Guardianship of Kelvin
Guardianship of Kelvin
Opinion
*448 On September 25, 2015, a judge of the Probate and Family Court (probate court) dismissed a petition filed by the mother pursuant to G. L. c. 190B, § 5-212, for removal of the paternal grandfather as *105 guardian of the mother's son, Kelvin. 2 The judge also issued a decree on the guardian's general petition *449 regarding visitation, establishing the parameters for weekly parenting time between the mother and Kelvin. On appeal, the mother contends that the judge (1) erred by placing the burden of proof on the mother to prove her fitness; (2) failed to make specific and detailed findings of fact that established the mother's unfitness by clear and convincing evidence; and (3) erred by refusing to allow the mother to present relevant evidence concerning her ability to parent another child in her custody. Because we conclude that the judge applied the incorrect burden of proof with regard to the mother's petition to remove the guardian, we vacate the judgment of dismissal and remand the matter to the probate court for further proceedings consistent with this opinion.
1. Background . We summarize the relevant facts and procedural history from the judge's findings, supplemented by additional undisputed facts from the record. The mother gave birth to Kelvin in January of 2011. She and Kelvin's father never married, and they are no longer in a relationship. 3
In February of 2012, the mother and the maternal grandmother had a physical altercation in the presence of Kelvin, prompting an investigation by the Department of Children and Families (department). The department created a service plan for the mother, which included parenting classes and drug testing. On March 16, 2012, the paternal grandfather filed a petition in the probate court to become Kelvin's guardian. A probate judge immediately entered an order appointing the paternal grandfather as Kelvin's temporary guardian, finding that the mother was homeless, mentally unstable, and violent. This appointment was extended at regular intervals until the trial.
On July 10, 2013, the judge issued a decree and order appointing the paternal grandfather as Kelvin's permanent guardian. The judge found that the mother was unfit to parent Kelvin because her contact with him over the prior sixteen months had been limited, she had failed to educate herself on Kelvin's medical condition (asthma ), and she continued to have anger management issues. In the decree, the judge granted the mother six hours of unsupervised parenting time per week.
Between July and November of 2013, the mother had approximately twenty unsupervised visits with Kelvin. She and the guardian shared a notebook in which they communicated with each other *450 about Kelvin's meals and snacks, his health, his developmental progress, and his activities during the time that he spent with each caregiver. In September of 2013, during this same period, the mother gave birth to a daughter from a subsequent relationship. The relationship between the mother and her daughter's father was marked by domestic violence, the couple is no longer together, and each has obtained an abuse prevention order against the other pursuant to G. L. c. 209A.
Due to concerns about the people with whom Kelvin was spending time while in the mother's care, the guardian filed a *106 general petition on December 11, 2013, seeking to terminate the mother's parenting time or, in the alternative, to restrict her parenting time to supervised visits. Following a hearing, the judge entered a temporary order reducing the mother's parenting time to one two-hour supervised visit per week. A few months later, the judge modified the terms of her order to increase the mother's parenting time to three hours per week, with the first hour being unsupervised and the second two hours being supervised. On September 18, 2014, the mother filed a petition for removal of the guardian pursuant to G. L. c. 190B, § 5-212. 4
A three-day trial was held on the two petitions in January and April of 2015. 5 Both the mother and the guardian were represented by counsel. At the outset, the judge stated the following regarding the burdens of proof: "[J]ust so we know, so the petition regarding visitation, it will be [the guardian's] burden of proof on that and, [mother's counsel], your burden of proof on the petition for removal of the guardian." Neither party objected or requested further instructions. The judge heard testimony from the mother, the mother's therapist, Kelvin's father, the guardian, the visitation supervisor, a department social worker, and the office manager from Kelvin's day care provider. Over the mother's objection, the judge declined to allow the mother to introduce any evidence relating to her ability to parent her daughter on the ground that such evidence was irrelevant to the mother's ability to parent Kelvin.
