Guardianship of Ezekiel.

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

25-P-1407

GUARDIANSHIP OF EZEKIEL.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal arises from a consolidated proceeding involving

both a care and protection petition and a guardianship petition

pertaining to Ezekiel. The mother is appealing from the decree

and order of a Norfolk Juvenile Court judge granting the

guardianship petition and appointing the maternal grandmother as

the guardian of Ezekiel.2 On appeal, the mother claims that the

Department of Children and Families (DCF) failed to prove her

unfitness, and, in the alternative, that maternal grandmother is

not a proper guardian for Ezekiel. We affirm.

1. Mother's unfitness. The mother claims that DCF failed

to prove by clear and convincing evidence that she was unfit at

1 A pseudonym.

2The father consented to the guardianship petition and has
not appealed or participated in this appeal.
the date of trial, July 30, 2025. The mother did not raise the

issue of unfitness to the trial judge, yet claims on appeal that

she did not waive this issue.3 We disagree.

An issue may not be raised for the first time on appeal.

See Guardianship of Hocker, 439 Mass. 709, 719 (2003). "The

reason for this fundamental rule of appellate practice is well

established: it is important that an appellate court have

before it an adequate record and findings concerning a claim to

permit it to resolve that claim properly" (citation omitted).

Boss v. Leverett, 484 Mass. 553, 563 (2020). "Both the opposing

party and the judge must be 'fairly put on notice as to the

substance of the issue.'" Adoption of Mattis, 106 Mass. App.

Ct. 548, 549 (2026), quoting Chelsea Hous. Auth. v. McLaughlin,

482 Mass. 579, 584 (2019). "[W]hether an issue has been raised

is fact specific." Boss, supra.

Here, the judge began the trial by stating that "the matter

is scheduled for the [h]earing on the [m]erits on the

[g]uardianship" petition. The mother's counsel did not object

3 The mother did not appeal either from findings, following
the care and protection trial in February 2023, that the mother
was unfit and Ezekiel was in need of care and protection, or the
order, following the father's stipulation to his unfitness in
June 2023, granting DCF permanent custody of Ezekiel. See Care
& Protection of Yetta, 84 Mass. App. Ct. 691, 695 (2014) ("To
find a child in need of care and protection, there must be an
affirmative showing of parental unfitness" [quotation and
citation omitted]).

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or raise to the judge that unfitness was an issue in dispute to

be addressed at the hearing. When asked if she knew "what the

meaning of this [h]earing is," the mother responded only that

"[i]t's for [g]uardianship that I oppose." The judge also asked

the mother's counsel if the mother was "looking to have custody

returned to her," to which her counsel responded "[n]o."4 After

this representation by counsel, the judge asked Ezekiel's

counsel to move on from a line of questioning that related to

the mother's fitness. In fact, the mother's counsel even

objected to another line of questioning that was relevant to the

mother's fitness, by stating that "it's not germane to the

question of [g]uardianship at this time." At the end of trial,

when the mother's counsel made his closing argument, there was

no argument on the issue of the mother's fitness, and when the

judge made her findings and ruling allowing the guardianship on

the record, there was no objection from the mother's counsel to

the omission of findings about the mother's fitness. Finally,

when the judge asked at the end of the hearing, "Is there

anything else for today," the mother's counsel responded,

4 The mother does not cite to any legal authority for the
proposition that her decision to not seek physical custody of
the child cannot be considered by the judge as an admission of
unfitness. Cf. Care & Protection of Erin, 443 Mass. 567, 572-
573 (2005) ("a parent's stipulation that he or she is
unavailable to parent a child is a valid basis for a judgment
because it is an admission of unfitness").

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"Nothing, your honor." The mother had countless opportunities

to clarify that she was contesting her unfitness, but she

availed herself of none.

While the judge's findings and conclusions of law are

admittedly limited, this is almost certainly because the judge

was not on notice that unfitness was a contested issue. See

M.H. Gordon & Son, Inc. v. Alcoholic Beverages Control Comm'n,

386 Mass. 64, 67 (1982) (trial judge's view of whether issue was

raised is relevant, but alone is not dispositive). Upon review,

it is evident that the mother did not properly raise this issue

to the trial judge, and we consider it waived.5

5 The mother appears to focus her argument on the fact that
the judge wrote the following in her conclusions of law: "[t]he
family's history with [DCF], the lack of [the m]other's
involvement in [Ezekiel's] services and the status of
[Ezekiel's] relationship with [the m]other indicates to the
Court that [the m]other is unfit to have custody . . . . The
Court finds the petitioner has established sufficient evidence
of [the m]other's unfitness to satisfy the necessary burden."
In essence, the mother argues that because of this language, the
judge did not find that the mother waived the issue of her
fitness. We are not persuaded that this language, when viewed
in the light of the testimony at trial and in light of the fact
that a guardianship analysis generally necessitates a
preliminary finding of parental unfitness, see Guardianship of
Estelle, 70 Mass. App. Ct. 575, 578 (2007), suggests that the
judge was on notice of the mother contesting unfitness.
Additionally, considering that the Supreme Judicial Court has
previously stated that even where a parent stipulates to
unfitness, "the factual basis for the initial determination of
unfitness ideally should appear somewhere in the record," Care &
Protection of Erin, 443 Mass. at 573, the judge quite likely
felt it necessary to explain the factual basis underlying the
mother's unfitness, even where the mother did not contest the
issue.

