In re Madlyn B.In re Luke B. ( 2018 )

June 28, 2018
Supreme Court
No. 2016-349-Appeal.
(15-271-2)
No. 2016-354-Appeal.
(15-271-3)
In re Madlyn B. :
In re Luke B. :
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. 2016-349-Appeal.
(15-271-2)
No. 2016-354-Appeal.
(15-271-3)
In re Madlyn B. :
In re Luke B. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Chief Justice Suttell, for the Court. A skeletal survey revealed that Luke, a four-
month-old infant, had suffered fourteen fractures, for which there was no obvious explanation.
Luke’s mother, Kimberly Warrington (Kimberly or mother), appeals from a Family Court decree
declaring that she neglected and abused her two children, Madlyn and Luke.1 For the reasons set
forth in this opinion, we affirm the decree of the Family Court.
I
Facts and Travel
A
The Department of Children, Youth and Families’ Case
Because Kimberly’s primary appellate argument challenges the sufficiency of the
evidence, we summarize the relevant testimony elicited at trial in some detail.
Luke was born on October 22, 2014; Madlyn was almost three years old at the time.
Luke and Madlyn were patients at Kingstown Pediatrics, a medical practice that included
Michelle McCloskey, M.D. Luke was seen by members of Kingstown Pediatrics on October 28,
1
We refer to Ms. Warrington and her children, as well as others involved in the case, by their
first names; no disrespect is intended.
-1-
November 4, and November 10, 2014, and each appointment resulted in normal evaluations. At
the time of trial, Dr. McCloskey had been in the Kingstown Pediatrics practice for approximately
two-and-a-half years. By virtue of her care of Luke and Madlyn, Dr. McCloskey was aware of
allegations of domestic violence concerning Kimberly and the children’s father, Andrew
(Andrew or father). Doctor McCloskey described Kimberly as “respectful and cooperative” and
“a very caring mother.” Between October 2014 and the end of March 2015, Luke was brought to
Kingstown Pediatrics for a total of nine visits. On November 21, 2014, Luke was examined by
Dr. McCloskey’s colleague for his one-month well-check visit. Luke’s medical records from
that visit reflect that Kimberly reported that Luke was “very fussy” and the records denote, under
the assessment section, “[f]ussy infant syndrome.” Luke’s fifth doctor’s visit took place on
December 12, and Dr. McCloskey later testified that no signs of distress were observed at that
time.
Kimberly returned to work, after a maternity leave, in late December 2014. Kimberly
had been employed at Portsmouth High School in Portsmouth, Rhode Island, for five years as a
“special educator,” leading a behavior program for students who are at risk. She had earned a
bachelor’s degree in education from Rhode Island College and completed some master’s courses
at the University of Rhode Island and Rhode Island College. Kimberly routinely worked
Monday through Friday from approximately 7:15 a.m. to 2:15 p.m. and arrived home between
3:15 p.m. and 5:30 p.m. each afternoon. For the previous twelve years, she had also coached
softball. During the winter season, in the evenings or on weekends, she gave pitching lessons
and conducted clinics; and, in the spring, she coached high school softball. Kimberly indicated
that she did not go out at night on a regular basis after Luke was born and that she would drink
alcohol “[v]ery rarely.”
-2-
When Kimberly was at work, her mother and father took care of Luke either at
Kimberly’s home or at their home. Kimberly’s mother, Joan Warrington (Mrs. Warrington),
typically watched Luke from 6:30 a.m. until 3 p.m., unless Kimberly had afternoon meetings, in
which case it might be later. Madlyn was in daycare at North Kingstown Daycare. When
Kimberly’s parents watched Luke at their home, her father, Lee Warrington (Mr. Warrington),
was present and would be left alone with Luke only for short periods of time if Mrs. Warrington
had an errand to run. Kimberly noted that two exceptions to this schedule were the last week of
December, for Christmas break, and February vacation week, February 16 to 20, 2015, when
Kimberly stayed with Luke because she was home from work. Kimberly was also off from work
on Martin Luther King Day and January 26, when Madlyn was home sick.
Kimberly was dating a man named Mike Buffrey between January and March 2015, but
she testified that it was not serious and that he would not stay at her house.2 One time, Buffrey
watched Luke for approximately thirty minutes while Kimberly ran an errand; when she returned
home, Luke “appeared fine,” as he remained sleeping in his car seat. When Kimberly coached
softball, which would last approximately one hour, she would sometimes bring Madlyn and Luke
with her, and Julie Culhane, her friend and neighbor, would watch the children while she
coached. Kimberly also testified that, during February vacation, “maybe somebody from the
YMCA” watched Luke, but she noted that she could not recall.3 In addition, Kimberly’s sister,
Kathryn Warrington, babysat Luke and Madlyn one night when Kimberly attended a birthday
2
As part of the presentation of Kimberly’s case, as respondent, she testified and indicated that
she and Luke and Madlyn may have slept at Mike Buffrey’s house once because it was late, but
she noted that she could not recall for sure.
3
Joshua Cottle, a child protective investigator for the Department of Children, Youth and
Families (DCYF), testified that he did not interview any individuals at the YMCA daycare
program because he was not informed that Luke ever attended daycare at the YMCA. He was
told that Mrs. Warrington watched Luke while Kimberly was at work and that Madlyn attended
daycare.
-3-
party. During her testimony, when Kimberly was asked if she was Luke’s primary caregiver, she
responded in the affirmative and stated “I am his mom.” She also indicated that, in addition to
Mrs. Warrington, Andrew, Andrew’s mother and her partner, and Andrew’s sister would also
care for Luke.
On December 22, 2014, Dr. McCloskey examined Luke for his two-month well-check
visit. It was then that Kimberly first noticed a mark on Luke. At that time, she did not know it
was a bruise, describing it as a “discoloration,” and pointed it out to Dr. McCloskey. Kimberly
recalled that Dr. McCloskey was not sure what the mark was, but that the doctor conjectured that
it was some discoloration or possibly the “start of a birthmark.” Then, on January 30, 2015,
Luke was brought to the Kingstown Pediatrics due to a cough, and was diagnosed with
bronchiolitis and wheezing and prescribed treatment with a nebulizer. Kimberly again pointed
out the same bruise to a nurse practitioner because it was still “yellowing.” Kimberly testified
that the nurse was similarly unsure as to what the mark was and told her “to just keep an eye on
it.”
Kimberly testified that, in mid-February, she called Kingstown Pediatrics to ask if she
could give Luke rice cereal because she thought that he wanted to eat more. She was told to wait
until the four-month well-check visit so that the doctor could examine Luke and make a
determination at that time. On February 27, 2015, Dr. McCloskey examined Luke for his four-
month well-check visit; and Kimberly, Mrs. Warrington, and Madlyn were present. During the
visit, Kimberly alerted Dr. McCloskey to two bruises that she had recently noticed: one on
Luke’s right buttock and one on his chest. When Dr. McCloskey examined Luke’s buttock, his
skin appeared “normal”; and the mark on his chest was “a very small fading yellow discoloration
that looked at the end of a bruising process.” Doctor McCloskey informed Kimberly that,
-4-
because the bruise was barely noticeable, “[she] didn’t know for sure if it was a resolving bruise
at the very end of the healing process or another different type of skin lesion.” According to Dr.
