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In re Malachii O.

Supreme Court of Rhode Island

January 31, 2017

In re Malachii O.

         Providence County Family Court (12-296-1) Associate Justice Karen Lynch Bernard

          For Petitioner: Karen A. Clark Department of Children Youth & Families Shilpa Naik Court Appointed Special Advocate.

          For Respondent: Catherine Gibran Office of the Public Defender.

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


          Maureen McKenna Goldberg Associate Justice.

         This case came before the Supreme Court on October 25, 2016, on appeal by the respondent, John S.[1] (respondent), from a decree entered in the Family Court terminating his parental rights as to his son, Malachii O. (Malachii), who was born on May 21, 2011. The parties were directed to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal at this time. For the reasons set forth in this opinion, we affirm the decree of the Family Court.

         Facts and Travel

         In March 2012, after a hotline received a call detailing the episode, the Department of Children, Youth, and Families (DCYF) was apprised of an alleged incident of domestic violence that occurred in Massachusetts between respondent and Malachii's mother, which also involved Malachii. DCYF was informed that respondent attempted to quell his ten-month-old child's crying by pinching, slapping, and throwing the child against a wall, which the mother claimed rendered the child unconscious. On March 7, 2012, a petition for dependency and abuse was filed ex parte against both parents in Rhode Island, where Malachii resided, and respondent was charged in Massachusetts with felony crimes arising from the alleged assault. A no-contact order was issued on March 14, 2012 and entered on April 26, 2012, which prohibited respondent from having any contact with Malachii.[2] On September 27, 2013, respondent was convicted in Massachusetts by a jury of reckless endangerment of a child and assault and battery with a dangerous weapon. He was sentenced to serve three to five years in prison, followed by a two-and-one-half-year probationary term. A second no-contact order was issued in Massachusetts after respondent's conviction. The respondent's conviction was upheld on appeal on November 18, 2015.

         On November 25, 2013, DCYF filed a petition to terminate the parental rights of respondent and Malachii's mother.[3] As to respondent, DCYF alleged the following grounds as a basis for termination: (1) respondent was unfit due to his prolonged incarceration, which "render[ed] it improbable for [respondent] to care for [Malachii] for an extended period of time, " G.L. 1956 § 15-7-7(a)(2)(i); and (2) respondent abandoned or deserted Malachii, see § 15-7-7(a)(4).[4] Multiple summonses that were issued for respondent were returned unserved because DCYF had difficulty locating his whereabouts in the Massachusetts prison system. The respondent was relocated in the system on multiple occasions and did not advise DCYF of his location. He eventually was served at the Correctional Center in Shirley, Massachusetts, in May 2014, and an attorney was appointed to represent him in the termination proceeding.[5]

         The respondent declined to voluntarily relinquish his parental rights, and the case proceeded to trial on September 22 and 29, 2014. The respondent remained incarcerated in Massachusetts, and the trial was conducted telephonically to afford him the opportunity to participate. At trial, the Family Court justice heard testimony from Barbara Silvia (Silvia), the social caseworker assigned to Malachii's case. She testified that she did not have any contact with respondent because he was incarcerated outside of Rhode Island from the inception of the case in 2012. Silvia detailed that she planned to prepare and discuss a case plan with respondent once he was released from prison because "he can't put services in place with providers while he's incarcerated." She expounded that she was unaware of any programs available for parents incarcerated in Massachusetts, as DCYF does not travel to prisons in other states and she had "never case planned with any client in any other out-of-state prison." Silvia also explained that she did not offer respondent visitation because of the no-contact orders. Although she was aware of respondent's criminal convictions for abusing his son, she did not know when respondent would be released from prison.[6] She was informed that "upon release he could have no unsupervised contact with children under the age of [fourteen], and could not reside in the house with children under the age of [fourteen]." Due to the circumstances, including respondent's status as a child abuser, Silvia testified that respondent "was not a parent that [DCYF was] looking to reunify with at the time." The respondent acknowledged his convictions during his testimony as well, [7] citing his incarceration and the no-contact orders as justification for why he failed to provide support for his son.

         Silvia testified that respondent did write two letters.[8] The first letter was sent to the Family Court on August 9, 2012, in which respondent requested a paternity test.[9] Silvia stated that she arranged for the test to be conducted; the results, which confirmed respondent's paternity of Malachii, were received on October 17, 2013. They were forwarded by Silvia, in accordance with usual procedure, to the Family Court. The respondent made no attempt to have contact with his son while the test was pending. At trial, respondent maintained that he never received the results of the paternity test but stated that he did not contest the paternity of Malachii; rather, he wanted to "establish [his] rights in order to give [Malachii] a place to go, to be with [his] family." The respondent also wrote directly to Silvia on November 11, 2013, more than a year after his first letter to the Family Court. Despite knowing about DCYF's involvement with his son, respondent claimed that he had only recently become aware that Malachii was no longer living with his mother. The respondent asked that Malachii be placed with respondent's parents, who reside in Massachusetts. Silvia testified that she met briefly with respondent's mother and his brother, but Malachii already was residing in a preadoptive home and his mother had consented to an open adoption by the foster parents.

