In re J.T.

June 24, 2021

Supreme Court

No. 2020-253-Appeal.
(MH-20-400)

In re J.T. :

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
(401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that corrections may
be made before the opinion is published.
 Supreme Court

No. 2020-253-Appeal.
(MH-20-400)

In re J.T. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Lynch Prata, for the Court. The respondent, J.T.,1 appeals from a

District Court order committing him to a residential living facility for adults with

developmental disabilities. This case came before the Supreme Court 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 hearing the arguments of counsel

and thoroughly reviewing the record, we conclude that cause has not been shown

and that this case may be decided without further briefing or argument. For the

reasons outlined in this opinion, we affirm the order of the District Court.

Facts and Travel

The Rhode Island Department of Behavioral Healthcare, Developmental

Disabilities and Hospitals (BHDDH) filed a petition in Sixth Division District Court

1
To protect the identity of the respondent, we will use his initials only.

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for civil court certification to retain respondent, a person with developmental

disabilities, in a residential facility. The petition asked that respondent be retained

at a residential group home operated by the Justice Resource Institute (JRI), located

in Cranston, Rhode Island. The petition further asserted that, before being admitted

to the JRI home, respondent had been in the custody of the Department of Children,

Youth, and Families since 2004, serving a sentence at the Rhode Island Training

School (RITS) for an adjudication of delinquency, based on first-degree and

second-degree child molestation charges. The petition stated that respondent had

been admitted to the JRI facility on his release from the RITS on September 12,

2008.

Although respondent initially remained at the JRI voluntarily, when he signed

a form in 2009 indicating that he intended to leave, BHDDH filed a petition with the

District Court to retain respondent at the JRI, which petition was granted. The

respondent remained at the JRI under court order from 2009 through July 2019,

when BHDDH’s subsequent petition to continue retention of respondent was denied.

BHDDH then filed a new application in September 2019 to retain respondent at the

JRI, which was granted by the District Court. BHDDH ultimately filed its petition

for retention of respondent at the JRI in September 2020, which is the subject of the

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instant appeal. A hearing on the petition was held on September 25, 2020, before a

judge of the District Court.2

Daniel Manfra, M.D., who was qualified as an expert in psychiatry, testified

that he was asked to perform an assessment and evaluation of respondent for the

purpose of the potential need to renew a court order and that he reviewed certain

records and met with respondent. He testified that respondent’s primary diagnosis

was “that of intellectual disability disorder, which in his case is substantiated, not

only by structural abnormalities found on brain imaging, but valid IQ estimates” and,

“most importantly, by a documented consistent history in impairment in adaptive

functioning,” including “impairments in learning, impairments in self care, in

appropriate social interactions, impairments in safety.”

As to respondent’s adaptive functioning, Dr. Manfra noted that, after the prior

retention order was vacated in July 2019, respondent “impulsively left and

sporadically returned to the group home, never having an established plan of what

he was going to do, where he was going to stay, where he was going to register [3] or

2
While it appears from a review of the docket in this case that a transcript of the
hearing on the petition was not filed in this Court, a copy was appended to
respondent’s statement filed pursuant to Article I, Rule 12A of the Supreme Court
Rules of Appellate Procedure. See Shannahan v. Moreau, 202 A.3d 217, 225 (R.I.
2019) (utilizing a bench decision in outlining the facts of the case when the decision
transcript was appended to the appellant’s Rule 12A statement but not included in
the record).
3
Due to respondent’s conviction as a juvenile, he is required to register as a Level 3
sex offender.

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what medications he was going to take[.]” According to Dr. Manfra, respondent

often failed to take his medications, both psychiatric and nonpsychiatric. Doctor

Manfra further stated that respondent would not take medications when he left the

group home, and that he “would often leave the group home at inopportune times,

during severe thunderstorms, and then not know what to do and called the group

home.”

The doctor testified that he met with respondent on September 9, 2020, and

“was struck by the lack of planning and forethought about his ideas to leave the

group home[.]” He described various ideas that respondent had, such as staying with

his mother or an ex-girlfriend or at a hotel. He particularly noted respondent’s

“inability to grasp the gravity of the situation, and how to properly register [as a sex

offender], and why he should do that, and a plan for that.” Doctor Manfra also stated

that respondent’s “over estimation of his own capabilities,” including his ability to

be independent, was striking.

