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
23-P-1069
GUARDIANSHIP OF JOSETTE.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother of Josette appeals from a decree and order of
the Probate and Family Court granting guardianship of Josette to
the child's maternal grandmother. The mother argues that we
should vacate the decree because the record does not support the
judge's finding of unfitness. We affirm.
Background. Josette was born in 2014. She was seven and
eight years old at the time of trial; mother was twenty-nine
years old. Josette lived with the mother from birth until
September 2018. During this period, the mother and Josette
lived in several different places. For the first six months of
the child's life, they lived with friends of the mother in
Connecticut. They then moved to Worcester, where they lived
with the mother's cousin for approximately one year. The
following year, they moved in with another cousin for a year.
1 A pseudonym. During this period, the Department of Children and Families
(DCF) received multiple 51A reports alleging neglect of the
child by the mother. One report alleged that the mother had
neglected Josette by discontinuing formula when the child was
only six months old. DCF supported the allegations and
established an action plan for the mother, which included
participating in parenting classes and securing public benefits
and stable housing.2
After living in Worcester for approximately two years, the
mother and Josette moved in with the mother's then boyfriend,
who physically abused both the mother and Josette. The
boyfriend hit Josette with a belt. In response to this abuse,
the mother dropped Josette off at the maternal grandmother's
home, and then requested that the maternal grandmother bring
Josette to live with the child's aunt, where she lived for
approximately eleven months. During this time, the mother
continued to live with her then boyfriend, who continued to
abuse her physically and financially. In 2019, the mother moved
in with her brother for short a period of time, but was asked to
move out after having male visitors which her brother had
2 DCF received two additional 51A reports alleging neglect of the child, however, one report was ultimately not supported and the other report was screened out.
2 forbidden. In July 2019, after leaving her brother's house, the
mother moved in with the maternal grandmother.
After Josette and the mother had lived apart for eleven
months, Josette in August 2019 joined the mother at the maternal
grandmother's home. During this time, the maternal grandmother
took Josette to all of her medical appointments, enrolled her in
preschool, and cared for her when she was sick. In December
2019, the grandmother informed the mother that she would need to
obtain alternative housing because the grandmother planned to
travel to Florida for an extended period of time. When the
mother did not obtain housing by the time the grandmother was
leaving, the grandmother took Josette with her to Florida to
allow the mother to focus on obtaining housing. Although the
mother planned to bring Josette back to Massachusetts within a
month, that did not happen and Josette lived in Florida with the
grandmother until May 2020, when they returned to Massachusetts.
During this time, the mother communicated by phone with the
child, but had no in person contact with her.
On July 10, 2020, the grandmother filed a petition for
guardianship of Josette and requested that she be appointed
temporary guardian to prevent Josette from being removed from
her care. The court found that no emergency existed to require
the appointment of a temporary guardian and denied the
grandmother's request. The court also prepared an action plan
3 to provide services for the mother to help her to improve her
parenting skills. Josette continued to reside with the
grandmother during this time and the mother was permitted to
have designated parenting time with the child until the trial
took place on September 19, 2022.
Partly because of the physical abuse Josette suffered at
the hands of the mother's previous boyfriend, Josette has been
diagnosed with generalized anxiety disorder and post-traumatic
stress disorder. The judge found that the mother has dismissed
the significance of Josette's mental health symptoms and needs.
The mother at one point called the child's distressed reaction
"fake." Josette has also expressed to her therapist that she
feels fear and anxiety about the mother not always being
truthful with her, being left alone by the mother, being
physically harmed, and being forced to leave the home of her
grandmother. The judge also found that the mother "has actively
interfered with [the child's] progress" by telling the child not
to share certain information with her therapist and by
preventing the child from receiving psychiatric care.
At the time of trial, the mother experienced instability in
both her housing and income. While the mother did have her own
apartment, the trial court found that the mother's unstable
income "potentially puts this housing at risk." The judge found
that the mother "has also shown a general disinterest in
4 parenting [Josette]. She has missed parenting time
opportunities and ha[d] failed to involve herself at all in
[Josette's] education, therapeutic treatment, or medical care,
and she ha[d] missed important extracurricular events in
[Josette's] life." In addition, the judge found that Josette
"is a child with diagnosed mental health concerns and a need for
stability and predictability. She needs caregivers who can
appropriately respond to her [post-traumatic stress disorder]
triggers. Despite being given various opportunities to do so,
[the mother] has not demonstrated that she is able to meet
[Josette's] needs."
