author: MILKEY, J.

text:
    Dorothy A. LEIGHTON, personal representative, v. Bengt HALLSTROM.
    17-P-1335
    Appeals Court of Massachusetts, Plymouth..
    Argued September 7, 2018. Decided November 7, 2018.
    Mark A. Tanner, Northampton, for the defendant.
    Stephen B. Rosales, Belmont (Samantha Clark also present) for the plaintiff.
    Present: Green, C.J., Milkey, & Singh, JJ.

      Of the estate of Robert H. Olson.

   MILKEY, J.

On February 7, 2015, Bridgewater resident Robert H. Olson died without leaving any known will. He had no surviving parents, spouse, or children. The plaintiff, Dorothy A. Leighton, a first cousin to Olson on his father's side, stepped forward to claim his estate on behalf of herself and two similarly situated relatives. During the resulting intestacy proceedings, in which Leighton was appointed personal representative of the estate, the defendant, Bengt Hallstrom presented himself as a first cousin on Olson's mother's side and sought a proportionate share. However, the Probate and Family Court judge ultimately concluded that Hallstrom's efforts were tardy. Ruling that Hallstrom's claim was precluded as a matter of law, the judge struck Hallstrom's objection to Leighton's petition for order of complete settlement. A magistrate then entered a final decree settling Olson's estate without Hallstrom receiving any share. Because we agree with Hallstrom that the judge erred in various respects, we vacate the order allowing Leighton's motion to strike and the final decree settling the estate, and remand for further proceedings.

Background. 1. Leighton's petition. Leighton initiated these proceedings on April 29, 2015, by filing a petition for formal adjudication of intestacy. See G. L. c. 190B, § 3-402. That petition also requested that Leighton be appointed the personal representative of Olson's estate. Leighton's petition listed herself and two other first cousins as "all known heirs on [Olson's] predeceased father's side." It further stated: "It is unknown if any heirs exist on [Olson's] predeceased mother's side and, if so, the degree of kindred and location of such heirs." By checking a box on the court's preprinted form, Leighton requested that the court "[f]ormally determine [Olson] died without a [w]ill and determine heirs."

2. Hallstrom comes forward. By order dated July 6, 2015, a guardian ad litem (GAL) was appointed to represent Olson's unascertained heirs with respect to Leighton's pending petition. Before the GAL filed his report, Hallstrom, a resident of Uddevalla, Sweden, stepped forward and identified himself to Leighton as an interested person. Specifically, Hallstrom's counsel sent Leighton's counsel a letter that included a genealogical chart purporting to show that Hallstrom was the son of Olson's mother's brother (and hence, a first cousin). Using a preprinted form, Hallstrom filed a notice of appearance, which was docketed by the court. On that form, Hallstrom checked the box that signified that his appearance "is NOT an objection." His counsel explained in a contemporaneous letter to Leighton's counsel, "I have not listed it as an objection since it is my understanding by [sic ] doing so will cause a contest in this matter."

3. The GAL's report. After having discussed the matter with both Leighton and Hallstrom, and after having reviewed the docket and certain other relevant documents, the GAL issued his report, which was docketed on July 24, 2015. That report confirmed that Olson had died intestate and urged that a personal representative be appointed "to take control of [Olson's] real estate and prevent waste as well as marshaling all assets of personal property." The GAL assented to that appointment after noting that Hallstrom -- the only additional claimant who had surfaced -- had not objected. With respect to the key issue of determining heirs, the GAL suggested deferring that issue to the future, stating, "The issue of determining heirs can be addressed during the course of handling the estate."

4. The July 2015 decree. On July 27, 2015 -- that is, three days after the GAL report was docketed -- a magistrate acted on Leighton's pending petition by issuing what is styled as a "decree and order on petition for formal adjudication." That decree (the July 2015 decree) was issued on another preprinted form. Through the magistrate's checking the appropriate boxes, the July 2015 decree ruled that Olson had died intestate, and it appointed Leighton as personal representative of his estate. With respect to the identity of Olson's heirs, the magistrate left blank the spaces provided on the form for listing individual heirs and instead checked the box that indicated that the heirs were "as stated in the [p]etition."

5. Post-July 2015 proceedings. In November of 2015, Leighton filed a separate petition seeking court approval to sell Olson's real estate. That petition specifically listed Hallstrom as a purported heir who would be due a one-quarter share of the estate "pending verification of lineage." It also included a footnote underscoring that Leighton was not conceding that Hallstrom was a first cousin but instead still was awaiting proof of that. Leighton simultaneously sent a letter to Hallstrom's counsel seeking his assent to the sale of the property. She explained: "Since [Hallstrom] is a purported heir of the Estate, we are requesting his signature on the enclosed Petition for Sale of Real Estate to expedite the process of obtaining a License to Sell." The letter made it clear that Leighton was not accepting the proof that Hallstrom had supplied to date: "Please be advised that unless and until your client furnishes acceptable proof of lineage to this office, the Estate will not recognize Bengt Hallstrom as an heir of the Estate of Robert H. Olson." Hallstrom's counsel responded by providing Leighton the requested assent, as well as by sending her various genealogical charts purporting to document Hallstrom's status as a first cousin. His letter closed by stating, "I trust that this documentation will establish my client as an heir. Please let me know if you have any questions or need any further documentation."

By letter dated March 4, 2016, Leighton informed Hallstrom that she still did not intend to recognize him as an heir because she found his proof insufficient. That letter also included language that could be taken to suggest, for the first time, that the court already had determined that the heirs were limited to the three first cousins on Olson's father's side. At the same time, the letter continued to indicate that Leighton would recognize Hallstrom as an heir if "the Court makes a formal determination of [his] status as an actual heir of the Estate." Finally, even though nothing in the record suggests that Leighton ever had taken any affirmative steps of her own to track down whether there were heirs on Olson's mother's side, her March 2016 letter suggested that the onus was on Hallstrom "to seek relief in the Probate Court in any way you deem appropriate."

By letter dated May 18, 2016, Hallstrom sent Leighton an additional packet of genealogical records purporting to document his status as a first cousin. His letter closed by stating: "I believe this is the requested information to hopefully establish conclusively [Hallstrom's] status as an heir, but if there is any further information or verification that is necessary, please let me know."

In September of 2016, Hallstrom wrote to Leighton requesting an update. It is not clear if any direct response was provided. In any event, some two months later, in early December, Leighton filed a petition for order of complete settlement that sought approval to wind up the estate by distributing it in three equal shares to her and the other two first cousins on Olson's father's side. Hallstrom docketed an objection on January 30, 2017, and followed up about one month later by submitting documentation purporting to show that he too was a first cousin. That documentation included an executed "affidavit of research" from a London-based genealogist, together with certified birth, baptism, death, and marriage records from the Swedish region of Värmland, and the cities of Uppsala and Gothenburg. Leighton moved to strike Hallstrom's objection, arguing that the July 2015 decree already had determined that the heirs did not include Hallstrom and that therefore, on various procedural and jurisdictional grounds, it now was too late for Hallstrom to pursue his claim.

6. The judge's rulings. The judge agreed with several of Leighton's arguments. Relying on language from the Massachusetts Uniform Probate Code (MUPC), the judge reasoned that the July 2015 decree issued by the magistrate must be deemed "final"

unless Hallstrom timely filed either an appeal of that decree or a motion to vacate it (neither of which he did). See G. L. c. 190B, § 3-412. He went on to point out that even if Hallstrom had filed a timely motion to vacate the July 2015 decree, Hallstrom could not have met the other statutory criteria necessary to allow such a motion to be granted.

