In re Emilee K. In re Jennifer K

Supreme Court

No. 2014-139-Appeal.
(09-421-2)
No. 2014-140-Appeal.
(09-421-3)

In re Emilee K. :

In re Jennifer K. :

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. 2014-139-Appeal.
(09-421-2)
No. 2014-140-Appeal.
(09-421-3)

In re Emilee K. :

In re Jennifer K. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Justice Goldberg, for the Court. These consolidated cases came before the Supreme

Court on November 29, 2016,1 on appeal by the respondent, Joseph K.2 (respondent), from a

Family Court decree finding that the respondent abused and neglected his daughters, Emilee,

who was born on June 25, 2005, and Jennifer, born on March 7, 2007.3 The Family Court justice

committed the children to the care, custody, and control of the Department of Children, Youth,

and Families (DCYF). For the reasons set forth herein, we affirm the decree of the Family

Court.

Facts and Travel

The facts of this case are as troubling as any this Court has encountered—a child who has

been robbed of her innocence at age four-and-a-half, and apparently subjected to the undue

1
These appeals were consolidated by an order of this Court entered on October 27, 2014.
2
For the sake of privacy, the family members will be referred to by only their first names.
3
Emilee’s name is spelled differently throughout the Family Court record. However, we will
refer to her in accordance with the caption on the petition.

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influence of adults. In September of 2011, the Rhode Island Child Abuse Hotline received

reports that Jennifer had been sexually abused by her father. The allegations were made by

Dawn Grinnell (Grinnell), the director of preschool and prekindergarten programs at All Saints

Academy, and Dr. Thomas Finnegan (Dr. Finnegan), the principal of All Saints Academy, where

the girls attended school.

Jennifer’s statements of abuse began on September 12, 2011. Grinnell was supervising

Jennifer’s class when the child seized two undressed Barbie dolls and simulated sexual acts

between them. Jennifer explained that, while staying at her mother’s house, she had watched a

movie involving two naked women. Although DCYF was not contacted at this time, Dr.

Finnegan met with respondent to inform him of Jennifer’s disclosures and to recommend that

Jennifer and Emilee attend counseling sessions, a recommendation that had previously been

made—in April of 2011—in the midst of respondent’s divorce from the children’s mother,

Rachel K. (Rachel). In the weeks following this revelation, Jennifer’s behavior became more

erratic. During class one day, Jennifer emulated masturbation while repeatedly screaming

“[g]ive it to me, baby.” On more than one occasion, Jennifer pulled her underpants to the side

and exposed herself to fellow classmates. Her behavioral problems also included increased

incontinence issues and violent outbursts. On September 19, 2011, Jennifer made a second

allegation of abuse, telling Grinnell that respondent walks around the house naked and that she

“hold[s] his unit” when he goes to the bathroom in the middle of the night. Grinnell conveyed

this disclosure to Dr. Finnegan, who contacted DCYF.

The DCYF began its investigation of respondent on September 19, 2011, based on the

reported abuse. Megan Dunn (Dunn), a child protective investigator for DCYF, was assigned to

examine the reported abuse. Dunn went to respondent’s house around 6 p.m. to speak with

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respondent and the girls. Emilee answered the door in her school uniform, but Jennifer came to

the door in her underwear. The respondent came down the stairs, not wearing a shirt and

buttoning his shorts. Dunn informed respondent that she was investigating allegations of child

molestation and needed to speak with Jennifer and Emilee.

Dunn spoke with Jennifer for approximately thirty minutes, during which Jennifer asked

if Dunn was there to “trap her father.” Jennifer disclosed that she can see respondent’s “unit”

when he walks around, when she is in the bathroom with him, and when she gets into bed with

him after having a nightmare. Jennifer identified her private parts as her “vajayjay” and “booty,”

but she denied being touched by respondent in either area. She also denied having to touch

respondent in any way. Dunn asked Jennifer about the movie that she viewed while at her

mother’s house. Jennifer seized two female Barbie dolls and placed them on top of each other,

stating that “they bend over and smell each other’s vajayjay.” After this statement, Jennifer

became distracted and the interview ended.

Dunn then spoke with Emilee, who disclosed that her father walks around the house

naked and sleeps naked, and that she can see respondent’s “unit” and “booty” when he is naked.