Based on the mother's demonstrated inability to meet
Josette's needs, the judge found, by clear and convincing
evidence, that the mother was presently unfit and that it would
be in the child's best interest to continue living with the
maternal grandmother. The mother appealed.
Discussion. "[P]arents have a fundamental liberty interest
in the care, custody, and management of their children." Matter
of Hilary, 450 Mass. 491, 496 (2008). However, a judge may
appoint a guardian for a minor if, among other reasons, the
judge "finds the parent[s] . . . to be unavailable or unfit to
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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
23-P-1069
GUARDIANSHIP OF JOSETTE.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother of Josette appeals from a decree and order of
the Probate and Family Court granting guardianship of Josette to
the child's maternal grandmother. The mother argues that we
should vacate the decree because the record does not support the
judge's finding of unfitness. We affirm.
Background. Josette was born in 2014. She was seven and
eight years old at the time of trial; mother was twenty-nine
years old. Josette lived with the mother from birth until
September 2018. During this period, the mother and Josette
lived in several different places. For the first six months of
the child's life, they lived with friends of the mother in
Connecticut. They then moved to Worcester, where they lived
with the mother's cousin for approximately one year. The
following year, they moved in with another cousin for a year.
1 A pseudonym. During this period, the Department of Children and Families
(DCF) received multiple 51A reports alleging neglect of the
child by the mother. One report alleged that the mother had
neglected Josette by discontinuing formula when the child was
only six months old. DCF supported the allegations and
established an action plan for the mother, which included
participating in parenting classes and securing public benefits
and stable housing.2
After living in Worcester for approximately two years, the
mother and Josette moved in with the mother's then boyfriend,
who physically abused both the mother and Josette. The
boyfriend hit Josette with a belt. In response to this abuse,
the mother dropped Josette off at the maternal grandmother's
home, and then requested that the maternal grandmother bring
Josette to live with the child's aunt, where she lived for
approximately eleven months. During this time, the mother
continued to live with her then boyfriend, who continued to
abuse her physically and financially. In 2019, the mother moved
in with her brother for short a period of time, but was asked to
move out after having male visitors which her brother had
2 DCF received two additional 51A reports alleging neglect of the child, however, one report was ultimately not supported and the other report was screened out.
2 forbidden. In July 2019, after leaving her brother's house, the
mother moved in with the maternal grandmother.
After Josette and the mother had lived apart for eleven
months, Josette in August 2019 joined the mother at the maternal
grandmother's home. During this time, the maternal grandmother
took Josette to all of her medical appointments, enrolled her in
preschool, and cared for her when she was sick. In December
2019, the grandmother informed the mother that she would need to
obtain alternative housing because the grandmother planned to
travel to Florida for an extended period of time. When the
mother did not obtain housing by the time the grandmother was
leaving, the grandmother took Josette with her to Florida to
allow the mother to focus on obtaining housing. Although the
mother planned to bring Josette back to Massachusetts within a
month, that did not happen and Josette lived in Florida with the
grandmother until May 2020, when they returned to Massachusetts.
During this time, the mother communicated by phone with the
child, but had no in person contact with her.
On July 10, 2020, the grandmother filed a petition for
guardianship of Josette and requested that she be appointed
temporary guardian to prevent Josette from being removed from
her care. The court found that no emergency existed to require
the appointment of a temporary guardian and denied the
grandmother's request. The court also prepared an action plan
3 to provide services for the mother to help her to improve her
parenting skills. Josette continued to reside with the
grandmother during this time and the mother was permitted to
have designated parenting time with the child until the trial
took place on September 19, 2022.
Partly because of the physical abuse Josette suffered at
the hands of the mother's previous boyfriend, Josette has been
diagnosed with generalized anxiety disorder and post-traumatic
stress disorder. The judge found that the mother has dismissed
the significance of Josette's mental health symptoms and needs.
The mother at one point called the child's distressed reaction
"fake." Josette has also expressed to her therapist that she
feels fear and anxiety about the mother not always being
truthful with her, being left alone by the mother, being
physically harmed, and being forced to leave the home of her
grandmother. The judge also found that the mother "has actively
interfered with [the child's] progress" by telling the child not
to share certain information with her therapist and by
preventing the child from receiving psychiatric care.
