L.B. v. Chief Justice of the Probate and Family Court Department

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SJC-11892
L.B. & another1 vs. CHIEF JUSTICE OF THE PROBATE AND FAMILY
COURT DEPARTMENT & others.2
Suffolk. October 5, 2015. - May 4, 2016.
Present: Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
Probate Court, Guardian. Due Process of Law, Assistance of
counsel. Constitutional Law, Assistance of counsel.
Practice, Civil, Assistance of counsel.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on May 6, 2015.
The case was reported by Botsford, J.
Laura Williams Gal (Christina L. Paradiso with her) for
L.B. & another.
Norah E. Kane for the minor children of L.B.
Jo Ann Shotwell Kaplan, Assistant Attorney General, for
Chief Justice of the Probate and Family Court Department.
Deborah W. Kirchwey for the minor child of C.L.
Jamie Ann Sabino, Susan R. Elsen, Mary K. Ryan, & Melanie
V. Woodward, for Massachusetts Law Reform Institute, Inc., &
others, amici curiae, submitted a brief.
1
C.L.
2
Justices of the Worcester County and Hampden County
Divisions of the Probate and Family Court Department, the three
minor children of L.B., and the minor child of C.L.
2
Andrew L. Cohen, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae, submitted
a brief.
Susan M. Finnegan, Sandra J. Badin, & Geoffrey A. Friedman,
for S.D., amicus curiae, submitted a brief.
Richard M. Page, Jr., for Boston Bar Association, amicus
curiae, joined in a brief.
SPINA, J. In Guardianship of V.V., 470 Mass. 590 (2015),
we held that a parent whose minor child is the subject of a
guardianship petition pursuant to G. L. c. 190B, § 5-206, and
who cannot afford counsel has a right to have counsel appointed
and to be so informed. The issue in this case is whether a
parent also has a right to counsel if and when the parent
petitions to have the guardian removed or to have the terms of
the guardianship modified. We conclude that a parent does have
a right to counsel for certain of those types of petitions. We
also offer some guidance to the Probate and Family Court, where
these private guardianships occur, for the development of rules
and policies to implement this right to counsel.
Procedural history. The plaintiffs, L.B. and C.L., are the
mothers of minor children for whom guardians were appointed, in
2012 and 2013 respectively, pursuant to G. L. c. 190B, § 5-206.
They commenced this action in the county court in 2015,
challenging a written policy of the Chief Justice of the Probate
and Family Court Department (Chief Justice) concerning the
appointment of counsel in cases involving guardianships of
3
minors under G. L. c. 190B. Specifically, they challenged a
portion of a memorandum that the Chief Justice issued to the
judges of the Probate and Family Court and to court personnel on
February 20, 2015, shortly after we released our opinion in
Guardianship of V.V., supra. The memorandum addressed our
decision and identified a number of steps that the Probate and
Family Court was taking to implement our holding. The portion
of the memorandum challenged by the plaintiffs is a single
sentence that, in speaking of Guardianship of V.V., states:
"Based on the holding in this case, the right to counsel for
indigent parents only applies in a Petition to Appoint a
Guardian of a Minor." By this sentence, the Chief Justice
essentially informed the probate judges and court personnel
that, in her view, the right to counsel recognized in
Guardianship of V.V. applies only to proceedings on the initial
petition for appointment of a guardian for a minor, and,
conversely, does not apply in subsequent proceedings such as
petitions to remove a guardian after he or she has been
appointed or to modify the terms of the guardianship. The
plaintiffs, as described below, were engaged in the latter types
of proceedings in the Probate and Family Court at the time they
commenced this action, and their requests for counsel were
denied.
4
The plaintiffs alleged in their complaint that the Chief
Justice's policy, by limiting the right to counsel to
proceedings for the initial appointment of guardians,
contravened our decision in Guardianship of V.V. and violated
their right to due process. A single justice of this court
reserved and reported the plaintiffs' complaint to the full
court.3
Facts.4 As stated, the plaintiffs are the mothers of minor
children for whom guardians were appointed pursuant to G. L.
