In re Jazlyn P.

• Decision Date: 09 December 2011
• Docket Number: No. 2010–387–Appeal.,2010–387–Appeal.
• Citation: 31 A.3d 1273
• Parties: In re JAZLYN P.
• Court: Rhode Island Supreme Court

31 A.3d 1273

In re JAZLYN P.

No. 2010–387–Appeal.

Supreme Court of Rhode Island.

Dec. 9, 2011.

Lara Ewens, Esq., Rhode Island Public Defender, for Respondent.

Martha J. Kelly, Esq., Department of Children, Youth & Families, for DCYF.

Shella R. Katz, Esq., Court Appointed Special Advocate, for CASA.Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice ROBINSON, for the Court.

The respondent father, Michael Patino, appeals from a Family Court decree terminating his parental rights with respect to his daughter, Jazlyn P. ¹ On appeal, Mr. Patino argues that the justice of the Family Court who presided over the termination-of-parental-rights trial (1) improperly admitted into evidence certain exhibits during the trial and (2) erred in terminating Mr. Patino's parental rights since, in his view, there was insufficient evidence in the record of cruel and abusive conduct.

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 be summarily decided. After considering the record, the memoranda submitted by the parties, and the oral arguments of counsel, we are satisfied that cause has not been shown and that this appeal may be decided without further briefing or argument.

For the reasons set forth in this opinion, we affirm the decree of the Family Court.

IFacts and Travel

On February 10, 2010, the Rhode Island Department for Children, Youth, and Families (DCYF) filed a petition to terminate the parental rights of Michael Patino and Patricia Oliver ² with respect to their daughter, Jazlyn P. (born August 6, 2008). As the basis for its petition, DCYF alleged that the parents had “committed, or allowed to be committed, conduct toward any child of a cruel or abusive nature.” See G.L.1956 § 15–7–7(a)(2)(ii). The petition also alleged that Mr. Patino probably would be unable to care for Jazlyn due to his extended term of imprisonment.³ On September 22 and October 1, 2010, a trial on the petition to terminate Mr. Patino's parental rights was held in the Family Court.⁴ The following factual narrative is derived from the record of the Family Court proceedings.

AThe Factual Background

Early in the morning of October 4, 2009, six-year-old Marco Nieves ⁵ (Ms. Oliver's son and Jazlyn's half-brother) arrived by ambulance at Hasbro Children's Hospital in Providence; Marco was in an unresponsive state due to the deteriorating effects of a perforated bowel. At the time Marco was admitted to the hospital, he had been residing in an apartment in Cranston with his mother and his half-sister, Jazlyn. Marco also had had frequent interactions with Mr. Patino, who was a regular visitor in the Cranston apartment due to both his approximately two-and-a-half-year romantic relationship with Ms. Oliver and the fact that he was Jazlyn's father.

In the face of inquiries both from the rescue personnel who transported Marco to the hospital and from the doctors at the hospital, Ms. Oliver initially refused to provide information as to what she knew concerning the actual origin of Marco's injury. The suspicious nature of Marco's injury and the severity of his condition upon presenting to the hospital led the treating physician (Dr. Kristin Fortin) to complete a “Physician's Report of Examination” (PRE), pursuant to which Marco was placed under a “72–hour hold” as authorized by G.L.1956 §§ 40–11–5(a) and 40–11–6. Tragically, however, despite aggressive resuscitative efforts by the medical personnel, six-year-old Marco died in the early evening hours of the day of his admission to the hospital, October 4, 2009.⁶

Manifesting a concern for the well-being of Marco's half-sister, Jazlyn, doctors at Hasbro Children's Hospital requested that she be admitted that same day “for medical evaluation of possible child maltreatment and safety.” As had been done with respect to Marco, again invoking §§ 40–11–5(a) and 40–11–6, Dr. Fortin completed a PRE and placed Jazlyn under a seventy-two-hour hold. Upon reviewing x-rays of the fourteen-month-old girl's midsection, Dr. Christine Barron, who was the attending physician and the clinical and fellowship director for the hospital's Child Protection Program ⁷ (CPP), discovered that Jazlyn had sustained posterior rib fractures that were in the process of healing. When asked about those injuries to her daughter, Ms. Oliver denied that there was any history of either accidental or inflicted trauma.

