Supreme Court

No. 2017-380-Appeal.

(10-1397-4)

In re Mandy M. :

O P I N I O N

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.

October 29, 2020
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Supreme Court

No. 2017-380-Appeal.

(10-1397-4)

In re Mandy M. :

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

O P I N I O N

Justice Flaherty, for the Court. The respondent father, Richard Fana, 

appeals from a decree that terminated his parental rights to his daughter, Mandy M. 

He argues that the decree should be vacated because (1) he was denied the effective 

assistance of counsel and (2) the trial justice erred in finding that there was sufficient 

evidence to support a finding of parental unfitness. This case came before the 

Supreme Court pursuant to an order directing the parties to appear and show cause 

why the issues raised in this appeal should not summarily be decided. After hearing

the arguments of counsel and after thoroughly reviewing the record, we conclude 

that cause has not been shown and that this case may be decided without further 

briefing or argument. For the reasons set forth in this opinion, we affirm the decree 

of the Family Court. 
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I

Facts and Travel

Mandy first came to the attention of the Rhode Island Department of Children, 

Youth, and Families (DCYF or the department) even prior to her birth on October 

27, 2014, because both of her parents had been “red-flagged” by DCYF.

1

 Upon 

return to Rhode Island, Mandy was immediately placed into the care and custody of 

DCYF. 

On February 22, 2016, over four years ago, DCYF filed a petition in Family 

Court, pursuant to G.L. 1956 § 15-7-7,2to terminate respondent’s parental rights 

 

1According to DCYF, to be “red-flagged,” one must have a history of prior physical 

abuse, sexual abuse, or previous involvement with DCYF. 

2 General Laws 1956 § 15-7-7(a) provides, in part:

“The court shall, upon a petition duly filed by a 

governmental child placement agency * * * after notice to 

the parent and a hearing on the petition, terminate any and 

all legal rights of the parent to the child * * * if the court 

finds as a fact by clear and convincing evidence that:

“* * * 

“(3) The child has been placed in the legal custody or care 

of the department for children, youth, and families for at 

least twelve (12) months, and the parents were offered or 

received services to correct the situation which led to the 

child being placed; provided, that there is not a substantial 

probability that the child will be able to return safely to the 

parents’ care within a reasonable period of time 

considering the child’s age and the need for a permanent 

home[.]”
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with respect to Mandy.3 In its petition, DCYF alleged that Mandy had been placed 

in the legal custody or care of the agency for at least twelve months. During those 

twelve months, DCYF alleged, respondent had been “offered or received services to 

correct the situation which led to the child being placed,” and that, because of 

Mandy’s age and need for a permanent home, there was not a substantial probability 

that she would be able to return safely to respondent’s care within a reasonable 

period of time. 

A trial on the petition, which was consolidated with a petition alleging neglect, 

commenced on October 18, 2016. At the onset of the trial, respondent’s counsel 

moved to withdraw his appearance. To support his motion, counsel asserted that he 

and his client had been unable to come to a meeting of the minds about case strategy. 

The respondent said that he did not agree with the advice his attorney had been 

giving him and that he no longer wished to be represented by him. The motion was 

granted by the trial justice, with the understanding that stand-by counsel would be 

appointed. The respondent conceded that he understood that he would be proceeding 

 

3 The petition also sought to terminate the parental rights as to mother. During the 

proceedings in Family Court, mother signed a direct consent adoption petition with 

respect to the foster parents. 
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pro se, and that it was “fine[,]” that it could “knock [him] off [his] feet, but [he was] 

going to take [his] best shot.”4

The trial justice addressed respondent and indicated that he would ask 

respondent’s counsel to remain as stand-by counsel. However, due to the 

disagreement in strategy and respondent’s inability to pay his legal bills, counsel 

suggested that the court might appoint another attorney to act as stand-by. The trial 

justice directed counsel to turn over any discovery materials in his possession to 

respondent. The trial justice further said that respondent was “going to be pro se in 

this matter once I get counsel assigned to him for stand-by counsel[,]” adding that it 

would be an attorney from the court-appointed list. The trial justice then continued 

the trial to December 1, 2016,so that respondent could read and review the discovery 

and the court could appoint an attorney as stand-by counsel. 