McCloskey, Kimberly told her that “[s]he thought that [the bruises] could have been due to the
car seat straps being too tight.” Doctor McCloskey testified, however, that she had never seen an
infant of four months suffer bruising from car seat straps. Doctor McCloskey further testified
that, during that visit, she did not observe any other bruising or concerning marks on Luke’s
skin. Kimberly testified that Luke had “a little mark on his bottom” and “tiny little marks on his
side[,]” but she explained that she did not bring them to anyone’s attention because “it didn’t
seem like anyone was overly concerned and he never was in any apparent distress, and so [she]
thought [Luke] bruise[d] easily * * *.”
Doctor McCloskey was concerned at that four-month visit because Luke’s weight had
decreased to “just above” the tenth percentile, down from the fiftieth percentile at his two-month
well-check visit. Doctor McCloskey testified that a drop in percentile is not uncommon, but she
noted that it is cause for concern when an infant’s growth “decreased by two large
standard[-]deviation percentile points[.]” During that visit, Dr. McCloskey discussed Luke’s
eating and drinking with Kimberly and recommended that she increase his intake. She
characterized Kimberly’s response to that conversation as “[a]ppropriate.”
Ultimately, Dr. McCloskey recommended that Luke have bloodwork done because his
bruising was abnormal and unexplained. Mrs. Warrington testified that the bloodwork was
requested to determine the cause of Luke’s bruising, and recalled that a possible explanation for
his bruising was low iron levels. Mrs. Warrington further recalled that Dr. McCloskey did not
seem concerned about Luke’s bruises. Doctor McCloskey testified that Kimberly “seemed open
to taking him [to get bloodwork done] and told [Dr. McCloskey] that she would take him the
-5-
next day.” Doctor McCloskey also advised Kimberly to call the office if she noticed any new
bruising on Luke.
On Monday, March 2, 2015, Kimberly called Kingstown Pediatrics and informed an
office secretary that Mrs. Warrington, who had been babysitting Luke, noticed a thumb-sized
bruise on Luke’s chest. Mrs. Warrington testified that the bruises were not there on Friday, but
appeared on Monday and were “blackish/grayish” in color. According to Dr. McCloskey, she
received the message that Kimberly had called, and she returned Kimberly’s call and left a voice
mail indicating her concern regarding the new bruise and asked Kimberly to bring Luke for the
bloodwork and back to her office for an examination. Doctor McCloskey testified that Kimberly
did not return her phone call that day, nor on the following day, so she called Kimberly again and
left a message repeating her concerns and requests that the bloodwork be completed. By the next
day, Dr. McCloskey still had not received a return call from Kimberly.
On Thursday, March 5, 2015, Dr. McCloskey again called Kimberly, and Kimberly
answered. Doctor McCloskey testified that in her practice she had never had to call a parent
three times without receiving a response. Doctor McCloskey relayed her concerns about Luke
and her requests for bloodwork and to examine Luke. When Dr. McCloskey mentioned
Kimberly’s lack of response to her phone calls, she testified that Kimberly replied, “Well, I am a
busy woman.” Doctor McCloskey explained that at that point in time “[she] was very concerned
about Luke and [that she] was further concerned that it didn’t seem like mom was too
concerned.” That same day, Kimberly had the bloodwork completed and brought Luke to
Kingstown Pediatrics for an examination. Kimberly testified that she never received any voice
-6-
mails from Dr. McCloskey and noted that it was her understanding that she had two weeks to
obtain the bloodwork.4
Kimberly also did not recall Dr. McCloskey ever expressing any concern over Luke’s
bruising. Instead, she remembered Dr. McCloskey indicating that “[i]t could be something from
like vitamins so let’s just check it out first.” She only recalled Dr. McCloskey telling her that
“[e]verything looks really great but I am concerned about the weight[.]” Mrs. Warrington
similarly recalled that Dr. McCloskey did not indicate that the bloodwork was urgent. She
explained that, if Dr. McCloskey had expressed urgency, she would have taken Luke to undergo
bloodwork because Kimberly had a work commitment.
When Dr. McCloskey examined Luke on March 5, 2015, she found three new bruises,
yellow-green in color, “one on each side of his upper chest and one on his abdomen.” Upon
observing this bruising, Dr. McCloskey recommended that Luke be taken to Hasbro Children’s
Hospital. According to Dr. McCloskey, Kimberly initially asked if the hospital visit could be
postponed until the results of the bloodwork were obtained. Doctor McCloskey testified that she
was “too concerned” because “this [was] not normal for his age and he need[ed] to go to the
children’s hospital right now.” Doctor McCloskey testified that Kimberly was worried about
driving to the hospital because of the snowy road conditions. Therefore, Dr. McCloskey called
an ambulance for Kimberly and Luke “[b]ecause [she] felt very strongly that he needed to go to
the hospital for further examination.” Doctor McCloskey also examined Madlyn and found no
markings. After Kimberly and Luke left in the ambulance for the hospital, Dr. McCloskey called
the Department of Children, Youth and Families (DCYF) twenty-four-hour hot line and reported
4
Kimberly disputed at trial that Dr. McCloskey called her three times. She submitted her phone
records indicating that she called Kingstown Pediatrics on March 2, 2015, and did not receive a
return call until March 5, 2015.
-7-
that Luke had unexplained bruising. Overall, Dr. McCloskey affirmed that during all her visits
with Luke, Kimberly was cooperative and that Luke appeared to be a “happy baby” who showed
no signs of distress.
Luke was admitted through the emergency department at Hasbro Children’s Hospital,
where he was seen by Dana Kaplan, M.D., a fellow in child-abuse pediatrics. Doctor Kaplan
interviewed Kimberly as part of her standard procedure, but she noted that it was difficult to
extract information from Kimberly regarding the chronological history of Luke’s bruises because
of her “emotional state.” She described Kimberly as “emotionally labile” because “at one
moment she was crying, visibly anxious, shaking and at another moment she would be calm and
collected and be able to answer a question.” She further testified that “[Kimberly] was tangential
at times which mean[t] [the doctor] would ask her a question and she would go off in a different
direction and [the doctor] would [frequently] have to redirect her.” Kimberly informed Dr.
Kaplan that Luke had bruising within the past few days and that she had brought Luke to the
pediatrician. Then, Kimberly corrected her statement and noted that the bruises were noticed
approximately six to eight weeks ago. Doctor Kaplan observed bruises on Luke’s right chest, his
left rib cage, and his abdomen. During Dr. Kaplan’s physical examination of Luke, she noticed a
bump on Luke’s upper left extremity “that shouldn’t have been there[.]” She ordered a skeletal
x-ray to gather more information. Kimberly and Luke stayed in the hospital overnight awaiting
the skeletal survey, which was set to take place the following day.
