In re Kyeshon J. , 2017 R.I. LEXIS 19 ( 2017 )

Supreme Court
No. 2015-230-Appeal.
(P13-1229-1)
No. 2016-161-Appeal.
(P13-1229-2)
In re Kyeshon J. 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. 2015-230-Appeal.
(P13-1229-1)
No. 2016-161-Appeal.
(P13-1229-2)
In re Kyeshon J. et al. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. The respondent father, Kai Jackson, appeals from a
decree of the Family Court terminating his parental rights with respect to his two sons, Kyeshon
J. and Jarell G. This case came before the Supreme Court for oral argument on September 29,
2016, 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 November 19, 2013, Sandra Armand and Gorvey Armand (petitioners) filed two
adoption petitions in Family Court so that Gorvey1 might become the legal father of both
Kyeshon (who was born on May 23, 1999) and Jarell (who was born on November 9, 2000). As
1
We shall at some points in this opinion employ first names and omit the surnames. In
doing so, we intend no disrespect.
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the basis for their petitions, petitioners alleged that respondent had failed to provide for Kyeshon
and Jarell pursuant to G.L. 1956 § 15-7-7(a). (Those petitions could be granted only if
respondent consented to the adoptions—or, alternatively, if his parental rights as to the children
were terminated.) The respondent, who was then incarcerated in Massachusetts, refused to
consent to the adoptions. As a result, petitioners moved to terminate respondent’s parental rights
with respect to Kyeshon and Jarell. Thereafter, a trial was held before a Family Court justice on
August 14, September 3, September 10, and December 15 of 2014. We summarize below the
salient aspects of that trial.
A
The Testimony of Sandra
Sandra Armand, the mother of Kyeshon and Jarell, testified that respondent had not
visited the boys in over two years, the last occasion being when he “picked them up” on Jarell’s
eleventh birthday in November of 2011. She testified that respondent had not set up a visitation
schedule as to when he would visit the boys; she stated that, instead, he would seek to visit them
“out-of-the-blue.” It was her testimony that respondent’s last phone conversation with Kyeshon
occurred about one year before trial. She further testified that she had not received child support
payments for her sons from respondent in twelve years. She also stated that, although
respondent had from time to time purchased sneakers for the boys in past years, he had stopped
making such purchases before 2012.
Sandra further testified that respondent had not been involved with the care of the
children; she added that she and their stepfather (Gorvey) have provided for their daily needs
over the years. She stated that, for at least six years, Gorvey has “effectively been [the boys’]
father,” providing “stability” in the household by being “a constant father figure” who “[attends]
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their school meetings, helps with [their] homework, feeds them, [and] clothes them.” Sandra
testified that, in her judgment, it would be in the best interests of Kyeshon and Jarell to terminate
respondent’s parental rights.
B
The Testimony of Respondent
The respondent testified at trial that he was then serving a two-year sentence in
Massachusetts for simple assault.2 He further testified that, from the end of 2011 until some
point in 2012, he would visit Kyeshon and Jarell. He testified that he had given cell phones to
Kyeshon and Jarell when they were six and seven years old, respectively. It was his testimony
that he had purchased clothes, sneakers, and headphones for them, the last time being at some
point in 2013—although he could not recall in which month of that year. The respondent
testified that, in July of 2013, he saw and gave thirty dollars to Kyeshon at a family barbecue.
He further testified that, as a result of his incarceration that began in August of 2013, he had
since that time not seen Kyeshon or Jarell, nor had he supported them. However, respondent
stated on cross-examination that he had visited both his sons whenever he was not incarcerated.
C
The Testimony of Kyeshon
Kyeshon, who was fifteen years old at the time of trial, testified that he wanted his
stepfather to become his legal father because of their “positive relationship.” Specifically, he
discussed how his stepfather is “reliable” and has “been there for [him] for a very long time” by
giving him good advice, going to church with him, taking him to his basketball games, helping
2
The respondent testified that, as a result of various convictions, he had been incarcerated
for one year over the course of the years 2008 and 2009; seven months in 2010; forty days in
2011; and two years beginning in August of 2013.
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him with his homework, and attending his school functions. He further testified that he had last
seen respondent about “two years ago.” When asked on direct examination whether respondent
had provided any “benefits” to him, he replied: “Not really.” Kyeshon testified that, in his view,
terminating respondent’s parental rights would be best for him and his family.
D
The Testimony of Jarell
Jarell, who was fourteen years old at the time of trial, testified that he “absolutely”
wanted his stepfather to become his legal father. According to Jarell, his stepfather “has been in
[his] life every single day for eight years,” continuously “support[ing] [him] and [his] family.”
