                                                     Supreme Court

                                                     No. 2014-206-Appeal.
                                                     (P12-798-1)




In re Kristopher J.             :




  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
  formal errors in order that corrections may be made before the opinion is
  published.
                                                               Supreme Court

                                                               No. 2014-206-Appeal.
                                                               (P12-798-1)




            In re Kristopher J.              :




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

                                         OPINION

       Justice Flaherty, for the Court. This case is but another example of the great tragedy of

child abuse that plagues our society. The respondent-father, Christopher Jimenez, was indicted

for inflicting numerous injuries over the span of several weeks on his five-week-old daughter

Christina, resulting in the infant’s death. In response to the allegations lodged against the

respondent with respect to his daughter, the Department of Children, Youth, and Families

(DCYF) filed a petition to terminate his parental rights to his other child, a one-year-old son

named Kristopher.    After an eight-day trial, a justice of the Family Court terminated the

respondent’s parental rights. The respondent timely appealed. The matter came before the

Supreme Court for argument on April 29, 2015, pursuant to an order directing the parties to show

cause why the issues raised should not be summarily decided. After hearing the arguments and

examining the memoranda filed by the parties, we conclude that cause has not been shown and

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

affirm the decree of the Family Court.




                                              -1-
                                                I

                                        Facts and Travel

        On August 23, 2012, DCYF filed a petition to terminate the parental rights of Mayra

Gonzalez (Mayra or mother) 1 and respondent-father to their son, Kristopher J. The petition

alleged two grounds to support the termination of respondent’s rights: (1) “The parents are unfit

by reason of conduct or conditions seriously detrimental to the child, in that the parents have

committed or allowed to be committed, conduct toward any child of a cruel or abusive nature,”

and (2) that the father, specifically, was unfit because he committed a criminal act, namely the

murder, manslaughter, or assault, of his daughter, Christina. However, because respondent’s

criminal charges were still pending at the time of trial, DCYF withdrew the second ground

during trial. 2

                                      Trial on the Petition

        In March and April of 2014, a trial was held before a justice of the Family Court. Eight

witnesses testified during the trial: respondent, a first responder who treated Christina, a doctor

who treated Christina at Hasbro Children’s Hospital, a Providence Police detective assigned to

Christina’s death, three DCYF employees assigned to the family, and Mayra’s mother,

grandmother to both Christina and Kristopher. At the time of Christina’s death, respondent and

his girlfriend, Mayra, were the parents to two children, Kristopher and Christina. The respondent




1
   Ms. Gonzalez participated in the termination process and was represented by counsel, but she
voluntarily consented to the termination of her parental rights at a pretrial hearing on
December 17, 2013. The respondent proceeded to trial, and he is the only parent before this
Court on appeal.
2
   On April 29, 2015, respondent’s counsel represented to this Court that the criminal matter
stemming from respondent’s alleged involvement in Christina’s death remained in pretrial
proceedings.


                                               -2-
and Mayra shared, with their two children, one bedroom in a home on Congress Avenue in

Providence. Mayra’s parents also resided in this home with their own children, Mayra’s siblings.

       In the early morning of June 20, 2012, the Providence Fire Department was dispatched

for an emergency call at respondent’s home in connection with a report of a child not breathing.

Lieutenant Dennis R. Tucker of the Providence Fire Department testified that, when he arrived at

the home, he observed respondent and the child’s mother in the driveway holding Christina in a

blanket. When Lt. Tucker inquired of the mother what was the matter with the child, “she just

said [Christina had] had difficulty breathing in the past.” At that time, the child had no pulse and

no signs of respiration. Lieutenant Tucker testified that, based on his experience, it was his

opinion that the demeanor of the two parents “was not consistent with parents whose child may

or may not have died or would die in the immediate future.” Lieutenant Tucker immediately

began performing emergency cardiopulmonary resuscitation (CPR) on the child, and the

emergency vehicle transported her to Hasbro Children’s Hospital in Providence.

       After Lt. Tucker completed his testimony, DCYF called respondent to the witness stand.

The respondent was asked numerous questions about the events of June 20. However, beginning

with the first question, respondent answered, “I would like to practice my Fifth Amendment.”

The respondent would invoke his Fifth Amendment privilege to refuse to provide self-

incriminating testimony in response to each and every question posed by DCYF’s counsel, a

total of sixty-seven times. At the outset, when it became clear that respondent would exercise his

Fifth Amendment right, the trial justice asked respondent’s counsel if he had advised his client of

the consequences he might expect, to which counsel answered, “I explained to [respondent] in

this case, the [c]ourt could draw adverse inferences from his exercising his Fifth Amendment

right. So, yes, he does understand that, Your Honor.”