At the next trial date, on December 1, 2016, respondent’s stand-by counsel 

said that he had spoken with respondent and that he indicated that he now wanted a 

lawyer. The trial justice remarked that respondent had previously “insisted on being 

pro se” and “didn’t even insist on * * * having stand-by counsel[,]” but was now 

saying that he needed an attorney. The trial justice further explained that he had set 

the case down for trial on this particular date based upon respondent telling him that 

 

4 The record indicates that the trial justice may have had an earlier colloquy with 

respondent about proceeding pro se at an earlier hearing date. However, the 

transcript of that proceeding was not provided to this Court. 
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he did not require or desire counsel, to which respondent replied, “[s]o, let’s go. 

That’s it.” Before proceeding further, the trial justice asked both respondent and his 

stand-by counsel if they were ready to proceed; both indicated that they were. 

The trial then commenced. Carlos Rojas, a DCYF caseworker, was the first 

witness to testify. Mr. Rojas had been assigned to another case involving Mandy’s 

mother before Mandy was born. He testified that Mandy was born on October 27, 

2014, in New Jersey, and she was removed from her mother’s care because of her 

mother’s serious mental health issues and her previous neglect of her other children. 

The witness testified that respondent also had a history with DCYF, had been “redflagged[,]” and “had, at that time, and continues to have, legal issues[.]” 

Mr. Rojas said that within the first month, he attempted to develop a case plan 

for visitation and reunification for respondent, as well as planning for domestic 

violence treatment and a parent-child evaluation. He said he explained to respondent 

that the purpose of the case plan was to work together toward respondent’s 

reunification with Mandy, but that at first it was difficult to get input from respondent 

because “his demeanor wasn’t as agreeable[.]” 

Mr. Rojas testified that he showed the case plan to respondent and that he 

“reviewed it with him verbally[.]” He said that he asked respondent to sign the case 

plan, but that respondent was not willing to sign it. He testified that one of the case 

plan goals for respondent was domestic violence counseling, but Mr. Rojas did not 
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refer respondent for domestic violence counseling because respondent took the 

position that he would not attend. The respondent also was offered a visitation 

program with Mandy through Families Together visitation, and he agreed to that 

service. DCYF provided regular visits for respondent, at first together with mother, 

and, after the issuance of a no contact order which forbade respondent to have 

contact with Mandy’s mother, for respondent separately. However, respondent 

missed visits from December 2014 through January 2015 because he was 

incarcerated for violating the no contact order and because of a lack of consistent 

communication with the caseworker. Mr. Rojas testified that he remained the 

caseworker until February 13, 2015, when he alerted respondent that there would be 

a new social worker assigned to the case.5 

Catherine McCaffrey, the second DCYF social worker who was assigned to 

respondent’s case, testified next. She testified that she supervised visits with 

respondent and met with him to discuss case plan tasks throughout February and 

March 2015. She said that she discussed respondent’s participation in mental health 

services at the Providence Center with him and that he reported that he had been 

attending. She also said that she encouraged him to sign a release for DCYF, so the 

 

5 Mr. Rojas testified that he was reassigned to Mandy’s case in February 2016, after 

the petition for termination of parental rights had been filed, and that he had been 

the social worker assigned to the case since then. 
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department would be aware of the services that were being provided to him and of 

his progress, but that he refused to sign it. 

Ms. McCaffrey also testified that she was present when the Families Together 

visitation program met with respondent and Mandy for an intake appointment. Ms. 

McCaffrey said that respondent was accepted into the program and that he had been 

placed on a waiting list. He was contacted to enter the program in May 2015. Ms. 

McCaffrey testified that she and respondent discussed domestic violence counseling 

programs and that he said he would go to the Bridgemark Inc. domestic violence 

program. Ms. McCaffrey explained to respondent that he would need to fund this 

himself, noting that it was also a requirement of his probation. She also referred 

respondent for a parent-child evaluation with Family Connections, to which he 

agreed. However, the parent-child evaluator with Family Connections contacted 

Ms. McCaffrey on June 4, 2015, and informed her that respondent had refused to 

participate in the evaluation. 

