In re N.B., 22-75 (April 15, 2024)

Supreme Court

No. 2022-75-Appeal.
(PJ 21-2526)

In re N.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 (401) 222-3258 or
Email opinionanalyst@courts.ri.gov of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2022-75-Appeal.
(PJ 21-2526)

In re N.B. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Lynch Prata, for the Court. This case came before the Supreme

Court on appeal by the Department of Children, Youth, and Families (DCYF or the

department), from an order finding it in contempt for failing to place N.B.1 at St.

Mary’s Home for Children (St. Mary’s),2 as ordered by the Family Court. On appeal,

DCYF submits that the hearing justice committed a variety of errors. First, DCYF

argues that the hearing justice abused his discretion by finding that it had not

1
N.B. was a minor at the time of the proceedings, so we refer to her using her initials
to respect her privacy.
2
St. Mary’s is a nonprofit agency that cares for children facing psychiatric illness,
sexual abuse and trafficking, and special-education challenges. See St. Mary’s Home
for Children, About Us, https://www.smhfc.org/about-us/ (last visited Apr. 3, 2024).
The facility offers three program areas: (1) residential services to children ages six
to eighteen; (2) outpatient services to support those impacted by sexual abuse,
exploitation, and other trauma such as family violence or physical abuse; and (3) a
residential and day school that provides highly structured, individualized special-
education instruction and therapeutic services for K-12 students with learning,
social, emotional, and behavioral challenges. Id.
-1-
exercised reasonable efforts to place N.B., and thus it was an error to order the

child’s placement at St. Mary’s because the evidence demonstrated that N.B. could

not be placed at that facility and DCYF had made substantial efforts to place her

there and at other appropriate facilities. Second, DCYF challenges the hearing

justice’s finding that it had failed to demonstrate that it was not possible to comply

with the placement order as the department had put forth testimony and evidence of

its efforts to place her in an appropriate level of care, and that no placement was

available. And lastly, DCYF challenges the hearing justice’s decision to impose a

contempt sanction for the benefit of N.B. For the reasons stated herein, we vacate

the order of the Family Court.

Facts and Travel

N.B. became involved with DCYF on August 10, 2021, when the department

filed a neglect and dependency petition in Providence County Family Court alleging

that she “requires the protection and assistance of the [c]ourt due to the inability of

the mother, through no fault of the mother, to provide the child with a minimum

degree of care or proper supervision because of the special medical, educational or

social service needs of the child which the mother is unable to provide.” Laura

Bailey, in her capacity as a Child Protective Investigator for DCYF (Investigator

Bailey), filed an affidavit in support of the petition. The affidavit detailed a series

of events that preceded DCYF’s filing of the petition. Investigator Bailey reported

-2-
that on August 7, 2021, N.B. was involved in an altercation in which she was caught

drinking alcohol and had assaulted her mother and younger brother. N.B. was

transported to Hasbro Children’s Hospital (Hasbro or hospital) for evaluation. The

Hasbro emergency-room staff evaluated N.B. but refused to admit her, indicating

that she did not meet the criteria because she was “not homicidal or suicidal.” At

discharge, N.B.’s mother refused to take her home out of concern for herself and

N.B.’s younger sibling’s safety. N.B. was placed on a seventy-two-hour hold at the

hospital and treated for her high blood-sugar levels. 3 After the incident, N.B. was

placed with her maternal grandmother.