She denied ever being abused or touched inappropriately by her father or anyone else. Lastly,

Dunn interviewed respondent, who denied having inappropriate contact with his children. Dunn

spoke to respondent about Jennifer and Emilee’s most recent disclosure—that he walks around

the house naked. The respondent admitted that he sleeps naked but denied being naked in the

house when the girls are present. Dunn informed respondent that nudity around Emilee and

Jennifer is inappropriate and that he should consider seeking counseling services for the girls. In

addition to speaking with respondent and the girls, Dunn contacted the girls’ mother on

September 27, 2011. Rachel denied showing Jennifer a pornographic movie while at her home.

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She admitted to showering with Emilee and Jennifer, but she was adamant that neither girl had

seen or experienced anything inappropriate while staying with her.

The most concerning incident occurred on September 30, 2011, when Jennifer brought a

stuffed animal dog to school. Jennifer put the dog on her classmates’ faces and pretended to

make the dog “pee.” Grinnell removed Jennifer from class and asked her why she was making

the dog “pee” on her classmates’ faces. Jennifer responded, “Well, my Daddy pees on my face.”

To demonstrate, Jennifer lay down, pulled her underpants aside, and said, “This is what happens

to me.” She pointed to her vagina and stated, “My Daddy puts his unit right here.” She then told

Grinnell that her father “takes it out and pees [white] on my face.” Immediately after these

disclosures, Jennifer curled up into a fetal position and began to cry. Again, respondent was

notified and Grinnell contacted DCYF.

Because Dunn was unavailable, a colleague, Robert McMahon (McMahon), assisted in

the investigation and responded to the report of abuse on September 30, 2011. He recommended

to respondent that Emilee and Jennifer seek medical attention. The children were taken to

Newport Hospital for a medical examination; the results of which revealed no injuries or

physical signs of sexual abuse. The examination report issued by Newport Hospital authorized

detention and removal of the children for seventy-two hours because of Jennifer’s disclosure of

sexual abuse by respondent. That same evening, the girls were placed in foster care with

respondent’s cousin, Amy Mullen (Mullen). This placement proved to be problematic; several

incidents occurred that warrant our attention. Namely, DCYF informed Mullen that the children

could not have any contact with their father. Mullen failed to comply with this directive and

gave the girls cards and Christmas presents from respondent. Additionally, Mullen engaged in

several inappropriate conversations with Jennifer about the circumstances leading up to the

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placement and went so far as to record the child’s comments. During these conversations,

Mullen attempted to coax Jennifer into identifying the child’s stepbrother, Ryan, as the source of

the abuse, asking, “[Did] he hit you with his penis[?] * * * In your vagina[?] * * * [I]n your

mouth?” Although Mullen testified that she considered the child’s statements to be important,

she failed to notify DCYF about them.4 Instead, Mullen gave the tapes to respondent because

“he had a right to know.” The girls were removed from Mullen’s care and placed elsewhere in

December of 2011.

In October 2011, Dunn filed petitions in the Family Court alleging abuse and neglect of

the children, and DCYF contacted Ann Boutin-Gammon (Boutin-Gammon), an evaluator and

counselor at Counseling Services of Rhode Island. Boutin-Gammon was asked to conduct

sexual abuse assessments of Jennifer and Emilee. Boutin-Gammon met with Jennifer for the

first time on October 14, 2011, and approximately three times thereafter. During these meetings,

Jennifer made numerous statements, some of which indicated abuse and others that recanted her

statements of abuse. Although at trial Boutin-Gammon testified that her notes from the sessions,

memorializing Jennifer’s disclosures and recantations, are not specific as to dates and times,

Boutin-Gammon recounted specific statements Jennifer made, including: “Daddy peed white on

[me]”; “he laid on top of [me]”; and that “his unit was big.” Jennifer also disclosed to Boutin-

Gammon that Emilee had seen respondent do these things and that Emilee told him to stop

because Jennifer was too small and that “it hurt her private area.” According to Jennifer, Emilee

told respondent to “get off,” and he refused, stating, “when [I’m] done [I’ll] get off.”

Additionally, Boutin-Gammon recalled Jennifer stating that respondent would “put his penis up

4
The respondent also recorded a conversation with Jennifer that was introduced as an exhibit at
trial.
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and down as well as side to side on her head[.]” Jennifer added that this hurt because he was

lying on top of her.

During one session in January 2012, Boutin-Gammon asked Jennifer about the movie

that she said she had viewed at her mother’s house. Jennifer refused to talk about the movie,

instead telling Boutin-Gammon “how Daddy had peed white on [me]” and how “[he] lay[s] on

top of [me] and spread[s] [my] legs.” In February 2012, Jennifer disclosed that her sister,

Emilee, called her a “liar” and said that she made up the stories of abuse. And in March 2012,

Jennifer told Boutin-Gammon that she felt “[s]cared, worry, disgust, sorry, sad, confused[,] and

guilty.” These feelings were related to respondent.

