Guardianship of Kelvin , 94 Mass. App. Ct. 448 ( 2018 )

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17-P-250 Appeals Court
GUARDIANSHIP OF KELVIN.1
No. 17-P-250.
Essex. February 2, 2018. - November 8, 2018.
Present: Rubin, Maldonado, & Ditkoff, JJ.
Probate Court, Guardian. Practice, Civil, Guardianship
proceeding, Presumptions and burden of proof.
Petition for appointment of a guardian for a minor filed in
the Essex Division of the Probate and Family Court Department on
March 16, 2012.
A petition regarding visitation, filed on December 11,
2013, and a petition for removal of the guardian, filed on
September 18, 2014, were heard by Mary Anne Sahagian, J.
Michael S. Penta for the mother.
Deborah Sirotkin Butler for the child.
Jennifer R. DeFeo for the guardian.
MALDONADO, J. On September 25, 2015, a judge of the
Probate and Family Court (probate court) dismissed a petition
1 A pseudonym.
2
filed by the mother pursuant to G. L. c. 190B, § 5-212, for
removal of the paternal grandfather as guardian of the mother's
son, Kelvin.2 The judge also issued a decree on the guardian's
general petition 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
2 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).
3
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
3 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.
4
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 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
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
5
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.
4 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.
5 The trial judge was the same judge who had entered the
original decree and order appointing the paternal grandfather as
Kelvin's legal guardian.
6
On September 25, 2015, the judge dismissed the mother's
petition for removal of the guardian. The judge found that
although 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
6 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.
7 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.
7
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 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
8 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 430 Mass. 1602 (1999). See Siles
v. Travenol Labs., Inc., 13 Mass. App. Ct. 354, 354 n.1 (1982).
The mother's arguments in her appellate brief focus exclusively
on the matter of guardianship, not visitation. Under the
circumstances, it is evident that, notwithstanding the imprecise
8
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, 474 Mass.
231, 243 (2016). That being the case, the mother urges this
court to articulate clear guidance on these matters and, then,
to conclude that the judge incorrectly allocated the burden of
proof on the mother's petition.
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.
notice, the mother appealed from both the judgment of dismissal
and the decree issued regarding visitation. See Robinson v.
Boston, 71 Mass. App. Ct. 765, 771 (2008) (notice of appeal
denoting judgment dated April 21 construed as appealing judgment
dated April 20); Deveau v. Commissioner of Revenue, 51 Mass.
App. Ct. 420, 425 n.10 (2001) (notice of appeal adequate where
its meaning "is apparent on the face of the notice"). Quite
properly, the guardian has not asserted that the notice of
appeal is procedurally defective. See Fazio v. Fazio, 91 Mass.
App. Ct. 82, 84 n.7 (2017) (notice of appeal may be treated as
appealing orders not specified where issues are fully briefed
and appellee "has not claimed that she was misled by the notice
of appeal").
9
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, 428 Mass.
339, 341 (1998); Petition of the Dep't of Social Servs. to
Dispense with Consent to Adoption, 392 Mass. 696, 697 (1984).
See also McSweeney v. Cambridge, 422 Mass. 648, 653 (1996);
McLeod's Case, 389 Mass. 431, 434 (1983) (appellate court may
consider question of law not argued or decided below where
injustice might otherwise result); Quazi v. Barnstable County,
70 Mass. App. Ct. 780, 783 n.2 (2007). This principle is
particularly apt here, where the mother likely would file a new
petition to remove the guardian upon any change of circumstance,
and the probate court would then need our guidance on the issues
of the burden and standard of proof. Given that the issues have
been fully briefed by the parties, and that uncertainty will
continue to exist if these matters are left unresolved, we
proceed to decide them. See Wellesley College v. Attorney Gen.,
313 Mass. 722, 731 (1943).
It is well established that "parents have a fundamental
liberty interest in the care, custody, and management of their
children." Matter of Hilary, 450 Mass. 491, 496 (2008). See
Santosky v. Kramer, 455 U.S. 745, 753 (1982). That said, the
10
probate court may appoint a guardian for a minor if, among other
reasons, "the court finds the parents, jointly, or the surviving
parent, to be unavailable or unfit to have custody." G. L.
c. 190B, § 5-204 (a). See Guardianship of Estelle, 70 Mass.
App. Ct. 575, 578 (2007) (custody of child belongs to parent
unless parent is unfit). More specifically, if a judge "finds
that a qualified person seeks appointment, venue is proper, the
required notices have been given, the conditions of [§] 5-
204 (a) have been met, and the welfare and best interest of the
minor will be served by the requested appointment, [the judge]
shall make the appointment." G. L. c. 190B, § 5-206 (c).
Although the appointment of a guardian displaces the parent's
rights and responsibilities for the duration of the guardianship
(except as provided in the decree or otherwise by law), it does
not terminate them. See L.B., 474 Mass. at 237-238. See also
Guardianship of V.V., 470 Mass. 590, 592 (2015); Bezio v.
Patenaude, 381 Mass. 563, 575 (1980) (appointment of guardian
does not diminish weight given to bond between parent and
child). As a result, a parent retains the right to later
petition for modification or termination of a guardianship
involving their child. L.B., supra at 238.
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, 467
11
Mass. 269, 283 (2014) (because guardianships are solely
creatures of statute, see G. L. c. 190B, § 1-302, "they may be
limited in scope or revoked entirely"). 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."9 Because a petition to remove a
guardian involves an issue of custody, a judge is required to
make a determination as to the petitioning parent's fitness in
considering the child's best interest. See R.D. v. A.H., 454
Mass. 706, 715 (2009). "The tests of parental unfitness and the
child's best interest 'are not separate and distinct but cognate
and connected.'" Guardianship of Cheyenne, 77 Mass. App. Ct.
