                                                 Supreme Court

                                                 No. 2011-342-Appeal.
                                                 No. 2012-22-M.P.
                                                 (07-4022-2)


In re Amiah P.                :




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. 2011-342-Appeal.
                                                                  No. 2012-22-M.P.
                                                                  (07-4022-2)


              In re Amiah P.                  :


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

                                         OPINION

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

September 25, 2012, on writ of certiorari by Harry Harris (respondent-father) and on appeal by

Caitlin Patenaude (respondent-mother) (collectively, respondents), from a decree entered in the

Family Court terminating their parental rights to their daughter, Amiah P., who was born on

June 27, 2009.1 The parties were directed to appear and show cause why the issues raised in this

appeal should not summarily be decided.2           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

       On September 22, 2010, the Rhode Island Department of Children, Youth and Families

(DCYF) filed a petition in the Family Court seeking to terminate the parental rights of

respondents with respect to Amiah. In its petition, DCYF alleged the following grounds for

terminating the parental rights of respondent-mother: that she was unfit by reason of conduct or

1
 The trial transcripts refer to the child as “Amiah” and so shall we; however, the name is spelled
“Amilah” at times in the record.
2
 When it granted respondent-father‟s petition for writ of certiorari, the Court consolidated these
two cases.
                                             -1-
conditions seriously detrimental to the child; that the child had been placed in DCYF‟s custody

or care for at least twelve months; that respondent-mother had a chronic substance-abuse

problem and her prognosis indicated that the child would not be able to return to her custody

within a reasonable period, considering the child‟s age and the need for a permanent home; that

respondent-mother had exhibited conduct or behavior seriously detrimental to the child of such a

duration to render it improbable that respondent-mother could care for the child for an extended

period. See G.L. 1956 § 15-7-7(a)(2)(iii), (iv). As to respondent-father, DCYF alleged that he

was unfit by reason of conduct or conditions seriously detrimental to the child, such as

institutionalization, including imprisonment, of such a duration as to render it improbable for the

father to care for the child for an extended period and that respondent-father abandoned the child.

See § 15-7-7(a)(2)(i), (a)(4). Concerning both parents, DCYF alleged that respondents had been

offered or received services to correct the situation that led to the child‟s placement. See

§ 15-7-7(a)(3).

       The DCYF‟s involvement in this case began on June 29, 2009, only two days after

Amiah tested positive for cocaine at birth. On that date, DCYF filed a neglect petition against

respondent-mother concerning Amiah.3          Subsequently, a paternity test established that

respondent-father, who was incarcerated at the Adult Correctional Institutions (ACI) at that time,

was, in fact, Amiah‟s father. On April 15, 2010, a decree was entered as to both parents finding

Amiah neglected.

       A trial on the termination of parental rights was held before a justice of the Family Court

on April 26, May 16, and May 31, 2011. Jennifer Jawharjian (Ms. Jawharjian) testified that she

3
  The record reflects that both mother and baby tested positive for cocaine and that the father was
unknown at the time of the child‟s birth. We also note that respondent-mother previously has
had her parental rights to one child terminated involuntarily, and yet another child of respondent-
mother‟s was removed by DCYF after she gave birth while incarcerated at the Women‟s Center
at the Adult Correctional Institutions. That child is not involved in the instant appeal.
                                                -2-
was assigned to Amiah‟s case in December 2009.4 At that time, case plans were in place for

respondent-mother and respondent-father.       The respondent-mother‟s case plan included the

following tasks: participate in a parenting program, obtain housing, seek employment, attend

counseling, remain substance-free, and attend weekly supervised visits with Amiah.            The

respondent-father‟s case plan centered on addressing his parenting skills and encouraged

participation in the programs offered at the ACI. That case plan was mailed to respondent-

father.

          Ms. Jawharjian learned the identity of Amiah‟s biological father sometime in February or

early March 2010. Biweekly visitation with Amiah at the ACI was initiated at that time. The

respondent-father was advised to participate in as many programs offered at the ACI as possible.