3
We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services and the amicus brief submitted
jointly by the Massachusetts Law Reform Institute, Women's Bar
Association of Massachusetts, Greater Boston Legal Services,
Justice Center of Southeast Massachusetts LLC, Community Legal
Aid Services and Counseling Center, Harvard Legal Aid Bureau,
Northeast Legal Aid, Mental Health Legal Advisors Committee, and
Center for Public Representation. The Boston Bar Association
also submitted a letter stating that it endorsed the latter
brief.
In addition, the single justice indicated in her
reservation and report that the children and guardians in the
underlying cases could be heard on the question whether they
have standing to address the issue of appointment of counsel for
the parents. The guardians have not submitted briefs. Both
plaintiffs' children have submitted briefs arguing that they do
have standing on that issue (although they take different
positions on the substantive merits of the issue). No party or
amicus argues otherwise, so we shall assume without deciding
that the children do have standing, and, accordingly, we
consider their arguments on the issue as well.
4
These facts are drawn principally from the materials in
the record before the single justice.
5
c. 190B, § 5-206.5 Each guardianship proceeding began, and each
appointment occurred, well before our decision in Guardianship
of V.V., so it was not established at the time of those
proceedings that parents whose minor children were the subject
of guardianship petitions had a right to counsel. It appears
that neither L.B. nor C.L. was represented by counsel at the
time the guardians were appointed. The guardianship decree for
each child specified that the guardianship was to extend to the
child's eighteenth birthday, unless terminated sooner by order
of the court.6,7
5
The statute provides in relevant part: "A minor
[fourteen] or more years of age or any person interested in the
welfare of the minor may petition for appointment of a
guardian." G. L. c. 190B, § 5-206 (a).
6
Specifically, in April, 2012, L.B.'s parents petitioned to
have themselves appointed as guardians for her three minor
children. Their petitions were granted in October, 2012. There
was one guardianship petition, and one decree issued, for each
child. Each decree indicated that L.B. had been given proper
notice of the petition and did not object to the appointment of
guardians. Each decree also stated that the guardians were
prohibited from permanently removing the child from
Massachusetts without a court order, and that the guardians were
required to notify the court of any change of address for the
guardians or the child. Those were the only restrictions on the
rights of the guardians expressly contained in the decrees.
None of the decrees contained any provision for visitation by
L.B. with her children or for any other type of contact or
communication between her and them.
7
In September, 2012, C.L.'s mother and stepfather
petitioned to have themselves appointed as guardians for C.L.'s
minor child. Their petition was granted in February, 2013. The
decree stated that, after a hearing, C.L. was found to be unfit
to parent her child. The decree also contained provisions
6
In December, 2014, L.B. filed three petitions in the trial
court pursuant to G. L. c. 190B, § 5-212,8 one with respect to
each of her children, seeking to remove the guardians. She
alleged that she was able to "resume parental responsibilities."
She stated that she "no longer consents to the guardianship[s]
because [she] has appropriate housing and supportive services,"
that "she has played an active role in [her children's lives]
during the guardianship[s]," and that "she is fit to resume
primary responsibility for, and care of, her [children]."
In February, 2015, C.L. filed a petition in the trial court
seeking to modify the terms of her visitation with her child.9
She alleged, among other things, that she was living in a stable
environment, had income, and was attending college, and that she
had "done what has been asked of [her]," presumably by the terms
similar to the decrees for L.B.'s children concerning removal or
relocation of the child. The decree further specified certain
days and times that C.L. would be permitted to visit with the
child; that additional visits could occur by agreement of the
parties; that the visitation would be unsupervised; and that
there was to be no contact during the visits between the child
and C.L.'s boy friend.
8
The statute provides in relevant part: "Any person
interested in the welfare of a ward or the ward, if [fourteen]
or more years of age, may petition for removal of a guardian on
the ground that removal would be in the best interest of the
ward or for any other order that is in the best interest of the
ward." G. L. c. 190B, § 5-212 (a).
9
The pleading was entitled "general probate petition." It
was, in essence, a petition to modify the guardianship pursuant
to G. L. c. 190B, § 5-212 (a). See note 8, supra.
7
of the guardianship and by the guardians. She requested more
visitation, and on different terms, than had been prescribed in
the guardianship decree, specifically, overnight visitation on
weekends and during vacations.
