Antonio G., In re, 94-111-A

• Decision Date: 03 May 1995
• Docket Number: No. 94-111-A,94-111-A
• Citation: 657 A.2d 1052
• Parties: In re ANTONIO G. ppeal.
• Court: Rhode Island Supreme Court

Page 1052

657 A.2d 1052

In re ANTONIO G.

No. 94-111-Appeal.

Supreme Court of Rhode Island.

May 3, 1995.

Frank P. Iacono, Jr. (CASA), Anthony J. Angeli, Jr. (DCYF), Laurel C. Ferrelli (CASA), Kevin Aucoin (DCYF), for plaintiff.

Richard Casparian, Public Defender, Janice Weisfeld, Paula Rosen, Asst. Public Defenders, Leo Manfred, Westerly, for defendant.

OPINION

LEDERBERG, Justice.

This case came before the Supreme Court on the appeal of Mildred G. from an order of the Family Court granting the petition of the Department of Children, Youth and Families to terminate any and all legal rights of Mildred G. to her son Antonio G. For the reasons stated below, we affirm the order of the Family Court. The facts pertinent to the appeal are as follows.

Facts and Procedural History

This case began seven years ago with the death of eighteen-month-old Jonathan G. (Jonathan). His aunt, Mildred G. (Mildred), brought the boy from New York to Rhode Island to live with her and her son Antonio G. (Antonio), then approximately nine months old. Marco Morales (Morales), the father of Antonio, came to visit Mildred in March 1988. On March 16, 1988, Mildred left Antonio and Jonathan with Morales while she went shopping. When she returned home, she found the police there. Jonathan had died as a result of multiple episodes of blunt trauma to his head. An autopsy revealed past bruises that were not the result of the same abuse that killed him. ¹

On March 17, 1988, Antonio was placed under the temporary custody of the Rhode Island Department for Children and Their Families (DCF). ² Phillip Keefe (Keefe), an assessment social worker, immediately began working with Mildred and drew up a case plan dated April 28, 1988, which permitted weekly supervised visits with Antonio and directed that Mildred attend parenting classes and counseling sessions and undergo a parent/child evaluation. Mildred attended the weekly supervised visits but was repeatedly late. On June 20, 1988, after a hearing in Family Court, the trial justice found that Antonio had been neglected and abused by both parents and committed Antonio to the care, custody, and control of DCF until further order of the court. The trial justice also ordered DCF to submit a case plan within thirty days and ordered Mildred to complete parenting and counseling programs. On July 28, 1988, the April 28 case plan was made an order of the Family Court and Antonio continued living in foster care.

Between August 1988 and January 1989, Mildred participated in various social service programs arranged by DCF. A clinical social worker testified that Mildred related her family's use of drugs, her mother's recent death from AIDS, and her own abuse by either her father or her stepfather. Mildred maintained regular visitations with Antonio only with great difficulty. On more than one occasion, Mildred told Dorothy Fay (Fay), a direct-service social worker with DCF, that she desired to return to New York to live with her family. Even though Mildred was informed that moving back to New York would make reunification more difficult, on January 5, 1989, Mildred telephoned Fay from New York.

Several days later, when Mildred made clear her intent to stay in New York, Fay initiated the Interstate Compact on the Placement of Children and requested a home study of the relatives' home and the suitability of the proposed caretaker. See G.L.1956 (1990 Reenactment) § 40-15-1. A reply from New York was not received until one year later, when Fay learned that the relatives' home had not been approved for foster placement.

Mildred lived in New York from January 1989 to May 1990. Various case plans were developed during this time, including a weekly visitation schedule, which Mildred inconsistently followed. Mildred also participated in a New York agency's parenting classes and some counseling services. After Fay explained that the interstate compact required that any agency with which Mildred was involved must be approved, Mildred offered Fay the name and phone number of the agency's contact person, Lazaro Valdes (Valdes). It is remarkable that Fay did not reach Valdes until March 1990, almost one year later.

In May 1990, when Mildred returned to Rhode Island, case plan No. 5 was in effect, requirements of which were that Mildred find housing acceptable to DCF, find employment, and complete a second parenting program and further counseling. Fay did not assist with housing or employment, however, but in the late summer or early fall of 1990, she referred Mildred to the Family Service Society of Pawtucket, a social service agency, and to the Kent County Reunification Program. In May 1991, through the Reunification Program, Antonio was placed in his mother's home where Mildred lived with her infant son Justin.

