GUARDIANSHIP OF PHELAN. [Note 1]

LENK, J. The maternal aunt of a child, Phelan, appeals from (1) a judgment of the Juvenile Court dismissing her petition for appointment as guardian, with custody, of Phelan, and (2) an order of the single justice of this court staying the dismissal of the guardianship petition pending appeal but denying her request, as interpreted by the single justice, to stay the progress of the adoption of Phelan flowing from a care and protection action. We vacate the judgment dismissing the petition for guardianship and remand the matter to the Juvenile Court for a prompt trial on the petition. We dismiss the appeal from the order of the single justice.

1. Background. [Note 2] Phelan was born in the State of Georgia in December of 1997; no father was listed on his birth certificate. Before Phelan's birth, the aunt, who then apparently resided in Georgia, was granted custody of five of Phelan's older siblings by a Georgia court. In 2003, a Georgia court found Phelan and his sister, May, to be "deprived" and ordered that temporary custody of the children be removed from their biological mother and placed with the aunt (who had moved to Massachusetts) "under the protective supervision" of the Massachusetts Department of Children and Families (department). After a finding in 2004 that the two children continued to be "deprived," the Georgia court ordered that "long term relative placement of the children is granted to the . . . aunt."

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On November 2, 2005, the department filed a care and protection petition against the aunt on behalf of Phelan and four of his siblings alleging physical abuse (corporal punishment) of the children by the aunt. [Note 3] A judge of the Juvenile Court awarded emergency temporary custody of the children to the department on that date, and Phelan was placed in a foster home. On November 7, 2005, the aunt waived her right to a seventy-two hour hearing, and the judge awarded temporary custody of the children to the department.

On September 15, 2006, the aunt, represented by counsel, stipulated to a finding of unfitness, and the children were found in need of care and protection. At the time the aunt stipulated to unfitness, the department's goal was reunification of the children with the aunt. However, by late October, 2006, the department had changed its goal with respect to Phelan and May to adoption. [Note 4]

In May, 2007, the aunt filed a motion to stay the care and protection proceedings pending the resolution of certain jurisdictional issues. After a hearing, the Juvenile Court judge rejected the aunt's jurisdictional challenges and determined further that the aunt had never been conferred with guardianship status with respect to Phelan and had no other standing to participate in the care and protection proceedings. The aunt did not appeal the judge's order dated September 5, 2007. [Note 5]

On September 14, 2007, the aunt filed the instant petition for appointment of guardian of minor child pursuant to G. L. c. 201, in which she sought to be appointed guardian of Phelan, with custody. A hearing on the merits of the petition was scheduled

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for January 25, 2008. In the meantime, a hearing was scheduled on that same date on the department's permanency plan (dated November 15, 2007) in the care and protection case, in which the department sought to place Phelan for adoption. Although lacking party status in the care and protection proceeding, in both proceedings the aunt filed objections to the department's permanency plan and submitted an alternative permanency plan in which she requested that Phelan be reunited with her.

On January 23, 2008, the aunt filed a motion to intervene in the care and protection action with respect to Phelan and May. She also filed a motion requesting the judge to consolidate and order a joint hearing on the merits in the care and protection and guardianship matters (and to grant her full party status in the care and protection proceeding).

On January 25, 2008, the aunt's motions to intervene and to consolidate were denied (although the denials appear only on the docket in the care and protection proceeding), the petition for guardianship was referred to mediation, [Note 6] and, after a hearing, the judge approved the department's permanent plan of adoption for Phelan and determined that the department had made reasonable efforts to implement that plan. The aunt did not attempt to appeal from the orders denying her motions to intervene and to consolidate.

The biological mother executed an adoption surrender with respect to Phelan on March 14, 2008, and on October 9, 2008, the judge terminated the parental rights of any unknown or unnamed father. A guardian ad litem for Phelan was also appointed in the guardianship proceeding and filed an "updated report." [Note 7]

2. The motion to dismiss. On December 15, 2008, the department and the child filed a joint motion to dismiss the guardianship petition (unsupported by affidavit), which was heard on December 16, the day trial on the petition was to commence. [Note 8] At the time of the hearing on the motion, it was undisputed that

