NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1466
GUARDIANSHIP OF I.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff filed a petition for appointment of guardian
for an incapacitated person seeking guardianship of her
daughter, I.S. A judge in the Probate and Family Court allowed
the plaintiff's petition and issued a decree and order
appointing the plaintiff as I.S.'s guardian, pursuant to G. L.
c. 190B, § 5-306 (b) (1)-(8). The judge later also entered a
supplement to the decree incorporating recommendations of a
guardian ad litem (GAL) regarding contact between I.S. and her
father. The plaintiff appeals from the judge's supplemental
order. We affirm.
Background. In December 2023, the plaintiff filed her
petition seeking appointment as the guardian for an
incapacitated person, her daughter, I.S., who was about to turn
eighteen years old. The father, representing himself, filed a notice of appearance and objection. Counsel was appointed for
I.S. and on February 6, 2024, the plaintiff filed a verified
motion for appointment of temporary guardian for an
incapacitated person, pursuant to G. L. c. 190B, § 5-308.
At the February 27, 2024, hearing on the plaintiff's
motion, the father told the judge that he agreed to the
plaintiff's guardianship appointment but wanted the opportunity
to occasionally see I.S. if it was "medically appropriate."
I.S.'s attorney told the judge that when she asked I.S. about
her father, "I can't recall the exact word that she used. I
don't know if it was something to the effect that he was yucky
or something like that." However, the attorney also expressed
her concern that the father's lack of contact with I.S. might
not be in her best interest and raised her concern about an
"abuse of discretion issue" if the guardianship was allowed
"without a little bit of an investigation and [] some assistance
of guidance with parameters about how there should be some
interaction" between I.S. and her father. The judge asked the
parties if they objected to the appointment of a GAL to
investigate and make recommendations about whether the father
should have contact with I.S. The father and I.S.'s attorney
agreed to the GAL appointment. The plaintiff's attorney
responded that he thought it was "premature" given that the
father had not filed an affidavit explaining why he filed an
2 objection, but when the judge communicated his intention to
appoint the petitioner "temporarily today," the attorney raised
no further objection to the appointment of a GAL. Before
concluding the hearing, the judge told the father that he needed
to file an affidavit in order to continue to object in the case.
Later that day, the judge appointed the plaintiff as I.S.'s
temporary guardian with authority pursuant to Rogers v.
Commissioner of Dep't of Mental Health, 390 Mass. 489, 504-507
(1983). He also appointed a GAL to conduct a "focused
evaluation to determine if the father . . . should be allowed
visitation or contact."
On March 1, 2024, the father sent a letter to the Probate
and Family Court requesting visitation with and "communication
access" to I.S. The plaintiff filed a motion to strike the
father's objection for failure to comply with G. L. c. 190B § 1-
401(e). On August 5, 2024, the judge denied the motion in a
margin decision stating that the father's written statement
"meets (albeit minimally) the requirements for an affidavit of
objections." On the same day, the judge issued a decree and
order appointing the plaintiff as I.S.'s general guardian, nunc
pro tunc to June 11, 2024, and further ordered the parties to
appear on September 10, 2024, "for a further hearing on what, if
any GAL recommendations should be implemented."
3 In his report dated June 7, 2024, the GAL concluded that it
was in I.S.'s best interests to have some contact and visitation
with the father "after certain milestones are achieved."
At the hearing, continued by agreement to September 17,
2024, I.S.'s attorney told the judge that I.S. did not want to
see her father. The plaintiff's attorney told the judge that
the plaintiff acknowledged that "there may be some contact in
the future."
On October 22, 2024, the judge issued an order
incorporating the recommendations of the GAL in the decree as a
supplement. The order stated that "in that decree the court had
reserved its right to issue supplemental judgment without the
need for anyone to subsequently file a petition to expand/limit
the guardian's authority."