Doctor Manfra offered his opinion that respondent required care and treatment

at a residential facility, with a residential group home being “the only thing that will,

at this point, lessen his risk.” The doctor stated that he and the group home director

had considered less restrictive options for respondent but believed that residential

care was the only suitable option at that time. He agreed that, without

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twenty-four-hour supervision, respondent posed a serious risk of harm to himself

and others because of his developmental disability.

After hearing testimony from Dr. Manfra and respondent himself, the hearing

judge found, by clear and convincing evidence, that respondent “has a

developmental disability, and is in need of care and treatment in a facility[,]” and

that his “continued unsupervised presence in the community would, by reason of

that developmental disability, create a likelihood of serious harm, and that all

alternatives have been investigated,” deeming those alternatives unsuitable. He

ordered respondent to “return to the group home.”

An order was entered on September 25, 2020, finding that respondent was

developmentally disabled, ordering that he reside at the JRI group home, and

directing that he “not leave the group home * * * without the permission of the head

of the facility.”4 The respondent filed a notice of appeal to this Court on October 6,

2020.

On appeal, respondent makes two claims. First, he asserts that he is entitled

to a de novo hearing in Superior Court, pursuant to G.L. 1956 § 40.1-22-10(f).5

Second, respondent claims that the hearing judge erred in considering his “juvenile

adjudication, uncharged conduct[,] and community notification requirement when

4
The order is set to expire on September 25, 2021.
5
The text of G.L. 1956 § 40.1-22-10 is attached to this opinion at Appendix A.

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determining that he is developmentally disabled,” and further erred “in relying upon

such evidence when determining that [his] discharge from JRI creates a serious risk

of harm to himself or others.”

Standard of Review

It is well established that this Court reviews “questions of statutory

interpretation de novo.” Crenshaw v. State, 227 A.3d 67, 71 (R.I. 2020) (quoting

Epic Enterprises LLC v. Bard Group, LLC, 186 A.3d 587, 589 (R.I. 2018)). “[W]hen

the language of a statute is clear and unambiguous, this Court must interpret the

statute literally and must give the words of the statute their plain and ordinary

meanings.” Id. (quoting Alessi v. Bowen Court Condominium, 44 A.3d 736, 740 (R.I.

2012)). “However, when faced with an ambiguous statute, ‘it is incumbent upon

[this Court] to apply the rules of statutory construction and examine the statute in its

entirety to determine the intent and purpose of the Legislature.’” Id. (quoting Powers

v. Warwick Public Schools, 204 A.3d 1078, 1086 (R.I. 2019)).

Furthermore, “in effectuating the Legislature’s intent,” this Court reviews and

considers “the statutory meaning most consistent with the statute’s policies or

obvious purposes.” Providence Teachers’ Union Local 958, AFT, AFL-CIO v.

Hemond, 227 A.3d 486, 494 (R.I. 2020) (brackets omitted) (quoting Bailey v.

American Stores, Inc./Star Market, 610 A.2d 117, 119 (R.I. 1992)).

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 Discussion

Section 40.1-22-10

This Court has not had the occasion to construe any portion of § 40.1-22-10,

and, thus, respondent presents a question of first impression. What is clear to us is

that § 40.1-22-10 was not artfully drafted and contains several ambiguities that we

must construe.

Initially, it is clear that respondent is a “person aggrieved by the decision of a

district court order for further residential care under the provisions of this section[,]”

§ 40.1-22-10(f), given that the proceeding that resulted in the order that he must

continue to reside at the JRI facility was conducted under the guidance of this

chapter. Furthermore, § 40.1-22-10(f) is clear that respondent has a right to “appeal

the findings and order of the district court de novo to the court having appellate

jurisdiction wherein the facility is located.”

