In re James H.

April 9, 2018

Supreme Court
No. 2016-295-Appeal.
(00-1831-5)
(00-1831-6)
(00-1831-7)

In re James H. et al. :

NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
 Supreme Court
No. 2016-295-Appeal.
(00-1831-5)
(00-1831-6)
(00-1831-7)

In re James H. et al. :

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

OPINION

Justice Robinson, for the Court. The respondent mother, Crystal M.,1 appeals from a

decree of the Family Court terminating her parental rights with respect to her three children, James

H., Dalicia W., and Dalilah W. This case came before the Supreme Court for oral argument on

December 6, 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 below, we affirm the decree of the Family Court.

I

Facts and Travel

On October 30, 2015, the Department of Children, Youth and Families (DCYF) filed

petitions to terminate Crystal’s parental rights2 as to three of her minor children: James, Dalicia,

1
In this opinion, we shall refer to respondent by her first name; in so doing, we intend no
disrespect.
2
The parental rights of the fathers of the children were terminated by the Family Court on
July 26, 2016, and no appeal was taken therefrom.
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and Dalilah.3 Citing G.L. 1956 § 15-7-7(a)(3), those petitions alleged that all three children had

been in the legal custody of DCYF for at least twelve months without a substantial probability that

the children would be able to return safely to Crystal’s care within a reasonable period of time,

considering the children’s ages and their needs for permanent homes.

Trial commenced in the Family Court on June 1, 2016 and continued over four days,

during which time the trial justice heard testimony from eight witnesses. We summarize below the

salient aspects of the testimony that was adduced at that trial.

A

The Witnesses Presented by DCYF

1. Diane Crabtree

Diane Crabtree, a social caseworker for DCYF, testified that case files as to Dalicia and

Dalilah, who are twins, were opened on March 27, 2013 because both girls had tested positive for

cocaine at birth.4 She further testified that she was assigned to the cases of James, Dalicia, and

Dalilah from April of 2013 until August of 2014. Ms. Crabtree stated that she developed two case

plans during said period, which case plans had recommended that Crystal complete the following

services in order to reunify with her children: substance abuse counseling, mental health

counseling, family counseling, family visitation, parenting education, a psychological evaluation

with Dr. John Parsons, and a neuropsychological evaluation with Dr. Steven Hirsch.

3
The legal status of Crystal vis-à-vis her other minor child (Eleanor S.) is not at issue in this
case. Reference is made to Eleanor in this opinion only to the extent necessary to provide context
for the issues properly before this Court.
4
The case file as to James was opened on April 3, 2013, the date on which the child
protective investigator submitted a petition to the Family Court seeking to remove James from
Crystal’s care based on allegations of neglect. The child protective investigator’s report as to
James, as well as the physician’s reports finding that Dalicia and Dalilah had tested positive for
cocaine at birth, were admitted as full exhibits at trial.
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 According to Ms. Crabtree, Crystal was cooperative with some services but uncooperative

with others. She stated, for example, that Crystal successfully completed the psychological

evaluation with Dr. Parsons in December of 2013 and completed the substance abuse counseling

program through MAP Behavioral Health Services in May of 2014. However, she added that

Crystal pursued the MAP program only after she had been discharged for noncompliance from an

earlier substance abuse program, known as the “Project Link” program; and she stated that Crystal

had tested positive for cocaine during her enrollment in the MAP program. Additionally, Ms.

Crabtree stated that, although Crystal had participated in the Families Together parenting

education program, she had been terminated from that program in March of 2014 due to a

clinician’s conclusion that she had demonstrated “little motivation to change her behaviors” and

that, therefore, reunification would “put the children at risk.”

Ms. Crabtree also testified that Crystal had failed to comply with the schedules for family

visitation by virtue of her absence from eight of twenty-four scheduled visits, by her arriving late

at other visits, and by her refusing to provide DCYF with her work schedule. She added that

Crystal had uttered “profanities” towards DCYF employees during the visits; she also stated that

Crystal had been visibly intoxicated during one of the visits and, therefore, was asked to leave.

Ms. Crabtree did acknowledge, however, that, towards the end of her involvement with Crystal,

she saw some improvement in Crystal’s attendance at the visits and in her behavior towards

DCYF employees.

2. Rosemary Masterson

Rosemary Masterson testified that she was the DCYF social worker who became

responsible for Crystal’s case after the departure of Ms. Crabtree. She stated that, when she

assumed responsibility for the case in August of 2014, Crystal had completed evaluations with Dr.