Discussion. 1. Contact and visitation order. We are not
persuaded that the judge lacked the authority to order contact
and visitation with the father on the guardianship petition. We
review the judge's ruling for abuse of discretion or other error
of law. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014). "The power to limit a guardianship is inherent in the
power to appoint and remove a guardian, and is made explicit in
the statutory language." Guardianship of B.V.G., 474 Mass. 315,
324 (2016). As the plaintiff acknowledges, the Probate and
Family Court, "on its own motion or on appropriate petition or
4 motion of the incapacitated person or other interested person,
may limit the powers of a guardian . . . and thereby create a
limited guardianship." G. L. c. 190B, § 5-306 (c). While the
father did not file a petition seeking a visitation order, he
made clear to the judge through his letter and at the court
hearings that he would like to have contact with I.S. We
conclude that the judge had the authority to limit the
guardianship even though he did not explicitly reference the
authorizing statute in his ruling.1
2. GAL recommendations. The plaintiff argues that the
judge erred by adopting the GAL's recommendations without
conducting an evidentiary hearing and affording the plaintiff
and I.S. the right to present evidence and cross-examine
witnesses and the GAL. We are unpersuaded. "All that is
required is that the guardian ad litem be available to testify
. . . and that the source of the material be sufficiently
identified so that the affected party has an opportunity to
1 The plaintiff contends that the judge erred by denying her motion to strike the father's letter because the father's request for visitation was not properly before the court and because the father did not object to or oppose the guardianship petition.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1466
GUARDIANSHIP OF I.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff filed a petition for appointment of guardian
for an incapacitated person seeking guardianship of her
daughter, I.S. A judge in the Probate and Family Court allowed
the plaintiff's petition and issued a decree and order
appointing the plaintiff as I.S.'s guardian, pursuant to G. L.
c. 190B, § 5-306 (b) (1)-(8). The judge later also entered a
supplement to the decree incorporating recommendations of a
guardian ad litem (GAL) regarding contact between I.S. and her
father. The plaintiff appeals from the judge's supplemental
order. We affirm.
Background. In December 2023, the plaintiff filed her
petition seeking appointment as the guardian for an
incapacitated person, her daughter, I.S., who was about to turn
eighteen years old. The father, representing himself, filed a notice of appearance and objection. Counsel was appointed for
I.S. and on February 6, 2024, the plaintiff filed a verified
motion for appointment of temporary guardian for an
incapacitated person, pursuant to G. L. c. 190B, § 5-308.
At the February 27, 2024, hearing on the plaintiff's
motion, the father told the judge that he agreed to the
plaintiff's guardianship appointment but wanted the opportunity
to occasionally see I.S. if it was "medically appropriate."
I.S.'s attorney told the judge that when she asked I.S. about
her father, "I can't recall the exact word that she used. I
don't know if it was something to the effect that he was yucky
or something like that." However, the attorney also expressed
her concern that the father's lack of contact with I.S. might
not be in her best interest and raised her concern about an
"abuse of discretion issue" if the guardianship was allowed
"without a little bit of an investigation and [] some assistance
of guidance with parameters about how there should be some
interaction" between I.S. and her father. The judge asked the
parties if they objected to the appointment of a GAL to
investigate and make recommendations about whether the father
should have contact with I.S. The father and I.S.'s attorney
agreed to the GAL appointment. The plaintiff's attorney
responded that he thought it was "premature" given that the
father had not filed an affidavit explaining why he filed an
2 objection, but when the judge communicated his intention to
appoint the petitioner "temporarily today," the attorney raised
no further objection to the appointment of a GAL. Before
concluding the hearing, the judge told the father that he needed
to file an affidavit in order to continue to object in the case.
Later that day, the judge appointed the plaintiff as I.S.'s
temporary guardian with authority pursuant to Rogers v.
Commissioner of Dep't of Mental Health, 390 Mass. 489, 504-507
(1983). He also appointed a GAL to conduct a "focused
evaluation to determine if the father . . . should be allowed
visitation or contact."
On March 1, 2024, the father sent a letter to the Probate
and Family Court requesting visitation with and "communication
access" to I.S. The plaintiff filed a motion to strike the
father's objection for failure to comply with G. L. c. 190B § 1-
401(e). On August 5, 2024, the judge denied the motion in a
margin decision stating that the father's written statement
"meets (albeit minimally) the requirements for an affidavit of
objections." On the same day, the judge issued a decree and
order appointing the plaintiff as I.S.'s general guardian, nunc
pro tunc to June 11, 2024, and further ordered the parties to
appear on September 10, 2024, "for a further hearing on what, if
any GAL recommendations should be implemented."
3 In his report dated June 7, 2024, the GAL concluded that it
was in I.S.'s best interests to have some contact and visitation
with the father "after certain milestones are achieved."
At the hearing, continued by agreement to September 17,
2024, I.S.'s attorney told the judge that I.S. did not want to
see her father. The plaintiff's attorney told the judge that
the plaintiff acknowledged that "there may be some contact in
the future."
On October 22, 2024, the judge issued an order
incorporating the recommendations of the GAL in the decree as a
supplement. The order stated that "in that decree the court had
reserved its right to issue supplemental judgment without the
need for anyone to subsequently file a petition to expand/limit
the guardian's authority."
