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-1486
GUARDIANSHIP OF SALIM. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The paternal grandparents of Salim appeal from a decree of
the Probate and Family Court, dismissing their petition for
guardianship of Salim and awarding sole legal and physical
custody of him to his mother. Discerning no abuse of discretion
or other error of law in the court's determination that the
mother was fit to parent Salim, we affirm. 2
Background. We set forth the relevant facts and procedural
background drawn from the judge's findings and decree, reserving
certain facts for later discussion. See Guardianship of Kelvin,
94 Mass. App. Ct. 448, 449 (2018). Salim was born in May 2014
to the mother and the father, who both have a history of
1 A pseudonym.
2The grandparents have waived their appeal from the judgment entered on their petition for grandparents' visitation. substance use disorder. At that time, the family lived together
in a property owned by the grandparents. Shortly after Salim's
birth, the father relapsed. On one occasion, the father
strangled the mother. The father later moved out of the home.
In January 2016, the mother was arrested on drug-related charges
in the presence of Salim. During the mother's detention
following arrest, the grandparents took care of Salim. In
February 2016, the grandparents petitioned for guardianship of
Salim, alleging that the mother "suffers from substance abuse"
and the father "has alleged criminal matters open." The court
appointed the grandparents temporary guardians of Salim the same
day. Under the temporary guardianship, the mother had
supervised parenting time with Salim.
Later in 2016, the mother moved into a house owned by her
boyfriend, and the two became engaged. In December 2016, after
testing negative for drugs, the mother was allowed some
unsupervised parenting time with Salim. In the spring of 2017,
the mother was permitted to be involved with Salim's medical
care, academics, and extracurricular activities. By the fall of
2017, the mother began to have overnight parenting time with
Salim. She and her fiancé had a child together, a son, in
November 2017.
In August 2018, the grandparents petitioned for
grandparents' visitation, alleging that they had a significant
2 relationship with Salim, and that allowance of the petition was
in Salim's best interest. The temporary guardianship was
repeatedly renewed and remained in effect from 2016 until the
time of trial in 2023. After a four-day trial, the court
dismissed the petition for guardianship and entered a four-page
judgment providing the grandparents with significant visitation. 3
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
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 the
New England Home for Little Wanderers to Dispense with Consent
to Adoption, 367 Mass. 631, 646 (1975). The party seeking
guardianship, the grandparents here, "had the burden of proving
by clear and convincing evidence that the mother was unfit."
Guardianship of Raya, 103 Mass. App. Ct. 531, 534 (2023).
3 Although the father was represented by counsel at trial, he did not appear personally. He supported the grandparents having continued guardianship and was not himself seeking custody of Salim. He is not a party to this appeal.
3 Here, the judge found that the mother had not taken
opioids, other than Suboxone (prescribed to treat opioid
dependence) since 2011 and that she had stopped taking even
Suboxone after her arrest in 2016. She had only one prescribed
medication, and that one was not a narcotic. She had regular
healthcare visits. The mother had been working as a delivery
driver for the same employer for the past five years. She
earned certifications and was promoted. She worked full-time
and provided health insurance for her family. She had a stable
home and a stable relationship with her fiancé since 2016. She
was involved in and attentive to Salim's medical care and
educational needs. She also took good care of her younger son,
who had special needs. She nurtured an appropriate sibling
relationship between Salim and her younger son. She also
recognized Salim's bond with the grandparents and was supportive
of their continuing, significant involvement with him. The
judge ultimately found that the mother was currently fit to
parent Salim.
Passing over the fitness determination, the grandparents
argue that the judge failed to sufficiently address whether
Salim's best interests would be served by dismissal of the
guardianship petition. 4 However, "[c]ustody of a child belongs
4 Relying on cases discussing petitions to terminate guardianships, the grandparents suggest that the mother should
4 to a parent unless that parent is unfit." Guardianship of
Estelle, 70 Mass. App. Ct. 575, 578 (2007). The grandparents
acknowledge that "the evidence and findings may have adequately
established, as a matter of law, that the mother was 'fit,'" but
argue instead that the evidence and findings "did not establish
that the removal of the grandparents as guardians was in the
child's best interests." Once a parent has been determined to
be fit to parent her child, however, there is no question of
guardianship to secure the child's best interests. See id. at
576, 581 (guardianship not available if parent found to be fit).
