                                                        Supreme Court

                                                        No. 2015-230-Appeal.
                                                        (P13-1229-1)
                                                        No. 2016-161-Appeal.
                                                        (P13-1229-2)

In re Kyeshon J. et al.            :




     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-
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                                                                     Supreme Court

                                                                     No. 2015-230-Appeal.
                                                                     (P13-1229-1)
                                                                     No. 2016-161-Appeal.
                                                                     (P13-1229-2)

         In re Kyeshon J. et al.               :


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

                                          OPINION

       Justice Robinson, for the Court. The respondent father, Kai Jackson, appeals from a

decree of the Family Court terminating his parental rights with respect to his two sons, Kyeshon

J. and Jarell G. This case came before the Supreme Court for oral argument on September 29,

2016, pursuant to an order directing the parties to appear and show cause why the issues raised in

this appeal should not be summarily decided. After a close review of the record and careful

consideration of the parties’ arguments (both written and oral), we are satisfied that cause has not

been shown and that this appeal may be decided at this time. For the reasons set forth below, we

affirm the decree of the Family Court.

                                                   I

                                         Facts and Travel

       On November 19, 2013, Sandra Armand and Gorvey Armand (petitioners) filed two

adoption petitions in Family Court so that Gorvey1 might become the legal father of both

Kyeshon (who was born on May 23, 1999) and Jarell (who was born on November 9, 2000). As


1
       We shall at some points in this opinion employ first names and omit the surnames. In
doing so, we intend no disrespect.
                                             -1-
the basis for their petitions, petitioners alleged that respondent had failed to provide for Kyeshon

and Jarell pursuant to G.L. 1956 § 15-7-7(a).         (Those petitions could be granted only if

respondent consented to the adoptions—or, alternatively, if his parental rights as to the children

were terminated.) The respondent, who was then incarcerated in Massachusetts, refused to

consent to the adoptions. As a result, petitioners moved to terminate respondent’s parental rights

with respect to Kyeshon and Jarell. Thereafter, a trial was held before a Family Court justice on

August 14, September 3, September 10, and December 15 of 2014. We summarize below the

salient aspects of that trial.

                                                 A

                                    The Testimony of Sandra

        Sandra Armand, the mother of Kyeshon and Jarell, testified that respondent had not

visited the boys in over two years, the last occasion being when he “picked them up” on Jarell’s

eleventh birthday in November of 2011. She testified that respondent had not set up a visitation

schedule as to when he would visit the boys; she stated that, instead, he would seek to visit them

“out-of-the-blue.” It was her testimony that respondent’s last phone conversation with Kyeshon

occurred about one year before trial. She further testified that she had not received child support

payments for her sons from respondent in twelve years.            She also stated that, although

respondent had from time to time purchased sneakers for the boys in past years, he had stopped

making such purchases before 2012.

        Sandra further testified that respondent had not been involved with the care of the

children; she added that she and their stepfather (Gorvey) have provided for their daily needs

over the years. She stated that, for at least six years, Gorvey has “effectively been [the boys’]

father,” providing “stability” in the household by being “a constant father figure” who “[attends]

                                                -2-
their school meetings, helps with [their] homework, feeds them, [and] clothes them.” Sandra

testified that, in her judgment, it would be in the best interests of Kyeshon and Jarell to terminate

respondent’s parental rights.

                                                 B

                                 The Testimony of Respondent

       The respondent testified at trial that he was then serving a two-year sentence in

Massachusetts for simple assault.2 He further testified that, from the end of 2011 until some

point in 2012, he would visit Kyeshon and Jarell. He testified that he had given cell phones to

Kyeshon and Jarell when they were six and seven years old, respectively. It was his testimony

that he had purchased clothes, sneakers, and headphones for them, the last time being at some

point in 2013—although he could not recall in which month of that year. The respondent

testified that, in July of 2013, he saw and gave thirty dollars to Kyeshon at a family barbecue.

He further testified that, as a result of his incarceration that began in August of 2013, he had

since that time not seen Kyeshon or Jarell, nor had he supported them. However, respondent

stated on cross-examination that he had visited both his sons whenever he was not incarcerated.

                                                 C

                                   The Testimony of Kyeshon

       Kyeshon, who was fifteen years old at the time of trial, testified that he wanted his

stepfather to become his legal father because of their “positive relationship.” Specifically, he

discussed how his stepfather is “reliable” and has “been there for [him] for a very long time” by

giving him good advice, going to church with him, taking him to his basketball games, helping

2
       The respondent testified that, as a result of various convictions, he had been incarcerated
for one year over the course of the years 2008 and 2009; seven months in 2010; forty days in
2011; and two years beginning in August of 2013.
                                                -3-
him with his homework, and attending his school functions. He further testified that he had last

seen respondent about “two years ago.” When asked on direct examination whether respondent

had provided any “benefits” to him, he replied: “Not really.” Kyeshon testified that, in his view,

terminating respondent’s parental rights would be best for him and his family.

