In re Qadir

• Decision Date: 09 August 2021
• Docket Number: 20-P-966
• Court: Appeals Court of Massachusetts
• Parties: GUARDIANSHIP OF QADIR.

100 Mass.App.Ct. 1105

173 N.E.3d 55 (Table)

GUARDIANSHIP OF QADIR.¹

20-P-966

Appeals Court of Massachusetts.

Entered: August 9, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case concerns a mother's petition to remove a guardianship over her son. See G. L. c. 190B, § 5-212 (a ). At the close of the guardian's and child's cases-in-chief, the mother moved for judgment pursuant to Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974). See Mass. R. Dom. Rel. P. 41 (b) (2). The Probate and Family Court judge ruled in the mother's favor on the motion, terminated the child's guardianship, and restored custody to the mother. On appeal, the child contends that the judge abused her discretion in evaluating certain evidence and in her ultimate determination of the mother's parental fitness.³ We affirm.

Guardianship removal proceedings. "It is well established that ‘parents have a fundamental liberty interest in the care, custody, and management of their children.’ " Guardianship of Kelvin, 94 Mass. App. Ct. 448, 453 (2018), quoting Matter of Hilary, 450 Mass. 491, 496 (2008). Establishment of a guardianship displaces that right but does not extinguish it, and a parent or "[a]ny person interested in the welfare of a ward ... may 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 ). Determination of the best interest of the child in turn requires determination of the petitioning parent's fitness to parent that child. See Guardianship of Kelvin, supra at 454. In Guardianship of Kelvin, we specified the precise framework to be used:

"[T]he judge shall determine, with detail and specificity, first, whether the [petitioner] has presented some credible evidence showing some change in circumstances from the initial appointment of the guardian,^{[4 ]} and second, whether the guardian has established, by clear and convincing evidence, that the [petitioner] remains currently unfit and that [the child's] best interest would be served by continuation of the guardianship."

Id. at 456. "On appellate review, we determine whether the trial judge abused her discretion or committed a clear error of law." Guardianship of Cheyenne, 77 Mass. App. Ct. 826, 829-830 (2010).

Factual findings. Many of the child's challenges stem from his dissatisfaction with "the judge's assessment of the weight of the evidence and the credibility of the witnesses," which "is entitled to deference."⁵ Custody of Eleanor, 414 Mass. 795, 799 (1993). First, the child contends that the judge abused her discretion in refusing to credit testimony from two witnesses, a guardian ad litem (GAL) and the child's bonding expert. In both instances, however, the judge carefully explained the rationale behind her credibility determination, and that rationale was supported by the record. See id.

The GAL conceded on cross-examination that she failed to observe the mother and child together, interview the mother's social worker of three years, or perform criminal background checks on the mother or the guardian. She also admitted that at least some of these omissions were in contravention of relevant GAL standards. The judge was well within her discretion to find that such deficiencies undermined the GAL's entire testimony and report.⁶ See Adoption of Bea, 97 Mass. App. Ct. 416, 429 (2020).

As to the bonding expert, the judge credited the portions of his testimony regarding his direct observations of the child. The judge declined to give weight to the bonding expert's testimony regarding the mother's parental fitness, and we see no abuse of discretion in that choice where the expert himself admitted that he did not evaluate the mother's parenting abilities. See Adoption of Bea, 97 Mass. App. Ct. at 429. ("the judge was not required to credit the [party's] expert's opinion").

The child also attacks a number of subsidiary findings as clearly erroneous, but the root of these objections is simply that he takes a different view of the evidence than did the judge. For example, he disagrees with the judge's characterization of the mother's mental health and marijuana use, as well as the judge's assessment of his ADHD. But in each instance, the judge's findings were detailed, specific, and supported by the record. Having overseen the case across a span of years and having presided over multiple days of trial, the judge was ably positioned to evaluate the evidence presented. "None of the judge's findings in this case was clearly erroneous. A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the firm conviction that a mistake has been committed.’ " Custody of Eleanor, 414 Mass. at 799, quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). See Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 n.3 (2003), quoting Anderson v. Bessemer City, 470 U.S. 564, 573-574 (1985) ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous").

Parental unfitness. The child also argues that he satisfied his burden of proving the mother's parental unfitness by clear and convincing evidence.⁷ Parental unfitness "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]." Care & Protection of Yetta, 84 Mass. App. Ct. 691, 695 (2014), quoting Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). It must be 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). To be clear and convincing, "[t]he requisite proof must be strong and positive; it must be ‘full, clear and decisive.’ " Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), quoting Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 584 (1977).

Mindful of these standards, and of the fact that the burden of proving the mother's unfitness lay with the child, we see no abuse of discretion in the judge's determination that he failed to carry that burden, nor in the companion findings that the mother was instead not unfit, and that continuing the guardianship was not in the child's best interest. The child insists that the mother's temperament, character, and lifestyle are conclusive evidence of her unfitness, but the judge addressed each issue with detailed findings that were supported by the record, as discussed supra. See Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019) (judge must confront "troublesome facts"). The judge also made clear that she carefully assessed the child's special needs and considered the mother's capacity to parent him in light of them. The judge accounted for the child's bond with the guardian, as evidenced by her finding...