Investigator Bailey also proffered that N.B.’s mother was “visibly upset about

the situation” and expressed concerns about her daughter’s ongoing behavioral

issues. In the months prior, N.B. had assaulted her mother and sibling multiple

times.4 N.B’s mother also informed Investigator Bailey that she had tried home-

based care for her daughter’s insulin regimen, therapy, and psychiatry, but “nothing

seemed to work” because her daughter refused the care. After a hearing on August

3
Approximately four years earlier, N.B. was diagnosed with Type I juvenile diabetes
after she was rushed to the hospital on the first day of school because school
personnel were concerned by her dramatic appearance; she weighed only fifty-five
pounds.
4
Prior to the August 7 incident, N.B. had been in and out of both Bradley Hospital
and Hasbro Children’s Hospital on at least nine occasions and the Providence Police
Department had responded to the home due to her behavior numerous times. Her
mother expressed concern to Investigator Bailey that N.B. was sexually active and
using alcohol and marijuana.
-3-
13, 2021, an order granting DCYF temporary custody of N.B. was entered on

September 13, 2021. The order required that both in-state and out-of-state placement

referrals be made for the child. The department was also ordered to update the Office

of the Child Advocate (OCA) incrementally as to its efforts to place N.B. in a more

suitable placement.

After an incident on August 14, 2021, in which N.B. was caught stealing and

threatened her grandmother, she was once again transported to Hasbro via

ambulance, and admitted to the hospital as a social admission. DCYF pursued an

emergency placement for N.B. at St. Mary’s on August 16, but after a phone

conversation, the facility indicated it could not meet N.B.’s needs. The department

began making referrals on August 23 and contacted at least seven different

placements, to no avail. On October 21, DCYF provided a letter to inform the court

of its additional efforts to place N.B. outside of Hasbro. At that point, DCYF had

made fourteen referrals to in-state and out-of-state facilities on behalf of the child,

but her placement at these facilities was either denied or pending review. Thereafter,

CASA sought a Family Court review of whether DCYF had made reasonable efforts

to place N.B. at an appropriate placement outside of the hospital. 5

5
At a later hearing, N.B.’s mother expressed concern that the care at Hasbro was
inadequate given that she was not receiving any services and spent most days
watching TV, playing Xbox, or painting. At the hospital, N.B. was not provided
with any educational or mental-health services.
-4-
At the October 28 review hearing, Christopher Strnad (Strnad), the chief of

the Children’s Behavioral Health Unit at DCYF, detailed the agency’s efforts to

place N.B. outside of Hasbro. He explained that several out-of-state residential

centers stated that they could not take N.B. because there were no beds available and

the centers could not properly care for her diabetic needs. Strnad also testified that

DCYF had contacted five other in-state agencies, but he felt none could meet N.B.’s

needs due to a “mix of her behavioral health, [and] medical needs” and “a pretty dire

situation with the lack of staffing at the program,” in part due to the ongoing COVID-

19 pandemic. St. Mary’s had denied emergency placement for N.B. and expressed

to DCYF that it could not meet the minor’s diabetic care needs due to her

noncompliance with her insulin regimen. The department offered to provide the

facility with 24/7 nursing care, and St. Mary’s initially indicated it would be open to

discussing the possibility of accepting N.B. under those circumstances. However,

DCYF had not come to a final agreement with St. Mary’s; the facility offered a

willingness to accept N.B. under these circumstances, but DCYF “[did] not have a

final yes or no.”

According to Strnad, DCYF had been attempting to hire nurses to monitor

N.B.’s diabetic care needs. During the hearing, Strnad cited the department’s

frustrations. Strnad stated that, over the course of his eleven-year tenure at DCYF,

he had never had a situation where the department agreed to provide staffing and he

-5-
“had specific conversations that we needed to figure this out, and try to secure the

resource.” The department was constrained by the administrative process, because

it had to first identify an agency through the Master Price Agreement.6 DCYF began

having conversations about supplying nursing staff to St. Mary’s in the middle of

September 2021 and the first conversation with a qualified vendor occurred on

October 13. The qualified vendor was tasked with hiring nurses to provide for N.B.’s

care. DCYF had no control over the job posting or hiring process. The department

continued to communicate with St. Mary’s throughout the process of attempting to

hire nurses; however, there was difficulty filling the positions due to staffing

shortages and other complications. Specifically, the positions DCYF had to fill were

at a lower pay scale and in a more stressful environment than other available nursing

jobs. Strnad also testified regarding DCYF’s other efforts to place N.B. out of state

and why placement was ultimately denied at those facilities. There was some hope

that Mount Prospect Academy in New Hampshire would take N.B., but a bed would

not be available at that facility for several more months.