During a session in April 2012, Jennifer initially recanted her statements of abuse and

said that she reported the abuse in fear of being made fun of at school. When Boutin-Gammon

asked whether Jennifer was referring to any one specific student, Jennifer declared, “Daddy did

it.” Boutin-Gammon asked Jennifer to draw a picture of what she was referring to, and Jennifer

drew a picture of respondent and his “unit” and herself with breasts. Jennifer told Boutin-

Gammon: “[respondent] put his unit on [my] breast but he didn’t do it,” and that, “[I] squeezed

his unit.” At the next session, Jennifer told Boutin-Gammon: “Daddy will not do it again.”

In May 2012, Jennifer disclosed that respondent “put his unit in my throat * * * [i]t hurts

so bad [I] can’t even breathe when he put his unit in my throat.” Boutin-Gammon asked Jennifer

what she would say to respondent if she could speak to him. Jennifer said, “Don’t do that again”

and, “If you trust me, are you going to do it again[,] Dad?”

Despite Jennifer’s statements indicating abuse, the child also told Boutin-Gammon that

she had lied on occasion. The recantations occurred at Jennifer’s first meeting with Boutin-

Gammon, on October 14, 2011, when the child spontaneously declared “Daddy didn’t do this,”

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and again in April 2012, when she first told Boutin-Gammon that she had made up the reports of

abuse but then stated that “Daddy did it.” Emilee also indicated that Jennifer had not been telling

the truth and that their father had not abused either of them. Still, Boutin-Gammon determined

that it was “[one-hundred] percent unclear” where Jennifer had learned of such mature behavior

and the graphic descriptions of sexual conduct. According to respondent, Jennifer had learned of

the adult information from the pornographic movie she watched at Rachel’s house. The

respondent explained that, at the time, his ex-wife’s visitation rights had recently been reinstated,

and he insisted that she showed Jennifer the movie in an attempt to gain full custody of the girls.

Mullen reported a similar opinion. Mullen informed Dunn that Jennifer reported that the sexual

behavior “was just on TV. It was not my Daddy,” and that Rachel showed her the video “so she

would know what it would look like so she wouldn’t have to live with Daddy anymore.” Rachel

unequivocally denied asking Jennifer to fabricate a story of sexual abuse. She also did not

believe that respondent was capable of sexually abusing his daughters.

After a trial that spanned approximately twenty months, the Family Court justice issued a

decision on January 24, 2014. The Family Court justice found that, although respondent

“attempted to paint a picture that the [m]other, [Rachel], has had a vendetta against him and

caused these allegations to be made against him,” the record was completely devoid of “any such

evidence that [the] mother in any way contrived these allegations to get back at the [r]espondent

or attempt to gain custody of these girls.” The Family Court justice acknowledged that the

testimony and procedures of Boutin-Gammon were flawed, but determined that her evaluation

did not negate the clear disclosures that Jennifer made to Grinnell and Dunn—revelations that

“were done in such a way, in circumstances that made them reliable and trustworthy.” The

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Family Court justice found that the material disclosed “was information that no four year old girl

would have but for it having been something that she actually experienced.”

Furthermore, the Family Court justice rejected respondent’s argument that the source of

the information was a single pornographic movie that Jennifer allegedly viewed while visiting

her mother, declaring: “This court does not think for one moment that the pornographic movie

depicting lesbian acts as described by [Jennifer] could be misconstrued when [Jennifer]

described her father’s unit, holding it, and having him pee white on her. They were two totally

different and separate events.” In accordance with G.L. 1956 chapter 1 of title 14, the Family

Court justice concluded that respondent,

“did abuse and neglect Jennifer and Emilee * * * in that he has
failed to provide said children with a minimum degree of care,
supervision or guardianship; that said children are without proper
parental care and supervision; and that the father has committed or
allowed to be committed against the children, an act of sexual
abuse.”

Accordingly, on February 4, 2014, the Family Court justice entered a decree committing the

children to the care, custody, and control of DCYF; a decree from which respondent has timely

appealed to this Court.

