January 7, 2019




                                                                       Supreme Court

                                                                       No. 2016-72-C.A.
                                                                       (P2/12-1420A)


                        State                     :

                          v.                      :

                  Danielle LeFebvre.              :




                    NOTICE: This opinion is subject to formal revision before publication in
                    the Rhode Island Reporter. Readers are requested to notify the Opinion
                    Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
                    Rhode Island 02903, at Tel. 222-3258 of any typographical or other
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                    published.
                                                                  Supreme Court

                                                                  No. 2016-72-C.A.
                                                                  (P2/12-1420A)


                    State                      :

                     v.                        :

            Danielle LeFebvre.                 :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Flaherty, for the Court. The defendant, Danielle LeFebvre, appeals from a

judgment of conviction after a jury found her guilty of first degree child abuse, in violation of

G.L. 1956 § 11-9-5.3. The trial justice sentenced the defendant to twenty years’ imprisonment,

with eighteen years to serve and the balance suspended, with probation. Before this Court, the

defendant argues that the trial justice erred by requiring Sheila Russell, a licensed clinical social

worker, to testify about statements the defendant made to her while seeking mental-health

treatment. The defendant claims that her communications with Russell were privileged pursuant

to the Confidentiality of Health Care Information Act, G.L. 1956 chapter 37.3 of title 5

(CHCIA). A threshold, and ultimately dispositive, issue is whether any privilege arising from

that statute is abrogated by G.L. 1956 § 40-11-11, which nullifies “[t]he privileged quality of

communication between * * * any professional person and his or her patient or client * * * in

situations involving known or suspected child abuse or neglect and [the privileged quality of

communications] shall not constitute grounds for * * * failure to give or accept evidence in any

judicial proceeding relating to child abuse or neglect.” After thoroughly reviewing the record,

and carefully considering the arguments of the parties, we affirm the judgment of conviction.



                                                -1-
                                                I

                                       Facts and Travel

       In the fall of 2011, defendant lived in her mother’s apartment with her infant son, James,

who was born on September 3, 2011. 1 This was a difficult time for her. She and her mother,

JoAnn LeFebvre, had a tense relationship; defendant was averaging only two to five hours of

sleep at night, and baby James had become frustratingly fussy. 2 James’s father was absent from

the baby’s life, and, although JoAnn would occasionally babysit, the burden of child care fell

mostly on defendant. Life was stressful for defendant, and the impact of that stress appears to

have affected her relationship with her son. According to JoAnn, defendant was experiencing

difficulty bonding with James. JoAnn did not observe the kind of playfulness and affection that

one would expect from a new mother, and she observed that defendant was “aggressive” with the

baby and would sometimes yell to vent her pent-up frustrations. 3

       On October 19, 2011, defendant arrived at the emergency room of Hasbro Children’s

Hospital with James, then almost seven weeks old. The defendant told the attending physician

that the day before, she had been sitting on the edge of her bed with James cradled against her

shoulder, trying to lull him to sleep for a quick nap, when she herself fell asleep. She testified

that she woke up sometime later to find James crying on the floor by the bed, where he had fallen

while she slept. As she was consoling him, defendant claimed, she noticed that his head was red,

but she did not feel anything out of the ordinary when she checked the back of his head, and he




1
  We have assigned a pseudonym to the child to protect his privacy.
2
  According to defendant, she voluntarily terminated her parental rights to James before her
criminal trial.
3
  The record reveals that defendant also had a seven-year-old child at the time of James’s birth.
That child did not reside with defendant.


                                              -2-
calmed down to take a bottle. The defendant then brought James to her grandmother’s home for

an overnight visit.

