In re Steven D. Et Al.
| Citation | 23 A.3d 1138 |
| Decision Date | 29 June 2011 |
| Docket Number | No. 2009–62–Appeal.,2009–62–Appeal. |
| Parties | In re STEVEN D. et al. |
| Court | United States State Supreme Court of Rhode Island |
OPINION TEXT STARTS HERE
Thomas J. Corrigan, Jr., Esq., Department of Children, Youth and Families, for DCYF.Shella R. Katz, Esquire, Court Appointed Special Advocate, for CASA.Christopher Gontarz, Esq., Middletown, for Respondent Father.Janice Weisfeld, Office of the Public Defender, for Respondent Mother.Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
The respondents, Kathleen D. and Ronald D., appeal from a Family Court decree terminating their parental rights with respect to their two children, Steven D. and Zachary D. For the reasons set forth in this opinion, we vacate the decree of the Family Court.
On September 14, 2007, the Rhode Island Department of Children, Youth and Families (DCYF) filed petitions to terminate the parental rights of Kathleen and Ronald with respect to their two children, Steven (born September 22, 1997) and Zachary (born November 1, 2000). Pursuant to G.L.1956 § 15–7–7(a)(3), DCYF alleged the following grounds for the termination of parental rights (TPR): that the children had been placed in the legal custody or care of DCYF for at least twelve months; that the parents were offered or received services to correct the situation which led to the children being so placed; and that there was not a substantial probability that the children would be able to return safely to respondents' care within a reasonable period of time considering the children's age and the need for a permanent home.1
A trial on the petitions to terminate parental rights was held before a justice of the Family Court on various dates over the course of six months. 2 The following facts and background information have been culled from the record of the Family Court proceedings, including most notably the voluminous testimony elicited at trial.
Steven and Zachary were first removed from the custody of Kathleen and Ronald on July 21, 2005. The removal was not occasioned by any alleged misconduct on the part of the parents but because Kathleen was hospitalized. Her eleven-day hospital stay was a result of having suffered cardiac arrest attendant upon a viral infection; indeed, during much of that time, she was in a medically induced coma. A nurse called DCYF out of concern that Ronald would not be able to care for Steven and Zachary by himself due to his own health problems, which included epilepsy and rheumatoid arthritis.
On July 22, 2005, shortly after Kathleen was hospitalized, DCYF filed in the Family Court ex parte neglect petitions in conjunction with a request for an order of detention; the court granted those ex parte petitions. The children were removed and placed with Ronald's sister, and DCYF assigned caseworker Jennifer Jawharjian to work with respondents. Ms. Jawharjian first met with respondents in August of 2005 in order to collect background information and develop a case plan for the family. She testified at the trial of the instant case that, at that meeting, respondents were upset and uncooperative, swore at her, and expressed the view “that there was no reason for [DCYF] to be involved.”
Ms. Jawharjian then proceeded to prepare initial case plans for Steven and Zachary. The plans were completed by the end of August, and each plan had a stated goal of reunification. The plan for Steven explicitly noted that he was “a happy child” and that he looked after his younger brother, who had developmental disabilities. The plan further stated:
“The family has a strong bond with one another and are always happy to see on[e] another during weekly visitations.”
The plan for Zachary similarly stated that the family had a “strong bond,” and it noted that respondents had been accessing services in order to address Zachary's developmental disabilities.
The plans indicated that the children had been removed from respondents' home when Kathleen was hospitalized because Ronald was not considered an appropriate caretaker “due to medical issues and alcohol use.” 3 The stated objectives of each case plan were that Kathleen and Ronald would (1) develop and maintain a substance-free lifestyle; (2) prevent domestic disputes from affecting their children; and (3) cooperate with DCYF. In furtherance of these objectives, the plans stated that respondents agreed to complete the following tasks: (1) refrain from using any illegal or intoxicating substances, including alcohol; (2) cooperate with a substance abuse evaluation and follow treatment recommendations; (3) submit to supervised urine screens, both random and scheduled; and (4) utilize a network of “clean and sober supports such as church, AA/NA, and community providers.” The plans further stated that respondents agreed to refrain from physically or verbally assaulting each other and also agreed to complete domestic violence counseling as recommended. With respect to visitation, the plans stated that, during a court hearing on August 25, 2005, respondents had agreed (1) to comply with scheduled visits; (2) not to be under the influence of drugs or alcohol or have “the smell of liquor about [them]” when attending those visits; and (3) generally to cooperate with the recommendations of service providers and of DCYF. Kathleen signed the case plans, although she noted that she disagreed with them; Ronald refused to sign the case plans.