Standard of Review

“When we review an appeal from a decree of the Family Court after a commitment

hearing, ‘we examine the record to determine whether legally competent evidence exists in it to

support findings made by the trial justice.’” In re Adner G., 925 A.2d 951, 957 (R.I. 2007)

(quoting In re 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). Under this deferential standard of review, this Court “must search the

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record in this case to determine whether legally competent evidence exists to support the trial

justice’s finding that there was clear and convincing evidence” that respondent abused and

neglected Jennifer and Emilee. Id. (citing In re Veronica T., 700 A.2d 1366, 1368 (R.I. 1997)).

Analysis

Before this Court, respondent assigns numerous errors to the decision of the Family Court

justice. Among the enumerated errors are claims that the Family Court justice erred: (1) in

allowing Boutin-Gammon, a nonexpert evaluator, to testify in DCYF’s case in chief; (2) in

construing G.L. 1956 § 14-1-69 as permitting the out-of-court statements of Jennifer to be

introduced, but not the out-of-court statements of Emilee; (3) in denying respondent’s midtrial

motion to undertake a videotaped deposition of an out-of-state expert and then present that in his

defense; (4) by overlooking or misconceiving material evidence in making her decision,

including Emilee’s statements that Jennifer had lied; and (5) in holding that DCYF had proven

by clear and convincing evidence that both Jennifer and Emilee had been abused and neglected.

After carefully reviewing the extensive record from the Family Court and the arguments of the

parties, we conclude that legally competent evidence exists to support the findings of the Family

Court justice.

The Testimony of Boutin-Gammon

We begin by briefly examining respondent’s contention that the Family Court justice

erred in relying on the testimony of Boutin-Gammon, who was not presented as an expert

witness by DCYF. After reviewing the voluminous record in this case, it is apparent that the

testimony of Boutin-Gammon was, at times, problematic. However, respondent’s suggestion

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that her testimony should have been excluded in its entirety pursuant to Rules 7015 and 803(4)6

of the Rhode Island Rules of Evidence is not persuasive.

Rule 701 limits opinion testimony by witnesses who are not qualified as experts to “those

opinions which are * * * rationally based on the perception of the witness” and are “helpful to a

clear understanding of the witness’ testimony or the determination of a fact in issue.” “This rule

is buttressed by this [C]ourt’s caveat that the lay witness must have ‘had an opportunity to

observe the person and to give the concrete details on which the inference or description is

founded.’” State v. Gomes, 604 A.2d 1249, 1259 (R.I. 1992) (quoting State v. Fogarty, 433 A.2d

972, 976 (R.I. 1981)). Consistently, this Court has perceived no error when a trial court allows

lay-witness opinion testimony that is rationally based on the witness’s own perception and is

helpful to a determination of a fact in issue. Id.; see also State v. Tep, 56 A.3d 942, 947 (R.I.

2012) (“It is unnecessary to require an expert to testify about what a lay individual could

rationally conclude.”). “The decision to permit opinion testimony by a lay witness is within the

sound discretion of the trial court. Review of the trial court’s decision is limited to determining

whether the trial court abused its discretion.” State v. Mallett, 600 A.2d 273, 276 (R.I. 1991).
5
Rule 701 of the Rhode Island Rules of Evidence provides:
“If the witness is not testifying as an expert, the witness’ testimony
in the form of opinions is limited to those opinions which are (A)
rationally based on the perception of the witness and (B) helpful to
a clear understanding of the witness’ testimony or the
determination of a fact in issue.”
6
Rule 803(4) of the Rhode Island Rules of Evidence provides:
“The following are not excluded by the hearsay rule, even though
the declarant is available as a witness: * * * [s]tatements made for
purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis or treatment,
but not including statements made to a physician consulted solely
for the purposes of preparing for litigation or obtaining testimony
for trial.”
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At trial, Boutin-Gammon testified as a nonexpert witness about her opinion and the

recommendations that she reached after extensively interviewing Jennifer over the course of

several months. Boutin-Gammon’s testimony described what she observed during her

encounters with the child and her rational opinions drawn from those observations. We cannot

conclude that the Family Court justice abused her discretion by admitting Boutin-Gammon’s

testimony—especially in view of the fact that the Family Court justice accorded little weight to

this evidence, opting to place greater weight on the testimony of Grinnell and Dunn. Because

this was a nonjury proceeding, there was little risk that Boutin-Gammon’s opinion might invade

the jury’s fact-finding role; accordingly, the Family Court justice did not abuse her discretion in

permitting this witness to testify. See In re Corryn B., 914 A.2d 978, 984 (R.I. 2007) (observing

that “trial justices presiding over nonjury trials * * * possess the wisdom, training and experience

necessary to sort through [evidence] and consider only the aspects that are ‘reliable and probative

of the issues relating to the [parent’s] conduct.’” (quoting In re Stephanie, 660 A.2d 260, 261

(R.I. 1995))).

