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Supreme Court
No.   2009-62-Appeal.
(05-1833-1)
(05-1833-2)
In re Steven D. et al.                                                :
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-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.




Supreme Court
No.   2009-62-Appeal.
(05-1833-1)
(05-1833-2)
Concurring and Dissenting
Opinion begins on Page 46
In re Steven D. et al.                                                                                   :
Present:  Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
O P I N I O N
Justice Robinson for the Court.   The respondents, Kathleen D. and Ronald D., appeal
from a Family Court decree terminating their parental rights with respect to their two children,
Steven D. and Zachary D.   For the reasons set forth in this opinion, we vacate the decree of the
Family Court.
I
Facts and Travel
On September 14, 2007, the Rhode Island Department of Children, Youth and Families
(DCYF) filed petitions to terminate the parental rights of Kathleen and Ronald with respect to
their two children, Steven (born September 22, 1997) and Zachary (born November 1, 2000).
Pursuant to G.L. 1956 § 15-7-7(a)(3), DCYF alleged the following grounds for the termination
of parental rights (TPR): that the children had been placed in the legal custody or care of DCYF
for at least twelve months; that the parents were offered or received services to correct the
situation  which  led  to the  children  being  so placed;  and  that  there  was  not  a  substantial
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probability that the children would be able to return safely to respondents’ care within a
reasonable period of time considering the children’s age and the need for a permanent home.1
A trial on the petitions to terminate parental rights was held before a justice of the Family
Court on various dates over the course of six months.2   The following facts and background
information have been culled from the record of the Family Court proceedings, including most
notably the voluminous testimony elicited at trial.
A
Removals, Case Plans, and Referrals
Steven and Zachary were first removed from the custody of Kathleen and Ronald on July
21, 2005.   The removal was not occasioned by any alleged misconduct on the part of the parents
1
General Laws 1956 § 15-7-7(a)(3) provides as follows:
“(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:
“ * * *
“(3) The child has been placed in the legal custody or care
of the department for children, youth, and families for at least
twelve  (12)  months,  and  the  parents  were  offered  or  received
services to correct the situation which 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
period of time considering the child’s age and the need for a
permanent home[.]”
2
The trial took place on the following dates in 2008: January 11, March 18, April 2, April
4, April 21, April 28, May 14, May 29, and June 20.   We would comment that, absent special
circumstances, conducting a trial in such a chronologically staggered manner is not an optimal
practice.
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but because Kathleen was hospitalized.   Her eleven-day hospital stay was a result of having
suffered cardiac arrest attendant upon a viral infection; indeed, during much of that time, she was
in a medically induced coma.   A nurse called DCYF out of concern that Ronald would not be
able to care for Steven and Zachary by himself due to his own health problems, which included
epilepsy and rheumatoid arthritis.
On July 22, 2005, shortly after Kathleen was hospitalized, DCYF filed in the Family
Court ex parte neglect petitions in conjunction with a request for an order of detention; the court
granted those ex parte petitions.   The children were removed and placed with Ronald’s sister,
and DCYF assigned caseworker Jennifer Jawharjian to work with respondents.   Ms. Jawharjian
first met with respondents in August of 2005 in order to collect background information and
develop a case plan for the family.   She testified at the trial of the instant case that, at that
meeting, respondents were upset and uncooperative, swore at her, and expressed the view “that
there was no reason for [DCYF] to be involved.”
Ms. Jawharjian then proceeded to prepare initial case plans for Steven and Zachary.   The
plans were completed by the end of August, and each plan had a stated goal of reunification. The
plan for Steven explicitly noted that he was “a happy child” and that he looked after his younger
brother, who had developmental disabilities.  The plan further stated:
“The family has a strong bond with one another and are
always  happy  to  see  on[e]  another  during  weekly
visitations.”
The plan for Zachary similarly stated that the family had a “strong bond,” and it noted that
respondents  had  been  accessing  services  in  order  to  address  Zachary’s  developmental
disabilities.
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The plans indicated that the children had been removed from respondents’ home when
Kathleen was hospitalized because Ronald was not considered an appropriate caretaker “due to
medical issues and alcohol use.”3   The stated objectives of each case plan were that Kathleen and
Ronald would (1) develop and maintain a substance-free lifestyle; (2) prevent domestic disputes
from affecting their children; and (3) cooperate with DCYF.   In furtherance of these objectives,
the plans stated that respondents agreed to complete the following tasks: (1) refrain from using
any illegal or intoxicating substances, including alcohol; (2) cooperate with a substance abuse
evaluation and follow treatment recommendations; (3) submit to supervised urine screens, both
random and scheduled; and (4) utilize a network of “clean and sober supports such as church,
AA/NA, and community providers.”   The plans further stated that respondents agreed to refrain
from physically or verbally assaulting each other and also agreed to complete domestic violence
counseling as recommended.   With respect to visitation, the plans stated that, during a court
hearing on August 25, 2005, respondents had agreed (1) to comply with scheduled visits; (2) not
to be under the influence of drugs or alcohol or have “the smell of liquor about [them]” when
attending those visits; and  (3) generally to cooperate with the recommendations of service
providers and of DCYF.   Kathleen signed the case plans, although she noted that she disagreed
with them; Ronald refused to sign the case plans.
Ms. Jawharjian referred both respondents for substance abuse evaluations.   In addition,
she referred Kathleen for domestic violence and mental health counseling, and she referred
Ronald for anger management counseling.   The respondents both underwent substance abuse
3                                                                                                    On cross-examination during the Family Court trial, Kathleen testified that Ronald had
told her that, when DCYF personnel came to the house during her hospitalization in 2005, he
was “sitting on the porch drinking a beer” while the children were playing outside.
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evaluations at Northern Rhode Island Community Services in August of 2005; those evaluations
concluded that neither Kathleen nor Ronald had a substance abuse problem at that time.
Ms. Jawharjian testified at trial that Kathleen was at that time participating in mental
health counseling with Dona Harrower, a social worker at Family Resources Community Action
(Family Resources) in Woonsocket.4   Ms. Jawharjian further testified that Ronald went to Tri-
Hab5 to discuss an anger management program, but she added that he did not participate in the
program because he indicated to her that it would be too difficult for him to travel to the Tri-Hab
facility in light of what Ms. Jawharjian described as his “health conditions.”
During this time period, respondents had weekly supervised visits with Steven and
Zachary.   Ms. Jawharjian testified that respondents consistently attended the visits and that they
were “very affectionate to their children.”  However, she also stated that respondents would often
swear at her and that Ronald gave her “the finger” in front of the children, and she stated that on
occasion Kathleen “smelled of alcohol.”   According to Ms. Jawharjian, when she expressed her
concern to Kathleen that “substance abuse could not occur during visitations,” Kathleen told her
that “she was of age” and had drunk “hours before” the visit took place.
On November  17,  2005, respondents admitted to dependency; and the Family Court
entered an order committing Steven and Zachary to the care, custody, and control of DCYF.  The
court subsequently issued a decree dated December 15, 2005, providing that the children could
return home on condition that respondents comply with the following services: engaging in
4                                                                                                     Family Resources Community Action provides community-based social services to low-
income Rhode Island families.
5                                                                                                     Tri-Hab is a service provider that assists individuals with substance abuse problems and
co-occurring mental health disorders.
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“outpatient  counseling;”  participating  in  the  CEDARR  and  CASSP  programs;6  attending
Alcoholics Anonymous  (AA) meetings; and availing themselves of parent aide services and
anger management counseling.   The decree “strongly urge[d]” respondents not to drink alcohol,
specifying that such abstention would be a condition of the children’s placement in the home.
Ms.  Jawharjian  was  subsequently  transferred  to  a  different  DCYF  office,  and
respondents’ case was then assigned to a new caseworker, Greg Iafrate.  Mr. Iafrate proceeded to
develop a second set of case plans for the family, dated December 13, 2005; those case plans had
the stated goal of maintaining the children at home.   As with the August 2005 plans, Kathleen
and Ronald were to (1) develop and maintain a substance-free lifestyle; (2) prevent domestic
disputes from affecting their children; and (3) cooperate with DCYF and the Family Court.   The
December 2005 case plans also indicated that Kathleen and Ronald had been ordered by the
court to refrain from using alcohol; the plans further stated that respondents would continue to
seek  counseling  from  Family  Resources                                                          “to  deal  with  mental  health  issues  and  anger
management” and that they would cooperate with home-based services from ARC of Northern
Rhode Island7 and with parent aide services.  The plans also stated that Kathleen would continue
to participate in AA meetings and would provide DCYF with documentation of her attendance.
In contrast with the August 2005 case plans, however, the December plans made no mention of
further substance abuse evaluation or treatment, and they no longer required respondents to
6                                                                                                  CEDARR, or  “Comprehensive Evaluation, Diagnosis, Assessment, Referral and Re-
evaluation,” refers to a network of programs that provide community-based services for children
with special health needs and their families.    CASSP refers to the  “Child and Adolescent
Services  System  Program,”  which  provides  mental  health  care  for  children  with  serious
emotional disorders.
7                                                                                                  ARC of Northern Rhode Island, currently known as The Homestead Group, provides
social services to children and adults with disabilities.
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submit to urine screens.   Both Kathleen and Ronald signed the December case plans, and they
indicated that they were in agreement with the plans.
Mr. Iafrate subsequently left his employment with DCYF, and another caseworker,
Marcie Baker, was assigned to work with respondents in January of 2006.   On January 20, 2006,
DCYF filed an emergency motion in the Family Court seeking a change of placement, and the
children were briefly removed from respondents’ home.   On January 26, 2006, the Family Court
determined that the children should be returned to respondents’ home; an order entered on
February 21, 2006, which stated that the children’s placement at home was to be at the discretion
of DCYF and that a DCYF representative was to go to the home once per week; it further
ordered Kathleen “to cooperate with all services,” including a psychiatric evaluation and home-
based services.
Thereafter, on April 12, 2006, DCYF filed another emergency motion seeking a change
of placement.    As grounds for removal, DCYF stated that Kathleen had been ordered to
cooperate  with  all  services  in  January  of                                                         2006,  but  that,   “upon  information  and  belief,”
respondents were “refusing to participate” in home-based services for the children.  On April 26,
2006, the Family Court ordered that Steven and Zachary be removed from respondents’ home,
and the children were again placed with Ronald’s sister.
On May 25, 2006, Ms. Baker having left the department, yet another DCYF caseworker,
Erin Cuddy, was assigned to work with respondents; Ms. Cuddy continued to work with the
family through the course of the 2008 termination of parental rights trial.   At trial, Ms. Cuddy
testified that June 1, 2006 was the first date on which she supervised a visit between the children
and respondents at their home.  She stated that, during this visit, Kathleen swore at her in front of
the children and that she also stepped toward her with her middle fingers raised in “an aggressive
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manner.”    Ms. Cuddy testified that she told Kathleen that, if such inappropriate behavior
continued, she would end the visit; she acknowledged, however, that she did not need to end the
visit early on that date.
On July 5, 2006, Ms. Cuddy developed a third set of case plans for the family, each
having a stated goal of reunification.   The plans noted that the children had been removed due to
neglect, alcohol abuse, and “[c]aretaker’s [i]nability to [c]ope;” the plans further noted that the
“conditions which require [the] continued need for placement” of the children outside the home
were the “[p]arents[’] alcohol use, mental health, [and] physical health.”   The plans also stated,
however, that the family was “close and appear[s] to have a strong bond with one another.”   The
plans set forth the same objectives as those in the December 2005 plans, and they specified
several new tasks—including that respondents would not have any alcohol in their home, that
they would participate in a parent-child evaluation, and that they would refrain from swearing at
or making threats toward DCYF workers or service providers.   The plans also provided for
weekly supervised visitations in respondents’ home.   Both respondents signed the plans and
indicated that they were in agreement with their contents.
Ms.  Cuddy  testified  that  she  continued  to  include  the  objectives  of  maintaining  a
substance-free lifestyle and preventing domestic disputes in the July 2006 plans because her
review of the DCYF record indicated that both parents “had some type of drinking problem” and
that there was a history of domestic violence.  Ms. Cuddy further testified that she had personally
observed respondents “being verbally assaultive and aggressive towards one another,” and she
testified that the issue of substance abuse raised in previous case plans had not been “addressed”
in that respondents “had not engaged in substance abuse treatment or counseling.”
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In August of 2006, Ms. Cuddy referred respondents for new substance abuse evaluations
at Tri-Hab.  Ms. Cuddy testified that this referral “didn’t pan out” because Tri-Hab indicated that
“the information they received from Kathleen was not accurate information and that they could
not develop a strong enough rapport with her to accurately assess her.”  Ms. Cuddy subsequently
