Opinion
No. 15–P–778.
05-19-2016
GUARDIANSHIP OF VERITY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from the dismissal of her petition for the removal of the paternal grandmother (grandmother) as the guardian of her daughter Verity. We reverse.
The grandmother did not file an appellate brief or present oral argument in this matter.
Background. Verity was born in April, 2009, when the mother was twenty years old and the father was twenty-two years old. Prior to her relationship with the father, the mother had been living in a foster home in which she was placed at the age of twelve after the Department of Children and Families (DCF) removed her from the home of adoptive parents where she was the victim of abuse. The mother and the father never married and, by May, 2010, their relationship had ended. The mother became homeless soon after when she was no longer permitted to remain in a home owned by the father's family. In August, 2010, DCF supported a claim of neglect of Verity by the mother.
In September, 2010, the grandmother petitioned to be appointed Verity's guardian. After initial opposition, the mother and the father both ultimately assented to the petition, and the grandmother became Verity's permanent guardian. Verity has been in the grandmother's official care and custody since she was seventeen months old. During this time, the grandmother has appropriately and consistently worked with Verity's pediatrician, dentist, school professionals, and therapists to insure that Verity's health, safety, education, and mental health needs have been met.
To greater and lesser extents at different times, the mother and, prior to his death in July, 2013, the father, visited with Verity while she was in the grandmother's custody, including overnights with the mother at various temporary residences. After an ill-fated and brief enlistment in the military that took her out of the Commonwealth for several months, the mother entered into a relationship with her current husband (husband). The couple welcomed a son, Adam, in early 2013. After her return from the military, the mother's visitation with Verity gradually expanded. By the time of trial, a temporary order had been entered that provided the mother parenting time with Verity every Friday from 3:45 P.M. to Sunday at 6:00 P.M.; when there was no school on Monday, parenting time extended to 6:00 P.M. on that Monday.
A pseudonym.
The mother and the husband own a three or four bedroom home in which Verity has her own appropriately furnished bedroom. The mother, who was not employed outside of the home at the time of trial, has participated in parenting courses. During visits, the mother has integrated Verity into her life with the husband and Adam with family and age-appropriate activities. The mother and the husband were expecting their second child at the time of trial. The record does not reflect any doubt concerning the mother's fitness to parent Adam or her as yet unborn (at the time of trial) second child with the husband.
On December 27, 2013, the mother filed the instant petition pursuant to G.L. c. 190B, § 5–212, to remove the grandmother as guardian and terminate the guardianship. After a one-day trial in which the mother, the grandmother, the guardian ad litem (GAL), and a clinical social worker familiar with the parties testified, the judge concluded that “[the mother] is not currently fit to parent Verity. At a minimum, she needs to gain a significantly greater knowledge and appreciation of Verity's medical, educational and emotional circumstances before she can be determined to be an appropriate parent to her.” In rejecting the GAL's conclusion that the mother was fit to parent Verity, the judge explained, “while the reports provided background information relevant to the parties and their current situation, it was the lack of meaningful collateral information regarding [the mother's] involvement, understanding and appreciation of Verity's educational [individualized education plan] (IEP), medical [attention deficit hyperactivity disorder ] (ADHD) and emotional needs (ongoing relationship with [the grandmother]/death of her father), as well as the collective testimony regarding [the mother's] impu[l]sivity, poor judgment and lack of patience with Verity that provide the basis to deviate from the recommendations contained therein.”
Discussion. “Custody of a child belongs to a parent unless that parent is unfit.” Guardianship of Estelle, 70 Mass.App.Ct. 575, 578 (2007). “The critical question in cases such as this one, where a biological parent seeks to remove [her] child from the custody of legal guardians, is ‘whether the natural parent is currently fit to further the welfare and best interests of the child .’ “ Guardianship of Clyde, 44 Mass.App.Ct. 767, 772 (1998), quoting from Bezio v. Patenaude, 381 Mass. 563, 576 (1980).
“The ‘critical inquiry’ in such cases is finding parental unfitness by clear and convincing evidence.” Guardianship of Estelle, 70 Mass.App.Ct. at 579, quoting from Adoption of Nancy, 443 Mass. 512, 515 (2005). “To be clear and convincing, the evidence must be sufficient to convey a high degree of probability that the proposition is true.... The requisite proof must be strong and positive; it must be full, clear and decisive.” Care & Protection of Yetta, 84 Mass.App.Ct. 691, 695–696 (2014) (quotations omitted). “On review of the judge's decision, ‘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 his discretion or committed a clear error of law.’ “ Id. at 696, quoting from Adoption of Hugo, 428 Mass. 219, 225 (1998). The judge's findings must stand unless they are clearly erroneous. Custody of Eleanor, 414 Mass. 795, 799 (1993).
