Guardianship of Raya

• Court: Massachusetts Appeals Court
• Decided: November 14, 2023
• Docket: AC 22-P-1100
• Status: Published

Opinion

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22-P-1100 Appeals Court

GUARDIANSHIP OF RAYA.1

No. 22-P-1100.

Hampshire. July 11, 2023. - November 14, 2023.

Present: Green, C.J., Ditkoff, & Hodgens, JJ.

Guardian. Minor, Guardian ad litem. Parent and Child, Custody of minor. Probate Court, Guardian. Practice, Civil, Appointment of guardian.

Petition for appointment of a guardian for a minor filed in the Hampshire Division of the Probate and Family Court Department on April 3, 2020.

The case was heard by Linda S. Fidnick, J.

Jeanne M. Kaiser for the mother. Jennifer Wang for the child.

HODGENS, J. Weeks after entering an order appointing the

child's maternal grandmother and uncle as her temporary

guardians, a judge of the Probate and Family Court found that

there was "insufficient evidence" that the mother was "presently

1 A pseudonym. 2

unfit." The judge ordered prompt reunification with the mother

but offered a "period of transition" if the child "refuse[d] to

return to her mother's home." Months later, with the child

balking at reunification and the transition not going well, the

judge reinstated the temporary guardianship. Almost two years

after the original temporary guardianship, the child turned

fourteen years old and nominated her maternal grandmother and

uncle as guardians. Following a trial, the judge appointed the

grandmother and uncle as coguardians after concluding that the

mother was unfit due to the child's unwillingness to be parented

by the mother and the mother's inability to remedy the near

total breakdown in the parent-child relationship. We reverse

the guardianship decree.

Background. This matter came before the Probate and Family

Court through a petition and verified motion filed by the

child's grandmother and uncle on April 3, 2020, seeking

appointment as guardians and alleging emergency circumstances.

On the same day, a judge allowed the petition and verified

motion, appointed the grandmother and uncle as temporary

guardians, and noted the exigent nature of the guardianship

order: "The Petitioners are concerned about the Mother's

ability to protect the child from exposure to Covid-19, a

significant history of domestic violence, and an inability to

maintain a hygienic living environment for the child as well as 3

the child's expressed fear and refusal to live with the Mother."

The judge scheduled a hearing on June 1, 2020, and set June 3 as

the expiration date for the temporary guardianship. In the

interim, the judge appointed counsel for the mother and the

child.

Following the hearing on June 1, the judge declined to

extend the temporary guardianship: "After hearing, the Court

finds that there is insufficient evidence that [the mother] is

presently unfit to parent [the child]." The judge ordered the

mother to submit to a "psychological and substance use disorder

evaluation." The judge authorized a "period of transition" if

the child "refuses to return to her mother's home upon the

expiration of the temporary guardianship on June 3." The period

of transition would allow for "several weeks in which [the

child] spends part of each day with her mother, returning to

sleep at her grandmother's home at night." The judge also

ordered all parties to participate in family therapy during the

transition period.

Four months later, after a hearing in October 2020, the

judge allowed the grandmother and uncle's petition to reinstate

the temporary guardianship. According to the judge, the

transition period had "not gone well," especially after the

child objected to the mother's efforts to integrate the mother's

current boyfriend and the boyfriend's children "into the 4

picture." The judge expressed particular concern about the

mother's decision to go on vacation in Delaware with the

boyfriend and his children, while the child refused to accompany

her. As the judge put it, "This caused a rupture in their

reunification of three weeks, first because of the vacation and

then due to the [fourteen] day quarantine period necessitated by

a trip to a state that is not on Massachusetts' acceptable

location list." The judge concluded that she had "no choice"

but to allow the petition because the child "is living full-time

with her maternal grandmother, and reunification is stalled."

Again attempting to advance reunification, the judge ordered

parenting time on a "progressive schedule" that would culminate

with the child living with her mother by December 1.

Over the next eighteen months, the temporary guardianship

was reviewed and extended six times. In December 2020, the

judge concluded that "re-unification is not progressing as had

been hoped" and established a reduced schedule of parenting time

to enable the child to split her time between living with her

mother and her grandmother. By June 2021, the judge noted, "The

goal is [to resume] the parenting schedule set forth in the

December 14, 2020 Temporary Order, but given [the child's]

reticence, this schedule shall not resume immediately." By

October 2021, the child refused to spend any time with her

mother. The child also refused to participate in any meaningful 5

way in reunification family therapy. The mother continued to

invite the child to various activities, sent text messages to

her daily, and expressed a willingness to do any activity chosen

by the child. The mother also submitted to a psychological

evaluation.