referred  Kathleen  for  a  new  substance  abuse  evaluation  at  Family  Resources,  which  was
completed in November of  2006; this evaluation concluded that Kathleen did not have a
substance abuse problem.
With respect to Ronald, Ms. Cuddy testified that Tri-Hab had recommended that he
undergo  a  neuropsychological  evaluation  in  order                                                  “to  determine  his  level  of  cognitive
functioning prior to completing a substance abuse [evaluation].”   Ms. Cuddy indicated that she
had tried to contact Ronald’s neurologist to request that the doctor evaluate his level of cognitive
functioning, but she stated that Ronald was “not willing to sign the releases in a timely manner
until after he spoke to the doctor * * * .”   Ronald eventually obtained his neurological records;
but, according to Ms. Cuddy, they were not provided to DCYF until July of 2007.
Even though two evaluations had found that Kathleen did not have a substance abuse
problem, Ms. Cuddy testified that she smelled alcohol on Kathleen during supervised visits at
least four times.  Ms. Cuddy stated that she first “suspected that [Kathleen] smelled like alcohol”
during a visit on October 5, 2006.   She further stated that, during the October 5 visit, Kathleen
swore at her after the caseworker told Kathleen not to talk to her children about the Family Court
proceedings.   Ms. Cuddy testified that Kathleen had said:  “F--- you.   I’ll f---ing talk about
whatever I want to talk about with my kids.   You can’t tell me what to do.”     She also testified
that Kathleen had threatened her during the visit by stating, “I’m going to get you.”   Ms. Cuddy
stated that she decided to end the October 5 visit ten minutes early due to Kathleen’s behavior;
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she added, however, that Ronald was “begging” her not to end the visit early and told her that his
wife “always does this to me” and that he deserved to visit with his children because he had not
done anything wrong.
As a result of the October 5 incident, DCYF moved the family’s visits from respondents’
home to the Pawtucket DCYF office.   Ms. Cuddy testified that, when Kathleen arrived for a
November 16, 2006 visit at the office, “she smelled like alcohol.”   According to Ms. Cuddy, at
one point during that visit, Zachary ran toward her as if he wanted a hug, but Kathleen told him
not to hug the caseworker and “tugged” on his sweatshirt, causing him “to fall to the ground.”
Ms. Cuddy stated that Zachary began to cry and that Ronald did not attempt to intercede with his
wife.   Ms. Cuddy indicated that Ronald had similarly not interceded with his wife when she
acted inappropriately during the October 5 visit; rather, Ms. Cuddy stated that Ronald “usually
[sat] there quietly and [did] not say anything.”
On January 7, 2007, the Family Court approved a decree that provided the following: (1)
that Kathleen would cooperate with a psychiatric evaluation at Family Resources;  (2) that
Kathleen and Ronald would cooperate with a parent aide during family visits; (3) that Kathleen
would submit to an  “alcohol screen” if DCYF determined that it was warranted due to her
behavior or if she appeared to be “under the influence” and that, if she refused to submit to the
screen, it would be considered positive and the visit would end; and (4) that Ronald would
undergo a neuropsychological evaluation.
On January 30, 2007, Ms. Cuddy developed a fourth set of case plans; they had a stated
goal of reunification.   The plans noted that the “conditions which require [the] continued need
for  placement”  of  the  children  outside  the  home  were:                                        “Unstable  mental  health,  anger
management problems, alcohol use.”   The plans listed objectives similar to those in the July
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2006 case plans, but they included a new set of tasks for respondents with respect to visitation—
including agreeing (1) to arrive at weekly visits “sober and with a calm demeanor;” (2) to use
appropriate language and refrain from making threats of any kind; and (3) to cooperate with the
parent aide during and outside of visits.   Ms. Cuddy testified that she had become concerned
after Kathleen had “cornered” the children during previous visits and followed them too closely
and that she therefore assigned a parent aide to assist Kathleen in establishing  “appropriate
boundaries with the children.”   Both Kathleen and Ronald refused to sign the January 2007
plans.   A notation on the plan stated: “Parents disagree [with] a few items and [want] to review
[with] attorneys.”
On April 5, 2007, the Family Court ordered that visits be held at Family Resources in
Woonsocket instead of the Pawtucket DCYF office, after a parent aide suggested that Family
Resources would be a more convenient location because it was closer to respondents’ home;
further, Family Resources had indicated that it could conduct a Breathalyzer test or a drug test if
necessary.   Kathleen also continued to participate in anger management counseling at Family
Resources with Dona Harrower through April of 2007; according to Ms. Cuddy, Ronald also
attended counseling with Ms. Harrower individually and sometimes with Kathleen “for his own
support or emotional health.”
Then, on April 19, 2007, Ms. Harrower attended a supervised visit with respondents and
the children at Family Resources because the parent aide could not attend.   Ms. Cuddy testified
that, when Kathleen arrived at the visit, she “appeared to be intoxicated” and “smelled like
alcohol.”  According to Ms. Cuddy, Ms. Harrower had also smelled alcohol on Kathleen’s breath
and went to find someone to administer a Breathalyzer test, which Kathleen refused.  Ms. Cuddy
testified that Kathleen then began yelling at her and at Ms. Harrower, stating that Ronald (in Ms.
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Cuddy’s words) “had just as much to drink as she did prior to that visit.” Ms. Cuddy further
recalled that Kathleen told her: “I said I wouldn’t show up to visits drinking. I never said I
wouldn’t show up drunk.”   Ms. Cuddy stated that, while these events were taking place, Ronald
was “very quiet” and “didn’t do anything at all,” although she added that he did request to say
goodbye to the children.  After the April 19 visit, Kathleen indicated that she no longer wished to
attend counseling with Ms. Harrower; Ms. Cuddy testified that a new counselor was assigned but
that Kathleen refused to meet with her as well.
The  respondents’  relationship  with  various  parent  aides  apparently  also  ended
unsuccessfully.   Ms. Cuddy testified that four different parent aides had been assigned to work
with the family between December of 2005 and July of 2007.   She stated, however, that three of
the four aides terminated their services to the family due to respondents’ lack of cooperation; the
fourth aide had left the agency.
B
Petitions for Termination and Family Court Trial
On September 14, 2007, DCYF filed petitions to terminate the parental rights of Kathleen
and Ronald pursuant to § 15-7-7(a)(3). (See footnote 1, supra.)   A trial was held over the course
of nine days, from January 11 to June 20, 2008.   The trial justice heard testimony from Ms.
Jawharjian, Ms. Cuddy, Brian Hayden, Ph.D. (a psychologist called as a DCYF witness), as well
as from Kathleen and two witnesses who testified on Kathleen’s behalf (Carol Lima and N.
David Bouley).
1. April 2, 2008 Incident and Substance Abuse Test
The trial proceeded in a relatively normal fashion until the third trial date on April 2,
2008.   At the commencement of the April 2 proceedings, counsel for DCYF stated that she “was
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wondering if the parents would submit to a [B]reathalyzer and drug test today.”   The attorneys
for both respondents objected, which objections were sustained by the trial justice.
Later  during  the  day’s  proceedings,  the  trial  justice  observed  that  Kathleen                  “was
mumbling loudly, grunting and making strange noises.”8    The trial justice indicated at that
juncture  that  he  was                                                                                 “not  sure”  whether  Kathleen                                                                 “was  having  some  sort  of  emotional
disturbance or was under the influence of alcohol or drugs.”   Due to her disruptive behavior, the
trial justice informed counsel for Kathleen that he was prepared to hold her in contempt; he said
that, in the alternative, she could submit to substance abuse testing.   After a recess, Kathleen
agreed to be tested, and the proceedings were adjourned until April 4.
At the April 4, 2008 trial date, respondents did not appear; according to counsel for
respondents, Kathleen was ill, and Ronald could not travel to the court alone due to his health.
Counsel for DCYF stated that she “wanted to put on the record [that] the last time we were here,
mother’s substance abuse screen was positive.”   Counsel for Kathleen objected, but the trial
justice indicated that he would not sustain the objection because “the report was very clear that
she was beyond the legal limits for alcohol.”   The trial justice then indicated that, if counsel was
contending that the test was not properly conducted, he would charge Kathleen with contempt
for having disrupted the court.
2. Testimony of Dr. Brian Hayden
The trial continued on April 21 and April 28, 2008, with the testimony of Dr. Brian
Hayden, an expert in child and family psychology who was called as a DCYF witness.   Doctor
8                                                                                                       Although the transcript of the April 2, 2008 trial date indicates that Kathleen was creating
some kind of disturbance, it does not reveal the precise nature of her behavior.  The observations
of the trial justice quoted in the text regarding Kathleen’s behavior have been taken from his
written decision issued after the trial had concluded rather than from the transcript of the trial
itself.
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Hayden testified that he completed a psychological evaluation of Kathleen on June 14, 2006.
Doctor Hayden found that Kathleen was “rather feisty, opinionated, somewhat confrontational,
argumentative,” and also “somewhat paranoid, anticipat[ing] that people are out to get her or
victimize her.”   He further found that she was “an angry person” who had difficulty dealing with
her emotions and had “very little insight into her own sort of way of interacting with other
people.”
Doctor Hayden noted that, during the evaluation, Kathleen had mentioned “that she was
to be in a substance abuse counseling program and that there was a substance abuse evaluation,”
and he stated that he had “suggested that she continue that.”   He stated that Kathleen had also
informed him that she was attending AA meetings, and he said that he suggested to her that she
attend two to three AA meetings a week.   Doctor Hayden further testified that Kathleen had told
him that she had lost three children when she lived in Florida because Ronald “was accused of
domestic violence and they were both accused of alcoholism.”
Doctor Hayden testified that he had also observed Kathleen’s interactions with Steven
and Zachary during a scheduled visitation on July 7, 2006.   He stated that, during that visit,
Kathleen would yell at Ronald to pay attention to the children and that she swore at “various
times.”   According to Dr. Hayden, Kathleen became defensive when she noticed that he was
taking notes; he added that she told Steven that he had to be his own person and that “you can’t
really trust other people.”   Although Dr. Hayden was not tasked with evaluating Ronald, he
nonetheless testified that he had observed that Ronald had little interaction with Steven and
Zachary during the visit until the end, at which point the children had sat with him and they
talked about cars together.   Doctor Hayden further testified that the children did not seem upset
about leaving their parents at the end of the visit.
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Doctor Hayden stated that, based on his evaluation, he had recommended that Kathleen
continue with individual counseling and that respondents engage in joint sessions with her
therapist “because it seem[ed] as though there was a fair amount of conflict between the two of
them, namely on the part of [Kathleen] towards [Ronald].”   He testified that he suggested that it
was important for Kathleen to “acknowledge her alcoholism and her inappropriate actions and
language with the children.”   He noted that, during the evaluation, Kathleen had “denied that
there was anything wrong with her” and “never actually addressed whether she recognized that
alcoholism was an issue,” although she did admit to him that she went to AA.   Doctor Hayden
concluded that Kathleen would have to acknowledge her alcoholism and inappropriate behavior
for reunification to be successful.
On  cross-examination  by  respondents’  attorneys,  Dr.  Hayden  acknowledged  that
alcoholism was not one of his areas of specialization.   He stated that he did not do an alcohol
assessment of Kathleen, but he noted that he had administered a “Coping Response Inventory,”
which inventory yielded a result that was suggestive of someone “who might be likely to use
alcohol.”   He also acknowledged that nothing had occurred during the visit that would indicate
that Ronald had a substance abuse problem.   He further acknowledged that his conclusion as to
the prospects for reunification for the family was not based on Ronald’s behavior, but rather it
was  based  on  the  fact  that  the  children  seemed  content  living  with  relatives  and  on  his
assessment of Kathleen’s “overall adjustment.”
On cross-examination by the children’s guardian ad litem, Dr. Hayden was asked whether
Kathleen’s  positive  test  for  alcohol  during the  April                                              2,   2008  trial  proceedings would  put
reunification “at risk.”   Counsel for Kathleen objected that the substance abuse test had not been
entered into evidence, but the trial justice stated that it had been entered into evidence, and Dr.
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Hayden was permitted to respond to the question.  Doctor Hayden first answered that, given such
a positive test, he “would have serious concerns” about reunification; he then added, however,
that he would also need to know if “she had been in ongoing treatment” and had had “a lapse” on
that date, or whether she had not been in treatment for the two years since he last saw her.
3. Testimony of Erin Cuddy
Ms. Cuddy, respondents’ DCYF caseworker at the time of trial, gave extensive testimony
on various dates during the course of the trial.   At the April 28, 2008 proceedings, Ms. Cuddy
testified that Steven and Zachary had been living with Ronald’s sister since April of 2006 and
that it was not a pre-adoptive placement.   She stated that the children were, at the time of that
trial date, registered with Adoption Rhode Island but that respondents had not agreed to sign an
affidavit allowing DCYF to actively seek a pre-adoptive family.
Ms.  Cuddy  also  responded  to  questioning  during  the  April  28  and  May  14,  2008
proceedings about the nature of the services provided by DCYF for the purpose of addressing
respondents’ anger management and substance abuse issues, and about her efforts in that regard.
When asked whether either respondent had “complete[d] the goals and objectives in [her] case
plans to [her] satisfaction,” Ms. Cuddy stated that respondents had not.   When asked to explain
her answer, Ms. Cuddy responded:
“One of the goals of the service plans for mother, especially, was
for anger management counseling. And as evidenced during visits
and interaction with [her], as Kathleen knows, anger management
continues to be a problem.
“As far as substance abuse evaluation, formal substance
abuse counseling, that never took place at all.   And every parent
aide  as  far  as  parenting  is  concerned,  parent  aides  all  ended
services unsuccessfully and discharged the family.”
On cross-examination by counsel for Kathleen, Ms. Cuddy stated that Kathleen had
participated in anger management counseling with Ms. Harrower, and she confirmed that the
- 16 -




