Preview:

Supreme Court No. 99-112-Appeal. (98-632-01) In re Chester J. :

Present: Weisberger, C.J., Lederberg, Bourcier, Flanders, and Goldberg, JJ. OPINION PER CURIAM. This case came before the Court on the appeal of Carla Smith (Carla or

mother), and Chester Jackson, III (Jackson or father), from a decree of the Family Court granting the petition of the Department of Children, Youth and Families (DCYF) to terminate any and all legal rights of Carla and Jackson in their child, Chester J. (C.J.). The parties were directed to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown. Therefore, we shall decide the case at this time. Facts and Procedural History This is a case of horrific child abuse and neglect that came to light when C.J. was less than seven months old. C.J. was born on August 23, 1997. His mother, Carla, and his father, Jackson, were both seventeen years old at the time. On March 17, 1998, Deborah Lowen, M.D., (Dr. Lowen), a pediatrician and member of the Child Protection Team at Hasbro Children's Hospital, was notified by the emergency department that there was an infant whose x-ray revealed multiple fractures of varying ages. Before treating C.J., Dr. Lowen learned that C.J. had gone to his regular pediatrician, Dr. Toll, for his routine six-month checkup. Doctor Toll's evaluation of C.J., which revealed that C.J.'s liver was -1-

slightly enlarged, led Dr. Toll to refer C.J. to Hasbro Children's Hospital for an abdominal ultrasound and a skeletal survey. It was the results of these tests that first brought Dr. Lowen into contact with C.J. After reviewing the lab results, the x-rays, and the abdominal ultrasound, Dr. Lowen made numerous findings indicating child abuse, including that C.J. had suffered multiple fractures of various ages throughout his body. In her testimony concerning those fractures, Dr. Lowen stated that C.J. had recent fractures of the left sixth and seventh ribs, with soft tissue swelling over these new fractures. Also, Dr. Lowen testified that C.J. had healing fractures of both the left and right tenth ribs, as well as the right eighth rib. Further, she noted that the right ninth rib had an older fracture and that the left tibia and ulna bones had evidence of healing fractures. In addition, the left and right radius bones showed old fractures that were well in the process of healing. Doctor L owen also suspected another new rib fracture, and her suspicions were confirmed following a subsequent x-ray. Doctor Lowen further testified that although the abdominal ultrasound revealed no acute trauma to either the liver or the spleen, it did reveal the presence of fluid in C.J.'s abdominal cavity, an abnormal finding. Doctor Lowen was concerned that the elevated liver tests, the enlarged liver, and the fluid in the abdomen were suggestive of trauma to C.J.'s abdomen, and that there may have been a more severe underlying injury that had not been observed. Doctor Lowen's fears would soon be confirmed. Doctor Lowen also testified about numerous bruises and lesions of various ages covering C.J.'s body. Specifically, she testified that C.J. had bruises consistent with adult bite marks on both his hip and his arm that were three to four days old. Also, there were bruises on his left temple, above the left eyebrow, and possibly one on the right temple. There were multiple red lesions on C.J.'s cheeks, temple and ear, and there were also brown spots on his cheeks and temple. Further, Dr. L owen -2-

testified that C.J.'s overall hygiene was "very, very poor." Specifically, Dr. L owen noted that his hair was dirty, his fingernails and toenails were very long and dirty, his clothes were filthy, and "he was in dire need of a bath." In addition, it was determined that C.J.'s growth since birth had fallen, and he was medically classified as "failing to thrive," which Dr. Lowen testified was a lack of appropriate weight gain in an infant, or an actual loss of weight over a certain month or number of months. Specifically, when C.J. was born, and again when he was six weeks old, he was in the 75th to 90th percentile; when he was six-and-a-half months old, his weight was in the tenth percentile, indicating that 90 percent of the children in C.J.'s age group weighed more and possessed a better head circumference than he did. Doctor Lowen also considered the parents' history involving C.J.'s care. Although C.J. had numerous caretakers, the parents were his primary caretakers. Doctor Lowen testified that she spoke with the parents about C.J.'s injuries, but received no adequate explanation for the extensive trauma that C.J. had suffered. The parents denied any history of trauma, but suggested that C.J. was an active sleeper who may have suffered the bruises in his crib because he would pull his crib bumper down and roll into the crib bars. Also, the parents alleged that a bouncy ball struck C.J. in the face, causing the bruising. Doctor Lowen discounted these explanations, finding that they were inconsistent with the nature of the injuries, and concluded that neither C.J.'s crib nor his toy could have caused such extensive trauma. Doctor Lowen concluded that these numerous ghastly injuries, including the fractures, bruises and bruised liver, were the result of child abuse involving non-accidental injury, and that C.J.'s failure to thrive and exceedingly poor hygiene were evidence of child neglect. As a result, on March 17, 1998,

