50 Mass. App. Ct. 157 | Mass. App. Ct. | 2000
The father appeals from a judgment of the Barn-stable Probate and Family Court denying his petition to remove as guardians of his minor daughter the child’s grandparents.
We summarize those findings of the judge which are uncon
We address first the standard applied by the judge in reaching his ultimate conclusion in this admittedly difficult case. The judge properly recognized that the dispositive issue in this case is whether the father was currently fit to further the welfare and best interests of his daughter. Bezio v. Patenaude, 381 Mass. 563, 576 (1980). Guardianship of Clyde, 44 Mass. App. Ct. 767, 772 (1998). Nevertheless, in deciding this issue, the judge focused chiefly on the best interests of the child. He determined that the emotional, financial, and physical stability that the guardians have provided the child, evidenced by her excellent
Of greater import, however, is the judge’s failure to recognize that the best interests of the child cannot be determined separate and apart from a determination of the current fitness of the father. Bezio v. Patenaude, 381 Mass. at 576-577. “The resolution of any custody dispute involving a . . . parent necessarily begins with the premise that parents have a natural right to the custody of their children.” Guardianship of Clyde, 44 Mass. App. Ct. at 772, quoting from Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981). See Troxel v. Granville, 120 S. Ct. 2054, 2060 (2000). That right is not absolute, for the State, as parens patriae, may interfere with that right to protect a child from serious physical or emotional harm. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at
Here, the judge’s findings regarding the fitness of the father are conflicting. On the one hand, he specifically states that he is “not rendering a determination that the Father is unfit” and, on the other hand, implicitly suggests that the father is unfit when he finds that, “[ajlthough the Father may not be considered to be unfit under other circumstances, given the present state of the facts, it is in the best interests of [the child] that she remain in the physical custody and under the Guardianship of the Guardians.” To the extent that the latter may constitute a conclusion of unfitness, it appears not to be supported by judge’s findings. Those findings consist of á showing of some lack of interest or involvement by the father in the child’s life; the father’s assent to the guardianship and expressed contentment with the visitation arrangement; and the fact that the father cannot offer the child a better life than the guardians presently can.
The mere fact that the father has on occasion shown some lack of interest or involvement in the child’s fife clearly does not rise to the level of disinterest, abandonment, or inattentiveness which demonstrates parental unfitness. See Guardianship of a Minor, 19 Mass. App. Ct. 333, 337 (1985). Nor is there anything in the judge’s findings to support a conclusion that the father is incompetent, indifferent, abusive, or incapable of performing parental obligations which would warrant a finding of unfitness. Richards v. Forrest, 278 Mass. at 552-553. Guardianship of a Minor, 19 Mass. App. Ct. at 336. Likewise, the fact that the father assented to the guardianship and expressed contentment with the visitation arrangement is of no significance since a parent’s ability or interest to parent in the past and/or assent to a guardianship does not dictate the parent’s current fitness. See Duelos v. Edwards, 344 Mass. 544, 545-546 (1962); Bezio v. Patenaude, 381 Mass. at 577. Finally, the comparison of the life the father can offer his child with the “better life” the guardians can provide is inappropriate, for it does not clearly recognize the father’s presumptive right to raise his child. See Custody of a Minor, 389 Mass. at 767. Guardianship of Clyde, 44 Mass. App. Ct. at 772. In sum, none of those findings are sufficient to demonstrate clearly and convincingly that the father is currently unfit to further the best interests of his child.
The father also argues that many of the judge’s findings are
The father also requests counsel fees in this case. The father has not advanced any reason which, in our opinion, justifies an award of counsel fees.
In sum, although we recognize that the guardians have at all times acted in the best interests of the child and the return of the child to her father will prove difficult, we are of the opinion that the judge’s findings do not clearly and convincingly demonstrate the father’s unfitness to further the best interests of his child. We are, thus, constrained to reverse the judgment.
Accordingly, the judgment is reversed, and the action is remanded to the Probate and Family Court for a determination of visitation rights to be afforded the guardians as the grandparents of the child. G. L. c. 119, § 39D.
So ordered.
The maternal grandmother and the maternal step-grandfather are the guardians of the child. The mother of this child did not participate in the litigation. Her whereabouts are unknown.