Doctor Kaplan recalled during her testimony that she was concerned about Luke based on
Kimberly’s statement that she had noticed the bruises six to eight weeks prior. Doctor Kaplan
testified that bruises do not take six to eight weeks to heal. Additionally, Dr. Kaplan was
concerned because, in reviewing Luke’s medical records for his pediatrician visit on February
-8-
27, 2015, there was no record of an abdominal bruise; yet, on March 5, he presented with the
new abdominal bruise. Kimberly informed Dr. Kaplan that she did not know how the bruising
occurred, but after being questioned further, Kimberly posited that because of the location of the
bruises, the bruising could have been caused by the car seat straps. Doctor Kaplan investigated
the car seat theory by placing Luke in the car seat, but she determined that a car seat buckle
would not create “enough of a force * * * to cause bruising in an infant.”
According to Dr. Kaplan, Kimberly explained that she “was very overwhelmed,” “[t]here
was a lot of stress going on in her life,” and she and her husband were undergoing a divorce that
included “a significant custody battle[.]” Kimberly further explained to Dr. Kaplan that “she felt
overwhelmed with both kids and with having to go back to work.” Kimberly also indicated that
she was the primary caregiver and, in addition, noted that her mother also took care of the
children. Kimberly further reported that Luke had short visits with his father in January and
March.
At the conclusion of the interview, Kimberly asked Dr. Kaplan, “Am I reacting normal to
this?” Doctor Kaplan testified that she did not know how to respond to Kimberly’s question.
Doctor Kaplan “found it concerning that [Kimberly’s] question was not about [Luke’s] welfare[,]
but [instead] about how she was acting and [Dr. Kaplan’s] perception of her.” Doctor Kaplan
concluded that Kimberly should participate in an inpatient psychiatric-hospital program, which is
“an intensive program for women specifically who are postpartum [and] having issues with
depression and anxiety.”
Joshua Cottle, a DCYF child protective investigator (CPI), also interviewed Kimberly,
Mr. and Mrs. Warrington, Andrew’s mother and her partner, and Andrew’s sister; he also
examined Luke and visually assessed Madlyn at the hospital. Kimberly indicated to Cottle that
-9-
Luke’s bruising could have been caused by the car seat or could have occurred when Luke was
picked up. Kimberly described Luke as “a very easy baby to care for, that he consistently [went]
to bed on a schedule and that he [ate] consistently on a schedule as well.” She did not indicate
that Luke was ever fussy or in pain. Kimberly denied abusing Luke. On March 7, 2015, Cottle
also met with Andrew.
According to Dr. Kaplan, the results of the skeletal survey showed that Luke had suffered
eleven rib fractures, a fracture in his left arm of the radius and the ulna, and a “classic
metaphyseal lesion of the right lower extremity.” Three of his rib fractures were close to the
spine, and the other rib fractures were either on his side or near the front of his rib cage. Doctor
Kaplan testified that bruising is “generally apart from the fractures * * * for a variety of
reasons.” In addition, she noted that bruising in a four-month-old infant is “incredibly” unusual
because a baby does not “move enough to cause an injury[.]” Doctor Kaplan opined that Luke’s
rib fractures may have occurred by compression when Luke was being held. She further
concluded that Luke’s fractures “occurred outside the realm of normal caretaking.”
According to Dr. Kaplan, the fracture on Luke’s lower extremity was located where his
leg met his foot and appeared to be a chipped bone. Doctor Kaplan called that type of injury a
“metaphyseal lesion.” Doctor Kaplan explained that there are two mechanisms that can cause
“classic metaphyseal lesions.” The first is caused by “a very forceful pulling, twisting or
wrenching of the extremity.” The second is called “sheer injury” that occurs when “a baby and
the[ir] legs [are] dangling and they are moving back and forth and the two parts of the bone are
rubbing against each other,” causing microfractures at the end of the bone. Doctor Kaplan next
described the two fractures in Luke’s left forearm. She characterized them as “oblique
fractures,” which occur “when there is * * * a force going straight up and down but also a bone
- 10 -
in motion so there is some motion to the bone to cause that particular type of fracture, not a
full[-]on twist but some motion of the bone.”
In examining the x-rays, Dr. Kaplan concluded that Luke’s fractures were healing and
she estimated that they were more than ten days old. She further testified that the fractures
“probably” occurred within the past two months, but she noted that she could not provide an
exact time frame. She further indicated that an estimation that they occurred in the past three
months, on the other hand, “would seem a bit on the longer side.” When asked if she could “say
with a reasonable degree of medical certainty whether all fourteen fractures occurred at the same
time[,]” Dr. Kaplan replied that she “couldn’t say that they all occurred at the same time.” She
explained that, approximately two weeks following the fractures, a callus, or new bone, would
have started to form and would have begun to stabilize the fractures. She noted that, during the
two weeks following the fractures and before the callus formed, Luke would have experienced
significant pain and the injuries would have been swollen. Doctor Kaplan further explained that,
during the two-week window, “significant” pain should have been apparent when placing Luke
in a Onesie, for example, because his fractures were not stabilized.5 She postulated that “every
time the baby were to breathe, it may have been painful because [he would have been] pressing
against those fractures and causing pressure[.]” Doctor Kaplan opined that a caretaker who lived
with the child should have noticed that Luke was in pain during that two-week healing period.
Doctor Kaplan noted that the results of the bloodwork ordered by Dr. McCloskey were
normal and only indicated that Luke had a “slightly low” vitamin D level. She explained that
babies who are deficient in vitamin D can show signs of bones that are not mineralized; however,
she determined that Luke’s bones were “normally mineralized” and, thus, concluded that his
5
A “Onesie” is “[a] trademark for a one-piece article of clothing for infants * * *.” The
American Heritage Dictionary of the English Language 1232 (5th ed. 2011).
- 11 -
vitamin D deficiency would not have caused the fourteen fractures. Luke’s other markers for
bone mineralization, liver function, and noncontrast head CT were all normal. In addition, he
was tested by a geneticist for osteogenesis imperfecta, a rare metabolic bone condition, and for
rickets, both of which were negative. Doctor Kaplan testified that, in her opinion and to a
reasonable degree of medical certainty, the cause of Luke’s injuries was abuse.
Doctor Kaplan surmised that none of the fractures could have occurred during the most
recent visit with Andrew, on March 1, 2015, because that date was only about six days prior to
the hospital visit, and Luke’s x-rays showed a “pretty significant callus.” She estimated that
Luke’s injuries occurred at least ten days prior to the x-rays.
