MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case concerns a mothers petition to remove a guardianship over her son. See G. L. c. 190B, § 5-212 (a). At the close of the guardians and childs cases-in-chief, the mother moved for judgment pursuant to Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974). See Mass. R. Dom. Rel. P. 41 (b) (2). The Probate and Family Court judge ruled in the mothers favor on the motion, terminated the childs guardianship, and restored custody to the mother. On appeal, the child contends that the judge abused her discretion in evaluating certain evidence and in her ultimate determination of the mothers parental fitness.
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We affirm.
Guardianship removal proceedings. “It is well established that ‘parents have a fundamental liberty interest in the care, custody, and management of their children.’ ” Guardianship of Kelvin, 94 Mass. App. Ct. 448, 453 (2018), quoting Matter of Hilary, 450 Mass. 491, 496 (2008). Establishment of a guardianship displaces that right but does not extinguish it, and a parent or “[a]ny person interested in the welfare of a ward ․ may petition for removal of a guardian on the ground that removal would be in the best interest of the ward.” G. L. c. 190B, § 5-212 (a). Determination of the best interest of the child in turn requires determination of the petitioning parents fitness to parent that child. See Guardianship of Kelvin, supra at 454. In Guardianship of Kelvin, we specified the precise framework to be used:
“[T]he judge shall determine, with detail and specificity, first, whether the [petitioner] has presented some credible evidence showing some change in circumstances from the initial appointment of the guardian,[4] and second, whether the guardian has established, by clear and convincing evidence, that the [petitioner] remains currently unfit and that [the childs] best interest would be served by continuation of the guardianship.”
Id. at 456. “On appellate review, we determine whether the trial judge abused her discretion or committed a clear error of law.” Guardianship of Cheyenne, 77 Mass. App. Ct. 826, 829-830 (2010).
Factual findings. Many of the childs challenges stem from his dissatisfaction with “the judges assessment of the weight of the evidence and the credibility of the witnesses,” which “is entitled to deference.”
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Custody of Eleanor, 414 Mass. 795, 799 (1993). First, the child contends that the judge abused her discretion in refusing to credit testimony from two witnesses, a guardian ad litem (GAL) and the childs bonding expert. In both instances, however, the judge carefully explained the rationale behind her credibility determination, and that rationale was supported by the record. See id.
The GAL conceded on cross-examination that she failed to observe the mother and child together, interview the mothers social worker of three years, or perform criminal background checks on the mother or the guardian. She also admitted that at least some of these omissions were in contravention of relevant GAL standards. The judge was well within her discretion to find that such deficiencies undermined the GALs entire testimony and report.
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See Adoption of Bea, 97 Mass. App. Ct. 416, 429 (2020).
As to the bonding expert, the judge credited the portions of his testimony regarding his direct observations of the child. The judge declined to give weight to the bonding experts testimony regarding the mothers parental fitness, and we see no abuse of discretion in that choice where the expert himself admitted that he did not evaluate the mothers parenting abilities. See Adoption of Bea, 97 Mass. App. Ct. at 429. (“the judge was not required to credit the [partys] experts opinion”).
The child also attacks a number of subsidiary findings as clearly erroneous, but the root of these objections is simply that he takes a different view of the evidence than did the judge. For example, he disagrees with the judges characterization of the mothers mental health and marijuana use, as well as the judges assessment of his ADHD. But in each instance, the judges findings were detailed, specific, and supported by the record. Having overseen the case across a span of years and having presided over multiple days of trial, the judge was ably positioned to evaluate the evidence presented. “None of the judges findings in this case was clearly erroneous. A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the firm conviction that a mistake has been committed.’ ” Custody of Eleanor, 414 Mass. at 799, quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). See Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 n.3 (2003), quoting Anderson v. Bessemer City, 470 U.S. 564, 573-574 (1985) (“Where there are two permissible views of the evidence, the factfinders choice between them cannot be clearly erroneous”).
Parental unfitness. The child also argues that he satisfied his burden of proving the mothers parental unfitness by clear and convincing evidence.
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Parental unfitness “means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the childs [guardian].” Care & Protection of Yetta, 84 Mass. App. Ct. 691, 695 (2014), quoting Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). It must be evidenced by “grievous shortcomings or handicaps that would put the childs welfare ․ much at hazard.” Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). To be clear and convincing, “[t]he requisite proof must be strong and positive; it must be ‘full, clear and decisive.’ ” Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), quoting Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 584 (1977).
Mindful of these standards, and of the fact that the burden of proving the mothers unfitness lay with the child, we see no abuse of discretion in the judges determination that he failed to carry that burden, nor in the companion findings that the mother was instead not unfit, and that continuing the guardianship was not in the childs best interest. The child insists that the mothers temperament, character, and lifestyle are conclusive evidence of her unfitness, but the judge addressed each issue with detailed findings that were supported by the record, as discussed supra. See Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019) (judge must confront “troublesome facts”). The judge also made clear that she carefully assessed the childs special needs and considered the mothers capacity to parent him in light of them. The judge accounted for the childs bond with the guardian, as evidenced by her finding that a gradual transition plan would be appropriate, and properly declined the childs invitation to directly weigh his lifestyle with the guardian against the one he would have with his mother. See Guardianship of Estelle, 70 Mass. App. Ct. 575, 580 (2007) (impact of custody transition on child relevant but comparison between advantages offered by guardian and parent not appropriate).
Furthermore, we do not agree with the childs assertion that the only positive evidence of the mothers fitness was her ability to parent her other two children. (Of course, such evidence “is relevant to her general fitness as a parent and is a consideration in proceedings to remove a guardian.” Guardianship of Kelvin, 94 Mass. App. Ct. at 457.) Numerous other findings bear on the mothers ability to parent this child. For example, the judge found that the mother and child shared an emotional bond, that she cared for him appropriately during unsupervised visitation, and that she was “appropriately knowledgeable, trained and equipped to care” for him going forward. Findings on the adequacy of the mothers residence, food, and furnishings also provide positive evidence of mothers fitness. There was no abuse of discretion in the judges conclusion that the child failed to carry his burden of proving the mother unfit. See id. at 456-457.
Decree affirmed.
FOOTNOTES
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. All references to the childs arguments apply with equal force to the coappellant guardians arguments, as the guardian joined fully in the childs brief, submitted no independent brief, and made no oral argument on appeal.
4
. At oral argument before this court, counsel for the child conceded, and we agree, that the mother satisfied her initial burden of showing changed circumstances.
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. As a threshold matter, we note that the mothers motion was made pursuant to rule 41 (b) (2), under which “a trial judge is not limited to that standard of proof required for a directed verdict ․ [R]ather, the judge is free to weigh the evidence and resolve all questions of credibility, ambiguity, and contradiction in reaching a decision.” Ryan, Elliott & Co. v. Leggat, McCall & Werner, Inc., 8 Mass. App. Ct. 686, 689 (1979).
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. That the GAL report contains evidence of the childs wishes does not override the judges discretion to decide that the report was not credible. See Adoption of Nancy, 443 Mass. 512, 518 (2005) (wishes of child relevant but not decisive or outcome determinative).
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. There is no merit to the childs contention that the judge robbed him of the opportunity to present evidence of his special needs by granting the mothers motion for judgment at the conclusion of the childs and guardians cases-in-chief. The judge did not restrict the childs or guardians ability to introduce such evidence during their cases-in-chief, and the mothers motion was properly made after both had rested. See Mass. R. Civ. P. 41 (b) (2); Mass. R. Dom. Rel. P. 41 (b) (2).