However, because § 40.1-22-10(f) does not address or specify if the appeal

shall be to the Superior Court or to this Court, we must first identify the designated

forum. Again, as set out supra, § 40.1-22-10(f) states that the aggrieved party may

appeal the order “de novo to the court having appellate jurisdiction wherein the

facility is located.” It is readily apparent that we are faced with ambiguous statutory

language. The inartful drafting of the pertinent statutory language here renders it

plainly “susceptible of more than one reasonable meaning.” Balmuth v. Dolce for

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Town of Portsmouth, 182 A.3d 576, 585 (R.I. 2018) (quoting Drs. Pass and

Bertherman, Inc. v. Neighborhood Health Plan of Rhode Island, 31 A.3d 1263, 1269

(R.I. 2011)). Again, “because we are confronted with a genuine ambiguity, and not

one divined by crafty lawyering, we ‘will employ our well-established maxims of

statutory construction in an effort to glean the intent of the Legislature.’” Id.

(footnote omitted) (quoting In re Proposed Town of New Shoreham Project, 25 A.3d

482, 505 (R.I. 2011)).

Article 10, section 2 of the Rhode Island Constitution declares that this Court

“shall have final revisory and appellate jurisdiction upon all questions of law and

equity.” This article was adopted “to make the Supreme Court primarily a court of

appellate jurisdiction.” D’Arezzo v. D’Arezzo, 107 R.I. 422, 426, 267 A.2d 683, 685

(1970). The objective of this section of our constitution “was to make the Supreme

Court the court of last resort, the embodiment of ultimate judicial power.” Id. There

is no intermediate appellate court in the State of Rhode Island. See Nicholas Nybo,

Preserving Justice: A Discussion of Rhode Island’s “Raise or Waive” Doctrine, 20

Roger Williams U. L. Rev. 375, 381 (2015).

Turning to the statute at issue, § 40.1-22-10(f) references only “the court

having appellate jurisdiction[.]” While respondent argues that this means the

Superior Court, nowhere in the statute do the words “Superior Court” appear.

Therefore, because the Supreme Court is the only court of appellate jurisdiction, the

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appeal from the District Court must be taken to this Court. Any other interpretation

would require this Court to ignore the statute’s appellate jurisdiction language and,

in essence, rewrite the statute—“thereby flying in the face of the fundamental

principle that a court should not rewrite a statute enacted by the General Assembly.”

State v. Diamante, 83 A.3d 546, 550 (R.I. 2014); see Little v. Conflict of Interest

Commission, 121 R.I. 232, 237, 397 A.2d 884, 887 (1979) (“It is a primary canon of

statutory construction that statutory intent is to be found in the words of a statute[.]”);

see also Rivera v. Employees’ Retirement System of Rhode Island, 70 A.3d 905, 910

(R.I. 2013) (“[W]e are not privileged to legislate, by inclusion, words which are not

found in the statute.”) (quoting Wayne Distributing Co. v. Rhode Island Commission

for Human Rights, 673 A.2d 457, 460 (R.I. 1996)); Iselin v. Retirement Board of

Employees’ Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008)

(“[O]ur assigned task is simply to interpret the act, not to redraft it[.]”) (quoting

Sindelar v. Leguia, 750 A.2d 967, 972 (R.I. 2000)).

Having determined that the Supreme Court is the designated forum in which

to take the appeal, we now turn to the timeliness of respondent’s appeal. Notably,

§ 40.1-22-10(f) does not articulate a specific time period within which a notice of

appeal must be filed. However, we have explained that:

“Where there is no limit set forth in the statute as to the
time for filing * * * the question remains as to the time
when an appeal must be filed. We follow the generally
accepted rule that, in the absence of any limitation fixed

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 by statute, an appeal must be filed within a reasonable
time[,] otherwise the appeal will be denied because of
laches.” Latham v. State Department of Education, 116
R.I. 245, 249-50, 355 A.2d 400, 403 (1976).

However, we have also concluded that “laches is not, like limitation, a mere matter

of time, but is principally a question of the inequity of permitting the claim to be

enforced—an inequity founded on some change in the condition or relation of the

property or party involved.” Latham, 116 R.I. at 250, 355 A.2d at 403.

The respondent filed his notice of appeal to this Court on October 6, 2020,

eleven days after the order was entered. We can perceive no reason why the doctrine

of laches should be invoked, because respondent filed his appeal in such an

expeditious manner; and, consequently, we hold that the time within which

respondent filed his appeal to this Court is reasonable.

