                                                  Supreme Court

                                                  No. 2015-179-Appeal.
                                                  (12-296-1)


In re Malachii O.              :




 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 Telephone
 222-3258 of any typographical or other formal errors in order that
 corrections may be made before the opinion is published.
                                                                    Supreme Court

                                                                    No. 2015-179-Appeal.
                                                                    (12-296-1)
                                                           (Dissenting Opinion begins on Page 13)


               In re Malachii O.                :




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

                                           OPINION

         Justice Goldberg, for the Court.           This case came before the Supreme Court on

October 25, 2016, on appeal by the respondent, John S.1 (respondent), from a decree entered in

the Family Court terminating his parental rights as to his son, Malachii O. (Malachii), who was

born on May 21, 2011. The parties were directed to appear and show cause why the issues raised

in this appeal should not be summarily decided. After hearing the arguments of counsel and

examining the memoranda filed by the parties, we are of the opinion that cause has not been

shown, and we proceed to decide the appeal at this time. For the reasons set forth in this opinion,

we affirm the decree of the Family Court.

                                          Facts and Travel

         In March 2012, after a hotline received a call detailing the episode, the Department of

Children, Youth, and Families (DCYF) was apprised of an alleged incident of domestic violence

that occurred in Massachusetts between respondent and Malachii’s mother, which also involved

Malachii. DCYF was informed that respondent attempted to quell his ten-month-old child’s

crying by pinching, slapping, and throwing the child against a wall, which the mother claimed



1
    For the sake of privacy, the family members will be referred to by only their first names.
                                                 -2-
rendered the child unconscious. On March 7, 2012, a petition for dependency and abuse was

filed ex parte against both parents in Rhode Island, where Malachii resided, and respondent was

charged in Massachusetts with felony crimes arising from the alleged assault. A no-contact

order was issued on March 14, 2012 and entered on April 26, 2012, which prohibited respondent

from having any contact with Malachii.2 On September 27, 2013, respondent was convicted in

Massachusetts by a jury of reckless endangerment of a child and assault and battery with a

dangerous weapon. He was sentenced to serve three to five years in prison, followed by a two-

and-one-half-year probationary term. A second no-contact order was issued in Massachusetts

after respondent’s conviction. The respondent’s conviction was upheld on appeal on November

18, 2015.

          On November 25, 2013, DCYF filed a petition to terminate the parental rights of

respondent and Malachii’s mother.3 As to respondent, DCYF alleged the following grounds as a

basis for termination: (1) respondent was unfit due to his prolonged incarceration, which

“render[ed] it improbable for [respondent] to care for [Malachii] for an extended period of time,”

G.L. 1956 § 15-7-7(a)(2)(i); and (2) respondent abandoned or deserted Malachii, see § 15-7-

7(a)(4).4 Multiple summonses that were issued for respondent were returned unserved because



2
  The order remains in full force and effect and has not been vacated or modified since it was
entered.
3
    Malachii’s mother voluntarily consented to the termination of her parental rights.
4
    General Laws 1956 § 15-7-7 provides in pertinent part:

                         “(a) The court shall * * * terminate any and all legal rights
                 of the parent to the child * * * if the court finds as a fact by clear
                 and convincing evidence that:

                         “* * *


                                                 -3-
DCYF had difficulty locating his whereabouts in the Massachusetts prison system.             The

respondent was relocated in the system on multiple occasions and did not advise DCYF of his

location. He eventually was served at the Correctional Center in Shirley, Massachusetts, in May

2014, and an attorney was appointed to represent him in the termination proceeding.5

       The respondent declined to voluntarily relinquish his parental rights, and the case

proceeded to trial on September 22 and 29, 2014. The respondent remained incarcerated in

Massachusetts, and the trial was conducted telephonically to afford him the opportunity to

participate. At trial, the Family Court justice heard testimony from Barbara Silvia (Silvia), the

social caseworker assigned to Malachii’s case. She testified that she did not have any contact

with respondent because he was incarcerated outside of Rhode Island from the inception of the

case in 2012. Silvia detailed that she planned to prepare and discuss a case plan with respondent

once he was released from prison because “he can’t put services in place with providers while