Ms. McCaffrey also testified that at times respondent was late for visits and 

that at other times he would end the visits early. Although respondent was able to 

appropriately feed Mandy, at times her fussiness and crying disturbed or angered 

him, and he would give the task at hand, such as placing Mandy in her car seat, to 

the caseworker. 
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During a visit on April 29, 2015, respondent admitted that he and mother had 

been back together as a couple while the pending no contact order remained in effect, 

but that they had broken up again. Ms. McCaffrey testified that respondent also told 

her “that he was present when mother was hitting her other children, and he told her 

to stop, but didn’t take any other actions other than saying, ‘stop.’” 

DCYF continued to provide weekly visits for respondent until mid-July 2015.

Ms. McCaffrey testified that she then learned that respondent had been incarcerated 

again for violating the no contact order with Mandy’s mother. She said that 

respondent’s impatience with reunification, despite his lack of participation with 

domestic violence counseling, the parenting visitation program, and parent-child 

evaluation, as well as his frequent incarcerations, continued to escalate throughout 

August and September 2015. 

The respondent was incarcerated again at the beginning of August 2015 and 

missed additional visits. The respondent and Ms. McCaffrey met on October 6, 

2015, after he had missed several appointments, to discuss new referrals. Although

respondent told Ms. McCaffrey that he was interested in visits, Ms. McCaffrey 

informed him that remaining out of jail in order to consistently parent Mandy, as 

well as having suitable housing, would be new tasks that would be added to his case 

plan. 
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It is significant that respondent had not provided his address to DCYF for 

some time. Consequently, DCYF had not been able to determine the appropriateness 

of respondent’s housing. DCYF made new referrals to the Boys Town visitation 

program for respondent and to Dr. John Parsons for a parent-child evaluation, and 

changed his visitation schedule with Mandy to accommodate his work hours, even 

though respondent did not provide employment information to DCYF. 

The respondent was arrested again on November 4, 2015, and the record 

reflects that he was sentenced to a term of 90 days at the Adult Correctional 

Institutions. Visits resumed after his release in February 2016. Ms. McCaffrey 

testified that, on February 12, 2016, she engaged in a phone call with respondent and 

informed him that DCYF was filing a petition for termination of parental rights and

that, as a result, no new referrals for services would be made. She also informed 

him that the case was being assigned to another caseworker. 

That worker was Mr. Rojas, who resumed responsibility for respondent’s case 

in February 2016. He testified that he supervised bi-weekly visitation between 

respondent and Mandy. He also testified that, although respondent attended visits 

and brought snacks for Mandy, he did not provide diapers, formula, or other clothing 

she might need. Mr. Rojas testified that Mandy had been in the same foster home 

since two days after her birth. He observed that Mandy did not resist visits with 

respondent, but that she was quiet and somber and separated easily from him and, 
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by contrast, was joyful when returned to her foster home. He described a close, 

loving bond between Mandy and her foster parents and the other family members in 

the foster home. He testified that the foster parents were willing to adopt Mandy 

should she be freed for adoption. 

The respondent testified on his own behalf. He said that the only reason that 

Mandy was in DCYF custody was the actions of Mandy’s mother. He claimed that 

he complied with DCYF’s planning and he “did domestic” and his “own anger 

management.” He testified that he was no longer with Mandy’s mother, and that he 

was stable and “doing much better without the mother.” He testified that he had 

enrolled Mandy in day care and that she was at the top of the waiting list to enter. 

He said that she would have her own room in his apartment and could take karate 

and piano lessons. He also testified that he had two sons who had lived with him for 

the first seven years of their lives. 

