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
22-P-588
GUARDIANSHIP OF KAYLA. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The guardian, the child's maternal grandmother, appeals
from a decree allowing the father's petition to terminate the
guardianship of the child and resume parental duties. See G. L.
c. 190B, § 5-212 (a). Following a three-day trial in the
Probate and Family Court, the judge found the father fit to
parent the child, terminated the guardianship, and awarded
custody to the father. 2 On appeal, the guardian contends that
the judge erred in finding the father fit to parent, as well as
in denying the guardian's requests to appoint a guardian ad
litem and to order visitation for the guardian. We see no abuse
of discretion or error of law, and affirm.
1. Fitness. "[P]arents have a fundamental liberty
interest in the care, custody, and management of their
1 A pseudonym. 2 The mother participated at trial but is not a part of this appeal. children." Matter of Hilary, 450 Mass. 491, 496 (2008).
Although a guardianship displaces a parent's rights, a parent
retains the right to "petition for removal of a guardian on the
ground that removal would be in the best interest of the ward."
G. L. c. 190B, § 5-212 (a). See Guardianship of Kelvin, 94
Mass. App. Ct. 448, 453 (2018). "The burden of proof rests with
the guardian to establish the [parent's] unfitness by clear and
convincing evidence." Guardianship of Cheyenne, 77 Mass. App.
Ct. 826, 829 (2010). 3 Unfitness is evidenced by "grievous
shortcomings or handicaps that would put the child's welfare
. . . much at hazard." Petition of the New England Home for
Little Wanderers to Dispense with Consent to Adoption, 367 Mass.
631, 646 (1975). In addition to proving unfitness, the guardian
must also show that continuation of the guardianship is in the
best interest of the child. Guardianship of Kelvin, supra at
456. We review the trial judge's decision for abuse of
discretion or clear error of law. See Guardianship of Cheyenne,
supra at 829-830.
3 The father originally consented to the guardianship and thus had never been found unfit. This relieved the father of the burden to present evidence of changed circumstances since the appointment of the guardian. See Guardianship of Kelvin, 94 Mass. App. Ct. at 456. Nevertheless, the judge credited the father's subsequent efforts to attain sobriety as a change in circumstances in favor of the father.
2 Here, there was no error in the judge's ruling that the
guardian failed to meet her burden of proving the father unfit.
The guardian argues that the father struggles with ongoing
substance abuse issues, fails to meet the child's medical needs,
and frightens the child, but the judge addressed each of these
issues with detailed findings that were supported by the record.
See Custody of Eleanor, 414 Mass. 795, 799 (1993). The judge
found that after the father consented to the guardianship so
that he could work on his sobriety, he promptly obtained mental
health and addiction treatment, regularly provided negative drug
tests, and had been sober for over one year at the time of the
trial. The judge also considered that the father regularly
visited the child in both supervised and unsupervised settings,
and cared appropriately for the child by cooking, doing laundry,
and helping with the child's schoolwork. The judge found that
although the father had refused to attend a Zoom meeting with
the child's doctor and had been asked to leave the child's
pediatrician's office, these incidents were more indicative of
the father's relationship with the guardian than the father's
ability to care for the child. See Adoption of Querida, 94
Mass. App. Ct. 771, 778 (2019) (judge must confront "troublesome
facts").
In considering the child's best interests, the judge also
compared the child's behaviors while with each party. The judge
3 found that while the child was with the guardian, the child
presented behavioral issues like biting and scratching and was
afraid to go to her bedroom at night. The father testified that
the child did not exhibit any of these behaviors while visiting
him. In light of the detailed findings provided by the judge,
we see no abuse of discretion in the judge's determination that
the father was fit and that the best interests of the child
would be served by terminating the guardianship.
2. Guardian ad litem. Prior to trial, the guardian
unsuccessfully moved for appointment of a guardian ad litem to
conduct an investigation of facts bearing on the father's
petition and to make a report, with recommendations, to the
court. The judge did not err in denying the motion, or in
instead appointing a probation officer to conduct an
investigation.