Thereafter, respondent-father provided Ms. Jawharjian with his certificates from parenting,

domestic violence, and substance abuse programs. Ms. Jawharjian indicated that she maintained

contact with respondent-father and provided him with information about Amiah‟s progress and

well-being.

          Meanwhile, in March 2010, Ms. Jawharjian spoke with respondent-mother, whom she

encouraged to seek shelter at a domestic violence center because she was engaged in yet another

abusive relationship. Ms. Jawharjian and respondent-mother also discussed moving respondent-

mother into a residential treatment program to address her substance abuse. At that time,

respondent-mother acknowledged to Ms. Jawharjian that it was doubtful that she would be able

to care for Amiah given her persistent and chronic problems stemming from substance abuse.

Later, on June 25, 2010, Ms. Jawharjian informed respondent-mother that DCYF intended to file

a termination petition based on her failure to make sufficient progress toward reunification. As

4
  Previously, another caseworker had been working on Amiah‟s case; that caseworker had
created a case plan for respondent-mother that remained in force at the time Ms. Jawharjian was
assigned to this case.
                                              -3-
to respondent-father, Ms. Jawharjian indicated that he did not engage in behavior at the prison

that would cause him to be denied visitation with Amiah, that the visits went “okay,” that some

bonding between respondent-father and the baby had developed, and that he provided Christmas

gifts for his daughter.

        However, according to Ms. Jawharjian, Amiah was bonded with her non-relative foster

family: Amiah had lived with her foster family since birth, and, Ms. Jawharjian noted, Amiah

considered her foster mother to be her mother and her foster siblings to be her own siblings. Ms.

Jawharjian characterized Amiah as a “happy, healthy, young girl.” The child‟s foster family

wanted to adopt her, but did not want an open adoption.5

        When respondent-father testified, he indicated that he enjoyed his visits with Amiah,

whom he described as his “little pride and joy,” and that he wanted to raise her in spite of the fact

that he had never lived with her. He testified about his participation in the GED program and his

successful completion of a Spectrum Health Systems drug program, anger management

programs, meditation and stress reduction programs, an HIV-prevention course, and a parenting

class. He went on to discuss his newfound religion and subsequent baptism, as well as his

participation in the Learning To Live Initiative, which focuses on reading and understanding the

Bible. He indicated that he engaged in these programs principally for case-planning purposes:

“[t]hat way [], when [he] did come to court * * *, [the court] won‟t terminate [his] rights,” and he

“wanted to have a chance at least with [his] daughter.”6


5
  Ms. Jawharjian testified that she explored the option of placing Amiah with relatives, but
because of criminal histories and other factors concerning these relatives, Ms. Jawharjian
declined to do so.
6
 The respondent-father also testified about his son, aged thirty-three and living in New York.
He indicated that he has kept in touch with his son after raising him with the son‟s mother.
There is no other evidence in this record about this relationship.

                                                -4-
       In terms of any future planning for Amiah, respondent-father had little to offer; he stated

that he planned to call his caseworker to see what programs or counseling he ought to complete.

Further, he testified that, while in prison, he was in touch with his landlady, who told him she

would give him a two-bedroom apartment upon his release from prison. He also stated that a

friend would give him a job in an auto body shop. As for raising Amiah, respondent-father said

his six sisters, who have children of their own, would assist him in caring for the child.7

Specifically, according to respondent-father, he has “six sisters who [have] kids who will help

[him] raise [his] daughter, and they have no problem with that.” Further, he testified that he has

a niece who is DCYF-licensed and who “will take [the child] now.”

       With regard to his criminal history, respondent-father testified about the number of times

he was sentenced to prison, including four years beginning in 1988, one year in 1992 for

possession of cocaine, six years beginning in 1996 for delivery of cocaine, six months in 2003,

and a ninety-day stint in 2007 for driving on a suspended license. He also indicated that his

current incarceration came about from a plea of nolo contendere to felony domestic assault

against respondent-mother in November 2008. He received a twelve-year sentence at the ACI,

six years to serve and six years suspended, with probation. According to respondent-father, his

scheduled release date was in 2014, but he hoped for an early release date of May 2012 based on

credit for good time.

