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

22-P-1106

GUARDIANSHIP OF WILLIAM.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father of the minor child appeals from a decree and 

order of the Probate and Family Court granting guardianship of 

the child to the child's maternal grandparents.2 In essence, the 

father contends that we should vacate the decree because the 

record does not support the Probate and Family Court judge's 

finding of unfitness.3 We affirm.4

Background. The child was born in 2010. The mother and 

the father never married. The child lived with the mother and 

the father for the first three years of his life but spent most 

weekends at the maternal grandparents' home. In 2014, the 

1 A pseudonym.

2 The mother of the child died in February of 2020. 3 Our review is hampered somewhat by the lack of citations in the 

father's brief and his failure to comply with the rules of 

appellate procedure. That notwithstanding, we have reviewed the 

entire record on appeal, and address the substance of his claims 

herein. 

4 Nothing in this decision should be construed to indicate that 

the father does not love his child. 
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2

mother was hospitalized for several weeks. During this period, 

the child spent a weekend with the grandparents. When the 

grandparents did not return the child to the father at the end 

of the weekend, the father called the police. The father then 

allowed the child to spend another weekend with the 

grandparents, after which he contacted the police again. The 

police went to the grandparents' home, but upon their arrival 

learned that the mother was living in the home as well, and thus 

did not remove the child.5 The mother remained there until her 

death in February 2020, and the child continues to reside there. 

From approximately 2014 until November 2020, the father "had 

virtually no role" in the child's life, and the child was cared 

for by the mother and the grandparents. 

The father has a criminal history. In 2016, he was 

incarcerated for assault and battery on a family member, and 

"[a]round the same time, he served another sentence in the house 

of corrections for assault." The mother also had a restraining 

order against the father. 

On February 4, 2020, while the mother was on life support, 

the grandparents petitioned for guardianship of the child and 

obtained temporary guardianship. On February 12, 2020, the 

father filed an objection to the guardianship. The temporary 

5 Following the mother's release from the hospital, she and the 

child moved into the grandparents' home. 
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3

order of guardianship was extended several times. The father 

had weekly visits with the child, either in-person or virtual. 

The father was also encouraged to communicate with the child via 

letter or e-mail, as discussed infra. 

Following a trial on the grandparents' petition, the judge 

issued a decree and order of appointment of guardianship. In 

her findings supporting the decree, the judge determined that 

the "father lacks the capacity" to meet the child's needs, and 

that his communication with the child "demonstrate[s] that he 

does not understand [the child's] needs, particularly in light 

of the recent loss of his mother." The judge also highlighted 

the "strong, positive bond" that the child has with the

grandparents, finding that "the forced removal of [the child] 

from their care would likely seriously harm [him]." 

The judge found, by clear and convincing evidence, that the 

father was presently unfit and that it would be in the child's 

best interest to live under the guardianship of the 

grandparents. The judge increased the father's parenting time

with the child, "so that [the father and the child] may work on 

improving their relationship." 

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), citing Matter of Angela, 

445 Mass. 55, 61-62 (2005). However, a judge may appoint a 
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guardian for a minor if, among other reasons, the judge "finds 

the parents, jointly, or the surviving parent, 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 that a qualified person seeks appointment, venue 

is proper, the required notices have been given, 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.

In the present case, the father argues, inter alia, that 

the evidence and the judge's consideration thereof was 

insufficient to justify the decree and order of guardianship. 

He first claims that the judge erred in finding that he "is 

unfit to parent [the child] in light of the lengthy period 

during which [the child] has been raised by, and has bonded 

with, the [grandparents], and in which [the] [f]ather has had 
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virtually no role in [the child's] life." Contrary to this 

argument, the evidence at trial supported the judge's finding 

that the child has lived with the grandparents for the past 

eight years, and that the father did not reach out to the 

grandparents since the child has been in their care. There was 

also evidence that the mother "had a restraining order against 

the father" while she and the child were living with the 

grandparents, and that the father spent time in the house of 

correction. Both of these circumstances contributed to the 

father's absence from the child's life. Where, as here, the

record supports the judge's finding, we cannot conclude that the 

judge's finding was clearly erroneous. See Adoption of Paula, 

420 Mass. 716, 729 (1995) ("judge's finding[] [of unfitness] 

will be disturbed only it [it] [is] clearly erroneous"). 

The father next challenges the judge's findings that he 

"lacks the capacity to meet the special needs of [the child] 

upon removal" and that "his letters to [the child] demonstrate 

that he does not understand [his] needs, particularly in light 

of the recent loss of his mother." The claim is unavailing. 

The grandmother testified that the father told the child in 

letters "to man up and come live with [him]." The father also 

wrote letters telling the child that the "grandfather was 

playing childish games," that the grandparents are "liars" and 

"sick in the head," that the father "loves [him] so much that it 
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made mom jealous of [him]," and that the grandparents "are 

unreliable people who care more about themselves than about 

him." The judge determined that the father's letters 

"demonstrate that he does not understand [the child's] needs, 

particularly in light of the recent loss of his mother." The 

totality of the facts in the record supports this determination. 

Indeed, the record shows that the father had a practice of

"consistently put[ting] emphasis on [his] own psychological 

state, instead of attending to [the child's] emotional needs," 

thus contributing to the judge's finding of his unfitness.

Adoption of Rhona, 63 Mass. App. Ct. 117, 122 (2005). 

The father also takes issue with the judge's finding that

"it is in [the child's] best interests for the [grandparents] to 

be appointed his co-guardians." We discern no error in this 

determination in view of the substantial testimony at trial 

describing how the child "has formed a strong, positive bond 

with [the grandparents] and the forced removal of [the child] 

from their care would likely seriously harm [him]." The 

grandparents testified to their strong bond with the child and 

their deep involvement in his life and daily routine. See 

Estelle, 70 Mass. App. Ct. at 581-583. The judge credited this 

evidence and the record supports her finding that it is in the 

child's best interests to remain with his grandparents and that 

they be appointed his coguardians.
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Finally, we are not persuaded by the father's argument that 

the judge's findings as a whole are impermissibly sparse and do 

not support a finding of unfitness. The record, including the 

trial transcript and the judge's written findings, supports and 

confirms the judge's careful, thorough, and attentive review and 

consideration of the evidence. Furthermore, the record supports 

the judge's determination of unfitness, by clear and convincing 

evidence, in view of, inter alia,6 the evidence of the father's 

lengthy absence from the child's life, criminal history, and 

inability to understand and meet the child's emotional needs. 

Accordingly, we affirm. 

Decree and order of 

appointment of guardian, as 

corrected, affirmed.

By the Court (Wolohojian, 

Neyman & Shin, JJ.7),

Assistant Clerk

Entered: January 16, 2024.

6 To the extent we have not discussed other claims raised by the 

father, they have not been overlooked. We see nothing in them 

that warrants overturning the judge's findings. See 

Commonwealth v. Sosa, 493 Mass. 104, 124 n.12 (2023). 7 The panelists are listed in order of seniority.