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In re Adrina T.

Supreme Court of Rhode Island

June 22, 2017

In re Adrina T.

         Providence County Family Court (P14-11-1) Associate Justice Karen Lynch Bernard

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

          For Respondent: Diana deGroof, Esq.

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

          OPINION

          William P. Robinson III Associate Justice

         The respondent mother, Briana Hebert, appeals from a decree of the Family Court finding: (1) that Ms. Hebert failed to provide her daughter, Adrina T., "with a minimum degree of care, supervision, or guardianship[;]" (2) that Adrina was "without proper parental care and supervision[;]" (3) that Ms. Hebert "inflicted or allowed to be inflicted upon [Adrina], physical injury[;]" and (4) that Ms. Hebert "created or allowed to be created a substantial risk of physical injury to [Adrina]." This case came before the Supreme Court for oral argument on January 25, 2017, 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 a close review of the record and careful consideration of the parties' arguments (both written and oral), we are satisfied that cause has not been shown and that this appeal may be decided at this time.

         For the reasons set forth in this opinion, we vacate the decree of the Family Court as it pertains to Briana Hebert.

         I

         Facts and Travel

         On January 2, 2014, the Department of Children, Youth and Families (DCYF) filed a petition in Family Court, alleging that Ms. Hebert and William Tirocchi[1] "neglected" and "abused"[2] their daughter, Adrina (who was born on September 22, 2013). In that petition, DCYF specifically alleged the following: (1) "That the parents * * * failed to provide [Adrina] with a minimum degree of care, supervision, or guardianship[;]" (2) "That [Adrina] [wa]s without proper parental care and supervision[;]" (3) "That the parents * * * inflicted or allowed to be inflicted upon [Adrina], physical injury[;]" and (4) "That the parents * * * created or allowed to be created a substantial risk of physical injury to [Adrina]."

         A trial on the above-summarized petition was held before a justice of the Family Court on various dates from June to September of 2014. We relate below the salient aspects of what transpired at that trial.

         A

         The Testimony at Trial

         1. The Testimony of Briana Hebert

         Ms. Hebert, Adrina's mother, took the stand in her own defense. She testified that she had been in a relationship with her boyfriend, Mr. Tirocchi, for more than seven years; and she said that, as of the time of trial, she was employed as a school bus driver.

         Ms. Hebert proceeded to testify that, in the early afternoon of December 31, 2013, she was at her apartment with "Mr. Tirocchi, [her] niece, and the baby, Adrina, " whom she described as then being "over three months [old]." She stated that her niece left the apartment by 1:00 p.m. and that, at approximately 4:40 p.m., she left Mr. Tirocchi in the apartment with Adrina so that she might go to "the liquor store and then the grocery store." (She added that the former was a three-minute drive from her apartment, while the latter was right across the street.) She further testified that, between approximately 4:45 and 4:50 p.m., as "[she] was walking in the front door" of the grocery store, "Mr. Tirocchi had called [her] and told [her] that the baby had fallen off the bed and she was crying and she was most likely hurt." Ms. Hebert stated that she "stayed on the phone with Mr. Tirocchi" and "returned home" by car within two or three minutes. On cross-examination, she acknowledged that, by the time she entered her car upon leaving the grocery store, she knew that 911 had already been called concerning Adrina.

         Upon being questioned about what happened when she arrived back at her apartment, Ms. Hebert stated: "Mr. Tirocchi was in the bedroom with the baby, and [Adrina] was l[]ying on the bed crying hysterically." Ms. Hebert also added the following:

"I could tell that [Adrina] was in pain. She was crying like I had never heard her cry before. And I didn't want to touch her or anything because I didn't know if me touching her was going to cause anymore injury to her.
"* * *
"And I could actually hear the sirens, so I knew that the emergency services were on their way."

         Ms. Hebert testified that, within approximately a minute after she heard the sirens, the emergency services arrived and took Adrina to the emergency room. She added that she "went in the rescue and Mr. Tirocchi followed in [her] vehicle" to Hasbro Children's Hospital.

         According to Ms. Hebert, after arriving at Hasbro Children's Hospital, she and Mr. Tirocchi and the doctors "went into an exam room" with Adrina, who was crying at the time. She stated that she had "never heard [Adrina] cry like that before, " so she "knew something was wrong with her." She testified that the baby was X-rayed and was given pain medication, after which the emergency room doctor told her and Mr. Tirocchi that Adrina would be staying overnight for observation. Ms. Hebert added that she and Mr. Tirocchi stayed overnight with Adrina. She further testified that, the following morning (January 1, 2014), she spoke with Dr. Adebimpe Adewusi (see Part I.A.4, infra) about "the history of [her] * * * relationship with Mr. Tirocchi, about the baby, her normal activity and routine and what had happened the day before." Ms. Hebert stated that she explained to Dr. Adewusi that "the baby was very active, " that she "move[d] around a lot, " and that she once "rolled over from back to [belly]."[3]

         It was Ms. Hebert's testimony that, at around 3:00 p.m. on January 1, she spoke with Megan Dunn, a Child Protective Investigator for DCYF. She stated that she explained to Ms. Dunn "what had happened the day before." Ms. Hebert testified that, at around 6:00 p.m. on that same day, officers of the Johnson Police Department came to her apartment and had her accompany them to the station for questioning. She stated that she cooperated with the police because she "felt like" there was "nothing to hide."

         During her testimony on direct examination, Ms. Hebert was asked about Mr. Tirocchi; and she said that they had "a very good relationship" and were "really good friends." In addition, Ms. Hebert testified that she had previously left Adrina in the sole care of Mr. Tirocchi "at least, between five and ten times, " for periods ranging from two to three hours. She indicated that she had absolutely no concerns about his care of Adrina. When asked if she felt comfortable leaving Adrina with Mr. Tirocchi on the day of the incident, Ms. Hebert responded in the affirmative because she had "seen" how he interacted with the baby for three months. She added that she "found nothing" indicating that Mr. Tirocchi was ever a "threat" to Adrina.

         On cross-examination, Ms. Hebert acknowledged that, prior to trial, she had not previously told Dr. Adewusi or Ms. Dunn that she had gone to a liquor store on the day of the incident; however, she pointed out that she had told them that she had been "going on errands, " explaining that, "at the time [she] was called [by Mr. Tirocchi, ]" she had been at the grocery store. She further testified that she had received a receipt from the liquor store that contained a timestamp indicating her presence there at around 4:45 p.m.; she added that her phone bill would reflect that she had received a call at 4:50 p.m.

         2. The Testimony of William Tirocchi

         Mr. Tirocchi, Adrina's father, testified on his own behalf. He testified that, as of the time of trial, he had been employed as a school bus driver for more than two years.

         Mr. Tirocchi proceeded to testify that, on December 31, 2013, at approximately 2:00 p.m., Adrina was placed in her crib to sleep and that, thereafter, he and Ms. Hebert "were just lounging around the house." He stated that, at "[a]round 4:40-ish, " Ms. Hebert left to do some errands[4] "while the baby was sleeping." Mr. Tirocchi testified that, several minutes after Ms. Hebert had left, he heard Adrina "start to fuss in the crib, " which indicated to him that she was "waking up." He stated that he "picked [Adrina] up, " "placed her on the changing table, " and "changed her diaper." ...


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