In regard to Andrew’s contact with the children, he had visited Luke in the hospital when
he was born. In addition, he had two visits with Luke prior to a two-hour visit on December 28,
2014. In her text exchanges with Andrew to arrange the visits, Kimberly tried “not to engage in
any argumentative type of behaviors.” Kimberly “felt safest with supervision” during the
children’s visits with their father because of the couple’s history of domestic violence. A
subsequent visit with Andrew took place on January 18, 2015. Andrew testified that the visit
was supervised at all times from 9 a.m. to 1 p.m. The next visit lasted two hours and took place
on March 1, 2015, from 9 to 11 a.m. Andrew testified that there was a long gap between visits
with Luke because one of the visits was only with Madlyn, and the next three proposed visits
were snowy days, on two of which, Andrew agreed, the conditions made it too dangerous to
drive.
Madlyn had more frequent and longer visits with her father than did Luke. Kimberly
testified that, if Luke did not accompany Madlyn on visits with their father, it was because
Andrew had not requested to see Luke. However, Andrew testified that he asked to see Luke
- 12 -
every time he saw Madlyn. Andrew noted that Kimberly had custody of Madlyn, but that they
had yet to return to the Family Court to set visitation for Luke because he had not been born at
the time of the last court date. Andrew’s mother testified that she never observed Luke in
distress, even when Andrew changed his diapers or dressed him.
At the hospital, on March 6, 2015, Dr. Kaplan and the medical team, including CPI
Cottle, informed Kimberly about Luke’s fractures and notified her that Luke and Madlyn would
be placed in DCYF custody for a seventy-two-hour hold because Cottle made a finding of
physical abuse. Kimberly began to cry and stated to Dr. Kaplan, “I should have never told you
all those things I told you before.” Doctor Kaplan testified that Kimberly’s statement “struck
[her]” because “[w]e had just told her that her son had been badly injured, a lot of fractures and
bruises, and it concerned me that again her focus was that she shouldn’t have told me what her
mental status was and what her feelings were and her anxiety, and that that became the focus,
less so her son’s health.” Cottle testified that Kimberly “plainly stated that these injuries did not
occur at her home and that the injuries must have occurred while on a visitation with Luke’s
father.” Kimberly denied causing the fractures to Luke and testified that she did not know who
caused them. Two weeks later, Dr. Kaplan conducted a follow-up examination and noted that
Luke did not have any new bruises and that a new skeletal x-ray showed no new injuries.
B
Kimberly’s Motion to Dismiss
After DCYF rested its case, Kimberly moved to dismiss DCYF’s abuse and neglect
petition, contending that DCYF had failed to prove its case by clear and convincing evidence.
DCYF and the Court Appointed Special Advocate (CASA) both objected to Kimberly’s motion
to dismiss. Kimberly argued that DCYF lacked probable cause to support its petition, and she
- 13 -
pointed to the fact that the police had failed to arrest Kimberly. However, CASA noted that
Kimberly’s attorney had waived a probable-cause hearing in the Family Court. Kimberly
specifically contended that DCYF failed to demonstrate through testimony that she was a “bad”
mother, citing to Dr. McCloskey’s testimony and the fact that Kimberly “showed up to all the
appointments * * *. She took care of her children. They were clothed properly. They were
bathed properly.” Kimberly further argued that DCYF failed to show that she was overwhelmed
by her situation or that she was a drinker or attended a lot of parties. In addition, she contended
that DCYF failed to prove that Luke had ever shown any signs of distress. Kimberly analogized
the present case to In re Adner G., 925 A.2d 951 (R.I. 2007), and argued that here, as in In re
Adner G., DCYF failed to show by clear and convincing evidence that no one other than
Kimberly had significant access to Luke. See In re Adner G., 925 A.2d at 957.
In rendering his decision on Kimberly’s motion to dismiss, the trial justice indicated that
DCYF had to prove its allegations by clear and convincing evidence. He took note of the
vehement and unequivocal statements by Kimberly and Mrs. Warrington denying that they had
inflicted injury upon Luke. He found that Kimberly and Mrs. Warrington were the main
caregivers for Luke. He further noted that the testimony was clear that Andrew had no
unsupervised contact with Luke, and he credited paternal grandmother’s testimony to that end.
The trial justice found both Dr. McCloskey and Dr. Kaplan “very credible, particularly Dr.
Kaplan.” The trial justice acknowledged Dr. McCloskey’s testimony that it was unusual for a
four-month-old to have bruising and her concerns that Kimberly had not been responsive to her
requests to obtain Luke’s bloodwork. He noted Dr. Kaplan’s testimony that the fractures, when
they had occurred, would have caused Luke distress and substantial pain during any movement
of the broken bones, and particularly when he was being bathed or clothed. The trial justice
- 14 -
acknowledged Dr. Kaplan’s testimony that the fractures were “between two months of age and
ten days before the examination in March of 2015[.]” He also took note of Dr. Kaplan’s
description of Kimberly’s reaction when she was informed that her son had suffered fourteen
fractures. The trial justice further noted Dr. Kaplan’s conclusion that Kimberly was “labile,”
inappropriate, and showed a lack of concern for Luke. In addition, he noted Dr. Kaplan’s
testimony that the fractures were nonaccidental.
Overall, the trial justice characterized the case as circumstantial and, thus, one that
required reasonable inferences based on the evidence presented. Because the trial justice found
that Kimberly was the primary caregiver, even though other individuals were involved in Luke’s
caretaking, he concluded by clear and convincing evidence that the cause of Luke’s injuries was
“likely the mother and that she either knew who caused them or caused them herself[.]” Thus,
he found that DCYF had indeed met its burden of proof at that stage of the proceedings, and
Kimberly’s motion to dismiss was denied.
C
Kimberly’s Defense
Kimberly called a number of witnesses to testify, some for the second time, as part of her
defense, including her sister Kathryn and Mr. and Mrs. Warrington.
Kathryn testified that she had been living with Kimberly and the children. She described
Kimberly as a consistently “very caring person” who “always wanted to be a teacher[.]” She
noted that her sister regularly had a job and that she traveled, attended college, double-majored,
and always continued to play softball. Kathryn coached with her sister and described Kimberly
as “great with the team[.]” She described Kimberly’s marriage as “rocky at best,” but she noted
that otherwise things were normal and Kimberly was a “happy mom,” particularly after Andrew
- 15 -
moved out. Kimberly had called Kathryn from Hasbro Children’s Hospital after she learned of
Luke’s injuries. Kathryn described Kimberly as “emotionally flooded” during that phone call
and speculated that was because “[Kimberly] was being asked question after question after
question after question * * * [and she] hadn’t eaten in hours.” Kathryn testified that the next
day, when she picked Kimberly up at the hospital, “[Kimberly] was crying and crying and crying
and crying.”
