June 22, 2017




                                                           Supreme Court

                                                           No. 2015-91-Appeal.
                                                           (P14-11-1)




   In re Adrina T.                     :




        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. 2015-91-Appeal.
                                                                    (P14-11-1)




         In re Adrina T.                       :


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

                                         OPINION

       Justice Robinson, for the Court. The respondent mother, Briana Hebert, appeals from a

decree of the Family Court finding: (1) that Ms. Hebert failed to provide her daughter, Adrina T.,

“with a minimum degree of care, supervision, or guardianship[;]” (2) that Adrina was “without

proper parental care and supervision[;]” (3) that Ms. Hebert “inflicted or allowed to be inflicted

upon [Adrina], physical injury[;]” and (4) that Ms. Hebert “created or allowed to be created a

substantial risk of physical injury to [Adrina].” This case came before the Supreme Court for

oral argument on January 25, 2017, 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 in this opinion, we vacate the decree of the Family Court as it

pertains to Briana Hebert.




                                               -1-
                                                   I

                                          Facts and Travel

        On January 2, 2014, the Department of Children, Youth and Families (DCYF) filed a

petition in Family Court, alleging that Ms. Hebert and William Tirocchi1 “neglected” and

“abused”2 their daughter, Adrina (who was born on September 22, 2013). In that petition, DCYF

specifically alleged the following: (1) “That the parents * * * failed to provide [Adrina] with a

minimum degree of care, supervision, or guardianship[;]” (2) “That [Adrina] [wa]s without

proper parental care and supervision[;]” (3) “That the parents * * * inflicted or allowed to be

inflicted upon [Adrina], physical injury[;]” and (4) “That the parents * * * created or allowed to

be created a substantial risk of physical injury to [Adrina].”

        A trial on the above-summarized petition was held before a justice of the Family Court

on various dates from June to September of 2014. We relate below the salient aspects of what

transpired at that trial.




1
      The appeal of William Tirocchi, Adrina’s father, will be heard separately at a later date.
Accordingly, the instant opinion addresses solely Briana Hebert’s appellate contentions.
2
        General Laws 1956 § 40-11-2(1) defines an “[a]bused and/or neglected child” in relevant
part as follows: “a child whose physical or mental health or welfare is harmed, or threatened with
harm, when his or her parent or other person responsible for his or her welfare:

                 “(i) Inflicts, or allows to be inflicted, upon the child physical or
                 mental injury, including excessive corporal punishment; or
                 “(ii) Creates, or allows to be created, a substantial risk of physical
                 or mental injury to the child, including excessive corporal
                 punishment[.]”
                                                  -2-
                                                 A

                                     The Testimony at Trial

                               1. The Testimony of Briana Hebert

       Ms. Hebert, Adrina’s mother, took the stand in her own defense. She testified that she

had been in a relationship with her boyfriend, Mr. Tirocchi, for more than seven years; and she

said that, as of the time of trial, she was employed as a school bus driver.

       Ms. Hebert proceeded to testify that, in the early afternoon of December 31, 2013, she

was at her apartment with “Mr. Tirocchi, [her] niece, and the baby, Adrina,” whom she described

as then being “over three months [old].” She stated that her niece left the apartment by 1:00 p.m.

and that, at approximately 4:40 p.m., she left Mr. Tirocchi in the apartment with Adrina so that

she might go to “the liquor store and then the grocery store.” (She added that the former was a

three-minute drive from her apartment, while the latter was right across the street.) She further

testified that, between approximately 4:45 and 4:50 p.m., as “[she] was walking in the front

door” of the grocery store, “Mr. Tirocchi had called [her] and told [her] that the baby had fallen

off the bed and she was crying and she was most likely hurt.” Ms. Hebert stated that she “stayed

on the phone with Mr. Tirocchi” and “returned home” by car within two or three minutes. On

cross-examination, she acknowledged that, by the time she entered her car upon leaving the

grocery store, she knew that 911 had already been called concerning Adrina.

       Upon being questioned about what happened when she arrived back at her apartment,

Ms. Hebert stated: “Mr. Tirocchi was in the bedroom with the baby, and [Adrina] was l[]ying on

the bed crying hysterically.” Ms. Hebert also added the following:

               “I could tell that [Adrina] was in pain. She was crying like I had
               never heard her cry before. And I didn’t want to touch her or
               anything because I didn’t know if me touching her was going to
               cause anymore injury to her.

                                                 -3-
               “* * *
               “And I could actually hear the sirens, so I knew that the emergency
               services were on their way.”

Ms. Hebert testified that, within approximately a minute after she heard the sirens, the

emergency services arrived and took Adrina to the emergency room. She added that she “went

in the rescue and Mr. Tirocchi followed in [her] vehicle” to Hasbro Children’s Hospital.