counseling was solely for anger management and had nothing to do with substance abuse.   Ms.
Cuddy further testified that Ms. Harrower reported that she met with Kathleen regularly and that
“in sessions Kathleen presented very well and was doing well and [was] open in their sessions.”
Ms. Cuddy stated that she  “would receive regular updates from  [Ms. Harrower] as to how
counseling was going and  [Ms. Cuddy] expressed concerns to her that the Department had
regarding issues that we wanted addressed in counseling.”
Ms. Cuddy also confirmed that, on July  13,  2006, she had left a message for Ms.
Harrower inquiring whether the counselor would be able to incorporate formal alcohol treatment
into her anger management sessions with Kathleen or be able to increase the number of sessions
so as to include alcohol treatment.   Ms. Cuddy stated that Ms. Harrower had indicated to her
“that she could do that in her sessions.”  When asked if the counseling Kathleen received had “at
some point * * * also included substance abuse and alcohol counseling,” Ms. Cuddy responded:
“I don’t believe that it ever actually was included.   We did inquire if [Ms. Harrower] would be
able to include it.”   She testified that she was still waiting for Tri-Hab to complete its substance
abuse evaluation of Kathleen at that time.   Ms. Cuddy confirmed that Kathleen had eventually
completed a substance abuse evaluation in the Fall of 2006; when asked why she did not have
Ms. Harrower move forward with alcohol counseling for Kathleen at that time, Ms. Cuddy stated
that the evaluation had concluded that there were “no signs of an outward problem” regarding
alcohol abuse.
Counsel for Kathleen also cross-examined Ms. Cuddy with respect to Ms. Harrower’s
position regarding reunification. The children’s guardian ad litem objected, arguing that Ms.
Harrower herself should be called to testify as to her opinion.   The trial justice agreed, but he
further commented that Kathleen had been sent for testing “and the results came back she was
- 17 -