In regard to respondent’s argument that Boutin-Gammon’s testimony recounting

Jennifer’s disclosures should have been excluded as hearsay under Rule 803(4), again we

perceive no error. In In re Jessica C., 690 A.2d 1357 (R.I. 1997), we clearly articulated that

statements made for the purposes of medical diagnoses or treatment do not have to be made to a

physician but may be made “to any person, such as a hospital attendant, ambulance driver, or

even a family member, provided they are made for the purpose of diagnosis or treatment.” Id. at

1363 (quoting Rule 803 Advisory Committee’s note at 1165) (holding that a child’s hearsay

statements disclosing abuse, made during counseling sessions, were admissible pursuant to Rule

803(4)). In that case, we concluded that a child’s statements to her therapist were helpful in

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determining whether the child had been sexually abused, and, therefore, the therapist’s testimony

recounting the child’s statements was properly admitted under Rule 803(4). In re Jessica C., 690

A.2d at 1363; see also In re Jean Marie W., 559 A.2d 625, 630 (R.I. 1989) (holding that a child’s

statements to a social worker detailing alleged incidents of sexual assault are admissible as

pertinent to diagnosis and treatment). We have never been hypercritical in our interpretation of

Rule 803(4), and we decline respondent’s invitation to narrow our prior holdings on this

occasion.

Evidentiary Rulings

The respondent avers that the Family Court justice abused her discretion in construing

§ 14-1-69 as precluding the out-of-court statements that Emilee made to her former preschool

teacher, Elizabeth O’Loughlin (O’Loughlin).7 “It is well established that ‘the admissibility of

evidence is within the sound discretion of the trial justice, and this Court will not interfere with

the trial justice[’]s decision unless a clear abuse of that discretion is apparent.’” Notarantonio v.

Notarantonio, 941 A.2d 138, 149 (R.I. 2008) (quoting DiPetrillo v. Dow Chemical Co., 729 A.2d

677, 690 (R.I. 1999)); see also State v. Ruffner, 911 A.2d 680, 689 (R.I. 2006) (“The admission

of a statement under an exception to the hearsay rule is within the sound discretion of the trial

7
General Laws 1956 § 14-1-69, provides as follows:

“In any custody and/or termination trial and/or a hearing on a
motion or probable cause hearing where a petition has been filed
by [DCYF] in accordance with §§ 14-1-11, 40-11-7 and/or 15-7-7
in the [F]amily [C]ourt, the court may, in its discretion, permit as
evidence any statement by a child under the age of thirteen (13)
years old about a prescribed act of abuse, neglect, or misconduct
by a parent or guardian, if that statement was made spontaneously
within a reasonable time after the act is alleged to have occurred,
and if the statement was made to someone the child would
normally turn to for sympathy, protection, or advice.”

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justice and shall not be overturned unless clearly erroneous.” (quoting State v. Lynch, 854 A.2d

1022, 1038 (R.I. 2004))).

It appears that, during a chance meeting, Emilee made a spontaneous disclosure to

O’Loughlin, indicating that Rachel had coached her daughter into making accusations by

showing her a pornographic movie. The Family Court justice refused to admit the testimony,

concluding that it constituted hearsay within hearsay.8 The respondent, however, argues that

Jennifer’s statements to Emilee and Emilee’s statements to O’Loughlin both qualified as

exceptions to the hearsay rule permitted under § 14-1-69.

Section 14-1-69 is “a statutory exception to the hearsay rule that applies to disputes

involving custody and/or termination of parental rights.” In re Deborah M., 544 A.2d 572, 574

(R.I. 1988). Although this Court employs a liberal construction of § 14-1-69, we have delineated

three criteria necessary to ensure the reliability of such statements: “that the child communicate

the statements concerning physical [and sexual] abuse (1) spontaneously, (2) within a reasonable

time after the alleged act(s) of abuse occurred, and (3) to a trusted adult.” In re Alexis L., 972

A.2d 159, 166 (R.I. 2009) (citing In re Rocco W., 706 A.2d 1302, 1303 (R.I. 1998); In re

Veronica T., 700 A.2d at 1367).