In March, 2015, L.B. filed an application for the
appointment of counsel to represent her in each of the three
cases involving her, and C.L. similarly moved for appointment of
counsel in the case involving her. By that time, we had decided
Guardianship of V.V. and the Chief Justice had issued her
memorandum indicating her position that the holding in that case
did not extend to situations like L.B.'s and C.L.'s. Their
requests for counsel were therefore denied. Consistent with the
Chief Justice's stated policy, the judge in L.B.'s cases denied
her requests on the ground that a "petition for removal of [a]
guardian does not qualify [for] appointment of parent's
counsel," and the judge in C.L.'s case denied her motion because
her pending petition to modify the guardianship was "not an
initial petition" for appointment of a guardian. Shortly
thereafter, they commenced this action in the county court.10
10
After the case was reported by the single justice to the
full court, L.B. resolved the matters involving her three
children in the Probate and Family Court. Consequently, her
present claims are moot. Nevertheless, we address her principal
claim -- concerning a parent's due process right to counsel on a
petition to remove a guardian -- because it is fully briefed, is
likely to arise in many other cases, is of considerable public
importance, and is something that can easily evade appellate
8
Discussion. 1. The holding in Guardianship of V.V. The
plaintiffs maintain that our decision in Guardianship of V.V.
already resolves the questions that are now before us. That is
incorrect. That case involved a petition for the initial
appointment of a guardian under G. L. c. 190B, § 5-206. The
sole question was whether the mother was entitled to counsel on
that particular type of petition. Guardianship of V.V., 470
Mass. at 590-591. Significantly, while the appeal was pending,
the case proceeded to trial in the Probate and Family Court on
the mother's petition to remove the guardian, and on that
petition the mother was represented by counsel. Id. at 591 n.2.
The appeal therefore did not concern, and the court did not
address, any question of a parent's right to counsel on a
petition to remove the guardian or to modify the terms of the
guardianship.
To support their argument, the plaintiffs rely on two
excerpts from Guardianship of V.V. First, they cite a footnote
near the beginning of the opinion that concerned mootness.11 The
review otherwise. See Guardianship of V.V., 470 Mass. 590, 591-
592 (2015); Care & Protection of Erin, 443 Mass. 567, 568
(2005), and cases cited.
11
"That the mother was represented by counsel at the trial
on her petition to remove the guardian would not render the
appointment of counsel issue moot. The fact remains that the
mother was not represented by counsel at the outset of the
guardianship proceedings, and our concern regarding whether a
9
plaintiffs read too much into the footnote. It was meant only
to explain that the presence of counsel on the petition to
remove the guardian did not obviate the need to answer the
question whether the mother was entitled to counsel on the
petition for appointment of the guardian in the first place.
Having counsel at one phase of a guardianship proceeding clearly
does not suffice for due process purposes if the parent is also
entitled to have counsel at another phase. The additional
statement in the footnote, that "our concern regarding whether a
parent is entitled to counsel applies to all proceedings related
to guardianship," was not a holding that the right to counsel
does in fact apply to all such proceedings. It was a
recognition that the important question whether a parent has a
right to counsel applies equally to all phases of the
proceedings.
The plaintiffs also rely on a sentence in which we said:
"Because of the impact of a guardianship on the parent-child
relationship, and the particular nature of the fundamental
rights at stake, an indigent parent whose child is the subject
of a guardianship proceeding is entitled to, and must be
furnished with, counsel in the same manner as an indigent parent
whose parental rights are at stake in a termination proceeding
parent is entitled to counsel applies to all proceedings related
to guardianship." Guardianship of V.V., 470 Mass. at 591 n.2.
10
or, similarly, in a care and protection proceeding."
Guardianship of V.V., 470 Mass. at 592-593. Read in context,
that sentence refers only to the phase of the guardianship
proceeding that was actually at issue in that case, namely, the
initial petition to appoint a guardian. It was not intended as
a holding with respect to other phases of a guardianship
proceeding that were not at issue.
