Sharon Brooks v. Michael Brooks ( 2021 )

May 26, 2021
Supreme Court
No. 2019-238-Appeal.
(W 11-56)
Sharon Brooks :
v. :
Michael Brooks. :
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 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. 2019-238-Appeal.
(W 11-56)
Sharon Brooks :
v. :
Michael Brooks. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Long, for the Court. The defendant, Michael Brooks (defendant or
Mr. Brooks), appeals pro se from an order of the Family Court denying his motion
seeking visitation with his nine-year-old daughter, whom he shares with the plaintiff,
Sharon Brooks (plaintiff or Ms. Brooks). 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 considering the parties’
written and oral submissions and reviewing the record, we conclude that cause has
not been shown and that this appeal may be decided without further briefing or
argument. For the reasons set forth in this opinion, we affirm the order of the Family
Court.
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Facts and Procedural History
The plaintiff and Mr. Brooks married in 1999 and have two children—a son,
born on July 30, 2001, and a daughter, born on April 1, 2010. 1 Months after their
daughter’s birth, Mr. Brooks was incarcerated on robbery charges; the last time he
saw his daughter was at the intake center of the Adult Correctional Institutions when
she was about six months old.2
Upon defendant’s incarceration, Ms. Brooks filed a complaint for divorce.
The Family Court entered a final judgment of divorce on November 16, 2011,
thereby awarding Ms. Brooks sole legal custody and physical placement of the
children and denying visitation rights to Mr. Brooks. In 2014, however, the Family
Court authorized telephone contact between Mr. Brooks and the children several
times per month.
On April 4, 2019, Mr. Brooks filed a motion seeking twice-monthly visits
with his daughter at the ACI. At the hearing on the motion, Mr. Brooks asserted a
change in circumstances based upon two factors: (1) his daughter was then nine years
old and “probably old enough to form some sort of an opinion” and (2) his transfer
from a maximum to medium security facility, where he had been participating in
parenting programs. Ms. Brooks filed an answer and counterclaim asking that all
1
The parties’ son is not a subject of this appeal.
2
At a hearing on June 7, 2019, discussed infra, defendant testified that his release
date would be in about eighteen months, “with good time.”
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communication between Mr. Brooks and the children cease, unless initiated by the
children. 3
At a hearing held on June 7, 2019, the parties both appeared pro se. Each
testified and submitted documentary evidence. Mr. Brooks asked the court to
conduct an in camera interview with their daughter, who was not present at the
hearing; the trial justice denied the request and heard from no further witnesses.
In issuing a bench decision following the testimony, the trial justice made
several findings of fact: Mr. Brooks had not seen his daughter since he began his
incarceration in 2010, when she was about six months old; Mr. Brooks exercised his
right to communicate with her by letters and telephone calls, but she refused to speak
with him; Mr. Brooks completed all of the parenting programs available to him in
prison; Mr. Brooks used drugs in the presence of his children prior to his
incarceration and threatened to have his children harmed if Ms. Brooks did not give
him money for drugs, and his denial of those accusations was not credible; his
daughter ran to her room in tears after Ms. Brooks suggested the possibility of her
having to visit her father; and Mr. Brooks’s comment in a recent letter to the child
was inappropriate. The trial justice stated: “It’s very clear that [the child] doesn’t
know Mr. Brooks[.]” She also noted that, although the child appeared from the
3
At the time of the filing of the motion for visitation in April 2019, the parties’ son
was a few months from turning eighteen years old.
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evidence to have experienced some behavioral issues, they were improving; the trial
justice did not see “how it would help her to begin to visit someone in the prison
who, yes, is her biological father, but who she absolutely does not know.”
The trial justice denied Mr. Brooks’s motion. She also denied Ms. Brooks’s
motion to change the existing court orders “except to the extent that * * * allow[s]
the children * * * to make a decision if they want to accept phone calls.” The trial
justice entered an order on June 7, 2019, reflecting her decision. Mr. Brooks timely
appealed.