On September 25, 2015, the judge dismissed the mother's petition for removal of the guardian. The judge found that although *451 the mother had made some strides since the guardian had been appointed on July 10, 2013, the mother continued to suffer from depression and anxiety, and she had not yet resolved her anger management issues. The judge found that the mother had failed to develop an understanding of Kelvin's medical condition, that she did not always adhere to the guardian's list of suggested foods (which was designed to avert Kelvin's purported allergies), 6 and that she had given Kelvin sugary snacks. In addition, the judge found that although the mother was scheduled to attend weekly therapy sessions, she had canceled her appointment at least once a month. The judge found that because the relationship between the mother and the guardian was contentious and mistrustful, it interfered with the mother's ability to act in Kelvin's best interest. 7 Notwithstanding the judge's finding that the mother and Kelvin have a loving relationship, the judge found that the mother was not currently fit to parent Kelvin, and that it was not in Kelvin's best interest to leave *107 the guardian's care and return to the mother's custody.
In a separate decree on the guardian's general petition regarding visitation, issued on the same day as the judgment of dismissal, the judge stated that the mother was entitled to three hours of parenting time with Kelvin per week, the first ninety minutes of which would be unsupervised in a public place, and the last ninety minutes of which would be supervised at a specified bookstore. The judge further stated that only the mother and Kelvin could be present during parenting time and that the mother was not permitted to give Kelvin any food unless it had been provided by the guardian. The present appeal ensued. 8
*452
2.
Discussion
. The mother first argues that the judge, when considering her petition for removal of the guardian, erroneously placed the burden of proof on the mother to establish her own fitness. She contends that, notwithstanding the Legislature's enactment of G. L. c. 190B, § 5-212, nearly a decade ago, the issues of which party bears the burden of proof on a petition to remove a guardian, and what standard of proof is necessary to satisfy this burden, remain unsettled. See
L.B.
v.
Chief Justice of the Probate & Family Court Dep't
,
Preliminarily, the guardian argues that because the mother did not challenge the judge's allocation of the burden of proof at trial, the issue has not been preserved for appellate review. Although not our usual practice, an appellate court may consider an issue that was not properly preserved where, among other reasons, such issue is unresolved in the Commonwealth, is a matter of public importance, is likely to arise again, and has been fully briefed by the parties. See
Clark
v.
Rowe
,
*108
McLeod's Case
,
It is well established that "parents have a fundamental liberty interest in the care, custody, and management of their children."
Matter of Hilary
,
Here, the mother petitioned, although unsuccessfully, under G. L. c. 190B, § 5-212 (
a
), to remove the guardian and regain custody of the child. See
Care & Protection of Jamison
,
Unlike G. L. c. 190B, § 5-204 (
a
), which governs the initial appointment of a guardian for a minor, G. L. c. 190B, § 5-212 (
a
), does not expressly mention parental fitness. Nonetheless, it is clear from our case law that "consideration of parental fitness, when parental fitness is at issue, will be highly relevant to a determination of a child's best interest."
L.B.
,
Because G. L. c. 190B, § 5-212, is also silent as to who bears the burden to prove parental unfitness, we find it useful to look to the care and protection process under G. L. c. 119 for guidance. A review and redetermination proceeding under G. L. c. 119, § 26 (
c
), is a readjudication of a custody order wherein the judge must decide whether to maintain the separation of parent from child.
10
See
Care & Protection of Erin
,
*455
Care & Protection of Thomasina
,
For example, in
Care & Protection of Erin
,
The Supreme Judicial Court further held in
Care & Protection of Erin
,
supra
at 568,
In the present case, the mother previously had been found unfit to care for Kelvin. Accordingly, at trial on her petition to remove the guardian, the mother had the initial burden, similar to the mother in
Care & Protection of Erin
,
In her instructions to the parties at the outset of trial, however, the judge erroneously placed the burden of proof solely on the mother with respect to her petition to remove the guardian. Because the issues of the party bearing the burden of proof on such a petition and the standard of proof necessary to satisfy this burden have been unsettled since the enactment in 2009 of the Massachusetts Uniform Probate Code, the judge did not have the benefit of appellate court precedent in ruling on the mother's petition. Therefore, a remand for further proceedings, with the guidance we have provided herein, is necessary.
