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-327
PAMELA TAYLOR NATALINE
vs.
KAREN NATALINE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff (grandmother) appeals from a judgment
dismissing her petition, pursuant to G. L. c. 119, § 39D,
seeking visitation rights with her grandchildren. In the
Probate and Family Court, the grandmother sought the
appointment, pursuant to G. L. c. 215, § 56A, of a guardian ad
litem to investigate, as well as orders for temporary visitation
with the grandchildren. A judge dismissed her petition pursuant
to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), for
failure to state a claim, in accordance with Blixt v. Blixt, 437
Mass. 649 (2002), cert. denied, 537 U.S. 1189 (2003), and denied
her requests for appointment of the guardian ad litem and
temporary visitation with the children. We affirm.
Background. As we must, we take as true the allegations in
the grandmother's petition, drawing any reasonable inferences in her favor.1 The children's father battled lung cancer for many
years. His mother, the grandmother, was "greatly involved" in
the grandchildren's lives beginning with their births. When the
older grandchild was a baby, the grandmother took her on
"[a]lmost daily" walks and, after the father was diagnosed with
cancer, the grandmother babysat the older grandchild "almost
every day." In 2012, the grandmother moved to New York for
about a year, during which she had family visits with the
mother, father, and older grandchild.
At the father's request, the grandmother moved back to
Massachusetts to help him, living two to three miles away from
his family, "babysitting almost every day," and taking the older
grandchild to church "almost every Sunday." When the younger
grandchild was born in 2013, the grandmother continued to
babysit the grandchildren "almost every day, if not every day,"
including taking them out for walks and activities and buying
them clothing and toys. In 2014, the parents and the
grandchildren moved to Florida and, at the father's request, the
1 The grandmother's pro se affidavit included with her petition was sparse. Some ten months later, after the mother had moved to dismiss, and without leave of court, the grandmother filed an "amended affidavit." See Mass. R. Dom. Rel. P. 15 (a). Although the mother "ask[ed] the court to disregard" this improper filing, the parties addressed it during argument on the motion to dismiss, and the judge made no ruling as to whether it was to be included in the record. We assume without deciding that it is properly before us.
2 grandmother moved with them. For about seven months, they lived
together in the grandmother's home. In 2015, the parents and
grandchildren moved to a nearby town and the grandmother
continued to take the grandchildren to church weekly, babysit
them, take them for treats, and pick them up from school when
their mother was working. During that time, the grandchildren
spent "almost every weekend," and occasional weeknights, with
the grandmother. In June 2017, the grandmother took the older
grandchild to the dentist and paid for a "lot of dentistry work"
that the child needed. In June 2018, the grandmother took the
older grandchild to Boston for two weeks. The grandmother's
last visit with the grandchildren was on August 31, 2018. In
September 2018, the grandmother called the Florida Department of
Children and Families (DCF) to report two "incidents," one with
each grandchild.
The father died in late October 2018. The grandmother
filed a complaint seeking visitation in October 2019.
Discussion. "[T]he Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their
children." Troxel v. Granville, 530 U.S. 57, 66 (2000). "To
accord with due process, an evaluation of the best interests of
the child under [G. L. c. 119, § 39D] requires that a parental
decision concerning grandparent visitation be given presumptive
3 validity." Blixt, 437 Mass. at 657-658. Fit parents are
presumed to act in the best interest of their children. Id. at
658, quoting Troxel, supra at 68. Thus, where a grandparent
seeks to overrule a parental decision, "the grandparents must
allege and prove that the failure to grant visitation will cause
the child significant harm by adversely affecting the child's
health, safety, or welfare." Blixt, supra at 658. "The
requirement of significant harm presupposes proof of a showing
of a significant preexisting relationship between the
grandparent and the child. In the absence of such a
relationship, the grandparent must prove that visitation between
grandparent and child is nevertheless necessary to protect the
child from significant harm." Id.
Recognizing the disruptive nature of the litigation of a
grandparent visitation complaint, and its potential implication
of the parent's constitutional rights, our cases apply a
heightened pleading standard to such cases. "Before a parent or
parents are called upon to litigate fully a grandparent
visitation complaint, with all the attendant stress and expense,
the grandparent or grandparents should make an initial showing
that satisfies a judge that the burden of proof . . . can be
met. To this end, any complaint filed under the statute should
be detailed and verified or accompanied by a detailed and
4 verified affidavit setting out the factual basis relied on by
the plaintiffs to justify relief." Blixt, 437 Mass. at 666.
