Guardianship of B.V.G.

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14-P-307 Appeals Court
GUARDIANSHIP OF B.V.G.
No. 14-P-307.
Norfolk. December 1, 2014. - April 6, 2015.
Present: Rubin, Milkey, & Carhart, JJ.
Practice, Civil, Guardianship proceeding, Standing,
Intervention. Probate Court, Standing. Words, "Interested
person."
Petition for guardianship filed in the Norfolk Division of
the Probate and Family Court Department on February 16, 2011.
A motion to intervene was heard by George F. Phelan, J.
Anthony D. Martin (Jennifer L. Mikels with him) for the
grandfather.
Adam J. Nussenbaum for the father.
MILKEY, J. For years, the maternal grandfather of B.V.G.
has sought to rekindle his relationship with B.V.G., his adult
granddaughter. He alleges that these efforts have been stymied
by her father, who serves as her temporary guardian. Based on
his asserted interest in B.V.G.'s welfare, the grandfather filed
a motion to intervene in the Probate and Family Court
2
guardianship proceedings.1 The judge denied that motion based on
his conclusion that, as a matter of law, the grandfather lacked
standing under § 5-306(c) of the Massachusetts Uniform Probate
Code (MUPC), G. L. c. 190B. We affirm, but on different
grounds.
Background. The pertinent facts, which are largely
uncontested, are drawn from the representations the parties (or
their counsel) made at the nonevidentiary hearing on the
grandfather's motion to intervene. See Local 589, Amalgamated
Transit Union v. Massachusetts Bay Transp. Authy., 392 Mass.
407, 408 (1984). See also Keene v. Brigham & Women's Hosp.,
Inc., 56 Mass. App. Ct. 10, 11 (2002), S.C., 439 Mass. 223
(2003). Open factual disputes are noted.
B.V.G., born in 1993, suffers from a number of serious
impairments, including an intellectual disability,2 Tourette
syndrome, and emotional difficulties. Her parents separated
when she was a child, and a long custody battle ensued between
1
The motion sought intervention as of right pursuant to
Mass.R.Civ.P. 24(a), 365 Mass. 769 (1974), and, in the
alternative, permissive intervention pursuant to Mass.R.Civ.P.
24(b).
2
The parties and probate judge used the term "mentally
retarded." As recently noted by the United States Supreme
Court, this term is no longer employed by mental health
clinicians. See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014).
See also St. 2010, c. 239 ("An Act Eliminating the Word
'Retardation' from the General Laws").
3
her father and her mother, who, by her own admission, was in a
"bad situation, a bad place in my life at that time." In 2005,
the father was awarded sole legal and physical custody, and he
retained such custody of B.V.G. until 2011, when she reached the
age of majority. During that period, B.V.G. had no contact with
her mother or any of her maternal relatives, including the
grandfather.3
In 2011, on his own petition, the father was appointed
B.V.G.'s temporary guardian. The temporary guardianship order
contemplated a rapprochement between B.V.G. and her mother.
Thus, the order provided for supervised visitation between the
two, and it stated that if B.V.G. expressed a desire to have
contact with the mother, the father was not to interfere. In
January, 2013, the temporary guardianship was extended until
April, 2013, by a stipulation signed by the father, the mother,
and an attorney appointed to represent B.V.G. The stipulation
also nominally provided for some contact between B.V.G. and the
grandfather. Specifically, it provided that, each day, the
grandfather could send one electronic mail message (e-mail) to
B.V.G. and could receive one e-mail from her. However, that
provision proved unworkable, in part because B.V.G. had no e-
3
Before custody had been resolved, the grandfather filed a
complaint for grandparent visitation pursuant to G. L. c. 119,
§ 39D. The complaint languished without judgment, and since
then the grandfather has not been able to visit B.V.G.
4
mail access at the residential treatment program at which she
spent her weekdays. In addition, according to the grandfather,
the father blocked B.V.G. from receiving the grandfather's e-
mails on the computer at the father's home (where B.V.G. spends
her weekends).
In April, 2013, the grandfather filed the motion to
intervene in the pending guardianship proceeding. He did not
contest that B.V.G. needed a permanent guardian, nor did he
oppose the father's appointment to that role. Rather, the
grandfather merely sought limitations on the father's ability to
deny B.V.G. contact with him.