2. Due process claim. We next turn to the plaintiffs'
main claim, that due process requires the appointment of counsel
for indigent parents who petition to remove guardians for their
children or to modify the terms of the guardianships. The Chief
Justice now acknowledges that counsel may be required
constitutionally on a petition to remove a guardian; she argues,
however, that the parent must first make a credible threshold
showing of "substantial and relevant changed circumstances"
since the guardian was appointed. She also argues that there is
no right to counsel when a parent petitions only to modify the
terms of the guardianship.
a. Removal petitions. It is well settled that "parents
have a fundamental liberty interest in the care, custody, and
management of their children," Matter of Hilary, 450 Mass. 491,
496 (2008), and that "[d]ue process requirements must be met
where a parent is deprived of the right to raise his or her
child." Care & Protection of Erin, 443 Mass. 567, 571 (2005).
11
See Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3 (1979).
"In determining what process is due . . . this court 'must
balance the interests of the individual affected, the risk of
erroneous deprivation of those interests and the government's
interest in the efficient and economic administration of its
affairs.'" Commonwealth v. Barboza, 387 Mass. 105, 112, cert.
denied, 459 U.S. 1020 (1982), quoting Thompson v. Commonwealth,
386 Mass. 811, 817 (1982). See Care & Protection of Robert, 408
Mass. 52, 58-59 (1990). When balancing the interests, we bear
in mind that "[t]he requirements of procedural due process are
pragmatic and flexible, not rigid or hypertechnical." Roe v.
Attorney Gen., 434 Mass. 418, 427 (2001). Due process "calls
for such procedural protections as the particular situation
demands." Id., quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972).
i. Individual interests. The interest of parents in their
relationship with their children is substantial. "Our
decisions, and those of the United States Supreme Court, leave
no doubt that '[t]he rights to conceive and raise one's
children' are 'essential . . . basic civil rights of man . . .
far more precious . . . than property rights.'" Department of
Pub. Welfare v. J.K.B., 379 Mass. at 3, quoting Stanley v.
Illinois, 405 U.S. 645, 651 (1972). Fundamental rights and
interests of parents are implicated not only at the stage when a
12
guardian is first appointed for a minor child, as in
Guardianship of V.V., but also when a parent subsequently
petitions to regain custody by removing the guardian.12 This is
so because the appointment of a guardian only 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. Guardianship of V.V., 470
Mass. at 592. The parent is free to attempt to reactivate those
rights by removing the guardian and putting an end to the
guardianship. It would be incongruous to recognize the
significance of the parent's rights for due process purposes at
the time those rights are first displaced, as we did in
Guardianship of V.V., but not to do so at the time the parent
seeks to regain them. The deprivation at the former stage and
the continued deprivation at the latter stage are equally real
and significant. Cf. Care & Protection of Erin, 443 Mass. at
571 (describing review and redetermination proceeding in care
12
In the Probate and Family Court, L.B.'s cases involved
petitions to remove guardians in order to put an end to the
guardianships and restore the parent's right to custody. The
custody of the children was thus directly at stake. The same
rights and interests might not be implicated when a parent seeks
to remove a guardian in circumstances that would not lead to the
child returning to the parent, e.g., where the petition seeks
merely to remove one guardian and replace him or her with
another. See G. L. c. 190B, § 5-212 (a) (authorizing petitions
for removal of guardian and petitions by guardian for permission
to resign; "A petition for removal or for permission to resign
may, but need not, include a request for appointment of a
successor guardian").
13
and protection case as "a readjudication" of initial custody
order; "[a]s such, it implicates the same liberty interests that
exist at an initial determination that a child is in need of
care and protection. In a review and redetermination
proceeding, the judge is deciding simply whether to maintain the
separation of parent from child").
ii. Risk of erroneous deprivation. The risk of
erroneously adjudicating these fundamental rights and interests
of parents is no less real at the guardian removal stage than at
the appointment stage. Judges at both stages may be called on
to make complex determinations that consider numerous factors
regarding the child's best interest and the parent's fitness.13
13
The provision for removal of a guardian, G. L. c. 190B,
§ 5-212 (a), speaks of removal when it is in "the best interest
of the [child]." Unlike the provision that states the bases for
appointment of guardians initially, see G. L. c. 190B, § 5-
204 (a), it does not expressly mention parental fitness. Our
cases have made clear, however, that consideration of parental
fitness, when parental fitness is at issue, will be highly
relevant to a determination of a child's best interest. See,
e.g., R.D. v. A.H., 454 Mass. 706, 715 (2009) ("In the context
of a custody determination, . . . it is essential to recognize
that the determination whether a parent is 'unfit' is closely
intertwined with a consideration of the best interests of the
child"); Bezio v. Patenaude, 381 Mass. 563, 576 (1980) ("Neither
the 'parental fitness' test nor the 'best interests of the
child' test is properly applied to the exclusion of the other"),
citing Petition of the New England Home for Little Wanderers to
Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975)
(stating that "the tests . . . reflect different degrees of
emphasis on that same factors" and "are not separate and
distinct but cognate and connected"). Judges hearing removal
petitions will thus inevitably hear evidence, and be asked to
make determinations, concerning parental fitness.