On June 27, 2017, the trial justice rendered a bench decision, terminating 

respondent’s parental rights to Mandy. He acknowledged respondent’s testimony 

during trial “that he was a changed man” who “had done things on his own that have 

prepared him now to receive the child[,]” but noted that respondent had not presented 

any witnesses to that effect. He stated that respondent’s case was a complicated and 

difficult case and that respondent had “taken on a difficult challenge in representing 

himself[,]” but that the court did require that he “take upon himself stand-by counsel 
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so that he would have someone to turn to, regarding issues concerning procedural 

events happening during the course of this trial.” He found that respondent had 

“failed to complete his case plans” and had “failed to really look at the case plans, 

insisting that they were not necessary.” He also found that respondent had failed to 

complete services such as a substance abuse program, a parent-child evaluation, 

domestic violence and visitation programs, and that he had presented no evidence of 

employment or appropriate parenting skills. The trial justice further found that 

respondent had rejected DCYF’s efforts “to assist him, except for attendance to 

visitation.” He explained that “visitation alone is not sufficient to avoid a petition 

involving a termination of parental rights[,]” and that what was required was “a 

continuous and repeated effort to comply with services intending for the child’s 

return.” 

The trial justice concluded that, based on the evidence, respondent was unfit 

to parent Mandy, given his “failure to comply with services so as to receive his 

daughter into his home.” He concluded that Mandy had “been placed in the legal 

custody and care of [DCYF] for at least 12 months[,]” and that respondent had been 

“offered or received services to correct the situation which led to the child being 

placed[,]” but that there was “not a substantial probability that the child will be able 

to be returned safely to the father’s care within a reasonable period of time[.]” He 
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found that respondent was unfit to parent Mandy and concluded that it was in the 

child’s best interests that respondent’s parental rights be terminated. 

The decree terminating respondent’s parental rights was entered on July 27, 

2017. The respondent filed an appeal pro se, and the matter was subsequently 

docketed in this Court on November 10, 2017.6 However, the prebriefing notice was 

returned as “not deliverable,” and a second notice was sent to respondent on January 

16, 2018. A conditional order of dismissal was entered against respondent on 

February 26, 2018, which would have been vacated if his prebriefing statement was 

filed by March 8, 2018. No prebriefing statement was filed by respondent by that 

time. This Court then returned the case to the Family Court. The child was adopted 

on May 15, 2018, by her foster parents, following a hearing in Family Court. 

However, on September 10, 2018, this Court vacated the dismissal of respondent’s 

appeal after appointed counsel entered on his behalf. 

II

Standard of Review

“On appeal, this Court reviews termination of parental rights rulings by 

examining the record to establish whether the Family Court justice’s findings are 

supported by legal and competent evidence.” In re Violet G., 212 A.3d 160, 166 (R.I. 

2019) (quoting In re Amiah P., 54 A.3d 446, 451 (R.I. 2012)). “These findings are 

 

6 The respondent did not appeal the finding of neglect. 
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entitled to great weight, and this Court will not disturb them unless they are clearly 

wrong or the trial justice overlooked or misconceived material evidence.” Id.

(quoting In re Amiah P., 54 A.3d at 451). “Such findings must be supported by clear 

and convincing evidence.” Id.

III

Discussion

On appeal, respondent presents two issues for our review. First, he asserts 

that the decree terminating his parental rights to Mandy should be vacated because 

he had been denied the effective assistance of counsel in that he did not waive his 

right to counsel and because the trial justice did not inquire whether he wished for 

or qualified for appointed counsel. Second, he maintains that the trial justice was 

clearly wrong to conclude that there was parental unfitness and that there was no 

substantial probability that Mandy could be placed in respondent’s care within a 

reasonable period of time. 

A

Ineffective Assistance of Counsel 

“[A] parent’s interest in the accuracy and justice of the decision to terminate 

his or her parental status is * * * a commanding one.” In re Bryce T., 764 A.2d 718, 

721 (R.I. 2001) (quoting Lassiter v. Department of Social Services of Durham 

County, North Carolina, 452 U.S. 18, 27 (1981)). While “in some circumstances 
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due process might require appointment of counsel in a termination of parental rights 

proceeding, * * * the Constitution does not require appointment of counsel in every 

such case.” Id. (quoting Lassiter, 452 U.S. at 31). However, despite the lack of a 

constitutional directive, Rule 18(c) of the Rhode Island Rules for Juvenile 

Proceedings provided at all relevant times in this case that “[a] preliminary hearing 

shall be held on [a petition for involuntary termination of parental rights] for the 

court to * * * (4) Appoint an attorney to represent the parent(s) and any person 

having such care or custody of such child when said parent(s) or custodian [is] 

unable to afford such representation[.]”