Mr. Brooks challenges the decision of the trial justice for multiple reasons,
including what he asserts was her failure to fully assess the child’s best interests, her
inappropriate consideration of his status as an incarcerated parent, and her failure to
consider a substantial change in circumstances. He also contests what he claims are
erroneous evidentiary rulings, as well as unspecified violations of his constitutional
rights.
The principal question before this Court is whether the trial justice
erroneously denied Mr. Brooks’s motion to modify visitation by failing to consider
the child’s best interests.
Modification of Visitation
This Court reviews a Family Court’s decision on the issue of whether to
modify visitation using an abuse-of-discretion standard. Pacheco v. Marulanda, 108
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A.3d 1007, 1011 (R.I. 2015). “A trial justice’s findings in this regard will not be
disturbed on appeal unless he or she overlooked or misconceived evidence or was
clearly wrong.” Laurence v. Nelson, 785 A.2d 519, 520 (R.I. 2001).
This Court has stated that “[v]isitation rights are strongly favored and should
be denied only in situations in which the child’s physical, mental, or moral health
would be endangered by contact with the parent.” Laurence, 785 A.2d at 520. When
deciding a case that impacts a parent’s visitation rights, the trial court’s primary
consideration is the “best interests of the child.” Pacheco, 108 A.3d at 1011 (quoting
Waters v. Magee, 877 A.2d 658, 664 (R.I. 2005)). To that end, the trial justice must
weigh certain identifiable factors when relevant:
“1. The wishes of the child’s parent or parents regarding
the child’s custody.
“2. The reasonable preference of the child, if the court
deems the child to be of sufficient intelligence,
understanding, and experience to express a preference.
“3. The interaction and interrelationship of the child with
the child’s parent or parents, the child’s siblings, and any
other person who may significantly affect the child’s best
interest.
“4. The child’s adjustment to the child’s home, school, and
community.
“5. The mental and physical health of all individuals
involved.
“6. The stability of the child’s home environment.
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“7. The moral fitness of the child’s parents.
“8. The willingness and ability of each parent to facilitate
a close and continuous parent-child relationship between
the child and the other parent.” Pettinato v. Pettinato, 582
A.2d 909, 913-14 (R.I. 1990) (footnotes omitted).
However, we do not require that the trial justice specifically address each
factor when issuing a decision concerning visitation. See Andreozzi v. Andreozzi,
813 A.2d 78, 83 (R.I. 2003) (explaining that a trial justice is not required to refer to
Pettinato factors when making a determination regarding custody).
It is clear from the record in this case that the trial justice considered the
child’s best interests consistent with Pettinato. In her bench decision, the trial justice
made findings of fact reflecting Mr. Brooks’s desire to see the child, the lack of
relationship between Mr. Brooks and the child, the child’s choice not to speak with
her father, the child’s improving behavior at school, and Mr. Brooks’s past neglect
and abuse toward both of his children.
Despite these clear findings, Mr. Brooks contends that the trial justice relied
solely on his incarceration as a basis for denying his motion to modify visitation,
contrary to our holding in Hervieux v. Hervieux, 603 A.2d 337 (R.I. 1992). In that
case, this Court sustained the appeal by a father who was denied visitation based
solely upon his incarceration. Hervieux, 603 A.2d at 338. However, as we explained
in Hervieux, “[u]ncontroverted testimony by the [father] indicated that his
relationship with his children is warm and loving and, in the circumstances, normal.
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Apart from the [father]’s incarceration at the ACI nothing in the record indicates that
cause existed which justified the trial justice’s refusal to order visitation rights.” Id.Hervieux is clearly distinguishable from the instant matter, where the record
reveals not only that Mr. Brooks has not seen the child since she was about six
months old, but also that she began crying and ran to her room when asked about the
prospect of visitation with him now. Moreover, it is clear that the trial justice
weighed these factors in refusing to grant visitation.