On April 27, 2022, the first day of a two-day trial began

regarding the guardianship petition. Days later, on May 4,

2022, the child, having reached the age of fourteen, filed a

court form entitled "Notarized and Verified Consent or

Nomination by Minor." By filing the form and reaching the

requisite age of fourteen, the child nominated her maternal

grandmother and uncle as guardians pursuant to G. L. c. 190B,

§ 5-207 (a). The trial concluded on May 17, 2022.

The judge issued findings and rulings on July 15, 2022, and

noted the absence of any abuse or neglect as well as the absence

of any substance use disorder or mental health concern that

would prevent the mother from parenting. The judge concluded

the mother was unfit because of her inability to remedy the near

total breakdown in the parent-child relationship.

Discussion. A court may appoint a guardian for a minor if,

among other reasons, "the court finds the parents, jointly, or

the surviving parent, to be unavailable or unfit to have

custody." G. L. c. 190B, § 5-204 (a) (v). "Parental unfitness

must be determined by taking into consideration a parent's 6

character, temperament, conduct, and capacity to provide for the

child in the same context with the child's particular needs,

affections, and age." Adoption of Mary, 414 Mass. 705, 711

(1993). Unfitness contemplates "grievous shortcomings" that

would put the child's welfare "much at hazard." Petition of New

England Home for Little Wanderers to Dispense with Consent to

Adoption, 367 Mass. 631, 646 (1975). The party seeking the

guardianship, here the child's grandmother and uncle, had the

burden of proving by clear and convincing evidence that the

mother was unfit. See Guardianship of Kelvin, 94 Mass. App. Ct.

448, 456 (2018). After reviewing the record, we conclude that

the child's grandmother and uncle did not meet their burden and

reverse the guardianship decree.

The record lacks any suggestion of unfitness based upon the

character, temperament, or conduct of the mother. Cf. Adoption

of Mary, 414 Mass. at 711. The mother is a single parent, with

some college-level education, and works about fifty hours per

week. The mother maintains a "spacious" studio apartment with

"room dividers" and plenty of room for her daughter. Throughout

the court proceedings, the mother participated in parenting

time, family counseling, and a psychological evaluation.

Indeed, the judge noted the absence of any instances of abuse or

neglect by the mother, and she also noted the absence of any

substance use disorder or mental health concern that would 7

prevent the mother from parenting. The judge focused instead on

the mother's inability to remedy the breakdown in the parent-

child relationship and her limited insight into the child's

feelings. We conclude that the mother's lack of success at

reconciliation does not demonstrate the requisite "high degree

of probability" demanded by clear and convincing evidence that

the mother is an unfit parent. Cf. Adoption of Iris, 43 Mass.

App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998), quoting

Tosti v. Ayik, 394 Mass. 482, 493 n.9 (1985), cert. denied, 484

U.S. 964 (1987).

"Unfitness is a concept which cannot be applied in the

abstract but requires careful consideration, on the facts of a

given case, of the capacity of parents to care for their

children." Petitions of the Dep't of Social Servs. to Dispense

with Consent to Adoption, 18 Mass. App. Ct. 120, 125 (1984).

The child contends that parental unfitness may be found "[w]hen

children refuse to return home and when parents cannot parent

due to an impasse in the parent-child relationship." We

disagree. Unfitness may be established by considering the

specialized needs of a child "when combined with the

deficiencies of a parent's character, temperament, capacity, or

conduct." Petitions of the Dep't of Social Servs. to Dispense

with Consent to Adoption, supra. Although the child expressed a

preference for her grandmother and uncle, the present case 8

lacked the requisite parental deficiencies that would warrant a

finding of unfitness. For example, this is not a case where the

mother was intransigent and made no effort at reestablishing a

relationship. See Custody of a Minor, 383 Mass. 595, 601 (1981)

(unfitness where child refused to return home and mother

"consistently and persistently refused to take steps" to address

psychological rift with child). Nor is this a case where the

mother suffered from any mental illness or substance use issue

that would impair her ability to parent. See Adoption of

Arthur, 34 Mass. App. Ct. 914, 914 n.2 (1993) (unfitness where

child expressed desire to be adopted and mother "beset with a

substantial mental illness and emotional instability exacerbated

by alcoholism"). This is also not a case where the mother put

the child at risk of harm. See Adoption of Daisy, 77 Mass. App.

Ct. 768, 783 (2010), S.C., 460 Mass. 72 (2011) (unfitness where

child unwilling to have contact with mother who disbelieved

child's claim that her father sexually abused her, and that

disbelief "made it unsafe" to return to mother's care due to the

risk of further sexual abuse and psychological harm).