14
Questions, often difficult ones, about the child's physical and
psychological well-being must be answered; questions about a
parent's mental and physical health, addictions, history of
abuse or neglect, and the impact of these things on the parent's
ability to meet the needs of the child are also often in play.
Additionally, as the plaintiffs and amici point out, judges
hearing removal petitions may be called on to consider evidence,
and make difficult determinations, on the child's bonding with
the guardian during the guardianship, and the potential effect
on the child of being removed from the guardian's care and
returned to the parent's custody. See, e.g., Guardianship of
Cheyenne, 77 Mass. App. Ct. 826, 830-831 (2010); Guardianship of
Estelle, 70 Mass. App. Ct. 575, 581-582 (2007), and cases cited.
With the complexity of the legal and factual issues comes
an increased risk that a judge might incorrectly decide those
issues, especially in the absence of counsel to present and
defend the positions of the parent, and hence an increased risk
that an unrepresented parent will suffer an erroneous
deprivation of his or her rights. Cf. Department of Pub.
Welfare v. J.K.B., 379 Mass. at 4 (noting complexity of issues
in adjudicating petitions to dispense with consent to adoption
as consideration in finding right to counsel). The presence of
counsel for a parent will both help to protect the parent's
rights and interests in this regard and assist a judge to ensure
15
accuracy and fairness in his or her adjudications. Id. (noting
benefits of counsel both for parents and for judges).
iii. Government interests. Finally, we must consider the
Commonwealth's interest in the efficient and economic operation
of its affairs. Although the Commonwealth is not a party per se
in a private guardianship proceeding under G. L. c. 190B,14 it
nevertheless has interests that are affected and must be
weighed. It has an interest in ensuring that the children of
the Commonwealth are protected adequately and, toward that end,
that accurate and fair adjudications are made by judges in these
cases. Care & Protection of Robert, 408 Mass. at 65-66, and
cases cited. Significantly, it also has an interest in seeing
that State resources are not used irresponsibly. There is no
need, for example, to require the State to incur the cost and
administrative burden of providing counsel for removal petitions
that have no hope of prevailing. The risk of erroneously
depriving a parent of his or her interests on such a petition
would be negligible, the presence of counsel would add little of
value, and an expenditure of State resources for an attorney to
14
Many of the private guardianship cases in the Probate and
Family Court do, however, concern children who have been
involved with the Department of Children and Families. See
V. Weisz & B. Kaban, Children's Law Center of Massachusetts,
Protecting Children: A Study of the Nature and Management of
Guardianship of Minor Cases in Massachusetts Probate and Family
Court, at 22 (2008). See also Annie E. Casey Foundation, The
Kinship Diversion Debate: Policy and Practice Implications for
Children, Families and Child Welfare Agencies (2013).
16
pursue such a petition would therefore be unnecessary. See Roe
v. Attorney Gen., 434 Mass. at 427, quoting Mathews v. Eldridge,
424 U.S. 319, 335 (1976) (referring to "the risk of an erroneous
deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute
procedural safeguards" [emphasis added]).
iv. Balancing of interests. The most pragmatic way to
balance all three due process considerations -- the parental
interests, the risk of erroneous adjudication of those
interests, and the government interests -- is to require that
counsel be made available for those petitions that present a
colorable claim for removal, but not for petitions that are
obviously meritless. Requiring a parent to make a modest yet
meaningful preliminary showing that he or she has a colorable
case for removal of the guardian, before counsel is appointed to
prosecute such a petition, will help to guard against an
unnecessary and irresponsible expenditure of State resources
and, we hope, will discourage, and thereby help to keep the
courts free of, patently meritless attempts at removal.
