                                                   Supreme Court

                                                   No. 2015-286-Appeal.
                                                   (14-1152-1)

  In re Kurt H.                  :



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notify the Opinion Analyst, Supreme Court of Rhode Island, 250
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                                                                    Supreme Court

                                                                    No. 2015-286-Appeal.
                                                                    (14-1152-1)

                 In re Kurt H.                   :



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

                                         OPINION

       Chief Justice Suttell, for the Court. The respondent, Eric H. (father or respondent),

appeals from a decree of neglect as to his son, Kurt H. (the child), entered in the Family Court.

The child came under the state’s care on October 6, 2014, after an alleged alcohol relapse by the

child’s mother; at the time the respondent was incarcerated at the Adult Correctional Institutions

(ACI). This case came before the Supreme Court 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 considering the parties’ written and oral submissions and reviewing the record, we

conclude that cause has not been shown and that this case may be decided without further

briefing or argument. For the reasons set forth in this opinion, we affirm the decree of the

Family Court.

                                                 I

                                       Facts1 and Travel

       At some point after the child’s birth in 2012 in Massachusetts, the family became

involved with the Massachusetts Department of Social Services (DSS) for reasons that are not


1
  The following facts are set forth in the Rhode Island Department of Children, Youth, and
Families’ statement of facts to substantiate allegations of abuse, neglect, and/or dependency and
are not disputed.

                                               -1-
germane to the issues currently on appeal. In June 2014, the family moved to an apartment in

Pawtucket. Shortly thereafter, DSS contacted the Rhode Island Department of Children, Youth,

and Families (DCYF) to report that the family had relocated. In late July 2014, respondent was

arrested and held on a charge of conspiracy to violate the controlled substances law; he

subsequently pled to the charge and was sentenced to eighteen months at the ACI.

           After respondent’s arrest and detention, the mother “began working” with the Family

Care Community Partnership (FCCP). On October 6, 2014, the mother admitted to a FCCP

agent that she had relapsed and had been drinking for several days, and that she would be evicted

on October 18, 2014. Consequently, a DCYF Child Protective Investigator (CPI) “responded to

the home.” In an affidavit, the CPI attested that the mother, when interviewed at her home,

began “screaming and swearing[,] saying [that] she was going to drink a bottle of alcohol and

kill herself.” The CPI described the mother as “belligerent” and “erratic” during this visit. The

child was placed in the temporary custody of DCYF, and, on the following day, DCYF filed an

ex parte petition alleging that the child was neglected. On January 22, 2015, the petition was

amended to include an allegation of dependency, an allegation to which the mother pled.

           The petition came before the Family Court for trial as to father on May 12, 2015. Before

trial commenced, respondent stated that he did not “feel” he could admit to neglect because,

although he was incarcerated when the child was removed, it was the mother’s relapse that

caused the child to come into the state’s care. The respondent indicated that, in light of the fact

that the mother had pled to dependency, he should be permitted to do so as well. The trial justice

disagreed, and reminded respondent that someone incarcerated at the ACI is “not in a position to

take care of [a] child.” Accordingly, the trial began and respondent was the only witness to

testify.



                                                 -2-
       At trial, respondent testified that he had supported his family financially. Specifically,

respondent testified that, at the time he was incarcerated, he left the apartment “paid for, food

and pantry * * * fully stocked, diapers * * * [and] had money coming in that [he] allowed [the

mother] to spend on herself and the child.”2 The respondent testified that the “money coming in”

was from jobs he had completed before being incarcerated and money owed to him, and that he

cashed in an IRA worth $6,000 to ensure that the mother and child “had everything they

needed.”

       At the conclusion of the testimony, the trial justice rendered a bench decision, in which

she found by clear and convincing evidence that respondent was unable to care for the child due

to his confinement in the ACI, and that respondent knew that the mother had alcohol problems

when he left the child in her custody. The trial justice also found that respondent neglected the

child by failing “to provide the child with a minimum degree of care, supervision or

guardianship, and [that] the child [was] without proper parental care and supervision.” The

Family Court therefore ordered the child “committed to the care, custody and control of

[DCYF]” and ordered the appointment of an educational advocate for the child. A decree

entered on June 1, 2015, from which respondent timely appealed.3

                                                II

                                       Standard of Review

       In adjudicating “allegations of dependency and neglect, the Family Court is required to

make its findings by clear and convincing evidence, in accordance with Rule 17(b) of the Family

Court Rules of Juvenile Proceedings.” In re Jermaine H., 9 A.3d 1227, 1231 (R.I. 2010). “The

2
  The respondent clarified that he paid the security deposit plus first and last months’ rent on the
apartment.
3
  A subsequent decree was entered on June 8, 2015, summarizing the trial justice’s findings of
fact.

