GUARDIANSHIP OF CHEYENNE.

• Decision Date: 27 September 2010
• Docket Number: No. 09-P-2117.,09-P-2117.
• Citation: 77 Mass.App.Ct. 826,934 N.E.2d 827
• Parties: GUARDIANSHIP OF CHEYENNE.
• Court: Appeals Court of Massachusetts

77 Mass.App.Ct. 826

934 N.E.2d 827

GUARDIANSHIP OF CHEYENNE. ¹

No. 09-P-2117.

Appeals Court of Massachusetts,Hampden.

Argued June 9, 2010.

Decided Sept. 27, 2010.

Jacquelyn D. O'Brien, for the father.

Raymond J. Rigat, for the child.

Deborah W. Kirchwey, for the guardian.

Present: RAPOZA, C.J., SIKORA, & RUBIN, JJ.

SIKORA, J.

This appeal concerns a Juvenile Court judge's denial of a father's petition for removal of his daughter's guardian pursuant to G.L. c. 201, § 5. ² The judge found the father unfit to parent his daughter, concluded that she should remain in the care and custody of her guardian, and ordered monthly visitation with the father. The father challenges the judge's finding of unfitness and her findings concerning his daughter's bond with the guardian. For the following reasons, we affirm.

Background. We summarize the facts from the judge's well supported findings. On May 20, 1998, Cheyenne was born in Springfield. The mother had become pregnant during a brief relationship with the father. ³ The father moved to Puerto Rico during the mother's pregnancy. Cheyenne's maternal great-aunt, assumed responsibility for the child soon after she was born and became her permanent guardian in 2000.

In 2004, the father returned to Springfield. In 2005, he identified himself as Cheyenne's father to the guardian and expressed his wish to become acquainted with the child. The guardian agreed to a visit before Christmas. During that visit, Cheyenne did not talk to the father, although she interacted with his two sons. ⁴ The father requested more visits, but the guardian informed him that Cheyenne refused to see him and asked the father to confirm his paternity. In early 2006, deoxyribonucleic acid testing and a resulting adjudication established his paternity. The father promptly filed a petition to vacate Cheyenne's guardianship.

Soon afterward, the father and the guardian entered into an agreement for five visits to begin in February, 2006. Generally, the visits went poorly. On the first occasion, Cheyenne hid under the table and refused to interact with him. During other visits, she engaged reluctantly with the father. In April, 2006, the father and the guardian entered into mediation, during which the father met five more times with Cheyenne. Some of these visits were positive.

In May, 2007, Dr. Victor Carbone, a licensed psychologist, visited with the father, the guardian, and Cheyenne for a parenting evaluation. Although he observed little interaction between the father and daughter, Carbone recommended visitation. The father and the guardian entered into an agreement for weekly visits. Six or seven visits occurred, during which Cheyenne's reluctance to interact with the father continued. During one visit, Cheyenne refused to leave the guardian's vehicle, repeatedly locked its doors, and hid under the seats when they arrived at the father's home. On another visit, she again refused to leave the guardian's van. Consequently, Carbone recommended suspension of the visits and family therapy for the father and Cheyenne. Before the suspension, one more visit occurred, during which the father took Cheyenne with his children to have pictures taken: although Cheyenne gladly sat with the children, she refused to have her picture taken with the father.

The parties began family therapy in late 2007. The father secured the therapist. Over the course of six sessions with that therapist, Cheyenne became upset, moody, stressed, and angry. Carbone provided a list of other therapists. ⁵ The parties met with some of them. Cheyenne did not respond well to the process. At Carbone's suggestion, family therapy ceased until Cheyenne's personal therapist determined that she was ready to benefit from it. ⁶

The judge credited Carbone's opinion (1) that no established relationship existed between Cheyenne and the father, despite the father's efforts to bond with her; (2) that she did not want to live with him and wanted to see him less frequently; (3) that she resisted discipline and coercion ⁷ ; (4) that the father's transitional plan called for a complete change to Cheyenne's life and reflected his forceful style of parenting; (5) that the father's transitional plan would not improve his relationship with Cheyenne and that removal of her from the guardian's care would cause her great trauma; and (6) that, because Cheyenne did not yet trust the father, his attempts to acquire custody of her caused fear and further distrust of him. Furthermore, Cheyenne herself stated to the judge that she did not want to live with the father and that she preferred to continue living with the guardian.

Upon these findings, the judge ruled that the father was unfit to parent Cheyenne and that it served her best interests to remain in the care and custody of the guardian. The judge ordered monthly visitation with the father.

Analysis. The father contends (1) that the judge improperly found him unfit by reason of his failure to pursue his custodial rights until 2005; and (2) that the judge inadequately substantiated her findings of a “secure attachment” between the guardian and child and of a harmful impact upon Cheyenne from removal of the guardianship.

Under G.L. c. 201, § 5, “in a dispute between a person seeking to become a child's guardian and a legal parent of a child, custody belongs to the legal parent, unless the parent is found to be unfit.” ⁸ R.D. v. A.H., 454 Mass. 706, 711, 912 N.E.2d 958 (2009). While the “critical inquiry” in custody disputes is a finding of parental unfitness, a determination of the “ ‘best interests of the child’ is the touchstone of the analysis.” Guardianship of Estelle, 70 Mass.App.Ct. 575, 579, 580, 875 N.E.2d 515 (2007), quoting from Adoption of Nancy, 443 Mass. 512, 515, 822 N.E.2d 1179 (2005). The tests of parental unfitness and the child's best interest “are not separate and distinct but cognate and connected.” Id. at 580, 875 N.E.2d 515, quoting from Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641, 328 N.E.2d 854 (1975). Put differently, parental unfitness “is a standard by which we measure the circumstances within the family as they affect the child's welfare.” Ibid. The burden of proof rests with the guardian to establish the father's unfitness by clear and convincing evidence. See R.D. v. A.H., supra at 712, 912 N.E.2d 958. On appellate review, we determine whether the trial judge abused her discretion or committed a clear error of law. Adoption of Elena, 446 Mass. 24, 30, 841 N.E.2d 252 (2006).

Contrary to the father's first contention, the judge did not ground her finding of unfitness upon the father's earlier failure to exercise his custodial rights. ⁹ The judge carefully considered a variety of factors concerning the father's parental fitness for Cheyenne's needs.

Massachusetts law has long recognized the relativity of parental fitness. A parent may be fit to raise one child but unfit to rear another. See Richards v. Forrest, 278 Mass. 547, 553, 180 N.E. 508 (1932); Petition of the Department of Public Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 589, 421 N.E.2d 28 (1981). No evidence indicated any deficiency in the father's performance as a parent to his two sons and his stepdaughter. The fitness of a particular parent will hinge upon both “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.” Guardianship of Estelle, 70 Mass.App.Ct. at 581, 875 N.E.2d 515. In this instance, the judge assessed the father's parenting style as aggressive, strict, and authoritarian. That parental mode, she determined, would be ineffective and detrimental because Cheyenne was currently a defiant child resistant to discipline. With justification, she concluded that the father would be presently unable to parent Cheyenne.

The judge found also the lack of any bond between the father and Cheyenne. Even after three years of visits, mediation, and family therapy, she continued to resist the father's role and preferred not to live with him. The judge acknowledged the father's efforts to establish a bond with Cheyenne but accurately found them unsuccessful.

The judge weighed the role of the guardian. She found that the guardian had provided little or no assistance to the formation of a relationship between the father and daughter. However, the guardian's behavior had never advanced to active obstruction of the father's efforts to bond with his daughter. Cheyenne had lived with the guardian for ten years and had developed a firm bond with...