terminating his parental rights as to his daughter, Alvia.
Alvia’s mother voluntarily consented to an open adoption agreement and is not a party to this
appeal.    This case came before the Supreme Court for oral argument on October  4,  2006,
pursuant to an order directing the parties to appear and show cause why the issues raised in this
appeal should not summarily be decided.   After hearing the arguments and examining the record
and the memoranda that the parties filed, we are of the opinion that this appeal may be decided at
this time, without further briefing or argument.   For the reasons hereinafter set forth, we affirm
the judgment of the Family Court.
I
Facts and Travel
Alvia, respondent’s child, was born on March 19, 2004, at Hasbro Children’s Hospital in
Providence.   After her birth, the hospital immediately placed her on a seventy-two-hour hold,
which was issued, in part, because Alvia’s mother had her parental rights terminated as to four
previous children.   The Department of Children, Youth and Families (DCYF) removed Alvia
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from the hospital on March 22, 2004, and later placed her in the preadoptive home where she
currently resides.
The respondent testified that he visited Alvia at the hospital daily until he was arrested on
March 22, 2004, on a fugitive warrant from New Jersey.   However, the trial justice found that
respondent visited Alvia only once after she was born.
At the time of Alvia’s birth, respondent was on probation in New Jersey for the crimes of
resisting arrest and burglary, for which he initially was incarcerated in 2001.   A warrant was
issued for respondent’s arrest in 2004 based on ten new charges, including kidnapping, sexual
assault, interference with the custody of a child, and endangering the welfare of a child.   After
his arrest on this warrant in Rhode Island, respondent was incarcerated at the Adult Correctional
Institutions (ACI) for approximately one month.   He was extradited to New Jersey on April 22,
2004, and was held at the Camden County Correctional Facility (CCCF) while awaiting trial on
the new charges and his violation of probation hearing.
On October 22, 2004, respondent was found to be in violation of his probation stemming
from his 2001 New Jersey convictions, and his original sentence was reinstated:   three years
incarceration for burglary and twelve months incarceration for resisting arrest, both to run
concurrently with credit for time served.  On the same day, respondent pled guilty in New Jersey
Superior Court to one count of interference with the custody of a child in the third degree and
was sentenced to three years to serve, consecutive to his reinstated three-year sentence.   After
sentencing, respondent was transferred to Riverfront State Prison where he currently is serving
this six-year sentence that, according to respondent, runs until 2010.
During his time at the ACI, DCYF social caseworker Kelly Mainor visited respondent to
discuss the goal of reunification and a proposed case plan.   Ms. Mainor took respondent’s social
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history during her visit and, utilizing that information, delineated three tasks to be included in
respondent’s case plan:                                                                               (1) attend parenting classes; (2) undergo a substance abuse evaluation;
and (3) undergo a mental health evaluation.  Although a written case plan never was presented to
or signed by respondent, he orally agreed to participate in the suggested programs during Ms.
Mainor’s visit.   A DCYF supervisor approved a written case plan on June 11, 2004.   Due to
scheduling conflicts, Ms. Mainor was unable to provide respondent with any services or a visit
with Alvia prior to his extradition to New Jersey one month later.
According to respondent, he attempted to contact Ms. Mainor on two separate occasions
from CCCF within a month of his extradition to New Jersey by placing collect calls to the
number she provided, but neither call was successful.1   These two purported phone calls were
respondent’s only attempts at contacting anyone at DCYF.
Ms.  Mainor  spoke  with  a  social  worker  at  CCCF  and  attempted  to  implement
respondent’s case plan in New Jersey, but learned that the facility did not offer programs
appropriate to respondent’s needs.   Her only contact with respondent during his time at CCCF
was by letter sent September 15, 2004.   In this letter, Ms. Mainor informed respondent that
Alvia’s mother had decided to voluntarily terminate her rights to Alvia and planned to consent to
an open adoption by the child’s foster parents.   The letter requested that respondent call Ms.
Mainor to discuss his intentions and the jail time and charges he was facing.   In her letter, Ms.
