In re Destiny D.

• Decision Date: 25 May 2007
• Docket Number: No. 2006-20-A.,2006-20-A.
• Citation: 922 A.2d 168
• Parties: In re DESTINY D. et al.
• Court: Rhode Island Supreme Court

922 A.2d 168

In re DESTINY D. et al.

No. 2006-20-A.

Supreme Court of Rhode Island.

May 25, 2007.

John E. Sylvia, Esq., for Petitioner Mother.

C. Daniel Schrock, Esq., for Petitioner Father.

Karen A. Clark, Esq., Providence, for DCYF.

Joseph Palmieri, Esq., Providence, for Guardian ad Litem.

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

OPINION

Justice GOLDBERG, for the Court.

This case came before the Supreme Court for oral argument on April 5th, 2007, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal at this time. For the reasons set forth in this opinion, we affirm the decree of the Family Court.

Facts and Travel

The events surrounding this heartbreaking case have received considerable media attention and are indescribably tragic. The respondents, Katherine Bunnell (Bunnell) and Gilbert Delestre (Delestre) (collectively respondents), a young Woonsocket couple, were twenty-one and twenty-three years-old at the time of the events described in this opinion. At that time, they had two biological children living with them, Destiny Delestre (Destiny), born on June 9, 2000, and Daziya Delestre (Daziya), born on July 15, 2002. In addition to Destiny and Daziya, Bunnell and Delestre also were caring for three children of Karen Wright, who is Bunnell's sister and who was incarcerated and serving a six-year sentence in another state for trafficking over 5,000 grams of marijuana. These three children were David Bolton, Mickey Wright,¹ and three-year-old Thomas "T.J." Wright (T.J.).²

On the night of October 29, 2004, Delestre and Bunnell hired a fifteen-year-old babysitter, Kayla Roderick (Roderick or babysitter), to look after all five children so that they could go out for the evening.³ According to Roderick, Bunnell and Delestre left at about 7:30 p.m.; Bunnell returned briefly at about 7:50 p.m., before leaving for the evening. Roderick testified that she had some friends over from approximately 8:30 p.m. until 11:30 p.m. The couple did not return until approximately 2:50 a.m. on the morning of October 30th. At that time, Roderick was asleep on the floor and the children were upstairs in bed. According to Roderick, three-year-old T.J. originally had gone to sleep on the couch, but was upstairs when Bunnell and Delestre returned.

Roderick testified that Bunnell and Delestre appeared to have been drinking, and, when they saw that milk and yogurt had been spilled on the carpet, they became angry. Both Bunnell and Delestre started yelling "[w]hat happened to the house? Why is the house a mess?" Delestre ran upstairs and Roderick heard what sounded like slaps. She then heard T.J. begin to cry. Bunnell also ran upstairs and then yelled at T.J. "[w]hat did you do to the house?"

At that point, Roderick testified, Bunnell then came down the stairs carrying T.J. by his arms, with her knee hitting him in the back as she descended; when she got to the bottom of the stairs, she dropped T.J. and he fell on the floor. Bunnell continued to shout while T.J. repeatedly tried to stand up; Bunnell would help him get up and then hit him in the face, back and chest. Finally, as T.J. was lying on the floor, Bunnell poured a quart of milk on him. This brutality continued.

The direct evidence and the inferences drawn from the evidence established that Delestre threw the child in the air. Roderick testified that she saw T.J. flying toward Bunnell, and Delestre's arms were up in the air. T.J. landed on the floor, with one leg under him and the other leg sprawled out; he then curled up, whimpering and crying. Bunnell then brought T.J. to the stairs to sit, so he could stop crying and breathe. In her statement to police, Bunnell indicated that Delestre slapped T.J. in the face and head, so that his lip was bleeding, and that she also struck the child in the head. Roderick estimated that the couple beat T.J. intermittently for between ten and fifteen minutes before Bunnell drove her home.⁴ At that time, Bunnell was still visibly angry at T.J. about the mess and was yelling, "[s]wear to God, I swear I'm going to do it again." T.J. later died at Hasbro Children's Hospital because of repeated blunt-force trauma to his head. The manner of death was homicide.

