Guardianship of William.

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.

7