NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1069

GUARDIANSHIP OF JOSETTE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother of Josette appeals from a decree and order of 

the Probate and Family Court granting guardianship of Josette to 

the child's maternal grandmother. The mother argues that we 

should vacate the decree because the record does not support the 

judge's finding of unfitness. We affirm. 

Background. Josette was born in 2014. She was seven and 

eight years old at the time of trial; mother was twenty-nine

years old. Josette lived with the mother from birth until 

September 2018. During this period, the mother and Josette

lived in several different places. For the first six months of 

the child's life, they lived with friends of the mother in 

Connecticut. They then moved to Worcester, where they lived 

with the mother's cousin for approximately one year. The 

following year, they moved in with another cousin for a year. 

1 A pseudonym.
2

During this period, the Department of Children and Families 

(DCF) received multiple 51A reports alleging neglect of the 

child by the mother. One report alleged that the mother had 

neglected Josette by discontinuing formula when the child was 

only six months old. DCF supported the allegations and 

established an action plan for the mother, which included 

participating in parenting classes and securing public benefits 

and stable housing.2 

After living in Worcester for approximately two years, the 

mother and Josette moved in with the mother's then boyfriend, 

who physically abused both the mother and Josette. The 

boyfriend hit Josette with a belt. In response to this abuse, 

the mother dropped Josette off at the maternal grandmother's 

home, and then requested that the maternal grandmother bring

Josette to live with the child's aunt, where she lived for 

approximately eleven months. During this time, the mother 

continued to live with her then boyfriend, who continued to 

abuse her physically and financially. In 2019, the mother moved 

in with her brother for short a period of time, but was asked to 

move out after having male visitors which her brother had 

2 DCF received two additional 51A reports alleging neglect 

of the child, however, one report was ultimately not supported

and the other report was screened out. 
3

forbidden. In July 2019, after leaving her brother's house, the 

mother moved in with the maternal grandmother. 

After Josette and the mother had lived apart for eleven 

months, Josette in August 2019 joined the mother at the maternal 

grandmother's home. During this time, the maternal grandmother 

took Josette to all of her medical appointments, enrolled her in 

preschool, and cared for her when she was sick. In December 

2019, the grandmother informed the mother that she would need to 

obtain alternative housing because the grandmother planned to 

travel to Florida for an extended period of time. When the 

mother did not obtain housing by the time the grandmother was 

leaving, the grandmother took Josette with her to Florida to 

allow the mother to focus on obtaining housing. Although the 

mother planned to bring Josette back to Massachusetts within a 

month, that did not happen and Josette lived in Florida with the

grandmother until May 2020, when they returned to Massachusetts. 

During this time, the mother communicated by phone with the 

child, but had no in person contact with her. 

On July 10, 2020, the grandmother filed a petition for 

guardianship of Josette and requested that she be appointed 

temporary guardian to prevent Josette from being removed from 

her care. The court found that no emergency existed to require 

the appointment of a temporary guardian and denied the 

grandmother's request. The court also prepared an action plan 
4

to provide services for the mother to help her to improve her 

parenting skills. Josette continued to reside with the 

grandmother during this time and the mother was permitted to 

have designated parenting time with the child until the trial

took place on September 19, 2022.

Partly because of the physical abuse Josette suffered at 

the hands of the mother's previous boyfriend, Josette has been 

diagnosed with generalized anxiety disorder and post-traumatic 

stress disorder. The judge found that the mother has dismissed 

the significance of Josette's mental health symptoms and needs. 

The mother at one point called the child's distressed reaction 

"fake." Josette has also expressed to her therapist that she 

feels fear and anxiety about the mother not always being 

truthful with her, being left alone by the mother, being 

physically harmed, and being forced to leave the home of her

grandmother. The judge also found that the mother "has actively 

interfered with [the child's] progress" by telling the child not 

to share certain information with her therapist and by 

preventing the child from receiving psychiatric care. 