826, 829 (2010), quoting Guardianship of Estelle, 70 Mass. App.
Ct. at 580.
9 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.
12
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., 474 Mass. at 238 n.13. See Petition of the Dep't of Pub.
Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 589
(1981) (unfitness is standard by which courts "measure the
circumstances within the family as they affect the child's
welfare"). The "critical inquiry" in such cases is finding
parental unfitness by clear and convincing evidence. Adoption
of Nancy, 443 Mass. 512, 515 (2005). We conclude this same
standard of proof applies to a petition to remove a guardian
under G. L. c. 190B, § 5-212.
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, 443 Mass.
10 General Laws c. 119, § 26 (c), provides, in relevant
part:
13
567, 571 (2005); Care & Protection of Thomasina, 75 Mass. App.
Ct. 563, 570 (2009). Such a proceeding is, "primarily, the
means by which a parent or other interested party . . . may
bring to a judge's attention a change in the situation of a
child, or of a child's parent, which might warrant
reconsideration or modification of the original order
adjudicating the child in need of care and protection." Care &
Protection of Isaac, 419 Mass. 602, 611-612 (1995). Similarly,
a proceeding to remove a guardian pursuant to G. L. c. 190B,
§ 5-212, is a reevaluation of the original guardianship decree
whereby a judge must again decide whether to maintain the
separation of parent from child. Although these two types of
proceedings are not identical, see L.B., 474 Mass. at 238 &
n.13, the parent's same liberty interests are at stake and,
thus, our determination as to who shoulders the burden of proof
in a proceeding on a petition to remove a guardian is guided by
the well-established principles governing a care and protection
proceeding under G. L. c. 119, § 26 (c).
"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."
14
For example, in Care & Protection of Erin, 443 Mass. at
568, the Supreme Judicial Court held that where a party files a
petition for review and redetermination of an adjudication that
a child is in need of care and protection, "the moving party
bears an initial burden to produce some credible evidence that
circumstances have changed since the initial determination, such
that the child may no longer be in need of care and protection."
Because a judge does not start with a blank slate, "[t]he proper
focus of inquiry . . . is on those facts that have undergone
some metamorphosis since the previous order or are newly
developed and, in consequence, alter the relationship between
the biological parent and the child." Id. at 570, quoting
Custody of a Minor (No. 2), 22 Mass. App. Ct. 91, 94 (1986).
The Supreme Judicial Court further held in Care &
Protection of Erin, supra at 568, that once the moving party
satisfied her initial burden of production, the department bore
the ultimate burden of proving, by clear and convincing
evidence, the child was still in need of care and protection.
See Adoption of Lorna, 46 Mass. App. Ct. 134, 139 (1999) ("The
burden is on the department in proceedings to dispense with
parental consent to adoption to prove current parental unfitness
by clear and convincing evidence. That burden never shifts to
the parents" [citations omitted]). "This necessarily involves
showing that the parent is still unfit and [that] the child's
15
best interests are served by remaining removed from parental
custody." Care & Protection of Erin, supra at 572. Because a
review and redetermination proceeding "implicates the same
liberty interests that exist at an initial determination that a
child is in need of care and protection," the Supreme Judicial
Court saw no reason to shift the ultimate burden of proof away
from the department and onto the mother who had filed the
petition. Id. at 571. That same burden of proof applies
equally to this case.
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, 443 Mass. at
568, of producing some credible evidence of changed
circumstances since the initial guardianship determination, such
that Kelvin may no longer be in need of a guardian. Once the
mother satisfied this burden of production, the guardian then
bore the ultimate burden of proving, by clear and convincing
evidence, that the mother remained unfit and that continuation
of the guardianship served Kelvin's best interest. See L.B.,
474 Mass. at 237.
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
16
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, 39 Mass. App. Ct. 380, 383 (1995)
("ultimate determination of current parental unfitness does not
clearly and convincingly follow from the cursory findings made,
even when seen as not clearly erroneous and taken together as a
whole"). See also Custody of Eleanor, 414 Mass. 795, 799-801
(1993). In making this determination, the judge must ensure
that the evidence on which she relies is not stale. See
17
Adoption of George, 27 Mass. App. Ct. 265, 268 (1989) (stale
information cannot be basis for finding of current parental
unfitness, but prior history can have prognostic value);
Petitions of the Dep't of Social Servs. to Dispense with Consent
to Adoption, 18 Mass. App. Ct. 120, 126 (1984) ("isolated
problems in the past or stale information cannot be a basis for
a determination of current parental unfitness").
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.,
454 Mass. at 715; Guardianship of Estelle, 70 Mass. App. Ct. at
581. A judge may conclude that "[one] child is in need of
particular parental skills and stability that the mother [is]
unable to provide." Petition of Catholic Charitable Bureau of
the Archdiocese of Boston, Inc., to Dispense with Consent to
Adoption, 395 Mass. 180, 185 n.6 (1985). However, while
certainly not dispositive, evidence of a parent's demonstrated
willingness and ability to care for another child in her custody
is relevant to her general fitness as a parent and is a
consideration in proceedings to remove a guardian. See Adoption
18
of Rhona, 57 Mass. App. Ct. 479, 487 (2003). See also
Guardianship of Cheyenne, 77 Mass. App. Ct. at 830.
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.