       When respondent-mother took the stand, she did not testify in her own defense and

apparently made no effort to contest the termination of her parental rights. Rather, she attempted

to provide testimony favorable to respondent-father, declaring that, despite his incarceration, he

had never hit her and that she was the aggressor in the events that led to his incarceration. When

7
  Moments after giving this testimony, respondent-father contradicted himself when he stated,
“I‟ve got seven sisters.” In addition, he conceded that one of those sisters had left one of her
children in the care of her niece due to “a little drinking problem.”
                                                  -5-
the trial justice inquired about the relevance of this testimony to respondent-mother‟s defense,

her counsel replied that the testimony “goes to the father‟s fitness.” From there, the court asked

whether respondent-mother‟s counsel was “presenting evidence on behalf of the father instead of

[his] client.” Counsel said, “[a]pparently so, Your Honor. This is my instructions from my

client when I‟m sitting at counsel table.” The trial justice refused to permit this testimony,

declaring: “Well, then that‟s not playing here, [counsel]. If you‟ve got something to defend

your client with, fine; if you don‟t, rest.”

        The respondent-mother next testified that she had been in and out of prison in both

Massachusetts and Rhode Island since Amiah‟s birth.8 The witness conceded that she has spent

“[m]aybe a year” of the last two years in prison, a period, the court noted, that amounted to half

of Amiah‟s life. At the conclusion of counsel‟s direct examination of respondent-mother, she

volunteered that “[e]verybody makes mistakes.” When the trial justice asked whether

respondent-mother made more than one mistake, she replied, “a lot of mistakes.”

        The trial justice delivered an oral pronouncement on June 20, 2011, and he issued a

written decree on August 4, 2011, terminating the parental rights of both parents. The trial

justice found that both parents presented troubling histories involving imprisonment and drugs;

he specifically found that respondent-mother was incarcerated for a period in November 2010

and that respondent-father had been sentenced to twelve years with six to serve for felony

domestic assault upon respondent-mother. According to the trial justice, at best, respondent-

father would be released sometime in 2012. The trial justice also found that Amiah had been in

foster care for nearly two years and that she had bonded with her foster family. Although the

trial justice took care in pointing to the commendable efforts respondent-father had made by way


8
 In fact, at the time of her testimony, she was incarcerated at the Women‟s Center at the ACI,
where she was awaiting trial for first-degree robbery and conspiracy to commit robbery.
                                                -6-
of programs and courses, he found that this “great effort on [respondent-father‟s] part” was “too

little and much too late.”     Ultimately, in terminating respondent-father‟s parental rights to

Amiah, the trial justice found that respondent-father is “more concerned with his [own] wants

and needs than he is with the wants and needs of this child.” The trial justice concluded that

DCYF had proven by clear and convincing evidence the allegations as set forth in the petition

and that it was in the child‟s best interests to terminate respondents‟ parental rights.

       On appeal, respondent-father asserts that the trial justice erred when he found him to be

unfit and also erred in terminating his parental rights based on his incarceration and

abandonment of Amiah. In addition, respondent-father contends that the trial justice erred in

failing to address whether DCYF made reasonable efforts by offering services to encourage and

strengthen the parental relationship. Additionally, respondents both argue that the trial justice

erred when he precluded respondent-mother from testifying that she made false allegations about

respondent-father‟s assault upon her because that offense was the underlying charge for which

respondent-father was incarcerated at the time of Amiah‟s birth. The parents contend that this

testimony was both relevant and admissible concerning respondent-father‟s parental fitness and

in determining Amiah‟s best interests.

                                         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 Victoria L., 950 A.2d 1168, 1174 (R.I. 2008) (quoting In re Ariel

N., 892 A.2d 80, 83 (R.I. 2006)). “These findings are entitled to great weight, and this Court will

not disturb them unless they „are clearly wrong or the trial justice overlooked or misconceived

material evidence.‟” Id. (quoting In re Destiny D., 922 A.2d 168, 172 (R.I. 2007)).