                      “(2) The parent is unfit by reason of conduct or conditions
              seriously detrimental to the child; such as * * *

                             “(i) Institutionalization of the parent,
                             including imprisonment, for a duration as to
                             render it improbable for the parent to care
                             for the child for an extended period of time;

                      “***

                      “(4) The parent has abandoned or deserted the child. A lack
              of communication or contact with the child for at least a six (6)
              month period shall constitute prima facie evidence of abandonment
              or desertion. In the event that parents of an infant have had no
              contact or communication with the infant for a period of six (6)
              months the department shall file a petition pursuant to this section
              and the [F]amily [C]ourt shall conduct expedited hearings on the
              petition.”
5
 A review of the record indicates that counsel was appointed on June 18, 2014, after respondent
submitted an affidavit to attest that he was indigent.
                                              -4-
he’s incarcerated.” She expounded that she was unaware of any programs available for parents

incarcerated in Massachusetts, as DCYF does not travel to prisons in other states and she had

“never case planned with any client in any other out-of-state prison.” Silvia also explained that

she did not offer respondent visitation because of the no-contact orders. Although she was aware

of respondent’s criminal convictions for abusing his son, she did not know when respondent

would be released from prison.6          She was informed that “upon release he could have no

unsupervised contact with children under the age of [fourteen], and could not reside in the house

with children under the age of [fourteen].” Due to the circumstances, including respondent’s

status as a child abuser, Silvia testified that respondent “was not a parent that [DCYF was]

looking to reunify with at the time.” The respondent acknowledged his convictions during his

testimony as well,7 citing his incarceration and the no-contact orders as justification for why he

failed to provide support for his son.

          Silvia testified that respondent did write two letters.8 The first letter was sent to the

Family Court on August 9, 2012, in which respondent requested a paternity test.9 Silvia stated

that she arranged for the test to be conducted; the results, which confirmed respondent’s

paternity of Malachii, were received on October 17, 2013. They were forwarded by Silvia, in

accordance with usual procedure, to the Family Court. The respondent made no attempt to have

contact with his son while the test was pending. At trial, respondent maintained that he never

6
 Specifically, Silvia corresponded with a district attorney in Massachusetts regarding the status
of respondent’s criminal case.
7
  Specifically, respondent acknowledged that he was charged with abusing his child, faced trial
on those charges, and was sentenced as a result of the conviction that was entered into evidence.
The respondent asserted his Fifth Amendment privilege when directly asked why he was
incarcerated, because his appeal was pending at the time.
8
    The respondent testified that he sent a third letter; however, this letter has not been produced.
9
    Silvia did not receive this letter until January 14, 2013.
                                                   -5-
received the results of the paternity test but stated that he did not contest the paternity of

Malachii; rather, he wanted to “establish [his] rights in order to give [Malachii] a place to go, to

be with [his] family.” The respondent also wrote directly to Silvia on November 11, 2013, more

than a year after his first letter to the Family Court.         Despite knowing about DCYF’s

involvement with his son, respondent claimed that he had only recently become aware that

Malachii was no longer living with his mother. The respondent asked that Malachii be placed

with respondent’s parents, who reside in Massachusetts. Silvia testified that she met briefly with

respondent’s mother and his brother, but Malachii already was residing in a preadoptive home

and his mother had consented to an open adoption by the foster parents.

       The Family Court justice issued a written decision on January 5, 2015, and ordered the

termination of respondent’s parental rights to Malachii. The Family Court justice summarized

the testimony of Silvia and respondent and took judicial notice of the no-contact order issued in

Rhode Island. She began by addressing respondent’s procedural arguments relating to service of

process and his arraignment, rejecting both. Specifically, the Family Court justice was satisfied

after reviewing the summons, hearing the testimony, as well as noting counsel’s presence at trial

and his invoice for services rendered, that respondent had notice of the termination petition and

was adequately represented by counsel.