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three of the four siblings (including May) who were removed with Phelan from the aunt's custody through the care and protection proceeding had been returned to the aunt's care and custody. [Note 9] It was the department's position at the hearing, as well as that of then counsel for Phelan, that notwithstanding the reunification of Phelan's siblings with the aunt, Phelan had been in his preadoptive foster home since 2005 and, as evidenced, in part, by the guardian ad litem's updated report (which was before the judge), had psychologically bonded with his preadoptive family and had been thriving in that home, had consistently expressed his view that he did not wish to return to the care and custody of the aunt, and had suffered emotional scars from his time with the aunt that would render his return to the aunt traumatic. Continuing, counsel noted that the guardian ad litem had recommended that Phelan remain in his preadoptive home and that adoption be completed as soon as possible, and that the current plan for adoption had been approved by the judge in the care and protection proceeding. [Note 10] In counsels' view, even if they were to "stipulate to anything [the aunt's counsel] were to present to the court," there simply could be no basis for the judge to conclude that it was necessary, convenient, and in Phelan's best interests to be placed in the permanent guardianship of the aunt.

The aunt, in response, stated through counsel that the department and the child's attorney were, in effect, attempting to turn their motion to dismiss into one for summary judgment and that there were contested issues for trial in the case. More specifically, counsel asserted that the aunt had "evidence to put [i]n" that would show that things had changed since September, 2006: she had engaged a therapist and participated in a program for African-American families to help her address and change the disciplinary system she had grown up with, she had renounced and refrained from the use of physical punishment with the children, and she had participated in other programs and would call witnesses to show how she had changed and how she now addressed

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family and disciplinary issues, and that she, as a registered nurse and one who had participated in such programs, could assist Phelan with any issues of trauma resulting from his reunification with her and his siblings. Counsel for the aunt also represented that the siblings in her care were having difficulty visiting Phelan in his placement home [Note 11] and were "anxious to come in and tell the court why they wanted [Phelan] to come home and live with them at their [aunt's] house." [Note 12] Counsel requested that the trial go forward so that the judge could hear the evidence "that so far [she had] only heard in reviews and in oral recitation by counsel or in written reports from [the department] or from the guardian ad litem."

At the close of the hearing on the motion to dismiss, the judge allowed orally the motion, stating that even assuming everything the aunt's counsel stated were true "in terms of [the aunt] and about the siblings wanting visitation and the like," none of it was "focused on the best interests" of Phelan. Rather, the judge pointed to the two care and protection actions that had been brought against the aunt which implicated Phelan and the aunt's stipulation of unfitness and the commitment of Phelan to the custody of the department. The judge noted, in addition, that she had made "several findings" based on a social worker's report that included the recommendation of Phelan's therapist that adoption was in the best interests of Phelan. Even assuming, the judge stated, that she struck all the grounds for the guardian ad litem's recommendation to which the aunt had objected, she still was left with the "inescapable recommendation by the GAL, back in March of '07 [in the care and protection case] as well as today . . . that it is in the best interest of this child to be adopted." [Note 13] The judge also made reference to statements by an expert retained by the aunt that apparently appear in the March,

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2007, guardian ad litem report that Phelan's "behavioral disregulation" was characteristic of a child with posttraumatic stress symptoms and that Phelan's environment at the aunt's home could best be described as a "toxic environment" for the child. While acknowledging that the environment in the aunt's house had changed, the judge stated: "[B]ut we still have the memories of the traumatic behavior experienced in that home . . . [a]nd this is a child who needs to be stable and secure and have some predictability to his future." [Note 14]

3. The guardianship statute. We comment initially on aspects of the guardianship statute that, to some extent, inform our analysis in the present appeals. General Laws c. 201, § 1, as in effect at the time of the proceedings in the Juvenile Court, provides, in part: "The district or juvenile court may, when it appears necessary or convenient, appoint guardians of minors if the person who is the subject of the petition is a minor and there is a proceeding before such district or juvenile court." [Note 15] See Cross,