6
The Master Price Agreement (MPA) “cover[s] requirements for universal need for
goods or services for a specified contract period on a state wide basis.” State of
Rhode Island Division of Purchases, Master Price Agreements FAQs,
https://purchasing.ri.gov/stateagencyinfocenter/docsforms/purchases-mpa-faqs.pdf
(last visited Apr. 3, 2024). This is seen among state agencies as a way to connect to
qualified vendors and expedite the process to secure needed goods or services. Id.
-6-
After hearing testimony and reviewing the evidence adduced at the hearing,

the hearing justice found that DCYF had not made reasonable efforts to

appropriately place the child and that her rights under the Children’s Bill of Rights,

G.L. 1956 § 42-72-15, had been violated. 7 The hearing justice acknowledged that

the “social worker here acted swiftly,” DCYF “followed up on placement referrals,”

and put together referral packages within “a reasonable period of time.” But his

concern was that Hasbro was not a suitable residential placement for a child and it

was not clear why DCYF went through an administrative process to retain the nurses

needed to provide supplemental care for N.B., as “the Children’s Bill of Rights, due

process, the United States Constitution, or the Rhode Island Constitution, would

trump any of those procedural, administrative requirements for an agency to place a

child.” He stressed that at the hospital N.B. was not receiving proper care; she was

not attending school, had no tutoring, mental-health counseling, behavioral

treatment, or exercise, and she was primarily confined to a room where she was

watched by hospital staff 24/7.8 The hearing justice further found that N.B.’s

7
In relevant part, G.L. 1956 § 42-72-15 provides that “[n]o child placed or treated
under the supervision of the department in any public or private facility shall be
deprived of any personal property or civil rights, except in accordance with due
process.” Section 42-72-15(a).
8
At this point, N.B. had been in the hospital room for over two months. She had no
interactions with anyone other than her mother and the nursing staff. She was not
allowed internet access due to her past behavior and the hospital staff’s concerns.
Therefore, her interactions with the outside world were almost nonexistent.
-7-
condition was deteriorating based on the circumstances of her placement at Hasbro.

As such, he ordered that N.B. be placed at St. Mary’s and that DCYF “provide the

appropriate medical care [and] nursing [care] to address [the] child’s particular

medical needs consistent with the diabetic treatment plan or any treatment plan from

Hasbro Children’s Hospital” on October 29, 2021. An order memorializing these

directives was entered on November 8, 2021. Thereafter, an amended order with

additional factual findings entered on November 12, 2021.9

On November 3, 2021, CASA filed a motion to adjudge DCYF in contempt

for its failure to place N.B. at St. Mary’s. At a hearing on November 8, the

department expressed that it had discussed N.B.’s placement with a director at St.

Mary’s. The director informed DCYF that a bed would be available in a few weeks

but that it was being held for another child in DCYF’s care. Counsel for DCYF

indicated that it “had to make a decision and choose which child will be placed” at

St. Mary’s. However, even if a bed became available at St. Mary’s, the department

had not yet secured the nursing staff necessary to care for N.B.’s diabetic needs and

placing her without such care would be “reckless[].” DCYF also updated the court

on its efforts to place N.B. at an out-of-state facility.

9
The parties do not dispute that the November 12, 2021 amended order is the
operative document with respect to the October 27, 28, and 29 hearings.
-8-
The court heard testimony on November 10 and 12, 2021, regarding CASA’s

motion to adjudge DCYF in contempt. At the hearing, Doctor Brian Alverson (Dr.

