Opinion
16-P-1189
05-01-2017
GUARDIANSHIP OF GENEVA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a decree issued by a judge of the Probate and Family Court, finding him presently unfit to parent his minor child, Geneva, and awarding permanent guardianship of Geneva to her paternal grandparents. We affirm.
At oral argument the parties advised the court that the grandfather has since died. As the parties agree, the grandfather's death renders the following issues moot: (1) the father's arguments pertaining to the grandfather's alleged unsuitability as a guardian, and (2) the grandparents' motion to strike certain references contained in the father's brief.
Background. We briefly summarize the facts found by the judge, supplemented with uncontroverted evidence from the record. At the time the guardianship petition was filed, Geneva and her older brother, John, were in the custody of the father. Geneva was born prematurely in 2004 and spent a prolonged period of time in the hospital after her birth. When she was two months old, she had double eye surgery to correct her vision. She continues to have eye problems, which will require "constant supervision."
A pseudonym.
The father has a history of substance abuse and a history of dating women with substance abuse issues. When Geneva was six years old, her mother committed suicide by taking pills, with Geneva next to her in bed. At the time of trial in this case, the father's issues with substance abuse were ongoing: he was terminated from a prescription pill program in 2014 for failure to report for a pill count and drug screen; he admitted at trial that he was addicted to opiates and used street drugs for six months or longer in 2014; and he failed numerous court-ordered drug tests, including several in 2014 and one on September 24, 2015.
The incident that precipitated the filing of the guardianship petition occurred on July 31, 2013, when Geneva was eight years old. At around 7:45 p.m. that day, the grandparents were called to the father's apartment to take care of Geneva. The father was not home, and his then wife, Susan, was in the house sleeping. Geneva was outside on her bike, unsupervised and unfed.
A pseudonym.
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When the father eventually came home, he was under the influence of some sort of substance. He and the grandparents became involved in an altercation, during which he threatened the grandfather and struck him with both fists, leaving serious bruises on his chest. The next day, the grandparents sought and obtained an abuse prevention order against the father. Several days later, the grandparents learned that Susan had committed suicide.
On August 8, 2013, the grandparents filed a petition for guardianship of both Geneva and John. A week later, a judge issued a decree appointing the grandparents temporary guardians. Subsequently, the father stipulated to a decree on the grandparents' petition as to John, agreeing that permanent guardianship by the grandparents would be in the "best interest of the child."
Trial on the grandparents' petition as to Geneva was held in September of 2015. In November of 2015, the judge issued a decree finding the father currently unfit to parent Geneva and awarding permanent guardianship to the grandparents. The decree provided for the father to have visitation with Geneva; the length of the visits, and whether they would be supervised or unsupervised, depended on the father's compliance with drug testing requirements set out in the decree.
Discussion. 1. Unfitness. In a guardianship proceeding, there must be clear and convincing evidence to support the judge's ultimate conclusion that a parent is unfit to further the best interests of his child. See Guardianship of Clyde, 44 Mass. App. Ct. 767, 773 (1998). The judge's subsidiary findings are reviewed only for clear error. See Adoption of Elena, 446 Mass. 24, 30–31 (2006).
Here, the judge's determination of unfitness was based on the father's ongoing issues with substance abuse and the effect they had on his ability to care for Geneva. The father raises no claim that the judge clearly erred in finding that his drug use was ongoing. Instead, he argues that the judge failed to draw the requisite nexus between his drug use and his unfitness as a parent. We disagree. While "a [drug] habit, without more, [does not] translate [ ] automatically into legal unfitness to act as a parent," Adoption of Katharine, 42 Mass. App. Ct. 25, 34 (1997), the evidence in this case established that the father's drug use was one of several factors that made him unable to provide for Geneva's needs. As the judge found, the father exhibited impulsive and violent behavior—most significantly, during the July 31, 2013, incident, when the father hit the grandfather with enough force to leave serious bruises on his chest. See Custody of Vaughn, 422 Mass. 590, 595 (1996) ("[A] child who has been ... the spectator of [domestic] abuse suffers a distinctly grievous kind of harm"). In connection with that same incident, the father left Geneva unsupervised and unfed during the evening hours. The judge also determined that the father did not have an appropriate place for Geneva to live, as he was renting a single room in a house. Furthermore, although Geneva's eye problems will require "constant supervision," the evidence established that the father had not taken her to see an ophthalmologist in over a year.