The Chief Justice contends that the parent should be
required to make an initial showing that there have been
"substantial and relevant changed circumstances" since the
guardian was appointed. She analogizes to review and
redetermination proceedings in care and protection cases, see
17
G. L. c. 119, § 26,15 and relies heavily on the analysis in Care
& Protection of Erin, 443 Mass. at 570-572. This court held in
that case that the ultimate burden of proof on review and
redetermination is on the Department of Children and Families
(then the Department of Social Services) (department) to prove
that a parent remains unfit to further the best interests of the
child and that the child, therefore, is still in need of care
and protection. Id. at 572. The court also held that the
parent petitioning for review and redetermination bears a
preliminary burden to produce some credible evidence of changed
circumstances since the initial determination, and it is then
and only then that the department is put to its burden of proof.
Id. It is the latter kind of burden that the Chief Justice
argues is applicable by analogy here.
The Chief Justice's analogy is not perfect, but, as stated,
we agree in general that there should be some threshold
assessment of the claim for removal before the right to counsel
materializes. We are concerned, however, that her formulation
of what is required -- a demonstration of "substantial and
15
The statute provides in relevant part: "On any petition
filed in any court under this section, the [Department of
Children and Families] 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. . . ." G. L. c. 119, § 26 (c).
18
relevant changed circumstances"16 -- will set the bar too high
for an unrepresented litigant before the right to counsel is
triggered. "Substantial," "relevant," "material," and
"significant" all suggest that a parent's burden would be to
show that circumstances have changed in a legally significant
manner and to a legally cognizable degree. It would be unusual
and potentially unfair to require a litigant unaided by counsel
to make that kind of a legal demonstration before the right to
counsel arises. A more appropriate threshold showing would be
for the parent simply to satisfy the judge that he or she has a
colorable or "meritorious" claim in the sense that it is worthy
of being presented to and considered by the court. See General
Motors Corp., petitioner, 344 Mass. 481, 482 (1962) ("A
meritorious case is one that is worthy of presentation to a
court, not one which is sure of success"). This is a lighter,
less technical burden than the one proposed by the Chief
Justice, and something that will be more manageable for an
unrepresented litigant with fundamental liberty interests at
stake. "Meritorious" is a familiar concept that has been
16
The brief of the Chief Justice of the Probate and Family
Court Department (Chief Justice) also describes the proposed
burden as a showing that "circumstances have materially and
significantly changed since due process procedures were afforded
or available last (i.e., at the time of the original appointment
or the most recent review of the appointment pursuant to a
petition to remove the guardian)."
19
applied in a variety of circumstances.17 It is not an onerous
standard.
In sum, we hold that when an indigent, unrepresented parent
seeks, pursuant to G. L. c. 190B, § 5-212, to remove a guardian
for a minor child and thereby regain custody of the child, the
parent has a due process right to counsel to prosecute the
petition, and to be so informed, provided the parent presents a
meritorious claim for removal.
b. Modification petitions. Petitions to modify the terms
of a guardianship, like petitions to remove a guardian and
regain custody of a child, can also affect the fundamental
rights and interests of a parent. A petition such as C.L.'s,
17
See, e.g., Commonwealth v. Gunter, 459 Mass. 480, 487,
cert. denied, 132 S. Ct. 218 (2011) (gatekeeper proceeding
pursuant to G. L. c. 278, § 33E; when determining whether new
issue is "substantial," "[t]he bar . . . is not high. It must
only be a meritorious issue in the sense of being worthy of
consideration by an appellate court"); Lovell v. Lovell, 276
Mass. 10, 11-12 (1931) (petition to remove default decree
requires some showing that petitioner has meritorious claim or
defense to assert -- "one which is worthy of judicial inquiry");
Jones v. Manns, 33 Mass. App. Ct. 485, 492-493 & n.9 (1992)
(transfer of appeal filed in wrong court; case "involves
meritorious issues, in the usual sense of that phrase in
appellate practice," i.e., "worthy of presentation to a court"
[citation omitted]); Levin v. Levin, 7 Mass. App. Ct. 501, 503-
504 (1979) (stay of execution of sentence pending appeal;
discussing "meritorious" standard and concluding that it
connotes opposite of "frivolous"); Tisei v. Building Inspector
of Marlborough, 3 Mass. App. Ct. 377, 379 (1975) (motion for
leave to docket appeal late; moving party must show "a case
meritorious or substantial in the sense of presenting a question
of law deserving judicial investigation and discussion"
[citation omitted]).
