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-1106
GUARDIANSHIP OF WILLIAM. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father of the minor child appeals from a decree and
order of the Probate and Family Court granting guardianship of
the child to the child's maternal grandparents. 2 In essence, the
father contends that we should vacate the decree because the
record does not support the Probate and Family Court judge's
finding of unfitness. 3 We affirm. 4
Background. The child was born in 2010. The mother and
the father never married. The child lived with the mother and
the father for the first three years of his life but spent most
weekends at the maternal grandparents' home. In 2014, the
1 A pseudonym. 2 The mother of the child died in February of 2020. 3 Our review is hampered somewhat by the lack of citations in the
father's brief and his failure to comply with the rules of appellate procedure. That notwithstanding, we have reviewed the entire record on appeal, and address the substance of his claims herein. 4 Nothing in this decision should be construed to indicate that
the father does not love his child. 2
mother was hospitalized for several weeks. During this period,
the child spent a weekend with the grandparents. When the
grandparents did not return the child to the father at the end
of the weekend, the father called the police. The father then
allowed the child to spend another weekend with the
grandparents, after which he contacted the police again. The
police went to the grandparents' home, but upon their arrival
learned that the mother was living in the home as well, and thus
did not remove the child. 5 The mother remained there until her
death in February 2020, and the child continues to reside there.
From approximately 2014 until November 2020, the father "had
virtually no role" in the child's life, and the child was cared
for by the mother and the grandparents.
The father has a criminal history. In 2016, he was
incarcerated for assault and battery on a family member, and
"[a]round the same time, he served another sentence in the house
of corrections for assault." The mother also had a restraining
order against the father.
On February 4, 2020, while the mother was on life support,
the grandparents petitioned for guardianship of the child and
obtained temporary guardianship. On February 12, 2020, the
father filed an objection to the guardianship. The temporary
5 Following the mother's release from the hospital, she and the child moved into the grandparents' home.
2 3
order of guardianship was extended several times. The father
had weekly visits with the child, either in-person or virtual.
The father was also encouraged to communicate with the child via
letter or e-mail, as discussed infra.
Following a trial on the grandparents' petition, the judge
issued a decree and order of appointment of guardianship. In
her findings supporting the decree, the judge determined that
the "father lacks the capacity" to meet the child's needs, and
that his communication with the child "demonstrate[s] that he
does not understand [the child's] needs, particularly in light
of the recent loss of his mother." The judge also highlighted
the "strong, positive bond" that the child has with the
grandparents, finding that "the forced removal of [the child]
from their care would likely seriously harm [him]."
The judge found, by clear and convincing evidence, that the
father was presently unfit and that it would be in the child's
best interest to live under the guardianship of the
grandparents. The judge increased the father's parenting time
with the child, "so that [the father and the child] may work on
improving their relationship."
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), citing Matter of Angela,
445 Mass. 55, 61-62 (2005). However, a judge may appoint a
3 4
guardian for a minor if, among other reasons, the judge "finds
the parents, jointly, or the surviving parent, 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 that a qualified person seeks appointment, venue
is proper, the required notices have been given, 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.
In the present case, the father argues, inter alia, that
the evidence and the judge's consideration thereof was
insufficient to justify the decree and order of guardianship.
He first claims that the judge erred in finding that he "is
unfit to parent [the child] in light of the lengthy period
during which [the child] has been raised by, and has bonded
with, the [grandparents], and in which [the] [f]ather has had
4 5
virtually no role in [the child's] life." Contrary to this
argument, the evidence at trial supported the judge's finding
that the child has lived with the grandparents for the past
eight years, and that the father did not reach out to the
grandparents since the child has been in their care. There was
also evidence that the mother "had a restraining order against
the father" while she and the child were living with the
grandparents, and that the father spent time in the house of
correction. Both of these circumstances contributed to the
father's absence from the child's life. Where, as here, the
record supports the judge's finding, we cannot conclude that the
judge's finding was clearly erroneous. See Adoption of Paula,
420 Mass. 716, 729 (1995) ("judge's finding[] [of unfitness]
will be disturbed only it [it] [is] clearly erroneous").
The father next challenges the judge's findings that he
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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-1106
GUARDIANSHIP OF WILLIAM. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father of the minor child appeals from a decree and
order of the Probate and Family Court granting guardianship of
the child to the child's maternal grandparents. 2 In essence, the
father contends that we should vacate the decree because the
record does not support the Probate and Family Court judge's
finding of unfitness. 3 We affirm. 4
Background. The child was born in 2010. The mother and
the father never married. The child lived with the mother and
the father for the first three years of his life but spent most
weekends at the maternal grandparents' home. In 2014, the
1 A pseudonym. 2 The mother of the child died in February of 2020. 3 Our review is hampered somewhat by the lack of citations in the
father's brief and his failure to comply with the rules of appellate procedure. That notwithstanding, we have reviewed the entire record on appeal, and address the substance of his claims herein. 4 Nothing in this decision should be construed to indicate that
the father does not love his child. 2
mother was hospitalized for several weeks. During this period,
the child spent a weekend with the grandparents. When the
grandparents did not return the child to the father at the end
of the weekend, the father called the police. The father then
allowed the child to spend another weekend with the
grandparents, after which he contacted the police again. The
police went to the grandparents' home, but upon their arrival
learned that the mother was living in the home as well, and thus
did not remove the child. 5 The mother remained there until her
death in February 2020, and the child continues to reside there.
