Guardianship of Josette.

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

23-P-1069

GUARDIANSHIP OF JOSETTE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother of Josette appeals from a decree and order of

the Probate and Family Court granting guardianship of Josette to

the child's maternal grandmother. The mother argues that we

should vacate the decree because the record does not support the

judge's finding of unfitness. We affirm.

Background. Josette was born in 2014. She was seven and

eight years old at the time of trial; mother was twenty-nine

years old. Josette lived with the mother from birth until

September 2018. During this period, the mother and Josette

lived in several different places. For the first six months of

the child's life, they lived with friends of the mother in

Connecticut. They then moved to Worcester, where they lived

with the mother's cousin for approximately one year. The

following year, they moved in with another cousin for a year.

1 A pseudonym.
During this period, the Department of Children and Families

(DCF) received multiple 51A reports alleging neglect of the

child by the mother. One report alleged that the mother had

neglected Josette by discontinuing formula when the child was

only six months old. DCF supported the allegations and

established an action plan for the mother, which included

participating in parenting classes and securing public benefits

and stable housing.2

After living in Worcester for approximately two years, the

mother and Josette moved in with the mother's then boyfriend,

who physically abused both the mother and Josette. The

boyfriend hit Josette with a belt. In response to this abuse,

the mother dropped Josette off at the maternal grandmother's

home, and then requested that the maternal grandmother bring

Josette to live with the child's aunt, where she lived for

approximately eleven months. During this time, the mother

continued to live with her then boyfriend, who continued to

abuse her physically and financially. In 2019, the mother moved

in with her brother for short a period of time, but was asked to

move out after having male visitors which her brother had

2 DCF received two additional 51A reports alleging neglect
of the child, however, one report was ultimately not supported
and the other report was screened out.

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forbidden. In July 2019, after leaving her brother's house, the

mother moved in with the maternal grandmother.

After Josette and the mother had lived apart for eleven

months, Josette in August 2019 joined the mother at the maternal

grandmother's home. During this time, the maternal grandmother

took Josette to all of her medical appointments, enrolled her in

preschool, and cared for her when she was sick. In December

2019, the grandmother informed the mother that she would need to

obtain alternative housing because the grandmother planned to

travel to Florida for an extended period of time. When the

mother did not obtain housing by the time the grandmother was

leaving, the grandmother took Josette with her to Florida to

allow the mother to focus on obtaining housing. Although the

mother planned to bring Josette back to Massachusetts within a

month, that did not happen and Josette lived in Florida with the

grandmother until May 2020, when they returned to Massachusetts.

During this time, the mother communicated by phone with the

child, but had no in person contact with her.

On July 10, 2020, the grandmother filed a petition for

guardianship of Josette and requested that she be appointed

temporary guardian to prevent Josette from being removed from

her care. The court found that no emergency existed to require

the appointment of a temporary guardian and denied the

grandmother's request. The court also prepared an action plan

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to provide services for the mother to help her to improve her

parenting skills. Josette continued to reside with the

grandmother during this time and the mother was permitted to

have designated parenting time with the child until the trial

took place on September 19, 2022.

Partly because of the physical abuse Josette suffered at

the hands of the mother's previous boyfriend, Josette has been

diagnosed with generalized anxiety disorder and post-traumatic

stress disorder. The judge found that the mother has dismissed

the significance of Josette's mental health symptoms and needs.

The mother at one point called the child's distressed reaction

"fake." Josette has also expressed to her therapist that she

feels fear and anxiety about the mother not always being

truthful with her, being left alone by the mother, being

physically harmed, and being forced to leave the home of her

grandmother. The judge also found that the mother "has actively

interfered with [the child's] progress" by telling the child not

to share certain information with her therapist and by

preventing the child from receiving psychiatric care.

At the time of trial, the mother experienced instability in

both her housing and income. While the mother did have her own

apartment, the trial court found that the mother's unstable

income "potentially puts this housing at risk." The judge found

that the mother "has also shown a general disinterest in

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parenting [Josette]. She has missed parenting time

opportunities and ha[d] failed to involve herself at all in

[Josette's] education, therapeutic treatment, or medical care,

and she ha[d] missed important extracurricular events in

[Josette's] life." In addition, the judge found that Josette

"is a child with diagnosed mental health concerns and a need for

stability and predictability. She needs caregivers who can

appropriately respond to her [post-traumatic stress disorder]

triggers. Despite being given various opportunities to do so,

[the mother] has not demonstrated that she is able to meet

[Josette's] needs."

Based on the mother's demonstrated inability to meet

Josette's needs, the judge found, by clear and convincing

evidence, that the mother was presently unfit and that it would

be in the child's best interest to continue living with the

maternal grandmother. The mother appealed.

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). However, a judge may

appoint a guardian for a minor if, among other reasons, the

judge "finds the parent[s] . . . 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

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that a qualified person seeks appointment, . . . 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.

The mother argues here that the evidence was insufficient

to support the judge's finding of unfitness and that the judge

therefore erred in granting the decree and order of

guardianship. While the mother recognizes that she has had

shortcomings in her parenting of the child, she contends that

the judge failed to account for her efforts to improve her

parenting abilities. Contrary to the mother's assertions, the

judge considered the mother's efforts, but determined that, at

the time of trial, the mother had not progressed to the degree

that she was capable of meeting Josette's current needs. The

judge properly considered Josette's significant mental and

physical health needs, the mother's inability to provide the

level of care the child requires, and the mother's role in

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aggravating Josette's anxiety and post-traumatic stress. See

Adoption of Rhona, 63 Mass. App. Ct. 117, 129 (2005). The

mother has done so by discounting Josette's stress reactions,

continuing to maintain volatile relationships with male

partners, and interfering with Josette's therapy by telling her

to conceal information from her therapist. The record supports

the judge's finding that, in light of Josette's mental and

physical health status, the mother was not currently capable of

meeting the child's needs. Id.

The judge also properly considered the strong bond that has

developed between Josette and the maternal grandmother and

Josette's therapist's testimony that changes to Josette's home

life would have "some pretty devastating effects." Guardianship

of Estelle, 70 Mass. App. Ct. 575, 581-582 (2007). While the

bond between the child and the caretaker is not dispositive in

guardianship cases, we do consider it as "a factor that has

weight in the ultimate balance." Adoption of Nicole, 40 Mass.

App. Ct. 259, 263 (1996). Because Josette has lived with the

maternal grandmother since 2019 and has expressed anxiety and

worry about possibly being told that she has to move away, the

record amply supports the judge's determination that it would be

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in Josette's best interest to remain in the maternal

grandmother's custody.

Decree affirmed.

By the Court (Rubin,
Englander & D'Angelo, JJ.3),

Assistant Clerk

Entered: April 4, 2024.

3 The panelists are listed in order of seniority.

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