       According to Ms. Hebert, after arriving at Hasbro Children’s Hospital, she and Mr.

Tirocchi and the doctors “went into an exam room” with Adrina, who was crying at the time.

She stated that she had “never heard [Adrina] cry like that before,” so she “knew something was

wrong with her.” She testified that the baby was X-rayed and was given pain medication, after

which the emergency room doctor told her and Mr. Tirocchi that Adrina would be staying

overnight for observation. Ms. Hebert added that she and Mr. Tirocchi stayed overnight with

Adrina. She further testified that, the following morning (January 1, 2014), she spoke with Dr.

Adebimpe Adewusi (see Part I.A.4, infra) about “the history of [her] * * * relationship with Mr.

Tirocchi, about the baby, her normal activity and routine and what had happened the day before.”

Ms. Hebert stated that she explained to Dr. Adewusi that “the baby was very active,” that she

“move[d] around a lot,” and that she once “rolled over from back to [belly].”3

       It was Ms. Hebert’s testimony that, at around 3:00 p.m. on January 1, she spoke with

Megan Dunn, a Child Protective Investigator for DCYF. She stated that she explained to Ms.

Dunn “what had happened the day before.” Ms. Hebert testified that, at around 6:00 p.m. on that

same day, officers of the Johnson Police Department came to her apartment and had her




3
        On cross-examination, Ms. Hebert testified that, about a month before the incident at
issue, in the course of a visit with Adrina’s pediatrician, Dr. Thomas Puleo, she “had told him
that [Adrina] had rolled over.” She stated that she had also relayed this information to Megan
Dunn, a Child Protective Investigator for DCYF.
                                               -4-
accompany them to the station for questioning. She stated that she cooperated with the police

because she “felt like” there was “nothing to hide.”

       During her testimony on direct examination, Ms. Hebert was asked about Mr. Tirocchi;

and she said that they had “a very good relationship” and were “really good friends.” In

addition, Ms. Hebert testified that she had previously left Adrina in the sole care of Mr. Tirocchi

“at least, between five and ten times,” for periods ranging from two to three hours. She indicated

that she had absolutely no concerns about his care of Adrina. When asked if she felt comfortable

leaving Adrina with Mr. Tirocchi on the day of the incident, Ms. Hebert responded in the

affirmative because she had “seen” how he interacted with the baby for three months. She added

that she “found nothing” indicating that Mr. Tirocchi was ever a “threat” to Adrina.

       On cross-examination, Ms. Hebert acknowledged that, prior to trial, she had not

previously told Dr. Adewusi or Ms. Dunn that she had gone to a liquor store on the day of the

incident; however, she pointed out that she had told them that she had been “going on errands,”

explaining that, “at the time [she] was called [by Mr. Tirocchi,]” she had been at the grocery

store. She further testified that she had received a receipt from the liquor store that contained a

timestamp indicating her presence there at around 4:45 p.m.; she added that her phone bill would

reflect that she had received a call at 4:50 p.m.

                              2. The Testimony of William Tirocchi

       Mr. Tirocchi, Adrina’s father, testified on his own behalf. He testified that, as of the time

of trial, he had been employed as a school bus driver for more than two years.

       Mr. Tirocchi proceeded to testify that, on December 31, 2013, at approximately 2:00

p.m., Adrina was placed in her crib to sleep and that, thereafter, he and Ms. Hebert “were just

lounging around the house.” He stated that, at “[a]round 4:40-ish,” Ms. Hebert left to do some



                                                    -5-
errands4 “while the baby was sleeping.” Mr. Tirocchi testified that, several minutes after Ms.

Hebert had left, he heard Adrina “start to fuss in the crib,” which indicated to him that she was

“waking up.” He stated that he “picked [Adrina] up,” “placed her on the changing table,” and

“changed her diaper.” It was then Mr. Tirocchi’s testimony that the following series of events

ensued:

               “I turned around, and I placed [Adrina] on the bed. I walked into
               the kitchen to see if there was a bottle made or not made. * * *
               While I was [checking] the refrigerator, I heard a loud bang, and
               the baby started to scream. I immediately ran into the bedroom,
               and I found Adrina face up, crying unbelievably. I picked her up
               from underneath her arms, her armpits, and I placed her on the bed,
               and I sat down with her on the bed, and I checked her head. I
               checked her arm, gently -- you know, squeezing, just to see if there
               was any pain. When I got to her leg, she started crying, you know,
               just excruciating pain. At that time, [which was approximately
               4:50 p.m.,] I called [Ms. Hebert] on my cell phone and told her the
               situation; to get home immediately. As [Ms. Hebert] was still on
               the [cell] phone, I [simultaneously] called 911 from my house
               phone and talked to the paramedics, and [she] came home. The
               paramedics were there, and they brought the baby to Hasbro.”