Mr. Warrington also testified for the defense. He described Kimberly as “[a] good
student [and] good child.” He noted that Kimberly was “unhappy at times when she was going
through the difficulties with the ex-husband * * *.” He explained that she was “a good mother,
normal mother, very loving * * *.” He noted that he thought Kimberly was handling the stress of
her divorce with her two young children “very well.” He indicated that he was angry when he
learned that Luke had been injured because “somebody did that to [his] grandson or it happened
to [his] grandson * * *.” When asked who he was angry with, he responded “[h]ow it happened,
who did it, whatever, however it happened.”
Mrs. Warrington also testified for a second time. She described Kimberly as a “good
little girl” with a “normal childhood.” She testified that she observed Kimberly undergo two
normal pregnancies with Madlyn and Luke, and that, after Luke was born, Kimberly was “a
mother that was very happy” who “love[d] her children.” Mrs. Warrington described Andrew as
“very violent[.]” Mrs. Warrington also indicated that Andrew and Kimberly “could not get
along.” She testified that “[she] know[s] what kind of person [her] daughter is and [she] know[s]
she would never hurt her children.” Mrs. Warrington described Luke as “a very, very good
baby” and expressed “[t]hat’s why I can’t believe any of this is going on. He was incredibly
good.” She indicated that the only time Luke was cranky was when he had a bad cold and cough
- 16 -
and “was on a nebulizer.” She further testified that she had “no idea” what happened to Luke
and stated “[t]hat’s what we’re all trying to figure out.” She denied causing Luke’s injuries.
Brian Hayden, Ph.D., an adjunct professor of psychology at Brown University with a
Ph.D. in clinical psychology, also testified during Kimberly’s defense. He was contacted by
DCYF to conduct an evaluation of Luke’s family and had informed Kimberly that he would be
reporting back to DCYF. As part of his evaluation, Dr. Hayden met with Kimberly and observed
her with her children. In addition, he spoke with Dr. Kaplan. During their first session, on May
2, 2015, Dr. Hayden interviewed Kimberly and administered a series of psychological tests for
over three hours. Doctor Hayden first obtained background information from Kimberly.
Subsequently, he administered a Rorschach inkblot test in person, and then Kimberly filled out
the remainder of the test forms. He explained that the “confluence” of the tests and the interview
“make[] [his] interpretation [of the findings] more valid[.]” Kimberly left after she filled out the
psychological forms, and then Dr. Hayden evaluated her responses.
Out of respect for Kimberly’s privacy, we shall not explicate the results of Dr. Hayden’s
testing and evaluations. Suffice it to say that the personality tests did not indicate impulsivity or
a personality disorder, and Dr. Hayden found Kimberly to be “quite open, genuinely concerned
about her children, genuinely confused about what had happened to her child and wanting to
know answers[.]”
On May 26, 2015, Dr. Hayden conducted an observation of Kimberly with her two
children at the home of Mr. and Mrs. Warrington. Doctor Hayden characterized Kimberly’s
behavior towards Madlyn during the observation as “perfectly appropriate” and “very loving.”
He noted some initial wariness by Madlyn when Kimberly first arrived. He indicated that the
wariness lasted “a little bit longer than one would have expected[,]” but he attributed it to
- 17 -
Madlyn’s likely lack of understanding as to why she was removed from her mother’s care. He
further observed that Luke appeared “perfectly comfortable” with his mother. He concluded that
he witnessed “nothing that would suggest that [Kimberly] would have been abusive towards
either of her children.” He further noted that, after speaking with Dr. Kaplan regarding the
“tremendous distress” that the fractures would have caused Luke, “it just didn’t add up.” He
recommended to DCYF that they continue the children’s contact with Kimberly, but have it
restricted and supervised because he “couldn’t just arbitrarily undo [the DCYF plan].”
Doctor Hayden separately administered the same tests to Andrew, and he also
interviewed him and observed him with the children. He conducted a more extensive and
detailed aggression questionnaire due to his knowledge of the history of domestic abuse between
Andrew and Kimberly. Doctor Hayden concluded that “father has more of an anger issue than
mother[.]” Andrew indicated to Dr. Hayden that he wanted to know who injured Luke. During
Dr. Hayden’s observations of Andrew with the children, the interactions were “mutually
constructive, calm, and evidence[d] emotional warmth and bonding.” Doctor Hayden
recommended to DCYF that Andrew continue to receive supervised visits during the abuse
investigation period. He also recommended that the length of those visits be extended by one
hour to foster Andrew’s bonding with Luke, and that Andrew complete an anger-management
class.
Kimberly also presented several witnesses who had known her from two years to over
twenty years, either as a friend or as a softball coach. They all testified that she had a reputation
in the community for truthfulness. Julie Culhane, one of the witnesses, also testified that, when
her children attended softball pitching lessons with Kimberly, which could range from one to
- 18 -
three times per week, she would watch Madlyn and Luke. She noted that she would occasionally
be alone with the children in a hallway or at a field.
Additionally, Kimberly testified for a second time and provided a more detailed
description of her time with her children. She described that time as “awesome,” and she said
that her children were “just fantastic.” She provided testimony that further elaborated on her
prior testimony regarding Dr. McCloskey’s allegedly unreturned phone calls. Over CASA’s and
DCYF’s objection, the trial justice admitted, as a full exhibit, Kimberly’s phone records. The
phone records indicated and Kimberly testified that she had called Kingstown Pediatrics on
Monday, March 2, to report the new bruises and did not receive a return call until Thursday,
March 5, at 11:30 a.m., contrary to Dr. McCloskey’s testimony that she called Kimberly three
times that week without receiving a response.
Kimberly also testified that she had placed a call to DCYF on March 2, 2015, the day
following Luke’s visit with Andrew. She left a message indicating that she had concerns about
her children and asked DCYF to return her call. She was worried because Luke had “additional
marks on him” and “Madlyn came back from [the] visit with an entirely different change of
clothes without real reason” and she thought Madlyn was “exhibiting some odd behaviors.”6 She
testified that DCYF did not return her call.
Kimberly clarified that Luke had most recently visited with Andrew on January 18 from
9 a.m. to 1 p.m. and March 1 from 9 to 11 a.m. Kimberly further noted that the children did not
6
Doctor McCloskey noted in Madlyn’s medical records, on the same day that Luke was sent to
Hasbro Children’s Hospital, that Kimberly told her that, when Madlyn returned from her visit
with Andrew on March 1, 2015, she had exhibited “strange” behavior, such as “trying to kiss and
touch mom’s and maternal aunt’s private area[s].” Doctor McCloskey further noted that
Madlyn’s exam was normal, but she indicated, however, that Madlyn’s behavior, as described by
Kimberly, was “unusual and concerning.” She further indicated that in addition to notifying
DCYF about Luke’s bruising, she also notified DCYF about Madlyn’s behavior.
- 19 -
sleep at Andrew’s home during those visits. After Kimberly and Mrs. Warrington picked Luke
up on March 1, Kimberly readied him for bed, fed him, changed his diaper, and fed him the next
morning. Then, later that morning, Mrs. Warrington noticed new bruises on Luke and contacted
Kimberly. Kimberly then called Kingstown Pediatrics.