Rather, the fitness determination itself encompasses the concept
of best interests. See R.D. v. A.H., 454 Mass. 706, 715 (2009)
(critical question in fitness determination is whether parent is
currently fit to further welfare and best interests of child).
bear the burden to show that dismissal of the guardianship petition would be in Salim's best interests. In those proceedings, the parent has the initial burden of production, showing changed circumstances, but the burden of persuasion, showing the parent to be unfit, remains with the guardian. See Guardianship of Kelvin, 94 Mass. App. Ct.
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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-1486
GUARDIANSHIP OF SALIM. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The paternal grandparents of Salim appeal from a decree of
the Probate and Family Court, dismissing their petition for
guardianship of Salim and awarding sole legal and physical
custody of him to his mother. Discerning no abuse of discretion
or other error of law in the court's determination that the
mother was fit to parent Salim, we affirm. 2
Background. We set forth the relevant facts and procedural
background drawn from the judge's findings and decree, reserving
certain facts for later discussion. See Guardianship of Kelvin,
94 Mass. App. Ct. 448, 449 (2018). Salim was born in May 2014
to the mother and the father, who both have a history of
1 A pseudonym.
2The grandparents have waived their appeal from the judgment entered on their petition for grandparents' visitation. substance use disorder. At that time, the family lived together
in a property owned by the grandparents. Shortly after Salim's
birth, the father relapsed. On one occasion, the father
strangled the mother. The father later moved out of the home.
In January 2016, the mother was arrested on drug-related charges
in the presence of Salim. During the mother's detention
following arrest, the grandparents took care of Salim. In
February 2016, the grandparents petitioned for guardianship of
Salim, alleging that the mother "suffers from substance abuse"
and the father "has alleged criminal matters open." The court
appointed the grandparents temporary guardians of Salim the same
day. Under the temporary guardianship, the mother had
supervised parenting time with Salim.
Later in 2016, the mother moved into a house owned by her
boyfriend, and the two became engaged. In December 2016, after
testing negative for drugs, the mother was allowed some
unsupervised parenting time with Salim. In the spring of 2017,
the mother was permitted to be involved with Salim's medical
care, academics, and extracurricular activities. By the fall of
2017, the mother began to have overnight parenting time with
Salim. She and her fiancé had a child together, a son, in
November 2017.
In August 2018, the grandparents petitioned for
grandparents' visitation, alleging that they had a significant
2 relationship with Salim, and that allowance of the petition was
in Salim's best interest. The temporary guardianship was
repeatedly renewed and remained in effect from 2016 until the
time of trial in 2023. After a four-day trial, the court
dismissed the petition for guardianship and entered a four-page
judgment providing the grandparents with significant visitation. 3
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
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 the
New England Home for Little Wanderers to Dispense with Consent
to Adoption, 367 Mass. 631, 646 (1975). The party seeking
guardianship, the grandparents here, "had the burden of proving
by clear and convincing evidence that the mother was unfit."
Guardianship of Raya, 103 Mass. App. Ct. 531, 534 (2023).
3 Although the father was represented by counsel at trial, he did not appear personally. He supported the grandparents having continued guardianship and was not himself seeking custody of Salim. He is not a party to this appeal.
3 Here, the judge found that the mother had not taken
opioids, other than Suboxone (prescribed to treat opioid
dependence) since 2011 and that she had stopped taking even
Suboxone after her arrest in 2016. She had only one prescribed
medication, and that one was not a narcotic. She had regular
healthcare visits. The mother had been working as a delivery
driver for the same employer for the past five years. She
earned certifications and was promoted. She worked full-time
and provided health insurance for her family. She had a stable
home and a stable relationship with her fiancé since 2016. She
was involved in and attentive to Salim's medical care and
educational needs. She also took good care of her younger son,
who had special needs. She nurtured an appropriate sibling
relationship between Salim and her younger son. She also
recognized Salim's bond with the grandparents and was supportive
of their continuing, significant involvement with him. The
judge ultimately found that the mother was currently fit to
parent Salim.