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Fleischner, & Elder, Guardianship and Conservatorship in Massachusetts § 9.04 (2000) (noting that the Juvenile Courts have interpreted this jurisdiction "as empowering that court to accept separate petitions for guardianship of a minor so long as an action regarding the subject child is already before that court"). Commonly, the action "before . . . [the] juvenile court" will be one involving the welfare of a child under G. L. c. 119. Karp, Child Welfare Practice in Massachusetts § 19.4 (Mass. Cont. Legal Educ. 2006 & Supp. 2009). See Juvenile Court Standing Order 2-07 (noting that the Juvenile Court Department has jurisdiction over three major case types involving the welfare of children and matters ancillary to these three case types including guardianship petitions). A guardianship action may arise, for example, when a relative who is not a party to a care and protection proceeding files a petition seeking placement with her of a child. See Child Welfare Practice in Massachusetts, supra at § 19.4. Although each case must be decided on its own peculiar facts, where competing plans for the placement of a child are presented to the judge through care and protection and guardianship proceedings (and particularly where, as here, the department's permanency plan goal was to place the child for adoption), the matters generally should be heard together. [Note 16] See, e.g., Adoption of Leland, 65 Mass. App. Ct. 580, 583 (2006) (guardianship petition consolidated with care and protection petition); Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 333-334 (2008) (judge ordered that termination case and guardianship case be heard concurrently, but not consolidated, with counsel for the aunt having "full access to the proceedings and the evidence" in the termination case although the aunt was not made a party thereto); Child Welfare Practice in Massachusetts, supra at § 19.4.1 ("Although a guardianship petition filed in the Juvenile Court typically is heard together with a pending care and protection . . . case, it is a separate court action and will have its own docket number"). Cf. Mass.R.Civ.P. 42(a), as amended,

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423 Mass. 1402 (1996) (allowing for consolidation when actions involving a common question of law or fact are pending before the court). See and compare Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 564 (2009).

4. The propriety of the dismissal of the guardianship petition. The aunt argues that it was error for the judge to grant summary judgment in favor of the department and Phelan and to dismiss her guardianship petition because material facts were in dispute as to what placement was in the best interests of Phelan. The department and, to a lesser extent, appellate counsel for Phelan raise preliminary hurdles to our consideration of the aunt's contentions, arguing that the judge properly dismissed the guardianship petition as the aunt, who had numerous opportunities to participate in the care and protection proceedings (and thereby accomplish her objectives of putting herself forth as a permanent placement for Phelan) and "neglected the opportunity" to seek a review and redetermination of the care and protection judgment, appeal the judge's decision to terminate her participation in the care and protection proceedings, and appeal either the judge's denial of her request to consolidate the care and protection and guardianship matters or the denial of her motion to intervene. Having forgone or waived these opportunities, the department argues, the aunt "could not, through the filing of a guardianship petition, subsequently attack the trial court's judgment in the care and protection matter, based substantially upon evidence presented while she was a party to that proceeding."

It is noteworthy that the arguments proffered by the department and counsel for Phelan were not raised in any meaningful way in the joint motion to dismiss or at the hearing on the motion. While "[a] party may defend a judgment on any ground based on the record so long as raising the argument is not unfair to its opponent," Perseus of N.E., MA, Inc. v. Commonwealth, 429 Mass. 163, 168 (1999), and cases cited, the particular arguments raised by the department and Phelan have the flavor of affirmative defenses, which, under rules of civil and domestic relations procedure (see discussion, infra), are generally waived if not set forth affirmatively. See Mass.R.Civ.P. 8(c), 365 Mass. 749 (1974); Mass.R.Dom.Rel.P. 8(c) (listing, for example, the affirmative defenses of waiver, estoppel, and res judicata). See also Demoulas v. Demoulas, 428 Mass. 555, 575 n.16 (1998). Though we

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think it is questionable whether the department and counsel for Phelan properly may defend the dismissal of the guardianship petition on the arguments made, we nonetheless address these preliminary contentions.

Contrary to the apparent assertions of the department and counsel for Phelan, we perceive nothing in the circumstances of this case that would cause us to conclude that the aunt was required either (1) to litigate exclusively in the context of the care and protection proceeding the issue of whether a guardianship placement with her was in Phelan's best interests or (2) to forgo proceeding on her guardianship petition in favor of appealing immediately all of the judge's decisions removing or excluding her from the care and protection action. [Note 17] No authority has been called to our attention that would require such a result. [Note 18] That the aunt is not a proper party in the care and protection case would not preclude her from seeking placement of Phelan through a guardianship petition.

