Heard: February 2, 2018.
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.
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.
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. 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.
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.
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
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
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 ...