Hallstrom separately argued that Leighton violated fiduciary responsibilities that she owed to him "by failing to thoroughly investigate the possibility that he was an [h]eir." The judge rejected that argument based principally on the timing of Leighton's appointment as personal representative. According to him, Leighton had no fiduciary duties to Hallstrom until she was appointed pursuant to the July 2015 decree. See G. L. c. 190B, § 3-701 ("The duties and powers of a personal representative commence upon appointment"). Because the judge viewed the July 2015 decree as simultaneously appointing Leighton as personal representative and determining the heirs, the judge reasoned that "at the time her fiduciary duties commenced, the Court's determination of [h]eirs had already become final."

Having concluded that Hallstrom's claim to be an heir was precluded as a matter of law, the judge allowed Leighton's motion to strike Hallstrom's objection to her petition for a complete settlement of the estate. A final decree then issued, settling the estate in the manner Leighton had requested.

Discussion. As the judge well explained in his memorandum of decision, the MUPC contains strict procedural constraints to which practitioners must pay careful attention. As relevant here, once an order has issued that constitutes a formal determination of the heirs of an intestate estate, then unless that order has been appealed from or been the subject of a timely motion to vacate, the order "is final as to all persons with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant ... to the determination of heirs." G. L. c. 190B, § 3-412. Moreover, under the statute, a motion to vacate a formal determination of heirs can be brought in only limited circumstances that would not have applied here. See id. Finally, a motion to vacate must be brought within certain deadlines, including in any event by "[t]welve months after the entry of the order sought to be vacated." G. L. c. 190B, § 3-412 (3) (iii). Practitioners ignore such procedural land mines at their peril.

However, the key question before us is not whether the July 2015 decree became final (the issue on which the judge focused), but what that decree means. As noted, the July 2015 decree did not purport to set forth an exclusive listing of heirs; it simply included a checked box indicating that the heirs would be "as stated in [Leighton's] [p]etition." That petition forthrightly had acknowledged that there could be heirs on Olson's mother's side; it was just "unknown" to Leighton whether heirs existed "and, if so, the degree of kindred and location of such heirs." Further, by the time Leighton's petition was considered, Hallstrom had already come forward as a claimant and Leighton understood him as such. Moreover, the GAL that had been appointed to represent unidentified heirs also recognized that Hallstrom was a claimant (despite Hallstrom's not having filed a formal objection), and reported this to the court. In the GAL's view, the identity of the heirs would be resolved at a later point in the proceedings. In these specific circumstances, we do not interpret the magistrate's having checked the box on the preprinted form that the heirs would be "as stated in the [p]etition" as constituting a formal determination that the heirs would include only the three individuals specifically referenced in the petition, and not Hallstrom. Rather, Hallstrom's kinship status was left unresolved by the July 2015 decree and never has been adjudicated. Accordingly, Hallstrom was not precluded from raising it in opposition to Leighton's petition for a final settlement of the estate. Cf. Day v. Kerkorian, 61 Mass. App. Ct. 804, 809, 814 N.E.2d 745 (2004), quoting Kirker v. Board of Appeals of Raynham, 33 Mass. App. Ct. 111, 113, 596 N.E.2d 398 (1992) ("Issue preclusion is not available where there is 'ambiguity concerning the issues, the basis of decision, and what was deliberately left open by the judge' ").

One additional observation bears noting. Because we rule in Hallstrom's favor based on the meaning of the July 2015 decree, we need not resolve his alternative contention that Leighton violated fiduciary duties that she owed to him. Nevertheless, we note our disagreement with the judge's assessment that any such fiduciary duties were so evanescent as to vanish as soon as they were created. After the July 2015 decree was entered -- and despite her obvious conflict of interest -- Leighton continued to hold herself out as the frontline adjudicator of whether Hallstrom's proof of kinship was sufficient. Whatever else can be said about the extent of Leighton's fiduciary responsibilities to Hallstrom at that point, she had a duty not to mislead him about how his claim was to be resolved. Moreover, even though Hallstrom may carry the burden at trial of proving that he is entitled to a share of Olson's estate, see Hopkins v. Hopkins, 287 Mass. 542, 544, 192 N.E. 145 (1934), this does not absolve Leighton of seeing that a fair process is utilized to identify heirs. See Doe v. Roe, 19 Mass. App. Ct. 270, 272-273, 473 N.E.2d 719 (1985), quoting DeSautels,petitioner, 1 Mass. App. Ct. 787, 791, 307 N.E.2d 576 (1974) ("it is a 'basic responsibility of the probate judge and of the administrator' to identify a decedent's heirs and assure that his estate is properly distributed among them").

Conclusion. Because Hallstrom's status as an heir has never been adjudicated, we vacate the order allowing Leighton's motion to strike Hallstrom's objection to Leighton's petition for order of complete settlement and the final decree settling the estate. We remand this case to the Probate and Family Court for further proceedings consistent with this opinion.

So ordered.

      The key facts necessary to resolve this appeal are uncontested.

      Under the Massachusetts Uniform Probate Code, "[p]ersonal representative" is defined broadly to encompass a number of roles more commonly denoted in the case law, including, as examples, "executor" and "administrator." See G. L. c. 190B, § 1-201 (37).

      In addition, Leighton's petition, together with an accompanying motion, requested that she immediately be appointed as special personal representative. That motion was allowed on May 18, 2015. Although the relevant papers were not included in the record appendix, what is before us suggests that Leighton's appointment as special representative was necessitated by the need for someone to manage real estate that Olson had owned. See G. L. c. 190B, § 3-614.

      The form included a different box, left unchecked, that would have signified that what was being filed "IS an objection."

      The relevant passage from the letter is as follows:
      "The Court has already issued a decree and order that Robert H. Olson died intestate, that Dorothy Leighton be appointed Personal Representative and that the heirs are as stated in the petition, specifically Dorothy A. Leighton, Paul Carson and Nancy Broadhead. A copy of the Court's decree and order is enclosed for your information. The Estate will proceed in accordance with that decree and order.
      "Although you filed an appearance with the Plymouth Probate Court, your appearance did not include an objection to any of the numerous Court proceedings the Estate has undertaken to date in administering the Estate. Your filed appearance will continue to entitle you to notice of the Estate's probate proceedings.
      "If you disagree with our position, your client is free to seek relief in the Probate Court in any way you deem appropriate and the Estate will respond accordingly to any such action. Until then, please be advised that until the Court makes a formal determination of Bengt Hallstrom's status as an actual heir of the Estate, the Estate will not recognize or treat him as one and will proceed accordingly."

      The letter indicates that it was sent as a follow up to a telephone conversation that the two counsel had had. The record does not reveal the contents of that conversation.

      The package that Hallstrom sent included an unsigned affidavit, apparently from the genealogical researcher whom Hallstrom had hired. In his cover letter, Hallstrom promised to send a signed affidavit as soon as possible. The record indicates that the signed and notarized affidavit was supplied in July of 2016.

      Leighton also sought to question Hallstrom's claimed kinship on the facts. For example, she sought to poke holes in the archival records, e.g., by focusing on whether the first name of Olson's mother -- identified alternatively as "Valborg" and "Walborg" -- properly began with a "W" or a "V." The judge did not address Leighton's factual claims at this stage in the proceedings, and neither do we. See G. L. c. 190B, § 1-401 (affidavits of objection are reviewed only to determine if they meet statutory requirements); O'Rourke v. Hunter, 446 Mass. 814, 818, 848 N.E.2d 382 (2006) (in reviewing affidavit of objection, factual inferences to be drawn in favor of the objector).

      The judge rejected Leighton's argument that the doctrine of res judicata barred Hallstrom from claiming that he was an heir. Leighton no longer presses this argument.

      The judge also rejected arguments that he could and should modify the July 2015 decree pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). Hallstrom has not renewed his rule 60 (b) arguments on appeal, and we therefore have no occasion to consider them.

      As pertinent here, the MUPC provides:
      "[T]he determination of heirs of the decedent may be reconsidered if it is shown that [one] or more persons were omitted from the determination and it is also shown that the persons were unaware of their relationship to the decedent, were unaware of the death or were given no notice of any proceeding concerning the estate, except by publication."
      G. L. c. 190B, § 3-412 (2).

