Nicole B., In re

• Decision Date: 08 December 1997
• Docket Number: No. 96-192-A,96-192-A
• Citation: 703 A.2d 612
• Parties: In re NICOLE B. et al. ppeal.
• Court: Rhode Island Supreme Court

Page 612

703 A.2d 612

In re NICOLE B. et al.

No. 96-192-Appeal.

Supreme Court of Rhode Island.

Dec. 8, 1997.

Frank P. Iacono, Jr., Court Appointed Sp. Advocate, Regina M. Gibbs, Anthony E. Angeli, Jr., Thomas Corrigan, Jr., Providence, for Plaintiff.

Paula Rosin, Asst. Public Defender, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

OPINION

WEISBERGER, Chief Justice.

This case comes before the Supreme Court on appeal from a decree of the Family Court terminating the parental rights of the respondents (respondents or parents), to their three minor children, Nicole, born July 21 1989; Jennifer, born November 10, 1991; and Fransisco, born December 22, 1992. For the reasons elaborated below, we affirm the judgment of the Family Court. The facts insofar as relevant to the instant appeal are as follows.

The respondents first came to the attention of the Department for Children, Youth and Families (DCYF) in January 1992, after their then two-month-old daughter Jennifer was admitted to Rhode Island Hospital in critical condition, suffering from an alarming array of severe physical injuries. The respondents presented the infant at the emergency room with a high fever and told the attending physician that she felt "floppy." A thorough physical examination revealed that Jennifer's injuries, including multiple skull fractures, brain contusions, fractured ribs, and a broken leg, were in various stages of healing, indicating more than one physical trauma or episode of abuse. The respondents could offer no explanation for their daughter's critical condition. As a result DCYF's Division of Child Protective Services obtained protective detention of Jennifer and her two-and-a-half-year-old sister Nicole and placed the children with a foster family. In addition DCYF filed child-neglect and abuse petitions regarding both children.

After living with her foster family for several weeks, Nicole began to exhibit sexually provocative behavior. Consequently DCYF arranged for Nicole to be evaluated by two separate sexual-abuse counselors, both of whom concluded that Nicole had been sexually abused. Thereafter visitation between the father and Nicole was suspended. The respondents consistently denied knowledge of any abuse whatsoever. Instead respondents suggested that perhaps Nicole had acquired her rather advanced sexual knowledge by witnessing respondents engage in sexual intercourse on more than one occasion.

On April 1, 1992, after a trial in the Family Court, the trial justice entered a decree that included the following findings: (1) the father had physically abused and neglected Jennifer; (2) the mother had neglected Jennifer, and (3) both parents had neglected Nicole, which finding was based on the fact that Nicole had acquired sexual knowledge beyond her years while in their care. Both children were, thereafter, committed to the care, custody, and control of DCYF.

On April 8, 1992, the parents entered into a case plan (case plan or plan) with DCYF, the goal of which was reunification. In fact this was to be the first of four such case plans developed by DCYF with reunification as the goal. Pursuant to these plans DCYF provided substantial services to the family, including psychiatric counseling and evaluation for both parents and the children, medical services for Jennifer, and chaperoned visitation.

From the inception of respondents' relationship with DCYF neither parent could explain Jennifer's injuries, but both insisted they had never abused any of their children. Moreover, both parents steadfastly maintained that each had never witnessed the other act in a violent or questionable manner toward either of the two girls. The mother suggested the possibility that Jennifer's injuries resulted from two-year-old Nicole's jealousy toward her newborn sibling, claiming to have seen the older child strike the baby with a toy telephone.

Unknown to DCYF, the mother became pregnant in 1992. The respondents actively concealed this information because they feared that the state would seek custody of this child as well. On December 22, 1992, Fransisco was born, regarding whom DCYF filed charges on January 28, 1993. On September 2, 1993, a second Family Court justice found that respondents had neglected Fransisco as well as having created a substantial risk of harm to the child. Accordingly Fransisco was committed to the care, custody, and control of DCYF.

