Opinion
19-P-123
11-05-2019
GUARDIANSHIP OF BEAU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
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. 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, and because her findings as a whole are impermissibly sparse. We affirm.
The mother of the child consented to the guardianship appointment and is not a party to this appeal. The mother admitted that she was "not presently fit to have the full care of [the child]."
The father also filed a complaint for custody pursuant to G. L. c. 209C. That matter was consolidated with the guardianship petition for trial. After granting the guardianship, the judge dismissed the complaint for custody. The father does not appeal from the judgment of dismissal.
Background. The child was born in 2015. The mother and the father never married. After the child's birth, the mother and the father lived with the maternal grandparents (guardians). While the mother and the father lived together, the father exhibited rapid mood changes, acted out in anger and frustration, and broke a television and air conditioner at the guardians' home. The father also perpetrated several incidents of domestic violence against the mother. In one such incident, while she was pregnant with the child, the father "struck her causing her to fall to the ground." In another incident, the father pushed her out of bed to the floor while she was holding the infant child. On another occasion, the father attempted to strangle the maternal grandfather as he attempted to intervene in an argument between the mother and the father. The father moved out of the guardians' home in or about January 2016. The father claimed that he moved out of the home after the Department of Children and Families (DCF) became involved and advised him that he and the mother could not live together with the child. The child has primarily lived in the guardians' home since his birth, and continuously since May 2016.
At one point, the maternal grandmother obtained a restraining order against the father.
In May 2016, the guardians petitioned for guardianship of the child. Both the mother and the father consented to the temporary guardianship. The father, after the appointment of counsel, later objected to the guardianship and sought custody of the child. The judge issued a temporary order of guardianship, and extended it several times. The father had weekly supervised parenting time with the child at the Tempo Center (Tempo). In April 2017, the judge suspended the father's parenting time following an altercation at Tempo between the father and a man he believed to be the mother's new boyfriend. After the police arrived to investigate the incident, they arrested the father on an outstanding warrant. The judge reinstated the father's supervised parenting time at Tempo in June 2017.
Following a trial on the guardians' petition, the judge issued a decree and order of appointment of guardianship. In her findings supporting the decree, the judge determined that the father had ongoing issues with managing his emotions, including anger and frustration, which "was evident during his testimony" at trial. Although the father had "gained some insight about his behavior" through "therapeutic intervention," those services had not been consistent. The judge acknowledged the close bond shared between the father and the child, and noted that the mother and the guardians support the father's continued relationship with the child.
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 maternal grandparents. The judge granted the father continued supervised parenting time at least two times each week. She further ordered that "[u]pon written verification of [the] [f]ather's completion of at least six months of his treatment compliance with consistent individual counseling, all occurring after the date of this [d]ecree, [the] [f]ather's parenting time (of the same frequency and duration) shall occur unsupervised during the daytime hours in a public place chosen by the [g]uardians."
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 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 [ § 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 that the evidence and the judge's consideration thereof was insufficient to justify the decree and order of guardianship. He first claims that two of the judge's subsidiary findings of fact are clearly erroneous. Initially, he contends that the judge erred in finding that the father "would have rapid mood changes and on several occasions broke objects when angry." Contrary to this argument, there was testimony at trial that the father had "put holes in [the guardians'] walls," "kicked ... an air conditioner out the window," and "smashed [televisions]." There was also testimony that the father had "actually broken pieces of [the maternal grandmother's] car before ... with his anger." The mother similarly testified to the father's anger issues and his breaking of the air conditioner and television. As the record supports the judge's findings, there was no error.
The father next takes issue with the judge's finding that during a disagreement with the maternal grandmother, the father "charged at her, yelling close to her face, all in the presence of [the child]. The Tempo staff intervened." The trial transcript reflects testimony from the maternal grandparents related to the above-referenced incident that was consistent with the judge's findings. The father argues, however, that the details supplied by the judge stemmed from an abuse prevention order affidavit that was not admitted in evidence. Assuming arguendo that the judge erred in considering the affidavit, we discern no prejudicial error. Discounting the modest details provided by the abuse prevention order affidavit from the judge's findings, the record demonstrates ample evidence of the father's repeated history of acting out in anger and frustration, domestic violence, and physical attacks against people and objects. See Adoption of Peggy, 436 Mass. 690, 702 (2002) ("Because [the incorrect factual findings] relate only marginally, if at all, to the judge's ultimate conclusion of unfitness, we consider them harmless").
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, confirm that the judge provided a 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, the abundant evidence of the father's anger issues, history of arrests, history of domestic violence, homelessness, and failure to consistently and successfully engage in necessary services. Accordingly, we affirm.
Nothing in this decision should be construed to indicate that the father does not love his child or has not made efforts to become a better parent. To the contrary, the judge credited the father's attempts to work on his anger management, and further found that the father "sincerely loves his son," with whom he shares a close bond.
We disagree with the father's contention that the decree and order should be set aside because the judge failed to consider on the record and make findings on each of the factors enumerated in G. L. c. 210, § 3 (c ). By its terms, G. L. c. 210, § 3 (c ), applies to adoption petitions. See Adoption of Cadence, 81 Mass. App. Ct. 162, 167 (2012) ("In cases where the judge seeks to dispense with parental consent to adoption, the judge is required to consider the factors enumerated in G. L. c. 210, § 3, in assessing parental unfitness"). Compare G. L. c. 210, § 3 (c ), with G. L. c. 190B, §§ 5-204 & 5-206. The father does not cite any authority that requires a judge to explicitly consider these factors in a guardianship proceeding. Compare Guardianship of Estelle, 70 Mass. App. Ct. 575, 580 n.5 (2007).
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Decree and order of appointment of guardian affirmed.