20
which seeks a significant change in the terms of visitation
based on changed circumstances since the appointment of the
guardian, is such a case.18 Visitation, like custody, is at the
core of a parent's relationship with a child; being physically
present in a child's life, sharing time and experiences, and
providing personal support are among the most intimate aspects
of a parent-child relationship. For a parent who has lost (or
willingly yielded) custody of a child temporarily to a guardian,
visitation can be especially critical because it provides an
opportunity to maintain a physical, emotional, and psychological
bond with the child during the guardianship period, if that is
in the child's best interest; and in cases where the parent
aspires to regain custody at some point, it provides an
opportunity to demonstrate the ability to properly care for the
child. See generally L. Edwards, Reasonable Efforts: A
Judicial Perspective, at 41-47 (2014); M. Smariga, American Bar
Association Center on Children and the Law & ZERO TO THREE
Policy Center, Visitation with Infants and Toddlers in Foster
Care: What Judges and Attorneys Need to Know (2007).
18
In the Probate and Family Court, C.L.'s case involved a
petition to modify the guardianship by changing the terms of the
visitation. Obviously, not all modification petitions concern
visitation. Petitions that seek other changes to the
guardianship -- for example, changes in child support or other
strictly financial matters -- will not necessarily implicate the
same core parent-child concerns.
21
For these reasons, and considering the due process factors
discussed above, we hold that an indigent parent who petitions
to modify the terms of a guardianship by seeking a substantial
change in the provisions for visitation, like a parent
petitioning to remove a guardian and regain custody, is entitled
as a matter of due process to counsel, and to be so informed,
provided the parent presents a meritorious claim.
3. Other issues. The plaintiffs and amici raise a host of
additional issues that go well beyond the issues raised by the
plaintiffs' complaint. For example, the plaintiffs argue, in
addition to their due process claim, that they have a right to
counsel based on equal protection principles; they also ask us
to "issue a directive" definitively resolving certain questions
concerning the burden of proof and the elements of proof on
petitions to remove a guardian under G. L. c. 190B, § 5-212.
The children, who filed no pleadings of their own in the county
court, and who were brought into the case for the limited
purpose of addressing a question of standing on their right to
be heard on the plaintiffs' claims, see note 3, supra, argue
that they have their own right to counsel in cases like this.
And the amicus Committee for Public Counsel Services asks us to
decide a number of other issues in order to "clarify the
parameters of the right to counsel for indigent parents in
guardianship cases."
22
These matters are not properly before us, and we therefore
decline to address them. Some of these questions will
undoubtedly need to be resolved in future cases where they are
properly raised and preserved in the trial court and fully
briefed on appeal,19 and where the records for deciding them are
fully developed. Others might appropriately be addressed by
court rules and policies established by the Probate and Family
Court or by amendments to the governing statutes.
4. Development of court rules and policies. Our decision
in Guardianship of V.V., decided approximately fifteen months
ago, recognized a parent's due process right to counsel in
guardianship of minor cases where none previously existed, on
the initial petition for appointment of a guardian. The Probate
and Family Court has taken a number of steps since then to
implement that right. Our decision today establishes a right to
counsel beyond that, on a parent's petition to remove a guardian
and regain custody of the child or to modify the guardianship in
order to make a significant change in visitation. Recognizing
19
We note, for example, that no guardian has submitted a
brief in the case before us. Some of the other issues we are
asked to decide would clearly affect a guardian's rights and
interests.
23
that additional steps will be needed to implement these rights,
we offer a few thoughts and suggestions.20
a. The Probate and Family Court can facilitate the process
for unrepresented parents by creating forms that will help the
parent to articulate -- in plain, nonlegal terms -- the reasons
why he or she believes the guardian should be removed or the
visitation modified, and the facts on which he or she relies to
support that claim. Forms that promote a clear and sufficiently
detailed statement from the parent will also help judges to
evaluate whether the parent has stated a meritorious claim as we
have described that term, such that the parent may have an
attorney if he or she would like one.21
b. We leave it to the Probate and Family Court to consider
in the first instance whether an indigent, unrepresented parent
must actually file a pro se petition to remove the guardian or
20
A working group of experienced probate judges, child
advocates, guardians ad litem, representatives of guardian and
parent interests, and others concerned may be helpful to explore
these suggestions (and other possibilities) in depth. The Chief
Justice may wish to consider convening such a group if none
already exists.
