Kenneth, In re, 80-535-A
| Decision Date | 14 January 1982 |
| Docket Number | No. 80-535-A,80-535-A |
| Citation | 439 A.2d 1366 |
| Parties | In re KENNETH. ppeal. |
| Court | Rhode Island Supreme Court |
This is an appeal by the petitioner, the Department for Children and Their Families (the department), from a decree of the Family Court denying and dismissing its petition seeking a termination of the parental rights of the respondent, Kenneth's mother, 1 pursuant to G. L. 1956 (1969 Reenactment) § 15-7-7, P.L 1970, ch. 132, § 1, on the ground that Kenneth was "permanently neglected." 2
A hearing on the petition was held in 1980, and the following testimony and evidence were adduced. The respondent married Kenneth's father on February 3, 1962, and lived with him and their five children in Blackstone, Massachusetts, until September of 1974. At that time, she left her husband and family because conditions became "unbearable" due to her husband's drinking and physical abuse.
The respondent moved to Texas and then to Long Beach, California, where she met her present husband, Richard Krause, in 1975 while he was in the Navy. The respondent testified that during this time she repeatedly attempted to contact her children by telephone but that the father prevented her from doing so first by refusing to let the children speak to her and subsequently by obtaining an unlisted telephone number.
Meanwhile, Kenneth's father filed for and obtained a divorce in the Commonwealth of Massachusetts. The decree awarded custody of the children to the father and contained a provision denying respondent visitation privileges. The respondent was not served in the divorce action; therefore, she was not aware of the proceedings and was not represented in the action. At this time, the father entered into a relationship with another woman who was separated from her husband and who also had children. The father and the children from both families began living with the woman in her home in Woonsocket, Rhode Island.
The department became involved in Kenneth's case on March 4, 1976, when it received a battered-child report from Woonsocket Hospital indicating that Kenneth had been seriously bruised and apparently had been beaten. The following day, the department filed an ex parte petition alleging that Kenneth was dependent and neglected and seeking his custody. After a hearing, a decree was entered on April 21 1976, awarding custody to the department until further order of the court. Shortly, thereafter, Kenneth 3 was placed in a foster home. Subsequently, in December 1977, the father voluntarily placed his youngest child, Jessica, in foster home care in Massachusetts.
Approximately one year after leaving her family, respondent remarried and attempted to see Kenneth in Rhode Island. The respondent first came in contact with the boy's caseworker on September 30, 1976, when respondent flew to Rhode Island from Memphis, Tennessee, where her husband was stationed. The caseworker admitted at the hearing that upon respondent's arrival, the caseworker refused to allow respondent to visit with Kenneth because of the divorce decree in effect. The caseworker further stated that as long as the decree remained unmodified, respondent would not be permitted to visit Kenneth. The caseworker also admitted that no plans and no action had been taken to reunite respondent with Kenneth.
In November of 1977, Kenneth's case was assigned to another caseworker and a similar pattern prevailed. The respondent contacted the caseworker several times, and the caseworker reprimanded her for not giving up her parental rights. In addition respondent was told that the department had no intention of relinquishing custody because it was in Kenneth's best interests to remain with the foster parents and be adopted by them. The caseworker both informed respondent that she could not visit with Kenneth and refused to give her the address of the foster parents. In October of 1977, respondent and her husband moved to Maine and with the help of Massachusetts authorities, eventually obtained custody of her daughter Jessica.
The record shows that Dr. Vsevolod Sadovnikoff, a clinical psychiatrist, and Jay Kaplan, a clinical psychologist, testified at the hearing. The psychiatrist concluded that Kenneth had a positive relationship with his foster family and that to remove him "would be detrimental to his emotional welfare." However, he qualified this opinion on cross-examination by stating that he did not mean that Kenneth could not return to his natural mother if such reunification were preceded by appropriate visitation and appropriate counseling of the natural mother and Kenneth.
Kaplan testified that he thought it best that Kenneth remain with the foster parents without contact with the natural mother. However, he stated that if they were to be reunited, it would have to be done on a gradual basis. Finally, the trial justice asked the boy if he would want to return to his mother. He responded that he did not want to leave his foster home but that he would like to see his mother and sister.
The record also contains two reports issued by the state of Maine describing in very favorable terms the home environment of respondent and her husband; and one report indicated that respondent should have an opportunity to provide a home for Kenneth.
After reviewing the evidence, the trial justice found that the department had not complied with the statutory duty to encourage a relationship between Kenneth and his natural mother. Specifically, the justice found that the department failed to show that it had made reasonable efforts to encourage and strengthen the parental relationship during any twelve-month period between April 21, 1976 and March 28, 1979. During this period, he stated, respondent made repeated efforts to gain custody and visitation with her child, which efforts were blocked by the department's social workers. 4 The trial justice further found that respondent had established a proper home with adequate facilities for Kenneth and that she could provide the "care, love and attention he needed; that accordingly, she had adequately planned for the future of (Kenneth) * * *." Therefore, the petition was denied and dismissed and Kenneth was ordered with his mother to be referred for "psychological and/or psychiatric evaluation" to determine the best way ultimately to reunite Kenneth and his mother.
The only issue to be considered on appeal is whether the department complied with the statutory requirements of § 15-7-7 for the termination of parental rights.
The department contends that the trial justice misconstrued § 15-7-7 and that he overlooked and misconceived material evidence adduced at trial establishing the department's compliance with the statutory requirements. The department further argues...
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