Specifically, he discussed how his stepfather is a “good role model,” who helps him with his
homework, goes to his football games, and treats his mother well. By contrast, Jarell testified
that he was “mad” about respondent’s repeated incarcerations. He stated that he had not “seen
[respondent] in years;” he added that he had last seen respondent on his eleventh birthday
(November 9, 2011). Jarell testified that he was “fine” with respondent losing his parental rights
“[b]ecause [respondent] is barely in [his] life, and [he] barely get[s] to see him.”
E
The Testimony of Respondent’s Fiancée
The respondent’s fiancée testified that she had been in a relationship with respondent for
over two years. It was her testimony that, at one point, respondent asked her to contact Sandra;
the fiancée stated that she did so in December of 2013 through Facebook and by phone in order
to “get in touch with the children.” She stated that, when he was incarcerated, Sandra “would
allow [the boys] to speak to [their father] whenever they wanted to, but she would not allow
them to go visit him.” When asked whether she had conversed with Sandra after December of
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2013, she replied: “No.” She also stated that respondent had not thereafter asked her to contact
Sandra again.
F
The Family Court’s Decision
On February 25, 2015, the justice of the Family Court who had presided over the trial
made several findings of fact, of which we set forth the most important. At the outset, the trial
justice indicated that respondent’s lack of contact with and financial support for Kyeshon and
Jarell was “painfully evident,” noting that there was such a lack “even when [respondent] was
not incarcerated.” Specifically, she found that respondent’s last contact with both children was
on November 9, 2011 and that he had “never provided * * * child support * * * and only
provided occasional * * * gifts.” The trial justice pointed to respondent’s “long history of
incarceration” as well as “[p]etitioners’ and the children’s wishes” as being significant factors for
her to weigh in determining whether or not to terminate respondent’s parental rights with respect
to his sons. She ultimately found, by clear and convincing evidence, that respondent was unfit as
a parent because he had “failed to provide support for these two children, and * * * [had] failed
to have any contact with them for a period of more than six months prior to the filing of th[e]
Adoption Petition, even when he had resources available to him to see his children.” The trial
justice further found that it would be in the best interests of Kyeshon and Jarell to terminate
respondent’s parental rights so that their stepfather might adopt them. On the same day, she
entered a decree terminating respondent’s parental rights. A timely notice of appeal ensued.
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II
Standard of Review
When reviewing a decision to terminate parental rights, this Court “reviews the record to
determine whether legal and competent evidence lends support to the [Family Court] justice’s
ruling.” In re Jake G., 126 A.3d 450, 456 (R.I. 2015). The findings of fact of a justice of the
Family Court are “entitled to great weight and will not be overturned unless we determine that
they are clearly wrong or the trial justice overlooked or misconceived material evidence.” Id.
(quoting In re Jah-nell B., 116 A.3d 784, 791 (R.I. 2015)). Additionally, we have consistently
noted that, “in order to permanently sever the rights of a parent in his or her children, * * * [t]he
state must prove parental unfitness by clear and convincing evidence in order to satisfy the
parent’s right to due process.” Id. (quoting In re Jah-nell B., 116 A.3d at 791). However, we are
ever mindful that the “best interests of the child outweigh all other considerations.” In re Tory
S., 988 A.2d 151, 155 (R.I. 2010) (quoting In re Kristen B., 558 A.2d 200, 203 (R.I. 1989)).
With respect to the review of adoption petitions, § 15-7-5(b)(2) sets forth that “[t]he
standard of proof in these cases shall be by clear and convincing evidence and the court shall
give primary consideration to the physical, psychological, mental, and intellectual needs of the
child * * *.”
III
Analysis
On appeal, respondent contends that the trial justice erred in finding: (1) that he is unfit
“where unfitness had not been alleged as a ground in the [p]etition;” (2) that “[he] had the
financial ability to provide proper care, maintenance and support” during his incarceration; and
(3) “that termination of [his] parental rights would serve the best interest[s] of the children.”
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As a preliminary matter, respondent’s first argument is unavailing. As this Court has
previously noted, we consistently adhere to the venerable “raise or waive rule,” which provides
that “an issue that has not been raised and articulated previously at trial is not properly preserved
for appellate review.” In re Shy C., 126 A.3d 433, 434, 435 (R.I. 2015) (quoting State v. Gomez,
848 A.2d 221, 237 (R.I. 2004)). Here, respondent never objected to petitioners’ submission of
evidence to the Family Court on the issues of unfitness, willful neglect to provide proper care,
maintenance and support, or abandonment. Nor did he ever object to petitioners’ purported
failure to specify these statutory grounds in the adoption petition. Upon a thorough review of the
record, we perceive nothing in the instant case that “would induce us to make an exception to our
well-settled raise or waive jurisprudence.” Id. at 435. Accordingly, it is our view that
respondent’s first contention on appeal has been waived.
