In re Guardianship of Estelle

• Decision Date: 29 October 2007
• Docket Number: No. 06-P-1612.,06-P-1612.
• Citation: 70 Mass. App. Ct. 575,875 N.E.2d 515
• Parties: GUARDIANSHIP OF ESTELLE.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

875 N.E.2d 515

70 Mass. App. Ct. 575

GUARDIANSHIP OF ESTELLE.¹

No. 06-P-1612.

Appeals Court of Massachusetts, Worcester.

Argued May 17, 2007.

Decided October 29, 2007.

Roxann C. Tetreau, Worcester, for the father.

Mark I. Zarrow, Worcester, for the petitioners.

Present: COWIN, BROWN, & MEADE, JJ.

COWIN, J.

The biological father of the minor child, Estelle, appeals from a judgment of the Probate and Family Court granting a guardianship of the child to the child's maternal uncle and aunt, with the father appointed as coguardian. The father asserts that, given the judge's finding that he is not an unfit parent, he is entitled to outright custody of the child without the limitations inherent in the vesting of guardianship authority in others. In support of the judgment, the uncle and aunt argue that they had parented the child for seven years by the time of trial; she is happy, well adjusted and developing normally; she visits regularly with her father; and a precipitous transfer of custody would be harmful to her.

We credit the judge with a sensitive attempt to sort out the complexities of the case and arrive at a compromise that was in the child's best interests. His solution, however, cannot stand as a matter of law because the father is correct that, absent a finding of unfitness on his part, the judge is without authority to require that he share parenting decisions with others. We remand for further findings in accordance with the discussion below.

1. Background. The facts and prior proceedings are not disputed. The child was born to the mother and father in December, 1997. By that time, the relationship between the mother and father had ended. The mother died in April, 1998. The mother's brother and his wife immediately assumed care of the child and, on May 6, 1998, were appointed the child's temporary guardians. Since that time, the uncle and aunt have provided the child's primary physical care, and the child has developed a close relationship with the her uncle and aunt and their two biological children. The uncle and aunt have performed all of the normal parental functions, including providing health insurance for the child; seeing to her religious education; participating in her academic and extracurricular activities; and taking her on family vacations. The child refers to the uncle and aunt as "Dad" and "Mom," although she knows that they are not her biological parents. She has thrived in the course of their parenting.

The father had, at the time of trial, played a far less significant role in the child's life. The child did visit with the father on a regular basis and refers to him as "Daddy Sam."² Despite a recommendation by a guardian ad litem that he attend parenting classes, the father did not do so. On March 9, 1999, a probate judge ordered that the father pay $50 weekly to the uncle and aunt in child support. The father's first five support checks were returned for insufficient funds, and it was not until he was found in contempt that he began to comply with the support orders. The judge found that the father "has not made the effort necessary to be the Child's primary parent" and that he has "failed to take an active enough role in the Child's life."

While the father was apparently perfectly willing to have the child raised in large part by the uncle and aunt, he was not content that they be vested with legal authority in the matter, and on July 24, 1998, he filed a motion to terminate the guardianship. On March 9, 1999, a guardian ad litem was appointed. This ushered in an inexplicable period of an additional six and one-half years during which the case was "investigated."³ The case was finally tried on September 19 and 20, 2005. The judge found "that totally separating the Child from [the uncle's and aunt's] home would be damaging," and that a "continued role of all the adults in her life would be in the child's best interest until she was older and better able to cope with more significant change." At the same time, he concluded that there was "insufficient evidence to establish that the [father] was completely unfit as a parent in order to prevent him from having continuing contact with the Child."

In accordance with these findings and rulings, the judge created a coguardianship and relieved the father of the obligation to make child support payments. He provided in the judgment for a specific schedule with respect to the sharing of the child by the coguardians and ordered the father to perform all of the recommendations of the guardian ad litem. He concluded the judgment by stating: "In balancing the best interest[s] of this child and the fitness of the Father, the Court finds that complete termination of this guardianship would have severe and drastic effects on this child who all agree is presently very well adjusted and happy sharing both homes."