                                                  D

                                     The Testimony of Jarell

       Jarell, who was fourteen years old at the time of trial, testified that he “absolutely”

wanted his stepfather to become his legal father. According to Jarell, his stepfather “has been in

[his] life every single day for eight years,” continuously “support[ing] [him] and [his] family.”

Specifically, he discussed how his stepfather is a “good role model,” who helps him with his

homework, goes to his football games, and treats his mother well. By contrast, Jarell testified

that he was “mad” about respondent’s repeated incarcerations. He stated that he had not “seen

[respondent] in years;” he added that he had last seen respondent on his eleventh birthday

(November 9, 2011). Jarell testified that he was “fine” with respondent losing his parental rights

“[b]ecause [respondent] is barely in [his] life, and [he] barely get[s] to see him.”

                                                  E

                            The Testimony of Respondent’s Fiancée

       The respondent’s fiancée testified that she had been in a relationship with respondent for

over two years. It was her testimony that, at one point, respondent asked her to contact Sandra;

the fiancée stated that she did so in December of 2013 through Facebook and by phone in order

to “get in touch with the children.” She stated that, when he was incarcerated, Sandra “would

allow [the boys] to speak to [their father] whenever they wanted to, but she would not allow

them to go visit him.” When asked whether she had conversed with Sandra after December of

                                                 -4-
2013, she replied: “No.” She also stated that respondent had not thereafter asked her to contact

Sandra again.

                                                 F

                                    The Family Court’s Decision

       On February 25, 2015, the justice of the Family Court who had presided over the trial

made several findings of fact, of which we set forth the most important. At the outset, the trial

justice indicated that respondent’s lack of contact with and financial support for Kyeshon and

Jarell was “painfully evident,” noting that there was such a lack “even when [respondent] was

not incarcerated.” Specifically, she found that respondent’s last contact with both children was

on November 9, 2011 and that he had “never provided * * * child support * * * and only

provided occasional * * * gifts.”     The trial justice pointed to respondent’s “long history of

incarceration” as well as “[p]etitioners’ and the children’s wishes” as being significant factors for

her to weigh in determining whether or not to terminate respondent’s parental rights with respect

to his sons. She ultimately found, by clear and convincing evidence, that respondent was unfit as

a parent because he had “failed to provide support for these two children, and * * * [had] failed

to have any contact with them for a period of more than six months prior to the filing of th[e]

Adoption Petition, even when he had resources available to him to see his children.” The trial

justice further found that it would be in the best interests of Kyeshon and Jarell to terminate

respondent’s parental rights so that their stepfather might adopt them. On the same day, she

entered a decree terminating respondent’s parental rights. A timely notice of appeal ensued.




                                                -5-
                                                  II

                                        Standard of Review

       When reviewing a decision to terminate parental rights, this Court “reviews the record to

determine whether legal and competent evidence lends support to the [Family Court] justice’s

ruling.” In re Jake G., 126 A.3d 450, 456 (R.I. 2015). The findings of fact of a justice of the

Family Court are “entitled to great weight and will not be overturned unless we determine that

they are clearly wrong or the trial justice overlooked or misconceived material evidence.” Id.

(quoting In re Jah-nell B., 116 A.3d 784, 791 (R.I. 2015)). Additionally, we have consistently

noted that, “in order to permanently sever the rights of a parent in his or her children, * * * [t]he

state must prove parental unfitness by clear and convincing evidence in order to satisfy the

parent’s right to due process.” Id. (quoting In re Jah-nell B., 116 A.3d at 791). However, we are

ever mindful that the “best interests of the child outweigh all other considerations.” In re Tory

S., 988 A.2d 151, 155 (R.I. 2010) (quoting In re Kristen B., 558 A.2d 200, 203 (R.I. 1989)).

       With respect to the review of adoption petitions, § 15-7-5(b)(2) sets forth that “[t]he

standard of proof in these cases shall be by clear and convincing evidence and the court shall

give primary consideration to the physical, psychological, mental, and intellectual needs of the

child * * *.”

                                                 III

                                              Analysis

       On appeal, respondent contends that the trial justice erred in finding: (1) that he is unfit

“where unfitness had not been alleged as a ground in the [p]etition;” (2) that “[he] had the

financial ability to provide proper care, maintenance and support” during his incarceration; and

(3) “that termination of [his] parental rights would serve the best interest[s] of the children.”

