Guardianship of V.V.

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11739
GUARDIANSHIP OF V.V.
Essex. January 5, 2015. - February 10, 2015.
Present: Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
Probate Court, Guardian. Due Process of Law, Assistance of
counsel. Practice, Civil, Appointment of guardian, Relief
from judgment, Assistance of counsel, Moot case. Moot
Question.
Petition for appointment of a guardian for a minor filed in
the Essex Division of the Probate and Family Court Department on
July 17, 2012.
The case was heard by Susan D. Ricci, J., and a motion for
relief from judgment was considered by her; a petition for
removal of the guardian, filed on May 7, 2013, was heard by
Randy J. Kaplan, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Glenna Goldis for the mother.
Andrew L. Cohen, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae, submitted
a brief.
Susan R. Elsen, Jamie Ann Sabino, Julie Gallup, Russell
Engler, Mary K. Ryan, Shaghayegh Tousi, & Alison Holdway, for
Massachusetts Law Reform Institute, Inc., & others, amici
curiae, submitted a brief.
2
SPINA, J. The mother of the minor child, V.V., appeals
from the denial, in the Probate and Family Court, of her motion
for relief from judgment pursuant to Mass. R. Civ. P.
60 (b) (4), 365 Mass. 828 (1974). In the motion she alleged
that a judgment appointing a permanent guardian for V.V. was
void for lack of due process because she was not appointed
counsel or afforded alternative procedural safeguards in the
guardianship proceeding. We granted her application for direct
appellate review. We dismiss the appeal as moot but also hold
that a parent of a minor child has a right to counsel where, as
here, someone other than the parent seeks to have himself or
herself appointed as the child's guardian pursuant to G. L.
c. 190B, § 5-206.1
Background. The details of the events leading up to the
guardianship decree are set forth in Gianareles v. Zegarowski,
467 Mass. 1012 (2014). The essential facts are as follows. A
judge in the Probate and Family Court appointed the mother's
1
We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services; and, collectively, the
Massachusetts Law Reform Institute, Inc., Boston Bar
Association, Massachusetts Bar Association, Women's Bar
Association of Massachusetts, Greater Boston Legal Services,
Community Legal Aid, Justice Center of Southeast Massachusetts
LLC (a subsidiary of South Counties Legal Services, Inc.),
MetroWest Legal Services, Community Legal Services and
Counseling Center, Mental Health Legal Advisors Committee,
Children's Law Center of Massachusetts, Harvard Legal Aid
Bureau, Center for Public Representation, and Safe Passage, Inc.
3
grandmother, and V.V.'s great-grandmother, as V.V.'s permanent
guardian in December, 2012. Id. at 1013. The mother was not
represented by counsel in the guardianship proceeding. Id. In
May, 2013, then represented by counsel, the mother filed her
rule 60 (b) (4) motion as well as a petition to remove the
great-grandmother as V.V.'s guardian pursuant to G. L. c. 190B,
§ 5-212 (a). Id. The judge denied the rule 60 (b) (4) motion.
While the mother's appeal from that denial has been pending, her
petition for removal of the guardian proceeded in the regular
course. On July 29, 2014, after a trial, a judge (who was not
the judge who had appointed the guardian) vacated the
guardianship. All parties, including both the mother and V.V.,
were represented by counsel at the trial on the removal
petition. The great-grandmother did not appeal from the
judgment vacating the guardianship.
Because the guardianship has been vacated and V.V. has been
returned to the mother's custody, the issue whether the mother
was entitled to counsel is moot.2 The issue, however, is of
significant public importance. It is also capable of repetition
and, given the short time periods in which guardianship matters
2
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
parent is entitled to counsel applies to all proceedings related
to guardianship.
4
are often decided and the fluidity of the proceedings even after
an appointment of a guardian (as demonstrated by this case), it
is an issue that can easily evade appellate review in the
ordinary course. We therefore exercise our discretion to
address it. See, e.g., Care & Protection of Erin, 443 Mass.
567, 568 (2005), and cases cited.