In the event that Emilee’s statements to O’Loughlin had been limited to communications

concerning physical and sexual abuse, the statements may have fulfilled the reliability prongs of

§ 14-1-69. However, Emilee’s statements related to the alleged motive underlying Jennifer’s

disclosures and were properly stricken by the Family Court justice as inadmissible hearsay, not

conforming with § 14-1-69. See Mallett, 600 A.2d at 278 (“When a hearsay statement includes

8
Rule 805 of the Rhode Island Rules of Evidence provides: “Hearsay included within hearsay is
not excluded under the hearsay rule if each part of the combined statements conforms with an
exception to the hearsay rule provided in these rules.”

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within it additional hearsay, each layer of hearsay must conform with an exception-to-the-

hearsay rule in order to be admissible at trial.”).

Furthermore, Jennifer’s alleged statements, as reported by Emilee to O’Loughlin, fail to

comply with the third requirement that the disclosures of abuse be made to a trusted adult. See

In re Veronica T., 700 A.2d at 1367 (stating that, to be admissible, a child’s out-of-court

statements concerning physical and sexual abuse “must have been communicated spontaneously

to a trusted adult”). Because the statements were not statements of abuse made to a trusted adult,

they lack the level of reliability necessary to meet the hearsay exception of § 14-1-69. See In re

Veronica T., 700 A.3d at 1367. Accordingly, Emilee’s statements to O’Loughlin were properly

rejected by the Family Court justice.

Nevertheless, Emilee’s statements to O’Loughlin—that Jennifer’s accusations were

fabricated—were admitted through Dunn’s testimony, thus rendering O’Loughlin’s testimony

“cumulative and of minimal significance.” Mallett, 600 A.2d at 277 (“When the evidence

admitted is ‘cumulative and of minimal significance,’ then the error is harmless.” (quoting

Clarke v. Ellerthorpe, 552 A.2d 1186, 1188 (R.I. 1989))); see also Notarantonio, 941 A.2d at 149

(declining to disturb the trial justice’s ruling in excluding testimony where “at best the excluded

testimony was cumulative”). Thus, any purported error by the Family Court justice undoubtedly

was harmless. See State v. Marr, 731 A.2d 690, 693 (R.I. 1999) (concluding that mother’s

hearsay testimony about what her son told her about sexual molestation was harmless error when

son also testified to those facts).

We briefly pass on a separate evidentiary ruling with which respondent takes issue—that

the trial justice abused her discretion by denying respondent’s midtrial motion to undertake a

videotaped deposition of an out-of-state expert in order to present that testimony at trial. “[A]

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trial court has broad discretion in deciding discovery matters, and a decision to allow or deny

discovery is reviewable only for abuse of discretion[.]” Cardi v. Medical Homes of Rhode

Island, 741 A.2d 278, 278-89 (R.I. 1999) (mem.) (citing Bashforth v. Zampini, 576 A.2d 1197

(R.I. 1990)). Without commenting on the merits of respondent’s request to engage in further

discovery six months after the commencement of trial and two months after DCYF had rested its

case in chief, we simply conclude that the Family Court justice in no way abused her discretion

by denying respondent’s motion to pause the trial in order for respondent to depose an out-of-

state witness who was not disclosed beforehand to opposing counsel. See id.; see also Dawkins

v. Siwicki, 22 A.3d 1142, 1154 (R.I. 2011) (“When the trial justice’s discretion has been soundly

and judicially exercised, in light of the facts and circumstances confronting the court and the

parties, the decision will not be disturbed on appeal.” (citing Morra v. Harrop, 791 A.2d 472,

476-77 (R.I. 2002))). Moreover, the trial justice did not wholly reject the proffered testimony of

respondent’s witness; she only denied respondent’s request to use a video deposition in lieu of

live testimony, citing the benefits of in-court testimony. Accordingly, respondent’s suggestion

that this Court remand the case for additional testimony is unavailing where respondent’s failure

to timely depose his intended witness, make an offer of proof of the anticipated testimony, or

otherwise have the witness testify in person is of no fault other than his own.

The Findings of the Family Court

The respondent argues that DCYF failed to meet its burden of proof with respect to

establishing that Jennifer and Emilee were abused and neglected. Specifically, respondent avers

that there is no evidence to support the finding that Emilee was abused and that the evidence in

regard to abuse and neglect of Jennifer was “contradictory, compromised, and anything but clear

and convincing.” In addition, respondent contends that the Family Court justice overlooked or

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misconceived material evidence in making her decision. The respondent’s arguments are

unavailing.