-3-

she ordered that no family members have unsupervised contact with the child in the hospital. Both the police and DCYF were notified of her conclusions. C.J. was discharged into foster care on March 27, 1998, after spending ten days in the hospital. However, C.J.'s ordeal was far from over. Approximately five days later, C.J. was again brought into the emergency unit of Hasbro Children's Hospital, and was subsequently readmitted. Doctor L owen testified that C.J. came into the emergency department in mild to moderate shock, that he was vomiting and that he had developed significant abdominal distention. A needle was inserted into C.J.'s abdomen, and a significant amount of fluid was removed that had chyle, or lymphatic fluid, thus confirming Dr. Lowen's earlier fears. Doctor Lowen explained that lymphatic fluid is transported from the abdomen up to the heart, and when this occurs in a child or infant, there is concern about whether there is a congenital problem or trauma. A subsequent gastrointestinal series,1 as well as additional examinations throughout the course of his hospitalization and as an outpatient, revealed that the condition was not the result of a congenital defect, but was rather a rare case of where the chyle in the abdomen was caused by trauma. Doctor Lowen noted that the trauma had occurred before her evaluation of C.J. on March 17, 1998, and that in the few reported cases where trauma caused this condition in children, all these reports indicated child abuse as the cause. Doctor Lowen, taking into account the fractures, bruises and previous blunt trauma, concluded that C.J.'s condition was indeed the result of child abuse. Four new rib fractures were also discovered on April 2, 1998, that previously were difficult to detect until there was a calcium buildup at the site of the fracture. After a twenty-five-day hospitalization, C.J. was discharged for the second time, on April 27, 1998.

1

As is the procedure for undergoing an upper gastrointestinal series, C.J. was given a barium enema to evaluate for a mal rotation of his gut. -4-

The DCYF social worker assigned to the case, Rachel Arpin (Arpin), testified about the squalor in which C.J. lived. The trial justice noted that Arpin described C.J.'s crib as "extremely filthy with blood stains on his dirty sheets." Also, she noted that drugs and drug paraphernalia were found in the house. In addition, Arpin testified that Carla asked to speak with her to share her suspicion that it was Jackson who had abused C.J. However, Arpin testified that Carla had no evidence to support her allegation. At trial, Carla testified that she no longer believed that Jackson was responsible for C.J.'s injuries, but rather she believed that Jackson's mother, Rosa Jackson, who sometimes cared for C.J., had caused the injuries. Jackson testified that he had mixed feelings about whether his mother was responsible for C.J.'s dreadful ordeal. On March 19, 1998, DCYF filed the first of two Family Court petitions.2 The first petition alleged six counts of child neglect and abuse: (1) that the parents have failed to provide C.J. with a minimum degree of care, supervision, or guardianship; (2) that C.J. is without proper care and supervision; (3) that the parents have inflicted or allowed to be inflicted upon C.J., physical injury; (4) that the parents have inflicted on C.J. physical injury, including excessive corporal punishment; (5) that the parents have created or allowed to be created a substantial risk of physical injury to C.J.; and (6) that the parents have created or allowed to be created a substantial risk of physical injury to C.J., including excessive corporal punishment. The second petition, filed on April 21, 1998, sought the involuntary termination of Carla's and Jackson's parental rights. It alleged that the parents committed or

2

The two petitions are numbered 98-3-580 and 98-4-667, respectively. -5-

allowed to be committed conduct toward any child of a cruel and abusive nature and that they abandoned and/or deserted the child.3 Both petitions were consolidated for trial. After a seven-day trial during October and November of 1998, the trial justice issued a written decision terminating Carla's and Jackson's parental rights in C.J. Both parents testified and reiterated their unwavering and joint denial of responsibility. A decree was entered on January 22, 1999, in which the trial justice made numerous findings of fact. The trial justice found that the parents were in the position of co-primary caretakers of C.J., and that both expressed "complete and total ignorance of how the child's horrific injuries were inflicted." The trial justice found that neither Carla nor Jackson seemed aware or alarmed at the bruises or bite marks, "though it would have been impossible to bathe or change the child without noticing the marks or filth on him." Also, the trial justice found the testimony by both Carla and Jackson to be self-serving and not credible. Finding that both parents were involved in a "conspiracy of silence," the trial justice concluded that either parent or both of them were responsible for C.J.'s injuries. In addition, the trial justice found no independent evidence to support Carla's and Jackson's contention that the paternal grandmother was responsible for the child's injuries. Further, the trial justice found that C.J. had not been bathed, was unclean, and had suffered traumatic injuries, and that the responsibility for these conditions fell on the primary caregivers, in this case the parents. As a result, the trial justice found that DCYF was not obligated to offer services designed to reunify C.J. with his parents, and concluded that the allegations in both petitions were proven by clear and convincing evidence. A timely appeal was filed by both parents. Standard of Review

3

The Department of Children, Youth and Families subsequently dismissed the abandonment allegation. -6-

When reviewing cases involving the termination of parental rights, this Court examines the record to determine whether legally competent evidence exists to support the trial justice's findings. See In re Ryan S., 728 A.2d 454 (R.I. 1999). "Such findings are entitled to great weight, and this Court will not disturb them on appeal unless the findings are clearly wrong or the trial justice misconceived or overlooked material evidence." Id. at 457 (citing In re Kristen B., 558 A.2d 200, 204 (R.I. 1989)). Discussion On appeal, Carla conceded that DCYF is not obligated to make reasonable efforts to reunify a parent and child when the parent has engaged in "conduct * * * of a cruel and abusive nature." G.L. 1956

Download 99-112.pdf

Rhode Island Law