like three times the legal limit for alcohol consumption;” he added that Ms. Harrower “can say
from now until doomsday * * * there’s no problem. Maybe there’s no problem when she goes to
see [Ms. Harrower], but there was a problem when [Kathleen] came into court in that condition.”
At that point, counsel for Kathleen stated for the record that he wanted to call a witness to testify
as to how the test was conducted.
4. Motion to Suppress the April 2, 2008 Substance Abuse Test Results
On the May 14, 2008 trial date, counsel for Kathleen submitted a motion to suppress the
results of the substance abuse test.   He argued that DCYF had not presented a witness to testify
with respect to the test results when it asked that they be admitted into evidence.  The trial justice
indicated that it was his recollection that the test results had been put into evidence; but he then
declared that, if the results had not in fact been admitted, “I will admit it now upon [DCYF’s]
motion.”   Kathleen’s counsel continued to argue to the trial justice against the admission of the
test results, contending that there had to be foundational testimony for the results to be admitted;
to that argument, the trial justice responded: “No, there doesn’t have to be.”   The trial justice did
not rule on the motion to suppress the results until the next trial date, May 29, 2008; on that date,
Kathleen’s counsel rested on his previously articulated arguments in support of his motion to
suppress, and the trial justice denied the motion.
5. Interviews of Steven and Zachary
The trial justice also conducted separate in camera interviews of both children on the
May 14 trial date.   The trial justice asked Steven if he would like to go home, and he replied,
“Yeah, I would.”  Steven stated that he would like to live with both of his parents.  But he further
stated that, if his parents were not living together, he would “probably” choose to live with his
father; he added, however, that he “probably couldn’t because [his father] has a lot of health
- 18 -




