In re Kayla

• Docket Number: 22-P-588
• Decision Date: 29 August 2023
• Parties: GUARDIANSHIP OF KAYLA.
• Court: Appeals Court of Massachusetts

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GUARDIANSHIP OF KAYLA.

No. 22-P-588

Appeals Court of Massachusetts

August 29, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The guardian, the child's maternal grandmother, appeals from a decree allowing the father's petition to terminate the guardianship of the child and resume parental duties. See G. L. c. 190B, § 5-212 (a). Following a three-day trial in the Probate and Family Court, the judge found the father fit to parent the child, terminated the guardianship, and awarded custody to the father.^[2] On appeal, the guardian contends that the judge erred in finding the father fit to parent, as well as in denying the guardian's requests to appoint a guardian ad litem and to order visitation for the guardian. We see no abuse of discretion or error of law, and affirm.

1. Fitness.

"[P]arents have a fundamental liberty interest in the care, custody, and management of their

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children." Matter of Hilary, 450 Mass. 491, 496 (2008). Although a guardianship displaces a parent's rights, a parent retains the right to "petition for removal of a guardian on the ground that removal would be in the best interest of the ward." G. L. c. 190B, § 5-212 (a). See Guardianship of Kelvin, 94 Mass.App.Ct. 448, 453 (2018). "The burden of proof rests with the guardian to establish the [parent's] unfitness by clear and convincing evidence." Guardianship of Cheyenne, 77 Mass.App.Ct. 826, 829 (2010).^[3] Unfitness is evidenced by "grievous shortcomings or handicaps that would put the child's welfare . . . much at hazard." Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). In addition to proving unfitness, the guardian must also show that continuation of the guardianship is in the best interest of the child. Guardianship of Kelvin, supra at 456. We review the trial judge's decision for abuse of discretion or clear error of law. See Guardianship of Cheyenne, supra at 829-830.

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Here, there was no error in the judge's ruling that the guardian failed to meet her burden of proving the father unfit. The guardian argues that the father struggles with ongoing substance abuse issues, fails to meet the child's medical needs, and frightens the child, but the judge addressed each of these issues with detailed findings that were supported by the record. See Custody of Eleanor, 414 Mass. 795, 799 (1993). The judge found that after the father consented to the guardianship so that he could work on his sobriety, he promptly obtained mental health and addiction treatment, regularly provided negative drug tests, and had been sober for over one year at the time of the trial. The judge also considered that the father regularly visited the child in both supervised and unsupervised settings, and cared appropriately for the child by cooking, doing laundry, and helping with the child's schoolwork. The judge found that although the father had refused to attend a Zoom meeting with the child's doctor and had been...