Armand, In re, 78-284-A

• Decision Date: 20 August 1981
• Docket Number: No. 78-284-A,78-284-A
• Parties: In re ARMAND and Rodney. ppeal.
• Court: Rhode Island Supreme Court

Page 957

433 A.2d 957

In re ARMAND and Rodney.

No. 78-284-Appeal.

Supreme Court of Rhode Island.

Aug. 20, 1981.

William F. Reilly, Public Defender, Mary Nagle, Asst. Public Defender, for plaintiff-respondent.

Roberts, Carroll, Feldstein & Tucker, Chester G. Lupton, Providence, for defendant-petitioner.

OPINION

MURRAY, Justice.

On February 23, 1977, the Child Welfare Services Division of the Department of Social and Rehabilitative Services (CWS), ¹ filed petitions in the Family Court seeking permanent termination of the parental rights of the respondent to her sons, Armand and Rodney. The petitions alleged that the children were permanently neglected in that the respondent had "failed for a period of more than one (1) year substantially and repeatedly to maintain contact with and plan for the future of said child(ren)." Following a hearing, a Family Court justice found that the children were permanently neglected. Decrees were subsequently entered terminating the parental rights of the respondent and giving the Department of Social and Rehabilitative Services the exclusive right to place the children for adoption and to give or to withhold consent for the same. ² The respondent is now before us on an appeal from the trial justice's determination. We find no merit in the issues raised by the respondent and affirm the decrees entered below.

The proceedings in the Family Court involved two of respondent's three children: Armand, born on March 18, 1973; and Rodney, born on February 14, 1975. ³ The record in this matter reveals the following facts. On March 19, 1975, respondent voluntarily placed Armand and Rodney with CWS because she was unable to cope with the responsibilities of caring for three children. Both children were temporarily placed in separate foster-care homes. On April 3, 1975, CWS petitioned the Family Court, seeking an adjudication that the two children were dependent and neglected. At a hearing on the petitions, respondent admitted the agency's allegations. The children were found to be dependent, and custody of the children was awarded to CWS.

After Armand and Rodney had been in foster-care homes for almost two years, CWS filed the instant petitions, pursuant to G.L.1956 (1969 Reenactment) § 15-7-7, as amended by P.L.1970, ch. 132, § 1, alleging that the children were permanently neglected ⁴ and seeking termination of respondent's parental rights to them. The substance of the evidence presented at the hearing ⁵ by CWS in support of the petitions can be briefly summarized. The caseworkers and the supervisors responsible for Armand's and Rodney's welfare testified that during the time in which the children were in foster-care homes, CWS encouraged respondent to visit with the children and to interact with their foster parents. In order to facilitate respondent's contact with the children, CWS arranged times for visitation and also provided transportation for the children. Despite these efforts made by CWS, respondent at times would cancel the scheduled visitation or would either fail to appear or arrive late. There was also a three-month period, one caseworker testified, during which CWS was unable to contact respondent despite CWS's efforts to locate her through her family and friends.

In light of respondent's demonstrated inconsistency in keeping visitation appointments, CWS continued to schedule visitation with the children on a monthly basis at the Children's Center in Providence. In order for respondent to visit with the children, it was necessary for her to telephone the children's caseworker two days in advance to confirm the scheduled visit. The respondent's failure to confirm would result in the cancellation of the visit. Although respondent did, in fact, visit with the children on several occasions during the period referred to by CWS in the petitions, a number of scheduled visits were canceled because respondent did not comply with the confirmation procedure. During the visitations that did take place, the caseworkers testified that there was only minimal interaction between respondent and the children.

CWS caseworkers also testified that they had met with respondent at different times in an attempt to discuss planning for respondent's needs as well as for the future of the children. Specifically, CWS urged respondent to seek psychological counseling and offered to refer her to the Providence Mental Health Clinic. The respondent, however, despite complaints about "depression," refused to attend for fear that people would think she was "crazy." The agency further encouraged respondent to obtain suitable housing and to participate in a vocational-training program as further means to stabilize her life and to facilitate the return of the children to her.