Doctor McCloskey testified on May 24, 2016, that Luke was still her patient and that she
had not noticed any new bruising since he was removed from Kimberly’s care. In addition, she
testified that “[Luke had] made steady inclines back to the [fiftieth] percentile” and “[h]e’s doing
great. He’s growing. His most recent weight was between the [fiftieth] to [seventy-fifth]
percentile.”
On June 21, 2016, the trial justice issued his decision. He concluded that Kimberly
“inflicted or allowed to be inflicted upon these children physical abuse; that both children [were
to be] committed to the care, custody and control of the director of DCYF until further order of
the court[.]” Kimberly timely filed a notice of appeal on July 7, 2016.
II
Standard of Review
“Rule 17(b) of the Family Court Rules of Juvenile Proceedings sets forth the standard
under which abuse determinations are to be made[,]” providing that a “[d]etermination that a
child is abused, neglected, or dependent shall be made upon clear and convincing evidence.” In
re Adner G., 925 A.2d 951, 957 (R.I. 2007) (quoting R. Juv. P. 17(b)). “[T]he clear and
convincing standard requires that the fact-finder form a ‘clear conviction without hesitancy of
the truth of the precise facts in issue.’” Id. (quoting Parker v. Parker, 103 R.I. 435, 442, 238
A.2d 57, 61 (1968)). In our review, “we examine the record to determine whether legally
competent evidence exists in it to support findings made by the trial justice.” Id. (quoting In re
- 20 -
Mackenzie C., 877 A.2d 674, 685 (R.I. 2005)). “These findings are entitled to great weight and
will not be reversed on appeal unless the trial justice overlooked or misconceived material
evidence, or was otherwise clearly wrong.” Id. (quoting In re Mackenzie C., 877 A.2d at 685).
Our review, therefore, is deferential; “we must search the record in this case to determine
whether legally competent evidence exists to support the trial justice’s finding * * *.” Id.III
Analysis
On appeal, Kimberly puts forth several assertions: (1) there was insufficient evidence to
support an inference of abuse or allowance of abuse by Kimberly, because Luke did not present
with pain or injury; (2) Luke’s other caretakers should have been held to the same standard of
care as a parent; (3) Kimberly’s fundamental rights were violated when the children were
removed from her care without due process or a reasonable suspicion of abuse or neglect; (4) Dr.
McCloskey’s and Dr. Kaplan’s testimony regarding statements Kimberly had made was
inadmissible hearsay because the statements were not made for diagnosis or treatment pursuant
to the hearsay exception set forth in Rule 803(4) of the Rhode Island Rules of Evidence; (5) the
trial justice erred in denying Kimberly’s motion to dismiss when no evidence was presented to
support the inference that she was the cause of Luke’s fractures; (6) the trial justice overlooked
and/or misconceived material evidence; and (7) Kimberly was prejudiced when Andrew was
allowed to remain in the courtroom, notwithstanding Kimberly’s motion to sequester.
A
Evidence of Abuse and Neglect of Luke
Kimberly contends that the trial justice erred in denying her motion to dismiss and in
ultimately finding that the evidence supported an inference that she had abused and neglected
- 21 -
Luke. Specifically, Kimberly argues that the trial justice overlooked and misconceived material
evidence—namely Dr. Hayden’s testimony, evidence that Kimberly “acted responsibly in caring
for her children,” and Kimberly’s phone records. We note, however, that the trial justice
thoroughly and methodically examined each of the witnesses’ testimony, including the separate
testimony of those witnesses who testified for both DCYF and Kimberly.
The trial justice considered Dr. Hayden’s testimony and indicated that he was “a strong
witness” for Kimberly, particularly in his finding that Kimberly did not possess the type of
personality that would cause her to injure Luke. Furthermore, he credited Dr. Hayden’s
acknowledgment of the limitations of his psychological testing. Thus, we are satisfied that the
trial justice did not overlook Dr. Hayden’s testimony.
Moreover, the trial justice did not overlook testimony that Kimberly was responsible in
caring for her children. Rather, he carefully reviewed the positive testimony by family, friends,
and community members that was presented on behalf of Kimberly and noted that the witnesses
consistently remarked that she was “an excellent mother” and had “good character” and a
“loving nature towards her children.” In addition, the trial justice described Kimberly as lighting
up when she spoke about her children in her testimony, and he added that “[s]he showed without
question that she clearly loves these children.”
We further note that, although the trial justice acknowledged the “confusion” regarding
phone calls to and from Dr. McCloskey in March 2015, he did not attempt to resolve the
discrepancy between Dr. McCloskey’s testimony that her calls to Kimberly went unreturned and
Kimberly’s cell phone records, which only reflected Kimberly’s initial phone call to Kingstown
Pediatrics and Dr. McCloskey’s phone call during which she spoke with Kimberly. We do not
conclude therefrom, however, that the trial justice overlooked or misconceived material
- 22 -
evidence. On appeal, Kimberly suggests that the phone records belie the great concern about
Luke to which Dr. McCloskey testified at trial. Be that as it may, the sequence of phone calls
and messages, and indeed Dr. McCloskey’s concern, pale in comparison to the undisputed
evidence that Luke sustained fourteen unexplained nonaccidental fractures.
Overall, the trial justice’s decision was predicated on three central findings. First, he
identified Kimberly and Mrs. Warrington as Luke’s primary caregivers. Specifically, he found
that both Kimberly and Mrs. Warrington were Luke’s primary caregivers during the time Luke’s
injuries likely occurred. In addition, the trial justice noted that Kimberly and Mrs. Warrington
“repeatedly and vehemently denied that either of them were responsible for the [fourteen]
fractures suffered by Luke.” The trial justice found credible Mrs. Warrington’s “strenuous
denial that she did any harm to her grandson.” In contrast, the trial justice found that Kimberly’s
“denial as to any knowledge of how [Luke’s] injuries were caused [was] not credible * * *.” We
give both credibility determinations great deference. See Guertin v. Guertin, 870 A.2d 1011,
1020 (R.I. 2005) (concluding that “[i]n a trial without a jury, credibility determinations are
within the sound discretion of the trial justice”).
Second, the trial justice determined that the time frame for Luke’s injuries set forth by
Dr. Kaplan did not correlate with Luke’s visits with Andrew. The trial justice cited the
testimony of Kimberly, Andrew, and Dr. Kaplan as the basis for his finding that Andrew did not
cause Luke’s injuries. In addition, he noted Andrew’s mother’s testimony that Luke’s visits with
Andrew were all supervised. The trial justice further acknowledged that Kimberly had called
DCYF on March 4, 2015. The trial justice also pointed out the fact that, during the divorce
proceedings, Kimberly never accused Andrew of abusing Luke.
- 23 -
Third, he credited Dr. Kaplan’s testimony that Luke’s injuries were consistent with child
abuse and likely caused him substantial pain during the two weeks following the fractures.