issues.”   When asked if his mother could take care of him, Steven responded: “Yeah, she could,
probably.”
The trial justice then asked Steven about his parents’ drinking and anger issues.   Steven
stated that, when he lived with his parents, they would “sometimes” drink.  He further stated that
his father “would drink a little, but not a lot because he has to take a lot of medicine.”   When
asked if his mother drank a little or a lot, he responded: “[S]omewhere in the middle.”   When
asked if his mother ever became angry, Steven stated: “Yeah, never at us.”   He later admitted
that his mother sometimes did get angry at him when he did something wrong and that, when she
became angry, she would put him “in a time out;” he also confirmed that his mother sometimes
used “bad words” but stated that his father did not.   The trial justice also asked Steven what he
thought “would be the best thing” for him, and Steven replied: “Well, I would think I’d want to
go home because I miss my mom and dad a lot, and it’s really tough.  It’s a really tough decision
between my aunt and my mom and dad.”   The trial justice then asked if it would be better at
home if his parents did not drink, and Steven agreed.
When counsel for Kathleen asked Steven how he felt about his mother, he responded:
“She’s good, really good; and she’s nice, and I love her, and she takes care of me.”   When asked
if his mother “used to get drunk a lot,” Steven replied, “Not a lot.”   With respect to Ronald,
Steven stated that his father had had seizures in front of him; he added that, if it was a mild
seizure, it did not scare him.   He agreed that, if he lived with his father, he would be able to help
him when he had a seizure.   When asked if he felt “safe” when his father had seizures, he
responded in the affirmative; however, he then stated that he had a stutter, and he agreed that he
would get nervous if he had to call 911 should his father be having a seizure.
- 19 -




The trial justice then interviewed Zachary.   He stated that he liked living with his aunt,
but he also agreed that he enjoyed living at home with his parents.   When asked if there were
“any problems” when he lived at home or if his mother or father ever became “mad,” Zachary
answered no.  When asked if he would “like to go back home,” Zachary replied that he wanted to
stay with his aunt; later, however, he stated that he “wouldn’t mind living with mom.”   When
asked if he could have his choice between living with his aunt or at home, he stated that he
would live at home.
6. Testimony of Carol Lima and N. David Bouley
At the next trial date, on May 29, 2008, counsel for Kathleen called two witnesses to
testify on her behalf, Ms. Carol Lima and Reverend N. David Bouley.
Ms.  Lima  testified  that  she  had  known  Kathleen  for  five  years  and  had  observed
Kathleen’s interactions with Steven and Zachary in her capacity as the leader of Steven’s Cub
Scout den.  She stated that Kathleen would come to weekly Cub Scout meetings with Steven and
Zachary and that Ronald sometimes also attended.   Meetings regularly took place at Kathleen
and Ronald’s home, which Ms. Lima described as “always clean.”   She noted that Steven and
Zachary were “always very polite and courteous” and that Kathleen was a “very, very good”
mother and had a very close relationship with both boys.   Ms. Lima also testified that she had
never heard Kathleen swear or yell at the children, but she did indicate that Kathleen would
sometimes lose her temper and yell at other parents in the Cub Scout group.   When asked
whether she had ever smelled alcohol on Kathleen, Ms. Lima responded that she had not; she
further stated, however, that she had heard one “complaint” that Kathleen smelled of alcohol.
Ms. Lima confirmed that she considered herself a personal friend of Kathleen’s and that,
- 20 -