       Turning to the merits of the petition, the Family Court justice found that respondent had

been incarcerated continuously from March 2012 for inflicting physical abuse on his child. She

explicitly acknowledged that incarceration alone is not grounds for termination of parental rights;

however, she concluded that, here, respondent’s incarceration was a “direct result of inflicting

physical abuse on the child.” The Family Court justice found that, despite the no-contact orders,

respondent did not make any attempt to seek visitation, case plan, or enroll in any services



                                               -6-
offered at the correctional facility where he was housed. These findings, coupled with the length

of incarceration and the fact that respondent had not seen his son in more than two years, led the

Family Court justice to conclude that respondent would be unable to care for Malachii for an

extended period of time. In discussing DCYF’s reasonable efforts, the Family Court justice

recognized that Silvia faced multiple hurdles due to respondent’s out-of-state incarceration and

the no-contact orders, concluding that “DCYF made what reasonable efforts it could make based

on the situation [respondent] put himself in.”

       Alternatively, the Family Court justice found that respondent’s parental rights could be

terminated on the basis that he abandoned Malachii, declaring that the uncontradicted

evidence—as well as respondent’s own admission—demonstrated that respondent had had no

contact with his son since March 2012. She also recognized that respondent provided no

financial or emotional support for Malachii.

       A decree terminating respondent’s parental rights to Malachii was entered in the Family

Court on February 5, 2015. A timely appeal was filed in this Court on February 23, 2015.

                                       Standard of Review

       “On appeal, ‘[t]his Court reviews termination of parental rights rulings by examining the

record to establish whether the [Family Court] justice’s findings are supported by legal and

competent evidence.’” In re Amiah P., 54 A.3d 446, 451 (R.I. 2012) (quoting In re Victoria L.,

950 A.2d 1168, 1174 (R.I. 2008)). “These findings are entitled to great weight, and this Court

will not disturb them unless they ‘are clearly wrong or the [Family Court] justice overlooked or

misconceived material evidence.’” Id. (quoting In re Victoria L., 950 A.2d at 1174).

       “Natural parents have a fundamental liberty interest in the ‘care, custody, and

management’ of their children.” In re Amiah P., 54 A.3d at 451 (quoting In re Destiny D., 922



                                                 -7-
A.2d 168, 172 (R.I. 2007)). “Before terminating a parent’s rights to his or her child, the [Family

Court] justice must find that the parent is unfit.” Id. (citing In re Pricillion R., 971 A.2d 599, 604

(R.I. 2009)).    “In these cases, the right to due process requires that the state support its

allegations by clear and convincing evidence.” Id. (citing In re Jazlyn P., 31 A.3d 1273, 1279

(R.I. 2011)). “However, once the [Family Court] justice determines parental unfitness, ‘the best

interests of the child outweigh all other considerations.’” Id. (quoting In re Jazlyn P., 31 A.3d at

1279).

                                              Analysis

         Before this Court, respondent presents a plethora of arguments, many of which are

without merit and can be summarily addressed. The respondent claims that many of the Family

Court justice’s factual findings were clearly erroneous. For instance, he points to the finding that

the paternity testing was requested because respondent contested paternity; respondent professes

that he requested paternity to establish his rights. It is, however, undisputed that this incarcerated

parent requested a paternity test to verify the one fact that a paternity test discloses—whether he

is the child’s father.   The respondent also maintains that he never received these results;

however, Silvia testified that she forwarded the results to the Family Court, and the record

discloses that respondent wrote to Silvia less than a month later asking that the child be placed

with his family. Regardless, respondent’s receipt of the results is immaterial to the Family Court

justice’s findings.

         Additionally, respondent claims that a certified copy of his conviction was not produced

at trial. We are satisfied that this circumstance is not material because neither ground for

termination required proof of conviction, and the conviction was corroborated by Silvia’s and

respondent’s testimony. See §§ 15-7-7(a)(2)(i); 15-7-7(a)(4). The respondent also posits that the



                                                -8-
return of service was neither stamped nor notarized and that he was not arraigned on the petition.

However, a careful review of the record reveals that respondent was never found in default; that

he was represented by counsel throughout the pendency of the termination petition; and that he

was afforded an opportunity to participate at the trial telephonically. See In re Jonathan P., 819

A.2d 198, 201 (R.I. 2003) (“[A]n incarcerated parent defending against a petition for termination

of parental rights need only be afforded reasonable participation in that hearing.”). We are

satisfied that these arguments are immaterial to the outcome of the case.

