In re Daniel D.

• Decision Date: 09 December 2010
• Docket Number: No. 2009-289-Appeal.,2009-289-Appeal.
• Citation: 9 A.3d 651
• Parties: In re DANIEL D. et al.
• Court: Rhode Island Supreme Court

9 A.3d 651

In re DANIEL D. et al.

No. 2009-289-Appeal.

Supreme Court of Rhode Island.

Dec. 9, 2010.

Thomas J. Corrigan Jr., Esq., Department of Children, Youth & Families, for DCYF.

Shella R. Katz, Esquire, Court Appointed Special Advocate, for CASA.

Catherine Gibran, Office of the Public Defender, for Respondent.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

The respondent, Daniel Diaz (respondent or Diaz), appeals from a Family Court decree terminating his parental rights to his three sons, Daniel, Jose, and Emmanuel. This case came before the Supreme Court for oral argument on November 9, 2010, pursuant to an order directing both parties to appear and show cause why the issues raised by this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be decided at this time. For the reasons set forth below, we affirm the decree of the Family Court.

IFacts and Travel

The respondent is the father of Daniel, Jose, and Emmanuel, currently ages fifteen, thirteen, and twelve, respectively. Diaz has been diagnosed with "mental retardation" and receives Social Security benefits for this disability. ¹ He was born in Puerto Rico and speaks only Spanish.

The family first became involved with the Department of Children, Youth and Families (DCYF) in August 2002 after DCYF received a report that the children's mother was physically abusing the children and using illegal drugs. She did not know where Diaz was living at the time, but speculated that he might be living in Puerto Rico. On August 23, 2002, DCYF filed apetition alleging that the children were dependent and neglected. After an ex parte hearing, the children were placed in DCYF custody. Approximately a year later, Diaz returned from Puerto Rico and expressed a desire for the boys to live with him there. After DCYF received a favorable report based on a home study by an agency in Puerto Rico, the three boys relocated there with their father in 2004, and the case was closed.

Diaz and his children returned to Rhode Island before February 9, 2006, on which date DCYF received a report that he was physically abusing his sons. On February 14, 2006, DCYF filed a petition in Family Court alleging that Daniel, Jose, and Emmanuel were dependent, neglected, and abused. Specifically, the petition contended that the children's mother failed to provide the boys "with a minimum degree of care, supervision or guardianship" and that Diaz "inflicted or allowed to be inflicted upon the child[ren], physical injury." A hearing was held on February 21, 2006, at which both respondent and the children's mother were present, and the children again were placed in DCYF custody. ²

On September 28, 2007, DCYF filed three petitions in the Family Court seeking to terminate Diaz's parental rights to his three sons.³ DCYF alleged that a ground for terminating Diaz's parental rights was that he had "abandoned or deserted" each child named in the petition. On March 13, 2008, at a pretrial hearing before the Family Court, respondent requested visitation with his children and represented that he began a parenting class that same day and was willing to undergo psychological and substance-abuse evaluations. His request was denied. A five-day trial then was held before a justice of the Family Court, commencing on October 30, 2008.

DCYF called several witnesses. First, it called Shelly Fore, a social case worker formerly employed by DCYF. Ms. Fore managed the Diaz children's case from February 2006 until September 2006. She testified that when she first was assigned to the case, the children had been removed from their father's custody after DCYF received allegations that Diaz had physically abused them and that he was "drinking to intoxication."

According to Ms. Fore, she met Diaz on February 21, 2006, at the hearing on the underlying-neglect petition. She spoke with Diaz at the courthouse through an interpreter. Ms. Fore testified that she explained to him that she could assist in reunifying him with his children, and offered him services such as substance-abuse and mental-health evaluations. Ms. Fore testified that Diaz "indicated that he wasnot in agreement to completing any evaluations and that he was in support of a case plan goal of [the children's] reunification with [their] mother." According to Ms. Fore, Diaz also "indicated that he was not interested in pursuing any further contact with the children."