Alverson), the director of the division of pediatric medicine at Hasbro and N.B.’s

attending physician, testified that the “profound social isolation” was harmful to

N.B. 10 Doctor Alverson further testified that there was no “medical or psychiatric

reason for [N.B.] to be hospitalized.” Moreover, he testified, nurses were not

necessary to treat her diabetic condition. Doctor Alverson stated that anyone with

an early high-school education, including the child herself, could administer insulin.

Ultimately, Dr. Alverson expressed that a hospital is no place for a child in N.B.’s

situation and that her isolation coupled with the ongoing COVID-19 pandemic,

which was “driving depression and anxiety to unprecedented levels” for young

people, made “the risk of continued hospitalization * * * and the social outcome of

what will happen as a result” far greater than the risk that her diabetic needs would

not be met.

DCYF further detailed its efforts to place N.B. at St. Mary’s but, due to recent

staffing challenges related to the pandemic, the facility had experienced a reduction

in capacity and could not provide a bed at that time. The hearing justice found that

10
We pause to acknowledge that Dr. Alverson chose to testify in this matter, not
because he was asked by any party to the case or subpoenaed to do so, but due to the
severity of the situation and the ongoing harm to N.B. He showed up in court of his
own volition.
-9-
Hasbro was not an appropriate placement for N.B. as it was not a home, nor could it

provide the structure she needs. He based his findings, in part, on Dr. Alverson’s

testimony regarding the terrifying “social isolation impacts on [the] child” and that

the child did not need any additional medical supervision to manage her diabetes

when appropriately placed. The court explained that DCYF was made aware of this

“back in early August,” and although there was another child in need of a similar

placement, the justice was “satisfied that, in fact, there [were] residential treatment

facilities that could accommodate both of those children.” 11 Indeed, he pointed out

that St. Mary’s had a trauma unit for emergency cases where N.B. could go until she

could “be placed at a higher level [of care].” Accordingly, the hearing justice found

DCYF in willful contempt of the October 29 order. The court reasoned that, despite

undertaking efforts immediately, “the [d]epartment ha[d] the means and the ability

to be able to address [N.B.’s] need in some other fashion with some

accommodations” and although DCYF was constrained by the administrative

process to hire nurses, “there are exceptions” such as when a party is under court

order. He explained that the situation was “dire”; for eighty-eight days N.B. had

11
We are cognizant that N.B. was not the only child who DCYF was unable to place
during this time, having heard oral argument on a similar case—DCYF’s appeal of
a contempt order holding it in contempt for failing to place another child, N.D., in
the fall of 2021—on the same day. These two cases were heard in the Family Court
contemporaneously. Nevertheless, no class of aggrieved children was formed, and
no special master was appointed to investigate DCYF’s operations in either case.
- 10 -
been confined to her hospital room, receiving no education, clinical support,

exercise, or other privileges. The hearing justice also ordered the parties to

determine the cost of the hospital stay per day and place the funds in a trust account

for the minor retroactive to October 29, 2021.12 A decree was entered on November

18, 2021, finding DCYF in willful contempt of the court’s order because it had not

made reasonable efforts to place N.B.

On November 23, 2021, DCYF filed a motion to modify or vacate the court’s

order to place N.B. at St. Mary’s because the facility had declined to admit the minor

and it was “now an impossibility for DCYF to be able to comply with the [c]ourt’s

orders.” The department relied on letters from a psychiatrist and nursing director at

St. Mary’s categorically denying N.B.’s admission to the facility. The letters were

dated November 18 and 19. At the November 29 hearing, the Executive Director of

St. Mary’s testified that the facility had denied N.B. because it “could [not]

adequately support her with her insulin-dependent diabetes” due to her

noncompliance. It was reiterated that St. Mary’s was experiencing a staffing crisis

related to the ongoing COVID-19 pandemic and had expressed concerns about

hiring an outside firm to come into the facility. Based on St. Mary’s refusal to accept