From approximately 2014 until November 2020, the father "had
virtually no role" in the child's life, and the child was cared
for by the mother and the grandparents.
The father has a criminal history. In 2016, he was
incarcerated for assault and battery on a family member, and
"[a]round the same time, he served another sentence in the house
of corrections for assault." The mother also had a restraining
order against the father.
On February 4, 2020, while the mother was on life support,
the grandparents petitioned for guardianship of the child and
obtained temporary guardianship. On February 12, 2020, the
father filed an objection to the guardianship. The temporary
5 Following the mother's release from the hospital, she and the child moved into the grandparents' home.
2 3
order of guardianship was extended several times. The father
had weekly visits with the child, either in-person or virtual.
The father was also encouraged to communicate with the child via
letter or e-mail, as discussed infra.
Following a trial on the grandparents' petition, the judge
issued a decree and order of appointment of guardianship. In
her findings supporting the decree, the judge determined that
the "father lacks the capacity" to meet the child's needs, and
that his communication with the child "demonstrate[s] that he
does not understand [the child's] needs, particularly in light
of the recent loss of his mother." The judge also highlighted
the "strong, positive bond" that the child has with the
grandparents, finding that "the forced removal of [the child]
from their care would likely seriously harm [him]."
The judge found, by clear and convincing evidence, that the
father was presently unfit and that it would be in the child's
best interest to live under the guardianship of the
grandparents. The judge increased the father's parenting time
with the child, "so that [the father and the child] may work on
improving their relationship."
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), citing Matter of Angela,
445 Mass. 55, 61-62 (2005). However, a judge may appoint a
3 4
guardian for a minor if, among other reasons, the judge "finds
the parents, jointly, or the surviving parent, 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 that a qualified person seeks appointment, venue
is proper, the required notices have been given, 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.
In the present case, the father argues, inter alia, that
the evidence and the judge's consideration thereof was
insufficient to justify the decree and order of guardianship.
He first claims that the judge erred in finding that he "is
unfit to parent [the child] in light of the lengthy period
during which [the child] has been raised by, and has bonded
with, the [grandparents], and in which [the] [f]ather has had
4 5
virtually no role in [the child's] life." Contrary to this
argument, the evidence at trial supported the judge's finding
that the child has lived with the grandparents for the past
eight years, and that the father did not reach out to the
grandparents since the child has been in their care. There was
also evidence that the mother "had a restraining order against
the father" while she and the child were living with the
grandparents, and that the father spent time in the house of
correction. Both of these circumstances contributed to the
father's absence from the child's life. Where, as here, the
record supports the judge's finding, we cannot conclude that the
judge's finding was clearly erroneous. See Adoption of Paula,
420 Mass. 716, 729 (1995) ("judge's finding[] [of unfitness]
will be disturbed only it [it] [is] clearly erroneous").
The father next challenges the judge's findings that he
"lacks the capacity to meet the special needs of [the child]
upon removal" and that "his letters to [the child] demonstrate
that he does not understand [his] needs, particularly in light
of the recent loss of his mother." The claim is unavailing.
The grandmother testified that the father told the child in
letters "to man up and come live with [him]." The father also
wrote letters telling the child that the "grandfather was
playing childish games," that the grandparents are "liars" and
"sick in the head," that the father "loves [him] so much that it
5 6
made mom jealous of [him]," and that the grandparents "are
unreliable people who care more about themselves than about
him." The judge determined that the father's letters
"demonstrate that he does not understand [the child's] needs,
particularly in light of the recent loss of his mother." The
totality of the facts in the record supports this determination.
Indeed, the record shows that the father had a practice of
"consistently put[ting] emphasis on [his] own psychological
state, instead of attending to [the child's] emotional needs,"
thus contributing to the judge's finding of his unfitness.
Adoption of Rhona, 63 Mass. App. Ct. 117, 122 (2005).
The father also takes issue with the judge's finding that
"it is in [the child's] best interests for the [grandparents] to
be appointed his co-guardians." We discern no error in this
determination in view of the substantial testimony at trial
describing how the child "has formed a strong, positive bond
with [the grandparents] and the forced removal of [the child]
from their care would likely seriously harm [him]." The
grandparents testified to their strong bond with the child and
their deep involvement in his life and daily routine. See
Estelle, 70 Mass. App. Ct. at 581-583. The judge credited this
evidence and the record supports her finding that it is in the
child's best interests to remain with his grandparents and that
they be appointed his coguardians.
6 7
Finally, we are not persuaded by the father's argument that
the judge's findings as a whole are impermissibly sparse and do
not support a finding of unfitness. The record, including the
trial transcript and the judge's written findings, supports and
confirms the judge's careful, thorough, and attentive review and
consideration of the evidence. Furthermore, the record supports
the judge's determination of unfitness, by clear and convincing
evidence, in view of, inter alia, 6 the evidence of the father's
lengthy absence from the child's life, criminal history, and
inability to understand and meet the child's emotional needs.
Accordingly, we affirm.
Decree and order of appointment of guardian, as corrected, affirmed.
By the Court (Wolohojian, Neyman & Shin, JJ. 7),
Assistant Clerk
Entered: January 16, 2024.
6 To the extent we have not discussed other claims raised by the father, they have not been overlooked. We see nothing in them that warrants overturning the judge's findings. See Commonwealth v. Sosa, 493 Mass. 104, 124 n.12 (2023). 7 The panelists are listed in order of seniority.