Mainor again provided respondent with her phone number and indicated that she would be able
1 At trial, a dispute arose regarding the ability of a CCCF inmate to make a collect telephone call
and leave a voice mail message.   The respondent claimed that the procedure for placing a collect
call at CCCF required that an operator place the call and the person on the receiving end of the
call press “1” to accept the charges, therefore making it impossible for respondent to leave a
voice mail message.   Ms. Mainor testified that she was working with another inmate who was
able to get through to her voice mail and leave a message.   However, Ms. Mainor noted that this
inmate was incarcerated in Rhode Island, not New Jersey, and she was unsure how he was able
to connect with her voice mail.
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to accept collect calls.   The respondent did not attempt to contact Ms. Mainor after receiving the
September 15 letter, nor did he make any attempts to contact Alvia or provide her with gifts or
support of any type while incarcerated.
On October 7, 2004, DCYF filed a petition for termination of respondent’s parental rights
(TPR), with respect to Alvia, and a trial was held in April 2005.   The petition alleged (1) that
respondent had abandoned or deserted Alvia and (2) that respondent was unfit by reason of
imprisonment of such duration as to render it improbable for respondent to care for his child for
an extended period of time.   On May 9, 2005, the trial justice issued a written decision granting
the petition as to the second allegation, but found that the state had failed to meet its burden of
proof on abandonment.  The respondent timely filed a notice of appeal to this Court.
II
Analysis
The respondent raises three assignments of error in advocating for reversal of the Family
Court decree:                                                                                             (1) the trial justice erroneously relied on respondent’s incarceration as the basis
for finding him unfit under G.L. 1956 § 15-7-7(a)(2)(i); (2) the trial justice erroneously found
that DCYF made reasonable efforts to reunify respondent with his child; and (3) the evidence
presented at trial was insufficient for the trial justice to find that terminating respondent’s
parental rights was in his child’s best interests.2
2 Alvia’s guardian ad litem (guardian) offered a fourth argument in his prebriefing statement,
alleging that the trial justice’s rationale for finding that the state failed to meet its burden on the
abandonment allegation was clear error; however, neither DCYF nor Alvia’s guardian filed a
cross-appeal on the issue.
In his decision, the trial justice defined abandonment by citing New Jersey Supreme
Court case law, which states that a finding of abandonment requires a showing that “a parent has
willfully forsaken obligations,” and has “engaged in a course of conduct that ‘evidences a settled
purpose to [forgo] all parental duties and relinquish all parental claims to the child.’”   In re
Adoption of Children by L.A.S., 631 A.2d 928, 932 (N.J. 1993).  Based on this standard, the trial
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A
Standard of Review
“It is well settled that when reviewing a termination of parental rights decree, this Court
examines the record to determine whether the findings of the trial justice are supported by legally
competent evidence.”   In re Shawn M., 898 A.2d 102, 106 (R.I. 2006) (citing In re Brianna D.,
798 A.2d 413, 414 (R.I. 2002)).   The trial justice’s findings are entitled to great weight and will
not  be  disturbed  by  this  Court  absent  a  showing  that  the  trial  justice                      “overlooked  or
misconceived material evidence or was otherwise clearly wrong.”   In re Marcella, 834 A.2d 717,
718 (R.I. 2003) (citing In re Kristen B., 558 A.2d 200, 204 (R.I. 1989)).  With these principles in
mind, we turn our attention to respondent’s appeal.
B
Parental Unfitness
The  respondent  first  contends  that  the  trial  justice  erroneously  relied  upon  his
imprisonment as the basis for terminating his parental rights.  We disagree.
justice in the present case found that DCYF failed to present sufficient evidence to support a
finding of abandonment.
This  Court  has  specifically  rejected  the notion  that  abandonment  requires  proof  of
willfulness.   In re Abby D., 839 A.2d 1222, 1225 (R.I. 2004); In re Craig G., 765 A.2d 1200,
1202 (R.I. 2001).  In addition, this Court has explicitly stated that a finding of abandonment does
not require proof that the parent formed a “‘settled intention’” to abandon his or her child.   In re
Damien M., 819 A.2d 213, 214 (R.I. 2003) (mem.).  Instead, in accordance with G.L. 1956 § 15-
7-7(a)(4), DCYF need only present evidence of a  “lack of any meaningful contact between
[parent and child] for a period of at least six months [to constitute] prima facie evidence of
abandonment.”   In re Damien M., 819 A.2d at 214.   In cases when the parent is incarcerated, we
have also held that “‘the parent, not DCYF, whose children are in the care of an authorized
agency * * * is responsible to substantially and repeatedly maintain contact with the children,’
even when the parent is incarcerated.”   In re Shawn B., 864 A.2d 621, 623 (R.I. 2005) (quoting
In re Diamond I., 797 A.2d 1076, 1078 (R.I. 2002) (mem.)).
