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Supreme Court
No. 2009-156-Appeal.
(06-1644-01)
In re Brook Ann R.                                                    :
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 222-
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corrections may be made before the opinion is published.




Supreme Court
No. 2009-156-Appeal.
(06-1644-01)
In re Brook Ann R.                                                                                    :
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
O P I N I O N
Chief Justice Suttell, for the Court.   The father (respondent) appeals from a Family
Court decree terminating his parental rights with respect to his child, Brook Ann R. (Brook).
This case came before the Supreme Court for oral argument 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 examining the written and oral submissions of the parties, we conclude that this
appeal may be resolved without further briefing or argument.   For the reasons set forth in this
opinion, we affirm the decree of the Family Court.
I
Facts and Procedural History
The Department of Children, Youth and Families (DCYF) first became involved with
Brook’s family on July  2,  2006, when the child’s mother, with whom she lived, reportedly
overdosed on psychotropic medication.   Brook was removed from her mother’s custody three
days later, after the Family Court entered an ex parte order of detention.   She was adjudicated to
be a neglected child as to her mother and was committed to the custody of DCYF on March 9,
2007.   On April 4, 2008, DCYF petitioned the Family Court for the termination of her mother
and father’s parental rights.   On October 16, 2008, the Family Court entered a decree approving
an open adoption agreement that her mother had executed.
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The respondent-father has been incarcerated since 2004.   DCYF sought the termination
of his parental rights in relation to Brook on the grounds that: (1) he was an unfit parent by virtue
of his incarceration, which rendered it improbable that he could care for his daughter for an
extended period; and (2) he had abandoned or deserted his daughter.  On January 14, 2009, a trial
was held before the Family Court, at which the trial justice heard testimony from respondent and
Brook’s DCYF social worker.
The respondent testified, through an interpreter, that he was serving a life sentence after a
murder conviction and that he had been incarcerated at the Adult Correctional Institutions (ACI)
since December 31, 2004.   He maintained that he did not commit the murder for which he was
incarcerated, and he alleged that there was new exculpatory evidence in that case.1
Concerning his relationship with Brook, respondent testified that he lived with Brook and
her mother for the first five years of Brook’s life, but not thereafter.   According to respondent’s
testimony, after he stopped living with his daughter he continued to see her frequently.   He also
testified, however, that Brook’s mother frustrated his attempts to visit the child and that he had
not seen her since his incarceration.   He reported that he had requested visitation through his
psychiatrist at the ACI.
The respondent further testified that he had provided financial support for Brook through
her maternal grandfather, but that he has been unable to provide support since his incarceration.
He stated that he and Brook’s maternal grandfather had an understanding that her grandfather
would provide for her financially while respondent was incarcerated and that respondent would
reimburse him upon his release.   The respondent stated that he received updates about Brook
from her grandfather approximately two or three times a month.
1 We note that a separate appeal concerning respondent’s murder conviction is pending before
this Court in a separate action.
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Maureen Romano, the DCYF social worker assigned to Brook’s case, also testified at
trial.   She said that she was informed in July 2006, when the family’s DCYF case was opened,
that respondent was incarcerated.   She testified that respondent never contacted her to request
services, reunification, or visits with Brook and that he had not provided financial support.   She
also stated that, to her knowledge, he had not engaged in any of the parenting services offered at
the ACI.   According to Ms. Romano, Brook had never requested to see her father and, when
asked, Brook said she did not wish to see him.    She also testified that Brook’s therapist
recommended that Brook not visit her father at the ACI.   Additionally, Ms. Romano testified
that, at the time of trial, Brook was living in a pre-adoptive home and was “extremely” bonded to
her foster mother.