DCYF obtained temporary custody of Jazlyn on October 5, 2009. Five days later, Ms. Oliver told the DCYF Child Protective Investigator assigned to the case about a purported incident wherein Jazlyn had fallen down the stairs at her paternal grandmother's house in August of 2009. After reviewing the description of the fall and the photographs of the stairs in question, Dr. Barron concluded that Jazlyn's posterior rib fractures had not been caused by the fall that Ms. Oliver had reported; rather, it was the doctor's opinion that those fractures were “consistent with child physical abuse.”

BThe Testimony of Dr. Barron on September 22, 2010

1. The Consultation Reports

On September 22, 2010 (the first day of the termination-of-parental-rights trial), Dr. Barron testified for DCYF as an expert witness with respect to child abuse. Doctor Barron testified that, when she arrived at the hospital on October 4, 2009, Dr. Kristin Fortin was already consulting on Marco's case. Doctor Barron stated that it was Dr. Fortin who had initially spoken to Marco's family members in order to gather a history with respect to Marco's injury. Doctor Barron told the court that she verified the information obtained by Dr. Fortin with Marco's maternal grandmother and with Ms. Oliver. The information which Dr. Barron and Dr. Fortin obtained from these two family members was included in the “Child Protection Program Inpatient Consultation Reports” that were completed with respect to both Marco and Jazlyn at the time of their respective admissions to the hospital.⁸

2. Testimony as to Marco's Injuries

Doctor Barron relied on the just-referenced reports to refresh her recollection while testifying at trial as to the details of what occurred on the day that Marco was brought to the hospital. Doctor Barron testified, without objection, that Marco's family members eventually revealed to her that Marco “had sustained a punch or blow to the abdomen” approximately sixteen hours prior to his admission to the hospital, “[c]ausing an injury that resulted in his death.” Doctor Barron further testified that Marco had died as a result of “child physical abuse and lack of medical care due to neglect.” Doctor Barron also testified that it was her opinion that “[i]f Marco had been brought [to the hospital] with a reported history that he had abdominal trauma, he could have gone to the operating room where the injury to his intra-abdominal organs could have been fixed.” She further testified that it was her opinion that surgery was not a viable option at the time that he was eventually brought to the hospital.

3. Testimony as to Jazlyn's Injuries

During the course of Dr. Barron's testimony concerning the injuries sustained by Jazlyn, DCYF sought to have the above-referenced consultation reports admitted as exhibits 1 and 2. The trial justice admitted the consultation reports into evidence as full exhibits over respondent's objection; the articulated basis for that objection was that Dr. Barron was “here to testify.”

Doctor Barron then proceeded to testify that rib fractures such as were sustained by fourteen-month-old Jazlyn were “rare” in a child of that age, and she stated that such fractures “would be consistent with child physical abuse.” Doctor Barron also testified that posterior rib fractures are caused by a “squeezing mechanism;” she added that, in her opinion, the posterior rib fractures sustained by Jazlyn were consistent with what she referred to as “inflicted injury.”

4. Further Testimony as to Marco's Injuries

Later in her testimony, returning to the subject of the cause of Marco's injuries, Dr. Barron stated explicitly that both Ms. Oliver and Marco's maternal grandmother had reported to her “that Marco had been injured by Mr. Michael Patino.” At that point in the trial, respondent's counsel objected on the basis that “the information comes from hearsay.” In response, the trial justice noted for the record that the information about which Dr. Barron was testifying was contained in the consultation reports that had already been admitted as full exhibits. The respondent's counsel replied that he had objected to the admission of those exhibits, and he pointed out that his objection had been overruled by the court. There then took place a discussion between the trial justice and the parties in an attempt to determine exactly which exhibits respondent's counsel had previously objected to and on what basis. Counsel for DCYF contended that respondent's counsel had objected to exhibits 1 and 2 on the basis that Dr. Barron was present to testify; ⁹ at that point, respondent's counsel renewed his objection on that same basis. The trial justice then responded that, such being the basis for the objection, the objection was again overruled. It was then that respondent's counsel stated that he was objecting to the “portion of the report * * * that comes from hearsay.” The trial justice responded by overruling the latter objection as well.

CThe Testimony on October 1, 2010

On October 1, 2010, the second day of the trial in Family Court, DCYF called Cranston Detective John Cardone to testify. Detective Cardone testified that he was the detective assigned to the homicide investigation regarding Marco's death. The detective indicated that he and his colleague, one Detective Slaughter,¹⁰ had interviewed Michael Patino on the day that Marco was admitted to the hospital.

Detective Cardone went on to testify that during...