       When Mr. Tirocchi was asked where he had placed Adrina on the bed, he responded: “I

placed the baby on the lower, left-hand side of the bed,” with her head “towards the middle of

the bed” and her feet about six inches from the “edge” of the bed. In his testimony, he explained

that he had done so because he thought that Adrina would be “fine” on the bed for approximately

“10 [to] 15 seconds,” while he checked to see if her bottle was ready.

       On cross-examination, Mr. Tirocchi was asked why he had placed Adrina on the bed and

not elsewhere, such as back in the crib. He again testified that he did not think that anything

would happen during the ten seconds in which he was checking to see if her bottle was ready. It

4
       It bears noting that, on cross-examination, Mr. Tirocchi acknowledged that Ms. Hebert
had called him while she was at the liquor store. He stated that the reason for her call was to
“ask[] [him] what [he] wanted” from that store. However, it was Mr. Tirocchi’s further
testimony that neither he nor Ms. Hebert consumed alcohol before the incident at issue.
                                               -6-
was further his testimony that “it would have taken longer for [him] to go back to the crib and

then go to the kitchen and prepare a bottle for her.” According to Mr. Tirocchi, it was his belief

that Adrina was “enough on the bed” so that she would “not to be able to * * * fall[] off.”

       In Mr. Tirocchi’s testimony on cross-examination, he acknowledged that “the whole

time” during which he was on the landline with the 911 operator, he had also stayed in contact

on his cell phone with Ms. Hebert, whom he said he had called first. He also acknowledged that,

upon Ms. Hebert’s return to the apartment, she did not come over and touch Adrina.

       Upon being questioned about Adrina’s development prior to the incident at issue, Mr.

Tirocchi replied that she had been “a very active baby,” especially in the crib. According to him,

he and Ms. Hebert had once seen her “roll over fully from her back to her stomach.”

                               3. The Testimony of Megan Dunn

       Child Protective Investigator Megan Dunn testified that, on January 1, 2014, she was

assigned to investigate the allegation of physical neglect (later amended to “[p]hysical abuse

with a bone fracture”) in the instant case, after having received a call from a “reporter” on the

child-abuse hotline. Ms. Dunn stated that, on that same day, she went to the hospital and saw

Adrina, who was “awake and smiling” and was surrounded by family members (including Ms.

Hebert and Mr. Tirocchi).     Ms. Dunn testified that she observed “petechia on the side of

[Adrina’s] face,” which she characterized as meaning “very light red dots.” She added that she

was unable to see Adrina’s legs because they were “covered up” and supported by braces.

       Ms. Dunn further testified that, at some point after observing Adrina, she spoke with Ms.

Hebert alone.    According to her, Ms. Hebert gave the following account as to what had

happened:

                “[Ms. Hebert] stated to me that[,] on December 31st * * * in the
                afternoon[,] the baby had gone down for a nap. When the baby

                                                -7-
               went down for a nap[,] her and dad were the only people home.
               She told me she left the home at about 4:30 p.m. and left dad home
               alone with the baby because she was going across the street to the
               market. And mom told me about what she said was approximately
               like seven minutes after she left the house she received a call from
               dad stating the baby fell off the bed and was crying. Mom told me
               she immediately returned home * * * [from] the store * * *.
               “* * *
               “[Ms. Hebert] returned home and she told me that dad had already
               called 9-1-1. When she got home the baby was on the bed
               crying[,] and the bed was mom and dad’s bed that they slept in.
               She stated she didn’t move the child when she came home, but the
               ambulance was just about getting there and had come in, the
               paramedics, when she arrived home. She did note that the baby
               was crying and at that time they went by rescue to the hospital.”

Ms. Dunn further testified that, with respect to Adrina’s injury, Ms. Hebert could only relay what

Mr. Tirocchi had told her (namely, that “the baby rolled off the bed”).

       Ms. Dunn further testified that Ms. Hebert had stated that Adrina was “a good baby”—

one who is “active” and “squirm[s] a lot.” By way of example, she explained that, in the words

of Ms. Hebert, Adrina would be placed in “one position in the crib” at night, but would “turn[]

around facing the opposite way” by morning. Ms. Dunn testified that Ms. Hebert also told her

that Adrina “c[ould not] roll over on her own, but she [wa]s able to roll to her side [and] [t]hat

she wasn’t able to roll over fully to one side, whether it’s [on] her stomach or her back.” She

added that Ms. Hebert did not express any concern to her about Mr. Tirocchi caring for Adrina.

