In re Victoria L.

• Decision Date: 10 July 2008
• Docket Number: No. 2006-85-Appeal.,2006-85-Appeal.
• Citation: 950 A.2d 1168
• Parties: In re VICTORIA L.
• Court: Rhode Island Supreme Court

950 A.2d 1168

In re VICTORIA L.

No. 2006-85-Appeal.

Supreme Court of Rhode Island.

July 10, 2008.

Martha Kelly, Frank Iacono, for Plaintiffs DCYF, CASA.

Paula Rosin, for Defendant.

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

OPINION

Justice GOLDBERG, for the Court.

This case came before the Supreme Court on April 7, 2008, on appeal by the respondent, Rosalia Lopez-Navor (Lopez-Navor or respondent), from a decree entered in the Family Court terminating her parental rights to her daughter, Victoria L., who was born on June 16, 2004. For the reasons set forth in this opinion, we affirm the judgment.

Facts and Travel

This appeal is the first in a trilogy of cases arising from the horrific abuse that was inflicted upon Victoria's brother by their father, compounded by Lopez-Navor's utter failure to protect the child. The respondent, a native of Mexico, met Raul DeRosas (Raul)¹ when she was fifteen years old and he was twenty-two. In January 2001, Raul came to the United States, leaving a pregnant Lopez-Navor in Mexico. On August 17, 2001, their son, Alexis L.,² was born in Mexico. Two years later, in August 2003, Raul sent for Lopez-Navor, who then was eighteen years old. She illegally entered the United States and arrived with Alexis in Providence, where she was reunited with Raul. Lopez-Navor testified that she came to the United States because she "had many illusions of having [her] own family and being with the [father] of [her] child."

The reunion soon resulted in a second pregnancy. The record discloses that Lopez-Navor was about ten weeks pregnant on October 30, 2003, when she was hospitalized for a kidney infection. While Raul and Alexis were visiting Lopez-Navor at the hospital, a certified nurse's assistant observed bruising on Alexis's face and reported it to a staff social worker. Raul and Lopez-Navor claimed that Alexis had suffered the injuries by falling. Subsequent examination at Hasbro Children's Hospital revealed bruises and a slap mark on his left cheek, bruising of his gums, cuts to the inner lips, a laceration behind his right ear, bruises and bite marks on his buttocks and upper thighs, lacerations on both ankles, and a laceration of his penis. The Department of Children, Youth and Families (DCYF) was contacted, and Alexis was admitted to the hospital for further evaluation. He soon was placed in DCYF's temporary custody.

Although Raul and Lopez-Navor initially denied physically abusing Alexis, Raul later admitted to spanking him several times on the buttocks when Lopez-Navor was present. Subsequently, Lopez-Navor confirmed that she saw Raul spank Alexis on one occasion. DCYF opened an abuse case, and Raul and Lopez-Navor were indicated³ for physical abuse against their son. Raul subsequently was charged with second-degree child abuse under G.L.1956 § 11-9-5.3, and Lopez-Navor was charged with cruelty to or neglect of the child under § 11-9-5, for failing to protect him.

The DCYF investigation also disclosed that Raul and Lopez-Navor were in the United States illegally; the United States Department of Immigration and Naturalization Service placed a "hold" on both of them. Raul was detained and then deported to Mexico on February 12, 2004. A pregnant Lopez-Navor was detained briefly and released on personal recognizance on December 23, 2003. She was required to present herself to the Immigration and Naturalization Service once a month. By April 2004, Lopez-Navor was living at the Women's Center shelter with the assistance of the Mexican Consulate, which is located in Boston, Massachusetts. In May, Lopez-Navor's mother, Epigmenia Lopez (Epigmenia), arrived in the United States to assist her daughter.

When Victoria was born on June 16, 2004, DCYF was notified and placed the newborn in temporary protective custody. On June 18, 2004, DCYF filed a child-neglect petition, alleging that the parents had failed to provide Victoria with a minimum degree of care, supervision, or guardianship; that Victoria was without proper parental care and supervision; and that the father had abandoned and/or deserted Victoria.