At the conclusion of the trial, the trial justice rendered a decision from the bench
terminating respondent’s parental rights.    The trial justice found that respondent had been
incarcerated  for  approximately  four  years,  that  he  had  been  separated  from  Brook  for
approximately six years, and that he had not provided financial support for his daughter.   The
trial justice stated that there was no proof substantiating respondent’s assertion that he had
provided financial assistance for the child through her maternal grandfather.   The trial justice
determined that respondent was an unfit parent because of his institutionalization.   The trial
justice also found that respondent had abandoned the child.   On January 20, 2009, respondent
filed a timely notice of appeal.2
2  The  termination-of-parental-rights  decree  was  not  entered  until  February                      18,   2009.    A
prematurely  filed  notice  of  appeal,  however,  does  not  bar  review  by  this  Court  in  these
circumstances. See, e.g., In re Brooklyn M., 933 A.2d 1113, 1121 n.15 (R.I. 2007); In re Kayla
N., 900 A.2d 1202, 1206 n.6 (R.I. 2006).
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II
Standard of Review
On appeal, “[t]his 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 Victoria L., 950 A.2d 1168, 1174 (R.I. 2008) (quoting In re Ariel N.,
892 A.2d 80, 83 (R.I. 2006)).   The trial justice’s findings are accorded great weight and will not
be  disturbed  on  appeal  unless  they                                                                 “are  clearly  wrong  or  the  trial  justice  overlooked  or
misconceived material evidence.” In re Destiny D., 922 A.2d 168, 172 (R.I. 2007).                       “[T]he trial
justice must find that the parent is unfit before terminating [his or her] parental rights.” In re
Pricillion R., 971 A.2d 599, 604 (R.I. 2009).                                                           “The natural parent’s right to due process requires
that the state support its allegations by at least clear and convincing evidence.” Id. (quoting In re
Victoria L., 950 A.2d at 1174).  Upon a determination of parental unfitness, “the best interests of
the child outweigh all other considerations.” Id.
III
Discussion
On appeal, respondent argues that the trial justice erred in  (1) finding that he had
abandoned his daughter, and (2) terminating his parental rights based upon his incarceration.
The respondent first contends that there was insufficient evidence to support a finding that he
abandoned Brook.  Specifically, he contends that he is not entirely to blame for his failure to visit
with Brook since his incarceration.   He asserts that Brook’s mother would not bring her to the
ACI to visit him and, once Brook was in DCYF’s custody, DCYF did not bring her to visit.   He
also argues that despite the state’s failure to refute his testimony that he provided financial
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support for the child prior to his incarceration, the trial justice found that he had not provided
said support.
The child’s guardian ad litem and DCYF counter that the six-year period during which
respondent did not have contact with his daughter and failed to support her, both before and
during his incarceration, constitutes prima facie evidence of abandonment.   The guardian ad
litem and DCYF further assert that it was the responsibility of respondent, not DCYF, to initiate
contact with Brook.
General Laws 1956 § 15-7-7(a)(4) provides that “[a] lack of communication or contact
with the child for at least a six  (6) month period shall constitute prima facie evidence of
abandonment or desertion.”   The respondent’s testimony establishes that, at the time of the trial,
he had not seen his daughter in at least four years, which is far longer than the statutory period of
six months.
The respondent’s attempt to evade his responsibility to maintain contact with his daughter
by placing the blame first on Brook’s mother and then on DCYF is unavailing.   We have
previously stated that we have “no tolerance for a parent ‘who makes halfhearted or no attempts
to visit or contact his or her child within the six-month statutory time period * * *.’” In re Abby
D., 839 A.2d  1222,  1225 (R.I.  2004)  (quoting In re DeKarri P.,  787 A.2d  1170,  1172  (R.I.
2001)).   A parent, not DCYF, has the primary and ultimate responsibility “to substantially and
repeatedly maintain contact with [his or her child]” in the care of DCYF. In re Amanda D., 918
A.2d  220,  224 (R.I.  2007)  (quoting  In  re  Shaylon  J.,                                            782  A.2d  1140,  1143  (R.I.  2001)).