       Of the issues meriting further analysis, respondent argues that the Family Court justice

erroneously found that he was unable to care for his son for an extended period of time due to his

imprisonment and, alternatively, that he abandoned Malachii. Specifically, respondent claims

that he was not advised about Malachii’s status and that his incarceration and the no-contact

orders prevented him from providing support to the child. With respect to his incarceration as a

ground for termination, respondent contends that DCYF failed to establish that it made

reasonable efforts to strengthen the parental relationship between respondent and Malachii, as

required by § 15-7-7(b)(1). Because we are of the opinion that the Family Court justice correctly

concluded that respondent abandoned his son, we need not address § 15-7-7(a)(2)(i) as an

additional basis for termination. See In re Rita F., 64 A.3d 1220, 1231 n.12 (R.I. 2013).

                                         Abandonment

       Section 15-7-7(a)(4) provides for the termination of parental rights if “[t]he parent has

abandoned or deserted the child.” “A lack of communication or contact with the child for at least

a six (6) month period shall constitute prima facie evidence of abandonment or desertion.” Id.

“Such lack of communication does not have to be willful on the part of the parent.” In re

Shanelly C., 785 A.2d 1129, 1131 (R.I. 2001) (citing In re Craig G., 765 A.2d 1200, 1202 (R.I.



                                               -9-
2001)). The trial justice’s findings on abandonment were supported by extensive evidence in the

record that respondent had no contact with Malachii for more than two years and minimal

contact with DCYF concerning his son.

       The respondent concedes that he did not have contact with his son for the presumptive

six-month period; however, he argues that he was legally prevented from having contact or

providing support. It is manifest in this record that respondent made no attempt to contact his

son or to seek visitation by moving for a modification of the no-contact orders. We are not

persuaded by respondent’s attempt to shift the blame in this case. The fact that respondent was

incarcerated and subject to the no-contact orders is solely attributable to respondent’s physical

abuse of his son. The trial justice found that respondent had had no contact with Malachii since

March 2012, well beyond the six-month statutory period for presumptive abandonment.

Although respondent was incarcerated and there were no-contact orders in place, these

conditions are not foreign to our analysis. In In re Damien M., 819 A.2d 213 (R.I. 2003) (mem.),

a father claimed that he did not have contact with his son because he feared that he would violate

a no-contact order with the mother. Id. at 214. This Court nonetheless affirmed the trial justice’s

finding that the father abandoned his son as the father never made an attempt to seek visitation,

concluding that “the father’s actions spoke louder than his words regarding his intention to

develop a relationship with his son.” Id.

       Likewise, “[t]his Court repeatedly has held that incarceration is not an excuse for failure

to maintain contact with one’s child for the statutory period.” In re Brook Ann R., 994 A.2d

1241, 1244 (R.I. 2010) (citing In re Serenity K., 891 A.2d 881, 884 (R.I. 2005)). “[I]t is ‘the

parent, not DCYF, whose children are in the care of an authorized agency [who] is responsible to

substantially and repeatedly maintain contact with the children.’” In re Amanda D., 918 A.2d



                                              - 10 -
220, 224 (R.I. 2007) (quoting In re Shaylon J., 782 A.2d 1140, 1143 (R.I. 2001)); see also In re

Serenity K., 891 A.2d at 884 (“[A] parent in this jurisdiction, incarcerated though he or she may

be, ‘can abandon a child by not actively engaging in efforts to contact that child, despite having

opportunities to do so.’” (quoting In re DeKarri P., 787 A.2d 1170, 1172 (R.I. 2001))).

Therefore, neither respondent’s incarceration nor the no-contact orders relieved respondent of his

obligation to remain in contact with his son.10

       Furthermore, this Court “has no tolerance for a parent ‘who makes halfhearted or no

attempts to visit or contact his or her child within the six-month statutory time period * * *.’”

In re Abby D., 839 A.2d 1222, 1225 (R.I. 2004) (quoting In re DeKarri P., 787 A.2d at 1172).