We fail to discern merit in the department's further argument that the aunt's guardianship petition was an improper collateral

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attack on the "unappealed" decision that adoption is in Phelan's best interests. This argument seems to be based on the premise that the aunt had the opportunity to litigate fully, and appeal from, the judge's decision that it was in Phelan's best interests to be adopted rather than be placed with her. More to the point, to the extent the department may assert that the aunt had sufficient opportunity to litigate the issue of whether Phelan should be placed with her through the permanency plan process contemplated by G. L. c. 119, § 29B, [Note 19] it is certainly true that the aunt engaged in that process, with some success, as late as December, 2006 (see note 4, supra). However, by the time permanency plan hearings were held in January, 2008 (when the judge approved the department's permanent plan for adoption for Phelan), and December, 2008, the aunt was no longer a party in the care and protection case, her party status having been terminated on September 5, 2007, and she could not appeal under the permanency plan statute. See G. L. c. 119, § 29B ("A child, parent, guardian or the department may appeal to the appeals court from the determination or order of the trial court"). [Note 20]

Turning to the aunt's claim that the judge erred in dismissing

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her guardianship petition, the aunt and the department disagree whether summary judgment principles provide the appropriate standard under which the judge's decision should be reviewed. The aunt, stating that it is not clear what procedural rules should be applied to a "motion to dismiss" a guardianship case brought in the Juvenile Court, argues that we should look by analogy to the Rules of Civil Procedure, and particularly Mass.R.Civ.P. 56, as amended, 436 Mass. 1404 (2002) (due to the judge's consideration of matters outside the pleadings, see Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550, 555 [2008]), as the "cogent standard." See Care & Protection of Richard, 456 Mass. 1002, 1002 n.3 (2010), quoting from Care & Protection of Zelda, 26 Mass. App. Ct. 869, 871 (1989) ("Although the rules of civil procedure are not applicable to proceedings in the Juvenile Court, Mass.R.Civ.P. 24 . . . 'may well be accepted as a cogent standard' "). See also Adoption of Reid, 39 Mass. App. Ct. 338, 341 (1995); Adoption of Yvette (No. 1), 71 Mass. App. Ct. at 335 n.9. Cf. Rule 27(B) of the Probate Court Rules and Reporter's Notes (2010) (summary judgment under Mass.R.Civ.P. 56 available in at least certain probate proceedings). [Note 21], [Note 22] The department

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counters, asserting that the judge did not dispose of the guardianship petition by means of summary judgment, but rather on the history of the aunt's involvement with the judge, the evidence presented during the course of the care and protection proceedings to which the aunt was a party and had the opportunity to refute, and the ultimate determination that Phelan's adoption was in his best interests. We conclude that under either approach the judge erred in dismissing the petition for guardianship.

The department, while acknowledging that the aunt was excluded from the care and protection case in September, 2007, asserts that she was still a party to that case in March, 2007, when the guardian ad litem filed her original report. The department's argument is grounded, in considerable part, on its view that in dismissing the guardianship petition, the judge properly considered papers in the care and protection proceeding such as the March, 2007, report, insofar as the aunt was at the time "a party [in the care and protection case] with a compelling incentive to litigate." Cf. Adoption of Darla, 56 Mass. App. Ct. 519, 520-521 (2002). Even if we accept the doubtful proposition that it was proper for the judge to consider on a motion to dismiss the aunt's activities in a different case, it appears that the aunt never in fact had the opportunity to litigate with respect to the March, 2007, report. Indeed, there is no indication on the docket of the care and protection case of a contested evidentiary hearing where the March, 2007, report was offered into evidence (and the guardian ad litem made available for or subject to cross-examination), see Gilmore v. Gilmore, 369 Mass. 598, 603 (1976); Adoption of a Minor, 22 Mass. App. Ct. 468, 469 n.1 (1986), or where the aunt had the opportunity to rebut the material and opinions contained

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in the report. [Note 23] See Guardianship of Pollard, 54 Mass. App. Ct. 318, 323-324 (2002). See generally Care & Protection of Zita, 455 Mass. 272 (2009). Compare and contrast J.F. v. J.F., 72 Mass. App. Ct. 782, 790 n.12 (2008) (where both parties relied on statements of individuals reporting to the guardian ad litem, and the mother had accepted as "true" the numerous "facts" stated in her brief for purposes of summary judgment). That the judge indicated (somewhat obliquely) at the December 16, 2008, hearing on the motion to dismiss that she would, for purposes of the motion, "strike all of the grounds for the GAL's recommendation, which [were] objected to by the aunt," does not remediate the judge's reliance on the recommendation of the guardian ad litem (and, apparently, other statements in the guardian ad litem's report, including those of the expert retained by the aunt) in the circumstances presented. [Note 24]