Parsons and Dr. Hirsch, but had not yet followed through with their recommendations or

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completed the other services outlined in the case plans, such as substance abuse counseling and

mental health counseling. Ms. Masterson stated that Crystal “just would not cooperate” with the

objectives of the case plans, expressing the belief that “she had done everything she needed to do

and no longer wished to do anymore [sic] services.” She testified that Crystal had not been

receptive to recommendations for mental health treatment because “[Crystal] didn’t feel she

needed counseling.” She also stated that, in July of 2015, Crystal had been terminated from a

second parenting education program, “the HER program,” due to her “lack of progress with

reunification” and her consistent failure to attend her appointments.

Ms. Masterson testified that Crystal missed twenty-seven of sixty-four scheduled visits

with her children between August of 2014 and October of 2015 and that Crystal stopped attending

visits altogether as of August of 2015. She further testified that Crystal’s behavior towards her

children during those visits was “not appropriate,” specifically noting that Crystal would focus her

attention exclusively on the twins while “purposely ignoring” James. She added that, at Crystal’s

last visit, on August 17, 2015, she had departed without speaking to the children, thereby causing

the children to become “very upset.” Ms. Masterson stated that, as a result of the latter incident,

she filed a motion to suspend visitation, which motion was granted by the Family Court on

October 26, 2015.

3. Doctor John Parsons

The next witness was Dr. Parsons, who was qualified as an expert in forensic psychology

as well as child and family psychology. He testified that, in October of 2013, Crystal was referred

to him by Ms. Crabtree for a psychological evaluation; he stated that Ms. Crabtree was concerned

about Crystal’s parenting ability, her history of smoking marijuana during pregnancy, her cocaine

use during pregnancy, and her history of DCYF involvement. He testified that his evaluation of

Crystal occurred over a series of appointments and concluded on December 16, 2013.

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 Doctor Parsons testified that he made the following diagnoses with respect to Crystal:

“cannabis abuse in early/full remission;” “cocaine dependency in early/partial remission;” bipolar

disorder; borderline intellectual functioning; and a “personality disorder with borderline

narcissistic and personality disorder features.” Based on his diagnoses and observations, Dr.

Parsons testified that he had reached the opinion that reunification would be “high risk” and would

be harmful to the children. His report recommended that Crystal should be given three months to

deal with chronic mental health and substance abuse issues and to receive therapy to address both

her “non-productive relationships with people” and her lack of “protective capacity” towards the

children. His report further recommended that Crystal receive “a psychiatric evaluation * * * to

assess the need for psychotropic medications.” Doctor Parsons testified that he had recommended

that the Family Court should terminate Crystal’s parental rights or give her the option of an open

adoption if she was unable to comply with his recommendations within the three-month timeline.

Doctor Parsons having recommended that Crystal undergo a second psychological evaluation,

DCYF identified Dr. Hirsch as the clinician who would conduct that evaluation.

4. Doctor Steven Hirsch

Doctor Hirsch, who was qualified as an expert in psychology and clinical

neuropsychology, testified that he evaluated Crystal in May of 2014 pursuant to a referral from

DCYF and that the focus of his evaluation was to assess Crystal’s “mental health functioning, as

well as her cognitive and neuropsychological functioning;” he added that his evaluation had not

included an assessment of Crystal’s parenting abilities. When counsel for DCYF moved to admit

into evidence Dr. Hirsch’s report, which summarized his findings and recommendations, Crystal’s

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standby counsel5 objected, arguing that the report was not court-ordered and that, therefore, there

was no foundation for the report to come into evidence. Although the trial justice initially

sustained the objection, she ultimately admitted the report as a full exhibit, finding that Dr.

Hirsch’s evaluation and report were, in actuality, court-ordered because they were conducted in

accordance with Dr. Parsons’s recommendations, which were court-ordered.

Doctor Hirsch testified that he made the following diagnoses as to Crystal: cocaine abuse;

daily cannabis use; post-traumatic stress disorder resulting from events in her childhood; a

personality disorder; borderline intellectual functioning; and cognitive memory problems. He

further testified that he had made two recommendations for further treatment: (1) that Crystal

participate in outpatient counseling to address her “coping skills” and “substance abuse issues;”

and (2) that Crystal engage in a “medication consultation” to determine whether psychotropic

medications would help to treat her “post-traumatic stress disorder, anxiety and depression * * *.”