At the time of trial, the mother experienced instability in
both her housing and income. While the mother did have her own
apartment, the trial court found that the mother's unstable
income "potentially puts this housing at risk." The judge found
that the mother "has also shown a general disinterest in
4 parenting [Josette]. She has missed parenting time
opportunities and ha[d] failed to involve herself at all in
[Josette's] education, therapeutic treatment, or medical care,
and she ha[d] missed important extracurricular events in
[Josette's] life." In addition, the judge found that Josette
"is a child with diagnosed mental health concerns and a need for
stability and predictability. She needs caregivers who can
appropriately respond to her [post-traumatic stress disorder]
triggers. Despite being given various opportunities to do so,
[the mother] has not demonstrated that she is able to meet
[Josette's] needs."
Based on the mother's demonstrated inability to meet
Josette's needs, the judge found, by clear and convincing
evidence, that the mother was presently unfit and that it would
be in the child's best interest to continue living with the
maternal grandmother. The mother appealed.
Discussion. "[P]arents have a fundamental liberty interest
in the care, custody, and management of their children." Matter
of Hilary, 450 Mass. 491, 496 (2008). However, a judge may
appoint a guardian for a minor if, among other reasons, the
judge "finds the parent[s] . . . to be unavailable or unfit to
have custody." G. L. c. 190B, § 5-204 (a). See Guardianship of
Estelle, 70 Mass. App. Ct. 575, 578 (2007) (custody of child
belongs to parent unless parent is unfit). If a judge "finds
5 that a qualified person seeks appointment, . . . the conditions
of [G. L. c. 190B, § 5-204 (a)] have been met, and the welfare
and best interest of the minor will be served by the requested
appointment, [the judge] shall make the appointment." G. L.
c. 190B, § 5-206 (c). "Although the appointment of a guardian
displaces the parent's rights and responsibilities for the
duration of the guardianship (except as provided in the decree
or otherwise by law), it does not terminate them." Guardianship
of Kelvin, 94 Mass. App. Ct. 448, 453 (2018). Accordingly, "a
parent retains the right to later petition for modification or
termination of a guardianship involving their child." Id.
The mother argues here that the evidence was insufficient
to support the judge's finding of unfitness and that the judge
therefore erred in granting the decree and order of
guardianship. While the mother recognizes that she has had
shortcomings in her parenting of the child, she contends that
the judge failed to account for her efforts to improve her
parenting abilities. Contrary to the mother's assertions, the
judge considered the mother's efforts, but determined that, at
the time of trial, the mother had not progressed to the degree
that she was capable of meeting Josette's current needs. The
judge properly considered Josette's significant mental and
physical health needs, the mother's inability to provide the
level of care the child requires, and the mother's role in
6 aggravating Josette's anxiety and post-traumatic stress. See
Adoption of Rhona, 63 Mass. App. Ct. 117, 129 (2005). The
mother has done so by discounting Josette's stress reactions,
continuing to maintain volatile relationships with male
partners, and interfering with Josette's therapy by telling her
to conceal information from her therapist. The record supports
the judge's finding that, in light of Josette's mental and
physical health status, the mother was not currently capable of
meeting the child's needs. Id.
The judge also properly considered the strong bond that has
developed between Josette and the maternal grandmother and
Josette's therapist's testimony that changes to Josette's home
life would have "some pretty devastating effects." Guardianship
of Estelle, 70 Mass. App. Ct. 575, 581-582 (2007). While the
bond between the child and the caretaker is not dispositive in
guardianship cases, we do consider it as "a factor that has
weight in the ultimate balance." Adoption of Nicole, 40 Mass.
App. Ct. 259, 263 (1996). Because Josette has lived with the
maternal grandmother since 2019 and has expressed anxiety and
worry about possibly being told that she has to move away, the
record amply supports the judge's determination that it would be
7 in Josette's best interest to remain in the maternal
grandmother's custody.
Decree affirmed.
By the Court (Rubin, Englander & D'Angelo, JJ.3),
Assistant Clerk
Entered: April 4, 2024.
3 The panelists are listed in order of seniority.