"We review an order allowing a motion to dismiss de novo."
Frazier v. Frazier, 96 Mass. App. Ct. 775, 777 (2019), citing
Martinez v. Martinez-Cintron, 93 Mass. App. Ct. 202, 204 (2018).
In doing so, we accept the plaintiff's well-pleaded factual
allegations as true and consider whether they "raise a right to
relief above the speculative level" (quotation omitted).
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). We
may also consider "any favorable inferences reasonably drawn
from" the plaintiff's factual allegations. Ginther v.
Commissioner of Ins., 427 Mass. 319, 322 (1998). "To survive a
rule 12 (b) (6) motion to dismiss, a pleading must include
'factual allegations plausibly suggesting (not merely consistent
with) an entitlement to relief.'" Martinez, supra, quoting
Iannacchino, supra.
Even crediting the grandmother's descriptions that,
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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-327
PAMELA TAYLOR NATALINE
vs.
KAREN NATALINE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff (grandmother) appeals from a judgment
dismissing her petition, pursuant to G. L. c. 119, § 39D,
seeking visitation rights with her grandchildren. In the
Probate and Family Court, the grandmother sought the
appointment, pursuant to G. L. c. 215, § 56A, of a guardian ad
litem to investigate, as well as orders for temporary visitation
with the grandchildren. A judge dismissed her petition pursuant
to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), for
failure to state a claim, in accordance with Blixt v. Blixt, 437
Mass. 649 (2002), cert. denied, 537 U.S. 1189 (2003), and denied
her requests for appointment of the guardian ad litem and
temporary visitation with the children. We affirm.
Background. As we must, we take as true the allegations in
the grandmother's petition, drawing any reasonable inferences in her favor.1 The children's father battled lung cancer for many
years. His mother, the grandmother, was "greatly involved" in
the grandchildren's lives beginning with their births. When the
older grandchild was a baby, the grandmother took her on
"[a]lmost daily" walks and, after the father was diagnosed with
cancer, the grandmother babysat the older grandchild "almost
every day." In 2012, the grandmother moved to New York for
about a year, during which she had family visits with the
mother, father, and older grandchild.
At the father's request, the grandmother moved back to
Massachusetts to help him, living two to three miles away from
his family, "babysitting almost every day," and taking the older
grandchild to church "almost every Sunday." When the younger
grandchild was born in 2013, the grandmother continued to
babysit the grandchildren "almost every day, if not every day,"
including taking them out for walks and activities and buying
them clothing and toys. In 2014, the parents and the
grandchildren moved to Florida and, at the father's request, the
1 The grandmother's pro se affidavit included with her petition was sparse. Some ten months later, after the mother had moved to dismiss, and without leave of court, the grandmother filed an "amended affidavit." See Mass. R. Dom. Rel. P. 15 (a). Although the mother "ask[ed] the court to disregard" this improper filing, the parties addressed it during argument on the motion to dismiss, and the judge made no ruling as to whether it was to be included in the record. We assume without deciding that it is properly before us.
2 grandmother moved with them. For about seven months, they lived
together in the grandmother's home. In 2015, the parents and
grandchildren moved to a nearby town and the grandmother
continued to take the grandchildren to church weekly, babysit
them, take them for treats, and pick them up from school when
their mother was working. During that time, the grandchildren
spent "almost every weekend," and occasional weeknights, with
the grandmother. In June 2017, the grandmother took the older
grandchild to the dentist and paid for a "lot of dentistry work"
that the child needed. In June 2018, the grandmother took the
older grandchild to Boston for two weeks. The grandmother's
last visit with the grandchildren was on August 31, 2018. In
September 2018, the grandmother called the Florida Department of
Children and Families (DCF) to report two "incidents," one with
each grandchild.
The father died in late October 2018. The grandmother
filed a complaint seeking visitation in October 2019.
Discussion. "[T]he Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their
children." Troxel v. Granville, 530 U.S. 57, 66 (2000). "To
accord with due process, an evaluation of the best interests of
the child under [G. L. c. 119, § 39D] requires that a parental
decision concerning grandparent visitation be given presumptive
3 validity." Blixt, 437 Mass. at 657-658. Fit parents are
presumed to act in the best interest of their children. Id. at
658, quoting Troxel, supra at 68. Thus, where a grandparent
seeks to overrule a parental decision, "the grandparents must
allege and prove that the failure to grant visitation will cause
the child significant harm by adversely affecting the child's
health, safety, or welfare." Blixt, supra at 658. "The
requirement of significant harm presupposes proof of a showing
of a significant preexisting relationship between the
grandparent and the child. In the absence of such a
relationship, the grandparent must prove that visitation between
grandparent and child is nevertheless necessary to protect the
child from significant harm." Id.
