Guardianship of Raya

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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
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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
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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
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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
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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
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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
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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
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"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
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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
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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
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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.