      As Hallstrom now acknowledges, he is not blameless in how this all unfolded. It appears that his failure to categorize his notice of appearance as a formal objection, see G. L. c. 190B, § 1-401 (d ), is what led the magistrate to consider the determination of heirs as an uncontested issue on which he could rule. See G. L. c. 190B, § 1-401 (g ) (authorizing magistrate to issue appropriate orders "[i]f a proceeding is unopposed"). See also E.M. Moriarty, R.A. Nesi, L.A. Roberts, T.P. Jalkut, C.G. Mehne, & E.J. Patsos, MUPC Estate Administration Procedural Guide § 4.15.4 (2d ed. 2016) ("A magistrate has no authority to hear a contested matter"). In hindsight, it is plain that Hallstrom should have tailored his initial filing to highlight that although he was not opposing the determination of intestacy or Leighton's appointment as personal representative, he was lodging an objection to Leighton's petition to the extent that it could be taken to state that he was not an heir. Even with the current bare-bones preprinted Probate and Family Court forms, he could have accomplished this through simple means, e.g., the creative deployment of asterisks. We urge the Probate and Family Court to revisit its forms to consider whether they should provide filers more options than simply identifying that a notice of appearance as a whole "is" or "is not" an objection, particularly where some of the court's forms (including petitions for formal adjudication, at issue here) allow petitioners to make multiple requests to the court at one time.

      Viewed from one perspective, the magistrate's checking this box was simply an error: the magistrate should not have signaled that the heirs were "as stated in the [p]etition" when the petition itself did not purport to set forth an exclusive listing of heirs, and all concerned were aware that Hallstrom was seeking a share. We have long recognized the principle that when a court error has created a "procedural tangle" that unfairly threatens to preclude a party from pursuing a claim, we generally rule in favor of that party "where this result is technically possible and does not work unfair prejudice to other parties." Krupp v. Gulf Oil Corp., 29 Mass. App. Ct. 116, 121, 557 N.E.2d 769 (1990). See id. at 121 n.6, 557 N.E.2d 769 (appellate rights not lost where lower court's "promiscuous use of the title, 'Judgment' ... [had left] parties in confusion as to when an appeal is called for to save their rights to appellate review").

      Notably, our interpretation of the July 2015 decree is consistent with how the parties themselves interpreted it at the time. As the above factual recitation makes clear, both sides considered Hallstrom's status as an heir to remain an open question long after the July 2015 decree entered. Even Leighton's March 2016 letter -- the first documented occasion in which she hinted that her position on the meaning of the July 2015 decree was evolving -- treated the question of Hallstrom's status as an issue that still had not finally been adjudicated. Although the document being interpreted here is a court order, not a negotiated contract, the parties' contemporaneous understanding of that order revealed by their actions sheds some light on how a reasonable person would interpret its language. Cf. T.F. v. B.L., 442 Mass. 522, 525, 813 N.E.2d 1244 (2004), quoting Martino v. First Nat'l Bank, 361 Mass. 325, 332, 280 N.E.2d 174 (1972) ("There is no surer way to find out what parties meant, than to see what they have done").

      Had Hallstrom pursued the more prudent course of filing a limited objection to Leighton's original petition, see note 13, supra, then under the terms of the MUPC, Hallstrom also shortly thereafter should have filed an affidavit of objection laying out the specific grounds of his objection. See G. L. c. 190B, § 1-401 (d ), (e ). In the absence of such an affidavit, Leighton could have moved to dismiss the objection, in which case Hallstrom could have argued that Leighton's request that heirs be determined was premature on the ground that she had not done any due diligence to track down heirs on the mother's side, or that, in any event, an extension of time to submit an affidavit of objection was proper under the particular circumstances presented. It would be inappropriate to speculate how the judge would have resolved such a contest.

      We recognize that the cases just cited predate the MUPC. See St. 2008, c. 521, § 9 (enacted on January 15, 2009, effective on March 31, 2012). However, by the express terms of the MUPC, such case law survives except to the extent the statute displaces it. See G. L. c. 190B, § 1-103. See generally Kerins v. Lima, 425 Mass. 108, 110, 680 N.E.2d 32 (1997), quoting Commercial Wharf E. Condominium Ass'n v. Waterfront Parking Corp., 407 Mass. 123, 129, 552 N.E.2d 66 (1990), S.C., 412 Mass. 309, 588 N.E.2d 675 (1992) ("a court 'will not presume that the Legislature intended ... a radical change in the common law without a clear expression of such intent' ").


source: Caselaw Access Project

author: MALDONADO, J.

license: Public Domain

text:
    GUARDIANSHIP OF KELVIN.
    No. 17-P-250
    Appeals Court of Massachusetts, Essex..
    Argued February 2, 2018. Decided November 8, 2018.
    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.

      A pseudonym.

   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. 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.

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.

A three-day trial was held on the two petitions in January and April of 2015. 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), 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. 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.

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 "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, 49 N.E.3d 230. See also Guardianship of V.V., 470 Mass. 590, 592, 24 N.E.3d 1022 (2015) ; Bezio v. Patenaude, 381 Mass. 563, 575, 410 N.E.2d 1207 (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, 49 N.E.3d 230.

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 Mass. 269, 283, 4 N.E.3d 889 (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." 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, 912 N.E.2d 958 (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, 934 N.E.2d 827 (2010), quoting Guardianship of Estelle, 70 Mass. App. Ct. at 580, 875 N.E.2d 515.

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, 49 N.E.3d 230. See Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 589, 421 N.E.2d 28 (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, 822 N.E.2d 1179 (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. See Care & Protection of Erin, 443 Mass. 567, 571, 823 N.E.2d 356 (2005) ;

Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 570, 915 N.E.2d 569 (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, 646 N.E.2d 1034 (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, 49 N.E.3d 230, 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 ).

For example, in Care & Protection of Erin, 443 Mass. at 568, 823 N.E.2d 356, 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, 823 N.E.2d 356, quoting Custody of a Minor (No. 2), 22 Mass. App. Ct. 91, 94, 491 N.E.2d 283 (1986).

The Supreme Judicial Court further held in Care & Protection of Erin, supra at 568, 823 N.E.2d 356, 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, 704 N.E.2d 200 (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 best interests are served by remaining removed from parental custody." Care & Protection of Erin, supra at 572, 823 N.E.2d 356. 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, 823 N.E.2d 356. 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, 823 N.E.2d 356, 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, 49 N.E.3d 230.

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 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, 656 N.E.2d 916 (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, 610 N.E.2d 938 (1993). In making this determination, the judge must ensure that the evidence on which she relies is not stale. See Adoption of George, 27 Mass. App. Ct. 265, 268, 537 N.E.2d 1251 (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, 463 N.E.2d 1187 (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, 912 N.E.2d 958 ; Guardianship of Estelle, 70 Mass. App. Ct. at 581, 875 N.E.2d 515. 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, 479 N.E.2d 148 (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 of Rhona, 57 Mass. App. Ct. 479, 487, 784 N.E.2d 22 (2003). See also Guardianship of Cheyenne, 77 Mass. App. Ct. at 830, 934 N.E.2d 827.

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.

      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).

      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.

      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.

      The trial judge was the same judge who had entered the original decree and order appointing the paternal grandfather as Kelvin's legal guardian.

      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.

      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.

      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, 433 N.E.2d 103 (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 notice, the mother appealed from both the judgment of dismissal and the decree issued regarding visitation. See Robinson v. City of Boston, 71 Mass. App. Ct. 765, 771, 887 N.E.2d 261 (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, 746 N.E.2d 565 (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, 71 N.E.3d 157 (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").

      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.

