Jonathan, In re, 78-431-A

• Decision Date: 10 June 1980
• Docket Number: No. 78-431-A,78-431-A
• Parties: In re JONATHAN. ppeal.
• Court: Rhode Island Supreme Court

Page 1036

415 A.2d 1036

In re JONATHAN.

No. 78-431-Appeal.

Supreme Court of Rhode Island.

June 10, 1980.

Barbara Hurst, Asst. Public Defender, for appellant.

Chester Lupton, Legal Counsel, Child Welfare Services, Providence, for appellee.

OPINION

DORIS, Justice.

This is an appeal from a Family Court decree awarding care, custody, and control of Jonathan, a minor child, to the Child Welfare Services (C.W.S.) subject to reasonable visitation rights by Beatrice, the mother of the child.

On January 18, 1978, C.W.S. filed a petition in Family Court under the provisions of G.L. 1956 (1969 Reenactment) § 14-1-3(H), as amended by P.L. 1969, ch. 252, § 1, alleging that Jonathan, age thirteen at the time, was dependent and neglected by the failure of his mother to supply him with adequate shelter, care, and supervision.

Jonathan was initially placed temporarily with an older sister, Marcia, and later with an older brother, Mark.

On March 16, 1978, Beatrice filed a petition seeking a change in custody and requesting return of Jonathan to her care and control. The petition of Beatrice and the petition of C.W.S. were consolidated for trial.

The only testimony at the hearing was that of Stephen Sheridan, a caseworker for C.W.S., and the testimony of Jonathan. Mr. Sheridan stated that in November 1977, he received a complaint from Marcia concerning Jonathan's welfare. After several unsuccessful attempts to visit the home of Jonathan, Sheridan in company with Marcia on January 11, 1978, was admitted to the residence by Jonathan. Sheridan described the building in which Jonathan was living as a "store front" with a door and a large plate-glass window that was covered on the inside with black paper so that it was impossible to see inside the premises from outside.

Jonathan testified that the premises in which he and his mother were living consisted of one large room approximately fifteen feet wide and thirty feet deep and a small bathroom containing a toilet and sink but no shower or bathtub and filled with miscellaneous items such as boxes and towels. He further testified that the large room was filled with Avon products, boxes, and furniture that his mother was selling. He further stated that the room was littered with trash and garbage.

Jonathan testified that there were no beds in the large room but that he and his mother slept next to each other on a small rug placed over wall-to-wall carpeting. He had a small corduroy-covered cushion which he seldom used for a pillow. Both he and his mother dressed in a curtained-off area in the large room. It is undisputed that Beatrice cooked about half of Jonathan's meals in a small oven, provided him with money for school lunches, and took him to restaurants where he was allowed to choose from the menu for the rest of his meals. Heat for the premises was provided by an electric heater. Jonathan stated that his mother provided him with clothes, clean laundry, soap and towels for washing, school books, and took him to movies and cultural events. He testified that perishable foods were kept in a box near the door and in a refrigerator in a nearby store. He further testified that he bathed twice a week either at the home of his mother's friends or at the home of his sister. His clothes were washed by his mother at a laundromat. He did not complain of any physical ailments. He stated that he attended school regularly, was a member of an accelerated class, and was a member of the local boy's club that was located nearby. He stated that he usually arrived home from school around 2:30 p.m. and that his mother was there then as well as at night. He stated that he would like to live with a sister in Connecticut because he loved her.

The trial justice reviewed this testimony and found that Jonathan was living in an unsanitary environment. He also was concerned with the sleeping arrangements. Based on this testimony, the trial justice found that the mother, Beatrice, had failed to provide adequate shelter for Jonathan and found him to be dependent and/or neglected, and pursuant to G.L. 1956 (1969 Reenactment) § 14-1-34, as amended by P.L. 1978, ch. 77, § 1, awarded custody and control of Jonathan to C.W.S. subject to reasonable visitation rights by Beatrice. At the same time the trial justice denied Beatrice's petition for a change in custody.

In her appeal, appellant alleges that the trial justice erred in finding Jonathan dependent and neglected under § 14-1-3(H). She contends that the right to raise one's child is a fundamental constitutional right upon which the state may intrude only when it has a "compelling interest." She argues that in order to show a "compelling interest," the state must prove by clear and convincing evidence that the care and custody provided by the parent actually harmed the child.

Child Welfare Services argues that the parents' right to the custody and care of their child is not absolute but subject to the right of the state as parens patriae to limit parental rights as the child's welfare is affected. Child Welfare Services asserts that when the state's authority to remove a child temporarily from the care and custody of a...