12
The court later modified that portion of the order to provide that DCYF would be
sanctioned $1,000 per day until it purged itself of the contempt, as opposed to the
per diem cost of the child’s hospitalization. The order entered on December 17,
2021.
- 11 -
N.B., the hearing justice granted DCYF’s motion to modify the placement order and

denied the motion to vacate on November 29. He stated that, although St. Mary’s

was not going to accept N.B., DCYF still needed to place her “forthwith in an

appropriate level of care,” to ensure that her medical needs were satisfied “either by

providing the level of staffing necessary to ensure that, or funding the agency * * *.”

The order memorializing this directive entered on December 23, 2021.

On December 8, 2021, DCYF filed a notice of appeal of the court’s November

18 and 19 orders. On January 14, 2022, N.B. was discharged from Hasbro to her

mother’s home after spending over 150 days at the hospital. On January 31, the

Family Court determined that DCYF had purged itself of contempt as N.B. had been

discharged from Hasbro on January 14 and returned to live with her mother.

Standard of Review

“Both the Legislature and this Court have recognized that the Family Court,

although a statutory court, has inherent power to punish contempt of its authority

* * *.” Porter v. Porter, 684 A.2d 259, 261 (R.I. 1996); see also G.L. 1956 § 8-6-1

(codifying the Superior Court’s power to punish contempt of its authority); G.L.

1956 § 8-10-38(a) (conferring like powers upon the Family Court “as are conferred

upon the [S]uperior [C]ourt by the provisions of § 8-6-1”). “A contempt finding

requires a party to demonstrate, ‘by clear and convincing evidence, that a sufficiently

specific order of the court has been violated.’” Harris v. Evans, 250 A.3d 553, 560

- 12 -
(R.I. 2021) (quoting Town of Coventry v. Baird Properties, LLC, 13 A.3d 614, 621

(R.I. 2011)). We accord “‘great deference to a trial justice’s finding of contempt[,]’

and we will not disturb those findings unless they are clearly wrong or the trial justice

abused his or her discretion.” Id. (quoting Town of Coventry, 13 A.3d at 621). “Nor

will this Court ‘substitute our reading of the evidence for that of the trial justice if

the record supports the [trial] justice’s findings.’” Id. (quoting Now Courier, LLC v.

Better Carrier Corp., 965 A.2d 429, 434 (R.I. 2009)). “Findings of fact in a

contempt hearing will not be disturbed unless they are clearly wrong or the trial

justice abused his or her discretion.” Durfee v. Ocean State Steel, Inc., 636 A.2d 698,

704 (R.I. 1994).

When reviewing the sanction imposed for civil contempt, this Court’s review

“is limited to a review of the order to ensure that the terms are reasonable.” Moran

v. Rhode Island Brotherhood of Correctional Officers, 506 A.2d 542, 544 (R.I.

1986). “We apply a de novo standard of review, however, to questions of law

* * *.” State v. Lead Industries Association, Inc., 951 A.2d 428, 464 (R.I. 2008).

Discussion

On appeal, DCYF argues that the hearing justice abused his discretion by

finding that it had not exercised reasonable efforts to place N.B., and argues it was

an error to order the child’s placement at St. Mary’s because the evidence

demonstrated that N.B. could not be placed at that facility and DCYF had made

- 13 -
substantial efforts to place her there and at other appropriate facilities. DCYF also

challenges the hearing justice’s finding that it had failed to demonstrate that it was

not possible to comply with the placement order as the department had put forth

testimony and evidence of its efforts to place her in an appropriate level of care, and

that no placement was available. And lastly, DCYF challenges the hearing justice’s

decision to impose a contempt sanction for the benefit of N.B.