Here, in a two-and-one-half-year period, respondent wrote but two letters inquiring about

Malachii—the first of which demanded a paternity test.11 That letter, written in August 2012,

reveals that respondent was aware of DCYF’s involvement—“This issue got [Malachii] taken

away by DC[Y]F.” However, respondent did not contact DCYF again until November 2013,

more than a year later. The record is devoid of proof that respondent made any other efforts to



10
   The dissent suggests that a no-contact order relieves the parent of his responsibility to remain
in contact with the child. Imposition of no-contact orders to protect the child after a violent,
parent-child attack does not toll the running of the six-month prima facie time period for
abandonment. Nor should the fact of incarceration for a violent assault upon one’s child
standing alone serve as evidence to rebut the prima facie showing of abandonment. While the
dissent likewise takes issue with our description of the incident as a “violent, parent-child
attack,” we note that respondent was convicted by a jury in Massachusetts of reckless
endangerment of a child and assault and battery by means of a dangerous weapon.
11
   Although the dissent appears to credit respondent’s testimony that he only requested a
paternity test “to establish his rights to his son so that he could place Malachii with his family[,]”
this single request is insufficient evidence to rebut a prima facie showing of abandonment,
especially when the child was already happily living in a preadoptive home. Cf. In re Serenity
K., 891 A.2d 881, 885 (R.I. 2006) (affirming that four or five attempts to contact DCYF and
arrange visits over a nineteen-month period were insufficient to rebut the prima facie showing of
abandonment).

                                                  - 11 -
inquire into his son’s welfare.12 Although respondent requested a paternity test, placement with

his family, and appointment of his mother as Malachii’s legal guardian, he never sought

visitation, modification of the no-contact orders, or other updates, save for the paternity test. A

fair reading of respondent’s letters suggests that he cared for the child; however, we have

previously held that “§ 15-7-7(a)(4)[] does not include the element of willfulness to show

abandonment.” In re Craig G., 765 A.2d at 1202. Moreover, respondent did not support

Malachii in any way, either financially or emotionally. Many a birthday and Christmas passed

without so much as an inquiry about his child.

       We recognize that the respondent was faced with minimal options; nonetheless, we

cannot ignore the fact that the respondent’s behavior toward his son has placed him in this

position. As the Family Court justice explicitly acknowledged, the respondent’s “incarceration

was a direct result of inflicting physical abuse on the child.” We decline to lower the threshold

required to rebut the prima facie period of abandonment for this particular respondent because of

the scarce options available when that situation lies squarely at his feet. DCYF has no obligation

to undertake reasonable efforts to strengthen the parental bond or to reunify, when a parent is

deemed unfit on the basis of abandonment. Section 15-7-7(b)(1). Accordingly, the lack of

contact and communication falls squarely with the respondent. The record clearly indicates that

the respondent had the addresses for both the Family Court and DCYF, and he was also

represented by counsel in Massachusetts. Yet, despite additional opportunities, the respondent

made but two attempts to communicate with DCYF and utterly failed to seek contact with his

child. Therefore, we are satisfied that the Family Court justice properly held that the respondent

12
   The 2012 letter did direct that the recipient forward any questions or updates to an address in
New Bedford, Massachusetts. However, this request appeared immediately after the contact
information for respondent’s then-attorney and appears to relate to correspondence arising out of
the paternity test, not Malachii’s welfare in general.
                                              - 12 -
abandoned Malachii because he had had no meaningful contact with his son since March 2012.

See In re Shanelly C., 785 A.2d at 1132 (concluding that sending clothes, books, and candy was

“indirect contact indicative of an unwillingness to promote and further the parent-child

relationship”).

                                           Conclusion

        For these reasons, the respondent’s appeal is denied and dismissed. The decree of the

Family Court terminating the parental rights of the respondent is affirmed. The papers in this

case are remanded to the Family Court.



        Justice Flaherty, dissenting. I respectfully dissent from the holding of the majority in

this case. I do so because it is my opinion that the respondent has sufficiently rebutted the prima

facie evidence of abandonment, thereby triggering an obligation for the Department of Children,

Youth, and Families (DCYF) to prove that he abandoned his child by clear and convincing

evidence. In my view, this has not been done.