      General Laws c. 119, § 26 (c ), provides, in relevant part:
      "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."


author: WENDLANDT, J. RUBIN, J. (concurring). ENGLANDER, J. (concurring).

text:
    COMMONWEALTH v. Michael C. ROSA.
    No. 17-P-1140
    Appeals Court of Massachusetts, Hampshire..
    Argued June 4, 2018. Decided November 9, 2018.
    Glynis Mac Veety for the defendant.
    Caleb Weiner, Assistant District Attorney, for the Commonwealth.
    Present: Rubin, Wendlandt, & Englander, JJ.
   WENDLANDT, J.

In this case, we apply the three-part framework for the parental privilege defense as set forth in Commonwealth v. Dorvil, 472 Mass. 1, 12-13, 32 N.E.3d 861 (2015). Following a jury-waived trial, the defendant, Michael C. Rosa, was convicted of assault and battery by means of a dangerous weapon (shod foot) against his five year old daughter. On appeal, the defendant argues that the Commonwealth presented insufficient evidence either to disprove his parental privilege defense beyond a reasonable doubt, or to prove that his shod foot qualified as a dangerous weapon. We affirm.

Background. We recite the facts as the judge could have found them, drawing all reasonable inferences in the light most favorable to the Commonwealth. See id. at 3, 32 N.E.3d 861. On the morning of January 17, 2017, the defendant was walking with his five year old daughter and two year old son in downtown Northampton. As they headed to a local CVS store, according to the defendant, his daughter ran ahead and entered the store without him. According to a CVS employee, the defendant entered the store with only one of his children, but it is unclear from her testimony whether the other child entered after the defendant or before.

In any event, the CVS employee testified that the first thing she remembered upon their entry into the store was the children running around the store and the defendant cursing and yelling at his daughter. The defendant's daughter was laughing and hiding from the defendant. While walking through the store, the defendant continued to yell obscenities at his daughter. Eventually, the defendant's daughter, laughing, headed toward the store's front exit, where she encountered a CVS employee who said, "Whoa, hold on." The employee asked her what she was doing, and she responded, still laughing, that she was hiding from her father.

After approximately fifteen minutes in the store, the defendant stopped at a refrigerated case and picked up a bottle of iced coffee. While the defendant waited in line to pay, he saw his daughter by the front doors, hiding near the metal detectors. He did not pursue her, and she approached him. The subsequent interaction between the defendant and his daughter was captured by a video surveillance recording, and was also described at trial by the CVS employee.

The surveillance video footage and testimony of the CVS employee demonstrate that the defendant's daughter approached him and grabbed his legs. He shoved her in her chest with his hand, causing her to take a step or two to regain her balance. She then attempted to cling to his lower legs with her arms, and he once again shoved her away, this time causing her to step back two or three steps before falling down onto her buttocks; she immediately got back up. According to the CVS employee's testimony, the daughter reacted to this pushing in a playful manner but showed signs of becoming agitated.

The defendant then approached the counter to pay for his coffee. The CVS employee testified that, at this point, the defendant warned his daughter to stay away from him, telling her, "[G]et the fuck away from me. Trust me, you don't want to fucking be near me right now." His daughter came toward him again. In response, the defendant lifted his foot and kicked his daughter in the chest, knocking her to the ground and causing her and her brother to cry briefly.

The surveillance video shows that in response to the kick, the daughter stepped back, lost her balance, fell onto her bottom again, and remained there for approximately two seconds. After getting up, the daughter meandered around the area of the cash register as the defendant finished his purchase, at which point she left the store with the defendant and her brother.

The CVS employee called the police to report the incident, and two police officers stopped the defendant shortly thereafter. During the stop, Northampton police officer Brent Dzialo separated the defendant from his children and asked him why he had kicked his daughter in the chest. The defendant answered, "I don't raise pussies." The defendant acknowledged that he had used his foot to make contact with her chest and push her down but denied kicking her. Dzialo described the defendant's footwear (which was admitted in evidence) as "snow boot style boots/shoes." Dzialo also testified that the defendant's daughter did not have any red marks, scratches, bruises, or other visible injuries, and therefore, he did not seek medical attention for her.

At the time of the incident, the defendant was approximately five feet, six inches tall, and weighed three hundred pounds. His daughter was approximately three feet tall, and weighed less than fifty pounds.

The defense at trial was that the defendant's conduct was protected by the parental privilege defense. The defendant denied kicking his daughter, claiming that he only "nudged" her. He stated that he was concerned about his "daughter getting kidnapped, missing." On cross-examination, he asserted that he had "tried to use other methods that didn't work," and that he "realized that the only way to get my daughter to stay by my side was to use a little reverse psychology." Later, however, he admitted that by the time he kicked her, he "wasn't in fear that she was going to be kidnapped," and he did not even "want her close by [to him]." Finally, he claimed that his comment to Dzialo -- that he kicked his daughter because "I don't raise pussies" -- was meant to convey that he did not want to raise his children to be victims of bullying.

The judge found the defendant guilty of assault and battery by means of a dangerous weapon, expressly crediting the CVS employee's testimony that the defendant "kicked [his] child in the chest," and rejecting the defendant's testimony that he only nudged his daughter.

Discussion. 1. Parental privilege defense. The parental privilege defense seeks to balance two competing interests: (i) protection of the parental right to autonomy over the care and upbringing of children, and (ii) safeguarding children from punishment so excessive that it constitutes abuse. See Dorvil, 472 Mass. at 12, 32 N.E.3d 861. The privilege provides that no criminal liability will attach to a parent's use of force against his or her child as long as "(1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress." Id."[E]ach of the three prongs constitutes a question for the trier of fact." Id. at 13, 32 N.E.3d 861. See Commonwealth v. Packer, 88 Mass. App. Ct. 585, 594-595, 39 N.E.3d 753 (2015). As is the case with other affirmative defenses, "the Commonwealth bears the burden of disproving at least one prong of the defense beyond a reasonable doubt." Dorvil, 472 Mass. at 13, 32 N.E.3d 861.

Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the evidence adduced at trial was sufficient to support the judge's finding that at least one of the parental discipline defense prongs was disproved beyond a reasonable doubt. In evaluating the reasonableness of the force used (prong one) and of the relation of that force to a permissible parental purpose (prong two), the trier of fact should take into account a variety of factors, including "the child's 'age,' the 'physical and mental condition of the child,' and 'the nature of [the child's] offense,' " among others. Dorvil, 472 Mass. at 13, 32 N.E.3d 861, quoting Restatement (Second) of Torts § 150 (1965).

Here, there was sufficient evidence for the judge to find the Commonwealth had met its burden with regard to prong two, rejecting the defendant's stated legitimate purpose for his conduct. See, e.g., id. (looking at defendant's stated reason for spanking child). At trial, the defendant justified his action on the ground that he was afraid his daughter might be kidnapped or go missing. Prior to the kick, however, the defendant's daughter repeatedly attempted to stay by his side, only to have the defendant shove her away twice and warn her to get "the fuck away from [him]." Indeed, the defendant admitted at trial that, by the time he kicked her, he no longer feared she would be kidnapped and did not even "want her close by." In light of the defendant's admission that his purportedly legitimate parental purpose was a pretext, the judge could reasonably have found that the defendant's decision to kick his daughter was wholly unrelated to the purpose of safeguarding or promoting the welfare of the minor. Cf. Commonwealth v. Grassie, 476 Mass. 202, 210, 65 N.E.3d 1199 (2017) ("Commonwealth may establish the absence of proper use of self-defense by proving beyond a reasonable doubt [that] ... the defendant did not actually believe that he was in immediate danger of death or serious bodily harm from which he could have saved himself only by using deadly force").

