NEIL PROVORSE, INDIVIDUALLY; DOROTHY PROVORSE, INDIVIDUALLY; NEIL PROVORSE AND DOROTHY PROVORSE, AS PARENTS AND NEXT FRIEND OF TANYA PROVORSE, A MINOR
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS; DONALD L. CARCIERI, IN HIS OFFICIAL CAPACITY AS GOVERNOR FOR THE STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS; DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES; JAY LINDREN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES; JOHN DOE STATE AGENCY NOS. 1-5; JOHN DOE NOT-FOR-PROFIT CORPORATION NOS. 1-5; JOHN DOE CORPORATION NOS. 1-5; MICHAEL MORETTI, ALIAS; MAUREEN ROBBINS, ALIAS; TARA SLATTERY, ALIAS; JOHN DOE NOS. 1-10; AND JANE DOES NOS. 1-10
County Superior Court
Plaintiff: Diane Messere Magee, Esq.; Thomas M. Dickinson,
Plaintiffs: Diane Messere Magee, Esq., Thomas M. Dickinson,
of Rhode Island: Rebecca J. Partington, Esq., Anne T.
Turilli, Esq., Neil F.X. Kelly, Esq.
Anne T. Turilli, Esq., Kelly Ann McElroy, Esq., David J.
Strachman, Esq., Jay Lindgren Michael Moretti
Maureen Robbins: Anne T. Turilli, Esq., Kelly Ann McElroy,
Esq., David J. Strachman, Esq.
Lindgren Michael Moretti Maureen Robbins: Anne T. Turilli,
Interested Parties: Butler Hospital; Laura Drury, Andrew S.
Tugan, Esq., Bradley Hospital Gateway Mental Health Services
and CIS, Kathryn M. Rattigan, Esq.
matter came before the Court for an evidentiary hearing to
determine the accrual date of Plaintiffs' Dorothy and
Neil Provorse (Plaintiffs or the Provorses) claims for
wrongful adoption of their daughter, Tanya
Provorse (Tanya). For the reasons set forth below,
this Court finds that Plaintiffs' cause of action for
wrongful adoption accrued on or after August 31, 2000.
Therefore, this Court finds that those portions of
Plaintiffs' Amended Complaint, which allege claims for
wrongful adoption, i.e., Plaintiffs' causes of
action sounding in negligence, are preserved by the discovery
rule, and thus, not barred by the relevant three-year statute
matter came on for hearing in front of Justice
Montalbano on the State's Motion for Partial
Summary Judgment on October 3, 2014. The State argued,
inter alia, that Plaintiffs' claims were barred
by the relevant three-year statute of limitations as set
forth in § 9-1-25,  and thus, all causes of action brought
by them-rather than Tanya-should be dismissed as a matter of
law. Hr'g Tr. (Tr.) 52:7-16, Oct. 3, 2014. The State
asserted that Plaintiffs' claims accrued on November 14,
1994, the date that they adopted Tanya, making the filing of
the complaint on August 15, 2003 untimely. Id. at
51:25-52:4. In the alternative, the State argued that, even
if the discovery rule applied, Plaintiffs' claims are barred
by the three-year statute of limitations because Plaintiffs
knew or should have known of their cause of action on January
21, 1999, when Tanya was diagnosed with Major Depressive
Disorder, or on June 7, 1999, when Plaintiffs allegedly
learned of Tanya's biological family history.
Id. at 52:9-16.
stave off the State's motion, Plaintiffs argued that the
discovery rule tolled the three-year statute of limitations
until August 31, 2000, when Plaintiffs finally had access to
the full medical history of Tanya's biological family
and, as such, their claims were timely filed. Id. at
52:17-20. Upon conclusion of oral argument, the hearing
justice rendered a bench decision and found that, because
"the injury was unknown to the plaintiffs at the time of
Tanya's adoption[, ]" the discovery rule applied and
"toll[ed] the statute of limitations" on
Plaintiffs' claims. Id. at 55:4-8. Further, the
hearing justice found that "if a person exercising
reasonable diligence would not have been aware of the injury
until he or she knew that DCYF had more information about a
history of mental illness in Tanya's biological family
than they disclosed prior to Tanya's adoption then the
[State]'s motion for summary judgment would have to be
denied -- in this case, partial summary judgment."
Id. at 58:1-8. The hearing justice noted that,
although the State relied heavily on Rowey v.
