In the recently decided case, the respondent is the father of a minor child who had been placed in foster care shortly after her birth in 2014 because the parents were “red-flagged” by the state Department of Youth and Families for instances of abuse against other children in their care. Between 2014 and 2016, the Department instituted a plan for the respondent to demonstrate his fitness to safely and effectively parent his child in order to assume custody of the child. According to testimony from the termination proceedings, the respondent repeatedly refused to cooperate with the Department in formulating and following through on the reunification plan. The respondent would have some visitation with the child. However, he did not attend classes as requested by the Department, and he was repeatedly incarcerated for short periods of time and unable to attend to the reunification plan or visit the child.

After months of attempted reunification, the Department ultimately sought to terminate the respondent’s parental rights so that the child could be adopted into the foster home where she had lived most of her life. The Department argued that the respondent was unfit to parent the child as he was uncooperative with the Department plan and unable to keep himself out of jail long enough to have a relationship with his daughter. The Department also argued that the child was happy in her foster family and that they desired to adopt her into their home permanently if she was placed up for adoption.

The family court ruled, and the Rhode Island Supreme Court ultimately agreed, that the father was not fit to parent his daughter. Although the father argued that it was the mother and his relationship with her that was the real threat to the child (and that he had permanently terminated such relationship), the courts were not convinced that he would be able to parent the child. Additionally, the evidence that the child thrived in her foster home environment and would benefit greatly by being adopted by her foster parents weighed heavily on the court’s decision. By the time the supreme court was ready to rule on the appeal last year, the child had already been adopted and was doing well with her new family. As a result of this, as well as the lack of evidence of any mistakes made by the family court in its initial ruling, the decision to terminate the father’s parental rights was affirmed.

Competent Legal Counsel is Essential in Parental Termination and Adoption Proceedings

If you or a loved one is seeking to adopt a child, facing a parental termination proceeding, or working with the Rhode Island Department of Youth and Families to regain custody of your child, the stakes couldn’t be higher. Having the advice and counsel of a trusted Rhode Island family law attorney from Bilodeau Capalbo can make the difference in your case. Our skilled advocates understand how family court judges reach their decisions, and we can advise your choices and help argue your case to obtain the result you desire. We represent clients in all types of family law proceedings, including divorce, custody, adoption, as well as parental termination proceedings. Contact Bilodeau Capalbo at 401-300-4055 today to schedule a no-obligation consultation and discuss your case.

Reproductive Technology

Reproductive technology has come a long way in the last decade, and the law is having a hard time keeping up. Reproductive technology includes in vitro fertilization, donor sperm, intra uterine insemination and/or surrogacy. Many states have laws that address some aspects of reproductive technology. Rhode Island is one of the few states that has no laws that cover these issues.

Generally, if someone gives birth and they are married, then their spouse is the presumed father of the child and will have legal parentage rights to the child automatically. Similarly, if the mother of the child is not married, the father of the child can also be deemed the legal parent of the child with all the attendant rights by acknowledging paternity. In either case, the law makes it easy for fathers to be given parental rights to their children. Keep in mind that these apply even when the father is not the biological father of the child or reproductive technology has been used. However, with same-sex parenting couples, it is a little different.

Typically, when a same-sex couple has a child, only one of the parents can be a biological parent to the child. (Though this is not always the case, especially if one or both of the parents is transgender.) Some same-sex couples may also adopt, but the legal process for that typically situates the same-sex parents similarly as opposite sex couples. In other words, whether the couple is a same-sex couple or an opposite-sex couple, both parents need to go through the legal adoption process.

Uniform Parentage Act

There is a law proposed in Rhode Island that would treat same-sex couples more like opposite sex couples when it comes to parentage and assisted reproductive technology. The law is called the Uniform Parentage Act and it has several provisions that would help make it easier for both members of a same-sex couples to have parental rights to their children. The law would allow same-sex partners of biological mothers to also be recognized as a parent right away through a voluntary acknowledgement of parentage. This would be similar to the voluntary acknowledge of paternity described above.