Moreover, prior to the trial, the defendant provided a different explanation for his conduct, stating that he kicked his daughter because "I don't raise pussies." At trial, he explained: "I mean that, in society today, there's a lot of children being bullied in schools and I'm not going to raise my children to be victims." Certainly, the judge could also reasonably have found that the defendant's shifting rationale for the kick belied his assertion that the kick related to a legitimate purpose of safeguarding or promoting the welfare of the minor. Here, the judge expressly found the defendant not to be credible, instead crediting the testimony of the CVS employee that the defendant kicked the daughter in the chest and finding the defendant's testimony that he merely nudged her not credible. See Commonwealth v. Bousquet, 407 Mass. 854, 861-862, 556 N.E.2d 37 (1990) ("[T]he question was one of credibility for the finder of fact and we shall not substitute our judgment for that of the trial judge").

Because the evidence was sufficient to allow the judge to find that the Commonwealth met its burden to disprove prong two of the defendant's parental privilege defense, we need not address either prong one or prong three. See Commonwealth v. Dobson, 92 Mass. App. Ct. 355, 359, 85 N.E.3d 689 (2017). The privilege is available only if the force used is both reasonable and reasonably related to a legitimate parental purpose. See Dorvil, 472 Mass. at 12-13, 32 N.E.3d 861 ("By requiring that the force be reasonable and reasonably related to a legitimate purpose, this approach effectively balances respect for parental decisions regarding the care and upbringing of minor children with the Commonwealth's compelling interest in protecting children against abuse"). As the Supreme Judicial Court has held, the Commonwealth may overcome the defense by "disproving at least one prong of the defense beyond a reasonable doubt" (emphasis supplied). Id. at 13, 32 N.E.3d 861. Significantly, the privilege is based on the special role parents play in the rearing of their children and is founded on a recognition that "we must guard against the imposition of criminal sanctions for the use of parenting techniques still widely regarded as permissible and warranted." Id. at 9, 32 N.E.3d 861. Parenting is essential to the reason underlying the privilege, and that aspect of the privilege is embodied in prong two. Accordingly, where, as here, the Commonwealth provides evidence sufficient to find that the defendant's supposedly legitimate parenting purpose is false, there is sufficient evidence to sustain its burden.

2. Sufficiency of the evidence of use of shod foot as a dangerous weapon. The defendant additionally maintains that his assault and battery by means of a dangerous weapon conviction should be reversed because the Commonwealth presented insufficient evidence to prove that his boot qualified as a dangerous weapon. Where an object that is not dangerous per se (such as a boot) is alleged to be a dangerous weapon, the question is "whether the object, as used by the defendant, is capable of producing serious bodily harm." Commonwealth v. Tevlin, 433 Mass. 305, 310, 741 N.E.2d 827 (2001), quoting Commonwealth v. Mercado, 24 Mass. App. Ct. 391, 397, 509 N.E.2d 300 (1987). "Resolution of these questions is invariably for the fact finder ... and involves not only consideration of any evidence as to the nature and specific features of the object but also attention to the circumstances surrounding the assault and the use of the object, and the manner in which it was handled or controlled." Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922, 471 N.E.2d 1356 (1984).

Here, the evidence demonstrated that the defendant used his snow boot to kick -- not to push -- his five year old daughter in the chest with sufficient force to knock her down onto the ground. See id. ("Footwear, such as a shoe, when used to kick, can be a dangerous weapon"). As set forth supra, the judge specifically discredited the defendant's testimony that he only nudged his daughter. Cf.

Mercado, 24 Mass. App. Ct. at 397, 509 N.E.2d 300 (insufficient evidence that shod foot was dangerous weapon where shod foot was only used to "nudge" the victim). Viewing this evidence in the light most favorable to the Commonwealth, see Latimore, 378 Mass. at 676-677, 393 N.E.2d 370, a reasonable trier of fact could have concluded that the defendant used his boot in a manner that created the possibility of serious harm to his daughter. See Commonwealth v. Charles, 57 Mass. App. Ct. 595, 599, 785 N.E.2d 384 (2003) (kicking was "not so minimal as to foreclose an inference that the shod feet of the defendants were being used as dangerous weapons").

3. Probation. The judge sentenced the defendant to two and one-half years in the house of correction with six months to be served, the balance suspended for five years, and probation for the duration of the five-year suspended sentence. The defendant contends that the five-year term of probation was an illegal sentence because it was longer than the two and one-half year maximum imprisonment sentence for assault and battery by means of a dangerous weapon. See G. L. c. 265, § 15 A (b ). However, the probation statute, G. L. c. 276, § 87, permits a judge to place a defendant on probation for a length of time exceeding the offense's maximum sentence of imprisonment. See Commonwealth v. Powers, 73 Mass. App. Ct. 186, 188, 896 N.E.2d 644 (2008).

Judgment affirmed.

RUBIN, J. (concurring).

The defendant kicked his five year old daughter in the chest and was charged with assault and battery by means of a dangerous weapon, to wit, his shod foot. He did not argue that his conduct, although wrongful, was justified under the theory of necessity or "competing harms." "In essence, the 'competing harms' defense exonerates one who commits a crime under the 'pressure of circumstances' if the harm that would have resulted from compliance with the law significantly exceeds the harm actually resulting from the defendant's violation of the law. At its root is an appreciation that there may be circumstances where the value protected by the law is, as a matter of public policy, eclipsed by a superseding value which makes it inappropriate and unjust to apply the usual criminal rule. See generally LaFave & Scott, Criminal Law § 50 (1972); Arnolds & Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. Crim. L. & Criminology 289, 291-296 (1974)." Commonwealth v. Brugmann, 13 Mass. App. Ct. 373, 376-377, 433 N.E.2d 457 (1982). Rather, the defendant argued that he was entitled to kick his child because of the parental discipline privilege, which is the "privilege to use reasonable force in disciplining a minor child," under which " a parent or guardian may not be subjected to criminal liability for the use of force against a minor child under the care and supervision of the parent or guardian, provided that (1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress." Commonwealth v. Dorvil, 472 Mass. 1, 8, 12, 32 N.E.3d 861 (2015). As the Supreme Judicial Court has explained, "[a]s with other affirmative defenses, where the parental privilege defense is properly before the trier of fact, the Commonwealth bears the burden of disproving at least one prong of the defense beyond a reasonable doubt." Id. at 13, 32 N.E.3d 861.

I join the court's opinion rejecting the defendant's claim on the ground that the Commonwealth has provided sufficient evidence to disprove beyond a reasonable doubt the second prong of that privilege as defined by the Supreme Judicial Court's decision in Dorvil, 472 Mass. at 12, 32 N.E.3d 861. With respect to the first prong, I agree with my brother Englander that "the CVS employee's testimony that the defendant 'lifted his foot' and 'kicked' his five year old daughter 'in the chest' is sufficient evidence" to support a finding by the judge beyond a reasonable doubt of the use of "unreasonable force," post at ----, 114 N.E.3d at ----. I therefore also conclude -- and note that the panel thus unanimously holds -- that the defendant's conviction of assault and battery by means of a dangerous weapon (shod foot) must also be affirmed, independently of the holding of the majority opinion with respect to Dorvil's second prong, on the ground that the Commonwealth met its burden of disproving under Dorvil's first prong that the "the force used against the minor child [was] reasonable." Id.

As to the third prong, although kicking a child might be necessary to avoid injury or death such that it might in some circumstance be justified under the necessity or competing harms defense, because kicking a child always "creates a substantial risk of ... physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress," Dorvil, supra at 12, 32 N.E.3d 861, I am of the view that prong three means that kicking a child cannot be justified under the parental discipline privilege. Put another way, I conclude that the parental privilege does not include the right to discipline a child by kicking her.

This is consistent with the reasoning underlying the Supreme Judicial Court's recognition of the parental discipline privilege. That court noted that, because "substantial majorities of parents continue to say that spanking is sometimes necessary to discipline children, ... the long-standing and widespread acceptance of such punishment remains firmly woven into our nation's social fabric. It follows that we must guard against the imposition of criminal sanctions for the use of parenting techniques still widely regarded as permissible and warranted." Id. at 9, 32 N.E.3d 861.