Ms. Fore testified that she never had any other communication with Diaz, although she did attempt to contact him twice in June 2006 by sending letters to two of his possible addresses. According to Ms. Fore, she received no response. She testified that she later learned from the children's mother that Diaz had moved to Pennsylvania. Ms. Fore said that although she gave Diaz her business card, she never received any telephone calls or correspondence from him. Additionally, according to Ms. Fore, Diaz never visited his children during the time that she was assigned to the case.⁴

DCYF next called David Hankins, a social case worker, to testify. As of September 2006, Mr. Hankins managed the Diaz case. Mr. Hankins testified that the children's mother told him that Diaz was in Pennsylvania but that she did not know his exact location. According to Mr. Hankins, he later learned from her that Diaz may be in Woonsocket living with his sister. Mr. Hankins testified that he ascertained the apartment complex in Woonsocket where Diaz might be residing. There he located respondent's sister, Lydia, who informed Mr. Hankins of respondent's whereabouts.

On December 6, 2007, Diaz appeared at his arraignment on the petitions for termination of parental rights. Mr. Hankins testified that he spoke to Diaz at this time and that Diaz told him, with his sister Lydia acting as an interpreter, "that he wanted to work on reunification." Mr. Hankins said that he then told Diaz that the time for reunification had passed and that a petition for termination of parental rights had been filed. Mr. Hankins testified that Diaz had not contacted him prior to that day and never had attempted to call him since Mr. Hankins had been assigned to the case.

The respondent called his two sisters, Lydia and Esther Diaz, to testify. Lydia said that Diaz lived on his own in Rhode Island, but she helped him with transportation. She testified that she also had made phone calls for him, including calls to DCYF and the Family Court, over the course of a year from 2006 until 2007. According to Lydia, she was unable to reach anyone at DCYF or the Family Court by telephone and left messages identifying herself as Diaz's sister and requesting that her call be returned. Esther testified that she helped Diaz with his finances and arranged appointments with his doctors.

Attorney Donald G.F. Elbert, Jr., the guardian ad litem appointed to represent Diaz, also testified for respondent. Mr. Elbert recalled that he had difficulty communicating with Diaz, but that their communication "was greatly enhanced with the interpreter." According to Mr. Elbert, Diaz "was able to communicate in Spanish and respond appropriately" through the interpreter. He testified that he slowly and repeatedly explained the proceedings to Diaz and that he "believe[d] [Diaz] understood the nature of these [termination of parental rights] proceedings."

Diaz also testified at the trial with the assistance of an interpreter. ⁵ He testifiedthat he spoke to a woman from DCYF in February 2006 with an interpreter present and told her that he wanted to try to "get the kids back." Diaz also acknowledged that he told Ms. Fore that he would be amenable to the children's being reunified with their mother "if she had the right to go ahead and take care of them."

According to Diaz, he left Rhode Island in 2006 to live in Pennsylvania because he had difficulty finding housing in Rhode Island. He said that he lived there for a year and a half, and returned to Rhode Island in 2007. He testified that while he was in Pennsylvania he tried to contact his children through his sister, Lydia, who would make phone calls on his behalf.

DCYF called the final witness to testify, Wendy Pires, a case manager and after-care specialist for Family Resources Community Action (Family Resources) who was responsible for the cases involving the children. According to Ms. Pires, the three boys were "doing very well" in foster care. She testified that although the boys asked to see their father on occasion, Family Resources ultimately recommended that it was not in their best interests to have visitation with Diaz.

The trial justice rendered a decision on April 8, 2009, and a decree terminating respondent's parental rights to his children was entered on April 30, 2009. He found that Diaz expressed to Ms. Fore on February 21, 2006, that he "had no interest in reunification with his children." Additionally, he found that Diaz did not appear in Family Court again until December 6, 2007, for the arraignment on the petitions for termination of his parental rights. The trial justice noted that "during a significant period of this time, as much as a year and a half according to the [respondent's] testimony, the respondent father had moved to Pennsylvania for financial reasons, and had no contact with his children or [DCYF]." He found that the efforts of Diaz's sister, Lydia, to contact DCYF and the Family Court "were minimal and she did not follow through in contacting [DCYF]."

As a consequence of the lack of contact that Diaz had with his children since February 21, 2006, the trial justice concluded that "DCYF established a prima facie case of abandonment by demonstrating a lack of visits or contact with said children for the statutory six month period." Therefore, he found "by clear and...