       Ms. Dunn further testified that she spoke with Mr. Tirocchi alone, similarly inquiring

about the incident at issue. In her words, the following was his version of what happened:

               “[Mr. Tirocchi] stated around 4:30 or 5:00 he noticed that the baby
               was waking up. * * * He went in to get the child and he told me
               that he took her out of the crib and placed her on a changing table
               which was later learned to be at the edge, the end of mom and
               dad’s bed. * * * And after he changed her, * * * he told me he
               placed her on the lower left hand side of the bed. * * * [H]e knew
               she was hungry and wanted a bottle because she had just woken up



                                                -8-
               from her nap. And that he then placed her on the bed from the
               changing table and went into the kitchen to get a bottle.
               “* * *
               “[Mr. Tirocchi] told me when he did that he heard a thump. He
               estimated he was only in the kitchen for about 20 seconds. When
               he heard that thump he heard the baby crying. He went back to the
               bedroom and the baby was face up on the floor and she was crying.
               He picked the child up. I asked him how he picked the child up[,]
               he said under her arms and he placed her on her back on the bed
               * * *. And he told me at that point she was crying and he wanted
               to check her body and he checked her arms and her legs and when
               he touched her right leg she was crying like he never heard her cry
               before. He stated to me that her leg clicked when he moved it.”

Ms. Dunn stated that Mr. Tirocchi said that he then contacted 911 and also Ms. Hebert “right

away.” She testified that she repeatedly asked him if he was “sure” about what had happened

and whether it was possible that he had grabbed Adrina to prevent her from falling, but that Mr.

Tirocchi consistently denied that anything had occurred that differed from what he had already

described to her.

       Ms. Dunn added that Mr. Tirocchi had described Adrina as being “a good baby”—one

who is “active” and “likes to move around.” She testified that he told her that Adrina could not

“sit up on her own,” although she could “roll to her side.”

       Towards the end of her direct testimony, Ms. Dunn stated that she had measured the

distance between the bed and the floor in order to “get an estimate of how far the baby had

fallen;” and she recalled that the estimated distance was “28, 29 inches.” Ms. Dunn also testified

that the comforter on the bed from which Adrina fell was “silky” and generally “smooth.”

       On cross-examination, Ms. Dunn conceded that she did not “find by a preponderance of

evidence” that Ms. Hebert had neglected or abused Adrina. She acknowledged that both Ms.

Hebert and Mr. Tirocchi were “fully cooperative” with her and that background checks revealed

that neither of them had a criminal record or any prior contact with DCYF. Nonetheless, it



                                                -9-
continued to be Ms. Dunn’s view that Adrina’s injury was not accidental because she considered

it to be “concerning * * * for a child to roll off of a bed and break her femur, which is a large

bone in the body that is difficult to fracture.”

                         4. The Testimony of Doctor Adebimpe Adewusi

        Doctor Adebimpe Adewusi, the physician who examined Adrina at Hasbro Children’s

Hospital on December 31, 2013, was a witness for DCYF; she testified as an expert witness,

qualified in child abuse and neglect pediatrics. Doctor Adewusi testified that, on January 1,

2014, the day after her initial encounter with Adrina, she took a “detailed history” from Ms.

Hebert and Mr. Tirocchi. Doctor Adewusi stated that, at that time, she was told that Adrina “was

able to roll to her side but [was] not able to roll completely over.”

        Doctor Adewusi further testified that, during her examination of Adrina, she observed:

(1) that Adrina’s right leg “was in pain” when it was manipulated; and (2) that “petechiae” were

present on both sides of Adrina’s face, which Dr. Adewusi said are “little broken blood vessels.”

She also testified that, upon reviewing the X-rays of Adrina’s right leg and foot, she identified an

oblique fracture5 of Adrina’s right femur. According to Dr. Adewusi, “because of [her] concern”

regarding a “femur fracture in a nonmobile child” and “the history that [she] was given,” she

decided to contact DCYF. She added that “th[is] type of fracture * * * cannot occur from a

simple fall from the bed.” When Dr. Adewusi was asked to clarify her testimony, she replied

that Adrina’s oblique fracture “need[ed] some sort of torque” or “some sort of rotation to occur.”

She added that there was “no way the baby could have had that fracture from that fall.” Doctor

Adewusi stated that, “with that type of fall, * * * the most likely thing to happen is nothing.”

5
        An oblique fracture is defined as “the line of which runs obliquely to the longitudinal axis
of the bone.” Stedman’s Medical Dictionary 771 (28th ed. 2006). Doctor Adewusi testified that
an oblique fracture is “sometimes refer[red] to * * * as a spiral fracture.”