       “Natural parents have a fundamental liberty interest in the „care, custody, and
                                                 -7-
management‟ of their children.” In re Destiny D., 922 A.2d at 172 (quoting Santosky v. Kramer,

455 U.S. 745, 753 (1982)). Before terminating a parent‟s rights to his or her child, the trial

justice must find that the parent is unfit. In re Pricillion R., 971 A.2d 599, 604 (R.I. 2009) (citing

In re Destiny D., 922 A.2d at 172). In these cases, the right to due process requires that the state

support its allegations by clear and convincing evidence. In re Jazlyn P., 31 A.3d 1273, 1279

(R.I. 2011); In re Victoria L., 950 A.2d at 1174 (citing In re Destiny D., 922 A.2d at 172).

However, once the trial justice determines parental unfitness, “the best interests of the child

outweigh all other considerations.” In re Jazlyn P., 31 A.3d at 1279 (quoting In re Destiny L.,

21 A.3d 279, 283 (R.I. 2011)).

                                              Analysis

                    Termination of Respondent-Mother’s Parental Rights

       The issues raised by respondent-mother, although bewildering concerning her right to

parent Amiah, wholly lack merit.9 The sole argument respondent-mother presents on appeal is

that her due process right to be “meaningfully heard” was denied because she was prevented

from presenting evidence with respect to respondent-father‟s parental unfitness. She does not

contest the trial justice‟s finding—which we endorse—that she is unfit to parent this child.

Rather, respondent-mother makes the unconvincing argument that it was error to deny her the

right to present evidence about respondent-father‟s purported innocence of the incarcerating

felony crime.

       To support her argument, respondent-mother directs the Court to In re Christina M., 908

A.2d 1073, 1078-79 (Conn. 2006), a Connecticut Supreme Court case that considered whether

parents subject to the termination of their parental rights have standing to assert a claim that their

9
  We are hard-pressed to discern what standing respondent-mother has to proffer a defense of
respondent-father during her case-in-chief. We agree with the trial justice‟s ruling to the effect
that “that‟s not playing here.”
                                             -8-
child has a constitutional right to conflict-free legal representation. The respondent-mother

contends that the trial justice‟s decision to preclude her statement about respondent-father‟s

fitness as a parent similarly encroached upon her right to retain her status as a mother. We deem

this argument unavailing and irrelevant to the issues before us.

       The respondent-mother‟s argument that she has standing to present evidence about

respondent-father‟s fitness clearly does not have an impact on her own rights as a parent.

Although this Court has held that a parent must be given an opportunity to present evidence of

his or her parental fitness, In re Victoria L., 950 A.2d at 1175, respondent-mother is not

contesting the termination of her own parental rights in this appeal. Therefore, the reliance on

the analysis of the Connecticut Supreme Court in In re Christina M. is misplaced and

unpersuasive.

       We are of the opinion that the trial justice did not err in excluding respondent-mother‟s

testimony that she was the aggressor in the criminal case for which respondent-father was jailed.

“This Court has stated that „[t]he admissibility of evidence is within the sound discretion of the

trial justice * * *.‟” State v. Rodriguez, 996 A.2d 145, 150 (R.I. 2010) (quoting State v. Gautier,

950 A.2d 400, 411 (R.I. 2008)). “This Court will not interfere with the trial justice‟s evidentiary

decision unless a clear abuse of discretion is apparent,” id., and we can discern no such abuse.

The respondent-mother‟s allegation that the trial justice erred in limiting her efforts to defend

respondent-father is unavailing.

                    Termination of Respondent-Father’s Parental Rights

       As the trial justice noted, respondent-father presents a different situation. The facts

underlying the termination of respondent-father‟s parental rights give rise to a more challenging

analysis relative to the question of parental rights and parental unfitness and a more complex

analysis of the grounds upon which the termination of parental rights is warranted in this case.
                                               -9-
We acknowledge at the outset that this is a much closer case.