In his rationale, the judge wrote that “[w]here a parent is seeking custody of their minor child, the burden is on the proposed guardian to establish, by clear and convincing evidence, that a parent is unfit.” Our cases, however, offer less than clear guidance on the question of which party bears the burden of proof on a guardian removal petition and what that party must prove.
The statute governing the mother's petition is G.L. c. 190B, § 5–212(a), part of the Massachusetts Uniform Probate Code that became effective in 2009. In L.B. v. Chief Justice of the Probate & Family Ct. Dept., 474 Mass. 231, 238 n. 13 (2016), the Supreme Judicial Court has observed recently:
“The provision for removal of a guardian, G.L. c. 190B, § 5–212(a ), speaks of removal when it is in ‘the best interest of the [child].’ Unlike the provision that states the bases for appointment of guardians initially, see G.L. c. 190B, § 5–204(a ), it does not expressly mention parental fitness. Our cases have made clear, however, that consideration of parental fitness, when parental fitness is at issue, will be highly relevant to a determination of a child's best interest. See, e.g., R.D. v. A.H., 454 Mass. 706, 715 (2009) (‘In the context of a custody determination, ... it is essential to recognize that the determination whether a parent is “unfit” is closely intertwined with a consideration of the best interests of the child’); Bezio v.. Patenaude, 381 Mass. 563, 576 (1980) (‘Neither the “parental fitness” test nor the “best interests of the child” test is properly applied to the exclusion of the other’), citing Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975) (stating that ‘the tests ... reflect different degrees of emphasis on the same factors' and ‘are not separate and distinct but cognate and connected’). Judges hearing removal petitions will thus inevitably hear evidence, and be asked to make determinations, concerning parental fitness.”
In L.B., 474 Mass. at 243, the Supreme Judicial Court further noted:
“[T]he plaintiffs ... ask us to ‘issue a directive’ definitively resolving certain questions concerning the burden of proof and the elements of proof on petitions to remove a guardian under G.L. c. 190B, § 5–212.... These matters are not properly before us, and we therefore decline to address them. Some of these questions will undoubtedly need to be resolved in future cases where they are properly raised and preserved in the trial court and fully briefed on appeal, and where the records for deciding them are fully developed. Others might appropriately be addressed by court rules and policies established by the Probate and Family Court or by amendments to the governing statutes.”
In the case before us, there was only brief discussion of the burden of proof at trial, the precise contours of which are difficult to decipher from the transcript. In any event, it does not appear from the record that the grandmother ever expressly challenged the standard adopted by the judge in his rationale, and she has not participated in any way in this appeal. The issue has therefore been waived. See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 833 (2015) (failure to address issue on appeal waives right to appellate review); Foxboro Harness, Inc. v. State Racing Commn., 42 Mass.App.Ct. 82, 86 n. 5 (1997) ; Northern Assur. Co. of America v. Payzant, 80 Mass.App.Ct. 223, 227 (2011).
“Parental unfitness, in this context, means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's [guardian]. Rather, the idea of parental unfitness means grievous shortcomings or handicaps that put the child's welfare much at hazard.” Care & Protection of Yetta, 84 Mass.App.Ct. at 695 (quotation omitted).
Here, the mother challenges the sufficiency of the evidence of her unfitness. Specifically, she contends that the judge could not properly have determined that she is unfit to address the child's medical, psychological, and/or educational needs without supporting testimony from medical, psychological, and/or educational professionals both as to what those needs are and the extent to which the mother is capable of addressing them. She further contends that what testimony there was from the GAL and the clinical social worker supported her fitness.
We agree that the evidence introduced at trial does not rise to the level of a demonstration of unfitness by clear and convincing evidence. See Care & Protection of Jamison, 467 Mass. 269, 281 (2014) (“Where there is insufficient evidence to support a finding, making a determination based on that finding is an abuse of discretion”). To the contrary, the GAL and the clinical social worker both expressed confidence in the mother's ability to parent Verity, saying that in the mother and the grandmother, Verity had two loving, capable parent figures and that this was, in that respect, a “win-win situation” for Verity.
