Peter G., In re

• Decision Date: 13 July 1990
• Docket Number: No. 90-24-M,90-24-M
• Parties: In re PETER G. et al. P.
• Court: Rhode Island Supreme Court

Page 996

577 A.2d 996

In re PETER G. et al.

No. 90-24-M.P.

Supreme Court of Rhode Island.

July 13, 1990.

Janet Galligan, Department of Children and Their Families, Michael McCann, CASA, for plaintiffs.

Richard Casparian, Public Defender, Catherine Gibran, Asst. Public Defender, for defendant.

OPINION

SHEA, Justice.

This matter is before the Supreme Court on a petition for the issuance of a writ of certiorari to review an order of the Family Court granting a motion for emergency review filed by the Department of Children and Their Families (DCF). We quash the order of the Family Court and remand the case for a transfer hearing.

The facts of this case insofar as they are pertinent to this appeal are as follows: On January 12, 1990, DCF filed a motion for emergency review, which was heard the same day, requesting the Family Court's permission for Peter G. to be moved permanently with his foster parents to New Jersey. The petitioner and natural mother of the child received no notice of the hearing and was unable to attend the hearing because her attorney could not locate her. ¹ At the hearing the mother's attorney strongly objected to the motion on the grounds that DCF had not provided adequate notice of the hearing and State law mandated that a transfer hearing be conducted before the child could be moved out of the State.

In support of the motion DCF attached a report dated January 5, 1990, and prepared by a clinical psychologist. The report indicated that the child was receiving excellent care while placed with his foster family. In addition the psychologist stated:

"I would strongly recommend that Peter continue to live with the (foster family) and that his placement not be interrupted. Separation or removal from this family would be exceedingly detrimental to Peter from a psychological point of view."

After hearing arguments and reviewing this report, the trial justice granted DCF's motion. On January 12, 1990, the mother's appellate counsel sought a stay of the Family Court order in this court. The motion for stay was denied principally because by then the child and his foster parents were on their way to New Jersey. This court subsequently granted the mother's petition for issuance of a writ of certiorari on January 19, 1990.

On appeal the mother argues that the Family Court contravened G.L.1956 (1981 Reenactment) § 14-1-65, as amended by P.L.1984, ch. 74, § 1 when it allowed the child to be relocated out of the State. This statute provides in part:

"Prior to authorizing the placement of a child entrusted to the control of the department * * * in an out-of-state child caring facility, other than the home of a relative, the department shall petition the family court for a placement hearing. The family court shall grant approval for the placement if the following facts are found:

(a) That no suitable in-state facilities are available for the placement of the child;

(b) That the child will receive an individualized treatment plan including, but not limited to, appropriate clinical treatment, education, training and rehabilitation.

(c) That the proposed placement is in the best interest of the child."

The Department of Children and Their Families suggests that § 14-1-65, which refers to "child caring facility," is not applicable to foster families. There is nothing in the statute that would support DCF's narrow interpretation of the term "child caring facility." The Legislature's clear intent when enacting this statute was to ensure that the decision to place a child in DCF's care outside the State be made only after a careful and comprehensive examination of the circumstances of the individual case. To allow DCF to place children outside the State with no judicial oversight would violate both the spirit and the letter of this statute.

The next argument put forth by DCF is that even if a placement hearing was required, the hearing conducted on January 12, 1990, satisfies the requirements of the statute. The record, however, does not support this contention. The language of the statute mandates that DCF petition the Family Court for a placement hearing. The emergency motion filed in this case does not satisfy this requirement. After the appropriate petition has been filed the Family Court may approve the proposed placement only if it is found that there is no suitable in-state facility; the child will receive individualized treatment and the placement is in the best interest of the child. A review of the transcript of the hearing conducted on January 12, 1990, indicates that no such findings of fact were made.

This failure to make the requisite findings of fact cannot be attributed to the trial justice. By its own...