At the hearing on the motion, the mother characterized the
grandfather's and B.V.G.'s historical relationship as "strong,"
and she supported the grandfather's claim that the father
systematically has tried to "cut off" the grandfather from
B.V.G. B.V.G. was able to circumvent such efforts by pursuing
some contact with the grandfather via the Internet social
networking service known as Facebook. Examples of such
communications, submitted to the motion judge, reflect B.V.G.'s
evident affection toward the grandfather. For his part, the
father acknowledged that the granddaughter wanted to have
contact with the grandfather. He also did not dispute the fact
that he had restricted that relationship. Rather, the father
focused on his right to do so.
5
As noted, B.V.G. appeared at the hearing through an
attorney appointed to represent her. The attorney declined to
state a definitive position on whether the grandfather should be
allowed to intervene. The attorney explained that B.V.G.
supported the grandfather's goal of increased contact,4 but he
preferred the simplicity of trying to negotiate a resolution
with the father and mother, without the grandfather having party
status.
In denying the motion to intervene, the judge did not
question that the grandfather was pursuing intervention out of a
genuine interest in B.V.G.'s welfare. Nor does the judge's
decision otherwise purport to rest on any facts particular to
the grandfather. Rather, the judge concluded that the
grandfather's asserted interest in B.V.G.'s welfare was
insufficient as a matter of law to provide him standing to
intervene either as of right or permissively. According to the
judge, only a person who has a "financial" or other such
tangible interest in the guardianship proceeding could qualify
as an "other interested person" under G. L. c. 190B, § 5-306(c).
The judge reasoned that to construe the statute otherwise would
invite even legal strangers with a mere "curious interest in the
4
Although B.V.G.'s counsel vaguely alluded to "problems" in
the past arising from her having contact with her maternal
relatives, neither he nor the father raised any specific reasons
why increased contact between the grandfather and B.V.G. was
contrary to her best interests.
6
proceeding" to intervene in guardianship cases.5 He also
expressed concern that the grandfather's "insertion into the
case derogates Father's authority" as the "lifestyle standard
bearer for [B.V.G.] pursuant to Troxel v. Granville, 530 U.S. 57
(2000)." The grandfather filed a timely appeal.
Discussion. a. Standing under the MUPC. We begin by
addressing the judge's interpretation of the MUPC, which was
enacted in 2008.6 We review the judge's construction of the
statute de novo. See Rotondi v. Contributory Retirement Appeal
Bd., 463 Mass. 644, 648 (2012). However, before turning to the
language of the MUPC, we note that the Supreme Judicial Court
long ago addressed a similar standing question under the
guardianship statute that preceded the MUPC, former G. L.
c. 201. Gardiner v. Jardine, 245 Mass. 274 (1923).7 Section 14
of G. L. c. 201, as then in effect, permitted petitions for
appointments of temporary guardians by, inter alia, "other
5
While denying the motion to intervene, the judge appointed
a guardian ad litem (GAL) to assist him in evaluating B.V.G.'s
best interests. Although any further proceedings involving the
GAL are not part of the appellate record, both parties have
indicated that the GAL has not to date addressed the subject
matter of this dispute, B.V.G.'s contact with the grandfather.
6
Article V of the MUPC, which governs guardianships and
conservatorships, G. L. c. 190B, §§ 5-101 et seq., inserted by
St. 2008, c. 521, § 9, became effective July 1, 2009.
7
See generally Verizon New England Inc. v. Board of
Assessors of Newton, 81 Mass. App. Ct. 457, 461 (2012)
(examining Supreme Judicial Court's interpretation of same
language in prior version of statute).
7
person[s] in interest." Gardiner, supra at 277. In Gardiner,
the plaintiff sought to revoke the appointment of the defendant
as temporary guardian of the plaintiff's niece. Responding to
the plaintiff's contention that the defendant lacked standing as
a "person in interest" absent an economic stake in the
proceedings, the court held that "[a] person in interest within
the meaning of the statute need not be one having a pecuniary
interest or whose private rights are affected"; rather, such
language was "broad enough" to include those who were motivated
by a "humanitarian interest" in the incapacitated person's
welfare. Ibid. See Morrison v. Jackman, 297 Mass. 161, 163
(1937). We turn to whether the language, structure, or purpose
of the MUPC requires a different interpretation.