                                                   -10-
She further opined that “the second [likely injury]” could be “a hematoma”—“some sort of bump

on the head” (explaining that, “in this age group,” the head “is the heaviest part” and is “usually

* * * the first thing that makes contact with the ground”). Doctor Adewusi added that “[t]he

third likely injury would * * * be something to the head; specifically, a nondisplaced skull

fracture * * *.”6 She noted that she was not concerned that Adrina suffered from osteogenesis

imperfecta, which she defined at trial as “a genetic disorder” that “cause[s] * * * breaks in the

bones.”

       It was Dr. Adewusi’s testimony that, on January 1, 2014, she filed a Physician’s Report

of Examination, requesting that a hold be issued as to Adrina; she said that she did so because

she had “not be[en] provided with the history that fit [Adrina’s] injuries.” She testified that, in

her opinion, “based on [her] clinical knowledge and practice,” as well as the history that had

been provided by respondents, it was “concerning” that Adrina had petechiae and a femur

fracture. Doctor Adewusi stated that her concern was that Adrina’s injury was “inflicted.”

       On cross-examination, Dr. Adewusi conceded that “no magical test” exists to conclude

with certainty that a particular type of broken bone is due to an accident as opposed to abuse.

However, she stated that her opinion was “based on what is most probable.” Doctor Adewusi

also testified that, in her experience, “babies don’t present to the hospital just from crying with

petechiae on their face.” When asked whether “it is [her] opinion, to a reasonable degree of

medical certainty, that [Adrina’s] petechiae could not have been caused by her crying due to the



6
        On cross-examination, Dr. Adewusi testified that, if the baby had fallen from the bed and
had planted her foot on landing, she “would have a different kind of fracture,” which she
described as “a buckle fracture.” She further testified: “I don’t know how it would land on its
foot first * * * because their head is the heaviest, but if it landed on the foot, * * * it would
probably have a buckle fracture; labia of the tibia from the planting of the foot.” It was Dr.
Adewusi’s opinion that, “because of the weight of the [baby],” her head would hit the floor first.
However, she did add that “anything is possible, but it’s what is probable.”
                                               -11-
pain from the injury of her leg,” she replied: “Yes.” Doctor Adewusi further testified that the

following accident-related scenario could have caused Adrina’s femur fracture: “[I]f the parents

described to [her] that * * * the baby was falling, someone grabbed the leg[,] * * * and the baby

then continued to twist around the leg[.]” It was essentially her testimony that “something from

the outside” was thus “need[ed].”

                          5. The Testimony of Doctor Thomas Puleo

       Doctor Thomas Puleo, who was Adrina’s pediatrician, testified on behalf of respondents

as an expert witness, qualified in pediatrics. He testified that Adrina had been his patient since

“the first week of [her] life.” Doctor Puleo stated that Ms. Hebert and Mr. Tirocchi always

brought Adrina to all of her scheduled well-visits; he added that Adrina’s vaccinations “were

administered in a timely fashion.”     He further testified that, “at the two-month visit[,] in

anticipation for the development that occurs between two months and four months,” he

“normally” warns parents as follows: “Be careful what surface you put them on” because “[a] lot

of babies between two and four months begin to roll or move just enough.” It was then Dr.

Puleo’s testimony that, after being notified that Adrina had been admitted to the hospital, he

went to see her because she is his patient. When asked about his observations of her, Dr. Puleo

responded: “I did not examine Adrina close enough to make a comment.”

       Towards the end of Dr. Puleo’s testimony on direct examination, he was asked whether a

three-month-old baby with a broken femur might experience sufficient pain to cry forcefully

enough to cause petechiae, to which he answered: “It’s physically possible, yes.” He testified

that, in his interaction with Adrina during previous appointments, he had neither seen nor noted

anything about the parents’ interaction with Adrina that caused him to be concerned. Doctor




                                              -12-
Puleo added that, during his care of Adrina, he had never seen any evidence of neglect and

abuse.

         On cross-examination, Dr. Puleo testified that, prior to the incident at issue, his last well-

visit with Adrina was on November 29, 2013. He acknowledged that, during said visit, he had

not noted that Adrina was able to roll over, which is a developmental milestone. It was also Dr.

Puleo’s testimony that, “depend[ing] on the child’s development,” “very often between two and

four months a lot of babies move around enough to be able to * * * move or squirm * * * to get

themselves in a situation to fall or roll off a surface.” He added that, if a parent puts a baby on a

bed, that baby could fall off the bed, whether the parent stays in the room or leaves it.

                             6. The Testimony of Doctor Jeremy Doak

         Doctor Jeremy Doak, who was qualified as an expert in pediatric orthopedics, testified

that he first saw Adrina regarding her fractured femur on January 1, 2014. It was his testimony

on direct examination that, in his opinion, to a reasonable degree of medical certainty, an oblique

fracture could happen “accidentally.” He added that “[a]ny type of fall can cause an oblique

fracture.” Doctor Doak was next asked the following question: “Hypothetically, could a three-

month-old [baby] fall off a surface 28 inches high and have a resulting oblique femur fracture?”

