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In re Joziah B.

Supreme Court of Rhode Island

May 17, 2019

In re Joziah B.

          Providence County Family Court, 08-520-1, Laureen A. D'Ambra Associate Justice.

          For Petitioner: Karen A. Clark Department of Children Youth and Families, Susan M. Fink, Esq. Guardian Ad Litem.

          For Respondent: Heather Bessette, Pro Se.

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

          OPINION

          Francis X. Flaherty Associate Justice.

         The respondent, Heather B., appeals from a decree entered in the Family Court that terminated her parental rights with respect to her son, Joziah B., who was born on March 1, 2008.[1] This case came before the Supreme Court on February 27, 2019, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After reviewing the parties' memoranda, we are satisfied that cause has not been shown, and we proceed to decide the appeal at this time without further briefing or argument. For the reasons set forth in this opinion, we vacate the decree of the Family Court.

         I

         Facts and Travel

         On April 30, 2015, over four years ago, the Rhode Island Department of Children, Youth, and Families (DCYF) filed a petition in Family Court, pursuant to G.L. 1956 § 15-7-7, [2] to terminate respondent's parental rights with respect to Joziah.[3] The petition listed respondent's address as "unknown." In its petition, DCYF alleged that Joziah had been placed in the legal custody or care of the agency for at least twelve months. The petition further alleged that respondent had been "offered or received services to correct the situation which led to the child being placed," and that, because of Joziah's age and his need for a permanent home, there was not a substantial probability that the young boy would be able to return safely to respondent's care within a reasonable period of time. On September 5, 2017, the petition was amended to include an allegation that respondent had abandoned Joziah.

         To support its petition, DCYF filed a summary of facts in which it alleged that, on September 11, 2013, the department's child abuse neglect hotline had received a telephone call reporting that Joziah had been left with his maternal aunt with neither clothes nor money to provide for his care. The DCYF further alleged that respondent was homeless, was using, presumedly, illegal drugs, and that Joziah had been present at a time that his mother was actively engaging in acts of prostitution. Additionally, according to the summary of facts filed by the department, respondent's family was very concerned because respondent "was sending her pimp to pick up [Joziah]." After a departmental investigation, Joziah was placed in a nonrelative foster home because of respondent's neglect.[4] The summary of facts also asserted that numerous case plans had been provided for respondent and Joziah to address DCYF's concerns, but that respondent had failed to complete her treatment and had not adequately cooperated with DCYF. For instance, it was alleged that respondent had been discharged from a family visitation program as a result of her "ongoing use of heroin, cocaine, 'other opiates,' alcohol and marijuana," and that she had been diagnosed with "Opioid type dependence, episodic use, Major Depressive Disorder, recurrent episode, moderate degree, Cannabis Dependence, mood Disorder, NOS and PTSD." The caseworker who drafted the summary of facts also represented that the last contact she had had with respondent occurred on March 23, 2015, and that the last time respondent had contact with Joziah was during a supervised visit that took place on February 27, 2015.[5]

         The summary of facts also revealed that Joziah had endured trauma throughout his life, including being sexually abused by babysitters, witnessing domestic violence, his mother performing acts of prostitution, and even being kidnapped for ransom by respondent's pimp. According to DCYF, at the time of the filing of the petition for termination of parental rights, Joziah was in his fourth nonrelative foster home, had "engaged in incidents of inappropriate sexualized behavior with other foster children and his sister and struggles with symptoms of Post Traumatic Stress Disorder, anxiety and Attention Deficit hyper Activity Disorder."

         In May 2015, an arraignment was held in Family Court, and respondent was referred to the public defender's office; a public defender entered his appearance on respondent's behalf later that month. Although a trial was planned, respondent consented to Joziah being adopted in November 2015. Later that month, however, respondent filed an emergency motion to withdraw her consent for the adoption. That motion was scheduled to be heard on January 5, 2016; however, the record reflects that respondent failed to appear at that hearing and the motion was passed. On that same day, the public defender who had been representing respondent was permitted to withdraw from the case.

         Over a year and a half later, in September 2017, the Family Court ordered that an advertisement be placed in a local newspaper, notifying respondent that a hearing on the petition to terminate her parental rights would be held on October 3, 2017. That advertisement was placed in The Providence Journal on September 22, 2017, and provided that respondent's parental rights would be terminated if she failed to appear.

         The respondent was not present at the October 3, 2017 hearing. The court went forward with the hearing, despite respondent's absence, and received testimony from Denise Zolnierz, the DCYF casework supervisor for Joziah's case. Ms. Zolnierz testified that, on September 11, 2013, more than four years earlier, DCYF had received a call that respondent had left Joziah with her sister so that respondent could be available to engage in prostitution in Connecticut, and that her sister was concerned for the welfare of the child. Ms. Zolnierz testified that DCYF developed case plans for respondent that included mental health counseling, substance abuse treatment, nonoffending parenting, and visitation. According to Ms. Zolnierz, the department made referrals for respondent to accomplish the goals of those case plans, but, besides participating in some of the trauma treatment for Joziah, respondent failed to complete her substance abuse and mental health treatments. Ms. Zolnierz further testified that she did not know where respondent was, that she believed respondent had not visited with Joziah for the past year, and that she thought respondent's last contact with Joziah "was around the time she signed off on direct consent adoption to the foster parent." She also believed that respondent had a criminal history and "ha[d] been in and out of the [Adult Correctional Institutions] for various crimes." Ms. Zolnierz testified that, shortly after respondent consented to Joziah being adopted, the child was hospitalized for mental health and trauma care, and that his foster mother "could not adopt him based on his behaviors." According to ...


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