5. Respondent

Crystal was the last witness to testify during DCYF’s case, having been called as an

adverse witness. She acknowledged that the twins had been removed from her care at birth

because they had tested positive for cocaine, and she admitted that DCYF had previously

indicated6 her for neglect when her older daughter, Eleanor, had tested positive for marijuana at

birth. Counsel for DCYF then asked Crystal whether she had had a second interaction with DCYF

concerning Eleanor, and the following colloquy occurred:

5
Prior to the start of trial, Crystal’s appointed counsel was permitted to withdraw from the
case due to “a breakdown in [attorney-client] communication;” Crystal thereafter elected to
proceed pro se. Nonetheless, she was afforded the assistance of standby counsel at trial.
6
“Child Protective Investigators ‘indicate’ a case if, upon completion of an investigation, a
preponderance of the evidence demonstrates to them that a child has been abused or neglected.” In
re Brooklyn M., 933 A.2d 1113, 1115 n.1 (R.I. 2007).

-6-
 “Q. So in 2007, you were indicated for lack of supervision as to
Eleanor again, correct?
“A. No, I never seen DCYF for Eleanor twice. It was one time.
“Q. Didn’t the Providence Police go to your home and you were
arrested?
“A. Oh, yup, yup, yup, yup, yup.
“Q. What was that for?
“A. That was for – –
[STANDBY COUNSEL]: Your Honor, objection, per Rule
609.
“A. It was the same thing, for marijuana.”

The trial justice overruled the objection, noting that counsel for DCYF was “trying to refresh her

recollection about DCYF’s involvement, not her arrest.” After the trial justice so ruled, Crystal

offered her explanation as to the circumstances of the 2007 incident.

Crystal also testified that she had never been on any medication to treat her mental health

issues and that she did not feel medication was necessary; she added, however, that she had

nonetheless started seeing one Earl Thurber, a counselor at “Gateway,”7 to determine whether

medication might be necessary. Crystal also testified that, contrary to what Ms. Crabtree and Ms.

Masterson had stated, she had not been discharged from the Project Link substance abuse

counseling program, but had left voluntarily because she was “uncomfortable there.” She stated

that she subsequently enrolled in the MAP substance abuse counseling program, but she

acknowledged that she had tested positive for cocaine while she was enrolled in that program.

Additionally, Crystal testified that her visits with her children were “good visit[s]” and that, during

the visits, she would sing and play with the children. Crystal also stated that she did not

voluntarily stop visiting the children in August of 2015; rather, she claimed, DCYF had asked a

judge to prevent her from attending the visits.

7
We infer that the “Gateway” referred to in Crystal’s testimony is Gateway Healthcare, a
nonprofit behavioral health organization. See GATEWAY HEALTHCARE https://www.gatewayhealth.
org (last visited on April 6, 2018).
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 B

The Witnesses Presented by Respondent: Valerie Khalil and Johnetta McLean

DCYF having rested its case, Crystal called Valerie Khalil and Johnetta McLean to testify

on her behalf.

Ms. Khalil stated that she had served as Crystal’s sponsor in Narcotics Anonymous for

three years and that she was “shocked when all this happened” because, in her opinion, Crystal

was “not a drug addict.”

Ms. McLean, one of Crystal’s adult daughters, testified that she was not aware that her

mother had ever used drugs, that she had “[n]ever been without food, clothes, anything,” and that

she “fe[lt] good” about her mother.

C

The Trial Justice’s Decision

After reviewing the testimony and evidence, the trial justice concluded that, by clear and

convincing evidence, DCYF had proven: (1) that James, Dalicia, and Dalilah had been in the legal

care and custody of DCYF for at least twelve months; (2) that DCYF had made reasonable efforts

to offer Crystal services to “correct the situation;” and (3) that, notwithstanding DCYF’s efforts,

Crystal had “failed to address her parenting and substance abuse issues, as well as her need for

mental health counseling.” The trial justice further found that terminating Crystal’s parental rights

was in the best interests of the children.

The trial justice accepted some aspects of Crystal’s testimony as credible while rejecting

others. Specifically, the trial justice found that there had been “a total of twelve DCYF case plans

developed” to help Crystal reunify with the three children and that, even though Crystal had

admitted to the allegations of neglect, she “did not cooperate with DCYF or with DCYF case

plans” and had “made no progress with any of the case plan objectives.” Although the trial justice

-8-
acknowledged that Crystal had successfully completed the MAP substance abuse counseling

program, she also observed that Crystal had tested positive for drugs while enrolled in that

program and that “[t]he MAP program [had] not recommend[ed] reunification based on [Crystal’s]

failure to comply with the program objectives and goals.” The trial justice rejected Crystal’s

testimony that she had left certain DCYF-recommended programs voluntarily, finding instead that

Crystal had been terminated from said programs due to her lack of progress. The trial justice

further found that Crystal “did not comply with the recommendations of Dr. Parsons and Dr.

