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In re Izabella G.

Supreme Court of Rhode Island

July 7, 2016

In re Izabella G.

         SOURCE OF APPEAL: Providence County Family Court (11-4001-1) Associate Justice Sandra A. Lanni

         ATTORNEYS ON APPEAL:

          For Petitioner: Karen A. Clark Department of Children Youth and Families

          Jennifer J. Kelly Court Appointed Special Advocate

          For Respondent: Paula Lynch, Esq.

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

          OPINION

          Maureen McKenna Goldberg Justice.

         This case came before the Supreme Court on May 4, 2016, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. The respondent, Tony Gonzalez, appeals from a decree entered in the Family Court terminating his parental rights with respect to his daughter, Izabella G., who was born on August 2, 2007.[1] On appeal, the respondent initially argued that the hearing justice erred, first, in terminating his parental rights based on his incarceration; second, in concluding that the Department of Children, Youth, and Families (DCYF) made reasonable efforts to maintain contact between him and Izabella; and, third, in determining that termination of the respondent's parental rights was in Izabella's best interest. While this case was pending on appeal, the respondent submitted a supplemental briefing in which he contended that this Court's opinion in State v. Gonzalez, No. 2013-289-C.A. (R.I., filed March 29, 2016), which vacated his criminal convictions, required this Court to vacate the judgment in this case and remand the case to the Family Court for reconsideration. Having carefully considered the memoranda filed by the parties and the arguments of counsel, we are of the opinion that cause has not been shown, and we proceed to decide the appeal at this time. For the reasons set forth in this opinion, we vacate the decree of the Family Court and remand the case for further proceedings.

         Facts and Travel

         This case presents this Court with a unique circumstance in which the Family Court decree that terminated respondent's parental rights rested primarily on criminal convictions- namely, a conviction of first-degree murder-and their concomitant prison sentences that subsequently were vacated before the instant appeal was heard and decided. We briefly set forth the salient facts.

         The respondent has been incarcerated at the Adult Correctional Institutions (ACI) since January 2012, after he was arrested in connection with a murder investigation. He subsequently was indicted by a grand jury for first-degree murder, assault with intent to commit murder, and discharging a firearm during the commission of a violent crime. Although at one time Izabella resided with respondent and his mother, at the time of respondent's arrest, Izabella was living with her mother-respondent's ex-wife-and maternal half-sister.

         On March 27, 2012, DCYF received a report that Izabella's mother had been hospitalized for substance abuse and mental-health issues. At that time, Izabella and her half-sister were staying with their step-grandmother, Kristin Lomberto (Lomberto), who had been married to their mother's father before he passed away. DCYF obtained an ex parte order granting the agency temporary custody of Izabella and her half-sister, and the two children were formally placed with Lomberto. On March 30, 2012, DCYF filed a neglect petition against both respondent and Izabella's mother, which alleged that "the parents have failed to provide [Izabella] with a minimum degree of care, supervision[, ] or guardianship." This was not the family's first contact with DCYF. In particular, in October 2010, respondent was indicated for physical abuse when he admitted to tying Izabella's hands and feet in order to restrain the three-year-old child.

         When DCYF again became involved with the family in March 2012, the agency initially set a goal of reunification between Izabella and her mother. According to a DCYF caseworker assigned to Izabella's case, respondent had not been "considered a permanency option for Izabella" "[b]ecause of his incarceration and the length of his incarceration." The respondent sought visitation with Izabella while he was incarcerated, but his motion at first was denied. The Family Court subsequently amended the visitation order, and respondent was permitted periodic supervised visits with his daughter at the ACI. The record reveals that Izabella appeared pleased to see respondent and disappointed when each visit ended. While respondent was incarcerated, he wrote more than sixty-five letters to Izabella and participated in an ACI parenting program.

         On February 25, 2013, following a jury trial, respondent was convicted of the crimes set forth in the indictment, and he subsequently was sentenced to, inter alia, two consecutive terms of life imprisonment.[2] DCYF thereafter abandoned its initial goal of reunification between Izabella and her mother and prepared a new case plan, which provided that Lomberto would adopt both Izabella and her maternal half-sister. The respondent refused to sign the new case plan and ...


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