1. The mother's maturity. The judge found that “[i]n spite of the fact that [the mother] has come a long wa[y] to stabilize her life since the summer of 2013 and is now a mother of two other children, she still has issues with immaturity, impulsivity, and appropriately managing her behaviors when dealing with Verity.” The judge seemed to base this conclusion on some of the mother's past behavior as well as more recent incidents.
a. Past conduct. A number of the judge's findings relate to the mother's conduct from 2010 and 2011, several years before the trial in this matter on October 30, 2014. Putting aside the question whether the judge's characterization of the mother's one-time consideration of relocating to Maine and her brief enlistment were fair given the evidence, these incidents, while not so remote as to be completely irrelevant, shed little light on the mother's current parental fitness. See Bezio v. Patenaude, 381 Mass. at 577 (“While it is true that an assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct is appropriate in the determination of future fitness and the likelihood of harm to the child, the critical inquiry is current parental fitness” [quotation omitted] ).
b. Grocery store incident. The judge also focused on a more recent incident reported by the grandmother in which the mother left Verity unattended in her car while she went grocery shopping in May, 2014. According to the grandmother, Verity found her way out of the locked car and was found unattended in the parking lot by a store employee. Although the mother denied under oath that this incident ever took place, the judge determined that the grandmother's “account of the incident was a credible report of [the mother's] statement to the store employee. [The mother's] denial was not deemed credible based on her testimony and presentation.”
The GAL initially did not recall the grandmother's having contacted him about this incident. After the grandmother's counsel's questioning refreshed his memory, the GAL testified that he did not feel that the grandmother's report of this incident justified seeking the court's permission to file an additional supplemental report. Despite the grandmother's testimony that she told the clinical social worker about the incident “right after it happened,” the clinical social worker had no recollection of hearing about this event. The clinical social worker testified, “As a mandated reporter I would have had to call DCF, if I was aware of that.”
We give due deference to the trial judge's assessment of the credibility of the witnesses. See Custody of Eleanor, 414 Mass. at 799 (on appellate review, “the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference”). However, even deferring to the credibility determination about this disputed incident, we note that the standard of parental fitness is not perfection. “[L]ax supervision” confined to “isolated incidents” and not resulting in serious harm to the children, “though troubling,” fails to demonstrate parental inability to provide minimally acceptable care without resorting to “impermissible conjecture.” Care & Protection of Yetta, 84 Mass.App.Ct. at 698.
c. Facebook posts. It appears that the judge also may have resorted to impermissible conjecture in extrapolating parental unfitness from several infelicitous posts that the mother made on social media. In his findings, the judge chronicled several posts that the mother made on Facebook reflective of parental frustration. The kind of occasional venting of frustration through social media on display here does not amount to a “grievous shortcoming” that puts the child's “welfare much at hazard.” Id . at 695. “The issue for determining parental unfitness is not whether the parent is a good one, let alone an ideal one; rather, the inquiry is whether the parent is so bad as to place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.” Ibid. (quotation omitted). A few unseemly comments on social media over a period of months fall far short of a showing that terminating the grandmother's guardianship would place Verity at serious risk of peril. See Bezio v. Patenaude, 381 Mass. at 579 (“A finding that a parent is unfit to further the welfare of the child must be predicated upon parental behavior which adversely affects the child”).
On June 15, 2014, while Verity was in the mother's care, the mother apparently posted the following on Facebook: “Why do I have to scream at the fucking top of my lungs at Verity and she still gives me attitude back.” On August 10, 2014, the mother wrote: “I'm about to snap, crackle and pop on these kids. Both are so mean to each other. Verity went to smack Adam, missed and hit me. She went to take his toys. He is trying to be nice and she is being a brat.” That same day, the mother made a second post which stated, “Nothing better than waking up and your daughter already being up to no good and refusing to listen to you. What the fuck, this going to be one of those days.”
The judge also credited the grandmother's interpretation of a Facebook post the mother made to conclude that the mother had lost Verity at the mall. The grandmother was not present during the incident, nor does it appear that she ever discussed it with the mother. She testified: “I wasn't told about it. I actually read it on Facebook.” The mother's Facebook post itself, as described at trial, appears to have been part of an exchange with one of the mother's Facebook friends. It is vague to the point of opacity. Nevertheless, the judge found that the grandmother “credibly testified that [the mother] posted on Facebook that she lost Verity while shopping with her in the mall.”
