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Provorse v. State

Superior Court of Rhode Island

December 13, 2016


         Providence County Superior Court

          For Plaintiff: Diane Messere Magee, Esq.; Thomas M. Dickinson, Esq.

          Plaintiffs: Diane Messere Magee, Esq., Thomas M. Dickinson, Esq.

          State of Rhode Island: Rebecca J. Partington, Esq., Anne T. Turilli, Esq., Neil F.X. Kelly, Esq.

          DCYF: 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.

          Jay Lindgren Michael Moretti Maureen Robbins: Anne T. Turilli, Esq.

          Interested Parties: Butler Hospital; Laura Drury, Andrew S. Tugan, Esq., Bradley Hospital Gateway Mental Health Services and CIS, Kathryn M. Rattigan, Esq.


          LICHT, J.

         This 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[1] (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 of limitations.[2]


         Facts and Travel


         Procedural History


         Summary Judgment

         This matter came on for hearing in front of Justice Montalbano[3] 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, [4] 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[5] 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.

         To 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.

         Ultimately, 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[.]").


         State's Motion for an Evidentiary Hearing

         Following 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.).

         This 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, 2015.


         The Evidentiary Hearing

         Before 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, [6] 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 claims.


         Factual History[7]



         Tanya 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.

         While 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.

         The 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.

         A 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.

         Regarding 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)." Id.

         In the 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 illness." Id.

         The Questionnaire also required the Provorses to provide information regarding the life experiences of a child that would meet with their criteria. See id. Specifically:

"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.

         In 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.

         Prior 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)[8] 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 42:8-13.

         When 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.

         On May 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"[9] 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.

         During 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. 19, 2016.

         After 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.

         It was Mrs. Provorse's understanding, after speaking with Ms. Keogh and Ms. Robbins, that Attachment Disorder[10] 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.

         During 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.

         During 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. at 59:19-22.



         After 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 89:17-21.

         In or 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.

         In 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:

"Birth family:
"MGM[11] - resided at Ladd School several years
- ? retarded
- history of alcohol abuse
- pattern of suicide attempts
- learned by birth mother that she had been hospitalized/ diagnosed Bi-polar
"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.

         At the 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.

         To 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.

         Further, 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.

         On 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.


         Butler Hospitalization January 1999

         On or 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.

         During 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)[12]; 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.

         When 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.

         However, 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.

         Next, 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.

         Further, 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 120:23-121:4.

         After a brief redirect examination by counsel for the State, the Court asked a few questions of Ms. Drury for clarification purposes as follows[13]:

"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 COURT: Then you put something in and I don't know what you crossed out and put in. Let's take them ...

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