Recognizing the disruptive nature of the litigation of a
grandparent visitation complaint, and its potential implication
of the parent's constitutional rights, our cases apply a
heightened pleading standard to such cases. "Before a parent or
parents are called upon to litigate fully a grandparent
visitation complaint, with all the attendant stress and expense,
the grandparent or grandparents should make an initial showing
that satisfies a judge that the burden of proof . . . can be
met. To this end, any complaint filed under the statute should
be detailed and verified or accompanied by a detailed and
4 verified affidavit setting out the factual basis relied on by
the plaintiffs to justify relief." Blixt, 437 Mass. at 666.
"We review an order allowing a motion to dismiss de novo."
Frazier v. Frazier, 96 Mass. App. Ct. 775, 777 (2019), citing
Martinez v. Martinez-Cintron, 93 Mass. App. Ct. 202, 204 (2018).
In doing so, we accept the plaintiff's well-pleaded factual
allegations as true and consider whether they "raise a right to
relief above the speculative level" (quotation omitted).
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). We
may also consider "any favorable inferences reasonably drawn
from" the plaintiff's factual allegations. Ginther v.
Commissioner of Ins., 427 Mass. 319, 322 (1998). "To survive a
rule 12 (b) (6) motion to dismiss, a pleading must include
'factual allegations plausibly suggesting (not merely consistent
with) an entitlement to relief.'" Martinez, supra, quoting
Iannacchino, supra.
Even crediting the grandmother's descriptions that,
beginning with their births, she was an important figure in the
children's lives, that she provided care multiple times a week
until August 2018, and that, before that date, the parents
relied on her for childcare, she failed to make the necessary
showing that "failure to grant visitation will cause the
child[ren] significant harm by adversely affecting the
child[ren]'s health, safety, or welfare." Blixt, 437 Mass. at
5 658. The relationship she describes, while unquestionably a
meaningful one, does not rise to the level required to override
the mother's constitutional rights. See Dearborn v. Deausalt,
61 Mass. App. Ct. 234, 237-238 (2004) (where grandparent saw
grandchildren several times a month, took them on camping trips
and to local activities, and provided childcare when mother was
busy, relationship was insufficient to rebut presumption that
mother was fit to make decisions about visitation). As we noted
in describing Dearborn, "[w]hile apparently nurturing and
enriching, the relationship is not 'such as de facto parents or
other relationships of close bonding, where significant harm may
readily be inferred from and is inherent in the disruption of
the relationship.'" Frazier, 96 Mass. App. Ct. at 779, quoting
Dearborn, supra at 238.
Recognizing that her lack of recent contact with the
children limits her ability to present facts about their current
well-being, the grandmother also sought to have the judge
appoint a guardian ad litem to "establish the harm that would
ultimately entitle her to visitation." The decision whether or
not to appoint a guardian ad litem rests in the "considerable
discretion" of the trial court, Custody of a Minor (No. 1), 21
Mass. App. Ct. 985, 986 (1986), and we will not disturb the
exercise of that discretion here. The allegations in this case
do not persuade us that the appointment of a guardian ad litem
6 was necessary to allow the judge to evaluate the best interests
of the children, compare, e.g., Sher v. Desmond, 70 Mass. App.
Ct. 270 (2007), and the grandmother has cited no Massachusetts
case that would compel the judge to make such an appointment.2
We are similarly unpersuaded by the grandmother's motion
for temporary orders for visitation. As more fully explained
above, the mother's decisions about grandparent visitation are
presumed to be valid. See Blixt, 437 Mass. at 657-658. Whether
by temporary or permanent orders, we will not lightly disturb
this presumption. The mother's request for an award of her
appellate attorney's fees is denied.
Judgment affirmed.
By the Court (Blake, Hershfang & D'Angelo, JJ.3),
Clerk
Entered: March 29, 2023.
2 Although the grandmother cited out-of-State cases for this proposition, as counsel appropriately acknowledged at oral argument, those cases are not binding on this court. 3 The panelists are listed in order of seniority.