A judge has discretion in deciding whether to appoint a
guardian ad litem or other appropriate person to investigate
facts. See G. L. c. 215, § 56A; Ruml v. Ruml, 50 Mass. App. Ct.
500, 513 (2000). Here, the judge ordered the probation
department to investigate and report on the issues surrounding
the custody of the child. The nature of the scope of the
investigation, as well as the person chosen to conduct it, fell
squarely within the permissible discretion of the trial judge.
See Hayden v. Hayden, 15 Mass. App. Ct. 915, 916 (1993). In
4 addition, a wide variety of pertinent witnesses, including the
father, the guardian, the probation officer, and multiple other
witnesses familiar with the child's circumstances, were
available to testify at the trial, and statements by the child
were available in the record. 4 Presented with all this
information on which to base her decision, the judge did not err
in appointing a probation officer, or in declining the
guardian's request to appoint a guardian ad litem, to conduct
the investigation.
3. Visitation. Nor did the judge abuse her discretion in
declining to order visitation time for the guardian with the
child. Although the judge recognized that the child and the
guardian shared a close relationship, the judge credited the
testimony of the mother that she would allow the guardian access
to the child during the mother's parenting time. 5 Contrary to
the guardian's assertion, the mother plainly testified that she
would allow the guardian access to the child on alternate
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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
22-P-588
GUARDIANSHIP OF KAYLA. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The guardian, the child's maternal grandmother, appeals
from a decree allowing the father's petition to terminate the
guardianship of the child and resume parental duties. See G. L.
c. 190B, § 5-212 (a). Following a three-day trial in the
Probate and Family Court, the judge found the father fit to
parent the child, terminated the guardianship, and awarded
custody to the father. 2 On appeal, the guardian contends that
the judge erred in finding the father fit to parent, as well as
in denying the guardian's requests to appoint a guardian ad
litem and to order visitation for the guardian. We see no abuse
of discretion or error of law, and affirm.
1. Fitness. "[P]arents have a fundamental liberty
interest in the care, custody, and management of their
1 A pseudonym. 2 The mother participated at trial but is not a part of this appeal. children." Matter of Hilary, 450 Mass. 491, 496 (2008).
Although a guardianship displaces a parent's rights, a parent
retains the right to "petition for removal of a guardian on the
ground that removal would be in the best interest of the ward."
G. L. c. 190B, § 5-212 (a). See Guardianship of Kelvin, 94
Mass. App. Ct. 448, 453 (2018). "The burden of proof rests with
the guardian to establish the [parent's] unfitness by clear and
convincing evidence." Guardianship of Cheyenne, 77 Mass. App.
Ct. 826, 829 (2010). 3 Unfitness is evidenced by "grievous
shortcomings or handicaps that would put the child's welfare
. . . much at hazard." Petition of the New England Home for
Little Wanderers to Dispense with Consent to Adoption, 367 Mass.
631, 646 (1975). In addition to proving unfitness, the guardian
must also show that continuation of the guardianship is in the
best interest of the child. Guardianship of Kelvin, supra at
456. We review the trial judge's decision for abuse of
discretion or clear error of law. See Guardianship of Cheyenne,
supra at 829-830.
3 The father originally consented to the guardianship and thus had never been found unfit. This relieved the father of the burden to present evidence of changed circumstances since the appointment of the guardian. See Guardianship of Kelvin, 94 Mass. App. Ct. at 456. Nevertheless, the judge credited the father's subsequent efforts to attain sobriety as a change in circumstances in favor of the father.
2 Here, there was no error in the judge's ruling that the
guardian failed to meet her burden of proving the father unfit.
The guardian argues that the father struggles with ongoing
substance abuse issues, fails to meet the child's medical needs,
and frightens the child, but the judge addressed each of these
issues with detailed findings that were supported by the record.