On remand, after hearing such additional evidence as the judge deems appropriate, and applying the standards we have articulated, the judge shall determine, with detail and specificity, first, whether the mother has presented some credible evidence showing some change in circumstances from the initial appointment of the guardian, and second, whether the guardian has established, by clear and convincing evidence, that the mother remains currently unfit and that Kelvin's best interest would be served by continuation of the guardianship. See
Adoption of Stuart
,
For the sake of providing additional guidance to the judge on remand, we address one final matter. The mother contends that the judge erred in refusing to allow the introduction of any evidence regarding her ability to parent her daughter on the ground that such evidence was irrelevant to the mother's ability to parent Kelvin. It is well established that a parent may be fit to raise one child and unfit to raise another. See
R.D.
,
3. Conclusion . We vacate the judgment of dismissal on the mother's petition for removal of the guardian, and we remand the matter for further proceedings consistent with this opinion.
So ordered .
General Laws c. 190B, § 5-212 ( a ), states, in relevant part, that "[a]ny 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." A "[w]ard" is "a person for whom a guardian has been appointed solely because of minority." G. L. c. 190B, § 5-101 (25).
Although Kelvin's father is not a party to these proceedings, he did testify on the mother's behalf during the trial on her petition for removal of the guardian.
Neither of the petitions has been included in the record on appeal. In her findings of fact, the judge indicated that the mother's petition for removal of the guardian was filed on July 9, 2014, although the docket states that it was filed on September 18, 2014.
The trial judge was the same judge who had entered the original decree and order appointing the paternal grandfather as Kelvin's legal guardian.
According to Kelvin's medical records, he has a moderate allergy to cephalosporins, a class of antibiotics derived from mold. There is no indication in the medical records, however, that he has been diagnosed with any specific food allergies.
For example, the judge found that, notwithstanding the guardian's advice to keep Kelvin in pull-up diapers, the mother had put Kelvin in underwear; he eventually had an accident, and he became upset. The judge also pointed to the fact that the mother had occasionally told Kelvin that he would be living with her soon, not considering how this information might upset or confuse him.
The mother's pro se notice of appeal states that she appeals "from the decree dated [September 25, 2015], paper # 117." On that date, however, the judge issued a decree pertaining to the guardian's petition to terminate or restrict the mother's parenting time with Kelvin (pleading no. 117 on the probate court docket), and a judgment dismissing the mother's petition for removal of the guardian (pleading no. 116). The findings of fact, also dated September 25, 2015, stated that "[d]ecrees shall enter accordingly." In a civil case, "[t]he notice of appeal shall ... designate the judgment, decree, adjudication, order, or part thereof appealed from." Mass. R. A. P. 3 (c), as appearing in
General Laws c. 190B, § 5-212, inserted by St. 2008, c. 521, § 9, was enacted as part of the Massachusetts Uniform Probate Code and took effect on July 1, 2009. St. 2008, c. 521, § 44. At the same time, the Legislature repealed, in their entirety, G. L. c. 201, §§ 1 -51, governing guardians and conservators. St. 2008, c. 521, §§ 21, 44. Prior to its repeal, G. L. c. 201, § 5, stated 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." By enacting the Massachusetts Uniform Probate Code, the Legislature overhauled the laws concerning the guardianship of minors.
General Laws c. 119, § 26 ( c ), provides, in relevant part:
"On any petition filed in any court under this section, the department or the parents, person having legal custody, probation officer or guardian of a child or the counsel or guardian ad litem for a child may petition the court not more than once every [six] months for a review and redetermination of the current needs of such child whose case has come before the court."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.