Woonsocket police took statements from Bunnell, Delestre, and Roderick, including a videotaped statement from Delestre. After T.J.'s death, on November 1, 2004, the Department of Children, Youth and Families (DCYF), under G.L.1956 § 15-7-7,⁵ petitioned to terminate respondents' parental rights to Destiny and Daziya, alleging that they had committed cruel and abusive conduct toward T.J. and had subjected these children to conduct or conditions seriously detrimental to their wellbeing.⁶

In addition to the testimony of the babysitter, the court heard testimony from: Domenic Lancellotta (Lancellotta), a child protective investigator for DCYF; Jennifer Jawharjian (Jawharjian), a DCYF social caseworker; Dr. Reena Isaac (Dr. Isaac), an expert in forensic pediatrics; and Woonsocket police detectives, Sergeant Todd A. Brien (Sgt. Brien) and Tony Wood.

After both Delestre and Bunnell had invoked their Fifth Amendment privilege against self-incrimination at trial, Lancellotta testified about statements each defendant made while in custody at the Adult Correctional Institutions.⁷ In her statement Bunnell admitted that she had slapped T.J. in the face and poured milk on him because he had made a mess in the house. Although Delestre admitted to the Woonsocket police that he abused T.J., he told Lancellotta that he gave a statement to the police only because they promised they would let him go.

Doctor Isaac, who observed T.J. while he was comatose in the emergency room, testified at length about the child's numerous injuries, including head trauma, severe brain injury, facial trauma, and multiple fractures. She testified that in her opinion T.J.'s injuries had occurred within a few hours of her examination and that his injuries were the result of child abuse.

Additionally, a letter from Dr. Anait Azarian (Dr. Azarian), the treating physician to T.J.'s older brother David, was introduced into evidence. It was Dr. Azarian's opinion that it would be detrimental to David's emotional well-being to require him to testify in the termination proceeding about the events that occurred on the night in question.

After a lengthy trial, the Family Court justice found, by clear and convincing evidence, that the injuries T.J. Wright suffered were inflicted by respondents. He found them "unfit by reason of conduct or conditions severely detrimental to the child[,] T.J. Wright[, of] a cruel and abusive nature." The trial justice, citing § 15-7-7(b)(1),⁸ held that "[o]nce cruel and abusive behavior is established [DCYF] has no obligation to engage in reasonable efforts to preserve and reunify the family." He then found by clear and convincing evidence that it was in the children's best interest to terminate Bunnell and Delestre's parental rights. The respondents timely appealed.

Issues

Before this Court, Bunnell and Delestre raise separate points of error. Bunnell argues that the trial justice erred in admitting her prior written statements into evidence after she invoked her Fifth-Amendment privilege against self-incrimination, and further, that he erred in drawing adverse inferences based on her refusal to testify. Delestre argues that the trial justice abused his discretion and violated Delestre's due process rights when he denied Delestre's motion to compel T.J.'s older brother, David, to testify at trial. Delestre also argues that the trial justice was clearly wrong in finding facts sufficient to terminate his parental rights.

Standard of Review

The findings of a Family Court justice in a termination of parental rights proceeding "are entitled to great weight and will not be disturbed unless" the findings are clearly wrong or the trial justice overlooked or misconceived material evidence. In re Kristen B., 558 A.2d 200, 204 (R.I.1989). Natural parents have a fundamental liberty interest in the "care, custody, and management" of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A finding of parental unfitness, therefore, is "the first necessary step" before a termination of parental rights can occur. In re Kristina L., 520 A.2d 574, 580 (R.I.1987). Before the state may terminate a parent's parental rights, due process requires that the state support its allegations by at least clear and convincing evidence. In re Antonio G., 657 A.2d 1052, 1057 (R.I.1995) (citing Santosky, 455 U.S. at 747-48, 102 S.Ct. 1388). After such a determination, "the best interests of the child outweigh all other considerations." In re Kristen B., 558 A.2d at 203.

Fifth-Amendment Privilege

On appeal, Bunnell argues that the trial justice erred when, after she refused to testify at trial, he admitted her statements to the Woonsocket police into evidence. Bunnell contends that the use of this evidence violated her rights as embodied in the Fifth Amendment to the United States Constitution.⁹

Bunnell argues that the exceptions to the exclusionary protections afforded by § 15-7-7(f)¹⁰ prevented her from giving testimony because any statements or admissions could be admissible in the pending criminal prosecution for T.J.'s death, and, therefore, she contends, her prior statements should have been excluded. Although she correctly cites Tona, Inc. v. Evans, 590 A.2d 873, 875 (R.I.1991), for the proposition that the Fifth-Amendment privilege against self-incrimination is available in a civil proceeding, whether or not a criminal proceeding is pending, her contention that the Fifth Amendment precludes the...