Hirsch,” specifically referencing Dr. Parsons’s testimony that, if Crystal were unable to cooperate

with the services he had recommended, “reunification would be harmful to the children.” (Internal

quotation marks omitted.)

In assessing the best interests of the children, the trial justice found that, at the time of trial,

all three children had been placed in non-relative foster care and that each child was living in a

pre-adoptive home. She added that “both twins ha[d] been placed in the same foster home,

together, for most of their lives,” and that James had been in a separate foster home since

September of 2013, where he was “doing really well.” Having found that there was “not a

substantial probability that the children [would] be able to return safely to [Crystal’s] care within a

reasonable period of time, considering their age[s] and their need[s] for a permanent home,” the

trial justice concluded that it would be in the children’s best interests to terminate Crystal’s

parental rights as to them “so that her three children may be adopted and provided with

permanency.”

II

Standard of Review

We have long held that “[n]atural parents have a fundamental liberty interest in the care,

custody, and management of their child that does not evaporate if they are not model parents or

-9-
have lost temporary custody of their child.” In re Natalya C., 946 A.2d 198, 202 (R.I. 2008)

(quoting In re Antonio G., 657 A.2d 1052, 1057 (R.I. 1995) (citing Santosky v. Kramer, 455 U.S.

745, 753 (1982))). We are mindful as well that the termination of parental rights is a “drastic and

irreversible” measure and, as such, “due process requires that, before the state may terminate a

parent’s rights in his or her children, the state must support its allegations by clear and convincing

evidence.” In re Max M., 116 A.3d 185, 193 (R.I. 2015) (emphasis in original) (internal quotation

marks omitted).

Bearing the just-referenced principles in mind, when reviewing a decision terminating

parental rights, we “examine[] the record to determine whether legally competent evidence exists

to support the findings of the trial justice.” In re Natalya C., 946 A.2d at 202. In doing so, “we (1)

examine the trial justice’s finding of parental unfitness; (2) review the finding that reasonable

efforts at reunification were made by the state agency charged with that duty; and (3) review the

finding that termination is in the children’s best interests.” In re Max M., 116 A.3d at 193 (internal

quotation marks omitted). And the trial justice’s findings “are accorded great weight on appeal and

will not be disturbed unless it can be shown that they are clearly wrong or [that] the trial justice

overlooked or misconceived material evidence.” Id. (internal quotation marks omitted).

III

Analysis

Crystal argues on appeal that the trial justice: (1) erred in admitting into evidence Dr.

Hirsch’s report; (2) erred in admitting into evidence Crystal’s admission that she had been arrested

for possession of marijuana; and (3) erred by overlooking Crystal’s compliance with DCYF’s case

plans and recommendations when she found that DCYF had proved by clear and convincing

evidence that Crystal was unfit to parent James, Dalicia, and Dalilah.

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 Crystal first argues that the trial justice erred by admitting Dr. Hirsch’s report because

Crystal interprets Rule 706(a) of the Rhode Island Rules of Evidence as providing, in her words,

that “only the [c]ourt may appoint an expert;” she further observes that Dr. Hirsch was not

appointed by the court. This argument is without merit. First, while Rule 706(a) provides that

“[t]he court may appoint any expert witnesses,” nowhere does that rule state that only the court

may appoint expert witnesses. Indeed, subsection (d) explicitly provides that “[n]othing in this rule

limits the parties in calling expert witnesses of their own selection.” As such, we are of the opinion

that the trial justice did not err in admitting Dr. Hirsch’s report.

Crystal next argues that the trial justice erred when she admitted into evidence Crystal’s

testimony about her arrest for possession of marijuana; she posits that Rule 609 of the Rules of

Evidence was violated when DCYF failed to produce evidence that her arrest resulted in a

conviction. This argument similarly lacks in merit. Rule 609(a) provides, in pertinent part: “For

the purpose of attacking the credibility of a witness, evidence that the witness has been convicted

of a crime shall be admitted if elicited from the witness or established by public record.”