                                               -3-
        Doctor Christine Barron then testified that the infant came under her care when she

arrived at the hospital. Doctor Barron, who is the director of the hospital’s child protection

program, testified that the child was resuscitated and intubated upon admission to the hospital.

However, from the time of her admission on June 20, 2012, until her tragic death, on July 7, she

never regained consciousness. The injuries to Christina were so numerous that Dr. Barron

testified, “I actually made a list of [Christina’s] injuries * * * because there were so many

injuries, to make sure I did not miss any of them.” Chest X-rays revealed twenty different rib

fractures, some older and some newer, at different stages of healing, which Dr. Barron testified

could not have been caused by the CPR techniques employed by Lt. Tucker. The C.T. scans of

the baby’s head revealed a large degree of soft tissue swelling, four skull fractures, and a

subdural hemorrhage, which is bleeding between the brain and the dura, the brain’s protective

membrane. Doctor Barron opined that these injuries, particularly the rib fractures, would have

been “exceedingly painful.” Further X-rays showed numerous fractures, including to the left and

right wrist, left lower leg, right ankle, right femur bone above the knee, and to the left pubic

bone. Lastly, Dr. Barron noted a scar under the infant’s chin and severe retinal bleeding in both

eyes.

        In Dr. Barron’s opinion, these injuries could not be adequately explained by the medical

history provided by respondent or the child’s mother to treating physicians. The medical records

admitted at trial indicated that the mother suggested that maybe she and respondent “were

burping the baby too hard,” and that respondent had said that “accidentally sitting on the child’s

head or banging the child’s head against a piece of furniture or dropping the child accidentally”

may have been the cause of Christina’s injuries. Doctor Barron dismissed these explanations,

asserting that they were not at all consistent with the severity and the various stages of healing




                                              -4-
that the injuries presented. The medical history also contained statements by the baby’s paternal

grandmother, who lived in New Bedford, Massachusetts, but often saw her son, respondent, and

her grandchildren. Doctor Barron testified that the grandmother had said, “[Christina] always

seemed to be moaning, seemed to be in pain whenever [the grandmother] picked up [Christina] *

* * [the grandmother] was constantly telling [respondent] to take [Christina] to the doctor’s,” but

respondent and Mayra “never sought medical care for [Christina].” Doctor Barron testified that

“[t]he injuries to the infant would have and should have been obvious to all caregivers because of

her injuries, her multiple rib fractures would have caused what we call paradoxical crying. * * *

[U]sually when an infant is crying, you pick them up to console them, and they console, but

when children or infants have multiple rib fractures * * * they cry more when you pick them up.”

Due to the seriousness of the injuries to Christina, and the fact that “Kristopher remained at risk

if he remained in [respondent and his mother’s] care,” the doctors issued a “hold” on her brother

Kristopher, and proceeded to examine him. Kristopher was examined at the hospital the same

day Christina arrived, and he was found to have no injuries.

       Next, Michaela Dolan, a child protective investigator for DCYF, testified about her

interview with respondent at the hospital regarding the injuries to Christina. Ms. Dolan testified

that respondent told her that “[h]im and his woman were the only two [caretakers of the

children], that they don’t work, and that nobody else cared for the children.” When asked how

Christina’s injuries had occurred, Ms. Dolan testified, respondent said that during a 4 a.m.

feeding, “he dropped her, and her head hit the dresser on the way down.” Ms. Dolan said that

this explanation “didn’t make any sense” to her because it provided no insight as to who or what

caused Christina’s broken ribs. Ms. Dolan testified that she followed up on this line with

respondent, who told her that “he lifts weights, sometimes doesn’t know his own strength * * *




                                               -5-
like if [he] picked the baby up to curl her, he might have cracked her ribs.” Ms. Dolan further

testified that there was a lack of consistency between the two parents’ statements at their

respective interviews.

       At the time of trial, the criminal proceedings arising from Christina’s death were

continuing in the Superior Court and the trial justice explicitly made no findings regarding the

criminal matter. 3 However, Kristopher had been placed with a nonrelative foster family, who

had expressed a desire to adopt him. Tamara Guimond, a social worker with DCYF, testified

that Kristopher had been in this same foster home since she first was assigned to the case. 4 In

the care of this family, Ms. Guimond testified, Kristopher “has been developing and blossoming,

flourishing, just really doing well in this home.” It was Ms. Guimond’s opinion that the best

interests of Kristopher would be served if he were to be adopted by his foster family.

