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In re Roman A.

Supreme Court of Rhode Island

November 18, 2019

In re Roman A.

          Providence County Family Court 14-897-1 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: Megan F. Jackson Office of the Public Defender.

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

          OPINION

          FRANCIS X. FLAHERTY, ASSOCIATE JUSTICE.

         This termination of parental rights case came before this Court for oral argument more than five years after the Department of Children, Youth, and Families (DCYF or the Department) first petitioned to remove the child, Roman A., from his mother, the respondent. On appeal, the non-Indian mother of an Indian child, who was born suffering from severe medical issues, asserts that the Family Court erred when it terminated her parental rights contrary to the provisions of the Indian Child Welfare Act (ICWA or the Act).[1] We disagree and affirm the decree of the Family Court.

         I

         Facts and Travel

         Roman A. was born to the respondent, Carla Alvarenga (Mother), and Nicolas Noka, who is a member of the Narragansett Indian Tribe of Rhode Island, in February 2014.[2] Unfortunately, Roman required immediate treatment for complex congenital heart disease and the infant was hospitalized for nearly all of the first six months of his young life, either in Rhode Island or Massachusetts. Roman was diagnosed with Double Inlet Left Ventricle and Ventricle Septal Defect, colloquially known as being born with "half of a heart." In effect, Roman's heart was unable to properly deliver blood to his lungs.

         Roman was required to undergo several medical procedures during the early days and months of his life, some of them very serious and life-threatening. In March 2014, Roman was transported to Boston for a cardiac catheterization, a less invasive means of achieving open-heart surgery whereby wires are inserted through the groin for the purpose of taking pictures of the heart. In May 2014, Roman underwent a second cardiac catheterization. The next month, Roman underwent open-heart surgery. In July, because Roman was having difficulty feeding, a gastrostomy tube, or G-tube, was inserted so that food could be delivered directly to his stomach.

         Unfortunately, the heart condition was not the only obstacle the child faced. DCYF had received reports on its hotline from both Hasbro Children's Hospital and Boston Children's Hospital about Roman's family and, in August 2014, a practitioner at Boston Children's Hospital filed a Report of Examination with DCYF. Shortly thereafter, DCYF filed a petition in the Family Court alleging neglect on the part of both Mother and Mr. Noka, and the child was removed from his mother's care via an ex parte order of the court. By the end of August 2014, Roman was discharged from the hospital to a foster home.[3]

         DCYF created its first of several case plans in October 2014. It is clear from a review of those case plans that reunifying Roman with Mother remained a goal for an extensive period of time. By August 2015, however, DCYF filed a petition to terminate Mother's parental rights, alleging that Roman had been placed in DCYF's custody or care for at least twelve months, that "the parents were offered or received services to correct the situation which led to the child being placed," and that "there is not a substantial probability that the child will be able to return safely to the parents' care within a reasonable period of time considering that child's age and the need for a permanent home."[4]

         In March 2016, the Family Court was prepared to hold a hearing and take evidence on the initial neglect petition that had been filed by DCYF almost two years earlier, and then proceed, if necessary, to hear DCYF's termination petition with respect to Mother. However, after a conference, the initial petition was amended to add a claim of dependency and the trial justice explained that she was providing Mother with what she termed "an opportunity" for three additional months to become compliant with DCYF case planning. Mother admitted dependency and was ordered to comply. However, when the three-month period provided by the trial justice came to an end, DCYF sought to terminate Mother's parental rights, alleging that Mother, despite the benefit of additional time, had failed to cooperate and comply. Trial commenced in September 2016, and continued over diverse dates until November of that year.

         After the trial concluded, the trial justice issued an exhaustive, sixty-two-page written decision in which she summarized the testimony of all witnesses and made fifty-three findings of fact. The testimony particularly relevant to our review includes, among others, a pediatric cardiologist, a social worker, and the director of a department in the Narragansett Tribe. We recount the most relevant testimony as follows.