                                                 -6-
       As a preliminary matter, respondent’s first argument is unavailing. As this Court has

previously noted, we consistently adhere to the venerable “raise or waive rule,” which provides

that “an issue that has not been raised and articulated previously at trial is not properly preserved

for appellate review.” In re Shy C., 126 A.3d 433, 434, 435 (R.I. 2015) (quoting State v. Gomez,

848 A.2d 221, 237 (R.I. 2004)). Here, respondent never objected to petitioners’ submission of

evidence to the Family Court on the issues of unfitness, willful neglect to provide proper care,

maintenance and support, or abandonment. Nor did he ever object to petitioners’ purported

failure to specify these statutory grounds in the adoption petition. Upon a thorough review of the

record, we perceive nothing in the instant case that “would induce us to make an exception to our

well-settled raise or waive jurisprudence.”      Id. at 435.    Accordingly, it is our view that

respondent’s first contention on appeal has been waived.

       The respondent’s remaining arguments are similarly unavailing and need not be

addressed at any length—because respondent’s parental rights were properly terminated on the

ground of abandonment pursuant to § 15-7-7(a)(4).3 In reliance upon that statute, we have on

numerous occasions upheld the termination of parental rights of parents who were incarcerated—

3
        The authority for the termination of parental rights premised upon abandonment is set
forth in G.L. 1956 § 15-7-7(a)(4), which provides the following:

                       “The court shall * * * after notice to the parent and a
               hearing on the petition, terminate any and all legal rights of the
               parent to the child, including the right to notice of any subsequent
               adoption proceedings involving the child, if the court finds as a
               fact by clear and convincing evidence that:

                       “* * *

                       “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.”
                                              -7-
as respondent had been for a substantial portion of Kyeshon and Jarell’s lives. See, e.g., In re

Serenity K., 891 A.2d 881, 884 (R.I. 2006) (stating that the responsibility to maintain substantial

and repeated contact with one’s child continues “even when the parent whose rights are at issue

was incarcerated for the six-month statutory period”). An incarcerated parent who fails to

“actively engag[e] in efforts to contact” his or her child “despite having opportunities to do so”

runs the very real risk of it being held that the parent has “abandoned the child.” In re DeKarri

P., 787 A.2d 1170, 1171, 1172 (R.I. 2001); see In re Unique T., 822 A.2d 182, 184 (R.I. 2003).

       Despite respondent having once inquired about his children through his fiancée in

December of 2013, he failed to make further attempts to contact Kyeshon and Jarell while he

was incarcerated. We consider noteworthy the trial justice’s observation that, even during the

points in time when respondent was not incarcerated, it was “painfully evident” that he had

“never been [a] consistent source of financial and/or emotional support” with respect to both

children. Notably, she found that respondent’s last visit with both of his children was on

November 9, 2011. There was ample evidence in the record that respondent had not contacted

either son for at least a year—a period in excess of the statutory six months required as a basis

for the termination of parental rights. Consequently, he cannot successfully rebut the prima facie

evidence of abandonment. As we have repeatedly said in the past, this Court’s reaction is one of

“intolerance for a parent * * * who makes halfhearted or no attempts to visit or contact his or her

child within the six-month statutory time period constituting prima facie evidence of

abandonment.” In re DeKarri P., 787 A.2d at 1172; see In re Serenity K., 891 A.2d at 884-85.

       At the end of the day, the trial justice found that it would be in Kyeshon and Jarell’s best

interests to terminate respondent’s parental rights so that their stepfather might adopt them. She

stated, inter alia, that “[b]oth * * * young men have stated their desire to be adopted by their

                                               -8-
stepfather,” who “has been a father and role model for them for over eight years.” In our

opinion, there is no basis in the record to question the trial justice’s conclusion that the children’s

best interests will be served by the termination of respondent’s parental rights.

        Having carefully reviewed the record and the findings of fact of the trial justice, we

conclude that she did not err in finding, by clear and convincing evidence, that the respondent

had abandoned Kyeshon and Jarell for the six-month period referenced in § 15-7-7(a)(4). Her

findings of fact, which “are accorded great weight,” were supported by a review of the evidence

before her. In re Tory S., 988 A.2d at 155. Accordingly, we affirm the decree of the Family

Court terminating the respondent’s parental rights with respect to Kyeshon and Jarell.

                                                  IV

                                             Conclusion

        For the reasons stated herein, we affirm the decree of the Family Court and remand the

record to that tribunal.




                                                 -9-
STATE OF RHODE ISLAND AND                                      PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        In re Keyshon J. et al.
                                     No. 2015-230-Appeal. (P13-1229-1)
Case Number
                                     No. 2016-161-Appeal. (P13-1229-2)
Date Opinion Filed                   February 14, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice William P. Robinson III

Source of Appeal                     Providence County Family Court

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

                                     David J. Strachman, Esq.
Attorney(s) on Appeal
                                     For Respondent:

                                     Susan B. Iannitelli, Esq.




SU-CMS-02A (revised June 2016)