Children's Friend and Service, 2003 WL 23196347
(R.I. Super. Dec. 12, 2003) (Darigan, J.), the instant
matter, "present[ed] a distinguishable fact
pattern" and that the Rowey decision
"[was] instructive at best and [was] not precedential
authority." Id. at 58:15-17; 59:13-14; 60:3-4.
the hearing justice denied the State's Motion for Partial
Summary Judgment stating that "a reasonable person would
not necessarily have known that Tanya's mental health
issues and the injuries they caused to both her and her
adoptive parents were potentially predictable from a
biological family medical history that DCYF did not disclose
at the time of Tanya's adoption." Id. at
61:23-62:3. The hearing justice noted that "the test
[was] not what the Provorses knew but what a reasonable
person should have known in similar circumstances."
Id. at 62:19-63:3 (citing 51 Am. Jur. 2d
Limitations of Actions § 158 at 621-22 (2011)
(stating that when dealing with the discovery rule, "the
question is not whether the particular plaintiff actually
knew that he or she had a claim, but is whether the
circumstances of the case would put a plaintiff of common
knowledge and experience on notice that some right of his or
hers has been invaded[.]").
Motion for an Evidentiary Hearing
the hearing justice's denial of its Motion for Partial
Summary Judgment, the State petitioned this Court for an
evidentiary hearing to determine the specific accrual date of
Plaintiffs' claims. After extensive briefing from both
parties, this Court heard argument and rendered its decision
on August 4, 2015. This Court found that the law of the case,
as stated by the hearing justice in his October 3, 2014 bench
decision, was that "the discovery rule applies in a
wrongful adoption matter" and that "there's a
genuine issue of material fact as to when the plaintiffs, in
the exercise of reasonable diligence, should have discovered
the injury or their claim." Tr. 4:3-5; 8-11, Aug. 4,
2015 (Licht, J.).
Court granted the State's motion for an evidentiary
hearing and stated that "the decision as to what the
accrual date under the discovery rule is, is a matter of
law." Id. at 38:1-2. Relying on Sharkey v.
Prescott, 19 A.3d 62, 67 (R.I. 2011), this Court stated
that the accrual date should be determined "at a
preliminary evidentiary hearing at any time in advance of
trial in determining when reasonable diligence would have put
a person on notice that a potential claim existed."
Id. at 38:14-17; see also Doe v. LaBrosse,
588 A.2d 605, 606-07 (R.I. 1991) (trial justice should
conduct a preliminary hearing and make a factual
determination regarding the specific date that the
plaintiffs' claim accrued); Cikan v. ARCO Alaska,
Inc., 125 P.3d 335, 339 (Alaska 2005) ("[W]hen a
factual dispute precludes entry of summary judgment the
dispute must ordinarily be resolved by the court at a
preliminary evidentiary hearing in advance of trial.");
Lopez v. Swyer, 300 A.2d 563, 567, 62 N.J. 267,
274-75 (N.J. 1973) (holding that the application of the
discovery rule to toll a plaintiff's claims is a matter
to be resolved by the judge at a preliminary hearing because
"the question as to the application of the statute of
limitations is ordinarily a legal matter and as such is
traditionally within the province of the court[, ]" and
the "interplay of the conflicting interests of the
competing parties must be considered" and is thus,
"more than a simple factual determination[.]").
Additionally, cognizant of its non-precedential effect, this
Court found the trial justice's analysis in
Rowey of "all the affidavits and depositions
and other evidence" in determining the accrual date of
the plaintiffs' claims instructive. Tr. 38:25, Aug. 4,
commencing the evidentiary hearing, this Court reminded the
parties that the State had raised the statute of limitations
as an affirmative defense. Tr. 18:1, Feb. 16, 2016. As such,
this Court stated that, although Plaintiffs had the initial
burden of production to "say when in the exercise of
reasonable diligence they actually discovered this cause of
action . . . the burden remains on the state to prove that
the date is earlier than" when Plaintiffs filed their
claim with this Court. Id. at 18:14-18. In short,
"the state has to prove by a preponderance of the
evidence that that accrual date was prior to . . . August 15,
2000." Id. at 18:24-19:6. Further, this Court
advised counsel that since the impending hearing was focused
on a very discreet issue-the accrual date of Plaintiffs'
claims-all the evidence and testimony that would be presented
to this Court, regarding that date, should be narrowly
focused as well. Accordingly, and after twelve days of
hearings,  this Court will narrowly focus its
recitation of the facts and subsequent analysis to the
relevant period of time when Plaintiffs, in the exercise of
reasonable diligence, knew or should have known of their
was born on April 6, 1987 in Providence, Rhode Island.
See Pls.' Ex. 1. At the age of three, Tanya was
removed from her biological mother and placed in the
State's care with the Rhode Island Department of
Children, Youth, and Families (DCYF). See Pls.'