In other words, the intended parents of the child would be recognized as the parents of the child as soon as it is born. For example, let’s say a woman uses a sperm donor to get pregnant and she is in a same-sex relationship and the couple intends to parent together. This law would allow the other parent to have the ability to be given parental rights to the child at the same time as the biological mother. Now, typically the non-biological parent would need to do some kind of second parent adoption which is a more complicated legal process.

Contact One of Our Experienced Rhode Island Family Law Attorneys Today!

Whether you are in a same sex couple, opposite sex couple, or plan to parent by yourself, adopting a child can be one of the most rewarding experiences of your life. That’s why it is so important to work with a knowledgeable Rhode Island family law attorney. The attorneys at Bilodeau Capalbo, LLC can help you with the legal process of building your family. Use the form on this website to contact us or call (401) 300-4055 to set up your free consultation today!

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Facts of the Case

Here, the stepfather of two boys filed a petition to adopt them. Their biological father was incarcerated during these proceedings. He objected to the adoption by the stepfather so the children’s mother and stepfather moved to have his rights terminated. The mother of the children testified that the biological father of the children had not visited the children in over two years and had never paid child support. Even when he was not incarcerated, she testified, his presence in the children’s lives was rare. The biological father argued that he did at times see the children and provide gifts when he was able to. The boys – ages 14 and 15 – also testified that they rarely saw their biological father. They further testified that their stepfather had been a constant and positive presence in their lives for the last eight years and they wanted him to become their adoptive father. The family court found that terminating the biological father’s parental rights and allowing the stepparent adoption would be in the best interests of the children.

Involuntary Termination of Rights

Biological parents are automatically granted important rights to visit and parent their children. However, if the parent “abandons” the children then their rights can be terminated. Abandonment is defined by Rhode Island statute as “a lack of communication or contact with the child for at least a six month period.” On appeal, the Rhode Island Supreme Court here held that the family court was correct and the children’s biological father had met the conditions for abandonment.

However, the overarching principle in family court proceedings is always “the best interests of the child.” That means that the court will take all of the circumstances into account to determine what outcome would serve the children best. Here, due in part to the testimony of the children and the general absence of their biological father, the court held that allowing the stepparent adoption to go forward would be in the best interests of the children. Therefore, the appeals court upheld the family court’s termination of the biological father’s parental rights and granted the adoption petition of the stepfather.

Hire an Experienced Rhode Island Family Law Attorney to Help You!

Adoption is a great way to build or grow a family, but it is also a legal process. That’s why it’s so important to work with a skilled Rhode Island family law attorney. The adoption attorneys at Bilodeau Capalbo, LLC, can help you to get the legal recognition that your family deserves. Call (401) 300-4055 or use the form on this web site to contact us today for a free consultation!

See Related Posts: U.S. House Committee Passes Amendment that Allows Discrimination Against LGBTQ People in Adoption and Foster Care In Rhode Island, Negligent Misrepresentation Applies in the Adoption Context

Proposed Amendment

This proposed amendment is part of a funding bill that the U.S. House Appropriations Committee passed. The amendment would withhold federal funding from states that “discriminate” against child welfare agencies that disallow LGBTQ foster care or adoption due to “sincerely held religious beliefs.” That means that if this bill passes, all states – including Rhode Island – will need to license religious child welfare agencies, even if they choose to deny LGBT individuals and couples the ability to work with their agencies.

If the amendment passes both houses, it could have a serious impact on Rhode Island’s federal funding. Specifically, the law would require the federal government to withhold 15% of funds from states that refuse to allow adoption and foster care agencies to discriminate against LGBTQ people who want to parent. As Rhode Island’s state law disallows this kind of discrimination, the state would have an important decision to make if this appropriations amendment passes.