        There is no doubt that respondent was confronted by substantial obstacles that stood in

the way of contacting his son. He was incarcerated in another state and was apparently moved

from facility to facility. Indeed, DCYF, with all its impressive resources, found it difficult to

locate respondent, even for the purpose of serving him with process after it filed its termination

case.

        The majority holds that respondent abandoned his son because he did not adequately

maintain contact with Malachii over the course of roughly two years. While it is true that there

was a paucity of contact initiated by respondent, it is extremely significant that he was barred

from contacting Malachii, and the state agency that had custody of Malachii never contacted



                                              - 13 -
respondent. Notwithstanding his incarceration and the other legal barriers to communication,

respondent did make two efforts, through DCYF, to reunify Malachii with his family. In light of

this, and after carefully reviewing the record, I conclude that the trial justice erred, that

respondent has rebutted the prima facie inference of abandonment, and that his unfitness by

means of abandonment was not proven by clear and convincing evidence.

       We have long recognized that “[n]atural parents have a fundamental liberty interest in the

care, custody, and management of their child that does not evaporate if they are not model

parents or have lost temporary custody of their child.” In re Antonio G., 657 A.2d 1052, 1057

(R.I. 1995) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)). The “rights to the custody,

care, and nurturing of a child first reside with the parents, and ‘until the [s]tate proves parental

unfitness, the child and his parents share a vital interest in preventing erroneous termination of

their natural relationship.’” In re Kristen B., 558 A.2d 200, 203 (R.I. 1989) (quoting Santosky,

455 U.S. at 760). The state has the ultimate burden of proving unfitness by clear and convincing

evidence. General Laws 1956 § 15-7-7(a).

       Although the trial justice terminated respondent’s parental rights on the bases of

abandonment and institutionalization, the majority affirms the Family Court’s finding of

unfitness solely on the basis of abandonment. As the majority correctly notes, DCYF is not

required to make reasonable efforts at reunification before the agency institutes termination

proceedings on grounds of abandonment. Section 15-7-7(a)(4), (b)(1). The state may also

present prima facie evidence of abandonment by proving that more than six months have passed

during which a parent did not contact his or her child. Section 15-7-7(a)(4).

       Here, respondent did not contest the fact that he had not seen Malachii for a period in

excess of six months. Nonetheless, it bears noting that the state bore a heavier burden in proving



                                               - 14 -
the ultimate fact of unfitness than respondent did in producing some evidence to rebut the state’s

basic prima facie showing. See § 15-7-7(a).1

       In my view, respondent rebutted the prima facie evidence of abandonment when he

demonstrated that he was legally and practically precluded from contacting his son during the

time in which the state claims he abandoned Malachii. It should go without saying that DCYF

had a unique ability to increase the prospects for family reunification, slight as they may have

been, during the relevant time period because the child was in its custody. Rather than explore

those prospects for reunification, however, DCYF foreclosed them. It is my opinion that the

events leading up to the Family Court’s termination decree leads to the inevitable conclusion that

the agency helped “to shape the historical events that form[ed] the basis for termination.”

Santosky, 455 U.S. at 763.

       The respondent lost custody of Malachii following a violent domestic altercation in

March 2012, in which his then ten-month-old son was injured. Shortly thereafter, the Family

Court issued a no-contact order, an order that remains in effect to this day.             That order

unequivocally bars respondent from contacting Malachii.

       For his part, respondent requested a paternity test in August 2012. The respondent said

that he requested the test to establish his rights to his son so that he could place Malachii with his

family. In September 2013, respondent was convicted of reckless endangerment of a child and
1
  It is well settled that “[t]he burden of [proof] never shifts” although “the ‘burden of going
forward’ with the evidence * * * shifts from party to party as the case progresses.” Murphy v.
O’Neill, 454 A.2d 248, 250 (R.I. 1983). We have defined prima facie evidence as “that amount
of evidence that, if unrebutted, is sufficient to satisfy the burden of proof on a particular issue.”
Paramount Office Supply Co. v. D.A. MacIsaac, Inc., 524 A.2d 1099, 1101 (R.I. 1987) (citing
Nocera v. Lembo, 121 R.I. 216, 397 A.2d 524 (1979)) (emphasis added). Accordingly, while the
state’s prima facie evidence of abandonment shifted a burden of production to respondent, he
was capable of shifting the ultimate burden of proof back onto the state by producing some
rebuttal evidence. Thereafter, the state was required to prove abandonment by clear and
convincing evidence in light of all the evidence. See Murphy, 454 A.2d at 250.