In considering the grandfather's motion to intervene, the
judge focused on the language of G. L. c. 190B, § 5-306(c),
inserted by St. 2008, c. 521, § 9, which states, in relevant
part:
"The court, at the time of appointment or later, on its own
motion or on appropriate petition or motion of the
incapacitated person or other interested person, may limit
the powers of a guardian otherwise conferred by parts 1 to
4, inclusive, of this article and thereby create a limited
guardianship."
According to the general definition section of the MUPC, the
term "interested person"
"includes heirs, devisees, children, spouses, creditors,
beneficiaries, and any others having a property right in or
8
claims against a trust estate or the estate of a decedent,
ward, or protected person. It also includes persons having
priority for appointment as personal representative, and
other fiduciaries representing interested persons. The
meaning as it relates to particular persons may vary from
time to time and shall be determined according to the
particular purposes of, and matter involved in, any
proceeding."
G. L. c. 190B, § 1-201(24), inserted by St. 2008, c. 521, § 9.
The father argues that under this language, a person generally
cannot qualify as an "interested person" unless he or she has a
financial stake in the outcome of the proceedings. We find this
argument unpersuasive for several reasons.
While the definition of "interested person" does plainly
"include" various categories of people who have a financial
stake in a proceeding, the use of the word "include" -- in the
context of this case -- indicates that the list was not intended
to be exclusive. See Commonwealth v. Durham, 446 Mass. 212,
219, cert. denied, 549 U.S. 855 (2006). This interpretation is
reinforced by the fact that the general definitions set forth in
G. L. c. 190B, § 1-201, apply to many different types of MUPC
proceedings, including, for example, trust and conservatorship
proceedings. Accordingly, the opening sentence of § 1-201
explicitly recognizes that the general definitions contained in
that section do not apply if "the context otherwise requires."
The definition of "interested person" itself expressly
emphasizes that its meaning will vary depending on the context
9
"and shall be determined according to the particular purposes
of, and matter involved in, any proceeding." G. L. c. 190B,
§ 1-201(24).
In addition, the meaning of G. L. c. 190B, § 5-306(c), must
be considered in conjunction with the surrounding sections of
the statute in order that they may be construed in harmony with
one another. See Locator Servs. Group, Ltd. v. Treasurer &
Recr. Gen., 443 Mass. 837, 859 (2005). Section 5-303(a) of
G. L. c. 190B, inserted by St. 2008, c. 521, § 9, governing
petitions for guardianship, does not use the term "interested
person" but, instead, authorizes the filing of such petitions by
"any person interested in the welfare of the person alleged to
be incapacitated."8 Although even that broad category is not
without limits,9 we think it plain that, under the facts of this
8
Section 5-303(a) states in pertinent part: "An
incapacitated person or any person interested in the welfare of
the person alleged to be incapacitated may petition for . . .
the appointment of a guardian, limited or general." Section 5-
311, which concerns petitions for the removal of guardians and
termination of guardianships, likewise authorizes such petitions
to be filed by "any person interested in the incapacitated
person's welfare." G. L. c. 190B, § 5-311(a),(b), inserted by
St. 2008, c. 521, § 9.
9
As the comments to the Uniform Probate Code (UPC)
indicate, in order to qualify as a "person interested in the
welfare" of a person subject to protective proceedings under UPC
Article V, a judge must first find that the potential petitioner
has (1) a serious interest or concern for the incapacitated
person's welfare, and (2) knowledge of the circumstances. See
UPC comment to G. L. c. 190B, § 5-206(a), 31 Mass. Gen. Laws
Ann. at 548 (West 2012). Past decisions interpreting sections
10
case, the grandfather would qualify. To adopt the father's
proposed interpretation would yield the discordant result that
the grandfather would have had standing to file his own petition
for a limited guardianship pursuant to § 5-303, yet lack
standing to petition the court to impose a limited guardianship
pursuant to § 5-306(c). That would make little sense. In our
view, in the context of guardianship proceedings, the
Legislature intended the terms "interested person" and "person
interested in the welfare of the [incapacitated] person" as
equivalent.