This law would of course not require agencies to discriminate against prospective LGBTQ parents. Instead, it requires the state to allow faith-based agencies to discriminate if they choose to. Proponents of this law argue that the agencies should have the religious freedom to discriminate against communities they do not approve of. However, some experts are worried that this law will decrease the number of potential adoptive and foster parents, as LGBTQ people may be discouraged after being turned away from an adoption agency. After that experience, they may change their minds about adopting or fostering, leaving more children without safe homes. They are also worried about potential LGBTQ children ending up in unsupportive homes.

Current Adoption Law

As noted above, currently Rhode Island prohibits discrimination based on sexual orientation, including in the adoption and foster care process. However, potential foster and adoptive parents do need to meet certain requirements. The adoption process in Rhode Island requires home studies, although this can be waived for good cause. Potential adoptive and foster parents must show that they can emotionally, physically, and financially care for a child. If the child is 14 or older, the child must also give their consent to the adoption. The court will use a “best interest of the child” standard to decide whether the adoption should go through.

Contact an Experienced Rhode Island Family Law Attorney Today

All children deserve a safe and loving home. If you are looking to adopt, whether this law is in place are not, there are many steps to the adoption process. The knowledgeable Rhode Island family law attorneys at Bilodeau Capalbo, LLC, can help you to navigate the process no matter your sexual orientation, gender identity, or religious beliefs. Call (401) 300-4055 or use the form on this web site to contact us today for a free consultation!

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In 1981, the plaintiffs sought to adopt a child through Children’s Friend and Service (CFS). In 1982, the plaintiffs were informed by CFS that a child was available whom they might be interested in adopting. According to the plaintiffs, CFS negligently misrepresented and omitted material information regarding the child’s medical and family history. The child, who was 13 when the case came before the Rhode Island Supreme Court, was intellectually disabled and severely disturbed.

Plaintiffs asserted that they began to learn the true nature of their child’s biological family in 1991. The child’s biological mother had been diagnosed as possessing macrocephaly, pseudoepicanthal folds, a high-arched palate, tachycardia, small clinodactyly of the fifth fingers, tremors of the hands, and poor coordination. Plaintiffs alleged that all these conditions were known by CFS prior to the child’s adoption.

Prior to the adoption, the plaintiffs claimed they had been informed by CFS that the child’s biological mother suffered from learning disabilities caused solely by head trauma as a young child. However, CFS allegedly had a medical history for the child indicating that his biological mother had been diagnosed as mildly to moderately retarded with only a “possibility” that such retardation resulted from head trauma. The same document described the child’s biological maternal grandmother as “intellectually limited.” CFS never disclosed this information prior to the adoption.

Plaintiffs filed suit against CFS in December 1991. As a consequence of the agency’s alleged negligence, plaintiffs claimed they that they suffered great mental anguish and emotional distress, incurred enormous expenses for medical and psychiatric treatment of the child, and lost opportunities for proper medical and psychiatric treatment for the child.

The agency moved to dismiss the amended complaint on the ground that it failed to state a claim upon which relief could be granted. In February 1994, the trial justice denied the motion. The agency filed a petition for writ of certiorari, which the Rhode Island Supreme Court granted to determine the sole issue of whether plaintiffs had stated a cause of action under Rhode Island law.

Rhode Island is one of only a handful of states that lacks a statute requiring adoption agencies to disclose relevant information to potential adopting parents. Since Rhode Island adoption agencies have no legislative duty to disclose relevant information, CFS argued that it owed no duty to the plaintiffs. The Rhode Island Supreme Court disagreed.

The court concluded that when CFS began volunteering information concerning the child and his biological mother’s medical and genetic background, the agency assumed a duty to refrain from making negligent misrepresentations. The court also found that the plaintiffs had sufficiently pled that CFS breached such a duty by allegedly misinforming the plaintiffs of the true state of the child and his family’s medical and genetic background. The court concluded that when the plaintiffs alleged that they would not have adopted the child if they had known of his medical and genetic background and that their injuries resulted from justifiable reliance on CFS’s misrepresentations, a cause of action for negligent misrepresentation was sufficiently set forth.