       The next morning, defendant returned to work for the first time since she had gone on

maternity leave. While she was at work, she received two phone calls from her grandmother,

who had noticed that James was not acting normally. The defendant left work an hour early to

check on James, and she knew something was wrong as soon as she saw him. After returning to

her apartment to pack a diaper bag, she brought James to the emergency room. The defendant

told the attending physician that her grandmother had reported that James appeared listless, was

not eating, had rapid eye movements, and that his limbs were twitching. A head CT scan and a

skeletal survey of James’s body revealed a fractured skull, bleeding in and around his brain, and

two fractured ribs, which, based on how much they had healed, may have occurred as late as the

very afternoon James was admitted to the hospital. Hospital staff, concerned that James’s

injuries might be the result of abuse, referred James’s case to the Department of Children, Youth,

and Families (DCYF). The defendant was later charged by criminal information with one count

of first degree child abuse, in violation of § 11-9-5.3(b)(1).

       The attending physician later testified that she did not believe that any of the baby’s

injuries were consistent with the type of short fall that had been described by defendant. To the

contrary, the attending physician testified that James’s rib fractures could not have been caused

by a fall from a bed, but rather were more consistent with someone squeezing or compressing the

infant’s chest. The doctor further opined that James’s head injuries were consistent with abusive

head trauma, also known as “Shaken Baby Syndrome.” 4



4
  The defendant told an interrogating police officer that it was possible that she had injured her
son, because she “know[s] that [she] get[s] upset” and that she was “rougher than [she] should
be.”


                                                 -3-
        Before trial, defendant’s counsel, in connection with plea negotiations, provided the state

with medical records from mental health treatment that defendant had sought at Butler Hospital

in the days following James’s injuries. Included in those records were the intake notes of Sheila

Russell, a licensed clinical social worker who had conducted an initial psychiatric evaluation of

defendant. That evaluation said, in pertinent part, that “[defendant] doesn[’]t remember what she

did or on h[o]w many occasions, but has enough ‘fuzzy recollection’ to know she did indeed

cause the harm. [R]emembers feeling ‘enraged’ at the baby and ‘throwing him on the bed just to

get away from him.’” After the trial justice granted the state’s motion in limine to use those

records against defendant at trial, the state served a subpoena duces tecum on Butler Hospital to

produce copies of Russell’s records and to require her testimony. Over the hospital’s strenuous

objection, the trial justice denied Butler’s motion to quash the subpoena, and she also required

Russell to testify about her notes during the state’s rebuttal case. 5

        Before this Court, defendant argues that the trial justice erred when she required Sheila

Russell to testify about disclosures defendant made to her during the intake interview, because,

defendant contends, her conversation with Russell was privileged as a “confidential health care

communication[]” under § 5-37.3-6. The defendant further argues that § 40-11-11 abrogates that

privilege only in certain Family Court proceedings but does not do so in criminal cases.

                                                   II

                                        Standard of Review

        “[W]e review questions of statutory interpretation de novo.” State v. Hazard, 68 A.3d

479, 485 (R.I. 2013) (quoting Campbell v. State, 56 A.3d 448, 454 (R.I. 2012)). “In matters of

statutory interpretation our ultimate goal is to give effect to the purpose of the act as intended by

5
  The defendant testified in her own defense. In the course of that testimony, she denied ever
intentionally shaking or throwing James.


                                                 -4-
the Legislature.” Id. (quoting Alessi v. Bowen Court Condominium, 44 A.3d 736, 740 (R.I.

2012)).     “[W]hen [the] statute expresses a clear and unambiguous meaning, the task of

interpretation is at an end and this [C]ourt will apply the plain and ordinary meaning of the

words set forth in the statute.” State v. Marsich, 10 A.3d 435, 440 (R.I. 2010) (quoting State v.

Smith, 766 A.2d 913, 924 (R.I. 2001)). “[T]he Legislature is presumed to have intended each

word or provision of a statute to express a significant meaning, and the [C]ourt will give effect to

every word, clause, or sentence, whenever possible.” State v. Clark, 974 A.2d 558, 571 (R.I.

2009) (quoting State v. Bryant, 670 A.2d 776, 779 (R.I. 1996)).

                                                  III

                                              Discussion

          This appeal pivots on a single issue: whether defendant’s discussion with Russell, a

licensed clinical social worker, was a privileged health care communication pursuant to

§ 5-37.3-6 of CHCIA, or whether the privilege is rendered a nullity by § 40-11-11.