7

 As we have said, “[t]he rule, however, 

neither expressly provides to a parent the right to substitute counsel in the event the 

parent has discharged appointed counsel, nor does it preclude substitute counsel.” In 

re Bryce T., 764 A.2d at 721. Therefore, “there is no mandate to appoint substitute 

counsel after a respondent has discharged an appointed counsel.” Id.

In this case, respondent did not unilaterally discharge his counsel, but instead 

he and his counsel agreed that they did not see eye to eye about counsel’s 

representation of respondent. Counsel filed a motion to withdraw, to which 

respondent did not object. Also, respondent did not request the appointment of new 

counsel, but rather he acquiesced to proceeding pro se. The trial justice articulated 

 

7 Rule 18 of the Rhode Island Rules for Juvenile Proceedings was amended effective 

January 6, 2020, and the quoted portion of the rule is now found at Rule 18(b)(4) 

with minor stylistic revisions. 
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the risks of proceeding pro se to him, and, in doing so, the following exchange took 

place: 

“THE COURT: * * * Are you telling this Court, once 

again - - I remember last time I went over with you the fact 

that this is a big responsibility we’re talking about here, 

and you had talked about wanting to be pro se. Have you 

had time to think about all that we discussed?

“ * * * 

“THE COURT: So, you understand that what you’re 

asking to do would be trying this case, basically. And,

there are rules of engagement. You know, there is some 

latitude, but not very much. This case has to stand up to 

any possible processes that might follow thereafter. They 

have to meet muster under the rules for litigation. Do you 

think you have the intelligence and the ability to do that?

“[RESPONDENT]: Well, your Honor --

“THE COURT: You are asking to be pro se. So, I mean, 

everything that goes with it will end up on your shoulders. 

“[RESPONDENT]: That’s fine. It can knock me off my 

feet, but I’m going to take my best shot.” 

Considering the entire record, it is evident that respondent has failed to allege 

any basis for a finding that he did not knowingly give up his right to counsel. The 

record indicates that the trial justice advised respondent that there were serious 

consequences in his proceeding pro se and that respondent understood that his 

attorney would no longer represent him, and he would be proceeding to trial pro se 

with stand-by counsel. We also note that at no time during the proceedings did 
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respondent mention a financial need for a court-appointed attorney, and that he had 

asserted to the court that he was employed. 

In addition, after the trial justice granted counsel’s motion to withdraw, he 

appropriately appointed an attorney to act as stand-by counsel to assist respondent 

during the trial. “We have held that ‘there is no mandate to appoint substitute 

counsel,’ once a respondent has discharged appointed counsel[.]” In re Ginger 

G., 775 A.2d 255, 258 (R.I. 2001) (quoting In re Bryce T., 764 A.2d at 721). 

“However, we also suggested that ‘trial [justices] should direct that an appointed, 

dismissed attorney serve as stand-by counsel in the event the unrepresented party is 

unable to proceed pro se or requires assistance during trial.”’ Id. (quoting In re Bryce 

T., 764 A.2d at 722). It is not lost upon us that respondent’s decision to proceed pro 

se occurred on the very cusp of trial and on a day that the trial justice had set aside 

to reach this case on the merits. It is, therefore, our opinion that the trial justice 

committed no error in allowing respondent to proceed pro se.