Accordingly,  the  trial  justice’s  definition  of  abandonment  in  this  case  was  clearly
erroneous.  Nevertheless, the error was harmless in light of this Court’s determination that DCYF
sustained its burden under § 15-7-7(a)(2).   See In re Christopher B., 823 A.2d 301, 316 (R.I.
2003).
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In order to protect a parent’s fundamental liberty interest in the care and custody of his or
her children, a finding of unfitness is the first necessary step before a decree terminating parental
rights may issue.   In re Nicole B., 703 A.2d 612, 615 (R.I. 1997).   The state’s allegations to
support  such  a  determination  must  be  proven  by  clear  and  convincing  evidence.    In  re
Christopher B., 823 A.2d 301, 307 (R.I. 2003).   In the event that a parent is adjudicated unfit,
“the balance shifts so that the ‘best interests of the child outweigh all other considerations.’”   In
re Nicole B., 703 A.2d at 615 (quoting In re Kristen B., 558 A.2d at 203).
Authority for terminating parental rights based on unfitness is contained in § 15-7-7,
which provides, in relevant part:
“(a)  The  court  shall,  upon  a  petition  duly  filed  by  a
governmental child placement agency or licensed child placement
agency after notice to the parent and a hearing on the petition,
terminate  any  and  all  legal  rights  of  the  parent  to  the  child,
including  the  right  to  notice  of  any  subsequent  adoption
proceedings involving the child, if the court finds as a fact by clear
and convincing evidence that:
“* * *
“(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.”
While this Court agrees with respondent that parental rights cannot be terminated solely
on the basis of a parent’s conviction of a crime and subsequent incarceration, the extended length
of a parent’s incarceration is, pursuant to § 15-7-7(a)(2)(i), in and of itself, grounds to terminate
parental rights.   See In re Amber P., 877 A.2d 608, 615-16 (R.I. 2005); In re Faith H., 813 A.2d
55, 57 (R.I. 2003).   In such cases, “the trial justice is not required to consider parole eligibility[;]
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he or she is only required to consider the probable duration of imprisonment at the time of the
termination.”   In re Isabella C., 852 A.2d 550, 558 (R.I. 2004) (quoting In re Mercedes V., 788
A.2d 1152, 1153 (R.I. 2001) (mem.)).
We conclude that there was sufficient evidence on the record for the trial justice to find
that respondent’s incarceration was of such a duration as to render it improbable for him to care
for his child for an extended period of time.   At the time of the termination hearing, respondent
had been incarcerated continuously since Alvia was three days old, having served nearly six
months of a six-year sentence that runs until 2010.  Alvia will be six years old upon respondent’s
release  if  he  completes  his  full  sentence.    Given  the  probable  duration  of  respondent’s
incarceration in New Jersey, we are satisfied that there is sufficient evidence in the record to
support the trial justice’s finding of unfitness by clear and convincing evidence.
C
Reasonable Efforts
The respondent next argues that the trial justice erred in finding that DCYF made
reasonable efforts toward reunification.   Specifically, respondent contends that the requirements
included in respondent’s case plan were without support from evidence or respondent’s history
and that the DCYF social worker assigned to his case was inexperienced, failed to seek counsel
from a more experienced caseworker, and did little or nothing to reunite him with his daughter.
We find respondent’s arguments to be without merit.
When a petition to terminate parental rights is filed pursuant to § 15-7-7(a)(2)(i), DCYF
must prove by “clear and convincing evidence that regardless of the parent’s behavior, [DCYF]
has made reasonable efforts to encourage and strengthen the parental relationship” before a
parent’s rights can be terminated.   In re Amber P., 877 A.2d at 618; see also § 15-7-7(b)(1).
“[T]he concept of reasonable efforts is not a rigid standard, but one of some flexibility that must
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‘be defined by the particular facts and circumstances in a case.’”   In re Amber P., 877 A.2d at
618 (quoting In re Alan W., 665 A.2d 877, 878 (R.I. 1995)).   Moreover, we apply the same
deferential standard of review to the findings of the trial justice concerning reasonable efforts as
we apply to findings of unfitness under § 15-7-7(a)(2), and, therefore, we will not disturb such
factual determinations unless the trial justice overlooked or misconceived material evidence or
was clearly wrong.  In re Antonio G., 659 A.2d 672, 673 (R.I. 1995).