We therefore conclude that § 40.1-22-10(f) is ambiguous, but we hold that

respondent’s appeal to this Court is timely; and we interpret the statute as providing

a direct right of appeal to this Court.6

6
In order for the appeal petitions to be heard expeditiously, given the limited time
frame of the commitment orders and the deprivation of liberties involved, the
District Court should attempt to ensure the expeditious transmission of the record
and transcripts in these cases by requiring the use of a stenographer, to be paid for
by BHDDH.

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 Evidence

The respondent also argues that the District Court judge erred in allowing the

admission of Dr. Manfra’s testimony regarding respondent’s juvenile conviction, his

requirement to register as a sex offender, and other uncharged bad acts committed

by respondent.

We have explained that, “in accordance with this Court’s longstanding

‘raise-or-waive’ rule, if an issue was not properly asserted, and thereby preserved,

in the lower tribunals, this Court will not consider the issue on appeal.” Selby v.

Baird, 240 A.3d 243, 246 n.9 (R.I. 2020) (quoting Adams v. Santander Bank, N.A.,

183 A.3d 544, 548 (R.I. 2018)). This Court has further observed that “the raise-or-

waive rule is a fundamental principle in this state that is ‘staunchly adhered to’ by

this Court.” State v. Doyle, 235 A.3d 482, 493 (R.I. 2020) (quoting Cusick v. Cusick,

210 A.3d 1199, 1203 (R.I. 2019)). It is well settled that “a litigant cannot raise an

objection or advance a new theory on appeal if it was not raised before the trial

court.” State v. Haffner, 242 A.3d 468, 478 (R.I. 2020) (quoting State v. Bido, 941

A.2d 822, 829 (R.I. 2008)).

The respondent objected twice during Dr. Manfra’s testimony—once

regarding his testimony about a report prepared previously by another physician,

during which Dr. Manfra did not mention the respondent’s juvenile convictions or

any other uncharged conduct, and again when Dr. Manfra testified that the

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respondent had misrepresented himself when he registered for sex-offender purposes

as homeless.7 Additionally, the respondent himself conceded in his own testimony

on cross-examination, without objection, that he is registered as a sex offender.

After thoroughly reviewing the record, it is clear to us that the respondent failed to

object at the hearing before the District Court to the questioning of Dr. Manfra

concerning the respondent’s prior conviction, the requirement to register as a sex

offender, and other uncharged bad acts. Thus, we find the respondent’s argument

waived.

Conclusion

For the reasons set forth in this opinion, we affirm the order of the District

Court. The record may be returned to the District Court.

7
The respondent did object to the qualification of Dr. Manfra as an expert in
psychiatry, but only raised the two objections noted supra during the doctor’s
substantive testimony.

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 Appendix A

General Laws 1956 § 40.1-22-10, “Discharges—Judicial review[,]” provides:

“(a) Any resident over eighteen (18) years of age or
married residents under eighteen (18), except any resident
who is under court-ordered restriction, shall be free to
leave any public or private developmental disabilities
facility at any time upon giving written or oral notice of
the intention to the superintendent or other head of the
facility. The superintendent or other head of the facility
may restrict the right to leave the facility to normal
working hours and weekdays and, in his or her discretion,
may require that certain residents give three (3) days’
notice of their intention to leave the facility.

“(b) Where persons are required to give three (3) days’
notice of an intention to leave the facility, an examination
of the person may be conducted by a team to determine his
or her suitability for discharge and to investigate other
aspects of his or her case including his or her legal
competency and his or her family, home, or community
situation to the interest of discharging him or her from the
facility.

“(c) If, however, the superintendent or other head of the
facility determines that discharge of a person who has
given three (3) days’ notice would create a likelihood of
serious harm to the person himself or herself or to other
people by reason of the person’s developmental disability,
he or she shall forthwith petition the district court of the
judicial district wherein the facility is located to order that
the person be further retained as a resident. The
superintendent or other head may retain the person until
the hearing on the petition has been held.