The burden carried by DCYF in cases involving child abuse is that of clear and

convincing evidence. See In re Veronica T., 700 A.2d at 1368 (“A determination that a child has

been abused ‘shall be made upon clear and convincing evidence.’” (quoting Rule 17(b) of the

Family Court Rules of Juvenile Proceedings)). “The clear-and-convincing standard requires that

the factfinder form a ‘clear conviction without hesitancy of the truth of the precise facts.’” Id.

(quoting Parker v. Parker, 103 R.I. 435, 442, 238 A.2d 57, 61 (1968)). Although the clear and

convincing standard is significant—requiring the truth of the precise facts to be “highly

probable”—it is not a burden of insurmountable proportion. Id. (quoting Parker, 103 R.I. at 442,

238 A.2d at 61). It is, however, a higher standard of proof than that of a fair preponderance of

the evidence but less than that required for proof beyond a reasonable doubt. See State v. Fuller-

Balletta, 996 A.2d 133, 141-42 (R.I. 2010) (“[C]lear and convincing evidence means more than a

mere exercise in semantics. It is a degree of proof different from a satisfaction by a

preponderance of the evidence which is the recognized burden in civil actions and from proof

beyond a reasonable doubt which is the required burden in criminal suits.’” (quoting Parker, 103

R.I. at 442, 238 A.2d at 60-61)).

The testimony of a single witness, if believed, is sufficient to sustain a jury verdict in a

criminal case and, thus, is certainly capable of supporting a finding of fact by clear and

convincing evidence. See State v. Rieger, 763 A.2d 997, 1001 (R.I. 2001) (“[A] victim’s

testimony alone is sufficient to sustain a conviction * * *.”). “The factual findings of the trial

justice concerning whether this clear and convincing evidence burden has been satisfied are

entitled to great weight.” In re Veronica T., 700 A.2d at 1368. “[S]uch findings generally will

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not be disturbed on appeal unless they are clearly wrong or unless the trial justice misconceived

or overlooked material evidence.” Id. (citing In re Zachary A., 690 A.2d 853, 854 (R.I. 1997)).

With respect to DCYF’s burden of establishing abuse and neglect as to Emilee, this Court

has repeatedly held that “evidence of harm to one child of a family is relevant to the issues raised

by a dependency-and-neglect petition regarding another child of the family * * *.” In re Luz J.,

447 A.2d 1148, 1152 (R.I. 1982) (concluding that, although there was no evidence of harm to

Luz, DCYF presented evidence of harm to Luz’s sister and that evidence was sufficient to

establish a likelihood of harm to Luz); see also In re Lester, 417 A.2d 877, 881 (R.I. 1980). We

have never recognized a requirement that a court wait until a child is actually harmed before the

child is afforded protection. See In re Lester, 417 A.2d at 881. Rather, “[t]he state’s role in

protecting children may properly be preventive of harm as well as remedial.” Id. Certainly,

these principles are in accordance with the shared concerns of the court and the state as parens

patriae—to prevent “lasting injury, death, or other irreparable harm to the tiny and helpless

victims of parental misconduct.” Id. (“[A]s we accord due process and all reasonable

presumptions in favor of parental authority, we must not erect the barrier so high that it cannot be

pierced in order to safeguard these innocent victims.”).

Applying the foregoing principles to the decision of the Family Court justice, we are of

the opinion that, in finding both Jennifer and Emilee to be abused and neglected, her decision

was based on remediation and prevention. See In re Lester, 417 A.2d at 881. The Family Court

justice found that there was evidence of abuse to Jennifer and that evidence was sufficient to

warrant a finding as to Emilee. In the face of the deeply disturbing testimony with which the

Family Court justice was confronted, and which she found to be credible, her finding of abuse as

to Emilee was appropriate. See In re Jessica C., 690 A.2d at 1362 (affirming a court’s finding of

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abuse and neglect where “the totality of the evidence compelled the finding that [the children]

were ‘at risk of sexual abuse if allowed to be in the presence of and to reside with the parents’”).

Finally, with respect to Jennifer, we reject respondent’s argument that the Family Court

justice overlooked or misconceived material evidence in concluding that the evidence clearly

established that Jennifer was abused by respondent. The respondent’s contention that the

evidence was “contradictory, compromised, and anything but clear and convincing,” is without

merit.