                                  Decision of the Family Court

       After hearing testimony from the witnesses, the trial justice took the matter under

consideration and issued a written decision on May 23, 2014. In that forty-five-page decision,

the trial justice made thirty-four findings of fact, by clear and convincing evidence, to support

her determination as to the parental unfitness of respondent. The trial justice drew from the

testimony of the witnesses, noting their credibility, and the adverse inferences she made against

respondent, who chose to exercise his Fifth Amendment right and refused to answer any

questions at trial. Specifically, the trial justice found, “Dr. Barron’s medical testimony, to be




3
  The trial justice’s decision said, “[respondent] has been criminally indicted and is awaiting trial
on charges relating to Christina’s death. The [c]ourt makes no findings regarding the
[respondent’s] pending criminal matter.” See note 2.
4
  At oral argument, Kristopher’s guardian ad litem represented to the Court that he remains with
this family.


                                                -6-
most compelling and extremely persuasive.”            The trial justice also “dr[ew] reasonable

inference[s] from [respondent’s] testimony in light of all the other evidence.”

       The trial justice found that respondent was the sole and primary caretaker of Christina on

the night of June 19 and morning of June 20, when the infant was admitted to the hospital. The

trial justice also found that it was “uncontradicted and clearly substantiated that Christina’s tragic

death was a result of child abuse and was not caused by accidental means * * * .” These non-

accidental injuries were also sustained at different times in the course of her short life. The

failure to seek medical treatment for Christina “constitute[d] neglect and cruel and abusive

conduct.” Specifically, the trial justice stated, “[a] caring parent would have known the source of

[her] injuries or would have reported the source if he had not caused them himself or permitted

them to happen.”

       In making these findings, the trial justice relied on In re Chester J., 754 A.2d 772, 777-78

(R.I. 2000), and In re Frances, 505 A.2d 1380, 1384-85 (R.I. 1986), for the proposition that, even

if respondent himself had not caused Christina’s injuries, because he and the child’s mother were

the primary caretakers at the time of the injury, he was responsible for the unexplained injuries.

Because respondent was found to be an unfit parent, due to the cruel and abusive nature of his

conduct towards his daughter Christina, the trial justice concluded that the best interests of

respondent’s son Kristopher would be served by a termination of respondent’s parental rights. A

decree terminating respondent’s parental rights to Kristopher was entered on May 30, 2014.




                                                -7-
                                                 II

                                       Standard of Review

       “When reviewing cases involving the termination of parental rights, this Court examines

the record to determine whether legally competent evidence exists to support the trial justice’s

findings.”   In re Chester J., 754 A.2d at 776 (citing In re Ryan S., 728 A.2d 454, 457

(R.I. 1999)). “Such findings are entitled to great weight, and this Court will not disturb them on

appeal unless the findings are clearly wrong or the trial justice misconceived or overlooked

material evidence.” Id. (quoting In re Ryan S., 728 A.2d at 457).

                                                 III

                                             Discussion

       On appeal, respondent argues that it was error for the trial justice to terminate his parental

rights because, even though he concedes that the trial justice had “compelling evidence before

her that Christina suffered fatal injuries,” she nonetheless lacked clear and convincing evidence

of the culpability of respondent as the cause of those injuries. The process of terminating

parental rights is not to be undertaken lightly, but it is our opinion that, in our deferential review

of the record, we cannot say that the trial justice misconceived or overlooked material evidence

in making her findings and ultimate decree. We shall address respondent’s argument below and

note the reasons for which we must affirm the decree of the Family Court.

       We have said that “[n]atural parents have a fundamental liberty interest in the ‘care,

custody, and management’ of their children.” In re Jazlyn P., 31 A.3d 1273, 1279 (R.I. 2011)

(quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)). Therefore, a parent has a right to due




                                                -8-
process before the Family Court and may forfeit his or her parental rights only when the State

can show by clear and convincing evidence that the parent is unfit. Id. Such a finding of

parental unfitness is “the first [and] necessary step before any termination of parental rights can

be initiated.” In re Steven D., 23 A.3d 1138, 1161 (R.I. 2011) (quoting In re Antonio G., 657

A.2d 1052, 1057 (R.I. 1995)). The authority to request a termination of parental rights is given

to DCYF by statute. See G.L. 1956 § 15-7-7. When a termination petition is filed on the basis

of § 15-7-7(a)(2)(ii), “[c]onduct toward any child of a cruel or abusive nature[,]” the statute

dictates that “the department has no obligation to engage in reasonable efforts to preserve and

reunify a family.” Section 15-7-7(b)(1). Finally, once a determination of unfitness has been

made, “the best interests of the child outweigh all other considerations.” In re Jazlyn P., 31 A.3d

at 1279 (quoting In re Destiney L., 21 A.3d 279, 283 (R.I. 2011)).