                                                   A

                                                Waiver

          During the hearing on the state’s motion in limine, the state argued, as it does before this

Court, that § 40-11-11 abrogates any privilege under CHCIA. The defendant’s counsel admitted,

with laudable candor, that she had been unaware of the existence of § 40-11-11 prior to receiving

notice of the state’s motion in limine two days before the hearing. After hearing argument from

both sides, the trial justice ruled that § 40-11-11 did away with any potential privilege under




                                                  -5-
CHCIA that may have attached to any disclosures defendant made to Russell during her

psychiatric evaluation. 6 In response to the trial justice’s ruling, defendant’s counsel stated:

                “It was a very straightforward statute, I agree with that, Judge, and
                I defer to the [c]ourt on this matter. * * *.
                “So I defer to the Court on the decision here, but I would like to
                state that without having, I’d say, a week to look into this, to look
                into other jurisdictions, I can’t say that I have a strong argument to
                make either way at this point.”

As a result of this representation before the trial court, the state argues on appeal that the claim of

privilege was waived.

         However, despite her seeming acquiescence to the trial justice’s ruling, defendant’s

counsel later challenged the state’s proffer of Russell’s testimony before it was offered to the

jury. She maintained that the communication was privileged under CHCIA. Addressing the

potential abrogation of defendant’s CHCIA privilege, counsel stated:

                “I would like to put on the record that, again, I have not been able
                to fully explain to my client exactly all of her options because,
                again, I do not feel I had enough time or been [sic] able to put the
                effort into this untried, and if you will, novel idea of bringing in
                records which I in fact turned over, from my understanding,
                [during] plea negotiations to the State.

                “So I would just like there be [sic] a continuing objection. * * *.”

The trial justice granted the request for a continuing objection to Russell’s testimony.

         In our opinion, for the purposes of this appeal, the defendant’s request for, and the trial

justice’s grant of, a continuing objection sufficiently preserved this argument for review by this

Court.

                                                  B

                                 The First Sentence of § 40-11-11

6
 The state’s motion in limine mistakenly named Melissa Ludwig, M.D., as the therapist who had
conducted defendant’s initial psychiatric evaluation at Butler Hospital.


                                                 -6-
       Under CHCIA, “confidential health care communications” are not “subject to

compulsory legal process in any type of judicial proceeding[.]” Section 5-37.3-6(a). The act

defines “[c]onfidential health care communication” as “a communication of health care

information by an individual to a health care provider * * * not intended to be disclosed to third

persons[.]” 7 Section 5-37.3-3(3)(i).

       The defendant argues that Russell was a “health care provider” under the statute, that any

statements she made during her intake evaluation with Russell were made for the purpose of

obtaining mental health treatment, and that those statements were not intended to be disclosed to

any third persons. Therefore, she argues, the statements were privileged and consequently

should not have been admitted into evidence.

       However, this appeal does not turn on whether defendant’s discussion with Russell was

privileged. This is so because, even though the requirements of CHCIA may have been met, any

privilege that she might otherwise have enjoyed was rendered a nullity by the clear and

unambiguous language of § 40-11-11. That statute provides, in pertinent part:




7
  We have considered the constitutionality of this statute on multiple occasions. See State v.
Almonte, 644 A.2d 295, 297-99 (R.I. 1994); Bartlett v. Danti, 503 A.2d 515, 517 (R.I. 1986). In
those cases, we declared the privilege enacted in G.L. 1956 § 5-37.3-6 to be unconstitutional
because the statute, as written, gave “uncontrolled discretion over how the litigants and the trial
courts of the state adjudicate disputes to the patient ‘who can decide with impunity whether to
permit access to such information.’” Almonte, 644 A.2d at 297 (quoting Bartlett, 503 A.2d at
517). In Almonte, we said that § 5-37.3-6 “substantially makes unavailable to the judicial
process any health care information whether arising out of a confidential communication, or
objective tests or observations. This is an intrusion upon the judicial power of the state which
cannot be countenanced.” Id. at 299. After our decision in Almonte, the General Assembly
enacted § 5-37.3-6.1, which provides a mechanism for trial courts to admit confidential health
care information in certain circumstances. See P.L. 2006, ch. 248, § 3; P.L. 2006, ch. 266, § 3.
We have since held that this latter enactment “adequately addresses the heretofore recognized
constitutional infirmities and strikes a permissible balance between a party’s interest in
maintaining the confidentiality of his or her personal health care records and the court’s need to
access relevant information.” In re Doe, 717 A.2d 1129, 1133 (R.I. 1998).