         The Family Court justice issued a written decision on January 5, 2015, and ordered the termination of respondent's parental rights to Malachii. The Family Court justice summarized the testimony of Silvia and respondent and took judicial notice of the no-contact order issued in Rhode Island. She began by addressing respondent's procedural arguments relating to service of process and his arraignment, rejecting both. Specifically, the Family Court justice was satisfied after reviewing the summons, hearing the testimony, as well as noting counsel's presence at trial and his invoice for services rendered, that respondent had notice of the termination petition and was adequately represented by counsel.

         Turning to the merits of the petition, the Family Court justice found that respondent had been incarcerated continuously from March 2012 for inflicting physical abuse on his child. She explicitly acknowledged that incarceration alone is not grounds for termination of parental rights; however, she concluded that, here, respondent's incarceration was a "direct result of inflicting physical abuse on the child." The Family Court justice found that, despite the no-contact orders, respondent did not make any attempt to seek visitation, case plan, or enroll in any services offered at the correctional facility where he was housed. These findings, coupled with the length of incarceration and the fact that respondent had not seen his son in more than two years, led the Family Court justice to conclude that respondent would be unable to care for Malachii for an extended period of time. In discussing DCYF's reasonable efforts, the Family Court justice recognized that Silvia faced multiple hurdles due to respondent's out-of-state incarceration and the no-contact orders, concluding that "DCYF made what reasonable efforts it could make based on the situation [respondent] put himself in."

         Alternatively, the Family Court justice found that respondent's parental rights could be terminated on the basis that he abandoned Malachii, declaring that the uncontradicted evidence-as well as respondent's own admission-demonstrated that respondent had had no contact with his son since March 2012. She also recognized that respondent provided no financial or emotional support for Malachii.

         A decree terminating respondent's parental rights to Malachii was entered in the Family Court on February 5, 2015. A timely appeal was filed in this Court on February 23, 2015.

         Standard of Review

         "On appeal, '[t]his Court reviews termination of parental rights rulings by examining the record to establish whether the [Family Court] justice's findings are supported by legal and competent evidence.'" In re Amiah P., 54 A.3d 446, 451 (R.I. 2012) (quoting In re Victoria L., 950 A.2d 1168, 1174 (R.I. 2008)). "These findings are entitled to great weight, and this Court will not disturb them unless they 'are clearly wrong or the [Family Court] justice overlooked or misconceived material evidence.'" Id. (quoting In re Victoria L., 950 A.2d at 1174).

         "Natural parents have a fundamental liberty interest in the 'care, custody, and management' of their children." In re Amiah P., 54 A.3d at 451 (quoting In re Destiny D., 922 A.2d 168, 172 (R.I. 2007)). "Before terminating a parent's rights to his or her child, the [Family Court] justice must find that the parent is unfit." Id. (citing In re Pricillion R., 971 A.2d 599, 604 (R.I. 2009)). "In these cases, the right to due process requires that the state support its allegations by clear and convincing evidence." Id. (citing In re Jazlyn P., 31 A.3d 1273, 1279 (R.I. 2011)). "However, once the [Family Court] justice determines parental unfitness, 'the best interests of the child outweigh all other considerations.'" Id. (quoting In re Jazlyn P., 31 A.3d at 1279).


         Before this Court, respondent presents a plethora of arguments, many of which are without merit and can be summarily addressed. The respondent claims that many of the Family Court justice's factual findings were clearly erroneous. For instance, he points to the finding that the paternity testing was requested because respondent contested paternity; respondent professes that he requested paternity to establish his rights. It is, however, undisputed that this incarcerated parent requested a paternity test to verify the one fact that a paternity test discloses-whether he is the child's father. The respondent also maintains that he never received these results; however, Silvia testified that she forwarded the results to the Family Court, and the record discloses that respondent wrote to Silvia less than a month later asking that the child be placed with his family. Regardless, respondent's receipt of the results is immaterial to the Family Court justice's findings.

         Additionally, respondent claims that a certified copy of his conviction was not produced at trial. We are satisfied that this circumstance is not material because neither ground for termination required proof of conviction, and the conviction was corroborated by Silvia's and respondent's testimony. See §§ 15-7-7(a)(2)(i); 15-7-7(a)(4). The respondent also posits that the return of service was neither stamped nor notarized and that he was not arraigned on the petition. However, a careful review of the record reveals that respondent was never found in default; that he was represented by counsel throughout the pendency of the termination petition; and that he was afforded an opportunity to participate at the trial telephonically. See In re Jonathan P., 819 A.2d 198, 201 (R.I. 2003) ("[A]n incarcerated parent defending against a petition for termination of parental rights need only be afforded reasonable participation in that hearing."). We are satisfied that these arguments are immaterial to the outcome of the case.

         Of the issues meriting further analysis, respondent argues that the Family Court justice erroneously found that he was unable to care for his son for an extended period of time due to his imprisonment and, alternatively, that he abandoned Malachii. Specifically, respondent claims that he was not advised about Malachii's status and that his incarceration and the no-contact orders prevented him from providing support to the child. With respect to his incarceration as a ground for termination, respondent contends that DCYF failed to establish that it made reasonable efforts to strengthen the parental relationship between respondent and Malachii, as required by § 15-7-7(b)(1). Because we are of the opinion that the Family Court justice ...

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