Our interpretation is also supported by the over-all
purpose of the guardianship statute. Although the powers of a
guardian under the MUPC are similar in many respects to those of
guardians under the former G. L. c. 201, one important way in
which the new statute differs is in its favoring limited
guardianships in order to maximize the liberty and autonomy of
persons subject to guardianship. For example, G. L. c. 190B,
of the UPC adopted in Massachusetts have relied on the comments
to the uniform statute for guidance. See, e.g., First Eastern
Bank, N.A. v. Jones, 413 Mass. 654, 660 & n.7 (1992). Although
G. L. c. 190B, § 5-206(a), governs guardianships of minors, not
those of incapacitated adults, "[w]here the Legislature uses the
same words in several sections which concern the same subject
matter, the words 'must be presumed to have been used with the
same meaning in each section.'" Commonwealth v. Wynton W., 459
Mass. 745, 747 (2011), quoting from Insurance Rating Bd. v.
Commissioner of Ins., 356 Mass. 184, 188-189 (1969).
11
§ 5-306(a), inserted by St. 2008, c. 521, § 9, begins with the
following command:
"The court shall exercise the authority conferred in this
part so as to encourage the development of maximum self-
reliance and independence of the incapacitated person and
make appointive or other orders only to the extent
necessitated by the incapacitated person's limitations or
other conditions warranting the procedure."
Moreover, the MUPC requires judges to impose limitations on an
incapacitated person's liberty only to the extent the person's
needs "cannot be met by less restrictive means." G. L. c. 190B,
§ 5-306(b)(8), inserted by St. 2008, c. 521, § 9. Other
sections striking the same theme abound.10 Allowing a broader
class of individuals than those with economic interests to press
for limitations on a guardianship furthers that goal.
Finally, we note that our reading of the term "interested
person" as used in the guardianship context is in accord with
other jurisdictions that have addressed the question under
parallel statutes. See, e.g., Guardianship of Williams, 159
N.H. 318 (2009). In Williams, the New Hampshire Supreme Court
addressed standing under its own version of Article V on very
10
Pursuant to G. L. c. 190B, § 5-309(a), inserted by St.
2008, c. 521, § 9, guardians are required to encourage, "to the
extent possible," the incapacitated person to "participate in
decisions" and to only "act on [the incapacitated person's] own
behalf," and also to "consider the expressed desires and
personal values of the incapacitated person when making
decisions." They are also under an affirmative duty to
"immediately notify the court if the incapacitated person's
condition has changed so that he or she is capable of exercising
rights previously limited."
12
similar facts. The petitioner, who had no apparent financial or
property interest in the guardianship of her brother and did not
challenge the appointment of her sisters as coguardians, filed a
petition in the pending proceeding to limit the scope of her
brother's guardianship. Id. at 320-321. The court agreed that
the petitioner was an "interested person" in the proceedings
with a right to "participate fully," and concluded that the
legislative intent in allowing petitions by any "interested
person" was to "promote the broadest possible protection for a
proposed ward by granting generous standing to any adult with an
interest in the proposed ward's welfare." Id. at 325. See
Conservatorship of Kloss, 326 Mont. 117, 119-120 (2005);
Guardianship & Conservatorship of Cordel, 274 Neb. 545, 551
(2007).11
b. Denial of the motion to intervene. Having concluded
that the grandfather does not lack standing to intervene in
order to petition as an "interested person" under § 5-306(c), we
next turn to whether the judge's decision to deny the
grandfather's motion to intervene should be affirmed on other
11
As noted, the judge also expressed his concern that the
grandfather's "insertion into the case derogates Father's
authority" as the "lifestyle standard bearer for [B.V.G.]
pursuant to Troxel v. Granville, 530 U.S. 57 (2000)." As the
father acknowledges, the stringent constitutional protections
for parental autonomy implicated by Troxel are not germane to
this proceeding, because B.V.G. is a legal adult, not a minor
child.
13
grounds. In arguing below that he could intervene as a matter
of right, the grandfather relied exclusively on Mass.R.Civ.P.
24(a)(2), 365 Mass. 769 (1974),12 which provides for intervention
of right
"when the applicant claims an interest relating to the
property or transaction which is the subject of the action
and he is so situated that the disposition of the action
may as a practical matter impair or impede his ability to
protect that interest, unless the applicant's interest is
adequately represented by existing parties."
"The burden of showing the inadequacy of the representation is
on the applicant [seeking to intervene]." Massachusetts Fedn.
of Teachers, AFT, AFL-CIO v. School Comm. of Chelsea, 409 Mass.
203, 206 (1991), quoting from Attorney Gen. v. Brockton Agric.
