Kristen B., In re, 88-223-A

• Decision Date: 27 April 1989
• Docket Number: No. 88-223-A,88-223-A
• Citation: 558 A.2d 200
• Parties: In re KRISTEN B., ppeal.
• Court: Rhode Island Supreme Court

Page 200

558 A.2d 200

In re KRISTEN B.,

No. 88-223-Appeal.

Supreme Court of Rhode Island.

April 27, 1989.

Francis B. Brown, CASA, Laureen Quaranto D'Ambra, Janet Gilligan, Department of Children and their Families, Shella Katz, guardian ad litem, for plaintiff.

Joseph A. Palmieri, Palmieri & Carr, Barbara Hurst, Asst. Public Defender, Providence, for defendant.

OPINION

FAY, Chief Justice.

This matter is before the court on an appeal from a decree of the Family Court granting a petition to terminate parental rights filed by the Department of Children and Their Families (DCF). The petitioners, Catherine B. and Peter H., ¹ at that time had three minor children; however, their parental rights were terminated only in regard to their eldest child, Kristen. We affirm the decision of the trial justice. The facts to this case are as follows.

In July 1985 Catherine B. voluntarily placed her three-year-old daughter, Kristen, in the care of DCF, stating that through no fault of her own she was unable to care for or control her because of her aggressive behavior toward the other children in the family. During her first few weeks of foster care Kristen began alleging she had been sexually abused by her parents, whom she consistently referred to as the "bad people."

In mid August 1985 Catherine informed DCF that she did not want visitation with Kristen "for awhile." The following month the Family Court issued an ex parte order of detention placing Kristen and her two younger sisters in the temporary custody of DCF, relying on the child's allegations of sexual abuse by the parents. During September and October 1985 Kristen visited twice with her two siblings; however, she adamantly refused visitation with her parents.

On October 25, 1985, the two younger children were returned to Catherine while foster care was continued for Kristen, and parental visitation was suspended.

In November 1985 DCF caseworker Sandra Messier established a case plan for both Catherine and Peter to follow in order to have visitation with Kristen. This case plan essentially focused on therapy for both Kristen and her parents, incorporating a variety of rehabilitative services such as Parents Anonymous, the East Side Center, and the Family Center in Pawtucket, all geared toward developing better parenting skills. In addition the case plan called for alcohol and drug counseling for both parents. Ultimately both Catherine and Peter (on the advice of counsel) refused to sign this case plan.

A commitment trial was held in January 1986. At the conclusion of the trial, the parents and DCF entered into a consent decree establishing a finding of dependency, wherein Kristen was committed to the care, custody, and control of DCF until further order of the court. Psychological evaluations were ordered for both Kristen and her parents, and the recommendations in those evaluations were to be incorporated into a case plan for reunification.

Doctor Judith Kaliski, a clinical psychologist, evaluated both the parents and the child in the spring of 1986. Her professional opinion was that Kristen suffered from a "hyperactive behavioral disorder of childhood" and that she was a sexual-abuse victim in the process of developing a severe behavioral disorder. Doctor Kaliski found Peter to be a chronic alcoholic with a severe personality disorder and Catherine to suffer from a personality disorder of the "passive-aggressive" type. Doctor Kaliski's recommendations focused on intensive therapy and the utilization of such social services as Alcoholics Anonymous for Peter, Parents United (group therapy for sexual-abuse victims and parents who sexually abuse children) for Kristen and her parents, and individual counseling for both parents and the child before any reunification of the family would be possible.

In June 1986 Sandra Messier of DCF presented a case plan for reunification that contained Dr. Kaliski's recommendations for intensive therapy. On July 2, 1986, the plan was approved by the Family Court and executed by both the parents and DCF as a condition of reinstatement of visitation with Kristen. Pursuant to Dr. Kaliski's recommendation, the Family Court suspended all parental visitation for six months while the family underwent counseling.

In accordance with the July 1986 case plan, DCF transported both parents to Parents United meetings in Brockton, Massachusetts, throughout July and August 1986. Unfortunately not only was their attendance at those meetings sporadic at best but, when they did attend their antagonistic attitude toward the entire group was actually counterproductive. Mary Devlin, an expert in sexual abuse and the leader of the Parents United program in Brockton, testified that given their attitudes, "the family was not workable."