We reject the child's contention that her "refusal to be

parented" by the mother was a "symptom" and "obvious

manifestation" of the mother's unfitness. Our jurisprudence

squarely rejects equating a child's custody preference –- no

matter how stubbornly expressed -- with unfitness. While 9

"entitled to weight" in the analysis, the child's preference is

"not determinative." Care & Protection of Georgette, 439 Mass.

28, 36 (2003). The child's preference for her grandmother and

uncle did not prove the mother had "grievous shortcomings" that

would put the child's welfare "much at hazard." Petition of New

England Home for Little Wanderers to Dispense with Consent to

Adoption, 367 Mass. at 646. Although a judge must carefully

consider that preference, a teenager cannot render her parent

unfit by the simple expedient of refusing to engage with that

parent.

The child's nomination of her grandmother and uncle as

guardians is also not determinative. Pursuant to G. L. c. 190B,

§ 5-207 (a), "The court shall appoint a person nominated by the

minor, if the minor is [fourteen] or more years of age, unless

the court finds the appointment contrary to the best interest of

the minor." Before displacing a parent's rights and

responsibilities and appointing a guardian for a minor in the

circumstances presented here, a court must first find the parent

"to be unavailable or unfit to have custody." G. L. c. 190B,

§ 5-204 (a) (v). See Guardianship of Kelvin, 94 Mass. App. Ct.

448, 453 (2018), quoting Matter of Hilary, 450 Mass. 491, 496

(2008) ("It is well established that 'parents have a fundamental

liberty interest in the care, custody, and management of their

children'"). The judge properly considered the nomination as 10

further evidence of the child's strong preference but did not

suggest, nor do we, that the nomination dispensed with the

judicial obligation to assess parental fitness.

We also reject the child's alternative argument that a

"constellation" of other factors supports a conclusion of

unfitness. According to the judge's findings, for the first

four years of the child's life (2008-2012), the mother and child

lived with the grandmother. The mother and grandmother worked

cooperatively to raise the child, whose father was not involved

in the child's life and had left the country before she was

born. Soon after the mother and the child obtained their own

apartment, the child "struggled to regulate her emotions" and

experienced tantrums. The grandmother continued to assist in

caring for the child, and the uncle provided some support. In

2018, the mother and child moved in with the mother's erstwhile

boyfriend. On one occasion while the child, the mother, and

that boyfriend were away on vacation, the grandmother found the

apartment in a state of "total chaos" with neglected guinea

pigs, items broken or soaked in wine, and five large containers

of vodka. At some point, the mother and the boyfriend became

engaged, but the relationship turned unhealthy and ended

following domestic abuse witnessed by the child. The child

returned to live with the grandmother, and the mother followed

months later. After about six months, the mother secured 11

another apartment, but the child refused to move in with her

because of the prospect of sharing the apartment with two male

housemates she did not know. The uncle decided to file the

guardianship petition because he believed the mother's

insistence on the child moving into the apartment was "upsetting

to the child."

These findings show the judge's diligence in examining the

background of the parties' evolving relationships over the

course of more than a decade, but they do not speak to "current

data" or even "prognostic evidence" that would bear on the

mother's fitness at the time of the trial. Petitions of Dep't

of Social Servs. to Dispense with Consent to Adoption, 18 Mass.

App. Ct. at 126. "[I]solated problems in the past or stale

information cannot be a basis for a determination of current

parental unfitness." Id. Although the child witnessed the

incident of domestic violence perpetrated by the former

boyfriend, the judge concluded that the mother "made the

appropriate decision to end the relationship and immediately

sought an abuse prevention order." We also note that the

child's concern about potential "male housemates" was no longer

an issue at the time of trial because the mother moved into a

new apartment where she lives alone. Even if reflecting some

unspecified deficiencies on the part of the mother at the time

of the trial, this background does not constitute "full, clear 12

and decisive" proof of unfitness as required by the standard of

clear and convincing evidence. Adoption of Iris, 43 Mass. App.

Ct. at 105, quoting Callahan v. Westinghouse Broadcasting Co.,

372 Mass. 582, 584 (1977).

Conclusion. While "much must be left to the trial judge's

experience and judgment" in these matters, Petition of New

England Home for Little Wanderers to Dispense with Consent to

Adoption, 367 Mass. at 646, "State intervention in the parent-

child relationship" may be justified only when courts apply

governing legal standards with the utmost circumspection.

Custody of a Minor, 377 Mass. 876, 882 (1979). The guardianship

petition here lacked the required proof, by clear and convincing

evidence, that the mother was "unfit." G. L. c. 190B, § 5-204.

Therefore, the decree appointing the child's grandmother and

uncle as coguardians is reversed.

So ordered.