When I first started reading Justice Cowin's decision for the Massachusetts Appeals Court in Guardianship of Estelle, 70 Mass. App. Ct. 575 (2007), I was encouraged by the statement that the trial judge's decision "cannot stand as a matter of law because the father is correct that, absent a finding of unfitness on his part, the judge is without authority to require that he share parenting decisions with others".
I didn't stop to think that the "remand for further findings in accordance with the discussion below" would result in anything other than the Appeals Court sticking to that straight forward black letter law assertion.
Unfortunately, Justice Cowin goes on to encourage the trial judge to reconsider whether actions on the part of the father that the trial judge was not willing to call abuse, neglect or unfitness still might make the father unfit "to parent this child in these circumstances at this time." [Emphasis in original.]
The opinion goes on, "Though the importance and parameters of an attachment to a foster parent or guardian have varied, the validity of considering the effect of a transfer of custody on the child as an element of the fitness of the transferee has been upheld consistently." The decision thus allows the trial judge to rethink whether the father's seeking help from the aunt and uncle during his hard times and the resulting attachment the child has to the aunt and uncle might permit denying the father's request for return of the child; without even requiring expert testimony on the issue of whether a transfer might harm the child or how such harm might be mitigated after a transfer back to the father.
As Attorney Deborah Sirotkin Butler pointed out in an email to me and posts (as AmberPaw*) on several parent and child defense attorney email lists, what this decision should make "clear, is that agreeing to a guardianship is a risky strategy for an unwed parent, especially a father, as the case law seems to be moving in the direction of making it harder and harder to retrieve a child from a guardianship, and the mere length of time a guardianship endures and the 'bonds' that form, make it hard to extract a child". [Emphasis added; questionable use 'quotes' in original.]
* Speaking of AmberPaw, you should check out her posts about DSS reform on the BlueMassGroup blog.