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2. Guardianship appointment. In the alternative, the

mother claims that the maternal grandmother is not a proper

guardian, and that her appointment was not in Ezekiel's best

interest. Again, we disagree.

On appellate review, "our task is not to decide whether we,

presented with the same facts, would have made the same

decision, but to determine whether the trial judge abused [her]

discretion or committed a clear error of law." Adoption of

Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P.

v. George P., 526 U.S. 1034 (1999). "[A] judge's discretionary

decision constitutes an abuse of discretion where we conclude

the judge made a clear error of judgment in weighing the factors

relevant to the decision" (quotation and citation omitted).

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The governing principle in guardianship is that "[c]ustody

of a child belongs to a parent unless that parent is unfit."

Guardianship of Estelle, 70 Mass. App. Ct. 575, 578 (2007). A

guardian may be appointed for a minor if, among other reasons,

"the parents consent," or "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). Here, the father

previously stipulated to his unfitness and consented to the

maternal grandmother having guardianship of Ezekiel, and as

addressed above, the mother waived the issue of unfitness.

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"Upon hearing, if the court finds that a qualified person seeks

appointment, venue is proper, the required notices have been

given, the conditions of [§] 5-204 (a) have been met, and the

welfare and best interest of the minor will be served by the

requested appointment, it shall make the appointment . . . ."

G. L. c. 190B, § 5-206 (c). See G. L. c. 190B, § 5-207 (a)

("The court may appoint as guardian any person whose appointment

would be in the best interest of the minor"). What is in the

best interest of the child is left to the sound discretion of

the trial judge. See Adoption of Hugo, 428 Mass. at 225.

As a preliminary matter, to the extent that the mother's

arguments reflect dissatisfaction with the judge's credibility

determinations and the weight afforded to certain testimony, we

discern no error. See Adoption of Frederick, 405 Mass. 1, 10

(1989) ("trial judge was in the best position to assess the

credibility of the witnesses' testimony and determine the weight

afforded it"). With regard to the maternal grandmother's care

of Ezekiel, except for a four-month period spent at the Wayside

group home and a ninety-day period spent detained at the

Department of Youth Services, Ezekiel has remained with the

maternal grandmother since March of 2022. The maternal

grandmother has been a stable and consistent person in Ezekiel's

life. Ezekiel also testified that he wants his grandmother to

have custody of him. See Care & Protection of Georgette, 439

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Mass. 28, 36 (2003) (children's "positions, based on mature

expression, are entitled to weight in custody proceedings"). He

testified that he felt safe in his grandmother's custody and

care, and he answered affirmatively when asked if he feels

comfortable with the grandmother and supported by her. The

maternal grandmother works with Ezekiel's school on his

individualized education program and improving his attendance,

works to make sure he receives proper medical care, including

helping him with treatment after he contracted a sexually

transmitted disease, continues to help him engage with

behavioral interventions, and ensures that Ezekiel attends all

doctor, dentist, and optometrist appointments. The maternal

grandmother also testified to actively engaging with DCF since

Ezekiel was placed with her, and she has also supported Ezekiel

in maintaining a relationship with his parents and extended

family members.

While undoubtedly Ezekiel has struggled obeying the law and

has displayed delinquent behavior, the judge was within her

discretion to conclude that Ezekiel's "conduct is not the result

of improper caretaking by [m]aternal [g]randmother[,] but rather

a young adult who is making his own poor decisions regardless of

the support and structure offered in [the m]aternal

[g]randmother's home." Importantly, the mother did not suggest

an alternative guardian; when the judge asked "who would your

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client have [Ezekiel] be in the care of," the mother's counsel

stated that the mother is "not in a position to nominate

anybody." Under these circumstances, we discern no abuse of

discretion or error of law with the judge's determination that

Ezekiel's best interest was served by granting the maternal

grandmother's petition for guardianship.6

Decree allowing guardianship
petition and order of
appointment affirmed.

By the Court (Meade, Sacks &
Wood, JJ.7),

Clerk

Entered: June 26, 2026.

6 To the extent that the mother challenges several factual
findings as clearly erroneous, we discern no error. See
Adoption of Frederick, 405 Mass. at 10-11.

7 The panelists are listed in order of seniority.

8