At the conclusion of the hearing, the trial justice, in a lengthy and comprehensive decision in which he reviewed the testimony of all the witnesses who had appeared before him, stated:

"Armand and Rodney have been placed in foster care by the agency since March 1975; and based on the testimony * * * the court further finds as a fact * * * that the agency through the efforts of its (case)workers did fulfill the statutory burden imposed upon it by * * * affording to the respondent visitation with the children. Although visitation was afforded to the mother on a monthly basis, it was at first, scheduled on a weekend basis, but because of the ambivalence of and inconsistency of maintaining same by the respondent, caused the rearrangement to month-to-month intervals, without objection by the respondent. The exigency of the circumstances dictated the change. Additionally, in a further attempt to reunite the children with the mother, the court further finds as a fact * * * that (the caseworkers) advised the respondent that counseling was available to her at mental health clinics, which counseling would be hopefully helpful in providing stability and direction in her life style. Such efforts, however, were nonetheless fruitless in that respondent refused to attend. Based upon the aforesaid testimony adduced from the (case)workers, the court further finds * * * that the respondent failed to substantially and repeatedly maintain contact with and plan for the future of the child(ren). Each attempt made by the (case)workers * * * who advised the respondent of her responsibility to meet and plan for the temporal well-being of the youngsters, was futile. It seems that the respondent manifested, at least in 1976, an intention of maintaining more frequent visitation, but the record is devoid of even a modicum or scintilla of evidence, which would cause the court to conclude that the mother indicated any interest in meeting the needs of the children. It would appear that she was content in being a surrogate mother, and thereby permitting the agency to plan for the future needs of her children.

"Turning to the best interests of the children, having in mind that Rodney was one month old at placement, and is now three years old and Armand, now age five, and in foster care since age two, to defer adoption would only serve to diminish their chances of being adopted. By affording them that mechanism as provided by statute, the children can be provided with permanency, stability, and the security of a home environment, all of which temporal necessities the respondent has heretofore not only failed to so provide, but (has) not even overtly considered."

Relying on these findings, the trial justice held that Armand and Rodney were permanently neglected within the meaning of § 15-7-7 and granted the petitions for termination of parental rights. ⁶

On appeal, respondent claims that the trial justice erred in finding that the children were permanently neglected. Specifically, she contends that there was not sufficient evidence introduced at the hearing upon which the trial justice could conclude that (1) she had failed substantially and repeatedly to maintain contact with and plan for the future of the children and (2) CWS had made efforts to encourage and strengthen her parental relationship with the children. In view of CWS's failure to satisfy these statutory requirements, respondent argues, the trial justice erred in granting the petition to terminate her parental rights.

As we have previously noted, CWS's petitions for termination of respondent's parental rights alleged that the children were "permanently neglected." General Laws 1956 (1969 Reenactment) § 15-7-7, as amended by P.L.1970, ch. 132, § 1, defines a "permanently neglected child" as

"a person under eighteen (18) years of age who has been placed in the care of an authorized agency, either in an institution, foster home, or the home of a relative and whose parent or custodian has failed for a period of more than one (1) year * * * following the placement or commitment of such child in the care of an authorized agency, substantially and repeatedly to maintain contact with and plan for the future of the child, notwithstanding efforts which shall be made by the said agency to encourage and strengthen the parental relationship."

The purpose of a termination-of-parental-rights proceeding based upon allegations of permanent neglect is "to determine whether the parent has manifested, despite the child's placement out of the home, the sense of responsibility, interest and affection essential to the reestablishment of parental care for the child." (Footnote omitted.) In the Matter of Stephen B., 60 Misc.2d 662, 665, 303 N.Y.S.2d 438, 442 (1969). We have said that this section requires a trial justice, considering a petition to terminate parental rights, to examine the conduct of the parents or the custodians in conjunction with that of the authorized agency, which in this case is CWS. Thus, as a condition precedent to termination of respondent's parental rights in the instant case, CWS was required to demonstrate that respondent's failure to maintain contact with and plan for the future of...