Background
This matter arose from consolidated care-and-protection and guardianship proceedings in Norfolk Juvenile Court, both concerning a minor identified by the pseudonym Ezekiel. The Department of Children and Families (DCF) had obtained a care-and-protection finding in February 2023 establishing that Ezekiel was in need of care and protection and that his mother was unfit. The mother did not appeal that ruling. Following the father’s stipulation to his own unfitness and consent to guardianship in June 2023, DCF was awarded permanent custody. Ezekiel was then placed with his maternal grandmother, with whom he had lived, aside from brief periods at a group home and a detention facility, since March 2022.
At a July 2025 guardianship hearing, the mother opposed appointment of the maternal grandmother, arguing that DCF had not proven her unfitness and that the grandmother was not a suitable guardian. After the trial judge entered a decree granting the guardianship and appointing the grandmother, the mother appealed. On appeal she raised, for the first time, a claim that DCF had failed to establish her unfitness by clear and convincing evidence as of the hearing date. She also argued that the grandmother’s appointment was an abuse of discretion because Ezekiel had engaged in delinquent behavior while in her care.
The Court’s Holding
A panel of Judges Meade, Sacks, and Wood affirmed the guardianship decree on both grounds. On the unfitness issue, the court held that the mother had waived the argument by failing to raise it before the trial judge. Citing the settled rule that an issue not presented to the trial court may not be raised for the first time on appeal, the court catalogued the ways in which the mother’s conduct had affirmatively foreclosed the issue: her counsel did not object when the judge framed the hearing as a guardianship hearing only; when asked whether the mother sought return of custody, counsel said “no”; counsel objected to questioning about the mother’s fitness as “not germane” to the guardianship; no fitness argument was made in closing; and counsel raised no objection when the judge issued findings without addressing fitness as a contested issue. The court rejected the argument that the judge’s written conclusions—which contained passing fitness language—demonstrated the issue had been placed in dispute, explaining that a guardianship analysis typically requires a preliminary unfitness finding and the judge was likely recording the factual basis for the record rather than treating fitness as genuinely contested.
On the guardianship appointment itself, the court applied an abuse-of-discretion standard and found none. G. L. c. 190B, §§ 5-204 and 5-206, authorize appointment of any person whose appointment would serve the minor’s welfare and best interest. The court credited the trial judge’s factual findings: the grandmother had been a stable and consistent presence in Ezekiel’s life for years, actively engaged with his school and individualized education program, coordinated his medical and dental care, supported his behavioral treatment, and maintained family relationships. Ezekiel himself testified that he felt safe and comfortable in his grandmother’s home and wanted her to have guardianship. See Care & Protection of Georgette, 439 Mass. 28, 36 (2003) (children’s positions based on mature expression are entitled to weight in custody proceedings). As for the delinquent behavior, the court affirmed the judge’s characterization that it reflected “a young adult who is making his own poor decisions” regardless of the structure the grandmother provided—not inadequate caretaking. The mother’s failure to nominate any alternative guardian further supported the appointment.
Key Takeaways
- An unfitness challenge is waived on appeal when counsel’s conduct at trial—express statements, objections to fitness-related evidence, and silence at the close of proceedings—collectively shows that fitness was not placed in dispute; the presence of incidental fitness language in a judge’s written conclusions does not revive the waived issue.
- Under G. L. c. 190B, § 5-207 (a), a trial judge has broad discretion to appoint as guardian any person whose appointment serves the minor’s best interest, and that determination will be reversed only for a clear error of judgment in weighing the relevant factors. See Adoption of Hugo, 428 Mass. 219, 225 (1998).
- A child’s expressed preference for a particular guardian is entitled to weight when it reflects mature expression.
- Delinquent behavior by a child in a guardian’s care does not by itself establish inadequate caretaking; courts may attribute such conduct to the child’s own choices rather than deficiencies in the guardian’s home.
Why It Matters
This decision serves as a practical reminder for attorneys representing parents in care-and-protection and consolidated guardianship proceedings: every issue to be preserved for appeal must be affirmatively raised before the trial court. The preservation rule applies with full force in the Juvenile Court context. Here, the mother’s counsel apparently concluded that contesting fitness was unnecessary to oppose the guardianship—but that judgment call forfeited the argument entirely on appeal. Practitioners should ensure that any contested legal issue is clearly placed before the trial judge, ideally on the record, and that the client’s position is stated explicitly rather than left to inference from the nature of the proceeding.
The case also underscores that a child’s own stated preferences carry meaningful weight in guardianship proceedings. Where a minor has lived with the proposed guardian for years, expresses comfort and trust, and the guardian has demonstrated active engagement in education, medical care, and behavioral treatment, reversal on best-interest grounds will be difficult. This is a Rule 23.0 summary decision, not binding precedent, but it is citable for its persuasive value under M.A.C. Rule 23.0 and applies settled Massachusetts appellate authority.