“(d) The court shall cause a notice, as defined in this
chapter, of the time and place set for the hearing to be
served upon the person and the nearest relative or guardian
of the person and the superintendent or other head of the

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facility. In all hearings, the person shall be represented by
legal counsel and may present independent clinical
testimony. If the person is found by the court to be
indigent, counsel shall be appointed by the court and an
independent clinical examination, if requested by counsel
for the person, may be provided by the court. The person
shall be allowed not less than forty-eight (48) hours after
the appearance of counsel on his or her behalf in which to
prepare his or her case. The person or his or her
representative may request either an open or closed
hearing in any court proceedings and the court in its
discretion may grant the requests.

“(e) If the court finds after the hearing that the discharge
of the person would create a likelihood of serious harm to
the person himself or herself or to other people by reason
of developmental disability, the court shall order that the
person be further retained as a resident and the person may
not, during the next six-month (6) period, leave the facility
except by permission of the superintendent or other head
of the facility and no further court action shall be
necessary to retain the person during the period. If the
court does not so find, it shall order that the person be
forthwith discharged.

“(f) Any person aggrieved by the decision of a district
court order for further residential care under the provisions
of this section may appeal the findings and order of the
district court de novo to the court having appellate
jurisdiction wherein the facility is located. In an appeal to
a court under the provisions of this section, the findings
and order of the district court may be introduced into
evidence by either party. If the appellate court finds after
a hearing that discharge of the person would create a
likelihood of serious harm to the person him or herself or
to other people by reason of developmental disability, the
court shall order that the person be further retained as a
resident and as such may not, during the next six-month
(6) period, leave the facility except by permission of the
superintendent or other head of the facility, and no further

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court order shall be necessary to retain the person during
the period.

“(g) As the basis for its order the appellate court shall
make written findings as to the following:

“(1) That the person is developmentally disabled
and the evidence upon which this determination is
based; and

“(2) That, in accordance with the definition of
‘developmental disability’ in 40.1-21-4.3(5) as
indicated by the court, the discharge of the person
would create a likelihood of serious harm to the
person himself or herself or to other people by
reason of the developmental disability and the
evidence upon which this determination is based;
and

“(3) Any other issue or evidence, which the court
deems relevant and necessary for inclusion in its
findings. If the court finds that the person does not
meet the definition of ‘developmental disability’ in
chapter 21 of this title such that there does not exist
a likelihood of serious harm to the person himself
or herself or to other people by reason of the
developmental disability, it shall order that the
person be forthwith discharged.

“(h) If, at the end of any six-month (6) period of retention,
the person is still in need of care and treatment, he or she
may, if he or she so desires, be admitted or transferred to
other care and treatment in the same or another facility. If
the person is unwilling to consent to continued residence,
he or she shall be discharged; provided, however, that, if
the superintendent or other head of the facility determines
that the discharge would create a likelihood of serious
harm to the person himself or herself or to other people by
reason of developmental disability, he or she shall, prior

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to the expiration of the six-month (6) period, petition the
district court which made the earlier order to order, under
the same procedures, that the person be further retained as
a resident, and the person may not during the next one-year
period leave the facility except by permission of the
superintendent or other head of the facility and no further
court order shall be necessary to retain the person during
the period. The order may be renewed by the court for
additional one-year periods on petition of the
superintendent or other head of the facility under the same
conditions and procedures and opportunity for judicial
review as above. The superintendent or other head of the
facility shall be immune from civil suit for damages for
retaining a person and petitioning the court pursuant to the
provisions of this section.

“(i) Whenever a person before the district court appears to
be developmentally disabled and the court determines either
that the crime has not been committed or that there is not
sufficient cause to believe that the person is guilty thereof,
the court may order evaluation procedures as previously
provided in this section, or after a hearing as provided in
subsections (d) and (e), and in such a case the criminal action
shall terminate.” (Emphasis added.)

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 STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case In re J. T.

No. 2020-253-Appeal.
Case Number
(MH-20-400)

Date Opinion Filed June 24, 2021

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Erin Lynch Prata

Source of Appeal Sixth Division District Court

Judicial Officer from Lower Court Associate Judge Christopher Smith

For Petitioner:

Thomas J. Corrigan, Jr.
Attorney(s) on Appeal
For Respondent:

Amy E. Veri, Esq.

SU-CMS-02A (revised June 2020)