Opinion
14-P-463
01-09-2015
KORPO M. WASHINGTON v. JOHN SOBO ACQUOI.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father, John Sobo Acquoi, appeals from a September 4, 2013, judgment of dismissal of his April 13, 2012, petitions for removal of the stepmother as the guardian of his two children. We affirm.
Background. The parties married in Liberia in March of 2009 during the stepmother's visit there. After the marriage, the father and two of his children joined the stepmother in Massachusetts where she had been living. On August 4, 2011, the stepmother filed a motion in the Worcester Probate and Family Court to be appointed temporary guardian of the two children. On August 22, 2011, she filed a complaint for divorce in the same court. On September 20, 2011, the judge appointed her to be the children's temporary guardian.
On December 9, 2011, the same judge issued decrees and orders appointing the stepmother to be the guardian of the father's two minor children until they turned eighteen years old. The father did not appeal.
On March 8, 2012, the same judge issued a judgment of divorce nisi. She found, in part, that the "children have suffered malnourishment and physical abuse by the [father] and if returned to him are in danger of suffering same." The father did not appeal.
On June 4, 2012, the father filed a motion to vacate the divorce judgment, which was denied. He then filed a motion with a single justice of this court to enlarge the time for filing a notice of appeal as to the guardianship decrees and the divorce judgment, which was denied; a motion to reconsider, which was allowed, but relief denied; and an appeal from the single justice's denial of his motion to file a late notice of appeal. A panel of this court affirmed the single justice's order. Acquoi v. Acquoi, 84 Mass. App. Ct. 1129 (2014).
On April 13, 2012, the father filed a petition for removal of the guardian pursuant to G. L. c. 190B, §§ 5-212. A trial on the petition was held on June 11, 2013, before the same judge who issued the above decrees and judgments. The father, who had moved to Philadelphia, was present at trial. The parties were each represented by counsel. The children were represented by counsel appointed by the court. The judge heard the testimony of the parties and other witnesses and admitted various exhibits in evidence.
On May 22, 2012, the father filed a complaint for modification of the divorce judgment. He subsequently filed a notice of appeal from the judgment on that complaint and from the judgment of dismissal of his removal petition. The only judgment that the defendant is challenging on this appeal is the judgment on his petitions for removal.
The appointment provided that it would terminate upon the entry of a decree in this matter. The children's trial counsel did not file a brief in this court.
The judge was the same judge who appointed the stepmother as the guardian and issued the divorce decree. After the trial on the father's petition to remove the guardian, the judge issued a judgment of dismissal. She also issued a rationale in support of the judgment which included her findings of fact. We summarize those relevant to this appeal, supplemented by undisputed evidence from the record.
When the stepmother, who lived in Massachusetts, went to Liberia for a visit, she married the father. In December of 2010, the father and two of his children, five and ten years old, came to join the stepmother in the United States. The children were frail and sickly. They had ringworm and sores on their feet and one of them had a hernia. The father took no steps to treat these conditions. The father has a history of alcohol abuse and inappropriate care and discipline of the children. Although their native language is English, the children struggled with the language upon their arrival in the United States.
In the divorce judgment, the judge found that the father entered into the marriage fraudulently.
These children's mother is deceased. The father has several other children in Liberia.
The judge found that since the children have been under their stepmother's care, she took exemplary care of them: "[S]he has ensured they are progressing in school, their medical needs are met, they are receiving proper nutrition, they are attending church, and their emotional needs are being met." By contrast, she found that no credible evidence was presented "that the father has ever had a history or the ability to do the same." She also found that the father presented as immature and childlike, that he was neither credible nor truthful, and that his attempt to regain custody was motivated by his concerns regarding his immigration status, not by the children's best interests.
She wrote that the "father failed to prove at trial that he . . . now has the proper parenting skills to adequately parent these children and that it is in the children's best interest that the Guardianship be dismissed."
Discussion. First, to the extent the father challenges the grounds for the original grant of guardianship to the stepmother, this challenge is not before us as the father did not appeal from those decrees and orders. The only matter that is before us on appeal is the defendant's challenge to the dismissal of his petition for removal of the guardian.
Secondly, the trial transcript indicates that various exhibits were entered in evidence at trial. None of the exhibits, which included the probation officer's reports and restraining orders, appear in the record appendix. The record appendix is, therefore, incomplete and insufficient. Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). Even if we review the father's arguments on appeal, our review is necessarily limited by the incomplete record. Based on this record, we are unable to conclude that a reversal is in order.
The father argues that the mother's testimony was not credible. This argument is unavailing as "[t]he judge, with a firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Goodman v. Atwood, 78 Mass. App. Ct. 655, 657-658 (2011) (citations and quotations omitted). Having observed the parties and heard their testimony, the judge found that it was the father who was not credible.
The father also challenges the judge's findings regarding his alcohol problem and his lack of parenting skills, although he provides no transcript cites to support this claim. The judge's findings must stand unless they are clearly erroneous. Id. at 657. The father's claim that his parenting skills have never been called into question is contradicted by the judge's finding that "[a]t the time the guardianships were entered, the court found the father unfit to parent the children" and her finding that "[t]he father failed to prove at trial that he . . . now has the proper parenting skills to adequately parent these children."
The father argues that the judge applied the wrong standard and improperly placed the burden of proof on him on his petitions to remove the guardian. He relies on Bezio v. Patenaude, 381 Mass. 563 (1980), Guardianship of Yushiko, 50 Mass. App. Ct. 157 (2000), and Guardianship of Estelle, 70 Mass. App. Ct. 575, (2007), all of which arose under G. L. c. 201, § 5, which was repealed in 2009. R.D. v. A.H., 454 Mass. 706 (2009), also relied on by him, involved a petition for appointment of a guardian, not a guardian's removal, and like the above-cited cases arose under G. L. c. 201, § 5.
General Law c. 201, § 5, provided that "[t]he 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."
Here, the governing statute for the father's petition to remove the guardian is G. L. c. 190B, § 5-212(a), which provides that "any 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. . . ." In Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 570-571 (2009), this court wrote: "G. L. c. 190B, § 5-212, inserted by St. 2008, c. 521, § 9, appears to place on the petitioner seeking revocation of the guardianship the burden of proving that revocation 'would be in the best interest of the [child].'" Applying this standard, the judge found that the "father failed to prove at trial that he . . . now has the proper parenting skills to adequately parent these children and that it is in the children's best interest that the Guardianship be dismissed." In light of the evidence in the record and the findings, the judge did not err in denying the petitions to remove the stepmother as the guardian because it would be in the children's best interest.
In Thomasina, 75 Mass. App. Ct. at 571 n.13, the court also commented that "[u]nder the prior statute, G. L. c. 201, § 5, as amended by St. 1998, c. 194, § 199, the petitioner also had to prove "a substantial and material change of circumstances."
Judgment dismissing petitions to remove guardian affirmed.
By the Court (Trainor, Grainger & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: January 9, 2015.