We are satisfied that each piece of evidence that, according to respondent, was

overlooked by the Family Court justice was in fact considered in her decision. The Family Court

justice weighed both Jennifer’s recantations and Emilee’s statements that Jennifer had fabricated

the stories of abuse; and concluded that “it is * * * not unusual for a victim to recant.” It was

within her province to so hold. See In re Veronica T., 700 A.2d at 1368 (affirming a Family

Court justice’s findings of abuse where the Family Court justice considered the “possible motive

for the child to change her story to keep the father with her family,” yet still found the child’s

initial statements of abuse “to be more credible than the child’s belated efforts to blame her uncle

for the abuse”).

The Family Court justice deliberated over Rachel’s motive and the possibility that the

source of Jennifer’s knowledge was a pornographic movie and rejected both prospects, stating

“[t]his court does not think for one moment that the pornographic movie depicting lesbian acts as

described by [Jennifer] could be misconstrued when [Jennifer] described her father’s unit,

holding it, and having him pee white on her. They were two totally different and separate

events.” The Family Court justice accorded scant weight to the testimony of Boutin-Gammon

after acknowledging that she “did not always follow proper protocol.” She decided, instead to

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rely on Grinnell’s testimony and the disclosures made to Dunn—that respondent walks around

the house naked and sleeps naked while Jennifer is beside him. We are not convinced that the

Family Court justice overlooked or misconceived material evidence where the record reflects a

thoughtful and carefully deliberated decision, addressing the evidence that respondent declares to

be bereft.

It is our opinion that, had the Family Court justice entirely disregarded the disclosures

made to Dunn and the testimony of Boutin-Gammon, the testimony of Grinnell, standing alone,

was sufficient to sustain the burden of proof in this case. The Family Court justice determined

that the child’s disclosures to Grinnell, a trusted adult and the first person to whom the child

turned, were “done in such a way, in circumstances that made them reliable and trustworthy.”

Her testimony, recounting the disclosures made to her by four-year-old Jennifer, was “exact as to

the crucial elements” and, even unaccompanied by the other corroborative testimony, was

sufficient to establish that Jennifer had been sexually abused by respondent. State v. LaPointe,

525 A.2d 913, 914 (R.I. 1987) (sustaining a conviction for first-degree sexual assault even

though the evidence of the sole prosecution witness might be characterized as mildly vague and

contradictory, where it was “exact as to the crucial elements” and there was nothing in the record

indicating that trial justice overlooked or misconceived material evidence); see also State v.

Nania, 786 A.2d 1066, 1068 (R.I. 2001) (“[T]he credibility of witnesses and the weight to be

accorded their testimony is solely the function of the trial justice.” (citing State v. Hull, 754 A.2d

84, 86 (R.I. 2000))).

Jennifer’s disclosures to Grinnell were determined by the Family Court justice to be

accurate and truthful because “no four year old girl would have [such information] but for it

having been something that she actually experienced.” It is our opinion that competent

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confirmatory evidence exists in the record to support the Family Court justice’s findings of abuse

and neglect. The voluminous transcripts, exhibits, and memoranda in this case reflect the

extensive psychological trauma Jennifer endured while in the care of her father. As the primary

caregiver of Jennifer and Emilee, “the law holds [the respondent] to a greater level of substantial

responsibility and awareness concerning the well-being of [his] children than it otherwise might

in the case of an adult relative or a stranger.” In re Chester J., 754 A.2d 772, 778 (R.I. 2000)

(quoting In re Nicole B., 703 A.2d 612, 618 (R.I. 1997)). We are satisfied that the respondent

failed to live up to this responsibility and that Jennifer suffered abuse “amounting to the most

odious form of betrayal.” In re Nicole B., 703 A.2d at 618. Her knowledge of such prurient,

mature content far exceeds her infantile years in such a way that eliminates any other reasonable

explanation.

Conclusion

For these reasons, the respondent’s appeal is denied and dismissed. The decree of the

Family Court committing Jennifer and Emilee to the care, custody, and control of DCYF is

affirmed. The papers of this case are remanded to the Family Court.

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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

OPINION COVER SHEET

In re Emilee K.
Title of Case
In re Jennifer K.
No. 2014-139-Appeal.
Case Number
No. 2014-140-Appeal.
Date Opinion Filed February 6, 2017
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Newport County Family Court

Judicial Officer From Lower Court Associate Justice Karen Lynch Bernard
For Petitioner:

Karen A. Clark
Department of Children Youth & Families

Laurel Cynthia Ferrelli
Attorney(s) on Appeal Court Appointed Special Advocate

For Respondent:

Lauren E. Jones, Esq.
Robert S. Thurston, Esq.

SU-CMS-02A (revised June 2016)