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In re Kurt H.

Supreme Court of Rhode Island

January 18, 2017

In re Kurt H.

         Providence County 14-1152-1 Family Court Laureen D'Ambra Associate Justice

          For Petitioner: Karen A. Clark Department of Children Youth and Families Karl D. Beauregard Court Appointed Special Advocate

          For Respondent: Catherine Gibran Office of the Public Defender

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

          OPINION

          Paul A. Suttell Chief Justice

         The respondent, Eric H. (father or respondent), appeals from a decree of neglect as to his son, Kurt H. (the child), entered in the Family Court. The child came under the state's care on October 6, 2014, after an alleged alcohol relapse by the child's mother; at the time the respondent was incarcerated at the Adult Correctional Institutions (ACI). This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the decree of the Family Court.

         I

         Facts[1] and Travel

         At some point after the child's birth in 2012 in Massachusetts, the family became involved with the Massachusetts Department of Social Services (DSS) for reasons that are not germane to the issues currently on appeal. In June 2014, the family moved to an apartment in Pawtucket. Shortly thereafter, DSS contacted the Rhode Island Department of Children, Youth, and Families (DCYF) to report that the family had relocated. In late July 2014, respondent was arrested and held on a charge of conspiracy to violate the controlled substances law; he subsequently pled to the charge and was sentenced to eighteen months at the ACI.

         After respondent's arrest and detention, the mother "began working" with the Family Care Community Partnership (FCCP). On October 6, 2014, the mother admitted to a FCCP agent that she had relapsed and had been drinking for several days, and that she would be evicted on October 18, 2014. Consequently, a DCYF Child Protective Investigator (CPI) "responded to the home." In an affidavit, the CPI attested that the mother, when interviewed at her home, began "screaming and swearing[, ] saying [that] she was going to drink a bottle of alcohol and kill herself." The CPI described the mother as "belligerent" and "erratic" during this visit. The child was placed in the temporary custody of DCYF, and, on the following day, DCYF filed an ex parte petition alleging that the child was neglected. On January 22, 2015, the petition was amended to include an allegation of dependency, an allegation to which the mother pled.

         The petition came before the Family Court for trial as to father on May 12, 2015. Before trial commenced, respondent stated that he did not "feel" he could admit to neglect because, although he was incarcerated when the child was removed, it was the mother's relapse that caused the child to come into the state's care. The respondent indicated that, in light of the fact that the mother had pled to dependency, he should be permitted to do so as well. The trial justice disagreed, and reminded respondent that someone incarcerated at the ACI is "not in a position to take care of [a] child." Accordingly, the trial began and respondent was the only witness to testify.

         At trial, respondent testified that he had supported his family financially. Specifically, respondent testified that, at the time he was incarcerated, he left the apartment "paid for, food and pantry * * * fully stocked, diapers * * * [and] had money coming in that [he] allowed [the mother] to spend on herself and the child."[2] The respondent testified that the "money coming in" was from jobs he had completed before being incarcerated and money owed to him, and that he cashed in an IRA worth $6, 000 to ensure that the mother and child "had everything they needed."

         At the conclusion of the testimony, the trial justice rendered a bench decision, in which she found by clear and convincing evidence that respondent was unable to care for the child due to his confinement in the ACI, and that respondent knew that the mother had alcohol problems when he left the child in her custody. The trial justice also found that respondent neglected the child by failing "to provide the child with a minimum degree of care, supervision or guardianship, and [that] the child [was] without proper parental care and supervision." The Family Court therefore ordered the child "committed to the care, custody and control of ...


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