He answered in the affirmative. Doctor Doak additionally stated: “[T]he higher you fall from,

the more likely you are to fracture, but people fall from standing and [they] fracture bones.”

         It was Dr. Doak’s testimony that he could not rule out the possibility that Adrina’s injury

was “accident[al]” nor that it was “nonaccidental.” He added that “any type of fall can cause any

number of fractures.” According to Dr. Doak, upon his review of X-rays, he stated that “a

metaphyseal corner fracture * * * tends to be associated with child abuse,” but he said that no




                                                 -13-
such signs were present with respect to Adrina. He further testified that, based on the radiologic

findings alone, he could not determine how Adrina’s fracture had occurred.

       On cross-examination, Dr. Doak acknowledged that he had written in his report (dated

February 2, 2014) that “Adrina’s right femur suffered an oblique fracture, which is generally

atypical for a nonambulatory patient.”7 (He defined the word “atypical” as meaning “more

unlikely than likely.”) Doctor Doak further summarized as follows one of the policies of the

pediatric orthopedic division of his hospital: doctors must consult with DCYF “if there’s a femur

fracture in a nonambulatory child” and must do so “[]regardless of the fracture pattern.”

Towards the end of Dr. Doak’s testimony on cross-examination, he testified that, to a reasonable

degree of medical certainty, if a child fell from a bed twenty-eight inches high, the injury to the

child would not be limited to “only a buckle fracture of the femur.” In addition, he noted in his

testimony on redirect examination that oblique femur fractures are not necessarily caused by

abuse—stating that they “can be caused by any number of things.”

                                                B

                             The Family Court Justice’s Decision

       After having reviewed the testimony and other evidence, the trial justice issued a written

decision on November 10, 2014. In that decision, she preliminarily noted that Adrina “suffered

an oblique femur fracture to her right leg, which is highly unusual in a non-mobile child.” The

trial justice then expressed “significant concern” relative to the “fact that [Ms. Hebert] was

conveniently out of the home at the time of the in[cident], and that [Mr. Tirocchi] had taken full

responsibility” for Adrina’s injury. From the trial justice’s vantage point, “There [we]re too



7
       When asked why femur fractures are more frequent in ambulatory children than
nonambulatory children, Dr. Doak replied: “Because they’re more likely to fall, trip, [and] get
injured” from running and walking, which activities he noted they are able to do on their own.
                                               -14-
many unanswered questions” and “too many answers that d[id] not fit the facts as presented,

including [Adrina’s] resulting injury * * *.” Having reviewed the medical testimony at trial, she

was unpersuaded by the contention that Adrina fell off the bed; instead, she was “convinced” that

Adrina’s injury was “anything but accidental.” Although the trial justice remarked that she was

“not certain as to how this injury occurred,” she nonetheless found that there was “no medical

explanation to support the parents’ contention” (i.e., that Adrina was injured as a result of a fall

from the bed). The trial justice ultimately concluded that there was “no doubt * * * that both

parents know how this injury occurred but neither parent has told the truth * * *.”

       The trial justice proceeded to cite to the cases of In re Vannarith D., 731 A.2d 685 (R.I.

1999), and In re Chester J., 754 A.2d 772 (R.I. 2000). Drawing on language contained in those

two cases, the trial justice expressed her understanding that the state need not prove “which

parent actually inflicted the abuse” in view of the principle that “[d]rawing inferences from

established facts is an elementary tenet of judicial fact-finding.” See In re Chester J., 754 A.2d

at 777-78. She further observed that “[a]llowing parents to ignore or stand by while * * * abuse

and neglect occurs is tantamount to the parents inflicting the abuse themselves.” See id. at 778.

The trial justice proceeded to explain as follows why she “d[id] not believe either parent:”

               “[I]t [is] very unusual and somewhat bizarre that the father
               allegedly left the baby on the bed unattended when there were so
               many other safe places to put this child and that father would be on
               the cell phone with mother and on the land line with 911
               simultaneously after the alleged injury. Adding to that is the
               bizarre and unusual testimony and actions of the mother -being out
               of the house at exactly the time of the injury; making a call to the
               father from the liquor store but not disclosing that prior to the trial;
               not stating the child’s name through her entire testimony; her
               reaction upon her coming back to the house and seeing her
               daughter allegedly screaming in pain on the bed yet not going over
               to her to touch, hug, hold or console her; having never reported to
               anyone prior to the date of the injury occurring that the child had
               rolled over on her own.”

                                                -15-
       Ultimately, “[b]ased on the medical evidence and [trial] testimony,” the trial justice

concluded that there were “absolutely no facts” supporting the parents’ explanation that Adrina

had fractured her femur as a result of a fall from the bed. In the judgment of the trial justice,

“[t]he uncontradicted medical testimony supports the State’s allegation of abuse and neglect.”

