Opinion
No. 11–P–1190.
2013-02-20
GUARDIANSHIP OF CALEB.
By the Court (KANTROWITZ, KATZMANN & HANLON, JJ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises from a dispute between two sets of grandparents over guardianship of their grandchild. After a five-day bench trial in a Probate and Family Court, the judge awarded sole permanent guardianship of the grandchild to the maternal grandparents and established a visitation schedule for the paternal grandmother. The paternal grandmother then filed a complaint for modification to increase visitation, which the judge dismissed. An amended decree then entered. The paternal grandmother appeals both the award of permanent guardianship to the maternal grandparents and the dismissal of her complaint for increased visitation. We affirm.
Discussion. 1. The paternal grandmother argues that the probate judge was biased in favor of the maternal grandparents, and demonstrated prejudice in her rulings throughout the trial proceedings and in an ex parte communication with the maternal grandparents. As a preliminary matter, we review custody determinations under an abuse of discretion standard and note that such a decision is a “subject peculiarly within the discretion of the [trial] judge.” Bak v. Bak, 24 Mass.App.Ct. 608, 616 (1987), quoting from Jenkins v. Jenkins, 304 Mass. 248, 250 (1939). The paternal grandmother has failed to put forth the elements of her bias claim or to point to specific instances where the judge demonstrated such prejudice. She has not shown that the judge abused her discretion by demonstrating bias when issuing decisions throughout the trial proceedings. Moreover, the record does not support her claim that the judge engaged in an ex parte communication with the maternal grandparents.
As evidence of bias, the paternal grandmother asserts that “the judge refused to enforce a trial subpoena that [she] had served upon the mother of the ward, and ended the trial by denying [her] a chance to call [the mother].” The record does not support this characterization. Rather, the record shows that at the eleventh hour, on September 17, 2010—in a hearing that began on August 5, 2010—the paternal grandmother's counsel told the judge that “I did call [the mother], but she has not responded to the subpoena.” The mother was never on the witness list. As the judge stated, “[Y]ou were well aware that you should have let us know that [the mother] was somebody that you wanted as a witness.... And you've had the course of two, going on two months, to get her here.... I'm going to decline to have a rebuttal witness that has never been part of anyone's witness list.” The judge's actions were justified by the imperatives of trial management and were not reflective of any bias. See Drake v. Goodman, 386 Mass. 88, 92 (1982) (“A trial judge has substantial discretion whether to permit the presentation of rebuttal evidence”). There was no abuse of discretion, let alone bias, in the judge's ruling.
2. The paternal grandmother argues that in making her guardianship determination, the judge improperly elevated the testimony as to the animosity between the grandparents. Specifically, the paternal grandmother points to the judge's reliance on the paternal uncle's testimony that the paternal grandmother, in violation of the custody agreement, routinely spoke poorly of the maternal grandparents to the grandchild.
“Absent clear error, we will not substitute our weighing of the evidence for that of a trial judge who had the opportunity to observe the witnesses and form conclusions about their credibility....” A.H. v. M.P., 447 Mass. 828, 838 (2006). In her findings, the judge considered the uncle's testimony along with all the other testimony presented at trial and reasonably determined that it was in the best interests of the child to award permanent guardianship to the maternal grandparents. We see no reason to disturb the judge's decision. Custody of Eleanor, 414 Mass. 795, 799 (1993).
3. The paternal grandmother argues that in appointing Patrice Morse to serve as the guardian ad litem (GAL), the judge violated the Probate and Family Court's standards. More specifically, since Morse previously served in a different capacity as the child's attorney, or GAL-next friend, in earlier paternity and guardianship actions, according to the paternal grandmother, the standards dictate that she could not serve as the GAL in the case at bar. Initially, we note that it is within the judge's discretion to appoint a GAL. Guardianship of Pollard, 54 Mass.App.Ct. 318, 322 (2002). Additionally, the standard which the maternal grandmother cites is purely advisory. Finally, and more importantly, the maternal grandmother waived this claim because at trial she failed to object to the appointment of the GAL on the grounds of bias. Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001). We thus need not consider the propriety of the judge's appointment.
“If the GAL has any prior or existing direct or indirect relationships with parties, their families, their attorneys, material witnesses, or someone else connected with the family, the GAL must consider whether the GAL's impartiality is compromised as a result of these relationships. The GAL shall decline the appointment if ... [t]he GAL or the GAL's law firm previously advised or acted as counsel for a party, child, or other person closely aligned to a party, including but not limited to a party's spouse, non-marital partner, or a material witness [.]” Probate and Family Court Standing Order 1–05, Standards 1.3(A) for Category F Guardians Ad Litem Investigators (2006).
We observe that quite apart from the advisory nature of the aforementioned standards, the paternal grandmother did not establish on the record below that the two roles of the GAL created a conflict of interest. Compare People in Interest of J.A.M., 907 P.2d 725 (Colo.Ct.App.1995) (dual representation by a GAL giving rise to a conflict of interest was impermissible).
The paternal grandmother also argues that the judge was unduly influenced by the GAL's report. However, the judge based her findings on all the evidence submitted at trial. “The mere fact that a party suffers adverse rulings during litigation does not establish lack of judicial impartiality.” Clark v. Clark, 47 Mass.App.Ct. 737, 739 (1999).
4. The paternal grandmother further alleges that the judge committed error in delegating judicial authority to the child's therapist. In her guardianship decree, the judge wrote “the increase [in visitation rights] are to occur so long as other provisions are complied with and the child's therapist does not express any serious concerns about the child being negatively impacted by his visits with the paternal grandmother.” Contrary to the paternal grandmother's allegation, the decree makes clear that the visitation rights are not solely conditioned on the therapist's determinations; rather, the judge is to consider the therapist's report as one factor, along with others, in deciding whether to increase visitation.
5. Finally, the paternal grandmother argues that the judge committed error in dismissing her complaint for modification of the visitation schedule. The judge found that since the decree of guardianship was under appeal, she would not take further action until the Appeals Court decided the issues on appeal. See Braun v. Braun, 68 Mass.App.Ct. 846, 852 (2007). This was not error. The maternal grandparents' request for appellate attorney's fees is denied.
Amended decree affirmed.