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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.