       The trial justice made the following findings of fact with respect to both parents,

indicating that said findings had been proven by clear and convincing evidence: (1) “The parents

have failed to provide said child with a minimum degree of care, supervision, or guardianship[;]”

(2) Adrina “is without proper parental care and supervision[;]” (3) “[T]he parents have inflicted

or allowed to be inflicted upon [Adrina], physical injury[;]” and (4) “[T]he parents have created

or allowed to be created a substantial risk of physical injury to [Adrina].” The trial justice

further found that Adrina was “Neglected and Abused as to mother and father;” and she

proceeded to order that Adrina be committed to the care, custody, and control of DCYF. Each

parent filed a timely notice of appeal.

                                                  II

                                          Standard of Review

       At the outset, we note that the pertinent standard set forth in Rule 17(b) of the Family

Court Rules of Juvenile Proceedings reads as follows: The “[d]etermination that a child is

abused, neglected, or dependent shall be made upon clear and convincing evidence.” Rule 17(b)

further instructs “[t]he court * * * [to] clearly state the facts upon which it bases such

determination and its reasons therefor.” Also, the clear and convincing standard “requires that

the fact-finder form a ‘clear conviction without hesitancy of the truth of the precise facts in

issue.’” In re Adner G., 925 A.2d 951, 957 (R.I. 2007) (quoting Parker v. Parker, 103 R.I. 435,

442, 238 A.2d 57, 61 (1968)).



                                                 -16-
       When this Court reviews an appeal from a decree of the Family Court, we must undertake

an examination of “the record to determine whether legally competent evidence exists in it to

support findings made by the trial justice.” In re Adner G., 925 A.2d at 957 (quoting In re

Mackenzie C., 877 A.2d 674, 685 (R.I. 2005)). “These findings ‘are entitled to great weight and

will not be reversed on appeal unless the trial justice overlooked or misconceived material

evidence, or was otherwise clearly wrong.’” In re Mackenzie C., 877 A.2d at 685 (quoting In re

Isabella C., 852 A.2d 550, 555 (R.I. 2004)). While bearing in mind this deferential standard, it is

our role to scour the record “to determine if legally competent evidence exists to support” the

trial justice’s finding that there was clear and convincing evidence that Ms. Hebert abused and

neglected Adrina. In re Veronica T., 700 A.2d 1366, 1368 (R.I. 1997) (internal quotation marks

omitted).

                                                III

                                             Analysis

       On appeal before this Court, Ms. Hebert contends that the trial justice “erred as a matter

of law and abused her discretion” in making the above-summarized findings because she

purportedly: (1) “overlooked and misconceived the evidence;” (2) “misread[] and erroneously

rel[ied]” on two cases (viz., In re Vannarith D., 731 A.2d 685 (R.I. 1999) and In re Chester J.,

754 A.2d 772 (R.I. 2000)); and (3) “ignor[ed] evidence contradicting her findings, and

disregard[ed] uncontroverted evidence because she did not find the parents credible.”

       Having reviewed the record with particular care, it is our opinion that the trial justice

erred in finding that Ms. Hebert abused and neglected Adrina; we have been unable to perceive

in the record sufficient evidence that would satisfy the clear and convincing standard.




                                               -17-
       Preliminarily, the trial justice expressly noted that “[t]here [we]re too many unanswered

questions” and “too many answers that d[id] not fit the facts as presented” in the instant case,

especially her “[un]certain[ty] as to how [Adrina’s] injury occurred,” thereby manifesting her

“hesitancy [as to] the truth of the precise facts in issue.” In re Adner G., 925 A.2d at 957

(internal quotation marks omitted). While a “factfinder may always draw inferences from the

evidence presented” when finding abuse, such “inferences must be based on some evidence,

either direct, or circumstantial.” Id. at 962 (internal quotation marks omitted). Here, Ms. Hebert

testified that she was not present at the time of her daughter’s injury, and no evidence to the

contrary was presented.

       Moreover, we are persuaded by Ms. Hebert’s second contention to the effect that the trial

justice “erroneously rel[ied]” on In re Vannarith D., 731 A.2d 685 and In re Chester J., 754 A.2d

772, both of which cases are clearly inapposite to the case before us. The case of In re Vannarith

D., 731 A.2d at 689, involved a criminal defendant who challenged “the sufficiency of evidence

establishing possession of the contraband;” we ultimately held that said defendant had been in

constructive possession of the narcotic, as inferred from the totality of the circumstances,

“notwithstanding the fact that the contraband was not in his * * * immediate physical

possession.” In the present case, while the trial justice correctly noted that she could “[d]raw[]

inferences from established facts” in the course of her judicial fact-finding, she improperly cited

In re Vannarith D. for the proposition that the state need not prove “which parent actually

inflicted the abuse.” Try as we might, we fail to comprehend how In re Vannarith D. is

applicable to the instant matter.