See Custody of Eleanor, 414 Mass. 795, 799 (1993). The judge
found that after the father consented to the guardianship so
that he could work on his sobriety, he promptly obtained mental
health and addiction treatment, regularly provided negative drug
tests, and had been sober for over one year at the time of the
trial. The judge also considered that the father regularly
visited the child in both supervised and unsupervised settings,
and cared appropriately for the child by cooking, doing laundry,
and helping with the child's schoolwork. The judge found that
although the father had refused to attend a Zoom meeting with
the child's doctor and had been asked to leave the child's
pediatrician's office, these incidents were more indicative of
the father's relationship with the guardian than the father's
ability to care for the child. See Adoption of Querida, 94
Mass. App. Ct. 771, 778 (2019) (judge must confront "troublesome
facts").
In considering the child's best interests, the judge also
compared the child's behaviors while with each party. The judge
3 found that while the child was with the guardian, the child
presented behavioral issues like biting and scratching and was
afraid to go to her bedroom at night. The father testified that
the child did not exhibit any of these behaviors while visiting
him. In light of the detailed findings provided by the judge,
we see no abuse of discretion in the judge's determination that
the father was fit and that the best interests of the child
would be served by terminating the guardianship.
2. Guardian ad litem. Prior to trial, the guardian
unsuccessfully moved for appointment of a guardian ad litem to
conduct an investigation of facts bearing on the father's
petition and to make a report, with recommendations, to the
court. The judge did not err in denying the motion, or in
instead appointing a probation officer to conduct an
investigation.
A judge has discretion in deciding whether to appoint a
guardian ad litem or other appropriate person to investigate
facts. See G. L. c. 215, § 56A; Ruml v. Ruml, 50 Mass. App. Ct.
500, 513 (2000). Here, the judge ordered the probation
department to investigate and report on the issues surrounding
the custody of the child. The nature of the scope of the
investigation, as well as the person chosen to conduct it, fell
squarely within the permissible discretion of the trial judge.
See Hayden v. Hayden, 15 Mass. App. Ct. 915, 916 (1993). In
4 addition, a wide variety of pertinent witnesses, including the
father, the guardian, the probation officer, and multiple other
witnesses familiar with the child's circumstances, were
available to testify at the trial, and statements by the child
were available in the record. 4 Presented with all this
information on which to base her decision, the judge did not err
in appointing a probation officer, or in declining the
guardian's request to appoint a guardian ad litem, to conduct
the investigation.
3. Visitation. Nor did the judge abuse her discretion in
declining to order visitation time for the guardian with the
child. Although the judge recognized that the child and the
guardian shared a close relationship, the judge credited the
testimony of the mother that she would allow the guardian access
to the child during the mother's parenting time. 5 Contrary to
the guardian's assertion, the mother plainly testified that she
would allow the guardian access to the child on alternate
4 To the extent that the guardian mentions her unsuccessful attempts at trial to introduce statements by the child's therapist and a video recording containing statements by the child, her brief does not explain how this was reversible error. See Donovan v. Gardner, 50 Mass. App. Ct. 595, 602 (2000) (conclusory statements in brief "do not rise to the level of appellate argument"). 5 The judge similarly declined to order visitation for the
paternal grandparents, where the father testified that they would have access to the child during his parenting time since he would be living with them.
5 weekends if the guardian did not have her own visitation time.
See Adoption of Quentin, 424 Mass. 882, 886 (1997) ("the judge's
assessment of the weight of the evidence and the credibility of
the witnesses is entitled to deference" [citation omitted]).
See also Troxel v. Granville, 530 U.S. 57, 66 (2000) (parents
have a fundamental right to "make decisions concerning the care,
custody, and control of their children"). Although the guardian
had been the child's primary caregiver for several years, the
child also had an ongoing relationship with the father, with the
father regularly visiting and appropriately caring for the
child. Compare Youmans v. Ramos, 429 Mass. 774, 784 (1999)
(guardian was entitled to visitation where guardian was "only
family [the child] knows"). The judge therefore did not err in
ordering visitation only to the father and the mother. See id.
at 781 (controlling consideration in custody proceedings is the
welfare of the child).
Decree affirmed.
By the Court (Green, C.J., Ditkoff & Hodgens, JJ. 6),
Clerk
Entered: August 29, 2023.
6 The panelists are listed in order of seniority.