At the time of trial, the mother experienced instability in 

both her housing and income. While the mother did have her own 

apartment, the trial court found that the mother's unstable 

income "potentially puts this housing at risk." The judge found 

that the mother "has also shown a general disinterest in 
5

parenting [Josette]. She has missed parenting time 

opportunities and ha[d] failed to involve herself at all in 

[Josette's] education, therapeutic treatment, or medical care, 

and she ha[d] missed important extracurricular events in 

[Josette's] life." In addition, the judge found that Josette 

"is a child with diagnosed mental health concerns and a need for 

stability and predictability. She needs caregivers who can 

appropriately respond to her [post-traumatic stress disorder] 

triggers. Despite being given various opportunities to do so, 

[the mother] has not demonstrated that she is able to meet 

[Josette's] needs."

Based on the mother's demonstrated inability to meet 

Josette's needs, the judge found, by clear and convincing 

evidence, that the mother was presently unfit and that it would 

be in the child's best interest to continue living with the 

maternal grandmother. The mother appealed.

Discussion. "[P]arents have a fundamental liberty interest 

in the care, custody, and management of their children." Matter 

of Hilary, 450 Mass. 491, 496 (2008). However, a judge may 

appoint a guardian for a minor if, among other reasons, the 

judge "finds the parent[s] . . . to be unavailable or unfit to 

have custody." G. L. c. 190B, § 5-204 (a). See Guardianship of 

Estelle, 70 Mass. App. Ct. 575, 578 (2007) (custody of child 

belongs to parent unless parent is unfit). If a judge "finds 
6

that a qualified person seeks appointment, . . . the conditions 

of [G. L. c. 190B, § 5-204 (a)] have been met, and the welfare 

and best interest of the minor will be served by the requested 

appointment, [the judge] shall make the appointment." G. L. 

c. 190B, § 5-206 (c). "Although the appointment of a guardian 

displaces the parent's rights and responsibilities for the 

duration of the guardianship (except as provided in the decree 

or otherwise by law), it does not terminate them." Guardianship 

of Kelvin, 94 Mass. App. Ct. 448, 453 (2018). Accordingly, "a 

parent retains the right to later petition for modification or 

termination of a guardianship involving their child." Id.

The mother argues here that the evidence was insufficient 

to support the judge's finding of unfitness and that the judge 

therefore erred in granting the decree and order of 

guardianship. While the mother recognizes that she has had 

shortcomings in her parenting of the child, she contends that 

the judge failed to account for her efforts to improve her 

parenting abilities. Contrary to the mother's assertions, the 

judge considered the mother's efforts, but determined that, at 

the time of trial, the mother had not progressed to the degree 

that she was capable of meeting Josette's current needs. The 

judge properly considered Josette's significant mental and 

physical health needs, the mother's inability to provide the 

level of care the child requires, and the mother's role in 
7

aggravating Josette's anxiety and post-traumatic stress. See 

Adoption of Rhona, 63 Mass. App. Ct. 117, 129 (2005). The 

mother has done so by discounting Josette's stress reactions, 

continuing to maintain volatile relationships with male 

partners, and interfering with Josette's therapy by telling her

to conceal information from her therapist. The record supports 

the judge's finding that, in light of Josette's mental and 

physical health status, the mother was not currently capable of 

meeting the child's needs. Id.

The judge also properly considered the strong bond that has 

developed between Josette and the maternal grandmother and 

Josette's therapist's testimony that changes to Josette's home

life would have "some pretty devastating effects." Guardianship 

of Estelle, 70 Mass. App. Ct. 575, 581-582 (2007). While the 

bond between the child and the caretaker is not dispositive in 

guardianship cases, we do consider it as "a factor that has 

weight in the ultimate balance." Adoption of Nicole, 40 Mass. 

App. Ct. 259, 263 (1996). Because Josette has lived with the 

maternal grandmother since 2019 and has expressed anxiety and 

worry about possibly being told that she has to move away, the 

record amply supports the judge's determination that it would be 
8

in Josette's best interest to remain in the maternal 

grandmother's custody. 

Decree affirmed.

By the Court (Rubin, 

Englander & D'Angelo, JJ.3),

Assistant Clerk

Entered: April 4, 2024.

3 The panelists are listed in order of seniority.