In response, CASA argues, on behalf of N.B., 13 that this Court should affirm

the hearing justice’s finding of civil contempt and that his rejection of the

department’s impossibility defense was not erroneous. Likewise, for its part, OCA14

maintains that the hearing justice’s finding of civil contempt was proper and the

court properly rejected DCYF’s impossibility defense. We take each issue seriatim;

but at the outset, we must first address the apparent confusion regarding the

placement order as to which DCYF was held in contempt.

Our review of the record indicates that the hearing justice ordered that N.B.

be placed at St. Mary’s forthwith on October 29, 2021. These instructions were not

13
N.B.’s mother and father filed motions to join CASA’s argument, which we
granted.
14
The Office of the Child Advocate (OCA) consists of an appointed child advocate
and staff who are responsible for reviewing DCYF operations. G.L. 1956 §§ 42-73-
1 to -7. The OCA’s duties include reviewing the facilities where children are placed
and recommending changes in the procedures for providing childcare and treatment.
Sections 42-73-7(4), (5). The OCA is authorized to “[t]ake all possible action
including * * * formal legal action, to secure and ensure the legal, civil and special
rights of children * * *.” Section 42-73-7(6).
- 14 -
reduced to a formal, written order until November 8. As in other cases, “Dependency

and Neglect Action (DNA) Hearing Sheets” 15 were used by the hearing justice,

which contained handwritten instructions directing DCYF to place the child at “St.

Mary’s forthwith and * * * to fund appropriate medical care if St. Mary’s is unable

to provide [it].” Although counsel for DCYF indicated at oral argument that this is

common practice in the Family Court, we remain troubled by the lack of consistency

in the record regarding the use of DNA Hearing Sheets versus the entry of formal

orders, and the failure to enter the orders nunc pro tunc. 16 In the past, we have looked

disfavorably upon the use of event hearing sheets as decrees or orders because it

lacks clarity. See In re Ephraim L., 862 A.2d 196, 199 n.6 (R.I. 2004). We can only

review a finding of civil contempt if a formal order was entered. Vecchio v. Women

& Infants Hospital, 293 A.3d 842, 848 (R.I. 2023) (“The court speaks through its

orders.”); In re Court Order Dated October 22, 2003, 886 A.2d 342, 349 (R.I. 2005)

(“The question of clarity does not even arise if one is not put on notice that the order

is in place.”). Although the hearing justice ordered DCYF to place N.B. at St.

Mary’s on the record on October 29, 2021, and expected that directive to be

15
Dependency and Neglect Action (DNA) Hearing Sheets are utilized by the hearing
justice in dependency and neglect matters. The document is handwritten and signed
by the hearing justice and kept in the court’s record.
16
The formal orders are often more extensive than the handwritten DNA Hearing
Sheets. Nevertheless, DCYF acknowledged its full understanding of the court’s
directive given on October 29 and cultivated efforts to comply prior to the entry of
the formal order on November 8.
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followed, the formal order was not entered until November 8 and an amended order

entered on November 12. We caution that the best practice is to enter formal orders;

and, when expediency requires, the orders should be entered nunc pro tunc.

Before this Court, DCYF argues that the hearing justice erred in his finding

that DCYF had not exercised reasonable efforts to place N.B. and in ordering the

department to place her at St. Mary’s, because the evidence adduced at the hearings

demonstrated that the minor could not be placed at that facility and DCYF had made

substantial efforts to place N.B. there and at other appropriate placements. We agree.

Notably, neither CASA nor OCA addresses DCYF’s primary argument that the

hearing justice abused his discretion in finding at the review hearings that DCYF

had not exercised reasonable efforts to place N.B.

In reviewing the hearing justice’s findings in a contempt hearing, we are

mindful that we disturb such findings only if the hearing justice was “clearly wrong

or * * * abused [their] discretion.” Gardiner v. Gardiner, 821 A.2d 229, 232 (R.I.

2003) (quoting Durfee, 636 A.2d at 704). It is well settled that “[a] finding of civil

contempt must be based on a party’s lack of substantial compliance with a court

order, which is demonstrated by the failure of a party to ‘employ[] the utmost

diligence in discharging [its] * * * responsibilities.’” Id. (quoting Durfee, 636 A.2d

at 704).