8

 

8

It is worth noting that Rule 18 of the Rhode Island Rules for Juvenile Proceedings 

calls for a preliminary hearing on whether counsel should be appointed. Here, the 

relevant discussions occurred just as trial was to commence. 
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B

Determination of Unfitness

“Natural parents have a fundamental liberty interest in the care, custody, and 

management of their children.” In re Violet G., 212 A.3d at 166 (quoting In re Amiah 

P., 54 A.3d at 451). Given the drastic and irreversible nature of a termination of 

parental rights decree, “the right to due process requires that the state support its 

allegations by clear and convincing evidence.” Id. (quoting In re Amiah P., 54 A.3d 

at 451).

“Before terminating a parent’s rights to his or her child, the Family Court 

justice must find that the parent is unfit.” In re Violet G., 212 A.3d at 166 (brackets 

omitted) (quoting In re Amiah P., 54 A.3d at 451). “In these cases, the right to due 

process requires that the state support its allegations by clear and convincing 

evidence.” Id. (quoting In re Amiah P., 54 A.3d at 451). “However, once the Family 

Court justice determines parental unfitness, the best interests of the child outweigh 

all other considerations.” Id. (brackets omitted) (quoting In re Amiah P., 54 A.3d at 

451).

In the case now before us, the trial justice found that there was sufficient

evidence to support a conclusion that respondent was unfit as a parent and that 

DCYF had made reasonable efforts to reunify respondent and his daughter. He also 

found that respondent had neglected or failed to cooperate with DCYF’s efforts “to 
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assist him, except for attendance to visitation.” He found by clear and convincing 

evidence that, based on the evidence, there was “not a substantial probability that 

the child will be able to be returned safely to the father’s care within a reasonable 

period of time[.]” Although respondent had been “offered or received services to 

correct the situation which led to the child being placed[,]” the trial justice found 

that respondent was unfit to parent Mandy, given his “failure to comply with services 

so as to receive his daughter into his home.” 

We agree and discern no error in the trial justice’s determination that DCYF

granted respondent many opportunities and services to enable him to reunite with 

his daughter, and that respondent did not take advantage of those services.

After a determination of parental unfitness has been made, and after a showing 

of reasonable efforts at reunification, the Court’s analysis “shifts to the overarching 

issue of the best interests of the child,” which outweigh all other considerations. In 

re Violet G., 212 A.3d at 167. A determination of the best interests of the child 

includes “the right of a minor child to reasonable care and maintenance, freedom 

from abuse or neglect, and the right to be given an opportunity to spend the 

remainder of his or her childhood in a family setting in which the child may grow 

and thrive.” In re Christopher B., 823 A.2d 301, 317 (R.I. 2003) (quoting In re 

Stephanie, 456 A.2d 268, 271 (R.I. 1983)).
- 19 -

Here, the trial justice determined that “it is in the best interest of the child that 

this father’s rights be terminated so as to allow the child to be in a permanent, loving, 

nurturing home.” We are mindful of the “significance of severing the bond between 

parent and child[.]” In re Violet G., 212 A.3d at 168 (quoting In re Alexis L., 972 

A.2d 159, 170 (R.I. 2009)). Nonetheless, we are satisfied that the trial justice 

appropriately determined that the termination of respondent’s parental rights was in 

the best interests of the child. See In re Alexis L., 972 A.2d at 170 (explaining that 

“[a]lthough this Court is ever cognizant of the significance of severing the bond 

between parent and child, it is in the best interests of children to have a safe and 

nurturing environment in which to live, learn[,] and grow”).

IV

Conclusion

For the reasons set forth in this opinion, the decree of the Family Court is 

affirmed. The record in this case may be returned to the Family Court. 
SU-CMS-02A (revised June 2020)

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 Mandy M.

Case Number No. 2017-380-Appeal.

(10-1397-4)

Date Opinion Filed October 29, 2020

Justices Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

Written By Associate Justice Francis X. Flaherty

Source of Appeal Providence County Family Court

Judicial Officer from Lower Court Associate Justice Rossie L. Harris, Jr.

Attorney(s) on Appeal

For Petitioner:

Laurel C. Ferrelli, Esq.

Court Appointed Special Advocate

Benjamin Copple, Esq.

Department of Children Youth and Families

For Respondent:

Kara Hoopis Manosh, Esq.