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In re Izabella G.

Supreme Court of Rhode Island

November 29, 2018

In re Izabella G.

          Washington County No. 11-4001-1 Family Court Sandra A. Lanni Associate Justice

          For Petitioner: Dianne L. Leyden Department of Children Youth and Families Jennifer J. Kelly Court Appointed Special Advocate

          For Respondent: Michael S. Pezzullo, Esq.

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


          Maureen McKenna Goldberg, Associate Justice

         This case came before the Supreme Court for oral argument on September 27, 2018, 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 (respondent or Gonzalez), appeals from a decree entered in the Family Court terminating his parental rights with respect to his daughter, Izabella G. (Izabella), who was born on August 2, 2007. On appeal, the respondent argues that the Family Court justice erred by: (1) permitting a witness to provide expert testimony; (2) admitting the child's letter into evidence; and (3) taking judicial notice of adjudicative facts. Lastly, respondent contends that the alleged errors were not harmless and require reversal. We disagree.

         Having carefully considered the memoranda filed by the parties and the arguments of counsel, we are satisfied that cause has not been shown, and we proceed to decide the appeal at this time. For the reasons set forth herein, we affirm the decree of the Family Court.

         Facts and Travel

         This case previously was before this Court in In re Izabella G., 140 A.3d 146 (R.I. 2016), on respondent's appeal from the original decree terminating his parental rights to Izabella in accordance with G.L. 1956 § 15-7-7(a)(2)(i) and (3).[1] We vacated that decree, and the case was remanded to the Family Court. In re Izabella G., 140 A.3d at 147. We recount only those facts we deem necessary to this appeal.

         The procedural history of this case presents this Court with a complex procedural circumstance in which a decree terminating respondent's parental rights became so intertwined with respondent's criminal convictions that it could not stand. More than six years ago, on March 27, 2012, the Department of Children, Youth, and Families received a report that Izabella's mother had been hospitalized for substance-abuse and mental-health issues. On March 30, 2012, DCYF filed a neglect petition against both respondent and Izabella's mother and an ex parte motion for temporary custody of Izabella based on allegations that the parents had failed to provide Izabella with "a minimum degree of care, supervision or guardianship." The DCYF was awarded temporary custody, and the child was placed with her maternal step-grandmother, Kristin Lynn Lomberto (Lomberto), with whom Izabella had been residing as a result of a private arrangement made between Izabella's mother and Lomberto.[2]

         The respondent was incarcerated at the Adult Correctional Institutions pending trial for unrelated criminal charges, and he has remained incarcerated throughout these proceedings. At a pretrial hearing on the neglect petition, in July 2012, respondent admitted sufficient facts to support a finding of neglect, and Izabella was committed to the care, custody, and control of DCYF. The respondent subsequently was convicted of first-degree murder and other felonies. The respondent was sentenced, inter alia, to two consecutive terms of life imprisonment.

         In November 2013, DCYF filed a petition in the Family Court seeking to terminate respondent's and mother's parental rights to Izabella. The petition alleged that, in accordance with § 15-7-7(a)(3), the child had been placed in DCYF custody for at least twelve months; the parents were offered services to correct the situation leading to the child's placement; and there was not a substantial probability that the child would be returned to the parents' care within a reasonable period of time. The petition also alleged that, pursuant to § 15-7-7(a)(2)(i), respondent was "unfit by reason of conduct or conditions seriously detrimental to the child, such as [the] institutionalization of [respondent], including imprisonment, of such duration as to render it improbable for [respondent] to care for [Izabella] for an extended period of time." Izabella's mother agreed to a direct consent adoption by Lomberto; she is not a part of this case.

         A termination hearing as to respondent commenced on December 8, 2014, and concluded on January 26, 2015 (the 2014 termination hearing). The Family Court issued a decree on April 2, 2015 (the 2015 decree), terminating respondent's parental rights with respect to Izabella, based on its findings that respondent was an unfit parent pursuant to § 15-7-7(a)(2)(i) (parent unfit by reason of imprisonment) and § 15-7-7(a)(3) (the child has been in DCYF custody for twelve months). The respondent timely appealed.

         On March 29, 2016, this Court vacated respondent's criminal convictions in State v. Gonzalez, 136 A.3d 1131 (R.I. 2016)[3]; and, on May 4, 2016, respondent's appeal from the 2015 decree came before us for argument. See In re Izabella G., 140 A.3d at 146. We concluded that "respondent's criminal convictions and concomitant prison sentences [were] so intertwined with the Family Court decision that it [was] impossible to separate the convictions from the remaining findings." Id. at 149. This Court vacated the decree and remanded the case to the Family Court for further proceedings and directed that "[o]n remand, the case need not be heard de novo." Id. at 150. Rather, the decision to allow further evidence was within the hearing justice's discretion. Id.

         On remand, the Family Court justice conducted a full hearing on the merits, with the parties free to present additional evidence. The proceedings concluded on November 22, 2016, and a decree that forms the basis of this appeal was entered on February 22, 2017.

         At the remand hearing, DCYF offered testimony by the following witnesses: respondent; DCYF caseworker Audrey Shaw (Shaw); Izabella's therapist, Christie Wilson (Wilson); and DCYF Child Protective Investigator Dawn Ellsworth (Ellsworth). The respondent was the first witness. Although respondent had previously testified about his relationship with Izabella as well as his involvement in raising the child, at the remand hearing he invoked his Fifth Amendment privilege against self-incrimination. However, respondent subsequently agreed to answer non-incriminating questions regarding his visits with Izabella, his employment at the ACI during his incarceration, and questions about a letter he wrote to Shaw in August 2013, in which he admitted that prior to his incarceration he had placed Izabella in a cold shower while she was having a tantrum. Nevertheless, despite the opportunity to present testimony concerning his parental fitness, respondent failed to offer any evidence of his actual ability to care for Izabella at that time or upon his release from the ACI.

         The next witness to testify was Shaw, the DCYF caseworker assigned to Izabella's case. Shaw testified about case activity notes concerning Izabella and recounted her observations from visits she had with Izabella and Lomberto, as well as visits between Izabella and respondent. On cross-examination, Shaw was questioned specifically about DCYF Form 188 (Form 188), which respondent alleged was never produced by DCYF, despite a subpoena request.[4]

         Wilson was then called to testify. She indicated that she was a licensed marriage and family therapist and had been practicing since 1990. As a result of the trauma that Izabella had experienced, Lomberto sought treatment for the child because of the significant emotional and behavioral problems she was exhibiting.[5] Wilson stated that she had been Izabella's therapist since 2012 and that Izabella was diagnosed with post-traumatic stress disorder, ADHD combined type, and oppositional defiant disorder.

         Wilson testified about her observations and treatment with respect to Izabella, including her opinions and recommendations concerning contact between Izabella and respondent. Based on Wilson's testimony, DCYF's counsel requested that the Family Court justice qualify Wilson as an expert witness.

         Over respondent's objection, Wilson described a letter-writing exercise she used with Izabella as a part of her therapy treatment. Wilson explained that she asked Izabella to write letters-which were not mailed or forwarded-in an effort to assist Izabella in expressing her feelings in a non-aggressive manner. The letter in question had been dictated by Izabella to Wilson and was admitted into evidence. In the letter, Izabella expressed anger towards respondent and her paternal grandmother. ...

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