To similar effect, even were we to assume, as the aunt asserts, that summary judgment principles, as reflected in the Rules of Civil Procedure, are applicable in the present case, [Note 25] the order dismissing the guardianship petition cannot stand. "Summary judgment is appropriate when there is no genuine issue of material fact and the moving parties are entitled to judgment as a matter of law." Petrell v. Shaw, 453 Mass. 377, 381 (2009). The moving parties "must 'affirmatively demonstrat[e] that there is no genuine issue of material fact on every relevant issue, even if [they] would have no burden on an issue if the case were to go to

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trial.' " Department of Rev. v. Mason M., 439 Mass. 665, 674 (2003), quoting from Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). J.F. v. J.F., 72 Mass. App. Ct. at 789. "All evidentiary inferences are to be resolved in favor of the party opposing the motion for summary judgment." Id. at 789-790. "In deciding a motion for summary judgment, a court does not resolve issues of material fact, assess credibility, or weigh evidence." Kernan v. Morse, 69 Mass. App. Ct. 378, 382 (2007).

At the outset, the judge's reliance on the guardian ad litem's reports (including the statements of the expert retained by the aunt apparently appearing in the 2007 report) suffers from the infirmities we have previously discussed. The judge also seems to have assessed implicitly the credibility of the guardian ad litem. [Note 26] Those points aside, the parties appear to proceed on the appeal, as did the judge below, on the premise that the ultimate question presented by the aunt's guardianship petition is what placement serves the best interests of the child. Cf. Adoption of Irene, 54 Mass. App. Ct. 613, 617 (2002) (best interests of child the "driving factor" in choosing between alternative plans for adoption); Care & Protection of Amalie, 69 Mass. App. Ct. 813, 820 n.8 (2007). We have indicated, in other contexts, that the determination of a child's best interests will most often involve the resolution of disputed issues of material fact or the weighing of evidence, considerations that would render inappropriate summary judgment. See e.g., J.F. v. J.F., 72 Mass. App. Ct. at 791-792; Adoption of Irene, 54 Mass. App. Ct. at 617 ("[w]here

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the objective is a child's best interests, factual determinations are necessarily involved"). Here, notwithstanding the judge's statement in her oral findings that the aunt's proffered evidence did not focus on Phelan's best interests (a point on which we disagree), the judge's findings, viewed in their entirety, suggest that the judge impermissibly weighed the "evidence" put before her and resolved factual disputes, including whether the aunt or Phelan's current caretaker would be better able to provide for the child's best interests.

An evidentiary hearing is required in the instant matter so that all appropriate circumstances (including, for example, the changes the aunt has undergone with respect to her child rearing capabilities and disciplinary practices; the current environment in the aunt's home; the impact upon Phelan, if any, of his separation from his siblings, now in the custody of the aunt; and the expressed wishes of the child) can be further explored, and weighed, in determining whether guardianship by the aunt would serve the best interests of the child. See R.S. v. M.P., 72 Mass. App. Ct. 798, 805-806 (2008). Simply put, this is not a case where summary judgment is appropriate, let alone compelled. See J.F. v. J.F., 72 Mass. App. Ct. at 792 n.14. To the contrary, the issues presented, "which may implicate the welfare of the [child], are 'too weighty to end the action at this early stage.' " R.S. v. M.P., 72 Mass. App. Ct. at 806, quoting from Gilchrist v. Commissioner of Correction, 48 Mass. App. Ct. 60, 66 (1999). [Note 27]

5. The motion to stay. In the light of our issuance of this opinion (and in the absence of any indication that the department has attempted to proceed with Phelan's adoption) it is not necessary to address the propriety of the order of the single justice on the aunt's motion to stay pending the appeal. While we are cognizant of the importance of permanency in a child's life, on all that we have said in this case we trust that the department will not seek to effectuate the adoption of Phelan during the pendency of the proceedings on remand.

5. Conclusion. The judgment dismissing the petition for guardianship is vacated and the matter is remanded to the Juvenile Court for a prompt trial on the petition. We deny the aunt's

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request that the matter be assigned to a different judge of the Juvenile Court. The appeal from the order of the single justice is dismissed.

So ordered.