Pamela Taylor Nataline v. Karen Nataline.

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.

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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

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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

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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

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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

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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.

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