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Our review of the record reflects that DCYF acted quickly to secure a

placement for N.B. On August 16—days after DCYF was granted temporary

custody of N.B.—the department sought an emergency placement for N.B. at St.

Mary’s. The facility refused to admit her due to a combination of her medical needs

and behavioral issues. Undeterred, the department began making referrals for N.B.

to be placed outside of Hasbro immediately. Indeed, DCYF had contacted at least

fourteen potential placements at both in-state and out-of-state facilities.

Notwithstanding DCYF’s efforts, the out-of-state facilities would not accept N.B.

due in part to a lack of availability, based on staffing shortages related to the ongoing

COVID-19 pandemic, and in part because of her noncompliance with her insulin

regimen.

The record is clear that DCYF also had ongoing conversations with St.

Mary’s, the only residential placement in Rhode Island for teenage girls. St. Mary’s

initially rejected N.B.’s emergency placement in August, but through ongoing

discussions with DCYF, the facility indicated that it might be willing to accept N.B.

with additional nursing care. However, the hearing justice overlooked the fact that

DCYF, as a state agency, was obligated to comply with the established procurement

process in order to secure the nursing care N.B. needed. Indeed, DCYF began

having conversations in September about how to hire and fund the nursing care for

N.B., something that Strnad testified he had never encountered in his eleven years

- 17 -
working for the department. DCYF communicated with the identified agency on

October 13. The department continued to communicate with St. Mary’s throughout

the hiring process but had difficulty filling the positions due to ongoing nursing

shortages, in large part because of the COVID-19 pandemic.

This is not a situation where the department sat on its hands and made no

attempt to address the problem or comply with the court’s order. See, e.g., Gardiner,

821 A.2d at 232 (holding that the Family Court erred by failing to adjudge a party

in contempt because “at no time” did he ever attempt to comply with the court’s

order); Durfee, 636 A.2d at 705 (trial justice did not abuse his discretion in finding

a party in contempt because although party had taken substantial steps toward

reducing the problem as enforcement pressures increased, they had not done so early

enough and it was a case of “too little, too late”). Our review of the record reflects

that DCYF cultivated efforts to place N.B. in an appropriate level of care, but no

such placement was available. 17

17
In other contexts, we have held that the DCYF is not required to “demonstrate that
it took extraordinary efforts but rather it must employ reasonable efforts, and the
reasonableness of such efforts must be determined from the particular facts and
circumstances of each case.” In re R.M., 296 A.3d 682, 690 (R.I. 2023) (internal
quotation marks omitted); see also In re Jae’La G., 276 A.3d 378, 391 (R.I. 2022);
In re Rosalie H., 889 A.2d 199, 208 (R.I. 2006). For example, we vacated a hearing
justice’s decision to deny DCYF’s petition to terminate a mother and father’s
parental rights to a child because there was clear and convincing evidence that the
department made reasonable efforts to reunify parents and child, i.e., DCYF
attempted to formulate case plans, and parents refused to participate or cooperate in
those efforts, DCYF offered services to address parents’ drug and alcohol usage, and
- 18 -
DCYF argues that compliance with the placement order was not possible

because the department could not compel St. Mary’s to accept the minor and thus it

could not purge itself of the contempt. It is well settled that “[t]he hallmark of civil

contempt is the ability to purge the contempt at will” by compliance with the court’s

orders. Durfee, 636 A.2d at 704 (brackets omitted) (quoting In re Carrie T., 516

A.2d 883, 885 (R.I. 1986)). It is clear to us that it was substantially impossible for

DCYF to comply with the court’s placement order. Unlike in Gardiner, where the

party “at no time” made an attempt to comply with the court’s order, here, the

department acted swiftly to locate an appropriate placement for N.B., and had begun

the process long before it was court-ordered. See Gardiner, 821 A.2d at 232. Even

after the hearing justice ordered that N.B. be placed at St. Mary’s, DCYF continued

its efforts, despite refusal after refusal.