While this accurately describes spanking, the practice of kicking one's child as a method of discipline is of course not firmly woven into our nation's social fabric, nor is it widely regarded as permissible and warranted. Indeed, our society abhors kicking even a dog, never mind a child.

Consistent with the physical risk involved in kicking a child, as well as society's understanding of its degrading nature, several states that allow parents to utilize corporal punishment on their children for purposes of discipline nonetheless explicitly treat kicking a child as beyond, or presumptively beyond, the scope of the privilege. Under Delaware's law creating a parental discipline privilege, for example, "force shall not be justified if it includes, but is not limited to, any of the following: Throwing the child, kicking, burning, cutting, ... [or] striking with a closed fist" (emphasis supplied). Del. Code Ann. tit. 11, § 468(1) a (2018). That statute makes clear that this is because the listed acts, including kicking a child, are "likely to cause or do[ ] cause physical injury, disfigurement, mental distress, unnecessary degradation or substantial risk of serious physical injury or death." Del. Code Ann. tit. 11, § 468(1) c. These are essentially the factors articulated by our Supreme Judicial Court in Dorvil, 472 Mass. at 12, 32 N.E.3d 861, that render otherwise permissible conduct outside the privilege under prong three.

Because of these factors, and given the instruction in Dorvil that where there is doubt "the balance will tip in favor of the protection of children from abuse inflicted in the guise of discipline," id. at 15, 32 N.E.3d 861, which I take to mean that the law of the Commonwealth is to be as protective of the dignity of children and their right as human beings to be protected from violence as is consistent with allowing parents to discipline their children using "parenting techniques still widely regarded as permissible and warranted," I conclude that, under the third prong of Dorvil, kicking a child may not be justified as a lawful way of disciplining her. Rather, such kicking can be justified on the basis that it is undertaken in order to further the welfare of the child only in circumstances where it is done as a matter of necessity under the "competing harms" defense.

ENGLANDER, J. (concurring).

I concur in the court's affirmance of the conviction, but for reasons different than the majority opinion. As this case shows, the cases in this area can be difficult -- where the courts are asked to apply the laws of criminal assault in the context of the parent-child relationship, and where the law provides that a parent may use reasonable force to discipline one's child. I write separately to make three points.

First, I would rest the affirmance on prong one of the standard articulated in Commonwealth v. Dorvil, 472 Mass. 1, 12, 32 N.E.3d 861 (2015), and conclude that there was sufficient evidence of unreasonable force here. Specifically, the CVS employee's testimony that the defendant "lifted his foot" and "kicked" his five year old daughter "in the chest" is sufficient evidence of unreasonable force under the standard of review of Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

That said, however, it is worth noting that the evidence of unreasonable force here was thin. Indeed, the majority does not rest its analysis on prong one. See ante at ----, 114 N.E.3d at ----. The child was uninjured. She went down on her behind, but got up immediately. There was no further evidence presented as to the force of the "kick," just the characterization itself. There was no evidence as to whether the defendant extended his leg with any velocity, or merely pushed the child back. The surveillance video does not show this. When asked at oral argument, the Commonwealth could cite no other case, from any jurisdiction, where a parent had been convicted of assault and battery on their child upon a comparable showing of force, with no injury. ,

Second, I disagree with the majority over prong two of the Dorvil standard, although my disagreement is more with the standard itself than its application here. Prong two asks whether "the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct." Dorvil, 472 Mass. at 12, 32 N.E.3d 861. This is the prong on which the majority rests its decision. See ante at ----, 114 N.E.3d at ----. The majority concludes that the parental privilege is overcome because, in its view, there was sufficient evidence to conclude that what this father did was not reasonably related to "prevention ... of the [child's] misconduct." Ante at ----, 114 N.E.3d at ----.

I am troubled by the prong two requirement. Under prong one, a parent asserting the parental privilege must already show that any force he or she used on the child was "reasonable." Prong two asks a different question, and it is whether the parent has also shown that the force used was reasonable discipline-- that is, that the force was reasonable for the purpose of promoting the welfare of the child, including the prevention or punishment of misconduct. See Dorvil, 472 Mass. at 12, 32 N.E.3d 861. The prong two requirement thus sets up the possibility that a parent will have shown that the force used was reasonable under prong one, but nevertheless is convicted of assault because (in the fact finder's judgment) the parent's reasonable force was not reasonably related to disciplining the child.

Viewed in this light, the second prong can be understood as an invitation to pass judgment on how a parent has chosen to parent. In my view, the courts should tread lightly in this area. Whether discipline is required, and how to render it effectively, are complex questions that vary greatly from child to child, year to year, moment to moment. The law should give substantial leeway to parents to make those judgments, and it should allow for a range of differences in parenting philosophy, as well. I do not think the parental privilege should be overcome solely because the fact finder concludes that the parent's use of force, although reasonable, did not meet its view of what was appropriate discipline.

This case illustrates the issue. There was objective evidence that the child was misbehaving, and was in need of control. She had traveled ahead of her father in a downtown area. She later started to leave the CVS building alone, heading for a downtown street. She was uncontrolled for fifteen minutes or more. The majority nevertheless concludes that there was sufficient evidence to find that the discipline the father employed was inappropriate -- not "reasonably related to ... prevention or punishment of the [child's] misconduct." Ante at ----, 114 N.E.3d at ----. In accordance with prong two, however, the majority's analysis does not rest on the nature of the force used, but rather rests on the evidence of how the father explained his actions. In this way the courts become involved, unnecessarily in my view, in evaluating the parent's judgment about how to discipline their child.

Third, I note that the Commonwealth's evidence and argument in this case focused unduly on what the defendant said to his child, rather than what he did. The testimony emphasized that the defendant was loud, profane, and offensive, and that he swore directly at his young children. The prosecutor carried this theme into closing, and indeed spent the bulk of his time on it.

There are two problems with the prosecutor's emphasis on the defendant's speech. The first is that the prosecutor employed it to argue that the defendant was angry, but the court in Dorvil specifically held that the parental privilege defense does not hinge on the parent's subjective state of mind, including whether the parent acted out of anger. See Dorvil, 472 Mass. at 13-14, 32 N.E.3d 861. Accord Commonwealth v. Packer, 88 Mass. App. Ct. 585, 593-594, 39 N.E.3d 753 (2015). The second problem is that the offensiveness of the defendant's speech is not relevant to a prosecution for assault and battery with a dangerous weapon. While what the defendant said may be relevant to certain elements of the parental privilege defense, the fact that what he said was offensive, was not. See, e.g., Cohen v. California, 403 U.S. 15, 18-26, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (defendant could not be criminally prosecuted for wearing T-shirt saying "Fuck the Draft").

With the foregoing reservations, I concur in the affirmance.

      He was acquitted of reckless endangerment of a child.

      The Commonwealth argues that the defendant's extensive use of profanity alone defeats the parental privilege defense. We disagree. The Supreme Judicial Court has expressly rejected the argument that the availability of the defense hinges on the parent's emotional state. See Dorvil, 472 Mass. at 14, 32 N.E.3d 861 (declining to consider evidence that defendant was angry while using force because "[t]he view under which the availability of the parental privilege defense hinges on a parent's subjective state, however, finds scant support in modern law, and we reject it").

      Though we need not reach the issue, there was also sufficient evidence to support the finding that the Commonwealth met its burden of disproving under Dorvil's first prong that "the force used against the minor child [was] reasonable." Dorvil, 472 Mass. at 12, 32 N.E.3d 861.

      Prong three additionally specifies "certain types of force that are invariably unreasonable," clarifying the meaning of the reasonableness standard and providing guidance to courts and parents. Dorvil, 472 Mass. at 13, 32 N.E.3d 861. The Commonwealth concedes that it did not meet its burden with regard to prong three.