2. Fitness of the father. The judge attempted to maintain the conditions in which the child had thrived from the time of her infancy, while still permitting the child's surviving biological parent both to have a present role in her life and to expand the scope of that role if appropriate. While that may well have been a desirable objective, his findings did not permit its adoption.

Custody of a child belongs to a parent unless that parent is unfit. See Bezio v. Patenaude, 381 Mass. 563, 576, 410 N.E.2d 1207 (1980); Care & Protection of Zelda, 26 Mass.App.Ct. 869, 871, 534 N.E.2d 7 (1989); Guardianship of Yushiko, 50 Mass.App.Ct. 157, 159-160, 735 N.E.2d 1260 (2000); Care & Protection of Lillith, 61 Mass.App.Ct. 132, 143, 807 N.E.2d 237 (2004). Here, the relationship of the judge's subsidiary findings regarding the father's fitness and his ultimate finding on that subject are ambiguous. The subsidiary findings are generally negative with respect to the father's parenting. Thus, following the child's birth, the child and her mother lived with the child's maternal grandmother until the death of the mother, after which the child was cared for by her maternal uncle and his wife. A contempt finding was required before the father paid child support. Neither the father nor members of the father's family had called the child at her residence. The father had not involved himself in the child's school life or extracurricular activities. He had never taken the child on a vacation. He had failed to attend recommended parenting classes. Despite the uncle's and aunt's practice of never denying him visits with the child, the father had, in the judge's words, "failed to take an active enough role in the Child's life."

The negative subsidiary findings are not offset by any findings that are positive in character. They leave an over-all impression that the father, while not abusive or neglectful when the child was with him, was indifferent regarding his role as a parent and, as noted supra, had been perfectly willing to have the uncle and aunt shoulder the greater share of the child's upbringing. That there was some uncertainty in the judge's mind is reflected in his apparently carefully worded ultimate conclusion that there was "insufficient evidence to establish that the [father] was completely unfit as a parent in order to prevent him from having contact with the Child."

As suggested above, the judge attempted to steer to a middle ground between fitness and lack of fitness on the part of the father, to the end that he could maintain some degree of control of the situation without jeopardizing the father's ability to develop a relationship with the child. The problem with that approach is that our 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 parent is fit to raise his or her child, and if, as the judge decided here, the evidence is insufficient to establish the contrary, a parent's right to the custody of his child must be acknowledged. See Custody of a Minor, 389 Mass. 755, 765, 452 N.E.2d 483 (1983); Guardianship of Yushiko, 50 Mass.App.Ct. at 159-160, 735 N.E.2d 1260.

We believe that, in the circumstances, a remand is appropriate so that the judge, with or without additional evidence as he deems desirable,⁴ may reconsider his subsidiary findings; make additional subsidiary findings if necessary; and come to a conclusion whether the father is fit or unfit. We remand because of the apparent ambivalence of the judge on the subject, and for the reason we express infra. We do not seek to dictate an outcome. The judge who hears the evidence, observes the parties, and is most familiar with the circumstances remains in the best position to make the judgment. See Petition of the New Bedford Child & Family Serv. to Dispense with Consent to Adoption, 385 Mass. 482, 488-489, 432 N.E.2d 97 (1982).

The decision should be informed by a recognition that the fitness of a parent cannot be considered in the abstract. Fitness is not merely the absence of abuse or neglect; nor is it a set of abilities or characteristics that are the same in all circumstances. On the one hand, we defend the right of a parent to the custody of his or her child, yet we recognize that the right will not be enforced if it results in harm to the child, in other words, if the parent is "unfit." See Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 642, 328 N.E.2d 854 (1975). The "critical inquiry" in such cases is finding parental unfitness by clear and convincing evidence. Adoption of Nancy, 443 Mass. 512, 515, 822 N.E.2d 1179 (2005). See Custody of a Minor, 389 Mass. at 766, 452 N.E.2d 483; Care & Protection of Erin, 443 Mass. 567, 570, 823 N.E.2d 356 (2005). At the same time, the "best interests of the child" is the touchstone of the analysis. See, e.g., Adoption of Nancy, supra. An earlier decision went so far as to state that, "[i]n determining whether [a parent is]...