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Guardianship of Kelvin

Appeals Court of Massachusetts, Essex

November 8, 2018

GUARDIANSHIP OF KELVIN.[1]

          Heard: February 2, 2018.

         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.

          Present: Rubin, Maldonado, & Ditkoff, JJ.

          MALDONADO, J.

         On September 25, 2015, a judge of the Probate and Family Court (probate court) dismissed a petition 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 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 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 ...


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