       The trial justice declared that respondent-father “is unfit by reason of conduct or

conditions seriously detrimental for the child” and “his incarceration * * * is of such a duration

to render it improbable for him to care for the child for an extended period of time.” The

respondent-father urges this Court to conclude that the trial justice erred when he found

respondent-father to be unfit. The respondent-father also contends that the termination of his

parental rights based on his incarceration and abandonment of Amiah was in error.

       We note that respondent-father additionally argues that the trial justice erred in making

no finding as to DCYF‟s reasonable efforts to provide services to encourage and strengthen the

parental relationship. We need not address this argument. The Family Court decree indicates

that “the [c]ourt finds by clear and convincing evidence that [DCYF] has proven the allegations

as set forth in the petition[;]” the allegation to which the decree refers is the allegation that

“parents were offered or received services to correct the situation.” We have determined that

these “services” may be offered by the agency or received elsewhere, and the record clearly

reflects that respondent-father participated in a variety of programs and services at the ACI. See

In re Raymond C., 864 A.2d 629, 634 (R.I. 2005) (noting that “[§ 15-7-7] does not require that

DCYF be the sole provider of services to the parents”).

       In our opinion, based on the facts in evidence, the trial justice was not clearly wrong in

finding respondent-father to be unfit under § 15-7-7(a)(2)(i).         Although the fact of the

incarceration of a parent is not a sufficient ground to terminate one‟s parental rights, we have

held that “the extended length of a parent‟s incarceration is, pursuant to § 15-7-7(a)(2)(i), in and

of itself, grounds to terminate parental rights.” In re Alvia K., 909 A.2d 498, 503 (R.I. 2006).

Indeed, when incarceration “is combined with other factors, such as the probable duration of

incarceration, there may be sufficient grounds to support a finding of unfitness.” In re Jose Luis
                                               - 10 -
R.H., 968 A.2d 875, 885 (R.I. 2009) (citing In re Amber P., 877 A.2d 608, 615-16 (R.I. 2005)).

Furthermore, in considering the length of a parent‟s incarceration, “„the trial justice is not

required to consider parole eligibility[;] he or she is only required to consider the probable

duration of imprisonment at the time of the termination.‟” In re Alvia K., 909 A.2d at 503

(quoting In re Isabella C., 852 A.2d 550, 558 (R.I. 2004)); see also In re Amber P., 877 A.2d at

616. “In calculating the period of incarceration, the [trial] justice may look to the total sentence,

even if the parent is eligible for parole.” In re Faith H., 813 A.2d 55, 57 (R.I. 2003).

       The record clearly reflects that the trial justice did not base his determination solely on

respondent-father‟s incarceration. Instead, the trial justice acknowledged respondent-father‟s

“great effort” to better himself—noting the classes he had taken as well as his dedication to

religion and the study of the Bible—in tandem with respondent-father‟s faithful allegiance to

biweekly visits with the child. However, in addition to weighing those factors, the trial justice

considered the duration of respondent-father‟s full sentence of twelve years at the ACI with six

years to serve and six years suspended. Amiah was born in June 2009, and this case was decided

in June 2011. The trial justice observed that respondent-father already had been incarcerated for

twelve of his fifty years. Further, the trial justice noted that, if respondent-father served the full

sentence, his release would be in 2014, and the earliest possible release date—based on good

time—would not occur until sometime in 2012.

