concurring in part and dissenting in part.
|⅞|1 fully support this court’s decision that the guardianship termination statute is unconstitutional, as applied, for infringing upon Tamera’s fundamental liberty interest in the care, custody, and control of her child.3 However, I disagree with that part of the majority’s decision holding that a natural parent, who consents to a guardianship and has not been found unfit, bears any burden of proving in a termination proceeding that the guardianship is no longer necessary.
The right to care for and raise one’s own child is a fundamental liberty interest that is protected by the Due Process Clause of the Fourteenth Amendment. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). In Troxel, the plurality struck down a “breathtakingly broad” Washington statute that allowed visitation by third parties based solely on a best-interest standard. Id. at 67, 120 S.Ct. 2054. The Court recognized that a fit parent is presumed to act and make decisions in the best interest of his or her children and held that courts must, therefore, “accord at least some special weight to the parent’s own determination” when a parent’s decision becomes subject to judicial review. Id. at 70, 120 S.Ct. 2054. The Court thus held that the statute, as applied, unconstitutionally infringed on the protected liberty interest of parents in the care, | ^custody, and control of their children by permitting a court to disregard and override a fit parent’s wishes based solely on the trial judge’s personal view of the children’s best interests. Id.
Building on these principles, today this court has joined a majority of jurisdictions to hold that parents who have not been deemed unfit do not forfeit their fundamental liberty interest in raising their children by consenting to a guardianship and that such parents are entitled to the Trox-el presumption that their decision to reassert care, custody, and control of their children is in the children’s best interest. In the present case, the termination statute was applied in an unconstitutional manner because Tamera’s decision was not afforded the required special weight. With its instructions on remand, the majority gives Tamera the benefit of the presumption that she is acting in the child’s best interest, but in the same breath, it disregards the special weight accorded a fit parent’s decisions regarding her child by shouldering her with the burden of demonstrating that the guardianship is no longer necessary. In my view, the fundamental right at stake in this case must be protected by placing the entire burden of proof on those who seek to override the parent’s presumptively valid decision. See, e.g., In re Guardianship of Reena D., 163 N.H. 107, 35 A.3d 509 (2011). Not only must the guardians rebut the best-interest presumption, they must also prove that the guardianship remains necessary.
Moreover, the majority does not make clear what standard of proof Tamera is to bear. The opinion merely states that she “must put forth evidence” that the guardianship is no longer necessary. Is this a burden of going forward, or is it a burden of proof? Fundamental l^fairness necessarily requires the standard of proof to be calibrated in advance because the litigants and the fact-finder must know at the outset of a given proceeding how the risk of error will be allotted. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The majority should speak plainly on this point, as the parties and the circuit court should know and not be left guessing how to proceed.
For these reasons, I respectfully dissent.
CORBIN and BROWN, JJ., join.
. I also agree with the majority’s decisions regarding the psychological evaluation and the admission of the reports of Lesa Doan and Dr. Shapse.