Discussion. 1. Contact and visitation order. We are not
persuaded that the judge lacked the authority to order contact
and visitation with the father on the guardianship petition. We
review the judge's ruling for abuse of discretion or other error
of law. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014). "The power to limit a guardianship is inherent in the
power to appoint and remove a guardian, and is made explicit in
the statutory language." Guardianship of B.V.G., 474 Mass. 315,
324 (2016). As the plaintiff acknowledges, the Probate and
Family Court, "on its own motion or on appropriate petition or
4 motion of the incapacitated person or other interested person,
may limit the powers of a guardian . . . and thereby create a
limited guardianship." G. L. c. 190B, § 5-306 (c). While the
father did not file a petition seeking a visitation order, he
made clear to the judge through his letter and at the court
hearings that he would like to have contact with I.S. We
conclude that the judge had the authority to limit the
guardianship even though he did not explicitly reference the
authorizing statute in his ruling.1
2. GAL recommendations. The plaintiff argues that the
judge erred by adopting the GAL's recommendations without
conducting an evidentiary hearing and affording the plaintiff
and I.S. the right to present evidence and cross-examine
witnesses and the GAL. We are unpersuaded. "All that is
required is that the guardian ad litem be available to testify
. . . and that the source of the material be sufficiently
identified so that the affected party has an opportunity to
1 The plaintiff contends that the judge erred by denying her motion to strike the father's letter because the father's request for visitation was not properly before the court and because the father did not object to or oppose the guardianship petition. The plaintiff also argues that the judge abused his discretion by failing to strike the father's letter under G. L. c. 190B, § 1-401 (f) because it failed to satisfy the affidavit requirement under G. L. c. 190B, § 1-401 (e). In light of our conclusion that the judge had the authority to issue a limited guardianship sua sponte, we need not address these arguments because the father's standing to object was not material to the outcome.
5 rebut any adverse or erroneous material contained therein."
Pizzino v. Miller, 67 Mass. App. Ct. 865, 876 (2006), quoting
Adoption of Georgia, 433 Mass. 62, 69 (2000). The plaintiff
never sought an evidentiary hearing or asked for the opportunity
to rebut the report. Nothing in the record shows that the
plaintiff summonsed the GAL to the hearing nor did she request a
further hearing date so that she could cross-examine the GAL.
In fact, the plaintiff's attorney told the judge at the hearing
on September 17, 2024, "[o]ur position is at this point the GAL
recommendations not be included with the decree, and I don't
think there's anything further that needs to happen." In these
circumstances, there was no error in the judge's deciding the
question without holding an evidentiary hearing.
The plaintiff's argument that the judge committed an abuse
of discretion in adopting the GAL's findings is unavailing. A
judge has "considerable discretion in adopting [a GAL's]
findings and conclusions." J.S. vs. C.C. 454 Mass. 652, 659
(2009). The GAL recommended that the father be permitted to
have contact with I.S. only after certain milestones were
achieved. Although the plaintiff contends that the GAL failed
to consider relevant information about I.S.'s medical condition,
the plaintiff did not seek to cross-examine the GAL or seek an
evidentiary hearing to challenge the report. "It was for the
judge to decide whether to credit the guardian's report,"
6 Pizzino, 67 Mass. App. Ct. at 876, and to determine the weight
of the evidence presented. See Petition of the Dep't of Social
Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 670
(1986). The judge acted within his discretion in adopting the
GAL's recommendations.
3. Ineffective assistance of counsel. The plaintiff
contends that I.S. was denied due process because her court-
appointed attorney failed to represent her interests and
zealously advocate on her behalf. The plaintiff did not file a
new trial motion, and "where the record is inchoate, the
preferred mode to give backdrop for appellate review might have
been by a motion for new trial, which, if denied, could be
joined with a direct appeal." Guardianship of L.H., 84 Mass.
App. Ct. 711, 719 (2014). Given the limited record from the
proceedings, which "does not provide us the necessary background
to evaluate the attorney's tactical choices," we decline to
reach the ineffective assistance of counsel claim. Id. at 719-
720. See also Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5
(2002) ("[O]ur case law strongly disfavors raising ineffective
assistance claims on direct appeal"). Furthermore, the record
"does not reflect that a different result would have obtained,
and that there was prejudice in the findings and orders."
Guardianship of L.H., 84 Mass. App. Ct. at 720. Apart from what
I.S.'s attorney reported to the judge, the judge knew about the
7 father's desire to see I.S. and had before him the GAL report
and recommendations, which he had the considerable discretion to
adopt.
Order and supplement to decree dated October 22, 2024, affirmed.
By the Court (Hand, Hodgens & Tan, JJ.2),
Clerk
Entered: December 16, 2025.
2 The panelists are listed in order of seniority.