                                               -3-
clear and convincing standard of proof requires the trial justice to have a ‘clear conviction

without hesitancy of the truth of the precise facts in issue.’” Id. (quoting In re Adner G., 925

A.2d 951, 957 (R.I. 2007)). Accordingly, “[t]his Court’s standard of review requires that ‘we

examine the record to determine whether legally competent evidence exists in it to support

findings made by the trial justice.’” Id. (quoting Adner G., 925 A.2d at 957).

       Moreover, “the trial justice’s findings ‘are entitled to great weight and will not be

reversed on appeal unless the justice overlooked or misconceived material evidence, or was

otherwise clearly wrong.’” Jermaine H., 9 A.3d at 1231 (quoting In re Isabella C., 852 A.2d 550,

555 (R.I. 2004)). Therefore, “[i]n accordance with this deferential standard, it is our function to

determine whether legally competent evidence exists in the record before us to support the

finding, by clear and convincing evidence, that the children were dependent and that [the]

respondent neglected his children.” Id.

                                                III

                                                A

                                          Dependency Plea

       We first address respondent’s contention that the trial justice erred in not allowing him to

admit to allegations of dependency. Before the commencement of trial, respondent offered to

plead to dependency, noting that the mother, whose relapse had occasioned the child’s removal

from her home, had been permitted to enter such a plea. Furthermore, DCYF indicated that it

was “willing to accept a dependency plea,” and that the child’s guardian ad litem, although

opposing the plea, stated “if the [c]ourt [was] going to accept it, [he was] not going to

vehemently object.” The trial justice nevertheless declined to accept respondent’s offered plea

“because the fact that he’s incarcerated means he’s not in a position to take the child, and that



                                               -4-
would not be dependency.” On appeal, respondent characterizes the trial justice’s refusal to

accept his dependency plea as “a waste of time and judicial resources” and “supremely unfair”

under the circumstances of this case.

        A dependent child is defined under G.L. 1956 § 14-1-3(6) as:

                “any child who requires the protection and assistance of the court
                when his or her physical or mental health or welfare is harmed, or
                threatened with harm, due to the inability of the parent or guardian,
                through no fault of the parent or guardian, to provide the child with
                a minimum degree of care or proper supervision because of:

                       “(i) The death or illness of a parent; or
                       “(ii) The special medical, educational, or social-service
                needs of the child which the parent is unable to provide.”

        Dependency, therefore, is by definition a condition involving harm or potential harm to a

child that arises without fault by the parent. If the parent’s inability to provide the child with a

minimum degree of care or proper supervision is a result of the parent’s incarceration, it can

hardly be argued that the parent is without fault. In the case under review, the reason for

respondent’s incarceration was his decision to engage in criminal activity. We recognize that

prior to his incarceration, respondent made admirable efforts to provide for his family as best he

could. He was well aware, however, of the mother’s history of alcoholism and the fact that she

had prior involvement with DCYF and that she has two other children who were currently being

cared for by her parents. When her relapse occurred, only nine weeks after his initial detention,

respondent was not in a position to care for the child. Clearly, the decision to accept or reject a

plea is discretionary with a trial justice. Here, we cannot say that the trial justice abused her

discretion in this regard.




                                                -5-
                                                  B

                                          Parental Neglect

          On appeal, respondent argues that the trial justice clearly erred in finding that the child

had been neglected by him. The respondent contends that he did not neglect his child because

“[h]e worked hard,” kept the “household * * * in good order,” and “did all he could do to

financially support [the child] * * * for as long as possible.” At trial, respondent testified that the

home was furnished, there was adequate food, toys, and clothing for the child, and the rent was

paid before his incarceration. The trial justice, however, found by clear and convincing evidence

that respondent was not able to care for the child due to his eighteen-month sentence at the ACI.