On May 19, 1994, DCYF filed termination-of-parental rights (TPR) petitions in regard to all three children. The TPR petitions, filed prior to the 1994 amendments to G.L.1956 § 15-7-7, alleged that (1) the parents were unfit by reason of conduct toward any child of a cruel or an abusive nature, § 15-7-7(1)(b)(ii), and (2) the children were in the custody of a licensed or governmental agency for a period of at least six months, and the integration of the children into the home of the parents is improbable in the foreseeable future because of conduct or conditions unlikely to change. Section 15-7-7(1)(c). ¹

After a fourteen-day trial in the Family Court between November 1995 and February 1996, a third justice of the Family Court, taking judicial notice of the 1992 decree, granted the TPR petitions in respect to all three children. Both parents testified at the trial and reiterated their unwavering denial of responsibility. The trial justice found that respondents had formed a "united front," each parent corroborating the innocence of the other. After considering the testimony of all the witnesses and weighing their respective credibility, the trial justice rejected respondents' theories, finding them "incredible, lame and implausible."

In her written findings of fact and conclusions of law of February 1, 1996, the trial justice found by clear and convincing evidence that respondents were unfit parents, in that Jennifer had suffered "severe abuse and permanent damage" at the hands of her father and that the children's mother either "allowed the abuse or should have been aware of the abuse that was being inflicted upon the child by the father," that Nicole had been neglected by both parents, and that the "parents created a substantial risk of injury to Fransisco."

The parents argue on review that their trial in the Family Court was twice tainted by error warranting reversal. First, they contend that the admission of Nicole's sexual-abuse counselor's testimony concerning Nicole's revelations of sexual abuse by her father constituted impermissible hearsay. Second, respondents challenge the trial justice's conclusion that DCYF had made "reasonable efforts" to reunify their family. Section 15-7-7(b)(1). We shall consider each issue in the order in which it was raised. Any additional facts necessary to the resolution of the issues will be discussed in the balance of the opinion.

A Family Court justice's findings are entitled to great weight and will not be disturbed absent a showing that the trial justice was clearly wrong or that material evidence was overlooked or misconceived. In re Antonio G., 659 A.2d 672, 673 (R.I.1995). Therefore, we have examined the record to determine whether legally competent evidence exists to support the trial justice's findings. In re Frances, 505 A.2d 1380, 1384 (R.I.1986).

Parents enjoy a fundamental liberty interest in the "care, custody, and management" of their children. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599, 610 (1982); In re John, 605 A.2d 486, 487 (R.I.1992). This interest does not "evaporate simply because they have not been model parents or have lost temporary custody of their child to the state." Santosky, 455 U.S. at 753, 102 S.Ct. at 1395, 71 L.Ed.2d at 606; In re Peter G., 577 A.2d 996, 998 (R.I.1990). As a result, before the state may permanently sever the rights of a parent in his or her natural children, the state must prove by clear and convincing evidence that the parent is unfit. See In re Kyle S., 692 A.2d 329, 334 (R.I.1997). Indeed, removal of children from a biological parent without a finding of unfitness would be constitutionally repugnant. See Santosky, 455 U.S. at 760, 102 S.Ct. at 1398, 71 L.Ed.2d at 611; Stanley v. Illinois, 405 U.S. 645, 649, 92 S.Ct. 1208, 1211, 31 L.Ed.2d 551, 557 (1972). Prior to an adjudication of unfitness, the parents and the child share an interest in avoiding the erroneous termination of this natural relationship. In re Kyle S., 692 A.2d at 334. However, once a parent has been adjudicated unfit, the balance shifts so that the "best interests of the child outweigh all other considerations." In re Kristen B., 558 A.2d 200, 203 (R.I.1989).

I

The parents' first challenge to the Family Court proceedings attacks the admission of the testimony of Jane Willis (Willis), the sexual-abuse therapist who counseled Nicole from October 1993 through the time of trial. Willis testified that during their counseling sessions together, Nicole revealed her father's sexually abusive behavior. Nicole described how "Daddy Frank" made her lick his "bicho " (Portuguese for "penis") and how he would put his bicho into her "bichoque " (Portuguese for "female genitals and buttocks"). Nicole also reiterated what she had been telling her foster family as well as other service providers--that her father had physically abused both her and her sister, Jennifer.

The trial judge allowed the above testimony over the objection of respondents' trial counsel. At trial and again on appeal respondents insist that Nicole's statements to Willis were inadmissible hearsay beyond the scope of the relevant exceptions to the hearsay rule, namely, Rule 803(4) of the Rhode Island Rules of Evidence and G.L.1956 § 14-1-69.

Hearsay may be defined as any out-of-court statement or statements offered for the truth of the matter asserted. R.I. R. Evid. 801. When hearsay testimony is admitted into evidence, the opponent is deprived of his or her...