In addition, the judge appropriately considered the improvement that Geneva made after she was placed in the grandparents' care. See Adoption of Terrence, 57 Mass. App. Ct. 832, 835 (2003). She became outgoing and happy, made many friends, and was engaged in various extracurricular activities. Although she was still in grief counselling over the deaths of her mother and Susan, she was starting to open up about both women and articulate how much she misses them. The grandparents also got Geneva new eyeglasses, which helped her to see better, as she told the court-appointed guardian ad litem (GAL). Moreover, the judge properly took into account Geneva's wish to stay in the grandparents' home, while continuing to see the father at visits. See Adoption of Nancy, 443 Mass. 512, 518 (2005), quoting from Care & Protection of Georgette, 439 Mass. 28, 36 (2003) ("A judge should consider the wishes of the children in making custodial determinations, and those wishes ‘are entitled to weight in custody proceedings' ").
Unlike in Adoption of Katharine, supra, therefore, this is not a case where the judge based his decision solely on the fact that the father had a drug habit. Rather, the evidence showed that the father's drug use was a factor, among others, that contributed to his inability to provide acceptable care for Geneva. Considering these factors in their totality, we conclude that clear and convincing evidence supports the judge's determination that the father was presently unfit to further Geneva's best interests.
2. Subsidiary findings. The father also challenges several subsidiary findings made by the judge. As the parties all agree, one of those findings was clearly erroneous: the judge found that Geneva had not had visits with the father without John being present, when, in fact, Geneva had visits alone with the father on at least two occasions. Nonetheless, the judge's ultimate finding of unfitness was not based on any negative behavior that the father exhibited during visits. To the contrary, the judge acknowledged that the visits were "going well" and that "[Geneva] enjoys the visits with her Father and wants to keep seeing him." Thus, as the error did not affect the ultimate outcome, it was harmless. See Adoption of Peggy, 436 Mass. 690, 702 (2002) ("minor" factual errors were harmless because they "relate[d] only marginally, if at all, to the judge's ultimate conclusion of unfitness").
None of the father's remaining challenges demonstrates clear error. The GAL's testimony and report support the judge's finding that the grandparents were called to the father's apartment on July 31, 2013, to take care of Geneva; the father's own testimony supports the judge's finding that he missed one visit; and the father's financial statement supports the judge's finding that he has a weekly income of $1,005. And in any event, these findings had, at most, only marginal relevance to the judge's conclusion that the father was unfit. Any errors were therefore harmless. See ibid.
3. Admission of drug test results. The father next contends that the judge erred in admitting the drug test results from September 24, 2015, which was after the trial concluded, without giving the father an opportunity to present evidence in rebuttal. We conclude that the father waived this argument by not raising it below. The judge stated at the start of trial that he intended to "keep the evidence open for the sole purpose of getting the results of a drug test." The father did not object. Although he did raise an objection later in the trial, it is clear that he was objecting not to the judge's decision to keep the evidence open, but to the underlying order that he submit to a drug test. Moreover, when the test results were received, the father did not ask the judge for the opportunity to submit additional evidence. The father thus failed to preserve his objection to the admissibility of the results. See Adoption of Kimberly, 414 Mass. 526, 534–535 (1993).
Although we deem the issue waived, we note that the judge's decision to keep the evidence open was precipitated by the father's own failure to comply with a court-ordered hair follicle test in August of 2015, before the start of trial. The father missed that test, claiming that he was out of State and unavailable until September 2. When he presented himself for the rescheduled test, his hair was freshly cut and cropped short, making it impossible for a sample to be collected. The father admitted that, as of the date of trial, September 11, he had no drug test results to submit to the court. Thus, even had the father preserved his objection, we could not say that the judge abused his discretion in admitting the September 24 test results, given that no results were previously available due to the father's own conduct. See Adoption of Olivette, 79 Mass. App. Ct. 141, 148 (2011) (evidentiary rulings reviewed only for abuse of discretion).
4. Suitability of grandparents as guardians. Finally, the father contends that the judge ignored evidence that the grandparents would not be suitable guardians for Geneva. As noted, the father's arguments regarding the grandfather are now moot. We will therefore address only his arguments as to the grandmother.
As an initial matter, it is unclear, and the father does not explain, what relevance the purported unsuitability of the grandmother has on the disposition of this appeal. Whether the grandmother is a suitable guardian is not pertinent to whether the judge erred in finding the father unfit. We also note that the father's arguments are undercut by the fact that he consented to the grandparents' petition as to John, agreeing that it would be in John's best interests for the grandparents to have permanent guardianship.
In any event, the father's arguments all go to the weight of the evidence and the credibility of the witnesses, issues that are within the sound discretion of the judge. See Custody of Two Minors, 396 Mass. 610, 618 (1986). The father claims that it is the grandmother, not he, who is violent and vindictive, but that assertion merely reflects his own interpretation of the evidence; the judge was entitled to reach a contrary conclusion. The father also contends that the judge ignored his testimony that the grandparents gave John "Jell-O shots" at a wedding. The GAL testified, however, that John told her that the father and Susan gave him the shots. We defer to the judge's assessment of the credibility of the witnesses. See ibid.
Decree affirmed.