      The judge found the defendant not guilty of reckless endangerment of a child, explaining, "I have to agree with defense counsel that, at least with respect to the elements that require the Commonwealth to prove that the defendant engaged in conduct which created a substantial and unjustifiable risk of serious bodily injury was not met." The elements of reckless endangerment of a child under G. L. c. 265, § 13 L, are "(i) a child under eighteen; (ii) a substantial risk of serious bodily injury ... ; (iii) the defendant wantonly or recklessly engaged in conduct that created this substantial risk, or failed to take reasonable steps to alleviate such risk where there is a duty to act." Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 258, 982 N.E.2d 1202 (2013). We disagree with the defendant that the judge's statement (which apparently relates at least to the third element of reckless endangerment concerning the defendant's mental state) is irreconcilable with the finding that the defendant -- who was five feet, six inches tall and weighed 300 pounds, and used his snow boot to kick his five year old daughter, who was three feet tall and weighed less than 50 pounds, in the chest -- employed his shod foot as an object "capable of producing serious bodily harm." Tevlin, 433 Mass. at 310, 741 N.E.2d 827, quoting Mercado, 24 Mass. App. Ct. at 397, 509 N.E.2d 300. Cf. Commonwealth v. Coggeshall, 473 Mass. 665, 668, 46 N.E.3d 19 (2016), quoting Commonwealth v. Hendricks, 452 Mass. 97, 103, 891 N.E.2d 209 (2008) ("substantial risk" of serious bodily injury in context of reckless endangerment of child means "a good deal more than a possibility"). The judge expressly stated: "I do credit the testimony that you kicked your child in the chest. You didn't nudge your child in the chest ...."

      The defendant also maintains that the probation condition that he "comply with all DCF [Department of Children and Families] requirements regarding the custody of [his] children" impermissibly interferes with the "province of the Probate and Family Court or the Juvenile Court." However, he cites to no conflicting order of these courts. Accordingly, the argument is unavailing.

      As the majority notes, the trial judge found the defendant "not guilty" of reckless endangerment, and in doing so expressly found that the defendant did not "engage[ ] in conduct which created a substantial and unjustifiable risk of serious bodily injury ...."

      Our case law is not yet very developed as to what force can qualify as "unreasonable." Dorvil, 472 Mass. at 3, 13, 32 N.E.3d 861, holds that "smacking [a] child on the [clothed] buttocks" -- a spank, if you will -- falls within the parental privilege. Commonwealth v. Dobson, 92 Mass. App. Ct. 355, 357-359, 85 N.E.3d 689 (2017), on the other hand, involved the striking of a child in the face with a belt, such that it left a mark, which was sufficient evidence of unreasonable force to overcome the privilege. This case falls between those fact patterns.

      The majority points out that the privilege derives from parenting, and thus the use of force must be shown to be related to parenting (hence, prong two). Perhaps, but I am not sure why the requirement of "reasonable" force in prong one does not serve that purpose. By using the word "reasonable" in both prong one and prong two, the standard sets up two separate requirements, and invites a separate evaluation whether the force used was appropriate as discipline. See Dorvil, 472 Mass. at 12-13, 32 N.E.3d 861. The requirement also gives rise to the risk -- inherent in the standard -- that less articulate parents will have more difficulty justifying their actions.

      For example, the prosecutor argued: "[F]rom the moment he gets in, ... he's screaming and shouting obscenities at a five year old child," and "[H]e's saying things like 'Get the fuck away from me.' How in the world is that reasonable ...?"

      The conduct at issue might be more effectively addressed by the Department of Children and Families, rather than by the criminal laws.


author: Per Curiam.

text:
    The STATE EX REL. WITT, Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees.
    No. 2017-0430
    Supreme Court of Ohio.
    Submitted February 27, 2018 Decided May 2, 2018
    Law Office of Thomas Tootle and Thomas Tootle, Circleville, for appellant.
    Michael DeWine, Attorney General, and Kevin J. Reis, Assistant Attorney General, for appellee Industrial Commission.
    Robert W. Bright, for appellee Christian Morris Construction, Inc.
   Per Curiam.

{¶ 1} This is an appeal from the denial of a writ of mandamus in a workers' compensation matter. Prior to filing his complaint for a writ of mandamus, appellant, Billy R. Witt Jr., appealed a decision of the Bureau of Workers' Compensation recalculating his full weekly wage ("FWW") and average weekly wage ("AWW"). Appellee Industrial Commission upheld the recalculation and instructed the bureau to determine how much Witt had previously been overpaid and to recoup that amount through reduction of his future benefits.

{¶ 2} Witt then filed the above-mentioned complaint for a writ of mandamus in the Tenth District Court of Appeals, seeking to compel the commission to vacate its order retroactively adjusting his benefit rate. The court concluded that the bureau and the commission had had jurisdiction to correct the miscalculation in Witt's FWW and AWW and that the commission had not abused its discretion in upholding the bureau's adjustment of Witt's benefit rate. The court denied the writ of mandamus, and Witt appealed.

{¶ 3} For the reasons that follow, we affirm the judgment of the court of appeals.

Facts and Procedural History

{¶ 4} On July 2, 1997, Witt was injured in a work-related motor-vehicle accident while employed by appellee Christian Morris Construction, Inc. His workers' compensation claim was initially allowed for a concussion, contusions and open wounds, and a sprained pelvis. The commission subsequently allowed additional medical conditions.

{¶ 5} The bureau initially calculated Witt's FWW as $416.63 and his AWW as $365.86. As of January 14, 2014, based on those calculations, Witt had been paid compensation in the amount of $196,163.98.

{¶ 6} In January 2014, Witt applied for permanent-total-disability compensation. The commission granted the application and awarded compensation beginning November 19, 2013.

{¶ 7} On March 2, 2015, the bureau notified Witt that it had recalculated his FWW and AWW after discovering that Witt's benefit rates had previously been incorrectly calculated. His FWW, originally set at $416.63, was now $422.81. His AWW was adjusted from $365.86 to $263.83. The bureau's order stated that any overpayment that had resulted from the original miscalculation would be established by separate order once the wage-adjustment order was final.

{¶ 8} Witt appealed the bureau's order to the commission. Following a hearing, a district hearing officer affirmed the bureau's order and directed the bureau to adjust the compensation previously paid to Witt to take into account the new figures and to recoup any overpayment from Witt's future benefits. The district hearing officer rejected Witt's argument that the doctrine of laches should prevent the bureau from adjusting the rate.

{¶ 9} Witt appealed the district hearing officer's order. Following a hearing, a staff hearing officer modified the newly calculated AWW, increasing it from $263.83 to $325.00. The staff hearing officer directed the administrator "to adjust compensation previously paid in this claim to take into account these new figures. * * * The recoupment from any future benefits, if this creates an overpayment, is limited to the non-fraud provisions of R.C. 4123.511(K)." The staff hearing officer also rejected Witt's argument that the doctrine of laches should apply to the recoupment of the overpayment. The commission refused to hear Witt's appeal from the staff hearing officer's order.

{¶ 10} Witt filed a complaint for a writ of mandamus in the Tenth District Court of Appeals, alleging that the bureau lacked statutory authority to exercise continuing jurisdiction over his claim and that the commission's decision to retroactively adjust his benefits was unsupported by law and was an abuse of discretion.

{¶ 11} In the court of appeals, a magistrate determined that the bureau did not have statutory authority to issue its order and that the court should issue a writ of mandamus ordering the commission to vacate its order adjusting the benefit rates and to enter a new order holding that the bureau did not have jurisdiction to issue its March 2, 2015 order.

{¶ 12} The commission filed objections to the magistrate's decision. First, the commission argued that the magistrate had erred in concluding that the bureau lacked authority to recalculate Witt's FWW and AWW. Second, the commission argued that the magistrate had erred in concluding that the bureau must file an application for either the bureau or the commission to exercise continuing jurisdiction pursuant to R.C. 4123.52. And third, the commission maintained that the magistrate had misinterpreted State ex rel. Drone v. Indus. Comm. , 93 Ohio St.3d 151, 753 N.E.2d 185 (2001).