The actual Facebook post does not appear in the record. Based on the grandmother's counsel's questioning of the mother, the post apparently read as follows: “I don't think Verity was paying attention though when she saw you because she forgot to follow me. Ha, ha.”
While we defer to the judge's credibility determinations, Custody of Eleanor, 414 Mass. at 799, it does not appear that the grandmother had a basis to testify from personal knowledge about what the mother meant to describe in her post or, more importantly, what did or did not happen in the mall. For her part, the mother testified that Verity was three feet away from her and that she saw right where she was and was calling her name. The grandmother was not in a position to contradict the mother's account, nor does the Facebook post as described in the testimony contradict the mother's explanation. We are “left with the definite and firm conviction that a mistake has been committed” with respect to this finding, and that the finding is therefore clearly erroneous. Ibid. (quotation omitted).
The judge also cited as further evidence of the mother's immaturity her proposal in the context of the ongoing litigation that, should the guardianship be terminated, one overnight visit per month with the grandmother would be sufficient. While desirable, it is not necessarily realistic to expect parties battling for custody to maintain reasonable perspective in the heat of that battle. Moreover, where this testimony implicates grandparent and, possibly, “de facto parent” visitation, Guardianship of Estelle, 70 Mass.App.Ct. at 583, it was likely to be addressed through an appropriate judicial order. The mother in fact testified that she would defer to the judge's prescriptions regarding Verity's well-being in the context of ongoing contacts with the grandmother.
Based on his findings, the judge concluded that, “When Verity is misbehaving, [the mother] exhibits behaviors that indicate she is overwhelmed, frustrated, and lacks the necessary parenting skills to properly and appropriately address the issue that Verity is presenting. These deficiencies will be further compounded by the addition of an infant child.” The evidence of an isolated incident of laxity and indiscreet Facebook posts was too thin a reed on which to base such a sweeping conclusion. The judge's speculation regarding the mother's future ability to cope when her third child arrives, although not illogical, adds little additional support.
2. Verity's ADHD. More substantively, the judge concluded that the mother would be unable to meet Verity's particular needs. This directly implicates the intersection of the “cognate and connected” tests of parental fitness and the best interests of the child. Id. at 580 (quotation omitted). “The specialized needs of a particular child when combined with the deficiencies of a parent's character, temperament, capacity, or conduct may clearly establish parental unfitness.” Care & Protection of Thomasina, 75 Mass.App.Ct. 563, 576 (2009) (quotation omitted). Judges must “balance a parent's capacity to care adequately for a child (i.e., his or her fitness) with that child's best interests, given the child's current circumstances.... At a minimum, the fitness of a particular parent cannot be judged without a consideration of that parent's willingness and ability to care for the child, as well as the effect on a child of being placed in the custody of that parent. One who is fit to parent in some circumstances may not be fit if the circumstances are otherwise. A parent may be fit to raise one child but not another.” Guardianship of Estelle, 70 Mass.App.Ct. at 580–581.
Although there was evidence that Verity had been diagnosed with ADHD, the information adduced at trial was not sufficient to show clearly and convincingly that Verity's ADHD rendered the mother unfit in the circumstances. The uncertainty concerning the underlying causes of some of Verity's behavior was reflected in the GAL's supplemental report, which indicated that according to Verity's pediatrician, Verity's “activity level and attention difficulties may also be, at least in part, an adjustment reaction to her father's death and the ongoing custody dispute between her mother and grandmother.” The GAL testified that in his conversations with Verity's therapist, the clinical social worker, she did not discuss Verity's ADHD. When the social worker herself was asked at trial if Verity has ADHD, she answered somewhat equivocally that Verity “is pretty active.”
Even if we simply assume that Verity's ADHD, for which she is prescribed medication, is the driving force behind problematic behavior, the thin record on this topic does not demonstrate that this condition would demand care and attention beyond the mother's abilities. See Care & Protection of Jamison, 467 Mass. at 289 (“expert psychological testimony would have illuminated each child's individual needs”). The judge stated that the grandmother “testified that the medication was helpful and the court adopts her opinion as accurate and credible.” Assuming that the grandmother had a sufficient basis to make a determination of the medication's efficacy, the record does not support a determination that the mother would not be capable of ensuring that Verity takes her prescribed medication as directed. Although the mother testified that she does not want Verity taking the medication on the weekends, she also explained that Verity's pediatrician supports this approach and, more importantly, that she would follow the recommendations of the pediatrician. The mother's commitment in this regard is confirmed by testimony that, after consultation with the grandmother, the mother agreed to limit Verity's television time during visits in accordance with the pediatrician's recommendations.