Kimberly contends, however, that, because the evidence at trial showed that Luke was never
observed to be in distress, the inference that she either abused Luke or allowed him to be abused
was unsupported because there were other reasonable inferences to be made regarding the cause
of Luke’s injuries: “metabolic disorder could be the culprit as medicine in this area is still
evolving, or, others involved who had sufficient and significant access to Luke over a substantial
amount of time could have caused the injuries.” The trial justice, however, found Dr. Kaplan’s
testimony that Luke’s fractures were “non[]accidentally caused and were consistent with child
physical abuse” to be “convincing, compelling, and weighty[.]” Moreover, the trial justice found
that it was “reasonable to infer” that Kimberly, as Luke’s primary caregiver, “either perpetuated
said physical abuse upon her son or allowed same to occur * * *.” We note that Luke had since
been seen by Dr. Kaplan, who testified that a new skeletal x-ray had not revealed any new
fractures; and, at the time of trial, Luke continued to be in the care of Dr. McCloskey and had
suffered no further bruising and had gained weight.
We conclude, after a thorough review of the record, that legally competent evidence
exists to support these findings by the trial justice. Therefore, we find no error in the trial
justice’s denial of Kimberly’s motion to dismiss or in his grant of DCYF’s petition alleging
abuse and neglect.
B
Kimberly’s Fundamental Rights and DCYF’s Temporary Hold on the Children
On appeal, Kimberly contends that her fundamental rights under the Fourteenth
Amendment to the United States Constitution were violated because DCYF placed a seventy-
- 24 -
two-hour hold on her children without further investigation and without reasonable suspicion
after Luke’s skeletal survey revealed fourteen fractures. However, Kimberly and Andrew both
waived their right to a probable-cause hearing on DCYF’s ex parte petition. See R. Juv. P.
15(c)(5) (providing that a parent has a right to a probable-cause hearing on the ex parte petition).
Therefore, we conclude that Kimberly’s challenge to the temporary hold on the children was not
preserved for appeal.
C
Luke’s Other Caregivers and In Loco Parentis
Kimberly maintains that Luke’s other caregivers should be held to the same standard of
care to which she is held as a parent. In support of her contention, she points to In re Adner G.,
cited supra, which similarly involved a DCYF abuse and neglect petition. In re Adner G., 925
A.2d at 953. There, a justice of the Family Court found that the parents had abused their seven-
week-old infant, Jadnerisse. Id. at 953, 956. The mother had testified that, since Jadnerisse’s
birth, she had always been concerned with the frequency of the baby’s crying, so she had brought
Jadnerisse to see numerous medical professionals and was consistently told that Jadnerisse’s
crying was normal and that she was healthy. Id. at 954. However, a skeletal x-ray of Jadnerisse
revealed that she had suffered numerous fractures, in various stages of healing, caused by
“non[]accidental trauma.” Id. at 955, 956. The doctor who examined Jadnerisse testified that
Jadnerisse’s leg fractures that prompted her admission to the hospital were acute and had
probably occurred within the past twelve to twenty four hours. Id. at 956. Because of
Jadnerisse’s acute leg fractures and her other older injuries, the doctor testified that she could not
“rule out” the parents or the daycare provider as the cause of her injuries. Id. The daycare
provider had been caring for Jadnerisse, while mother worked, from morning until approximately
- 25 -
3:30 p.m. Id. at 954. Both parents “vehemently denied” causing Jadnerisse’s injuries, but were
unable to provide an explanation as to how the trauma occurred. Id. at 956.
This Court concluded in In re Adner G. that a reasonable inference would be deemed
supported when either: (1) the injuries to the child were so obvious “that they could not have
gone unnoticed by anyone ostensibly caring for the child,” or (2) that “the person accused of the
abuse was the sole custodian and caretaker of the child when the injury took place.” In re Adner
G., 925 A.2d at 960. After a review of the record, we concluded that neither factor was present
to support the inference that Jadnerisse’s parents caused her injuries. Id. Specifically, we held
that “someone other than the parents had significant access to the child during the time when the
injuries probably were inflicted” and, therefore, this Court concluded that “the inference that
only the parents could have inflicted the injuries (or allowed another to do so) was not
reasonable.” Id. Our conclusion was based on evidence showing that Jadnerisse was cared for
approximately eight hours a day during the week by a daycare provider, who did not testify, at a
daycare outside of the home, where two teenagers may have been living at the time. Id. at 961.
Thus, we held that the evidence was “insufficient to permit a reasonable inference to be drawn
that it was [the parents], and not the daycare provider or some other person present at the daycare
facility, who abused Jadnerisse.” Id. at 962.
Here, the trial justice distinguished the facts of the present case from those contained in
In re Adner G. The trial justice found that Luke’s only primary caregivers were Kimberly and
Mrs. Warrington, who cared for Luke while Kimberly was at work. The trial justice in In re
Adner G. pointed out that the doctor was unable to “rule out” either the parents or the daycare
provider as the perpetrator(s) of the abuse. Id. at 956. We note that, here, the trial justice heard
testimony from both Kimberly and Mrs. Warrington, unlike in In re Adner G., where the daycare
- 26 -
provider was not called to testify. Id. at 961. In his decision in the present case, the trial justice
found credible Mrs. Warrington’s denial that she caused any harm to Luke. On the other hand,
he found Kimberly’s denial not credible. Such credibility determinations are “within the sound
discretion of the trial justice.” Guertin, 870 A.2d at 1020. Therefore, because we have concluded
that the trial justice did not overlook or misconceive any material evidence, we will not disturb
his credibility determinations.
Moreover, in regard to Kimberly’s in loco parentis argument, we note that “the law holds
[a parent] to a greater level of substantial responsibility and awareness concerning the well-being
of [his or her child] than it otherwise might in the case of an adult relative or a stranger.” In re
Nicole B., 703 A.2d 612, 618 (R.I. 1997) (determining that parents who provided no explanation
for their child’s critical injuries are held to a higher level of responsibility for their child’s well-
being due to their status as parents). Accordingly, we conclude that the trial justice did not err in
his findings: Kimberly “was [Luke’s] prim[ary] caregiver and [that] it is reasonable to infer that
[Kimberly] either perpetrated said physical abuse upon [Luke] or allowed same to occur[.]”
D
Rule 803(4) and the Physicians’ Testimony
Kimberly argues that, pursuant to Rule 803(4) of the Rhode Island Rules of Evidence,
only statements made for purposes of diagnosis or treatment are admissible through a physician’s
testimony as an exception to the hearsay rule. Specifically, she cites to Dr. Kaplan’s testimony
that Kimberly asked her, “Am I reacting normal to this?” when Kimberly was informed that
Luke had fourteen fractures. In addition, Kimberly cites to Dr. Kaplan’s testimony that
Kimberly further stated, “I should have never told you all those things I told you before.” She
maintains that these statements were not made for medical diagnosis or treatment and are,
- 27 -
therefore, inadmissible hearsay. Kimberly’s counsel, however, failed to object to these
statements as hearsay during the trial and therefore failed to preserve the issue for appellate
review. See In re Shy C., 126 A.3d 433, 435 (R.I. 2015) (noting that “an issue that has not been
raised and articulated previously at trial is not properly preserved for appellate review”) (quoting
State v. Gomez, 848 A.2d 221, 237 (R.I. 2004)).