In August 1991, however, Margaret Skuce (Skuce), to whom the case was transferred, received a report concerning allegations against Mildred by her neighbors. Mildred abruptly moved from her apartment, which DCYF had found satisfactory, to another, without notifying Skuce. When Skuce visited the new apartment, she observed that Mildred had moved without her furniture, her belongings, or the children's clothes and toys. At the end of August, Mildred told Skuce that she wished to return to New York and asked that Skuce forward an interstate-compact request to New York. Skuce complied but pointed out that only three months remained before completion of the Kent County Reunification Program, at which time the case would close and that in comparison, the interstate compact approval process would be very lengthy. On August 29, 1991, the court entered an order that DCYF initiate the interstate compact.

Also at the end of August 1991, Mildred informed Skuce that she was going to New York with Antonio and Justin and that she would return the following week. When Mildred failed to return, Skuce reported to the State Police on September 26, 1991, that the two children were missing. On October 7, Mildred telephoned Skuce that she intended to stay in New York. On October 10, the day after the Family Court issued a decree ordering that Antonio be returned to Rhode Island, Skuce drove to New York and brought Antonio back to Rhode Island.

On January 7, 1992, DCYF filed a petition with the Family Court for termination of rights of parents to consent to adoption (involuntary). The petition alleged that the parents had had a child in the care of a licensed or governmental child-placement agency for a period of at least six months and that the integration of the child in the parents' home was improbable in the foreseeable future because of conduct not likely to change. The DCYF amended the petition on October 16, 1992, to allege that Mildred had abandoned the child by moving to New York in August 1991 and had not seen the child since November 1991.

At the time of trial in February and March 1993, Mildred still lived in New York and had not visited Antonio since January 1992.

After the trial in Family Court, the trial justice found that Antonio had been in the care of DCYF for a period of at least six consecutive months prior to the filing of the termination petition on January 7, 1992; that Antonio had come into the care of DCYF as a result of the neglect and abuse of both Mildred and Morales; that the most significant issues identified as barriers to reunification with Mildred included Mildred's lack of parenting skills and her need to address the death of Jonathan and her own violent and abusive childhood; that DCYF had consulted and cooperated with Mildred in developing eight case plans with goals of reunification; that DCYF provided parenting education and individual counseling; that DCYF never provided any meaningful housing assistance to Mildred, but that the lack of adequate housing was never the primary barrier to reunification; that DCYF provided visitation to Mildred on a consistent basis when she lived in Rhode Island and New York; that DCYF kept Mildred informed about Antonio's health, progress, and development; that DCYF met its statutory obligation "to provide reasonable efforts by available social service agencies to reunify Antonio with his mother"; that Mildred's moving twice to New York constituted a lack of a good-faith effort to adjust her circumstances, conduct, or conditions in order to have made the return of Antonio possible within the foreseeable future; and, last, that Mildred had failed to maintain contact with Antonio since January 1992.

Consequently, the Family Court found that DCYF had proven by clear and convincing evidence that Mildred had a child in the care of a licensed or governmental child-placement agency for a period of at least six months and the integration of the child into Mildred's home was improbable in the foreseeable future due to conduct or conditions not likely to change. The trial justice did not find, however, that Mildred had abandoned or deserted her child. The trial justice granted the petition terminating the rights of both Mildred and Morales to consent to adoption and gave DCYF the exclusive right to place Antonio for adoption.

Mildred appealed the termination pursuant to G.L.1956 (1981 Reenactment) § 14-1-52.

The Issues on Appeal

On appeal, Mildred argued that DCYF failed to prove by clear and convincing evidence that she was unfit. She also argued that the trial justice erred in finding that DCYF made reasonable efforts to strengthen and encourage the parental relationship and in finding that the termination-of-parental-rights statute does not require out-of-home placement for a period of at least six months prior to the filing of the termination petition.

General Laws 1956 (1988 Reenactment) § 15-7-7(1)(c) ³ requires that the state prove three conditions before termination of parental rights can occur: "(1) the child has been in the care of a child-placement agency for six months; (2) reasonable efforts had been made to reunite the family; and (3) it...