(Emphasis added.) In the instant case, the trial justice expressly found that Crystal’s testimony

about her arrest was elicited merely to refresh her recollection as to her prior encounters with

DCYF and was not offered to attack her credibility. As such, it is our view that Rule 609 was not

violated in this instance. Moreover, even if the testimony about the arrest were erroneously

admitted, such error would have been harmless because the record reveals that, in rendering her

decision, the trial justice did not rely upon the evidence of Crystal’s arrest; rather, she cited to

numerous other indicators of Crystal’s parental unfitness.8

8
See, e.g., Guertin v. Guertin, 870 A.2d 1011, 1018 (R.I. 2005) (noting that, even where a
trial justice has erroneously relied on improperly admitted evidence, such error is harmless if the
trial justice “relied on ample evidence independent of [the improperly admitted evidence] to
support her ultimate decision * * *”); Thibaudeau v. Thibaudeau, 947 A.2d 243, 247 (R.I. 2008)
- 11 -
 Crystal next argues that “her efforts to be reunited with her children by complying with the

demands of DCYF were overlooked” by the trial justice. It is indeed a basic principle that, “before

parental rights may be terminated, a specific finding of parental unfitness must be made.”9 In re

Max M., 116 A.3d at 193. However, “a parent whose child is in the care of DCYF has an

obligation (1) to maintain contact with the child and (2) to plan for the child’s future.” In re

Rosalie H., 889 A.2d 199, 205 (R.I. 2006) (internal quotation marks omitted). As such, we have

held that “a parent’s lack of interest in his or her child evidenced by an unwillingness to cooperate

with DCYF services can be a basis for a finding of unfitness.” In re Max M., 116 A.3d at 194

(internal quotation marks omitted); see also In re Anthony M., 773 A.2d 878, 881 (R.I. 2001).

In the instant case, the trial justice made several specific findings to support her conclusion

that Crystal was unfit to parent the children. For example, the trial justice found that, in spite of

having been presented with twelve different case plans (four case plans for each child) between

April of 2013 and October of 2015, Crystal “did not cooperate with DCYF or with DCYF case

plans,” and “made no progress with any of the case plan objectives.” The trial justice further found

that Crystal “denied” that she suffered from post-traumatic stress disorder and refused to engage in

mental health counseling due to the fact that, in the trial justice’s words, Crystal “felt she did not

need any counseling.” The trial justice also observed that Crystal was discharged from a number

(concluding that the hearing justice relied on sufficient evidence independent of an improperly
admitted report and that, therefore, “[a]ny error in the hearing justice’s reference to the report was
* * * harmless”).
9
We note that there are occasions when we are called upon to “review the finding that
reasonable efforts at reunification were made by [DCYF]” and to “review the finding that
termination is in the children’s best interests.” In re Max M., 116 A.3d 185, 193 (R.I. 2015)
(internal quotation marks omitted). However, on appeal, Crystal has challenged neither the
reasonableness of DCYF’s efforts at reunification nor the trial justice’s finding that the
termination of parental rights was in the children’s best interests. Accordingly, as is our wont, we
will limit our review to the issues properly raised on appeal. See Gianquitti v. Atwood Medical
Associates, Ltd., 973 A.2d 580, 590-91 n.10 (R.I. 2009); see also Johnston v. Poulin, 844 A.2d
707, 710 n.3 (R.I. 2004).
- 12 -
of programs due to her failure to have complied with the requirements of those programs.

Additionally, the trial justice found that Crystal had not seen any of her children since August 17,

2015 and “never petitioned the [c]ourt for visits to be reinitiated” after the visits were suspended in

October of 2015.

Our review of the record reveals that there was ample legally competent evidence to

support the trial justice’s finding that Crystal refused to cooperate with DCYF’s reunification

efforts and that she did not make any meaningful effort to maintain contact with her children

between her last visit on August 17, 2015 and the time of trial several months later. See In re

Gabrielle D., 39 A.3d 655, 665 (R.I. 2012). We are further of the opinion that Crystal’s refusal to

cooperate with the objectives of the case plans constitutes clear and convincing evidence of her

lack of interest in her three children and, as such, could properly serve as a basis for a finding of

parental unfitness. See In re Max M., 116 A.3d at 194.

Accordingly, we hold that the trial justice did not overlook or misconceive material

evidence in finding that Crystal was unfit to parent her three children and that, therefore, the trial

justice did not err when she terminated Crystal’s parental rights as to James, Dalicia, and Dalilah.

IV

Conclusion

For the reasons set forth herein, we affirm the judgment of the Family Court terminating

the parental rights of the respondent. The record may be returned to that tribunal.

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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

OPINION COVER SHEET

Title of Case In re James H. et al.
No. 2016-295-Appeal.
(00-1831-5)
Case Number
(00-1831-6)
(00-1831-7)
Date Opinion Filed April 9, 2018
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice William P. Robinson

Source of Appeal Providence County Family Court

Judicial Officer From Lower Court Asssociate Justice Laureen A. D'Ambra
For Petitioner:

Karen A. Clark
Department of Children Youth and Families

Attorney(s) on Appeal Shilpa Naik
Court Appointed Special Advocate

For Respondent:

Michael S. Pezzulo, Esq.

SU-CMS-02A (revised June 2016)