                                               -7-
               “The privileged quality of communication between husband and
               wife and any professional person and his or her patient or client,
               except that between attorney and client, is hereby abrogated in
               situations involving known or suspected child abuse or neglect and
               shall not constitute grounds for * * * failure to give or accept
               evidence in any judicial proceeding relating to child abuse or
               neglect. In any family court proceeding relating to child abuse or
               neglect * * * no privilege of confidentiality may be invoked with
               respect to any illness, trauma, incompetency, addiction to drugs, or
               alcoholism of any parent.” Section 40-11-11.

       The defendant first agrees with the state that § 40-11-11 is unambiguous, but argues that

any abrogation of privacy applies only in certain Family Court proceedings. She posits that the

phrase “proceeding relating to child abuse or neglect,” used in the first sentence of the statute, is

a “term of art” that refers only to DCYF-initiated proceedings that are heard on a specialized

calendar in the Family Court, which defendant refers to as the “abuse and neglect calendar.” The

defendant offers no support for this bald assertion, stating only that “proceeding relating to child

abuse or neglect” is a “shorthand phrase” that parties and judges use to refer to that specialized

calendar and the cases that appear on it.

       Accepting, arguendo, that the phrase “proceeding relating to child abuse or neglect” has

in fact entered the lexicon of breviloquent colloquialisms favored by legal professionals familiar

with Family Court practice, we nonetheless conclude that the General Assembly would not have

employed the phrase in a colloquial fashion when enacting the legislation. The plain meaning of

the phrase “any judicial proceeding relating to child abuse or neglect” is indeed unambiguous,

and it encompasses the full spectrum of matters that relate to the abuse or neglect of a child. Had

the General Assembly intended to limit the application of § 40-11-11 to the narrow class of cases




                                                -8-
suggested by defendant, it surely would have done so explicitly, rather than employing what

defendant refers to as a “shorthand phrase.” 8

       At best, defendant may have demonstrated that “any judicial proceeding relating to child

abuse or neglect” has a specialized meaning in the context of the Family Court. It is true that

“[a] word [or phrase] may acquire a specific meaning and become a word of art through constant

and unmistakable usage.”      State v. Domanski, 57 R.I. 500, 501, 190 A. 854, 856 (1937).

However, if a word or phrase “has no technical or precise definition” and “does not in all cases

convey a single identical meaning[,]” but rather has a “variety of meanings” based on the context

of its usage, then that word or phrase is not a term of art. Douglas v. Pratt, 102 R.I. 445, 448,

231 A.2d 486, 488 (1967).

       When the language of a statute is unambiguous, we must enforce the words of the statute

as they are written according to “their plain and ordinary meaning.” Harvard Pilgrim Health

Care of New England, Inc. v. Gelati, 865 A.2d 1028, 1037 (R.I. 2004). As the trial justice held

below, § 40-11-11 unambiguously abrogates all privileges that might otherwise attach to

communications “between husband and wife and any professional person and his or her patient

or client, except that between attorney and client * * * in situations involving known or

suspected child abuse or neglect” and any such privileges cannot justify a “failure to give or

accept evidence in any judicial proceeding relating to child abuse or neglect.” The language

employed by the General Assembly could not be more clear.

