In Re Izabella G. , 196 A.3d 736 ( 2018 )

November 29, 2018
Supreme Court
No. 2017-168-A.
(11-4001-1)
In re Izabella G. :
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 (401) 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2017-168-A.
(11-4001-1)
In re Izabella G. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Goldberg, for the Court. 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
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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
1
General Laws 1956 § 15-7-7(a) provides, in relevant part:
“The court shall, upon a petition duly filed by a governmental child
placement agency or licensed 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, including the right to notice
of any subsequent adoption proceedings involving the child, if the
court finds as a fact by clear and convincing evidence that:
“* * *
“(2) The parent is unfit by reason of conduct or conditions
seriously detrimental to the child; such as, but not limited to, the
following:
“(i) Institutionalization of the parent, including
imprisonment, for a duration as to render it improbable for
the parent to care for the child for an extended period of
time;
“* * *
“(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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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
2
Izabella has remained with Lomberto throughout these proceedings. Izabella’s mother has
consented to Lomberto’s adoption of both Izabella and her half-sister, Nevaha.
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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.
3
After a second trial relative to the aforementioned criminal charges, respondent was convicted
on October 23, 2017. The respondent has appealed that conviction to this Court.
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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
4
Apparently, Form 188 sets forth the Disclosure of Permanency Planning Time Frames and
outlines the parents’ responsibilities and the time frames allowed by federal and state law to
achieve reunification. The record refers to this form as “Form 188.”
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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. During her testimony, Wilson discussed the contents
of the letter and the discussions she had with Izabella during her therapy sessions.
After allowing voir dire of Wilson regarding her qualification, the Family Court justice
qualified Wilson as an expert in the field of marriage and family therapy and, specifically, in the
area of providing therapy to traumatized children. The Family Court justice also found that
Izabella’s letter was part of the child’s therapy and, thus, she admitted the letter as an exhibit.
5
Izabella has a history of neglect, which includes both physical and emotional abuse. The record
demonstrates, without contradiction, that respondent physically abused Izabella in response to
her temper tantrums. For instance, respondent tied Izabella’s hands and feet; put her in a cold
shower; placed her in a room alone for six hours; and permitted her to be force fed. As a result
of the traumatic experiences Izabella endured, Wilson opined that Izabella had a fear of adults
and was affected by her parents not being there for her.
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Lastly, Ellsworth testified about her investigation of Izabella’s case, including the disclosures of
physical abuse which respondent committed in August 2010.6
On February 21, 2017, the Family Court justice issued a second decision, again
terminating respondent’s parental rights. A final decree that is the subject of this appeal was
entered February 22, 2017 (the 2017 decree).
Standard of Review
“On appeal, [t]his 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 Amiah P., 54 A.3d 446, 451 (R.I. 2012) (quoting In re Victoria L.,
950 A.2d 1168, 1174 (R.I. 2008)). “These findings are 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 Victoria L., 950 A.2d at 1174). Such
findings must be supported by clear and convincing evidence. See id.Analysis
Before this Court, respondent argues that the Family Court justice erred: (1) in allowing
Wilson to testify as an expert; (2) in admitting into evidence the child’s letter; and (3) in taking
judicial notice of Form 188. Lastly, respondent argues that the claimed errors were not harmless
and amounted to reversible error.
Qualification of Wilson to Testify as an Expert
The respondent insists that Wilson was not qualified to offer an expert opinion in this
case. Specifically, he argues that Wilson’s testimony lacked adequate foundation and scientific
6
On or about August 25, 2010, DCYF investigated an allegation of physical abuse of Izabella by
respondent while she was three years old and in his custody. The DCYF indicated respondent
for physical abuse, tying, and close confinement.
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trustworthiness because she did not have a degree in child psychology and had not previously
evaluated a child who had visited a parent in prison. However, we perceive no error in the trial
justice’s decision to qualify Wilson as an expert in the field of marriage and family therapy, and,
specifically, in the area of providing therapy to traumatized children.
This Court has consistently held that “[t]he question of whether a witness is qualified to
express an expert opinion is a matter that is committed to the sound discretion of the trial justice,
and the exercise of such discretion will not be disturbed on appeal absent a showing of abuse.”
Narragansett Electric Co. v. Carbone, 898 A.2d 87, 95 (R.I. 2006) (quoting Mangasarian v.