Discussion. "The interest of parents in their relationship
with their children has been deemed fundamental, and is
constitutionally protected." Department of Pub. Welfare v.
J.K.B., 379 Mass. 1, 3 (1979), and cases cited. Due process
requirements must therefore be met before a parent is deprived
of his or her parental rights. Id. Due process includes "the
right to be heard 'at a meaningful time and in a meaningful
manner.'" Id. at 4, quoting Armstrong v. Manzo, 380 U.S. 545,
552 (1965). An indigent parent whose parental rights may be
terminated, for example, "cannot be said to have a meaningful
right to be heard in a contested proceeding without the
assistance of counsel." Department of Pub. Welfare v. J.K.B.,
supra at 4.
These interests are no less compelling for a parent whose
child is the subject of a guardianship proceeding. The
guardian, once appointed, assumes significant rights and
responsibilities during the period of guardianship that
otherwise would have resided with the parent. See G. L.
5
c. 190B, § 5-209. "A guardian of a ward has the powers and
responsibilities of a parent regarding the ward's support, care,
education, health and welfare." G. L. c. 190B, § 5-209 (a).
The guardian's rights and responsibilities to ensure the child's
welfare effectively displace those of the parent. The guardian,
and not the parent, becomes the primary caretaker and decision
maker for the child. Even if the guardianship lasts for only a
brief period of time, the displacement impacts the parent's
liberty interests. Cf. Matter of Hilary, 450 Mass. 491, 496
(2008) (noting that even six-month placement of child outside
home when child has been adjudicated child in need of services
has impact on parent's liberty interest in parent-child
relationship). While it is true that the parent's underlying
parental rights are not forever terminated as a result of the
guardianship, they are severely circumscribed, becoming
subsidiary to those of the guardian, for as long as the
guardianship remains in effect.
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
or, similarly, in a care and protection proceeding. To be sure,
6
the Legislature has already expressly provided for the
appointment of counsel in a guardianship proceeding where the
Department of Children and Families or a licensed child
placement agency is a party. General Laws c. 119, § 29, thus
provides:
"Whenever the department or a licensed child placement
agency is a party to child custody proceedings, the parent,
guardian or custodian of the child . . . shall have and be
informed of the right to counsel at all such hearings,
including proceedings under [G. L. c. 190B, § 5-201, 5-204
or 5-206], and that the court shall appoint counsel if the
parent, guardian or custodian is financially unable to
retain counsel . . ." (emphasis added).
The same interests that warrant appointment of counsel when the
State is involved in a guardianship proceeding are also at stake
in a guardianship proceeding when the State is absent.
We encountered a similar situation recently in Adoption of
Meaghan, 461 Mass. 1006 (2012). In that case the legal
guardians of a child petitioned to adopt the child pursuant to
G. L. c. 210, §§ 3 (a) and 6. Id. at 1006. We considered
whether the child's father, who was indigent and whose rights
would be terminated by the adoption, was entitled to counsel in
a private adoption case as he would have been if the State were
involved in the adoption. Id. at 1007. We concluded that he
was, noting that "the same fundamental, constitutionally
protected interests are at stake, and the cost of erroneously
terminating the parent's rights remains too high to require an
7
indigent parent to risk it without counsel." Id. The same
general considerations govern here. There is no reason why an
indigent parent whose child is the subject of a guardianship
proceeding should receive the benefit of counsel only if the
State is involved. To the contrary, there is every reason,
given the fundamental rights that are at stake, why an indigent
parent is entitled to the benefit of counsel when someone other
than the parent, whether it be the State or a private entity or
individual, seeks to displace the parent and assume the primary
rights and responsibilities for the child, whether it be in a
care and protection proceeding, a termination proceeding, an
adoption case, or a guardianship proceeding.
Conclusion. The mother's appeal must be dismissed as moot
because the guardianship has been vacated and the child has been
returned to the mother's custody. We hold, however, that a
parent whose minor child is the subject of a guardianship
proceeding 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.
So ordered.