This appeal concerns a Juvenile Court judge’s denial of a father’s petition for removal of his daughter’s guardian pursuant to G. L. c. 201, § 5.
Background. We summarize the facts from the judge’s well supported findings. On May 20, 1998, Cheyenne was bom in Springfield. The mother had become pregnant during a brief relationship with the father.
In 2004, the father returned to Springfield. In 2005, he identified himself as Cheyenne’s father to the guardian and expressed his wish to become acquainted with the child. The guardian agreed to a visit before Christmas. During that visit, Cheyenne did not talk to the father, although she interacted with his two sons.
Soon afterward, the father and the guardian entered into an agreement for five visits to begin in February, 2006. Generally, the visits went poorly. On the first occasion, Cheyenne hid under the table and refused to interact with him. During other visits, she engaged reluctantly with the father. In April, 2006, the father and the guardian entered into mediation, during which the father met five more times with Cheyenne. Some of these visits were positive.
In May, 2007, Dr. Victor Carbone, a licensed psychologist, visited with the father, the guardian, and Cheyenne for a parenting evaluation. Although he observed little interaction between
The parties began family therapy in late 2007. The father secured the therapist. Over the course of six sessions with that therapist, Cheyenne became upset, moody, stressed, and angry. Carbone provided a list of other therapists.
The judge credited Carbone’s opinion (1) that no established relationship existed between Cheyenne and the father, despite the father’s efforts to bond with her; (2) that she did not want to live with him and wanted to see him less frequently; (3) that she resisted discipline and coercion
Upon these findings, the judge ruled that the father was unfit to parent Cheyenne and that it served her best interests to remain in the care and custody of the guardian. The judge ordered monthly visitation with the father.
Analysis. The father contends (1) that the judge improperly found him unfit by reason of his failure to pursue his custodial rights until 2005; and (2) that the judge inadequately substantiated her findings of a “secure attachment” between the guardian and child and of a harmful impact upon Cheyenne from removal of the guardianship.
Under G. L. c. 201, § 5, “in a dispute between a person seeking to become a child’s guardian and a legal parent of a child, custody belongs to the legal parent, unless the parent is found to be unfit.”
Contrary to the father’s first contention, the judge did not ground her finding of unfitness upon the father’s earlier failure to exercise his custodial rights.
Massachusetts law has long recognized the relativity of parental fitness. A parent may be fit to raise one child but unfit to rear another. See Richards v. Forrest,
The judge found also a lack of any bond between the father and Cheyenne. Even after three years of visits, mediation, and family therapy, she continued to resist the father’s role and preferred not to live with him. The judge acknowledged the father’s efforts to establish a bond with Cheyenne but accurately found them unsuccessful.
The judge weighed the role of the guardian. She found that the guardian had provided little or no assistance to the forma
Finally, the father argues that the judge failed to make sufficiently detailed findings of the bond between Cheyenne and the guardian. See Adoption of Katharine,
Conclusion. Clear and convincing evidence supports the judge’s determination that the father, while “a good father to his two sons,” does not presently fit the role of the father to Cheyenne. The unfitness results from a parenting style (authoritarian) in conflict with the child’s habitual behavior (defiant) and from the continuing absence of a bond between father and daughter. The presence of a bond between the child and her longtime guardian and the likely trauma to her of its severance further define the child’s best interests.
The judge has provided for potential change. Her final orders require monthly visitation by the father, permit his sons and stepdaughter to accompany him, provide him with access to
Judgment affirmed.
Notes
General Laws c. 201, § 5, was repealed by St. 2008, c. 521, §§ 21, 44. The statute was replaced by G. L. c. 190B, § 5-204(íz), inserted by St. 2008, c. 521, § 9. As in R.D. v. A.H.,
The father knew that the mother was pregnant but believed that the child was not his. The judge found that the father knew or should have known of the strong probability that the unborn child was his.
The father’s two sons are Cheyenne’s half-brothers. The father had married. His wife had one young daughter, with whom Cheyenne would also interact. The trial court record contains no evidence of any deficiencies in the father’s performance as a parent to his sons and his stepdaughter.
The guardian ceased therapy with the first therapist because the father had a pre-existing therapeutic relationship with her.
Prior to the father’s entry into her life, Cheyenne had worked with a therapist to help her with problems of in-school behavior, sleep, and aggression.
The judge credited Carbone’s diagnosis of oppositional defiant disorder for Cheyenne.
“The . . . court may, upon the written consent of the parents or surviving parent, order that the guardian shall have such custody; and may so order if, upon a hearing and after such notice to the parents or surviving parent as it may order, it finds such parents, jointly, or the surviving parent, unfit to have such custody; or if it finds one of them unfit therefor and the other files in court his or her written consent to such order. . . . The court may revoke the appointment of a guardian if the party petitioning for revocation proves a substantial and material change of circumstances and if the revocation is in the child’s best interest.” G. L. c. 201, § 5. The mother consented to the guardian’s petition for custody of Cheyenne in 1999.
The judge found that the father knew or should have known that Cheyenne was his child when the mother was pregnant. It was not, however, the ground of her ultimate finding of unfitness. The judge’s subsidiary finding was not improper. See Adoption of Jenna,
We emphasize that in this case the totality of these factors creates the determinations of unfitness and best interests. The clash of an authoritative parental practice with a child’s opposition is not, by itself, the determinant of unfitness.