Ex. 47. By 1993, the parental rights of both Tanya's
biological mother and father had been terminated, and she
became a ward of the State. Id. As a result, Tanya
remained in DCYF's custody and was placed in the care of
several foster homes. Id.
Tanya moved from foster home to foster home, the Provorses
desired to start a family of their own, and Mrs. Provorse
contacted DCYF about adoption. Tr. 14:1-3, Feb. 18, 2016.
Mrs. Provorse testified that Richard Prescott, an employee of
DCYF, advised her that the Provorses would need to "fill
out paperwork and an application for adoption" in order
to begin the adoption process. Id. at 14:8-13.
Included in the paperwork were an Adoption Application (the
Application) and an Adoption Self-Assessment Questionnaire
(the Questionnaire). See Pls.' Exs. 5, 6. Mrs.
Provorse testified that the Questionnaire "was a
questionnaire on my background and on the type of child that
we would like so that DCYF or the Department of Children,
Youth, & Families were [sic] able to match us with a
child." Id. at 15:13-16.
Application required the Provorses to give general background
information about themselves: including, their home address,
any previous marriages and/or biological children, employment
status, and their general medical history. See
Pls.' Ex. 5.
question on the Application asked, "What is your
preference regarding the child/children you would consider
adopting?" Id. at 4. Specifically, the
Application required the Provorses to circle the "degree
of handicapping conditions [that they] would consider"
and listed three categories: "Physical, "
"Emotional, " and "Intellectual."
Id. The Provorses had the option of circling
"None, " "Mild, " "Moderate, "
or "Severe." Id. In the Physical handicap
category, the Provorses circled "None" and
"Moderate" and connected their two choices by
drawing a line through "Mild." Id. In
explaining what this notation meant, Mrs. Provorse testified
that her choice indicated "[N]one to [M]oderate."
Tr. 16:22-25, Feb. 18, 2016. The Provorses circled
"Moderate" in the "Intellectual"
category. Pls.' Ex. 5.
the level of emotional handicap that the Provorses were
willing to consider, they circled both "Mild" and
"Moderate." Id. Mrs. Provorse explained
that this choice meant that they were willing to accept a
child with a "Mild to [M]oderate" emotional
handicap. Tr. 17:1-2, Feb. 18, 2016. Mrs. Provorse explained
on direct examination that when she circled "Mild to
[M]oderate, I was thinking [the child] might have some
emotional problems but not to the severity that I
couldn't handle." Id. at 17:18-22. The last
two pages of the Application listed numerous "behaviors
common to children who have experienced the uncertainties of
the substitute child care system and who are now waiting for
permanent adoptive families" and asked the applicants to
"[w]rite yes in front of behaviors which you
and your family could tolerate and wok [sic] with a child
toward improving[, ]" and "[w]rite no in
front of behaviors which you never could tolerate and which
would stop you from further considering a child for
adoption." Pls.' Ex. 5, 5-6 (emphasis in original).
The Provorses completed this section of the Application and
indicated that they could tolerate, e.g.,
"Tantrums (screaming, yelling, kicking, out of control),
"Shows no respect (says, "shut up, " mouths
off, flip attitude), " and "Defiant-sullen
(reticent, secretive)." Id. at 5. However, the
Provorses also indicated that they could never tolerate
behaviors such as: "Stealing, "
"Destructiveness (smashing, breaking), " or
"Hurting others (kicking, biting, hitting)."
twenty-four page Questionnaire, the Provorses were asked to
provide extensive background information about themselves and
their families, their marriage, and thoughts about adoption.
See Pls.' Ex. 6. On page twenty of the
Questionnaire, the Provorses were asked to provide,
"What things, if any, in the history of a child's
birth parents and/or birth grandparents
would make a match with that child unacceptable to you; if
you knew about them before meeting the child? (i.e.
alcoholism, mental retardation, mental illness, drug
addiction, Aids, etc.) Please specify and explain why this
would be a deterrent to a match." Id. at 20
(emphasis in original). The Provorses responded that Aids
would, because the child would [sic] live long. If in the
family and the child not affected then none of the
above." Id. Part two of the same question asked
the Provorses, "Are there things in this category which
would not cause you to say no to a match, but may cause you
to consider long and hard before saying yes? Explain."
Id. To that question, the Provorses indicated that
"[i]f child is extremely retarded, or has severe mental
Questionnaire also required the Provorses to provide
information regarding the life experiences of a child that
would meet with their criteria. See id.
"11) What things, if any, in a child's life
experience, would make a match with that child
unacceptable to you, if you were told about them before
meeting the child? (i.e., emotional abuse, physical abuse,
sexual abuse, sex with siblings, multiple placements,
repeated rejections, etc.) Please specify and explain why
this would be a deterrent to a match. [Answer] None.