Furthermore, it is of no moment that respondent was incarcerated for this four-year period.   This
Court repeatedly has held that incarceration is not an excuse for failure to maintain contact with
one’s child for the statutory period. See, e.g., In re Serenity K., 891 A.2d 881, 884 (R.I. 2006)
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(stating that a parent’s responsibility to maintain substantial and repeated contact with his or her
child endures “even when the parent whose rights are at issue was incarcerated for the six-month
statutory period”).   Furthermore, this Court has also held that “§ 15-7-7(a)(4) does not include
the element of willfulness to show abandonment.” In re Craig G., 765 A.2d 1200, 1202 (R.I.
2001).
The respondent’s own testimony reflects that, at the time of trial, he had not had any
contact, visitation or otherwise, with Brook for over four years.   There was no evidence that he
had made any attempt during this period to arrange for visitation with Brook, except for his
assertion that he asked a psychiatrist for visitation.   In addition, there is no evidence that he ever
attempted to contact Brook by mail or telephone.  Similarly, respondent conceded that he had not
directly provided Brook with financial support since his incarceration.
Furthermore, when a parent is deemed unfit because he or she abandoned his or her child,
as is the case here, DCYF has no obligation to engage in reasonable efforts to reunify the family.
Section 15-7-7(b)(1).   Consequently, DCYF was not required to contact respondent to engage in
reasonable efforts to reunify him with Brook before successfully petitioning for the termination
of his parental rights.
The respondent also argues that the trial justice improperly shifted the burden of proof by
faulting respondent for not presenting evidence to corroborate his testimony regarding financial
support.    This argument is without merit, however, because, as we have stated in similar
circumstances,
“[a]lthough the burden of proof never shifts from the state, ‘the
burden of going forward with the evidence may indeed shift from
side to side, and this same burden may properly devolve upon a
[respondent] once the state has developed a prima facie case and
has  adduced  evidence  sufficient  to  make  it  just  that  the
[respondent] be required to challenge the proof with excuse or
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explanation.” In  re  Corryn  B.,                                                                     914  A.2d  978,  982 (R.I.  2007)
(quoting In re Jarvis R., 766 A.2d 395, 399 (R.I. 2001)).
Here, DCYF presented testimony by Ms. Romano that respondent had not provided any financial
support for the child.   Moreover, the trial justice did not credit respondent’s testimony, finding
“that he has not provided any personal support even though he says that he gave the maternal
grandfather money to give to the child.”   This factual determination is neither clearly wrong, nor
did the trial justice overlook or misconceive material evidence.
After reviewing the record and the trial justice’s findings of fact, we are fully satisfied
that the trial justice did not err in finding by clear and convincing evidence that the respondent-
father abandoned or deserted his daughter, Brook.   Because we affirm the termination of the
respondent’s parental rights on the basis of abandonment, we decline to pass on the termination
of the respondent’s parental rights on the basis of his imprisonment.
IV
Conclusion
For the foregoing reasons, we affirm the Family Court decree terminating the parental
rights of the respondent.  The record may be remanded to the Family Court.
Justice Indeglia took no part in the consideration or decision of this appeal.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE:                                        In re Brook Ann R.
CASE NO:                                              No. 2009-156-Appeal.
                                                      (06-1644-01)
COURT:                                                Supreme Court
DATE OPINION FILED:   May 21, 2010
JUSTICES:                                             Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
WRITTEN BY:                                           Chief Justice Paul A. Suttell
SOURCE OF APPEAL:    Providence County Family Court
JUDGE FROM LOWER COURT:
Chief Judge Jeremiah S. Jeremiah, Jr.
ATTORNEYS ON APPEAL:
For DCYF:                                             Martha J. Kelly, Esq.
Department of Children, Youth & Families
For CASA:                                             Shella R. Katz, Esq.
Court Appointed Special Advocate
For Respondent:  Paula Rosin
Office of the Public Defender

Download 09-156.pdf

Rhode Island Law