Michael A, In re, 87-218-A

• Citation: 552 A.2d 368
• Decision Date: 13 January 1989
• Docket Number: No. 87-218-A,87-218-A
• Court: Rhode Island Supreme Court
• Parties: In re MICHAEL A. and Joseph A. ppeal.

Page 368

552 A.2d 368

In re MICHAEL A. and Joseph A.

No. 87-218-Appeal.

Supreme Court of Rhode Island.

Jan. 13, 1989.

Laureen Quarnto D'Ambra, Michael McCarthy, Dept. of Children and their Families, Francis B. Brown (Court appointed sp. advocate Unit), Providence, for plaintiff.

Nicholas Colangelo, Providence, Robert D. Oster, Guardian-Ad-Litem, Lincoln, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal from a judgment of the Family Court terminating the respondents' parental rights to their two children. The facts of the case insofar as pertinent to this appeal are as follows.

The children who are the subject of this termination proceeding were also the subjects of earlier dependency proceedings that resulted in findings of dependency by agreement of the parties. The children, who were born on November 30, 1979 (Joseph), and April 12, 1981 (Michael), have been in the custody of the Department For Children and Their Families (DCF) and in foster care since April 7, 1980 and June 4, 1981, respectively. The dependency determination was based upon the admitted inability of the parents to care for the children by reason of mental deficiency.

Petitions to terminate the parental rights of the parents for both Joseph and Michael were filed by DCF on April 14, 1986, in the Family Court. The petitions alleged that the children had been in the care of a "licensed or governmental placement agency for a period of at least six (6) months" and that it was improbable that the children could be reintegrated into the parents' home in the foreseeable future. Additionally the petitions alleged that the parents were unfit owing to "emotional illness, mental illness, of such duration as to render it improbable for the parent[s] to care for the child for an extended time."

The petitions were heard by a justice of the Family Court beginning November 13 through November 19, 1986. After the taking of evidence from four witnesses, including a social/case worker, a forensic psychologist, a teacher, and the executive director of the Rhode Island Association for Retarded Citizens, the trial justice rendered an oral decision granting the petitions for termination of parental rights. In his decision he expressed the opinion that the state had proven by clear and convincing evidence that the parents were unable to care for these children by reason of their unfitness because of mental deficiency. He further found that these conditions would not change in the foreseeable future even though DCF had made all reasonable efforts to reunify the children with their parents. From the entry of judgment terminating parental rights the parents have taken this appeal. The parents have raised two major arguments. It will be necessary for us to consider only the first argument. Additional facts necessary to deal with this issue are as follows.

In the course of the trial justice's decision, he referred extensively to three reports that had not been admitted into evidence in the termination proceeding, but which were filed at the time of the original dependency proceedings. These reports were submitted by Dr. Ando I. Suvari, a psychiatrist, Dr. Joseph M. Zucker, a psychiatrist, and Robert A. Raphael, who held a master's degree in social work and performed an evaluation for Delta Consultants. These three written reports all indicate unequivocally that the parents were unable to care for these children. At least two reports suggest that neither the mother nor the father would be able to provide a minimum standard of acceptable child care and that the natural parents "can learn little or nothing by experience that last and lack the necessary foresight and capacity to relate emotionally for this baby." Although these reports were written approximately four to five years prior to the termination proceedings, the trial justice appeared to base his decision at least in part upon the suggestion contained in the reports that these parents were inherently unable to respond to reasonable efforts at reunification.

Although the trial justice referred to these reports in the course of his oral decision, he did so by way of a review of the history of the case leading up to the initiation of the termination proceedings. He did not state the basis for his considering the reports or say that they had been brought to the attention of the court, save that the inference might be drawn that they were part of the Family Court file, that had been maintained in respect to these parents and children.

Even though the trial justice did not purport to take judicial notice of these reports, DCF now argues that he might appropriately have done so since these were in the realm of "adjudicated facts" of which the court might properly take judicial notice at any stage of the proceedings.

There is no question that Rhode Island has long recognized the doctrine of judicial notice in its various manifestations. See, e.g., Colonial Plumbing and Heating Supply Co. v. Contemporary Construction Co., 464 A.2d 741 (R.I.1983); Caldarone v. State of Rhode Island, 98 R.I. 7, 199 A.2d 303 (1964); Landi v. Kirwin & Fletcher, 52 R.I. 57, 157 A. 301 (1931). One aspect of the doctrine of judicial notice is that a court may take judicial notice of its own records including issues and decisions in a prior proceeding involving the same parties. Perez v. Pawtucket Redevelopment Agency, 111 R.I. 327, 302 A.2d 785 (1973); Morrissey v. Piette, 96 R.I. 151, 190 A.2d 1 (1963). This case was tried prior to the effective date of the Rhode Island Rules of Evidence that were subsequently adopted by the Supreme Court of Rhode Island effective October 1, 1987. Therefore, the question of judicial notice, as it applies to this case, will of necessity be determined in accordance with law in effect prior to the adoption of those Rules of Evidence.

There seems no question that the trial justice had every right to review the prior occurrences in the...