The respondent’s remaining arguments are similarly unavailing and need not be
addressed at any length—because respondent’s parental rights were properly terminated on the
ground of abandonment pursuant to § 15-7-7(a)(4).3 In reliance upon that statute, we have on
numerous occasions upheld the termination of parental rights of parents who were incarcerated—
3
The authority for the termination of parental rights premised upon abandonment is set
forth in G.L. 1956 § 15-7-7(a)(4), which provides the following:
“The court shall * * * after notice to the parent and a
hearing on the petition, terminate any and all legal rights of the
parent to the child, including the right to notice of any subsequent
adoption proceedings involving the child, if the court finds as a
fact by clear and convincing evidence that:
“* * *
“The parent has abandoned or deserted the child. A lack of
communication or contact with the child for at least a six (6) month
period shall constitute prima facie evidence of abandonment or
desertion.”
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as respondent had been for a substantial portion of Kyeshon and Jarell’s lives. See, e.g., In re
Serenity K., 891 A.2d 881, 884 (R.I. 2006) (stating that the responsibility to maintain substantial
and repeated contact with one’s child continues “even when the parent whose rights are at issue
was incarcerated for the six-month statutory period”). An incarcerated parent who fails to
“actively engag[e] in efforts to contact” his or her child “despite having opportunities to do so”
runs the very real risk of it being held that the parent has “abandoned the child.” In re DeKarri
P., 787 A.2d 1170, 1171, 1172 (R.I. 2001); see In re Unique T., 822 A.2d 182, 184 (R.I. 2003).
Despite respondent having once inquired about his children through his fiancée in
December of 2013, he failed to make further attempts to contact Kyeshon and Jarell while he
was incarcerated. We consider noteworthy the trial justice’s observation that, even during the
points in time when respondent was not incarcerated, it was “painfully evident” that he had
“never been [a] consistent source of financial and/or emotional support” with respect to both
children. Notably, she found that respondent’s last visit with both of his children was on
November 9, 2011. There was ample evidence in the record that respondent had not contacted
either son for at least a year—a period in excess of the statutory six months required as a basis
for the termination of parental rights. Consequently, he cannot successfully rebut the prima facie
evidence of abandonment. As we have repeatedly said in the past, this Court’s reaction is one of
“intolerance for a parent * * * who makes halfhearted or no attempts to visit or contact his or her
child within the six-month statutory time period constituting prima facie evidence of
abandonment.” In re DeKarri P., 787 A.2d at 1172; see In re Serenity K., 891 A.2d at 884-85.
At the end of the day, the trial justice found that it would be in Kyeshon and Jarell’s best
interests to terminate respondent’s parental rights so that their stepfather might adopt them. She
stated, inter alia, that “[b]oth * * * young men have stated their desire to be adopted by their
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stepfather,” who “has been a father and role model for them for over eight years.” In our
opinion, there is no basis in the record to question the trial justice’s conclusion that the children’s
best interests will be served by the termination of respondent’s parental rights.
Having carefully reviewed the record and the findings of fact of the trial justice, we
conclude that she did not err in finding, by clear and convincing evidence, that the respondent
had abandoned Kyeshon and Jarell for the six-month period referenced in § 15-7-7(a)(4). Her
findings of fact, which “are accorded great weight,” were supported by a review of the evidence
before her. In re Tory S., 988 A.2d at 155. Accordingly, we affirm the decree of the Family
Court terminating the respondent’s parental rights with respect to Kyeshon and Jarell.
IV
Conclusion
For the reasons stated herein, we affirm the decree of the Family Court and remand the
record 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 Keyshon J. et al.
No. 2015-230-Appeal. (P13-1229-1)
Case Number
No. 2016-161-Appeal. (P13-1229-2)
Date Opinion Filed February 14, 2017
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice William P. Robinson III
Source of Appeal Providence County Family Court
Judicial Officer From Lower Court Associate Justice Karen Lynch Bernard
For Petitioners:
David J. Strachman, Esq.
Attorney(s) on Appeal
For Respondent:
Susan B. Iannitelli, Esq.
SU-CMS-02A (revised June 2016)