although she had seen Kathleen just three weeks before the trial date, she had not seen Kathleen
interact with the children since they were removed by DCYF two years earlier.
Reverend Bouley then testified that he had known Kathleen and Ronald in his capacity
as a deacon at the church in Woonsocket where the family members were parishioners.   He
stated that he had known them for around six or seven years and that he saw the family in church
on Sundays and that he “talk[ed] to them occasionally.”   He further stated that Kathleen was a
part-time housekeeper in the rectory and would sometimes bring her children with her.   He
testified that Kathleen “appeared to [have] a normal relationship” with her children and that he
had not observed either Kathleen or Ronald acting inappropriately with them.
7. Testimony of Kathleen D.
The trial proceedings concluded on June 20, 2008.  On that day, Kathleen testified on her
own behalf.   She stated that her family had been “content” before DCYF entered their lives in
2005 and that, although Ronald’s illness was stressful, she taught the children about it and “life
was pretty good.”   Kathleen testified that she was “devastated” when she woke up after being in
a coma for eight days and learned that her children had been removed from her home.
Kathleen stated that she did not understand why the children had been removed and that,
in her view, Ronald was physically able to care for the children despite his epilepsy.   She noted
that she had been working full time before her hospitalization in 2005 and that Ronald had been
taking care of the children without incident.    She also stated that Ronald’s condition had
worsened and that he began having more seizures than usual after the children were removed,
due to what she considered to be his increased stress level.
Although she was very frustrated with DCYF after the children were removed, Kathleen
averred that she had had a “great” relationship with Mr. Iafrate, who was the DCYF caseworker
- 21 -




assigned  to  work  with  the  family  after  the  children  were  returned  to  respondents’  home.
According to Kathleen, he was helpful and positive, and she was “very disappointed” when he
subsequently left his position at DCYF.
When asked why DCYF had again removed her children in May of  2006, Kathleen
testified  that  it  was  due  to  her                                                                 “noncompliance”  with  home-based  services  from ARC  of
Northern Rhode Island.    She stated that she believed the services would have been  “very
intrusive” and “too much for the children” because ARC staff wanted to come to her home for
four hours a day, five days a week; she confirmed that this would have meant that staff would be
at the home from the time the children came home from school until a half hour before they went
to bed each day.   She also stated that ARC wanted to come to Steven’s Cub Scout meetings,
which he did not want.   However, Kathleen further testified that she had never indicated that she
would not allow the services in her home, only that she told the ARC staff that she would prefer
if they came “a couple of times a week, but not every single day,” which they refused to do.
It was Kathleen’s testimony that she believed that she had been cooperative with DCYF.
She noted that she had gone to each evaluation for which she was referred, that she had gone to
counseling, that she went to weekly visits with her children, and that she “tried to get along with
[Ms.] Cuddy and the others at DCYF.”  She stated that the visits with her children at home “were
pleasant,” but that when the visits were moved to the Pawtucket DCYF office they were a
“nightmare.”  Kathleen explained that she was “constantly picked on and harassed, told I can’t—
I’m hugging my children too much.”  She indicated that her relationship with Ms. Cuddy became
strained after the visits were moved out of the home; she admitted that she had sworn at Ms.
Cuddy “one time,” but she denied that she became angry or that she ever smelled of alcohol
when the supervised visits took place at her home.
- 22 -




Kathleen further stated that, in her opinion, Ms. Cuddy had a “personal vendetta” against
her, would not listen to her, and “had no intention [of] trying to help us get back together.”
According to Kathleen, Ms. Cuddy had told her in September of 2006, almost one year before
the TPR petitions were filed, that she “would do anything she could to make sure I didn’t get my
children back because I was no kind of a mother.”   Kathleen testified that Ms. Cuddy had
indicated to her that she did not “believe” various evaluations that had concluded that Kathleen
did not have substance abuse or anger problems.  For example, Kathleen stated that, after the Fall
2006 substance abuse evaluation concluded that she did not have a problem with alcohol, Ms.
Cuddy rejected the report’s results and told her that she was “in denial,” stating: “You have a
drinking problem. You didn’t tell [the evaluator] the truth.”   Similarly, Kathleen stated that Ms.
Cuddy did not agree with the results of a court-ordered psychiatric evaluation and that Ms.
Cuddy had told Kathleen that she was “in denial of [her] problems, that [she did] have an anger
problem, and [she did] have a drinking problem, so this report can’t be accurate.”
The  trial  justice  and  counsel  for  DCYF  proceeded  to  question  Kathleen  about  her
drinking.   Kathleen stated that she did not believe that she had a problem with alcohol, and she
denied that she ever had alcohol on her breath during supervised visits with her children.   When
asked by the trial justice when she had last had a drink, Kathleen responded that she had had a
drink three days earlier.   Kathleen stated that she did drink “every now and then” but she denied
that she had drunk alcohol “while” the Family Court trial “was going on.”  When asked about the
substance abuse test that she had taken at the Family Court on the April 2, 2008 trial date,
Kathleen testified that she had not been drinking that morning, but she admitted that she had
drunk “[a]bout six beers” the night before the proceedings.
- 23 -




On the June 20, 2008 trial date, counsel for DCYF also asked Kathleen about an incident
on June  5,  2008, when DCYF had terminated a supervised visit with respondents and their
children early.   Kathleen testified that Ms. Cuddy had not told her why she was ending the visit
early; she added that she later was told by a DCYF supervisor that Ms. Cuddy had terminated the
visit because she believed that Kathleen smelled of alcohol.   Kathleen further testified that she
had not been drinking on the day of the visit or the night before.   DCYF then called Ms. Cuddy
as a rebuttal witness; she stated that, during the June 5 visit, Kathleen “had been slurring her
words” and “was repeatedly asking the children the same question” and that she had smelled
alcohol on Kathleen’s breath after she ended the visit.
8. The Family Court Decision and Appeals
On July  2,  2008, the trial justice issued a written decision granting the petitions to
terminate respondents’ parental rights, and a decree embodying that decision entered on August
13, 2008.   The trial justice found that DCYF had shown the following by clear and convincing
evidence: (1) that Steven and Zachary would not be able to return safely to respondents’ care
within a reasonable period of time; (2) that DCYF had “made all reasonable efforts” to reunite
the children with respondents; and  (3) that it was in the best interests of the children that
respondents’ parental rights be terminated.
The trial justice found that the children had been in the care, custody, and control of
DCYF for approximately two and a half years.   He stated that DCYF had implemented at least
four case plans with a goal of reunification and that, since the department became involved with
the family, “the matter of substance abuse in the form of alcohol has been a matter of great
concern [as] has the matter of abuse and anger management.”
- 24 -




