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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.
