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In re Shy C.

Supreme Court of Rhode Island

November 5, 2015

In re Shy C. et al.

Providence County Family Court Associate Justice Howard I. Lipsey Nos. 02-2163-3, 02-2163-4, 02-2163-6

For Appellant: Thomas R. Bender, Esq.

For Department of Children and Families: Karen A. Clark

For Court Appointed Special Advocate: Andrew J. Johnson, Esq.

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

OPINION

William P. Robinson III Associate Justice

This case comes before the Supreme Court on an appeal by Jessica Charron contending that the Family Court erred when, on October 17, 2013, following a jury-waived trial, it issued a decree terminating her parental rights to three of her children-Shy C., Mariah C., and Jah-nell B. She posits that both G.L. 1956 § 15-7-7 and this Court's precedent with respect to the factors to be considered when addressing a petition for termination of parental rights violate her constitutional right to due process. For the reasons stated herein, we affirm the decree of the Family Court.

I

Facts and Travel

The October 17, 2013 Family Court decision issued in this case provides a lengthy, eighty-three page discussion of Ms. Charron's case, in which the Family Court justice made numerous findings of fact and conclusions of law before ultimately terminating Ms. Charron's parental rights to the above-referenced children. The Family Court justice found that the children had been removed from Ms. Charron's care on May 19, 2009 after she tested positive for marijuana. He further found that there had been four case plans prepared by the Department of Children, Youth, and Families (DCYF) with the goal of reunifying Ms. Charron and her children and that Ms. Charron had been offered and did receive numerous services for mental health issues, substance abuse issues, domestic violence issues, and parenting issues. He then proceeded to find that Ms. Charron was unfit as a parent because she was "unable to complete" her case plans and that DCYF had made "reasonable efforts at reunification;" he concluded that the children had been in the care of DCYF for over twelve months and that there was not a "substantial probability" that the children would return safely to Ms. Charron's care "within a reasonable period of time." Finally, after making those determinations, the Family Court justice considered the placements of the children and the length of time that they had been in those placements before he determined that it was in the best interests of the children that Ms. Charron's parental rights be terminated.

On appeal, Ms. Charron limits herself to a purely legal argument; she contends that § 15-7-7(c) and this Court's precedent, which regulate the termination of parental rights, "violate[] a parent's due process rights under the Fourteenth Amendment by requiring that the child's best interests, and integration into the foster family, [be a] part of, and in the same proceeding as, the determination of [parental] 'fitness.'" Ms. Charron posits that, as a matter of due process, the Family Court must first make a determination of parental unfitness and only after that determination is made may the court consider the best interests of the child before finally deciding whether to terminate parental rights. Ms. Charron, by her own admission, did not raise this constitutional argument before the Family Court.[1]

II

Analysis

This Court has long adhered to an important jurisprudential principle commonly referred to as "the raise or waive rule." See, e.g., State v. Gomez, 848 A.2d 221, 237 (R.I. 2004). That venerable rule provides that "an issue that has not been raised and articulated previously at trial is not properly preserved for appellate review." Id. at 237 (internal quotation marks omitted); see State v. Ciresi, 45 A.3d 1201, 1212 (R.I. 2012) (noting that it is "well established" that the rule "precludes a litigant from arguing an issue on appeal that has not been articulated at trial") (internal quotation marks omitted); see also DeMarco v. Travelers Insurance Co., 26 A.3d 585, 628-29 & n.55 (R.I. 2011). We have provided for one narrow exception to the rule that may be invoked "when basic constitutional rights are concerned." State v. Russell, 890 A.2d 453, 462 (R.I. 2006) (internal quotation marks omitted). For the exception to apply, an appellant must show that "the error complained of [goes] beyond the level of harmless error. The record must be sufficient to permit a determination of the issue, and counsel's ...


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