       With respect to In re Chester J., 754 A.2d at 777, which involved a petition to terminate

parental rights with respect to a minor child on the basis of cruel and abusive conduct, it was



                                               -18-
readily apparent that the evidence established that said child suffered “no fewer than nine rib

fractures of various ages, indicating that they [had been] incurred over a sustained period.”

Notably, in that case this Court remarked that “the quantum and the obscene nature of the abuse

was so overwhelming that the trial justice could not ignore the reasonable inferences to be drawn

from the evidence.”8 Id. at 777-78 We held that “[a]llowing parents to ignore or to stand by

while such abuse and neglect occurs is tantamount to the parents inflicting the abuse themselves

* * *.” Id. at 778. As pointed out by Ms. Hebert in her appellate papers, the instant case is not

reasonably comparable to the cited case. There is nothing in the record that reflects a pattern of

injuries “incurred over a sustained period.” Id. at 777. Rather, the injury incurred by Adrina,

although significant, was a one-time incident, one at which Ms. Hebert was not present.

       We further find ourselves persuaded by Ms. Hebert’s remaining contention on appeal—

viz., that the trial justice “overlooked” if not “ignor[ed]” material evidence “contradicting her

findings, and disregard[ed] uncontroverted evidence.” In the trial justice’s written decision, she

expressly concluded that there was “uncontradicted medical testimony support[ing] the State’s

allegation of abuse and neglect” because, in her view, there were “absolutely no facts” to

substantiate the explanation that Adrina had “fractured her femur from a fall off the bed.”

However, it is noteworthy that there did exist conflicting medical evidence at trial—namely the

difference between the testimony of Dr. Adewusi on the one hand and that of Dr. Puleo and Dr.

Doak on the other. That medical testimony left it unclear whether Adrina’s injury was inflicted



8
        Although the state argues in its appellate papers that, based on In re Nicole B., 703 A.2d
612 (R.I. 1997) and In re Frances, 505 A.2d 1380 (R.I. 1986), “the State is not required to prove
the identity of the perpetrator,” nor should the presence of a parent at the time of the injury be a
“deciding factor,” we deem those two cases to be distinguishable. Unlike the case at bar, both of
the just-referenced cases affirmed abuse and/or neglect findings against respondent parents who
offered no adequate explanation for their children’s multiple injuries. In re Nicole B., 703 A.2d
at 617-18; In re Frances, 505 A.2d at 1384.
                                               -19-
as a result of abuse or was merely accidental in nature. It was equally unclear whether petechiae

could be caused by excessive crying alone. What was factually uncontested was Ms. Hebert’s

lack of presence at the time of Adrina’s injury.

       At the end of the day, although a trial justice’s findings of fact are generally accorded

“great weight,” In re Mackenzie C., 877 A.2d at 685, the findings of the trial justice in this case

are not supported by sufficient legally competent evidence and, therefore, constitute reversible

error. In re Adner G., 925 A.2d at 962. In addition, to say without more extensive explanation

that it was “bizarre and unusual” that Ms. Hebert was “conveniently” out of the house running

errands when Adrina was injured or that Ms. Hebert did not specifically refer to her daughter by

name during her testimony does not constitute an adequate predicate for the trial justice’s finding

of abuse and neglect in the instant case. Nor, it should be noted, should the fact that Ms. Hebert

chose not “to touch, hug, hold or console” Adrina in the brief moment she had until the

emergency responders arrived have served as an indication of any such neglect or abuse.9 We

conclude that, keeping in mind the pertinent standard of review, the evidence presented was

insufficient to permit a reasonable inference to be drawn that Ms. Hebert abused and neglected

Adrina.

                                                   IV

                                            Conclusion

       For the foregoing reasons, we vacate the decree of the Family Court as it pertains to

Briana Hebert. The record in this case may be returned to that tribunal.




9
        It bears recalling that Ms. Hebert testified at trial that she decided not to touch Adrina at
that time out of fear that doing so would “cause * * * more injury to her.”
                                                -20-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        In re Adrina T.
                                      No. 2015-91-Appeal.
Case Number
                                     (P14-11-1)
Date Opinion Filed                   June 22, 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 Petitioner:

                                     Karen A. Clark
                                     Department of Children Youth & Families

Attorney(s) on Appeal                Andrew Johnson
                                     Court Appointed Special Advocate

                                     For Respondent:

                                     Diana deGroof, Esq.




SU-CMS-02A (revised June 2016)