         Dr. Kristin Lombardi

         Kristin Lombardi, M.D., is a pediatric cardiologist who was Roman's treating physician at Women & Infants Hospital and Hasbro Children's Hospital. At the time of trial, Dr. Lombardi had been treating Roman since his birth. She testified as an expert in pediatric cardiology for DCYF, opining that Roman will require significant cardiac care throughout his life and that he is likely to experience neurodevelopmental and cognitive limitations. She also testified that any person who is Roman's caretaker would need to be able to recognize a number of factors to properly care for him, including recognizing changes in his color and his activity level. Doctor Lombardi testified that, despite multiple and lengthy conversations with Mother, Mother "did not have a good grasp on the severity of [Roman's] heart disease[, ]" and the doctor expressed concerns about whether Mother could provide the level of care that Roman required.

         Lena Sousa

         Lena Sousa, a DCYF social worker who had been assigned to Roman's case in August 2014 and who remained the social worker on the case throughout its entirety, also testified on behalf of DCYF. She testified that she discussed the concerns of Boston Children's Hospital with Mother that Mother had been unavailable for appointments, procedures, and phone calls and that Mother had failed to comply with the care plan that the hospital had developed. Ms. Sousa also testified about the case plans that DCYF had developed. She said that, in September 2014, she had met with Mother and had explained that a case plan involves services DCYF would request Mother to complete so that the Department could evaluate the prospects for reunification. However, she testified, Mother said that she was not interested in participating in services because she was busy. Ms. Sousa also explained to Mother that DCYF would look to a different goal if Roman remained in DCYF's care for an extended period of time. In spite of Mother's insistence that she was too busy to participate, the first case plan created by Ms. Sousa nonetheless retained the goal of reunifying Roman with Mother. The case plan included several areas in which Mother needed to make changes or improvements in order to be reunified with Roman, including addressing domestic violence, parenting, mental health, and meeting the medical needs of Roman. Mother was required to engage in a parent/child evaluation, demonstrate that she could meet Roman's needs during visits, make use of parenting and mental health services, attend medical appointments, and act upon doctors' recommendations, including those involving Roman's medications.

         Regarding domestic violence, an issue that was included in the case plans as a result of an alleged incident that involved Roman's father at Hasbro Children's Hospital, Ms. Sousa testified that she either made referrals or provided mother with the names of multiple resources. Addressing domestic violence remained in the case plans throughout the case's entirety, because that issue was never addressed by Mother. Anger management also became a part of the case plans following Mother's arrest as the result of a road-rage incident. Ms. Sousa testified that she was forced to send the same list of anger management providers to Mother about eight times in a single week because Mother repeatedly requested the information. Ms. Sousa testified that she was unaware as to whether Mother partook of any anger management services.

         With respect to engaging in a parent/child evaluation, Ms. Sousa testified that she referred Mother to John Parsons, Ph.D., a clinical psychologist, but Mother never participated in an evaluation with him. At one point, Mother told Ms. Sousa "something to the effect that * * * she didn't need anyone to tell her she was a good mother and/or label her as mental[.]" When it became clear that the evaluation with Dr. Parsons would not be accomplished, Ms. Sousa made a referral to Brian Hayden, Ph.D., also a clinical psychologist. Mother was willing to comply with Dr. Hayden, according to Ms. Sousa, but after Dr. Hayden conducted the psychological evaluation of Mother, she refused to return to Dr. Hayden for the parent/child portion of the evaluation because, according to Ms. Sousa, Mother did not like Dr. Hayden's evaluation. Mother did not participate in the parent/child piece of the evaluation until June 2016, nearly two years after the case initially was opened, and did so only after the trial justice ordered her to comply. Ms. Sousa made the referral, to Spurwink Rhode Island, for that completed evaluation.