Soc., 390 Mass. 431, 434 (1983). The judge "enjoys a full range
of reasonable discretion in evaluating whether the requirements
12
On appeal, the grandfather argues for the first time that
as a person interested in B.V.G.'s welfare, he has an
unconditional statutory right under the MUPC to intervene in the
guardianship proceedings pursuant to Mass.R.Civ.P. 24(a)(1).
That argument has been waived. Cf. Shafnacker v. Raymond James
& Assocs., 425 Mass. 724, 731 (1997). Although we do not reach
that issue, we note that multiple cases construing the parallel
Federal rule have done so very narrowly. See, e.g., Travelers
Indem. Co. v. Dingwell, 884 F.2d 629, 641 (1st Cir. 1989)
(noting in context of Federal hazardous substance law that
"[r]ule 24[a][1] is narrowly construed; private parties are
rarely given an unconditional right to intervene"); Fuel Oil
Supply & Terminaling v. Gulf Oil Corp., 762 F.2d 1283, 1286 (5th
Cir. 1985) (noting same in bankruptcy context). See generally
Doe v. Senechal, 431 Mass. 78, 81 n.8, cert. denied, 531 U.S.
825 (2000), quoting from Van Christo Advertising, Inc. v. M/A-
COM/LCS, 426 Mass. 410, 414 (1998) ("In construing our rules of
civil procedure, we are guided by judicial interpretations of
the cognate Federal rule 'absent compelling reasons to the
contrary or significant differences in content'").
14
for intervention have been satisfied." Peabody Fedn. of
Teachers, Local 1289, AFT, AFL-CIO v. School Comm. of Peabody,
28 Mass. App. Ct. 410, 413 (1990). Moreover, "[a] judge has
discretion in determining whether [a] . . . party has
demonstrated facts that entitle him or her to intervene as of
right, and we . . . review the judge's factual findings for
clear error." Commonwealth v. Fremont Inv. & Loan, 459 Mass.
209, 217 (2011).
Because the motion judge's decision nominally turned on his
erroneous conclusion that the grandfather lacked standing to
assert B.V.G.'s interests, the judge did not overtly state how
he would exercise his discretion under the proper reading of the
MUPC. In such circumstances, we ordinarily would remand the
matter so that the judge could address that issue. However, a
close reading of the judge's decision reveals that he determined
that B.V.G.'s interests were adequately represented without the
grandfather's participation as a party.13 Given the resources
already expended on the intervention issue, and given that it is
plain how the judge would exercise his discretion in resolving
13
Thus, for example, the judge concluded that the
appointment of counsel to represent B.V.G. "vitiat[ed]
grandfather's assertion that [her] interests are not adequately
represented," and the judge specifically stated that he was
"satisfied that B.V.G.'s appointed counsel will serve" her
interest in having contact with the grandfather.
15
that question, we proceed to review whether his findings
regarding adequate representation are supported.
On the record before us, there is no basis for disturbing
the judge's assessment. At the motion hearing, B.V.G.'s counsel
indicated he was largely in agreement that fostering a
relationship with the grandfather would be beneficial for
B.V.G., and the grandfather has made no showing that B.V.G.'s
attorney will fail to press that issue going forward. The fact
that counsel took a neutral position on the grandfather's motion
to intervene is not inconsistent with fulfilling counsel's role
in advocating for his client's best interests. We have no basis
for impugning the adequacy of B.V.G.'s current representation,
and we therefore conclude that it was well within the judge's
purview to deny the motion. This is especially so given that
the judge appointed a GAL to assess B.V.G.'s interests. We
trust that the advocacy of B.V.G.'s counsel, along with the
findings of the GAL, will help ensure that B.V.G.'s best
interests are at the forefront in structuring the terms of the
guardianship.14, 15
14
To the extent that the grandfather argues that he should
have been allowed to intervene permissively pursuant to
Mass.R.Civ.P. 24(b), the conclusions we have drawn with regard
to intervention as of right apply to that issue as well.
15
The father seeks an award of appellate fees and double
costs under Mass.R.A.P. 25, as appearing in 376 Mass. 949
(1979), and G. L. c. 211A, § 15, on the ground that the instant
16
Order denying motion to
intervene affirmed.
appeal is frivolous. See Avery v. Steele, 414 Mass. 450, 455
(1993). The request is denied.