                                                - 15 -
assault and battery with a dangerous weapon, for which he received a sentence of three to five

years with two-and-a-half years of probation.

       Armed with the no-contact order, DCYF then unilaterally determined that it would not

attempt to reunify respondent with his son. Malachii’s caseworker testified that “[b]ecause there

was a no-contact order in place between [respondent] and the child, * * * he was not a parent that

we were looking to reunify * * *.”

       A month after respondent had begun to serve his sentence, his paternity was verified.

The respondent then sent a letter to Malachii’s caseworker asking that Malachii be placed with

his grandparents and for respondent’s mother to be appointed as Malachii’s legal guardian.

Shortly thereafter, DCYF instituted proceedings to terminate respondent’s parental rights.2

       It is significant that, for some reason, the state opted not to charge respondent with

unfitness on the ground of cruelty to a child, even though he had been criminally punished for

the child’s injuries. Section 15-7-7(a)(2)(ii).3 Nonetheless, it seems obvious to me that the

criminal conviction in Massachusetts plainly influenced the decisions of the majority of this

Court and the trial judge, whose finding of abandonment was supported by evidence that “the

lack of contact was a direct result of the actions of [respondent] against [Malachii].” It is my

opinion that, perhaps as a result of his criminal conviction, the majority placed too high a burden




2
  Malachii’s caseworker received respondent’s letter in January 2014, after termination
proceedings had begun, and the caseworker determined that, in light of Malachii’s mother’s
voluntary relinquishment of parental rights, Malachii was better off in preadoptive care.
3
  Respectfully, it is my opinion that the majority takes a liberal, even expansive, view of the
record when it describes respondent’s actions toward Malachii as a “violent, parent-child attack.”
No witness testimony justifies such a description. The respondent contended that the abuse
conviction was based on his having dropped the child during the course of a physical
confrontation with the mother. In any event, what actually happened during the incident leading
up to respondent’s conviction is completely irrelevant to the finding of abandonment.
                                                - 16 -
of production on respondent to demonstrate that he did not abandon his child and allowed the

state to sustain its burden of proving abandonment by less than clear and convincing evidence.

       This is so because the majority implicitly turns respondent’s rebuttal evidence against

him by treating his conviction, the time he served for his crime, and his compliance with no-

contact orders as indications that he abandoned Malachii.          The majority then categorizes

respondent as an absentee, holding him to the general rule that an incarcerated parent must

maintain substantial contact with his child in order to avoid termination of parental rights. See In

re Amanda D., 918 A.2d 220, 224 (R.I. 2007).

       There is ample support in our case law for the proposition that an incarcerated parent

“can abandon a child by not actively engaging in efforts to contact that child, despite having

opportunities to do so.” In re DeKarri P., 787 A.2d 1170, 1172 (R.I. 2001) (emphasis added). I

am, however, unable to discover a single case in which we have affirmed a judgment for

termination on grounds of abandonment where an incarcerated parent’s opportunities for contact

were so palpably limited.

       The abandonment cases upon which the majority relies almost invariably hinge on the

fact that an incarcerated father missed parenting opportunities by “turn[ing] a deaf ear on

DCYF’s efforts to help facilitate contact” or failing to coordinate prison visitations. In re

DeKarri P., 787 A.2d at 1172; see, e.g., In re Amanda D., 918 A.2d at 224; In re Serenity K., 891

A.2d 881, 884 (R.I. 2006); In re Cody F., 766 A.2d 937, 938 (R.I. 2001). Addressing the no-

contact order at issue in this case, the majority reasons that blind compliance with a no-contact

order cannot overcome the prima facie evidence of abandonment. However, the case upon

which the majority relies involves a no-contact order between a father and mother and it does not

establish a sweeping categorical rule. In re Damien M., 819 A.2d 213, 214 (R.I. 2003) (mem.).