"Are there things in this category which would not cause
you to say no to a match but may cause you to consider long
and hard before saying yes? Explain. [Answer] None."
Id. (underline in original); see also Tr.
72:11-14, Feb. 18, 2016.
addition to completing the Application and the Questionnaire,
the Provorses were required to attend classes at DCYF. Tr.
21:14-20, Feb. 18, 2016. Pat Keogh (Ms. Keogh), who was
employed by DCYF as a social worker, taught the adoption
classes. Id. at 22:3-7. Mrs. Provorse testified
that, after attending the classes and listening to several
adoptive parents' testimonials about their experiences
with adoption, she believed "[t]hat all the children
would be matched with Neil and I according to our
questionnaire." Id. at 22:22-25. Mrs. Provorse
also testified that in the classes there was discussion about
"special needs" children and it was her
understanding, after listening to the discussion in the
classes, "that all children that DCYF has are considered
special needs because they have either been taken away or
given up by their parents." Id. at 26:16-24.
to placing Tanya with the Provorses in April of 1994, the
Provorses had several visits with her that were supervised by
Tara Slattery (Ms. Slattery), "a Rhode Island College
student working to be a social worker, " who "was
working with DCYF." Tr. 38:22-25, Feb. 18, 2016. Also as
part of this transition, Carole Stevens (Ms. Stevens),
Tanya's Volunteer Court Appointed Special Advocate
(VCASA) visited the Provorses' home on one
occasion. Id. at 40:18-41:10. Mrs. Provorse
testified that the only information that Ms. Stevens was able
to provide to the Provorses was that Tanya's birth mother
"was 17 when she had Tanya" and that she "was
19 when she had [Tanya's half-brother]. They [sic] were
different fathers, that Tanya's birth was normal. There
were no complications. Other than that, I guess just that her
mother's life wasn't the greatest for the child and
that's why she gave Tanya up[.]" Id. at
questioned on direct examination by the State, Ms. Stevens
recounted that she first communicated with Mrs. Provorse by
telephone on March 20, 1994, and then subsequently met with
her in person. Tr. 50:19-23, Feb. 26, 2016. Ms. Stevens
testified that she next visited the Provorses on April 16,
1994 and that Mrs. Provorse had inquired about Tanya's
biological mother. Id. at 52:22-53:1; 53:11-13;
see also Pls.' Ex. 59. On direct, Ms. Stevens
explained that she recorded her exchange with Mrs. Provorse
in one of her "Contact" notes and that she wrote
"that [Mrs. Provorse] asked me about the mother, Lisa,
and what the story was on her. She wanted to know if she had
any mental health issues." Id. at 54:1-4. Ms.
Stevens testified, that "I told her she did have some
mental issues and I was not at liberty to talk to her about
them, that she needed to talk to DCYF or Mike Moretti."
Id. at 54:6-8. However, when pressed on
cross-examination about her exchange with Mrs. Provorse, Ms.
Stevens conceded that nowhere in her transcribed
"Contact" note regarding that exchange did she
mention making any disclosure about Tanya's biological
mother's mental health issues. Id. at 69:9-16.
Ms. Stevens also admitted that she did not inform Michael
Moretti (Mr. Moretti) or Maureen Robbins (Ms. Robbins), two
of Tanya's social caseworkers, about her conversation
with Mrs. Provorse or that she had partially disclosed some
of Tanya's confidential biological family history.
Id. at 71:13-25.
19, 1994, DCYF officially placed Tanya in the care of the
Provorses. See Pls.' Ex. 8 (DCYF, Agreement for
Placement); Tr. 43:21-24, Feb. 18, 2016. Mr. Moretti brought
her to the Provorses home with only two garbage bags
containing all her possessions. Tr. 44:5-9, Feb. 18, 2016.
Mr. Moretti's visit lasted approximately "twenty
minutes to a half an hour" during which time he had the
Provorses sign both "an agreement for placement"
and "an adoption subsidy." Id. at
44:21-45:2. Mrs. Provorse testified that during this brief
visit she asked Mr. Moretti if DCYF had any more information
about Tanya's family history besides the "life
book" that the Provorses had received about
Tanya, to which Mr. Moretti responded, "that was all
they had." Id. at 47:1-7. However, during
cross-examination, Mrs. Provorse clarified that when she
first asked Mr. Moretti for information about Tanya's
biological family history, he responded that "he would
speak with his supervisor [Ms. Robbins] and they would get
back to [her]." Tr. 13:13-14, Feb. 19, 2016.
direct examination, Mrs. Provorse also testified that
sometime shortly after placing Tanya with the Provorses, Mr.