Mr. Brooks’s argument that the trial justice overlooked a significant change
in circumstances is similarly unavailing. When a parent seeks to modify visitation,
the parent “must show, by a fair preponderance of the evidence that the conditions
or circumstances existing at the time the original decree was entered have so changed
that the decree should be modified in the interest of the child’s welfare.” Souza v.
Souza, 221 A.3d 371, 374 (R.I. 2019) (quoting Vicente v. Vicente, 950 A.2d 461,
462 (R.I. 2008)). Although Mr. Brooks testified that his circumstances had changed
because he had been transferred to a medium security facility and had participated
in parenting programs while incarcerated, the trial justice was well within her
discretion to find that those changed circumstances were not sufficient to meet
Mr. Brooks’s burden. Ultimately, Mr. Brooks failed to demonstrate how visitation
would serve the child’s best interests, even when considering the proffered change
in circumstances.
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The Defendant’s Other Claims on Appeal
As indicated supra, Mr. Brooks also contests what he claims to be erroneous
evidentiary rulings and unspecified constitutional violations. Specifically, he
contends that the trial justice wrongfully refused to conduct an in camera interview
with the child, accepted unsupported hearsay testimony from Ms. Brooks,
erroneously misconstrued a letter Mr. Brooks sent to the child, and violated his due
process rights to a fair and impartial hearing.
This Court has long recognized that “the admissibility of evidence * * * is
confided to the sound discretion of the trial justice; moreover, this Court will not
interfere with the trial justice’s decision unless a clear abuse of that discretion is
apparent.” Souza, 221 A.3d at 377 (quoting Giammarco v. Giammarco, 959 A.2d
531, 533 (R.I. 2008)).
We also require that litigants properly preserve evidentiary issues for review
on appeal. State v. Romero, 193 A.3d 1167, 1171 (R.I. 2018) (“[I]f an issue was not
preserved by specific objection at trial, then it may not be considered on appeal.”)
(quoting State ex rel. Town of Tiverton v. Pelletier, 174 A.3d 713, 718 (R.I. 2017)).
Examination of the record in this case reveals that Mr. Brooks’s claims of
erroneous evidentiary rulings are without merit. Mr. Brooks did not file a timely
motion for an in camera interview of the child, he did not clearly object to testimony
that he now challenges as hearsay, and he failed to object to the introduction of the
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letter he sent to the child into evidence. We discern no abuse of discretion on the
part of the trial justice, and we will not interfere with her evidentiary rulings.
Similarly, with respect to defendant’s claims that the trial justice violated his
due process rights to a fair and impartial hearing, he has failed to articulate to this
Court the basis of those assertions and, as such, we will not address them on appeal.
See Town Houses at Bonnet Shores Condominium Association v. Langlois, 45 A.3d
577, 584 (R.I. 2012) (“The defendant raises additional issues on appeal that we deem
meritless because they were not sufficiently developed in his written submissions to
this Court.”); State v. Chase, 9 A.3d 1248, 1256 (R.I. 2010) (“[S]imply stating an
issue for appellate review, without a meaningful discussion thereof or legal briefing
of the issues, does not assist the Court in focusing on the legal questions raised, and
therefore constitutes a waiver of that issue.”) (quoting Wilkinson v. State Crime
Laboratory Commission, 788 A.2d 1129, 1131 n.1 (R.I. 2002)).
We conclude that the trial justice did not err in denying the defendant’s motion
to modify visitation.
Conclusion
For the foregoing reasons, the appeal is denied, the order appealed from is
affirmed, and the record in this case may be returned to the Family Court.
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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 Sharon Brooks v. Michael Brooks.
No. 2019-238-Appeal.
Case Number
(W 11-56)
Date Opinion Filed May 26, 2021
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Melissa A. Long
Source of Appeal Washington County Family Court
Judicial Officer from Lower Court Associate Justice Sandra Lanni
For Plaintiff:
Sharon Brooks, Pro Se
Attorney(s) on Appeal
For Defendant:
Michael J. Brooks, Pro Se
SU-CMS-02A (revised June 2020)