The agency argued that extending such common-law liability to the adoption context would violate public policy. The Rhode Island Supreme Court disagreed, citing cases in other jurisdictions holding that public policy did not preclude plaintiffs from maintaining a claim for negligent misrepresentation in the adoption context.

The court reasoned that its decision would not create any substantial additional burdens on adoption agencies in Rhode Island. In order to avoid liability, the court held that an adoption agency need simply refrain from making representations, or if it does begin making representations it must do so in a non-negligent manner. The court cautioned that its opinion in no way rendered adoption agencies guarantors or insurers of a child’s future health. To guard against such a result, it noted that traditional principles of negligence required that the child’s condition be reasonably predictable at the time of the adoption.

The court further noted that the need for accurate disclosure becomes more acute when special-needs children are involved. Parents need to be financially and emotionally equipped to provide an atmosphere conducive to that special child’s growth and development. Although biological parents can assess the risks of having a child by investigating their own genetic backgrounds, adopting parents remain at the mercy of adoption agencies for information. The court believed that extending the tort of negligent representation to the adoption context would help alleviate some of the artificial uncertainty imposed on a situation inherent with uncertainty.

For these reasons, the defendant’s petition for certiorari was denied. The order of the trial justice affirmed, and the case was remanded to the superior court for further proceedings.

Bilodeau Capalbo, LLC’s caring family law team is ready to help Rhode Island residents navigate their adoption issues. Call 401-300-4055 to schedule your complimentary consultation today.

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On November 19, 2013, the petitioners filed two adoption petitions in Family Court so that one petitioner might become the legal father of the other petitioner’s two children. The respondent, and legal father of the children at the time, was incarcerated in Massachusetts and refused to consent to the adoptions. As a result, petitioners moved to terminate respondent’s parental rights with respect to the two children. A trial was held before a Family Court justice on August 14, September 3, September 10, and December 15 of 2014. The trial justice ultimately terminated respondent’s parental rights. This past winter, the Rhode Island Supreme Court upheld the termination, holding that respondent abandoned his children.

The trial justice indicated that respondent’s lack of contact with and financial support for the children was “painfully evident,” noting that there was such a lack even when respondent was not incarcerated. Specifically, the justice found that respondent’s last contact with both children was on November 9, 2011, that he had never provided child support, and only sent occasional gifts.

The trial justice pointed to respondent’s long history of incarceration and the petitioners’ and children’s wishes as being significant factors in her decision. 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 the Adoption Petition. The trial justice further found that it would be in the best interests of the children 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.

On appeal, respondent contended that the trial justice erred in finding: (1) that he was unfit where unfitness had not been alleged as a ground in the petition; (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 interests of the children.

The Rhode Island Supreme Court held that respondent’s first argument was unavailing. 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, the court saw nothing that would cause it to make an exception to their well-settled raise or waive jurisprudence. Accordingly, it was their view that respondent’s first contention on appeal had been waived.

The court further held that respondent’s remaining arguments were similarly unconvincing and need not be addressed at any length because respondent’s parental rights were properly terminated on the ground of abandonment. The state high court has on numerous occasions upheld the termination of parental rights of parents who were incarcerated—as respondent had been for a substantial portion of the children’s lives. An incarcerated parent who fails to actively engage 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.

Having carefully reviewed the record and the findings of fact of the trial justice, the Rhode Island Supreme Court concluded that the trial court did not err in finding, by clear and convincing evidence, that the respondent had abandoned the children for the six-month period. Accordingly, the court affirmed the decree of the Family Court terminating the respondent’s parental rights with respect to the children.

At Bilodeau Capalbo, LLC, our knowledgeable family law attorneys are ready to get started helping you defend your parental rights. Call 401-300-4055 or schedule your consultation today.

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