       The respondent, quoting In re Jazlyn P., 31 A.3d at 1282, acknowledges in his brief that

“cruel or abusive conduct towards one child in a household can serve as a basis for terminating a

parent’s rights with respect to another child in the household.” The legal argument respondent

makes instead urges us to consider a recent case from this Court in which we vacated, for

insufficient evidence, a termination of parental rights: In re Adner G., 925 A.2d 951, 960-62 (R.I.

2007). The child in In re Adner G. had injuries that were not readily apparent, “not visible to the

naked eye,” and “someone other than the parents had significant access to the child during the

time when the injuries probably were inflicted * * * .” Id. at 960. Because of these facts, we

said that it was not reasonable, and therefore legal error, to infer that it must have been the

parents who inflicted or who allowed others to inflict the injuries. Id. But here, and in contrast

to In re Adner G., the trial justice noted that Christina’s injuries should have been apparent to

respondent. Indeed, respondent was told by his own mother that he should take Christina to the




                                               -9-
doctor because there was obviously something wrong with the infant, and Christina’s

paradoxical crying behavior should have raised a concern. Significantly, the trial justice also

found that respondent was the sole and primary caretaker on the evening when Christina’s fatal

injuries were inflicted. Therefore, this case is readily distinguishable from In re Adner G..

       On the other hand, it is our opinion that the case of In re Chester J. is almost entirely on

point. In re Chester J., 754 A.2d at 773. In that case, there was also horrific child abuse, and the

parents “were unable or unwilling to adequately explain the massive trauma suffered by th[e]

infant.” Id. at 777. We said that there was a reasonable inference that the parents caused or

allowed the injuries to be caused to the child because the parents were the child’s sole caregivers.

Id. at 778 (“As the parents and primary caregivers of [the child], ‘the law holds [them] to a

greater level of substantial responsibility and awareness concerning the well-being of their

children than it otherwise might in the case of an adult relative or a stranger.’”).            Here,

respondent was Christina’s sole caregiver on the evening in question. The respondent was living

and sleeping in the same room as Christina for the entirety of her life before her hospitalization,

during the time when the medical testimony established that numerous serious injuries were

inflicted upon the helpless child. There were no other caregivers and no daycare facilities in

question. See In re Adner G., 925 A.2d at 954 (discussing the child’s daycare arrangements).

       The trial justice’s findings that Christina’s injuries should have been apparent to her

caretakers and that the respondent was the sole caretaker on the night of June 20 were critical in

the decision to terminate the respondent’s parental rights.       We can glean no oversight or

misconception of the evidence by the trial justice in her decision that these facts were proven by

clear and convincing evidence. The trial justice’s finding that the respondent caused Christina’s

injuries was certainly reasonable, based on the clear and convincing evidence that he was the




                                               - 10 -
sole caretaker at the time of the fatal injuries; therefore, a finding that he violated § 15-7-

7(a)(2)(ii) was warranted, and the termination of the respondent’s parental rights to his son,

Kristopher, logically followed.

                                              IV

                                          Conclusion

       For the reasons set forth above, we affirm the Family Court’s termination of the

respondent’s parental rights to his minor son. The record may be returned to the Family Court.




                                             - 11 -
                           RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:       In re Kristopher J.

CASE NO:             No. 2014-206-Appeal.
                     (P12-798-1)

COURT:               Supreme Court

DATE OPINION FILED: May 28, 2015

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

WRITTEN BY:          Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:    Providence County Family Court

JUDGE FROM LOWER COURT:

                     Associate Justice Laureen D’Ambra

ATTORNEYS ON APPEAL:

                     For Petitioner: Karen A. Clark
                                     Department of Children Youth and Families

                                     Shilpa Naik
                                     Court Appointed Special Advocate

                     For Respondent: Catherine Gibran
                                     Office of the Public Defender