{¶ 13} The court of appeals sustained the second and third objections, determined that the first objection was moot, and denied the writ of mandamus. The court concluded that the bureau and the commission had continuing jurisdiction to correct a miscalculation of an injured worker's FWW and AWW and that there was no statutory requirement that the bureau first file a motion to do so. The court noted that Drone recognized that the bureau may sua sponte exercise its continuing jurisdiction to correct a mistake and need not apply for permission to act. 2017-Ohio-554, 2017 WL 656791, ¶ 17, citing Drone at 154, 753 N.E.2d 185. Thus, the court of appeals concluded that the commission had not abused its discretion.

{¶ 14} This matter is before the court on Witt's appeal as of right.

Legal Analysis

{¶ 15} To be entitled to extraordinary relief in mandamus, Witt must establish a clear legal right to the relief requested, a clear legal duty on the part of the commission to provide it, and the lack of an adequate remedy at law. See State ex rel. Manpower of Dayton, Inc. v. Indus. Comm. , 147 Ohio St.3d 360, 2016-Ohio-7741, 65 N.E.3d 751, ¶ 9. So long as the commission exercises its discretion soundly and within legal bounds, mandamus is not an appropriate remedy. State ex rel. Goodyear Tire & Rubber Co. v. Indus. Comm. , 38 Ohio St.2d 57, 62, 310 N.E.2d 240 (1974).

{¶ 16} Workers' compensation benefits are paid based on the FWW and the AWW of the injured worker. R.C. 4123.61. The first 12 weeks of temporary-total-disability compensation are based upon the injured worker's FWW at the time of the injury. Id. If the injured worker is still entitled to compensation after 12 weeks of missed work, benefits are paid based on the injured worker's AWW, id. , a rate designed to provide a fair basis for an award for the loss of future compensation, State ex rel. Wireman v. Indus. Comm. , 49 Ohio St.3d 286, 287, 551 N.E.2d 1265 (1990). The two dominant considerations when calculating an AWW are that the AWW provide "substantial justice" to the claimant and that it not provide a windfall. Id.

{¶ 17} Witt challenges the bureau's authority to adjust his previously paid compensation beyond a two-year look-back period from the date it recalculated his FWW and AWW. Witt argues that the bureau was required to file a motion or application for permission to adjust his compensation, but instead, the bureau issued an order in an attempt to exercise continuing jurisdiction. According to Witt, the bureau lacked authority under R.C. 4123.52.

{¶ 18} Witt also argues that because R.C. 4123.52 authorizes only the commission to modify former orders, the bureau should have requested a hearing to determine whether the commission had grounds to exercise its continuing jurisdiction in this matter. Witt also contends that the commission failed to exercise its continuing jurisdiction within a reasonable time.

{¶ 19} Appellees maintain that both the bureau and commission have authority pursuant to R.C. 4123.52(A) to exercise continuing jurisdiction over claims and that the statute does not require the bureau to file a motion or application in advance. The commission also maintains that Witt did not raise the question of continuing jurisdiction at the administrative level and thus he forfeited the issue. Finally, the commission contends that it heard this matter on Witt's appeal from the bureau's decision in the normal course under R.C. 4123.511, not by exercising continuing jurisdiction.

{¶ 20} Witt focuses the majority of his argument on whether the bureau and/or the commission properly exercised continuing jurisdiction, an issue that neither the district hearing officer nor the staff hearing officer addressed. Thus, it does not appear to have been raised during the administrative proceedings before the commission. Nevertheless, Witt relies on the following provisions of R.C. 4123.52 :

(A) The jurisdiction of the industrial commission and the authority of the administrator of workers' compensation over each case is continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified. * * * The commission shall not make any modification, change, finding, or award which shall award compensation for a back period in excess of two years prior to the date of filing application therefor.
* * *
(D) This section does not affect the right of a claimant to compensation accruing subsequent to the filing of any such application, provided the application is filed within the time limit provided in this section.

{¶ 21} The court of appeals determined that there is no statutory requirement that the bureau file a motion to correct a calculation error. The court also inferred from our decision in Drone that the bureau may sua sponte exercise its continuing jurisdiction to correct a mistake without applying for permission to act. 2017-Ohio-554, 2017 WL 656791, at ¶ 17, citing Drone , 93 Ohio St.3d at 154, 753 N.E.2d 185. Thus, the court of appeals concluded that the bureau had continuing jurisdiction to correct the miscalculation in Witt's FWW and AWW and that the commission did not abuse its discretion when it upheld the bureau's adjustment of Witt's benefit rate.

{¶ 22} We agree.

{¶ 23} The plain language of R.C. 4123.52 grants authority to both the bureau and the commission to exercise continuing jurisdiction over a case, and the commission may modify former findings or orders if a modification is justified. R.C. 4123.52 does not require the bureau to file an application in order to exercise its authority. Drone supports this conclusion.

{¶ 24} Drone involved the bureau's recalculation of the claimant's AWW that revealed that for years, the claimant had received less compensation than she had been entitled to receive. The bureau sua sponte issued an order adjusting the amount of the claimant's compensation, but it limited the adjustments to the compensation she had received within two years of the bureau's discovery of the error. The claimant appealed the bureau's order to the commission, claiming that the adjustments should be made to all the compensation she had received. A staff hearing officer affirmed the bureau's decision.

{¶ 25} The claimant filed a complaint for a writ of mandamus, alleging that the commission and the bureau abused their discretion when they refused to adjust all the compensation she had received. The court of appeals agreed and issued a writ compelling the commission to pay the claimant all the compensation she would have received if the AWW had initially been calculated correctly less the amount she actually did receive. This court affirmed the court of appeals' judgment.

{¶ 26} The question in Drone was how far back the adjustment should apply. The pertinent portion of R.C. 4123.52 states: "The commission shall not make any modification, change, finding, or award which shall award compensation for a back period in excess of two years prior to the date of filing application therefor." (Emphasis added.) R.C. 4123.52(A).

{¶ 27} We determined in Drone that the statute of limitations set forth in R.C. 4123.52 is not triggered unless an application to modify is filed. We also determined that the bureau may sua sponte exercise its continuing jurisdiction to correct a mistake and issue an order without filing an application. Id. , 93 Ohio St.3d at 154, 753 N.E.2d 185. Consequently, we held that because the bureau had not filed an application to modify in that case, the two-year limitation period was never triggered and did not apply.

{¶ 28} Here, as in Drone , the bureau did not file an application but simply issued an order indicating its recalculations, so, as in Drone , the two-year limitation period was not triggered. Although Drone involved underpayments and this case involves overpayments, that difference has no effect on R.C. 4123.52's grant of continuing authority to recalculate the wage rate. Witt's arguments that the bureau lacked authority because it failed to file an application lack merit.

{¶ 29} In addition, Witt attempts to raise a laches defense by arguing in his brief that the bureau's 18-year delay in recalculating his benefit rate was unreasonable.

But Witt failed to raise this issue in his complaint for a writ of mandamus in the court of appeals. Therefore, he has forfeited that defense. State ex rel. Spencer v. E. Liverpool Planning Comm. , 80 Ohio St.3d 297, 299, 685 N.E.2d 1251 (1997) ("In nonelection cases, laches is an affirmative defense which must be raised or else it is waived").

{¶ 30} Witt failed to demonstrate a clear legal right to the relief requested or a clear legal duty on the part of the commission to provide it. Therefore, the court of appeals properly denied his request for a writ of mandamus. We affirm the judgment of the court of appeals.

Judgment affirmed.

O'Connor, C.J., and O'Donnell, French, Fischer, DeWine, and DeGenaro, JJ., concur.

Kennedy, J., concurs in judgment only.