In re Kelvin

Citation114 N.E.3d 102,94 Mass.App.Ct. 448
Decision Date08 November 2018
Docket NumberNo. 17-P-250,17-P-250
Parties GUARDIANSHIP OF KELVIN.
CourtAppeals Court of Massachusetts

Michael S. Penta, Peabody, for the mother.

Deborah Sirotkin Butler, Arlington, for the child.

Jennifer R. DeFeo, East Boston, for the guardian.

Present: Rubin, Maldonado, & Ditkoff, JJ.

MALDONADO, J.

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 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 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 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 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 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 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

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, 49 N.E.3d 230 (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. 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, 701 N.E.2d 624 (1998) ; Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 697, 467 N.E.2d 861 (1984). See also McSweeney v. City of Cambridge, 422 Mass. 648, 653, 665 N.E.2d 11 (1996) ; McLeod's Case, 389 Mass. 431, 434, 450 N.E.2d 612 (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, 877 N.E.2d 273 (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, 49 N.E.2d 220 (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, 880 N.E.2d 343 (2008). See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). That said, the 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, 875 N.E.2d 515 (2007) (custody of child belongs to parent unless parent is unfit). More specifically, if a judge ...

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  • In re Guardianship Jayce, 17-P-729
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    ...the petitioning parent is unfit, and that the guardianship should continue in the best interest of the child. See Guardianship of Kelvin, 94 Mass. App. Ct. 448, 453-454 (2018). Because here the mother consented to the guardian's appointment, she does not have the burden of producing some cr......
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    ...on the ground that removal would be in the best interest of the ward." G. L. c. 190B, § 5-212 (a). See Guardianship of Kelvin, 94 Mass.App.Ct. 448, 453 (2018). "The burden of proof rests with the guardian to establish the [parent's] unfitness by clear and convincing evidence." Guardianship ......
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