21
Nothing we have said requires that counsel actually be
appointed for every indigent parent who presents a meritorious
claim. Parents must be fairly informed of the right to counsel
and of the procedure for requesting counsel, but due process in
these circumstances only requires that counsel actually be
appointed if the parent so requests. A parent who has been
informed of the right to counsel and the procedure for
requesting counsel will always have the prerogative to opt to
proceed without counsel.
24
modify the guardianship before an attorney is appointed.
Another approach might be for the parent to be allowed first to
apply for counsel, and be required to state on an application
for counsel form the meritorious reasons why he or she is
seeking removal or modification. The judge would then be in a
position to assess whether appointment of counsel is called for
before the actual petition is filed. The Probate and Family
Court is better equipped than this court to weigh the pros and
cons of each approach initially. It would appear that either
approach provides due process.
c. General Laws c. 190B, § 5-212, places no express
limitation on how often a parent may file a petition to remove a
guardian or to modify a guardianship. The Probate and Family
Court might consider whether it is feasible and wise to create
guidelines designed to discourage the filing of unnecessarily
frequent petitions. For example, the court may be able to
identify different classes of petitions according to what relief
is being sought (e.g., removal or modification) and the bases on
which the guardianships were established initially (e.g.,
consent, various reasons for unavailability or unfitness, etc.),
and indicate frequencies with which petitions in the different
classes might reasonably be expected to be filed. Petitions
filed at more frequent intervals than provided by the guidelines
presumptively would not merit the appointment of counsel. These
25
guidelines and presumptions would not be binding, since the
statute appears to permit the filing of a removal or
modification petition at any time, each case is different, and
counsel should always be appointed for a meritorious case, but
they may help to create realistic expectations for unrepresented
parents as to how often, at most, they should file.22
d. In deciding both Guardianship of V.V. and this case, we
have found it useful to draw certain comparisons between the
guardianship process under G. L. c. 190B and the care and
protection process under G. L. c. 119. We have not held,
however, that all of the procedures and protections provided by
statute in care and protection cases must necessarily be
incorporated into private guardianship proceedings under the
rubric of due process. The two types of proceedings, while
similar in some respects, are not identical. What process is
constitutionally due in guardianship cases must continue to be
decided by applying the factors discussed above.
e. Although we do not decide the question of a child's
constitutional right to counsel in this case, we note the
provisions of G. L. c. 190B, § 5-106 (a). "After filing of a
petition for appointment of a guardian . . . if the ward . . .
22
Likewise, it may be possible in some situations for the
judge, at the time the guardianship is created, to indicate when
or on what conditions the parent might realistically expect to
petition for removal or modification.
26
or someone on his behalf requests appointment of counsel; or if
the court determines at any time in the proceeding that the
interests of the ward . . . are or may be inadequately
represented, the court shall appoint an attorney to represent
the person." Id. The court may also appoint a "guardian ad
litem . . . to investigate the condition of the ward . . . and
make appropriate recommendations to the court." G. L. c. 190B,
§ 5-106 (b). We trust that judges of the Probate and Family
Court will consider exercising one or both of these prerogatives
in appropriate cases, especially where counsel is appointed for
a petitioning parent but the judge is concerned that the
petition might not be in the child's best interest. Guardians
faced with removal or modification claims should also be fairly
informed that they may request counsel for the child.
Conclusion. A judgment shall enter in the county court
declaring that (a) when an indigent parent seeks, pursuant to
G. L. c. 190B, § 5-212, to remove a guardian for a minor child
and thereby regain custody of the child, the parent has a due
process right to counsel to prosecute the petition, and to be so
informed, provided the parent presents a meritorious claim for
removal; and (b) similarly, when an indigent parent seeks to
modify the terms of a guardianship by substantially changing the
terms of visitation with the minor child, the parent also has a
27
due process right to counsel, and to be so informed, provided
the parent presents a meritorious claim for modification.
So ordered.