Moretti and Ms. Robbins returned to the Provorses' home
"with two to three sheets of lined, white paper"
that listed the placements "that Tanya had lived in, six
homes in four years, and the names of the [f]oster parents
were crossed off[.]" Tr. 47:20-25, Feb. 18, 2016.
However, when confronted on cross-examination with her answer
to interrogatories regarding what DCYF employees, Mr. Moretti
and Ms. Robbins, had told her about the information they had
about Tanya's biological family history, Mrs. Provorse
agreed that she had answered that Mr. Moretti and Ms. Robbins
had told her that "they did not have any more
information they could give me by law." Tr. 53:3-8, Feb.
Tanya was placed with the Provorses in May 1994,
"[Tanya] had a very difficult time sleeping at night and
she had tantrums." Tr. 49:3-6, Feb. 18, 2016. Her
tantrums involved "screaming, yelling[, ] kicking,
throwing anything and everything[, ]" and "would go
anywhere from fifteen minutes to sometimes an hour."
Id. at 49:7-12. Mrs. Provorse informed Mr. Moretti
and Ms. Keogh about Tanya's behavior in or about July and
August of 1994. Id. at 50:10-14. Mrs. Provorse
testified that when she relayed this information to Ms.
Keogh, she made a visit to the Provorses' home and
"t[old] [Mrs. Provorse] to hang in there, that Tanya had
had multiple placements and that she did have Attachment
Disorder and that the more [they] encouraged her and told her
that [the Provorses] were her family, [they] loved her, the
more secure she'd be with [them] and hopefully [the
tantrums] would stop." Id. at 50:19-51:2.
Mrs. Provorse's understanding, after speaking with Ms.
Keogh and Ms. Robbins, that Attachment Disorder was
associated with "[s]omeone not being able to form a
relationship with whoever the primary caregiver is because of
having multiple placements[, ]" and that Tanya
"would settle down once she felt secure[.]"
Id. at 53:20-54:7. Mrs. Provorse testified that she
spoke with Mr. Moretti separately about Tanya's sleeping
difficulties and that she was unable to sit still when seated
at the table and that Mrs. Provorse "asked him if they
had any other family history they could give me."
Id. at 51:6-14. Mr. Moretti responded that "at
that time they had g[iven] [Mrs. Provorse] everything they
had when he and [Ms. Robbins] came to the house."
Id. at 51:15-18.
the summer of 1994, Mrs. Provorse informed Ms. Keogh that
Tanya had been sexually molested in one of her previous DCYF
foster care placements. Id. at 80:20-81:5. Further,
Mrs. Provorse testified that she believed that it was Ms.
Keogh that told her that "we [DCYF] don't have
anything on that. You have to call 1-800-RI-CHILD and report
it." Id. at 81:6-7. Mrs. Provorse stated that
she followed Ms. Keogh's instructions and "two
gentlemen came out from the agency to talk to Tanya about
what had happened to her." Id. at 81:8-9. After
the investigation was completed, it became Mrs.
Provorse's understanding that part of Tanya's
difficulty sleeping and her tantrums were, in part, caused by
the sexual abuse and the "flashbacks of [the
perpetrator] scaring her and molesting her."
Id. at 91:10-92:8.
this period, the Provorses assumed all the responsibilities
of caring for Tanya, including her doctor's visits. Along
with regular visits to her family doctor, in September of
1994, the Provorses took over bringing Tanya to see Dr.
Berman, a psychiatrist at Delta Consultants, who had been
treating Tanya before she came to live with the Provorses.
Id. at 56:15-24; 60:6-8. When Mrs. Provorse asked
Tanya's social workers, Mr. Moretti and Ms. Robbins, why
she was seeing Dr. Berman, she was told that "all
children within DCYF go to a psychiatrist because of leaving
their parents or being taken away from their biological
parents." Id. at 57:1-3. However, the Provorses
were not allowed to participate in Tanya's sessions with
Dr. Berman, and after speaking with Dr. Berman as to why this
was the policy, it was Mrs. Provorse's understanding that
because "we were adopting Tanya through the Department
of Children, Youth, & Families and [that DCYF] were [sic]
actually generating the meetings. I was not generating
them." Id. at 58:16-17; 59:1-4. Frustrated by
being excluded from her care with Dr. Berman, the Provorses
took Tanya to see Dr. Muriel Cohen (Dr. Cohen). Id.
waiting the requisite six months, the Provorses adopted Tanya
on November 14, 1994. See Pls.' Ex. 11.