Here, Ms. Mainor testified that she met with respondent at the ACI to discuss the goal of
reunification and the tasks that would be included in respondent’s case plan.   The respondent
testified that he agreed to participate in the programs Ms. Mainor suggested during their meeting.
Ms. Mainor provided testimony at trial explaining why she believed each element of the case
plan was appropriate for respondent.3  In addition, her DCYF supervisor approved the case plan.
Once Ms. Mainor learned that respondent was extradited to New Jersey, she attempted to
implement his case plan in that state, but the necessary programs were not available.   She sent a
letter to respondent on September 15, 2004, requesting that respondent contact her to discuss his
intentions with respect to Alvia, but respondent chose not to contact her.
After considering the foregoing, the trial justice found evidence that DCYF had made
reasonable efforts toward reunification.   After reviewing the record, we are satisfied that the trial
justice’s finding is supported by legally competent evidence.
3 Ms. Mainor testified that a substance abuse evaluation was necessary to document respondent’s
assertion that he did not have a history of substance abuse.   She also testified that respondent
made comments during their meeting that he was distant and did not like looking at people.
Those comments, combined with respondent’s criminal history, indicated a need for a mental
health evaluation.  She also testified that she recommended parenting classes because respondent
had been accused of kidnapping his other children.
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D
Alvia’s Best Interests
The respondent lastly contends that the trial justice erred in finding that the termination of
respondent’s rights was in Alvia’s best interests, in part because his determination that Alvia was
substantially  better  off  being  adopted  was                                                         “entirely  speculative.”    We  cannot  agree  with
respondent’s contentions.
The termination of parental rights is a tragic event.   In re David L., 877 A.2d 667, 673
(R.I. 2005).   Nevertheless, once unfitness is established, the primary focus no longer is on the
parent, but on the child’s best interests.   In re Kristen B., 558 A.2d at 203.                         “An analysis of the
best interests of the child encompasses  ‘the right of a minor child to reasonable care and
maintenance, freedom from abuse or neglect, and the right to be given an opportunity to spend
the remainder of his or her childhood in a family setting in which the child may grow and
thrive.’”   In re Mariah M., 899 A.2d 423, 427 (R.I. 2006) (quoting In re Robert S., 840 A.2d
1146, 1151 (R.I. 2004)).   Children should not be made to wait an indeterminate period for their
parents “to provide them with a safe and stable environment.”   In re Douglas F., 840 A.2d 1087,
1089 (R.I. 2003); In re Eric K., 756 A.2d 769, 772-73 (R.I. 2000).
At the time of trial, Alvia was thirteen months old and had not seen or heard from her
father since she was, at most, three days old.   Alvia may be as old as six when the respondent
finally is released from prison.   The respondent testified that, from the time of his arrest, he had
not  provided  even  minimal  support,  given  any  gifts,  or  made  even  the  most  basic  and
rudimentary plans for Alvia’s future.   Evidence was presented that Alvia currently resides in a
preadoptive foster home and has bonded with her foster parents.   In light of the ample evidence
presented to the trial justice, we conclude that the trial justice was not clearly wrong in finding
that terminating the respondent’s parental rights was in Alvia’s best interests.
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Conclusion
For the foregoing reasons, the judgment terminating the respondent’s parental rights
entered in the Family Court is affirmed.   The papers in this case are remanded to the Family
Court.
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COVER SHEET
TITLE OF CASE:   In re Alvia K.
DOCKET SHEET NO.:                                                 2005-306-A
COURT:                                                            Supreme
DATE OPINION FILED:   November 14, 2006
Appeal from
SOURCE OF APPEAL:    Family                                       County:  Providence
JUDGE FROM OTHER COURT:      Judge Gilbert T. Rocha
JUSTICES:                                                         Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY:      Chief Justice Frank J. Williams, for the Court
ATTORNEYS:
                                                                  For Petitioner:                                                 Charles Greenwood, Esq.
ATTORNEYS:
                                                                  For DCYF:                                                       Karen Clark, Esq.
                                                                  For CASA:                                                       Frank P. Iacono, Jr., Esq.
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