       Moreover, the trial justice recognized that Amiah has lived in foster care since birth and

that the child had bonded with her foster mother. Recognizing what he termed respondent-

father‟s “great plans,” the trial justice doubted whether those plans would come to fruition. The

trial justice opined that, unfortunately, respondent-father was “more concerned with his [own]

wants and needs than he is with the wants and needs of this child.” In the end, respondent-

father‟s efforts were deemed “too little and much too late.”
                                                - 11 -
       We decline to declare this conclusion clearly erroneous. At the time of the Family

Court‟s decision in June 2011, there was no reliable indication that respondent-father would be

released before his “flat time release” date of 2014, when Amiah would be nearly five years

old.10 She would be deprived of the benefit of stability and permanency for a significant portion

of her childhood. In light of respondent-father‟s prison sentence, Amiah‟s age and development,

and the uncertain and vague plans for the child pending respondent-father‟s release, the trial

justice appropriately based his decision on the clear and convincing evidence that respondent-

father‟s “imprisonment rendered it improbable for him to care for the child for an extended

period of time.” In re Jose Luis R.H., 968 A.2d at 885.

       This Court acknowledges that respondent-father made commendable efforts and

expressed sincere love and affection for Amiah and has a desire to be a parent to the child.

Nonetheless, he presented no evidence of his actual ability to care for Amiah within a reasonable

period. Ultimately, “a parent‟s genuine love for [his] child, or an existence of a bond between

parent and child, is not sufficient to overcome the child‟s fundamental right to a safe and

nurturing environment.” In re Douglas F., 840 A.2d 1087, 1089 (R.I. 2003); see also In re

Brianna D., 798 A.2d 413, 415 (R.I. 2002).

       The termination of parental rights is a sad event. In re David L., 877 A.2d 667, 673 (R.I.

2005). Although we note respondent-father‟s attempts to improve himself and make plans for

his daughter, “once unfitness is established, the primary focus no longer is on the parent, but on

the child‟s best interests.” In re Shawn M., 898 A.2d 102, 108 (R.I. 2006). Indeed, “[t]he best

interests and welfare of the child outweigh all other considerations.” Id. (citing In re Kristen B.,

10
   We note that respondent-father had been released from the ACI by the time of the hearing of
this appeal; but “we review the findings of the trial justice in light of the facts that existed at the
time that the Family Court rendered its decision.” In re Jose Luis R.H., 968 A.2d 875, 885 n.9
(R.I. 2009) (citing In re Tinisha P., 697 A.2d 622, 625 (R.I. 1997)).

                                                - 12 -
558 A.2d 200, 203 (R.I. 1989)). Every child has a right to reasonable care and maintenance; to

be free from abuse or neglect, with the hope of spending the remainder of his or her childhood in

a family setting in which the child may grow and thrive. In re Raymond C., 864 A.2d at 634.

“Children „are entitled to permanency; they should not have to wait for an indeterminate period

of time to find out if their parents will successfully obtain and maintain a substance free

lifestyle.‟” In re Shawn M., 898 A.2d at 108 (quoting In re Eric K., 756 A.2d 769, 772-73 (R.I.

2000)).

          Having upheld the trial justice‟s termination of the respondent-father‟s parental rights

under § 15-7-7(a)(2)(i), we need not address the issue of termination based on abandonment.

                                            Conclusion

          There is ample evidence to support the trial justice‟s finding that DCYF proved by clear

and convincing evidence that the respondents are unfit parents and that the termination of their

parental rights was in Amiah‟s best interests. The decree of the Family Court terminating the

parental rights of the respondent-mother is affirmed. As to the respondent-father, the writ is

quashed and the papers are remanded to the Family Court with our decision endorsed thereon.




                                               - 13 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        In re Amiah P.

CASE NO:              No. 2011-342-Appeal.
                      No. 2012-22-M.P.
                      (07-4022-2)

COURT:                Supreme Court

DATE OPINION FILED: October 25, 2012

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

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Providence County Family Court

JUDGE FROM LOWER COURT:

                      Associate Justice John A. Mutter

ATTORNEYS ON APPEAL:

                      For DCYF: Karen A. Clark
                                Department of Children, Youth & Families

                      For CASA: Shella R. Katz
                                Court Appointed Special Advocate

                      For Respondent-Father:
                                 Janice M. Weisfeld
                                 Office of the Public Defender

                      For Respondent-Mother:
                                 Raymond J. Rigat, Esq.