Gould, 537 A.2d 403, 405 (R.I. 1988)).
Rule 702 of the Rhode Island Rules of Evidence, which governs the admissibility of
expert testimony, provides that “[i]f scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of fact or opinion.” Accordingly, “Rule 702 does not require that a proffered expert
have a formal certification or specialization in a particular field.” State v. D’Alessio, 848 A.2d
1118, 1123 (R.I. 2004). Rather, when determining whether a witness is qualified to testify as an
expert, “[p]rime considerations * * * include evidence of the witness’s education, training,
employment, or prior experiences.” State v. Villani, 491 A.2d 976, 979 (R.I. 1985).
As a licensed marriage and family therapist, Wilson possessed the education and
experience in the relevant discipline to testify as an expert witness. The record before us amply
demonstrates that Wilson’s education and experience in various therapeutic programs and
settings, including working with children with behavioral and emotional problems and children
who had experienced trauma, qualified her to provide expert testimony in this case. Wilson
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estimated that she had worked with over 1,000 children—many of whom were in foster care—
and that, throughout her twenty-six-year career as a therapist, her work primarily focused on
providing therapy to children who had a history of trauma.
In light of Wilson’s “education, training, employment, [and] prior experiences[,]” we are
of the opinion that the Family Court justice properly exercised her discretion to qualify Wilson
as an expert witness. Villani, 491 A.2d at 979. The mere fact that Wilson did not have a degree
in child psychology was not disqualifying. Moreover, the fact that Wilson had not worked
specifically with children who had visited a parent in prison goes to the weight of her testimony,
not its admissibility. See D’Alessio, 848 A.2d at 1124 (holding that the fact that an expert was
not a specialist in neuropathology “might bear on the weight of [the] testimony, but not its
admissibility”).
The respondent also contends that the Family Court justice impermissibly permitted
Wilson to render an expert opinion relative to the issues of the best interests of the child, parental
unfitness, and visitation rights. However, this argument is unsupported by the record.
The Family Court justice unequivocally stated that she would not rely on Wilson’s
testimony as it related to respondent’s fitness. She made clear that she was only considering
Wilson’s opinions as they related to the child’s best interest; and, as an experienced trial justice,
she was fully capable of considering Wilson’s opinion for that limited purpose.7
7
The Family Court justice clarified:
“[Wilson’s] expertise in this case is as to [Izabella], * * * what the
results of her therapy are with regard to [Izabella], what her
observations are with regard to [Izabella]. And those—some of
those observations relate to mother; some of them relate to father.
***
“But in no way, I want to make clear, this [c]ourt is not going to
rely on any opinions that Miss Wilson expresses or expressed * * *
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See In re Corryn B., 914 A.2d 978, 984 (R.I. 2007) (recognizing that “trial justices presiding
over non-jury trials * * * possess the wisdom, training and experience necessary to sort through
such exhibits 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))). Clearly,
“Rhode Island law and practice concerning expert testimony ‘makes helpfulness to the trier of
fact the crucial issue.’” In re Alexis L., 972 A.2d 159, 169 (R.I. 2009) (quoting Rule 702,
Advisory Committee’s Note).
Lastly, we are satisfied that Wilson did not offer expert testimony on the issue of
visitation. Accordingly, we are satisfied that the Family Court justice did not abuse her
discretion in qualifying Wilson as an expert and in relying on her testimony.
Admission of Daughter’s Letter into Evidence
In regard to respondent’s argument that the therapeutic letter from Izabella that was
dictated to Wilson should have been excluded as hearsay, and that it did not qualify under the
hearsay exception for medical diagnosis and treatment,8 we perceive no error.
as to [respondent’s] fitness for the purposes of determining
whether his parental rights should be terminated. It is only as to
[Izabella’s] best interest * * *.”