Ms. Jawharjian referred both respondents for substance abuse evaluations. In addition, she referred Kathleen for domestic violence and mental health counseling, and she referred Ronald for anger management counseling. The respondents both underwent substance abuse evaluations at Northern Rhode Island Community Services in August of 2005; those evaluations concluded that neither Kathleen nor Ronald had a substance abuse problem at that time.
Ms. Jawharjian testified at trial that Kathleen was at that time participating in mental health counseling with Dona Harrower, a social worker at Family Resources Community Action (Family Resources) in Woonsocket.4 Ms. Jawharjian further testified that Ronald went to Tri–Hab 5 to discuss an anger management program, but she added that he did not participate in the program because he indicated to her that it would be too difficult for him to travel to the Tri–Hab facility in light of what Ms. Jawharjian described as his “health conditions.”
During this time period, respondents had weekly supervised visits with Steven and Zachary. Ms. Jawharjian testified that respondents consistently attended the visits and that they were “very affectionate to their children.” However, she also stated that respondents would often swear at her and that Ronald gave her “the finger” in front of the children, and she stated that on occasion Kathleen “smelled of alcohol.” According to Ms. Jawharjian, when she expressed her concern to Kathleen that “substance abuse could not occur during visitations,” Kathleen told her that “she was of age” and had drunk “hours before” the visit took place.
On November 17, 2005, respondents admitted to dependency; and the Family Court entered an order committing Steven and Zachary to the care, custody, and control of DCYF. The court subsequently issued a decree dated December 15, 2005, providing that the children could return home on condition that respondents comply with the following services: engaging in “outpatient counseling;” participating in the CEDARR and CASSP programs; 6 attending Alcoholics Anonymous (AA) meetings; and availing themselves of parent aide services and anger management counseling. The decree “strongly urge[d]” respondents not to drink alcohol, specifying that such abstention would be a condition of the children's placement in the home.
Ms. Jawharjian was subsequently transferred to a different DCYF office, and respondents' case was then assigned to a new caseworker, Greg Iafrate. Mr. Iafrate proceeded to develop a second set of case plans for the family, dated December 13, 2005; those case plans had the stated goal of maintaining the children at home. As with the August 2005 plans, Kathleen and Ronald were to (1) develop and maintain a substance-free lifestyle; (2) prevent domestic disputes from affecting their children; and (3) cooperate with DCYF and the Family Court. The December 2005 case plans also indicated that Kathleen and Ronald had been ordered by the court to refrain from using alcohol; the plans further stated that respondents would continue to seek counseling from Family Resources “to deal with mental health issues and anger management” and that they would cooperate with home-based services from ARC of Northern Rhode Island 7 and with parent aide services. The plans also stated that Kathleen would continue to participate in AA meetings and would provide DCYF with documentation of her attendance. In contrast with the August 2005 case plans, however, the December plans made no mention of further substance abuse evaluation or treatment, and they no longer required respondents to submit to urine screens. Both Kathleen and Ronald signed the December case plans, and they indicated that they were in agreement with the plans.
Mr. Iafrate subsequently left his employment with DCYF, and another caseworker, Marcie Baker, was assigned to work with respondents in January of 2006. On January 20, 2006, DCYF filed an emergency motion in the Family Court seeking a change of placement, and the children were briefly removed from respondents' home. On January 26, 2006, the Family Court determined that the children should be returned to respondents' home; an order entered on February 21, 2006, which stated that the children's placement at home was to be at the discretion of DCYF and that a DCYF representative was to go to the home once per week; it further ordered Kathleen “to cooperate with all services,” including a psychiatric evaluation and home-based...
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