Following her adoption and through 1998, Tanya continued to
treat with several doctors. Tr. 76:12-15, Feb. 18, 2016.
During this time, she received treatment from therapist, Dr.
Karen Kerman, Dr. Cohen, and a doctor at Delta Consultants.
Id. at 80:3-9. Also during this time, Mrs. Provorse
continued to ask DCYF, specifically Ms. Keogh, "over 20
times" whether she could get more information on
Tanya's family history so that her doctors could treat
Tanya properly. Id. at 86:7-15. Mrs. Provorse also
testified that she spoke with Ms. Robbins "maybe three
to six times" about Tanya's ongoing tantrums and
that she asked Ms. Robbins for "anything on family
history that [she] might be able to help Tanya better and
[she] might be able to treat her better[, ]" to which
Ms. Robbins responded, "they gave me all they had."
Id. at 88:1-89:1. Ms. Robbins advised Mrs. Provorse
just "[t]o stay positive and hang in there. Reinforce
that she's [their] child and she's always going to be
with [Mrs. Provorse] and just keep helping her the best [Mrs.
Provorse] could with loving her." Id. at
about November 1998, Tanya was also receiving treatment for
her tantrums from Behavioral Health Specialists (BHS), during
which time Mrs. Provorse signed a release of information
authorizing Arlene Heiht, a social worker at BHS, to request
information regarding Tanya's treatment at Bradley
Hospital prior to 1994. Id. at 92:19-24; 95:14-20;
see also Pls.' Ex. 13. On or about December 9,
1998, Mrs. Provorse also executed a release of information
for BHS to receive information from DCYF regarding
Tanya's prior psychiatric examinations, treatment plans,
and physical and social history because "the doctor or
the social worker said she needed the family history in order
to treat Tanya properly[.]" Id. at 97:13-14;
Pls.' Ex. 14.
response to the BHS request, on or about December 23, 1998,
Cindy Wilder (Ms. Wilder), a social caseworker at DCYF, sent
correspondence to BHS, which stated: "that the
Department of Children, Youth, & Families is in receipt
of a release of information in regards to Tanya
Provorse" and explained that the contents of the
enclosed letter were a summary of Tanya's background.
Pls.' Ex. 15. The letter indicated the following:
"MGM - resided at Ladd School several years
- ? retarded
- history of alcohol abuse
- pattern of suicide attempts
- learned by birth mother that she had been hospitalized/
"BIRTH MOTHER - history of physical/sexual abuse
- history of being in DCYF care
- drug/alcohol use starting @ age 11
- borderline personality "PUTATIVE FATHER - history of
being abusive - alcohol abuse[.]"
Id. The letter also indicated that "Tanya was
born to a 17 year old mother" and that "[d]espite a
lack of prenatal care, delivery was described as
normal." Id. In addition, it contained the
information that "Tanya had a history of multiple
placements while in the Dpartments [sic] care" and that
she had been "evaluated at Delta consultants [sic] at
the age of six" and "diagnosed as PTSD and Reactive
Attachment Disorder." Id.
evidentiary hearing, Mrs. Provorse testified that the only
information that was provided to her and Mr. Provorse by DCYF
between 1994 and 1998 was:
"That Tanya's mother was seventeen years old, that
her delivery was normal, that Tanya's mother they say had
a chaotic life but they told me the mother moved around a
lot, that Tanya had multiple placements while in the care of
the department. I believe when [DCYF] said that she had . . .
Post-Traumatic Stress Disorder and that she had been
diagnosed with Post Traumatic Stress Disorder and Reactive
Attachment Disorder." Tr. 99:3-11, Feb. 18, 2016.
counter Mrs. Provorse's testimony that she had requested
Tanya's biological family history from several DCYF
workers essentially dozens of times, the State called Diane
Savage (Ms. Savage), a twenty-two year employee who now holds
the position of Assistant Administrator for DCYF, to testify.
Ms. Savage explained that she had reviewed three different
files to prepare for her testimony-Tanya's case record,
Tanya's biological mother's records, and Mrs.
Provorse's case records. Tr. 15:24-16:2, Mar. 7, 2016.
Ms. Savage further explained that information regarding any
contacts with the Provorses would be found in the section of
the record referred to as the case activity notes (the
Notes). Id. at 18:2-5. Regarding the Notes, Ms.
Savage testified that "it's expected that the
caseworker will enter any information into the record [or the
Notes] that would record major activities such as
conversations with parents, appearances at court, any other
provider meetings that would happen within that
timeframe." Id. at 18:8-12. Ms. Savage also
stated that it is typically the caseworker assigned "to
the case as the primary worker" whose responsibility it
is to enter the Notes. Id. at 18:23-25.
during direct examination, Ms. Savage testified about the
Notes from Tanya's record spanning the period January of
1994 through August of 2000. Id. at 24:16-23;
see also Defs.' Ex. D-1. Specifically, Ms.