With respect to Kathleen, the trial justice found by clear and convincing evidence that she
“has a substance abuse problem and has had the said problem for a substantial period of time;”
he also stated that Kathleen had “received or [had] been offered services to correct the situation
to no avail.”   In support of this finding, the trial justice noted that, although Kathleen reported
that she did not have a drinking problem, the record evidence indicated “numerous occasions” on
which she had smelled of alcohol and one occasion on which a visit with the children was
terminated “because of her condition.” Further, the trial justice noted that, although she at one
point “denied using alcohol during the course of the trial,” she later testified that “she had a drink
three days prior to her being on the stand.”   The trial justice also noted that the substance abuse
screening test that Kathleen took in the Family Court on April 2, 2008 indicated that she had a
blood alcohol level of 0.221, almost three times the legal limit, and he stated that these results
had been read into the record.   He stated that the record “indicate[d] that the respondent mother
was highly intoxicated during one of the days of the trial,” and he additionally pointed to Dr.
Hayden’s testimony that Kathleen had reported losing three other children in Florida due to
“alcoholism and lack of anger management” and to Steven’s statement that he had seen his
mother drink.
In his decision, the trial justice also found by clear and convincing evidence that Kathleen
had “a severe anger management problem.”   In support of this finding, he noted that, although in
her testimony Kathleen denied screaming at her husband, the testimony of multiple other
witnesses, including Dr. Hayden, indicated otherwise.
With respect to Ronald, the trial justice stated that, although respondent father did not
testify, the court had been made aware of his “many health problems” through the testimony of
his wife and son; the trial justice added that he was  “visually able to ascertain his severe
- 25 -




limitation as to physical movement.”  Specifically, the trial justice observed that Ronald “entered
and left the courtroom with the assistance of a cane and also required the assistance of someone
to lean on.”   The trial justice also noted that testimony indicated that Ronald “drank but not to
the extent that his wife drank.”   The trial justice then stated that Ronald “comes across as a
victim who cannot or will not change the situation,” and he concluded as follows:
“[Ronald and Kathleen] appear to be in some sort of symbiotic
relationship and are dependent upon each other to fulfill each
other[’]s needs and to put up with the behavior of the other no
matter how outrageous it may seem to others. They are a couple
for better or worse.”
The trial justice gave “little weight” to the testimony of Ms. Lima because she was a
friend of respondent mother who had not seen respondent with her children for approximately
two years and therefore was “of little or no assistance” to the court.   Similarly, the trial justice
stated that he was giving “little weight” to the testimony of Reverend Bouley.
With respect to his in camera interviews with Steven and Zachary, the trial justice stated
that “[i]t was obvious that the children were conflicted” about whether they would like to return
home and live with their parents.  However, the trial justice concluded that, although the children
were not in a pre-adoptive home at that time, it would be in their best interests that “there be
movement from the status quo,” and he urged DCYF to locate such a home as soon as possible.
The respondents filed separate notices of appeal.9   On appeal, Kathleen and Ronald each
contend that the trial justice erred in finding: (1) that they were unfit parents; (2) that DCYF
made reasonable efforts at reunification; and (3) that termination of parental rights was in the
9                                                                                                       We note that the respondents’ appeals were filed prior to the entry of the final termination
of parental rights decree in August of 2008.   However, under circumstances such as the instant
case presents, this Court will treat a premature appeal as timely filed. See In re Kayla N., 900
A.2d 1202, 1206 n.6 (R.I. 2006); see also State v. Espinal, 943 A.2d 1052, 1057 n.4 (R.I. 2008)
(citing Article I, Rule 4(b) of the Supreme Court Rules of Appellate Procedure).
- 26 -




best interests of their children.   Kathleen advances two additional arguments, viz.: (1) that the
trial justice erred in admitting the results of the substance abuse screening test performed during
the course of the trial on April 2, 2008; and (2) that the trial justice erred in denying her motion
requesting the court to admit a particular psychiatric report into evidence or, in the alternative, to
require the state to bear the cost of issuing a subpoena to the author of the report.
II
Standard of Review
When called upon to review a decision that terminates parental rights, we remain keenly
mindful that natural parents have a  “fundamental liberty interest” in the care, custody, and
management of their children.  See Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also In re
Dayvon G., 10 A.3d 448, 453 (R.I. 2010); In re Destiny D., 922 A.2d 168, 172 (R.I. 2007).  And
we are equally mindful that that fundamental interest does not “evaporate simply because they
have not been model parents or have lost temporary custody of their child.” Santosky, 455 U.S.
at 753; see also In re Natalya C., 946 A.2d 198, 202 (R.I. 2008); In re Nicole B., 703 A.2d 612,
615 (R.I. 1997).  The termination of parental rights is a drastic and irreversible measure, see In re
Kayla N., 900 A.2d 1202, 1210 (R.I. 2006), and the children as well as their parents “share a
vital interest in preventing erroneous termination of their natural relationship.”   In re Natalya C.,
946 A.2d at 203 (quoting Santosky, 455 U.S. at 760).
Accordingly, due process requires that, before the state may terminate a parent’s rights in
his or her children, the state must support its allegations by clear and convincing evidence.  See §
15-7-7(a); see also In re Victoria L.,  950 A.2d  1168,  1174 (R.I.  2008)  (“[T]he state  [must]
support its allegations by at least clear and convincing evidence.”); In re Nicole B., 703 A.2d at
- 27 -