On September 29, 2004, DCYF developed a case plan that designated reunification as the goal and provided for supervised visits between Victoria and Lopez-Navor. However, DCYF could not provide any other services to Lopez-Navor because, according to DCYF social caseworker Rita Graterol (Graterol), "[t]here were no places available for Spanish-speaking parents to attend a class of parenting classes in Spanish." Soon thereafter, on October 22, 2004, a Family Court justice entered a decree terminating Lopez-Navor's parental rights to Alexis.⁴ A month later, on November 22, 2004, DCYF filed a petition to terminate Raul and Lopez-Navor's parental rights to Victoria based on multiple allegations: (1) abandonment of the child by the father; (2) unfitness of the parents by reason of conduct or conditions seriously detrimental to the child, placement with DCYF, involuntary termination of parental rights to another child, the continued lack of ability or willingness to respond to rehabilitative services, and the improbability that further time would result in reunification within a reasonable period; and (3) unfitness based on committing, or allowing to be committed, conduct toward any child of a cruel or abusive nature.

Meanwhile, on March 16, 2005, while this termination petition was pending, a jury found Lopez-Navor guilty on the felony charge of cruelty to or neglect of Alexis. She was sentenced to eighteen months probation and referred to counseling. This Court today has affirmed that conviction.

A Family Court trial on the termination petition commenced on April 25, 2005; the trial justice began by taking judicial notice of the decree terminating Lopez-Navor's parental rights to Alexis, while noting that the decision was on appeal to this Court. Subsequently, he took judicial notice of Lopez-Navor's conviction for criminal neglect and the fact that she was awaiting sentencing for that offense.

Additionally, John Farley, who was Regional Director of DCYF's Family Service Unit, testified that placement of Lopez-Navor's child with family members in Mexico was not a viable option because DCYF would not be able to protect the child from Raul. Further, DCYF did consider a request to place Victoria with her maternal grandmother, but that was not feasible because she was living in a shelter.

After numerous witnesses, the trial justice issued a detailed and comprehensive written decision, dated October 19, 2005, in which he found that DCYF sustained its burden of proving by clear and convincing evidence its petition, and that Lopez-Navor's parental rights should be terminated. He recounted several relevant portions of testimony, including a portion that noted that the DCYF social caseworker described the visits between Lopez-Navor and Victoria as "appropriate," and that DCYF did not provide services for Lopez-Navor before it filed the termination petition. The trial justice also addressed the testimony of Lori Glovach (Glovach), a DCYF social caseworker supervisor, who testified that the service case plan for Victoria that was executed in September 2004 included reunification with the mother as the goal, and that among Lopez-Navor's obligations were visitation, attending parenting classes, complying with the Court's directives and with the Immigration and Naturalization Service, and cooperating with the police. The respondent complied with most of the aforementioned requirements, but she failed to attend a parenting class because there were no available services for Spanish-speaking parents. The trial justice also noted that Victoria could not be placed with her grandmother because she did not have a home that could be licensed by DCYF, as her temporary residency in the United States was a shelter. There were also concerns about placing the child with family in Mexico. He also found that, upon her discharge from the hospital, and until he was deported, respondent continued to live with Raul.

The trial justice concluded that the testimony of Maria Garrido, Ph.D. (Dr. Garrido), a clinical psychologist who counseled Lopez-Navor, was credible and candid. Doctor Garrido testified that respondent was a very young mother who bonded with her infant child and was receptive to any interventions and assistance to better her response to the child. However, Dr. Garrido testified that Lopez-Navor admitted that she was concerned about the child's safety if she returned to Mexico to the area where the family resided and would question the mother's judgment if she now was advocating for this result. The trial justice found that Lopez-Navor was not able to protect Victoria from harm.

Additionally, the trial justice found the testimony of Gilma Rojas (Rojas), the residential advocate at the Rhode Island Women's Center, who approved Lopez-Navor to watch children because she did not believe Lopez-Navor was guilty, to be without merit. Rojas testified that she knew that Lopez-Navor had been convicted of child neglect and that her visits with Victoria were supervised by DCYF, but there was no discussion about whether it was appropriate for Lopez-Navor to care for other children.

Finally, the trial justice addressed respondent's credibility and found her to be untruthful. According to the trial justice, Lopez-Navor lied about her fear of Raul and what he did to her son. Although she said she lied because of her fear that Raul would hurt the child, the court found that she continued to be untruthful even after the child was safely away from Raul's reach. Although he found that Lopez-Navor's progress in addressing domestic violence issues and her taking advantage of the educational opportunities offered at the shelter were commendable, the trial justice concluded that respondent still was in denial and that she considered herself a victim. The trial justice found that Lopez-Navor...