                                                 C

8
  We also note that, when the General Assembly enacted G.L. 1956 § 11-9-5.3, known as
Brendan’s Law, it vested the Family Court with exclusive jurisdiction over the offense. State v.
Sivo, 925 A.2d 901, 916 (R.I. 2007). However, on July 3, 2006, the General Assembly enacted
two public laws that removed jurisdiction of child abuse offenses from the Family Court to the
Superior Court. See State v. Jennings, 944 A.2d 171, 173 (R.I. 2008); see also P.L. 2006, ch.
260, § 1; P.L. 2006, ch. 290, § 1.


                                                 -9-
                              The Second Sentence of § 40-11-11

       The defendant argues in the alternative that the wording of the first sentence, if clear on

its face, is rendered ambiguous by the inclusion of the phrase “any family court proceeding

relating to child abuse or neglect” that is found in the second sentence. Section 40-11-11

(emphasis added). The defendant contends that the limitation in the second sentence to “family

court proceeding” can plausibly be read as restricting the scope of the first sentence. We do not

agree. The defendant’s argument presumes that the two sentences of § 40-11-11 overlap one

another. The interpretation that defendant urges upon us would not only contravene our firmly

held principle that the “Legislature is presumed to have intended each word or provision of a

statute to express a significant meaning,” but would also ignore the clearly separate substance of

the two sentences. Clark, 974 A.2d at 571. The first sentence of the statute abrogates all

privileges, regardless of subject matter, that are based on the identity of the communicants,

namely those “between husband and wife and any professional person and his or her patient or

client, except that between attorney and client[.]” Section 40-11-11. By contrast, the second

sentence, in Family Court proceedings only, prevents the invocation of any privilege of

confidentiality only with respect to certain subject matter, namely “any illness, trauma,

incompetency, addiction to drugs, or alcoholism of any parent.” Id. Our interpretation of § 40-

11-11 is further bolstered by the fact that the General Assembly thought it necessary to add the

second sentence when it amended § 40-11-11 in 1988. See P.L. 1988, ch. 106, § 1. 9

       Based on the plain meaning of the words of this statute, the second sentence of § 40-11-

11 limits the ability to invoke privileges with respect to certain subject matter in Family Court



9
 We also observe that, when the General Assembly chose to limit the second sentence of G.L.
1956 § 40-11-11 to “any family court proceeding,” it did so explicitly rather than employ the
ostensible “shorthand” that defendant suggests was used in the first sentence.


                                              - 10 -
only. On the other hand, the first sentence, in sweeping language, does away with virtually all

privileges in any and all judicial proceedings that involve the abuse or neglect of a child. This

would include criminal proceedings.

       We pause briefly, however, to add our concerns to those expressed by the trial justice

that, especially in criminal cases, our ruling today could have a chilling effect on the benefits of

psychotherapy as a rehabilitative tool in instances of child abuse and neglect. Nonetheless,

whatever our reservations might be, we are constrained to give effect to the enactments of the

General Assembly. “How to effectuate policy—the adaptation of means to legitimately sought

ends—is one of the most intractable of legislative problems.” State v. Oliveira, 882 A.2d 1097,

1117 (R.I. 2005) (quoting Tigner v. Texas, 310 U.S. 141, 148 (1940)). It is not for this Court to

determine whether a statute enacted by the General Assembly “comports with our [own] ideas of

justice, expediency or sound public policy.” State v. DiStefano, 764 A.2d 1156, 1160 (R.I. 2000)

(quoting Kastal v. Hickory House, Inc., 95 R.I. 366, 369, 187 A.2d 262, 265 (1963)). Where the

General Assembly has lawfully enacted a statute whose terms are clear and unambiguous, “the

task of interpretation is at an end and this [C]ourt will apply the plain and ordinary meaning of

the words set forth in the statute.” Marsich, 10 A.3d at 440.

                                                IV

                                           Conclusion

       For the foregoing reasons, the judgment of conviction is affirmed, and the record shall be

returned to the Superior Court.




                                               - 11 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Danielle LeFebvre.
                                     No. 2016-72-C.A.
Case Number
                                     (P2/12-1420A)
Date Opinion Filed                   January 7, 2019
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Netti C. Vogel
                                     For State:

                                     Lauren S. Zurier
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Angela M. Yingling
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