Passing over the fitness determination, the grandparents
argue that the judge failed to sufficiently address whether
Salim's best interests would be served by dismissal of the
guardianship petition. 4 However, "[c]ustody of a child belongs
4 Relying on cases discussing petitions to terminate guardianships, the grandparents suggest that the mother should
4 to a parent unless that parent is unfit." Guardianship of
Estelle, 70 Mass. App. Ct. 575, 578 (2007). The grandparents
acknowledge that "the evidence and findings may have adequately
established, as a matter of law, that the mother was 'fit,'" but
argue instead that the evidence and findings "did not establish
that the removal of the grandparents as guardians was in the
child's best interests." Once a parent has been determined to
be fit to parent her child, however, there is no question of
guardianship to secure the child's best interests. See id. at
576, 581 (guardianship not available if parent found to be fit).
Rather, the fitness determination itself encompasses the concept
of best interests. See R.D. v. A.H., 454 Mass. 706, 715 (2009)
(critical question in fitness determination is whether parent is
currently fit to further welfare and best interests of child).
bear the burden to show that dismissal of the guardianship petition would be in Salim's best interests. In those proceedings, the parent has the initial burden of production, showing changed circumstances, but the burden of persuasion, showing the parent to be unfit, remains with the guardian. See Guardianship of Kelvin, 94 Mass. App. Ct. at 455-456 (clarifying burdens in guardianship removal proceedings).
In any event, the petition before the court in this case was not the mother's petition to terminate the grandparents' temporary guardianship, but rather, it was the grandparents' petition to be appointed guardians; as petitioners, the burden was squarely on the grandparents to prove the mother's unfitness by clear and convincing evidence. See R.D. v. A.H., 454 Mass. 706, 711-712 (2009) (long-term temporary guardian seeking permanent guardianship had burden to show legal parent's unfitness).
5 The grandparents criticize some of the judge's findings,
but ultimately, these criticisms amount to a disagreement with
the judge's resolution of weight and credibility. See Custody
of Eleanor, 414 Mass. 795, 799 (1993) (on appellate review,
judge's assessment of weight of evidence and credibility of
witnesses is entitled to deference). For example, they argue
that the judge praised the mother for her care of her younger
son with special needs but that this did not show that she was
fit to raise Salim. Yet, a parent's "demonstrated willingness
and ability to care for another child in her custody is relevant
to her general fitness as a parent." Guardianship of Kelvin, 94
Mass. App. Ct. at 457.
Relying on concerns expressed by Salim's therapist and the
guardian ad litem years before trial, the grandparents contend
that the judge failed to explain how the mother, with her
tendency towards anxiety and panic, can manage Salim, who has
special personal, medical, and educational needs. But the judge
relied on other witnesses, in particular, an expert who
performed court-ordered psychological testing on the mother, and
concluded that the mother "does appear equipped to manage most
aspects of parenting" and that "there is nothing in the test
results that would suggest [the] [m]other cannot function
successfully as a parent." Additionally, the judge relied on
more current information regarding the mother's functioning and
6 relationship with Salim, which trended in a positive direction.
See Adoption of Carla, 416 Mass. 510, 517 (1993) (finding of
unfitness cannot be based on stale information).
Contrary to the grandparents' claim that the judge ignored
the mother's criminal and drug use history, the judge explicitly
noted it as history; there was nothing in the evidence to
suggest that it was a current concern. Likewise, the
grandparents fault the judge for making no specific findings
concerning the impact that a change in custody would have on
Salim's academics; however, they point to no proffered evidence
even suggesting that there would be any negative academic impact
from Salim's move.
Finally, the grandparents emphasize their extended care of
Salim and Salim's wellbeing under their influence, complaining
that the judge failed to consider the impact of the dismissal of
the guardianship petition on Salim. The judge's findings
reflect due regard for the grandparents' exceptional caregiving.
However, "we do not transfer a child from his or her parent to
other custodians merely because the latter may provide a more
advantageous environment for the child's upbringing."
Guardianship of Estelle, 70 Mass. App. Ct. at 580. The judge
here did consider and did find that dismissal of the
guardianship petition would not harm Salim, particularly in the
context of the generous grandparents' visitation awarded. Cf.
7 Blixt v. Blixt, 437 Mass. 649, 658 (2002) (in order to obtain
visitation, grandparents must show that failure to award
visitation will cause child significant harm).
Decree affirmed.
By the Court (Vuono, Singh & Hershfang, JJ. 5),
Clerk
Entered: April 9, 2025.
5 The panelists are listed in order of seniority.