8
Rule 803(4) of the Rules of Evidence provides that the following are not excluded by the
hearsay rule:
“Statements 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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It is well established that “[t]he admission of a statement under an exception to the
hearsay rule is within the sound discretion of the trial justice and shall not be overturned unless
clearly erroneous.” State v. Lynch, 854 A.2d 1022, 1038 (R.I. 2004). Moreover, this Court has
held that statements made to a therapist for treatment may be properly admitted in accordance
with Rule 803(4). See In re Jessica C., 690 A.2d 1357, 1363, 1364 (R.I. 1997) (holding that
child’s hearsay statements made during counseling were admissible pursuant to Rule 803(4)
because the statements were pertinent and helpful to therapist’s assessment of the child’s
treatment needs); see also In re Emilee K., 153 A.3d 487, 494, 495 (R.I. 2017) (holding that
child’s disclosures of sexual abuse to evaluator during sexual-abuse assessments were admissible
under Rule 803(4)).
Izabella’s letter was admitted in accordance with Rule 803(4), based on the trial justice’s
finding that the letter was made in a therapeutic setting as a part of the child’s therapy. As this
Court clearly articulated in In re Emilee K., “[w]e have never been hypercritical in our
interpretation of Rule 803(4)[.]” In re Emilee K., 153 A.3d at 495. Accordingly, we are satisfied
that the Family Court justice properly admitted the letter pursuant to Rule 803(4).
Moreover, even if there were some hearsay infirmity, the use of this evidence was
harmless in view of the overwhelming evidence in the record that supports the Family Court
justice’s finding that respondent was an unfit parent.
Judicial Notice of Form 188
We briefly pass on a separate evidentiary ruling with which respondent takes issue—that
the Family Court justice abused her discretion in taking judicial notice of Form 188, the
Disclosure of Permanency Planning form. Contrary to respondent’s assertion, the record
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indicates that the Family Court justice did not take judicial notice of Form 188, as that document
was introduced into evidence by respondent’s attorney at the 2014 termination hearing.
The respondent also argues that DCYF failed to produce a signed copy of Form 188
despite a subpoena request for the document. The respondent avers that Form 188 was
dispositive of the issue of whether reasonable efforts towards reunification were made by DCYF.
Given that Form 188 merely delineates a timeline for DCYF’s reunification process, whether a
signed copy was admitted into evidence was of no consequence to the Family Court justice’s
findings. The Family Court justice concluded that DCYF had made reasonable efforts to reunify
respondent and Izabella. The Family Court justice reviewed the case plans that DCYF prepared.
Additionally, DCYF workers testified that respondent was given the case plans and information
on programs available at the ACI to improve his relationship with Izabella. Thus, we conclude
that competent evidence supports the Family Court’s findings and conclusions. Accordingly,
respondent’s arguments pertaining to Form 188 are without merit.
Harmless Error
Lastly, respondent asserts that the errors he has raised cannot be characterized as
harmless. Having concluded that defendant failed to establish record error, we reject this
contention. “In order to effectively conduct a harmless error analysis, the particular evidence
must be ‘quantitatively assessed in the context of other evidence presented in order to determine
[the effect it had on the trial].’” State v. Terzian, 162 A.3d 1230, 1244 (R.I. 2017) (quoting State
v. Humphrey, 715 A.2d 1265, 1276 (R.I. 1998)). Accordingly, “[i]n cases in which there is
‘overwhelming additional evidence indicative of [a] defendant’s guilt,’ this Court has determined
that erroneously admitted evidence constituted harmless error.” Id. (quoting State v. Perez, 882
A.2d 574, 590 (R.I. 2005)).
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In light of the uncontradicted evidence of parental unfitness in this case, we are satisfied
that any errors complained of were harmless beyond a reasonable doubt. See State v. Brown, 626
A.2d 228, 234 (R.I. 1993) (holding that, in light of the overwhelming evidence, the trial justice’s
admission of evidence without a limiting instruction was harmless beyond a reasonable doubt).
Conclusion
For the reasons stated herein, we affirm the decree of the Family Court terminating the
respondent’s parental rights with respect to his daughter, Izabella. The papers may be remanded
to the Family Court.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case In re Izabella G.
No. 2017-168-A.
Case Number
(11-4001-1)
Date Opinion Filed November 29, 2018
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Washington County Family Court
Judicial Officer From Lower Court Associate Justice Sandra A. Lanni
For Petitioner:
Dianne L. Leyden
Department of Children Youth and Families
Attorney(s) on Appeal Jennifer J. Kelly
Court Appointed Special Advocate
For Respondent:
Michael S. Pezzullo, Esq.
SU-CMS-02A (revised June 2016)