         Ms. Sousa testified that making use of parenting and mental health services had been included in the initial case plan because of reports that Mother blamed hospital and hospital staff and believed that they were targeting her, and also because of conversations Ms. Sousa had with Mother. Ms. Sousa also testified that she provided Mother with the names of multiple service providers that could address Mother's mental health issues. She said that Mother told her that she was willing to go to the Providence Center, and so Ms. Sousa made a call to set up an appointment there on Mother's behalf. When Ms. Sousa called, however, she was told that Mother was required to set up the appointment herself. Mother later informed Ms. Sousa that she had attempted to set up an appointment herself, but that she was unable to do so because there was a waiting list. Ms. Sousa followed up with the agency to inquire about the waiting period, however, and the agency informed Ms. Sousa that there was, in fact, no waiting list. Ms. Sousa testified that she continued to remind Mother that receiving mental health services was a part of the plan. To Ms. Sousa's knowledge, the required mental health services in the final plan were never successfully completed.

         Ms. Sousa also testified that she would, either by phone or email, inform Mother about Roman's medical appointments. On one occasion, however, Mother refused to provide her new phone number to Ms. Sousa, while at the same time insisting that she did not receive her emails. Ms. Sousa also testified that Mother admitted to attending only two of Roman's medical appointments over the seven-month period that spanned from September 2014 to March 2015, even though Roman had approximately three appointments per week. Ms. Sousa testified that on one occasion Mother told her she did not understand how attending appointments would prove that she was capable of caring for Roman. Ms. Sousa testified that attending medical appointments was a part of each case plan DCYF had created, until the termination petition was filed and reunification was no longer the goal, and that, over the entirety of the case, Mother failed to consistently attend medical appointments.

         Ms. Sousa also explained that, in September 2014, Mother refused to allow Roman to receive certain injections that the cardiologist had recommended because of Roman's weakened immune system, and also that Mother did not want Roman to receive a flu shot. Ms. Sousa also testified that Mother was not making progress in the area of following doctors' recommendations at the time the second case plan was created. Ms. Sousa testified that Roman's medical needs were a continuous aspect of the case plan.

         Ms. Sousa further recounted several troubling occurrences that she learned took place while Mother was with Roman. At one visit, at a time when Roman had a G-tube inserted, Mother attempted to give Roman either apple juice or milk. When it was explained to Mother why this was inappropriate because of the G-Tube, Mother expressed that she had not followed doctors' instructions in the past. Ms. Sousa also testified to another occasion during which the gastroenterologist felt compelled to inform Mother that it was inappropriate for her to give candy to Roman. On another occasion, Ms. Sousa had to review Roman's approved snack list with Mother after she fed a doughnut to Roman, which was not an approved snack. Ms. Sousa further testified that, following a doctor's visit in February 2015, Mother expressed to Ms. Sousa that Roman was getting sick as a result of his then-foster mother kissing him, and Mother requested that the foster mother neither kiss nor hug Roman.

         Ms. Sousa related that, to her knowledge, since March 2016, when the court gave Mother an additional three months to take advantage of the services and comply with DCYF case planning, Mother had failed to complete any of the required services. She also testified that Roman had been in the same foster home for about sixteen or seventeen months, that Roman was comfortable with his foster parents, "wants to be around them all the time[, ]" and that the foster home was preadoptive in nature.

         Sarah Dodd

         Further germane to this review is the testimony of Sarah Dodd, a family support specialist in the family visitation program at Boys Town New England. Ms. Dodd testified that her job at Boys Town involves monitoring court-mandated visitations and teaching a class called "Common Sense Parenting," which attempts to develop positive parenting skills. Ms. Dodd was assigned to work with Mother in November 2015, and she did so until March 2016. During that period, Ms. Dodd testified, she had approximately sixteen or seventeen visits with Mother. In the program, Mother was permitted to visit with Roman once per week under the supervision of Ms. Dodd and had permission to attend Roman's medical appointments. Ms. Dodd also interacted with Mother through the Common Sense Parenting class.

         Although Ms. Dodd said that Mother completed the Common Sense Parenting class, she also testified that Mother struggled to arrive at visitation appointments on time, missed at least one appointment, and would not be prepared for appointments, such as failing to provide a snack for Roman. Ms. Dodd also testified that Mother had expressed to her that she did ...


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