GUARDIANSHIP OF GAZI v. << (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In August of 2017, a judge of the Probate and Family Court granted permanent guardianship of Gazi, who was then nine years old, to Gazi's temporary guardian, who had taken care of him since he was two weeks old. Gazi's biological parents (parents) appeal, contending among other things that the judge did not find that either of them was unfit to further Gazi's best interests -- findings that are required if a judge is to award permanent guardianship over the parents' objection. We agree that the judge failed to make these necessary findings. We accordingly vacate the judge's decree and order and remand for further proceedings consistent with this memorandum and order.

Background. Gazi was born in 2008. The mother voluntarily left him in the care of Mary Smith (a pseudonym) and her partner when he was two weeks old. Smith and her partner have been Gazi's caretakers since that time. Temporary guardianship was originally granted to Smith based upon her petition in October of 2008, when Gazi was eight months old. The circumstances of that guardianship appointment and its subsequent extensions are not clear in the record, and there is no decision or order in the appellate record that finds either parent unfit in 2008 or 2009, or indeed at any time.

The parents filed several petitions to remove Smith as guardian between 2009 and 2013, all of which were denied. On March 20, 2014, a judge of the Probate and Family Court again denied a petition to remove Smith as guardian, instead ordering that “[Smith] shall remain the Guardian of [Gazi] until he has completed Kindergarten.” The judge also ordered that the mother and father could have parenting time with Gazi on alternate weekends, and for the duration of summer vacation. Finally, the judge in 2014 placed conditions on the parents, including that the mother continue seeing a therapist and that both parents refrain from using drugs during their parenting time. The 2014 order did not provide whether Smith would remain as guardian once Gazi finished kindergarten, though it appears the parties continued to act as if that was the case.

In 2017, Smith and the parents each filed petitions with the Probate and Family Court -- Smith sought appointment as permanent guardian, and the parents sought to remove her as guardian. It is not clear from the record what precipitated the dueling petitions, or where the case stood procedurally at that time. Gazi was apparently still residing with Smith, at least during the school year.

In any event, the matter came on for hearing on August 8, 2017, and the trial judge treated the proceeding as a petition for appointment as guardian rather than a petition seeking removal of an existing guardian. The mother was represented by counsel at the hearing; the father was not. The hearing was brief. The parties did not submit any evidence, and the mother's attorney did not ask any questions; rather, the judge led the proceeding and gave the parties and their witnesses opportunities to make statements on the record.

On August 9, 2017, the judge issued a decree and order naming Smith permanent guardian of Gazi, together with a two-page rationale. In the rationale, the judge noted first that Gazi had been in the care of Smith and her partner for nine years, and was significantly bonded to them. The judge explained that although the mother had made significant improvements in her life, the judge had various concerns because of the mother's past history with the Department of Children and Families (DCF), her use of marijuana during her most recent pregnancy, and her failure to continue counseling and treatment for her mental health issues. The judge's only reference to the father was in the last paragraph of the rationale, and reads: “Without question [Gazi]'s mother, father and extended family love him and he loves them too.” The judge concluded by stating that she could not find that “returning [Gazi] to his mother's primary care at this time in his life, is in his best interest.” There is no mention in the record of any abuse of Gazi by the parents, nor is there evidence of neglect. The mother and father timely appealed from the August 9, 2017, decree and order.

Discussion. On appeal the mother and father point to numerous errors and constitutional deficiencies that they contend require reversal of the August 9, 2017, permanent guardianship decree and order. We need not address all of their arguments in order to decide this appeal, however.³ In awarding permanent guardianship to Smith, the judge was required to make a finding that the mother and father were unfit to further the best interests of the child. As no such finding was made, and indeed, as there is no finding of unfitness anywhere in the record, we vacate the August 9, 2017, decree and order and remand for further proceedings.

Where a petitioner seeks guardianship of a child, he or she has the burden to show that a guardianship would be in the child's best interests and that the parent is “unfit.” See R.D. v. A.H., 454 Mass. 706, 712 (2009). Mere failure to exercise custodial rights in the past does not support a conclusion that the parent is currently unfit. Bezio v. Patenaude, 381 Mass. 563, 577 (1980). In Bezio, the court emphasized that a finding of unfitness “must be predicated upon parental behavior which adversely affects the child.” Id. at 579. In general a finding of unfitness arises from actions of neglect, abuse, or like actions harmful to the child.⁴ Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997) (“Endangerment of the child from abuse, neglect, or other activity harmful to the children must be in the picture”).

Here, the judge's findings are not sufficient to support the appointment of Smith as permanent guardian. There is no discussion of the standards for finding a parent unfit, and no finding of unfitness as to either parent. See Adoption of Yale, 65 Mass. App. Ct. 236, 240-241 (2005). The judge made no findings as to the father, except to say that Gazi loves him. As to the mother, the judge noted her past interactions with DCF and her mental health issues, but failed to explain how those facts affected her ability to parent Gazi. See Adoption of Katharine, 42 Mass. App. Ct. at 31 (parent's cocaine habit alone was not sufficient to find unfitness without some evidence demonstrating that it had previously or would inevitably lead to abuse or neglect). Moreover, the judge's rationale does not identify any instances of abuse or neglect of Gazi by either parent. From what appears in the record, the parents have had extensive contact with Gazi at least since 2014 -- including having him for entire summer vacations -- without any evidence of material adverse effects.

Under these circumstances the August 9, 2017 permanent guardianship decree and order must be vacated, and the matter remanded so that the parties can offer evidence and the judge can make findings and apply the correct standard for determining whether the guardian should or should not be appointed.⁵

So ordered.

Vacated and remanded.

FOOTNOTES

3.   The father also argues that he was neither appointed counsel, nor informed of his right to have one appointed, and that the judge-led proceeding did not comport with due process. The mother too argues that the judge violated her due process rights by “silencing her trial counsel.” The mother also raises a claim of ineffective assistance of trial counsel. Although our decision rests on alternative grounds, our holding should not be read as an indication that these claims have no merit. We note that the parent of a minor child “shall have and be informed of the right to counsel” in a hearing on guardianship, Guardianship of V.V., 470 Mass. 590, 593 (2015), quoting G. L. c. 119, § 29, and that where a judge engages in questioning the witnesses or clarifying the evidence, “the rule is one of reason.” Adoption of Norbert, 83 Mass. App. Ct. 542, 546-547 (2013), quoting Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810 (1996). We further note that the accompaniment of counsel at trial is not the same as the effective assistance of counsel at trial. See Adoption of Azziza, 77 Mass. App. Ct. 363, 366-369 (2010).

4.   As noted, the judge treated the hearing as one seeking appointment of a guardian, rather than seeking removal of an existing guardian. We review her decision on that basis, but note that we would reach the same result if the proceeding were considered a petition for removal. The difference in a proceeding on a petition for removal would be that the parents have the initial burden to show changed circumstances since the guardian was appointed, Guardianship of Kelvin, 94 Mass. App. Ct. 448, 456 (2018), after which the burden still falls on the party seeking to displace the parents to demonstrate unfitness by clear and convincing evidence. Id. That initial burden, to show changed circumstances since Smith was appointed guardian in 2008, would have been satisfied here.

5.   The current custody arrangements will remain in effect pending further proceedings in the Probate and Family Court. Unless the parties can reach a temporary agreement on custody, a hearing on temporary custody arrangements should occur expeditiously.