618.10                                                                                                    “[T]he clear and convincing standard requires that the fact-finder form a clear conviction
without hesitancy of the truth of the precise facts in issue.” In re Adner G., 925 A.2d 951, 957
(R.I. 2007) (internal quotation marks omitted); Parker v. Parker, 103 R.I. 435, 442, 238 A.2d 57,
61 (1968).11
In  reviewing  a  decree  terminating  parental  rights,  we  bear  in  mind  the  foregoing
considerations as we engage in a three-step process.   See In re Pricillion R., 971 A.2d 599, 604
(R.I. 2009); In re Brooklyn M., 933 A.2d 1113, 1122 (R.I. 2007).   When we engage in that
process, we (1) examine the trial justice’s finding of parental unfitness; (2) review the finding
that reasonable efforts at reunification were made by the state agency charged with that duty; and
(3) review the finding that termination is in the children’s best interests.   See In re Pricillion R.,
971 A.2d at 604; In re Brooklyn M., 933 A.2d at 1122.   In carrying out this process, this Court
10                                                                                                        See also Santosky v. Kramer, 455 U.S. 745, 749 n.3 (1982) (noting that, as of the writing
of that decision, the great majority of states required, whether by statute or by court decision,
proof by clear and convincing evidence in parental rights termination proceedings).
11                                                                                                        In  Parker  v.  Parker,                                                                      103  R.I.  435,  442-43,  238  A.2d  57,  60-61 (1968),  this  Court
discussed at some length the meaning of the “clear and convincing evidence” requirement.   In
the course of that discussion, this Court quoted with approval from an opinion issued by a
distinguished federal appellate court, stating as follows:
“One of the more articulate and descriptive definitions of
clear and convincing evidence appears in the following portion of
an approved instruction to a jury given in Aetna Insurance Co. v.
Paddock, 5 Cir., 301 F.2d 807, 811:
‘*                                                                                                        *                                                                                            *  it  must  be  shown  by  clear  and
convincing evidence, and by that term is meant the
witnesses to a fact must be found to be credible and
that  the  facts  to  which  they  have  testified  are
distinctly  remembered  and  the  details  thereof
narrated  exactly  and  in  due  order  and  that  the
testimony  be  clear,  direct  and  weighty  and
convincing, so as to enable you to come to a clear
conviction  without  hesitancy  of  the  truth  of  the
precise facts in issue.’” Parker, 103 R.I. at 442, 238
A.2d at 61 (omission in original).
- 28 -




affords great weight to the factual findings of the trial justice, and they will not be disturbed
absent  a  showing  that  the  trial  justice  was  clearly  wrong  or  that  material  evidence  was
overlooked or misconceived.   In re Caleb W., 990 A.2d 1225, 1228 (R.I. 2010); In re Jose Luis
R.H., 968 A.2d 875, 881 (R.I. 2009).
III
Analysis
A
Termination of the Parental Rights of Kathleen D.
On appeal, Kathleen argues that the trial justice erred in finding that DCYF had proved
by clear and convincing evidence that it had made reasonable efforts to encourage and strengthen
the parental relationship prior to filing the petitions to terminate her parental rights.   It is her
contention that, where DCYF had formed the belief that she suffered from a serious alcohol
abuse problem which it considered to be a major barrier to reunification, the department was
required to refer her to alcohol treatment or counseling before petitioning to terminate her
parental rights.  We agree.
This Court has unequivocally stated that “[a] finding of parental unfitness is insufficient
in and of itself for the court to terminate parental rights: subsequent to presenting sufficient
evidence to support such a finding, DCYF must additionally demonstrate to the Family Court
that it has made reasonable efforts to strengthen the parent-child relationship in accordance with
the provisions of § 15-7-7(b)(1).” In re Brooklyn M., 933 A.2d at 1125 (emphasis added); see In
re Jose Luis R.H.,  968 A.2d at  882; In re Christopher B.,  823 A.2d  301,  307  (R.I.  2003).
Section 15-7-7(b)(1) provides in pertinent part as follows:
“In  the  event  that  the  petition  is  filed  pursuant  to
subdivisions                                                                                            (a)(1),   (a)(2)(i),   (a)(2)(iii),  or   (a)(2)(vii)  of  this
- 29 -




section, the court shall find as a fact that, prior to the granting of
the  petition,  such  parental  conduct  or  conditions  must  have
occurred or existed notwithstanding the reasonable efforts which
shall be made by the agency prior to the filing of the petition to
encourage and strengthen the parental relationship so that the child
can safely return to the family.”12
We have stated that the reasonable efforts requirement “is a subjective standard subject to a case-
by-case analysis.”   In re Natalya C., 946 A.2d at 203; In re Nicole B., 703 A.2d at 618.   What
constitutes reasonable efforts will “vary with the differing capacities of the parents involved,”
and it is determined by looking at the totality of the circumstances of each case.   In re Kayla N.,
900 A.2d at 1209 (quoting In re William, Susan, and Joseph, 448 A.2d 1250, 1256 (R.I. 1982)).
For DCYF to show that it has made reasonable efforts at reunification, we have held that
the department must show, inter alia, that it has “provided services and other assistance to the
parent or parents to ensure that problems preventing discharge from foster care would be
resolved or ameliorated * * * .”   In re Jose Luis R.H., 968 A.2d at 882.   It is clear that, “if such
services are to have any chance of success in correcting the situation that led to the children’s
removal from the family home, they must be  ‘reasonable’ in the sense of being capable of
remedying the particular problem(s) that caused the children to be removed.” In re Natalya C.,
946 A.2d at  203  (quoting In re Christopher B.,  823 A.2d at  315).   Although DCYF is not
expected to “undertake extraordinary efforts to reunite parent and child,” In re Jose Luis R.H.,
968 A.2d at  882, the department is required to ensure that services were in fact offered or
received “regardless of the unlikelihood of their success.”   In re Natalya C., 946 A.2d at 203
(quoting In re Manuel P., 889 A.2d 192, 198 (R.I. 2006)).
12                                                                                                       Although   §  15-7-7(b)(1)  does  not  specifically  state  that  its  provisions  apply  to  a
termination under § 15-7-7(a)(3), we have held that a termination under the latter subsection
requires the same showing of reasonable efforts as is required under the subsections that are
mentioned in § 15-7-7(b)(1). See In re Christopher B., 823 A.2d 301, 315 (R.I. 2003); see also In
re Jose Luis R.H., 968 A.2d 875, 882 (R.I. 2009).
- 30 -




In the instant case, DCYF concurs with the finding of the trial justice concerning
Kathleen to the effect that “substance abuse in the form of alcohol has been a matter of great
concern [as] has the matter of abuse and anger management,” and it argues that the trial justice
did not err when he found that “there is clear and convincing evidence that the Department made
all reasonable efforts to reunite the children with their parents.”
DCYF contends that it made reasonable efforts to address Kathleen’s alleged alcohol
abuse problems because it (1) referred her for substance abuse evaluations (which, it should be
recalled, were completed), and (2) because Kathleen attended AA meetings.   The department
insists in its brief to this Court: “She reported to [Dr. Hayden] that she was involved with AA;
that is a service received, even though she remained in denial that she had a drinking problem up
to the last day of trial.”   DCYF also notes that Dr. Hayden recommended to Kathleen that she
continue with AA meetings and “also individual counseling.”
However,  Kathleen  was  never  offered  nor  did  she  receive  any  individual  alcohol
counseling, which Dr. Hayden clearly indicated was necessary for her to achieve reunification
with her children.   At trial, Dr. Hayden testified that his evaluation had concluded that Kathleen
“had to acknowledge her alcoholism” in addition to her inappropriate behavior, or else he did not
believe that reunification “would be successful at all.”   He testified t

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Rhode Island Law