Significantly, the trial justice also found that respondent was aware of the mother’s alcohol

issues.

          Based upon our review of the record, we are of the opinion that legally competent

evidence exists to support the trial justice’s findings of neglect. At the outset, we note that

DCYF brought a neglect petition under the provisions of two discrete chapters of the general

laws—chapter 1 of title 14 and G.L. 1956 chapter 11 of title 40. Section 14-1-3(8) provides:

                         “‘Neglect’ means a child who requires the protection and
                 assistance of the court when his or her physical or mental health or
                 welfare is harmed, or threatened with harm, when the parents or
                 guardian:
                         “(i) Fails to supply the child with adequate food, clothing,
                 shelter, or medical care, though financially able to do so or offered
                 financial or other reasonable means to do so;
                         “(ii) Fails to provide the child proper education as required
                 by law; or
                         “(iii) Abandons and/or deserts the child.”

Section 40-11-2(1)(v), moreover, provides that an:

                        “‘Abused and/or neglected child’ means a child whose
                 physical or mental health or welfare is harmed, or threatened with



                                                 -6-
               harm, when his or her parent or other person responsible for his or
               her welfare:
                       “* * *
                       “Fails to provide the child with a minimum degree of care
               or proper supervision or guardianship because of his or her
               unwillingness or inability to do so by situations or conditions such
               as, but not limited to: social problems, mental incompetency, or the
               use of a drug, drugs, or alcohol to the extent that the parent or other
               person responsible for the child’s welfare loses his or her ability or
               is unwilling to properly care for the child[.]”

       The fact that an individual in prison lacks the ability to provide personally for a child’s

physical needs is perhaps a tautology. That is not to say, however, that the individual is

necessarily unable to make suitable arrangements for the care and supervision of his or her child.

The welfare of an incarcerated individual’s child may not even be at issue in situations where the

child remains in the care of the other parent or a guardian, as long as the other parent or guardian

is capable of providing appropriate care. In this case, respondent’s family was seemingly in a

relatively stable situation when he was initially detained, and the child’s mother was by all

accounts sober. Yet respondent had made no provisions for the child’s welfare in the event that

the mother experienced a relapse. The respondent was well aware of the mother’s history of

alcohol and substance abuse, as well as the fact that two of her children were in the care of the

mother’s parents.

       Notwithstanding his good intentions, the respondent was unable to protect the child

precisely because of his incarceration. “It is quite clear on [the] record that when events did

unfold that put the child[ ] at risk”—here, the mother’s relapse—the respondent failed to provide

the child with a minimum degree of care or proper supervision or guardianship “because he was

incarcerated and no other individual was legally authorized to act on his behalf in assuming care

of the child[ ].” In re T.T.C., 855 A.2d 1117, 1121 (D.C. 2004). The respondent testified that,

when he was first incarcerated, the mother was “clean, sober, and with her family[;] she was


                                                -7-
doing fine.” Nevertheless, he called her “two, three times a day” and “also had friends and

family checking in.” When the child was removed from his mother’s care on October 6, 2014,

and when DCYF filed the neglect petition on October 7, 2014, and the child was placed in the

temporary custody of DCYF, the respondent was unable to provide for the child because of his

incarceration. When the case was tried and a decision rendered on May 12, 2015, the respondent

had made no arrangements for the child’s well-being and was unable himself to care for the child

because of his incarceration. We are well satisfied that more than sufficient competent evidence

exists on the record to support the finding of neglect.

                                                 IV

                                            Conclusion

       For the reasons stated herein, we affirm the decree of the Family Court finding the child

neglected as to the father and committing the child to the care, custody, and control of DCYF.

The record of this case shall be returned to the Family Court.




                                                -8-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        In re Kurt H.
                                     SU-15-0286-Appeal.
Case Number
                                     (14-1152-1)
Date Opinion Filed                   January 18, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Family Court

Judicial Officer From Lower Court    Associate Justice Laureen D’Ambra

                                     For Petitioner:

                                     Karen A. Clark
                                     Department of Children Youth and Families

Attorney(s) on Appeal                Karl D. Beauregard
                                     Court Appointed Special Advocate

                                     For Respondent:

                                     Catherine Gibran
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