Savage testified that the Notes contained in Defs.' Ex.
D-1 related to Tanya Hicks Provorse and that she knew this to
be true "[b]ecause it was part of the case record that
[she] examined." Id. at 25:18-24. Ms. Savage
explained that after the Provorses adopted Tanya in November
of 1994, the only contact that DCYF had with them was
"maintenance of the adoption subsidy" because
"there was no shared custody and no legal petitions in
the Family Court for the family or child." Id.
at 66:23-67:3. Ms. Savage also stated that the first and only
evidence in the Notes of the Provorses' request for
Tanya's biological family history was documented on March
16, 2000 and March 20, 2000. Id. at 68:5-12.
cross-examination, Ms. Savage confirmed that if Mrs. Provorse
had orally requested Tanya's biological family history
from Tanya's caseworker, and that caseworker had not
informed Mrs. Provorse that she needed to make her request in
writing, that would be a violation of DCYF's
Confidentiality Policy as applied to Restricted Information.
Tr. 42:22-43:10; 46:14-17, Mar. 11, 2016; see also
Pls.' Ex. 62. Ms. Savage also confirmed that there was no
DCYF policy that allowed a caseworker to divulge certain
restricted information and refuse to release the remainder of
that information. Id. at 46:18-23. Ms. Savage
further confirmed that there was no evidence in the Notes
that DCYF had disclosed any information regarding Tanya's
biological family history to the Provorses between November
of 1994 through the end of 1998. Id. at 64:6-23.
Additionally, regarding Ms. Wilder's letter that had been
sent to BHS on December 28, 1998, Ms. Savage conceded that it
would have been against DCYF policy to share a copy of that
letter with the Provorses and that there is no record of the
letter ever being sent to the Provorses. Id. at
65:8-23; see also Defs.' Ex. U. Finally, Ms.
Savage testified on cross-examination that there was no
evidence in the DCYF record that the Provorses ever
petitioned to have Tanya's adoption terminated.
Id. at 66:7-15.
Hospitalization January 1999
about January 2, 1999, as a result of not wanting to return
to Rhode Island after a family trip to New Hampshire, Tanya
began to have one of her tantrums. Tr. 100:25-101:1, Feb. 18,
2016. Although her tantrum had subsided before they left New
Hampshire, while on the car ride home, Tanya once again
became "very upset and said I don't want to live
anymore, I have nothing to live for and she opened the car
door." Id. at 101:20-22. After reassuring Tanya
that "[they] loved her" and that "[s]he had
her whole life ahead of her[, ]" the Provorses were able
to calm her down and the rest of the trip home was without
incident. Id. at 102:2-12. Nevertheless, after
returning home, Tanya again "talk[ed] about not wanting
to live[, ]" and thus, fearing for her safety, Mrs.
Provorse decided to call Bradley Hospital. Id. at
103:1-3. Because Bradley had no available beds, Mrs. Provorse
called Butler Hospital, which requested that she bring Tanya
in for an evaluation. Id. at 103:4-5.
her hospitalization at Butler Hospital in January 1999, Laura
Drury (Ms. Drury), a clinical social worker at Butler,
conducted a Psychosocial & Discharge Planning Assessment
(the Planning Assessment) of Tanya. See Pls.'
Ex. 16 (Bates 5172-5174); see also Defs.' Ex. YY;
Tr. 90:17-25, Mar. 11, 2016. Ms. Drury, a witness for the
State, testified that, when filling out the Planning
Assessment, "your job is to gather collateral
information most specifically from parents at [sic] other
agencies, therapists, schools and you bring what they have
told you, you record that, you write it down and you bring it
to the treatment team[.]" Tr. 84:1-5, Mar. 11, 2016.
Regarding the several steps that she would go through to
complete the form, she explained that she "would meet
with the patient, ask the patient who is in [her]
family" and that she "would get permission to
contact the family member[.]" Id. at 87:18-21.
asked specifically about her process for filling out the
Planning Assessment for Tanya, Ms. Drury testified that the
form indicated that Mr. Provorse was the "informant,
" but that she did not recall taking the information
from him. Id. at 91:4-6. Ms. Drury also could not
recall if she interviewed Mr. Provorse over the phone or in
person to collect the information. Id. at 94:1-3.
