In re Darrell

• Decision Date: 11 January 2022
• Docket Number: 21-P-405
• Citation: 180 N.E.3d 1019 (Table)
• Parties: CARE & PROTECTION OF DARRELL.
• Court: Appeals Court of Massachusetts

180 N.E.3d 1019 (Table)

CARE & PROTECTION OF DARRELL.¹

21-P-405

Appeals Court of Massachusetts.

Entered: January 11, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge found the father currently unfit to parent his son Darrell.³ The judge adjudicated Darrell in need of care and protection and committed him to the custody of the Department of Children and Families (department). See G. L. c. 119, § 26. The father appeals. Although the father concedes that he is currently unfit, he argues that the judge erred in granting permanent custody to the department and denying the petition for appointment of the paternal grandparents as guardians of Darrell. We affirm.

Background. We summarize the relevant facts found by the judge, reserving some details for our discussion. The department filed this care and protection petition in September 2017, alleging that almost two year old Darrell was at risk for neglect. The allegations stemmed from a G. L. c. 119, § 51A, report (51A report) and the subsequent investigation: a caller to the department's "hotline" reported that Darrell had been "pushed ... into a neighboring Chinese restaurant" during a fight between the mother and an "unknown acquaintance." The father was also present and reportedly "broke [up]" the fight.⁴ During the G. L. c. 119, § 51B, investigation, the department struggled to contact the parents and, therefore, to adequately assess their ability to maintain a safe and stable environment for Darrell. The mother did not appear for the first scheduled meeting with a department social worker, and the social worker was unable to reach her by telephone. The next day, when the social worker called again, the father answered and told the social worker that the mother and Darrell were staying with the paternal grandparents (grandparents). After a week of no further communication, the social worker conducted an unannounced visit to the grandparents’ apartment. Both grandparents were home; they reported that Darrell had been staying with them, as his parents were "house hopping." Put together, the parents’ homelessness, their failure to respond to outreach by the department, and the report of fighting in the presence of Darrell was sufficiently concerning that the department sought and was granted temporary custody of Darrell.⁵ Darrell was placed in a foster home in September 2017, where he has lived since that time.⁶

In June 2018, the grandparents expressed to the department their interest in becoming a foster placement for Darrell. The department denied their application, however, based on the size of their apartment and the paternal grandfather's criminal record. Then, in March 2019, the father filed a guardianship petition in the Juvenile Court seeking appointment of the grandparents as guardians of Darrell. The guardianship petition was heard concurrently with the hearing on the merits of the care and protection petition. The trial began in August 2019 and, after eleven days of testimony spanning sixteen months, the judge issued a decision in November 2020.⁷ The judge found that the father was currently unfit to parent Darrell, denied Darrell's oral request to terminate the father's parental rights, and committed Darrell to the custody of the department. The judge also found that it was not in Darrell's best interests that the grandparents be appointed guardians and denied the guardianship petition.

Discussion. The father asserts that the judge evaluated his guardianship petition under an incorrect legal standard. He argues that the judge treated the guardianship petition as a "competing plan" to the department's petition to gain permanent custody of Darrell. The father further asserts that, regardless of the standard employed, it was error to deny the guardianship petition.

The plain language of the controlling statute forecloses the father's first argument. General Laws c. 119, § 26 (b ), authorizes a judge, after determining that a parent is currently unfit, to commit the child to the custody of the department. See Care & Protection of Rashida, 488 Mass. 217, 220-221 (2021). The judge "also may make any other appropriate order ... about the care and custody of the child as may be in the child's best interest." G. L. c. 119, § 26 (b ). Such "appropriate orders" may include transferring custody of the child to a person who is presented to the court pursuant to a G. L. c. 190B, § 5-206, petition, as a proposed guardian, where the petitioner establishes that the appointment will serve the child's best interests. See G. L. c. 119, § 26 (b ) (2) ; G. L. c. 190B, § 5-206. See also Guardianship of Kelvin, 94 Mass. App. Ct. 448, 456 (2018). "In making a custody determination, the ‘driving factor’’ is the best interests of the child" (citation omitted). Adoption of Garret, 92 Mass. App. Ct. 664, 676 (2018).

Moreover, there was no error in treating the guardianship petition as a competing plan. Indeed, the very reason that the two petitions are heard together is because a guardianship is frequently proposed as an alternative disposition to an order committing the child to the department's custody under G. L. c. 119, § 26. See Guardianship of Phelan, 76 Mass. App. Ct. 742, 749 (2010) ("Although each case must be decided on its own peculiar facts, where competing plans for the placement of a child are presented to the judge through care and protection and guardianship proceedings ..., the matters generally should be heard together"). The judge's reference,⁸ in her conclusions of law, to G. L. c. 210, § 3, is nothing more than a recognition that "the tests ‘best interests of the child’ in the adoption statute and ‘unfitness of the parent’ in the guardianship statute reflect different degrees of emphasis on the same factors[;] ... the tests are not separate and distinct but cognate and connected." Guardianship of Estelle, 70 Mass. App. Ct. 575, 580 (2007), quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975).

Whether a permanent guardianship with the grandparents "was in [Darrell's] best interests presents ‘a classic example of a discretionary decision’ to which we accord substantial deference." Adoption of Jacob, 99 Mass. App. Ct. 258, 272 (2021), quoting Adoption of Peggy, 436 Mass. 690, 705, cert. denied sub nom. S.T. v. Massachusetts Dep't of Social Servs., 537 U.S. 1020 (2002). In this regard, we discern no abuse of discretion in the judge's determination that the grandparents were unprepared to meet Darrell's needs. The judge had "significant concerns" as to the paternal grandmother's ability to parent Darrell, and this concern is well-supported by evidence of her difficulties managing the behavior of her own children when they were in her care.⁹ The record also reveals a pattern of domestic violence between the mother and the father. The judge was entitled to consider the previous occasions when the mother and the father stayed at the grandparents’ home and to conclude that placing Darrell in that home risked ...