An Essex Superior Court judge dismissed charges Thursday against a Lynn man who is the last person known to have been with his son before the child disappeared from the North Shore city five years ago.
No trace of Giovanni Gonzalez, then 5, has been found since he went for a weekend visit with his father, Ernesto Gonzalez, in August 2008.
The dismissal infuriated the missing boy’s mother, Daisy Colon, and led her to warn that other parents will now be able to escape full responsibility for kidnapping their own children by claiming to be mentally ill.
“He’s the only person who knows where my son is,’’ Colon said in a telephone interview Thursday. “But they can’t make him talk. Where is my son?”
She added: “Every single time we go to court, it’s all about his rights. But what about my son’s rights?’’
In a Salem courthouse Thursday, Superior Court Judge John T. Lu threw out charges of parental kidnapping and lying to investigators that were first filed against Gonzalez by Essex District Attorney Jonathan W. Blodgett’s office in 2008.
Lawyers for Gonzalez, 41, argued in court papers that state law calls for the dismissal of criminal charges when defendants are incompetent to stand trial and have served more than half of their potential prison sentences.
Gonzalez was declared mentally incompetent to stand trial in October.
In a three-page ruling, Lu said Gonzalez has already spent five years in custody, shuttling between jail and a state mental health hospital. The judge said that, as recently as two days ago, staff members at Bridgewater State Hospital where Gonzalez is being treated, reported he is “experiencing psychosis and delusions.’’
“The motion to dismiss must be allowed,’’ Lu wrote. “. . . This court has examined very recent mental health records. They all support a finding of not competent. . . . The records state that Mr. Gonzalez continues to endorse command auditory hallucinations to kill himself and others.’’
In a prior court hearing, Assistant Essex District Attorney Jean Curran had urged the judge to keep the case open, in case Gonzalez is found competent to stand trial next year. A spokeswoman for the district attorney’s office said Thursday that prosecutors are reviewing the judge’s dismissal and have 30 days to decide whether to appeal it.
Gonzalez’s lawyers have said he is unlikely to get out of jail soon. He has been civilly committed to Bridgewater State Hospital through May, and the hospital has asked that to be extended.
He is also facing additional criminal allegations from his time in jail, including an attack on a fellow inmate and assaulting a prison guard.
In a statement, Blodgett said that his office will continue its search for Giovanni Gonzalez.
“While the charges related to Giovanni’s disappearance have been dismissed, our efforts to locate him will continue,” Blodgett said. “We have and will follow up on any and all leads presented to us.”
According to Lynn police, a person tipped detectives on Monday that they had seen a child they believed to have been Giovanni Gonzalez riding a bike in Brockton. Detectives investigated, and concluded the child in Brockton is not the missing boy, a spokesman said.
Colon said she remains convinced that her son will some day be returned to her.
“I have not lost faith on that at all,’’ Colon said. “I know my son is somewhere. I know my son is going to show up one day with the help of the justice system or without their help.’’Maria Sacchetti can be reached at firstname.lastname@example.org. Follow her on Twitter @mariasacchetti. John R. Ellement can be reached at email@example.com. Follow him on Twitter @JREbosglobe.