We have held that, when a party exercises the utmost diligence to comply with

a court order, but “is literally unable to comply because compliance is not presently

within [its] power,” it cannot be found in contempt. Zannini v. Downing

Corporation, 701 A.2d 1016, 1018 (R.I. 1997). Notwithstanding its continued

efforts, DCYF could not comply due to circumstances outside the department’s

control i.e., each facility’s refusal to accept N.B.’s referral. See id. at 1018 (holding

DCYF provided visitation with child. See In re Nolan V-S., 275 A.3d 1146, 1152-55
(R.I. 2022).
- 19 -
it was not an abuse of discretion to hold party in contempt because the party violated

the court’s order and did not meet its burden in proving impossibility). The record

is replete with evidence of DCYF’s efforts to place N.B. at St. Mary’s or another

appropriate facility. No such placement was available, either in-state or out-of-

state.18 Thus, compliance with the placement order was outside the department’s

control. Accordingly, we conclude that the record before us does not support a

finding that DCYF failed to use reasonable efforts to place N.B. at St. Mary’s;

therefore, such a finding was an abuse of discretion. Consequently, the order of

contempt is vacated, and we need not address the remaining issues.

Although we deem it appropriate to vacate the Family Court’s order, we share

in the hearing justice’s frustration. In light of the importance of the matter and

ongoing harm the minor was suffering due to her placement at Hasbro, it is clear that

the hearing justice deemed swift action by the Family Court to be necessary. The

18
At oral argument, the OCA asserted that the department’s failure to fund or create
a placement facility for adolescent girls within the state is at the center of this
dispute. The OCA further argues that this systemic failure is the fault of the
department, and that they cannot argue impossibility in good faith. In this case,
however, the matter before the Court is not whether DCYF violated its statutory
obligations to provide necessary care for children. Thus, OCA’s reliance on Fortin
v. Commissioner of Massachusetts Department of Public Welfare, 692 F.2d 790 (1st
Cir. 1982), is misplaced. The issue before us concerns whether DCYF utilized
reasonable efforts to place this particular child at St. Mary’s, and not whether a class
of aggrieved individuals had a statutory right to public benefits. See id. at 792-93,
797 (affirming order finding Massachusetts Department of Public Welfare not in
substantial compliance with consent decree enjoining delays in welfare eligibility
determinations).
- 20 -
situation was dire. Despite court orders, the child was receiving no mental-health

counseling, schooling, or tutoring of any kind, and she had almost no contact with

anyone other than her mother and hospital staff for months. N.B. was only allowed

to watch television and paint, all within the confines of her hospital room. While all

parties involved were focused on getting the child removed from the hospital and

into an appropriate placement, no one, not DCYF, CASA, nor OCA, was focused on

providing, at a minimum, either the mental-health counseling or tutoring services

N.B. needed. This is a complete failure on the part of all of the agencies charged

with providing for this child’s care.

Conclusion

For the foregoing reasons, we vacate the Family Court’s order of contempt,

and the papers are remanded to the Family Court for further proceedings consistent

with this opinion.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case In re N.B.

No. 2022-75-Appeal.
Case Number
(PJ 21-2526)

Date Opinion Filed April 15, 2024

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ

Written By Associate Justice Erin Lynch Prata

Source of Appeal Providence County Family Court

Judicial Officer from Lower Court Associate Justice Felix E. Gill

For Petitioner:

Lauren E. Jones
Department of Children, Youth and Families
For Respondent:
Attorney(s) on Appeal
Andrew J. Johnson
Court Appointed Special Advocate

Diana C. Robbins
Office of the Child Advocate

SU-CMS-02A (revised November 2022)