                                               - 17 -
There, the father was legally barred from contacting his wife but not his son and, despite having

opportunities to coordinate prison visitations, he saw his son only once over the course of a six-

year period. Id. Therefore, I cannot accept that In re Damien M. provides a rational foundation

for the majority’s opinion.

       Perhaps another parent may have been wise enough to seek modifications of the no-

contact orders and may have written more letters to DCYF and the Family Court. In using

respondent’s failure to do so as evidence of abandonment, however, the majority imposes a

requirement of assiduousness and sophistication that goes beyond what our precedent demands.

See In re Angelina T., 996 A.2d 623, 627 (R.I. 2010); In re DeKarri P., 787 A.2d at 1172.

Further, the majority’s seizure of respondent’s failure to form a case plan as evidence of

abandonment is both absent from the trial judge’s decision and utterly unfounded. Case planning

is a statutory responsibility of DCYF, and is an endeavor about which respondent was likely

unaware. See In re Natalya C., 946 A.2d 198, 204 (R.I. 2008) (“As we expect a doctor, not his

patient, to prescribe medicine to treat the patient’s illnesses, we also expect DCYF to fashion

effective case plans to enable reunification between parents and children.”).

       It is undeniably troubling that respondent made but two attempts over the course of two

years to connect Malachii with his family, but I believe that his efforts were sufficient to rebut

the presumption of abandonment. Accordingly, it is my view that the majority should have

given more weight to the fact that any possibility of repeated contact was severely hindered.

Notably, in declining to adopt a preponderance-of-the-evidence standard for parental termination

cases, the United States Supreme Court said that “[a] standard of proof that by its very terms

demands consideration of the quantity, rather than the quality, of the evidence may misdirect the

factfinder in the marginal case.” Santosky, 455 U.S. at 764.



                                              - 18 -
       It also bears noting that, in affirming the Family Court’s termination decree on the basis

of abandonment, the majority did not deem it necessary to address the court’s finding of

unfitness on the basis of institutionalization under § 15-7-7(a)(2)(i). To terminate respondent’s

parental rights on that ground, the Family Court was required to find as a fact that DCYF made

reasonable efforts to reunify respondent with his son.            Section 15-7-7(a)(2)(i), (b)(1).

Specifically, DCYF was required to “encourage and strengthen the parental relationship so that

the child [could] safely return to the family.” Section 15-7-7(b)(1). Moreover, the agency was

required to prove that it made reasonable efforts at reunification “[r]egardless of the unlikelihood

for success” until it filed a termination petition. In re Christopher B., 823 A.2d 301, 315 (R.I.

2003) (quoting In re Joseph S., 788 A.2d 475, 477-78 (R.I. 2002)).

       With respect to the second ground for termination, it is my opinion that DCYF failed to

prove unfitness on the basis of institutionalization because it cannot be disputed that the agency

plainly and by design made no efforts to reunite Malachii with his incarcerated father. See In re

Natalya C., 946 A.2d at 203. Because the only caseworker assigned to Malachii conceded in her

testimony that she eschewed any efforts at reunification, a finding of unfitness on grounds of

institutionalization cannot be supported.    The fact that the respondent was incarcerated in

Massachusetts, in my opinion, does not justify a lack of effort on the part of DCYF to fulfill its

statutory duty. See In re Alvia K., 909 A.2d 498, 504 (R.I. 2006).

       For the above reasons I respectfully dissent from the holding of the majority in this case.




                                               - 19 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        In re Malachii O.
                                     No. 2015-179-Appeal.
Case Number
                                     (12-296-1)
Date Opinion Filed                   January 31, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Family Court

Judicial Officer From Lower Court    Associate Justice Karen Lynch Bernard
                                     For Petitioner:

                                     Karen A. Clark
                                     Department of Children Youth & Families

                                     Shilpa Naik
Attorney(s) on Appeal
                                     Court Appointed Special Advocate

                                     For Respondent:

                                     Catherine Gibran
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