Kimberly also cites to Dr. McCloskey’s testimony that, when she asked Kimberly why
she had not returned her phone calls, Kimberly responded: “Well, I am a busy woman.” At trial,
during Dr. McCloskey’s testimony as to Kimberly’s statement, the following exchange took
place:
“[DR. MCCLOSKEY:] So I again said that I was concerned about
Luke and I would like him to get his blood work. I would like him
to come in for an exam, and I told mom about her lack of response
to the phone calls.
“[DCYF ATTORNEY:] Did she say anything back to you?
“[DR. MCCLOSKEY:] She did. She said, ‘Well, I am a busy
woman.’
“[DCYF ATTORNEY:] Okay, and when she responded that way,
what were you thinking at that point?
“[DR. MCCLOSKEY:] I was concerned. I, I was very concerned
about Luke and I was further concerned that it didn’t seem like
mom was too concerned.
“[KIMBERLY’S ATTORNEY:] Objection, Judge.
- 28 -
“[THE COURT:] Didn’t seem like mom was too concerned may
stand. Overruled.
“* * *
“[THE COURT:] You can cross examine as to that.
“[DCYF ATTORNEY:] Thank you.
And then, well, how concerned were you at that point?
“[DR. MCCLOSKEY:] I was very concerned.”
We conclude that this exchange at trial demonstrates that Kimberly’s counsel did not
properly preserve a hearsay objection for this Court’s review. The objection was posed
immediately following testimony regarding Dr. McCloskey’s impression of Kimberly.
Furthermore, the trial justice explained his ruling based on his interpretation of Kimberly’s
counsel’s objection as it related to the doctor’s impression of Kimberly’s level of concern for
Luke, not as a hearsay objection. Then, the direct examination of Dr. McCloskey proceeded
along the same line of questioning, without further objection or clarification by Kimberly’s
counsel. “[A] general objection at trial will not suffice to preserve an issue for appeal ‘when the
context does not supply the specific ground for the objection.’” In re Jazlyn P., 31 A.3d 1273,
1280 (R.I. 2011) (quoting State v. Feliciano, 901 A.2d 631, 646 (R.I. 2006)). “[I]n order to
satisfy the strictures of our raise-or-waive rule, an evidentiary objection must be sufficiently
focused so as to call the trial justice’s attention to the basis for said objection * * *.” Id. (quoting
State v. Diefenderfer, 970 A.2d 12, 30 (R.I. 2009)). Thus, we conclude that the hearsay
argument was waived by Kimberly. Moreover, Kimberly’s statements are that of a party-
opponent and are therefore not deemed hearsay under Rule 801(d)(2) of the Rhode Island Rules
- 29 -
of Evidence.7 See In re Brooklyn M., 933 A.2d 1113, 1123 (R.I. 2007) (concluding that, because
mother, a party, made the contested statements, the statements were admissible as nonhearsay
under Rule 801(d)(2)).
E
The Sequestration of Andrew
On appeal, Kimberly contends that, during her testimony as part of DCYF’s case,
Andrew was present in the courtroom and “her fear of him contributed to her confusing and often
tearful testimony.” Prior to the commencement of the trial on December 1, 2015, Kimberly’s
counsel had moved to sequester all witnesses, and the trial justice asked if anyone who was
expected to be a witness in the case was present in the courtroom; CPI Cottle was present and
was asked to be excused. However, during Kimberly’s “tearful” testimony on February 23,
2016, Kimberly’s counsel did not raise any objection to Andrew’s presence at that time.8 See In
re Shy C., 126 A.3d at 435 (determining that an issue must be raised and articulated at trial in
order for it to be properly preserved for appellate review).
On March 1, 2016, following Andrew’s testimony, Kimberly’s counsel noted Andrew’s
presence in the courtroom, objected to it, and argued that Kimberly may call him to testify again
as part of her defense and that, therefore, he should be sequestered. Despite this objection, the
trial justice allowed Andrew to remain in the courtroom because the proceedings involved his
children.
We have recognized that “[a] trial justice is vested with the inherent authority to
sequester witnesses during trial testimony for the purpose of preventing that witness from
7
Rule 801(d)(2) of the Rhode Island Rules of Evidence provides that “[a] statement is not
hearsay if: * * * [t]he statement is offered against a party and is * * * the party’s own statement,
in either the party’s individual or a representative capacity * * *.”
8
It is not clear from the record that Andrew was even present in court on February 23, 2016.
- 30 -
shaping his or her testimony to conform to that of other witnesses.” State v. Perez, 882 A.2d 574,
583 (R.I. 2005); R.I. R. Evid. 615.9 “The decision by a trial justice to exclude a witness from the
courtroom is discretionary * * *.” Perez, 882 A.2d at 583. Thus, due to the discretion afforded
to a trial justice in the trial setting, the trial justice’s decision regarding the sequestration of
Andrew “will not be disturbed absent a clear abuse of that discretion.” Id. Bearing in mind this
deferential standard of review, we conclude that, because the record shows that Andrew was
sequestered prior to his testimony, and was allowed to remain in the courtroom only after his
testimony had concluded, the trial justice did not abuse his discretion in allowing Andrew to
remain in the courtroom following his testimony.
IV
Conclusion
For the reasons set forth herein, we affirm the decree of the Family Court. The record
may be returned to that tribunal.
9
Rule 615 of the Rhode Island Rules of Evidence provides:
“At the request of a party the court may order witnesses excluded
so that they cannot hear the testimony of other witnesses, and it
may make the order of its own motion. This rule does not
authorize the exclusion of (1) a party who is a natural person, or
(2) an officer or agent of a party which is not a natural person
designated as its representative by its attorney, or (3) a person
whose presence is shown by a party to be essential to the
presentation of his or her cause.”
- 31 -
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
In re Madlyn B.
Title of Case
In re Luke B.
No. 2016-349-Appeal.
(15-271-2)
Case Number
No. 2016-354-Appeal.
(15-271-3)
Date Opinion Filed June 28, 2018
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Washington County Family Court
Judicial Officer From Lower Court Associate Justice Stephen J. Capineri
For Petitioner:
Karen A. Clark
Department of Children Youth and Families
Jennifer J. Kelly
Attorney(s) on Appeal
Court Appointed Special Advocate
For Respondent:
Barbara A. Barrow, Esq.
Kathleen M. Connell, Esq.
SU-CMS-02A (revised June 2016)