On October 1, 1986, the Family Court reviewed the situation and ordered a second evaluation of Kristen to determine whether at that time she could emotionally handle a visit with her parents. Doctor Frank Jones, a licensed psychiatrist and an expert in sexual abuse, evaluated Kristen on three different occasions throughout October of that year. We find it unnecessary to repeat the rather graphic details of Dr. Jones's testimony, which focused on the specific acts of sexual contact between the parents and the child. Doctor Jones's evaluation of Kristen was based upon play therapy with anatomically correct dolls, and as a result he found that there definitely had been sexual abuse by one or both parents. Doctor Jones reported that Kristen was not ready to accept visitation with her parents and that at least another six months to a year of therapy would be necessary to prepare her for any type of visitation. Although Dr. Jones did not file his report until October 26, 1986, Catherine informed the DCF caseworker two weeks prior to the filing of his report that she was no longer interested in any contact with DCF or any type of counseling. Sandra Messier immediately informed both parents that this was a counterproductive step and that if they did not continue with the court ordered case plan, DCF would file suit to terminate their parental rights.

In November 1986 Rosemary Provencher, a social worker for DCF, became involved in this matter. Ms. Provencher testified that between November 1986 and March 1987 she visited Catherine's home on at least six different occasions. She stated that each visit varied in regard to the time of day, and although people were apparently inside the apartment, she consistently received no response. She also testified that she attempted to effectuate a voluntary termination of parental rights with the parents, as she was informed through their attorneys that this was their desire. In December 1986 when Ms. Provencher was informed that Catherine and Peter no longer desired voluntary termination of parental rights, she developed a new case plan and mailed it to both parents. This new plan was essentially the same as the previous one, with which the parents had not complied. Once again she received no response to her inquiries or correspondence.

In March 1987, after six months of no communication from either Catherine or Peter, DCF filed a petition to terminate parental rights pursuant to G.L.1956 (1981 Reenactment) § 15-7-7(c), as amended by P.L.1984, ch. 204, § 3. At the conclusion of a trial in November 1987 the petition was granted by a Family Court justice. The parents appeal to this court from that decree.

The petitioners raise numerous issues within their appeal. We shall address each issue in the order in which it was raised.

The parents first argue that the trial justice, in his decision to terminate parental rights, clearly misconceived or overlooked material evidence when he found that their conduct or conditions were not likely to change. We disagree. After reviewing the record in this case, we find that the trial justice did not misconceive the evidence when he held that Catherine and Peter were not willing to work toward a change in the family conditions that led to the placement of their child with DCF. Such a finding is prescribed by the controlling statute. ²

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* * * This court has previously stated that the termination of parental rights involves a balancing of interests, those of the state, the child, and the natural parents. In re Kristina L., 520 A.2d 574, 579 (R.I.1987); In re Kenneth, 439 A.2d 1366, 1369 (R.I.1982). Although termination of parental rights by its very nature pits the interest of the state against that of the parents, the court should not presume the child and his parents are adversaries. See Santosky v. Kramer, 455 U.S. 745, 759-60, 102 S.Ct. 1388, 1398, 71 L.Ed.2d 599, 611 (1982). All rights to the custody, care, and nurturing of a child first reside with the parents, and "until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship." Santosky, 455 U.S. at 760, 102 S.Ct. at 1398, 71 L.Ed.2d at 611. We have previously held that § 15-7-7(c) mandates that unless the child "is likely to suffer physical and/or emotional harm, there is no reason to disturb the basic security of a family relationship." In re Lester, 417 A.2d 877, 880 (R.I.1980) (quoting In re Jonathan, 415 A.2d 1036, 1039 (R.I.1980)). Therefore, the primary step before any termination of parental rights is that there be a finding of parental unfitness. Once this fact is established, the best interests of the child outweigh all other considerations. In re Kristina L., 520 A.2d at 580. This court previously has stated that the statute requires that a trial justice, when considering a petition to terminate parental rights, examine the conduct of the parents or the custodians in conjunction with that of the authorized agency. In re Armand, 433 A.2d 957, 961 (R.I.1981). Before any termination the agency must prove by clear and convincing evidence that regardless of the...