Nevertheless, Ms. Drury testified that Mr. Provorse told her,
and she recorded, "[t]hat the developmental history was
not known. Patient has lived in multiple [f]oster homes since
age 2 . . . [b]iological mother and maternal grand - 
[q]uestion of bipolar illness. Biological mother had alcohol
problems." Id. at 94:8-17. However, also on
direct examination, Ms. Drury testified that she would have
reviewed the Butler Hospital "Child/Adolescent
Psychiatric Eval" (the Psychiatric Eval) that was
generated as a result of a psychiatrist's initial
evaluation of Tanya prior to her admission before completing
the Planning Assessment. Id. at 96:8-15; 98:17-19.
Although the Psychiatric Eval stated that only Tanya's
biological grandmother suffered from manic depression, Ms.
Drury took it upon herself to combine that information-and
what she allegedly gleaned from talking to Mr. Provorse-to
state that both the biological mother and grandmother
allegedly had been diagnosed and treated for Bipolar
Disorder. Id. at 109:19-22; see Pls.'
Exs. 16, 17 (Bates 5164-5168); Defs.' Exs. SS, YY.
counter to Ms. Drury's testimony, Mrs. Provorse testified
that she and Mr. Provorse relayed only the information
contained in Paragraph IV of the Planning Assessment because
they witnessed the events that occurred in New Hampshire,
namely the tantrums and Tanya's attempt to jump out of
the car, which were the reasons for the Provorses bringing
Tanya to Butler Hospital. See Tr. 110:17-23, Feb.
18, 2016. Mrs. Provorse also stated that although she was not
the source of the information contained in Paragraph D of the
Planning Assessment, she was with Mr. Provorse when the
information was elicited. Id. at 111:8-10. She
further testified that Mr. Provorse was not the source of
information regarding Tanya's biological mother's and
grandmother's alleged Bipolar Disorder diagnoses. See
id. at 111:13-23. Further, Mrs. Provorse pointed out
that information contained on the first page of the Planning
Assessment was inaccurate as it stated that the Provorses
adopted Tanya at the age of six years old, when in fact, if
Mrs. Provorse was the source of that information she
"would have said seven." Id. at 111:5-6.
during cross-examination, Ms. Drury confirmed that she had no
recollection of filling out the Planning Assessment or
whether she had even met the Provorses. Tr. 112:10-25;
113:24-114:1, Mar. 11, 2016. Ms. Drury also confirmed, as she
had previously stated on direct examination, that along with
Mr. Provorse giving her information about his daughter, she
reviewed the Psychiatric Eval form before completing the
Planning Assessment. Id. at 113:6-10. Ms. Drury
further explained that where the Planning Assessment says
"Acute Family Issues and there is an F with a circle
around it" that that notation indicates that the
following information came directly from Tanya's father,
Mr. Provorse. Id. at 116:22-117:6. Ms. Drury
originally stated that all the information included in the
Planning Assessment was provided by Mr. Provorse, even though
several sections of the form did not include the notation of
an F with a circle around it. Id. at 116:21-117:9.
However, when pressed by Plaintiffs' counsel, she
conceded that she had reviewed other sources of information
in order to complete the Planning Assessment. Id. at
117:10-21. Ms. Drury also acknowledged that when including
the information in pages two and three of the Planning
Assessment-including the information, which suggested that
Tanya's biological mother and grandmother suffered from
Bipolar Disorder-she did not use the demarcation of an F with
a circle around it. Id. at 119:18-21; 125:7-13.
Ms. Drury confirmed that, although the psychiatrist that had
filled out the Psychiatric Eval noted that Tanya's
biological grandmother was manic depressive, she interpreted
the biological grandmother's medical history to indicate
that there was a potential diagnosis of bipolar illness
instead. Id. at 120:4-9. Additionally, on
cross-examination, Ms. Drury attested that, by looking at the
Planning Assessment, there was no way to know if the
Provorses ever received a copy of that form, and that she
would not have given the Provorses a copy because it would be
against hospital policy to do so. Id. at
brief redirect examination by counsel for the State, the
Court asked a few questions of Ms. Drury for clarification
purposes as follows:
"THE COURT: If I walked into you and said I'm manic
depressive, would you write down bipolar?
"THE WITNESS: I would put down that you had said the
exact words manic depressive.
"THE COURT: Turning to your document, if you go to the
-- what if I told you my mother was manic depressive.
"THE WITNESS: I would be sorry for you. The same thing,
again the same thing.
"THE COURT: Turning to your document, the last page.
This is really just a question that I can't really read.
In IX and X, you cross something out.
"THE WITNESS: Yeah.
"THE COURT: Then you put something in and I don't
know what you crossed out and put in. Let's take them ...