In his findings, the judge stated that he afforded “minimal weight” to the mother's testimony that Verity's pediatrician supported her approach of taking Verity off the medication on weekends. The judge, however, did not state that he found the mother not credible on this point.
The judge concluded that “[the mother] does not believe that Verity should take the medication on weekends and in fact does not give it to her (a conclusion that appears to meet her needs more than the child's, stating ‘I want her to be a child on the weekends'). Yet, she fails to make any connection between Verity's behaviors while in her care and the fact that she alone has chosen not to provide her with the medication that alleviates the negative behaviors [the mother] has experienced and complained about in social media.” There was insufficient evidence before the judge to support a finding concerning the effects of the medication (both theoretical and as observed in Verity), Verity's weekend behavior (the nature, frequency, timing, and possible exacerbating factors associated with problematic behavior), or any connection between skipping doses and that behavior.
We understand the inclination to reward the grandmother for her dedication to Verity, both in general and in the particular concern she showed for Verity's ADHD. The judge found that the grandmother “has attempted to provide Verity with every available, reasonable and prudent advantage to manage her ADHD.” However, that the grandmother has done an excellent job of parenting Verity and caring for her individual needs, does not negate the mother's fitness. “[W]e do not transfer a child from his or her parent to other custodians merely because the latter may provide a more advantageous environment for the child's upbringing.” Guardianship of Estelle, 70 Mass.App.Ct. at 580.
The most serious concerns raised at trial in connection with Verity's ADHD were that she requires extra supervision in situations where she might wander off and in the bathroom to help prevent rashes. Despite the grandmother's disputed or conclusory assertions of the mother's failings in this regard, the mother had been caring for Verity every weekend for nearly one year at least by the time of trial and the only evidence of a mismatch between Verity's needs and the mother's abilities came in the form of the mother's Facebook posts, isolated incidents of laxity not resulting in harm to Verity, and a speculative claim made by the grandmother on cross-examination and not otherwise substantiated or incorporated by the judge in his findings that the mother does not adequately monitor Verity's bathroom use to prevent rashes. This does not rise to the level of clear and convincing evidence of unfitness.
3. Verity's educational needs. The judge found that “[the mother] has not participated in the development of Verity's IEP and has no understanding of the contents of the plan.” He went on to observe that she had not inquired about Verity's status at her current school. The judge also chronicled numerous instances where the mother could have been more involved in Verity's life in terms of her schooling, medical appointments, and extracurricular activities.
But the record is devoid of any details concerning Verity's specific educational needs or how they are being met through her IEP. The record also does not provide an adequate basis for the judge to conclude that the mother would be unable or unwilling to participate in the IEP process upon Verity's enrollment in a new school if custody were transferred.
Conclusion. “[O]ur law only recognizes two possibilities: in given circumstances, a parent is either fit or unfit. While the judgment may be on occasion difficult to make, it must be made. We assume without more that a parent is fit to raise his or her child, and if ... the evidence is insufficient to establish the contrary, a parent's right to the custody of [her] child must be acknowledged.” Id. at 579.
The mother may have displayed some signs of immaturity and poor judgment. However, “[w]ithout more, the record here does not reflect the ‘grievous shortcomings' that must underlie a finding of parental unfitness,” which must be shown by clear and convincing evidence. Care & Protection of Yetta, 84 Mass.App.Ct. at 698. There is no question that both the mother and the grandmother love and care for this child very much. But, where the judge's findings do not clearly and convincingly demonstrate the mother's unfitness to further Verity's best interests, the dismissal of the mother's petition must be reversed. See Guardianship of Yushiko, 50 Mass.App.Ct. 157, 161 (2000).
Because we conclude that the judge's denial of the mother's petition to terminate the grandmother's guardianship must be reversed, we need not address the mother's additional contentions concerning denial of her opportunity to present rebuttal testimony at trial and alleged constitutional improprieties in the original guardianship proceeding in 2010.
The judge found that to significantly alter Verity's relationship with the grandmother “would be akin to another loss of a parent for Verity.” The mother's counsel represented at argument that there would be a continuing role for the grandmother in Verity's life. We leave such matters to the parties in the first instance, with recourse to the Probate and Family Court as necessary. The parties also remain free to address any transition issues to the attention of the trial court after the rescript issues.
Decree dismissing petition for removal of guardian reversed.