Guardianship of Minor Children

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19-P-296 Appeals Court
GUARDIANSHIP OF MINOR CHILDREN.
No. 19-P-296.
Essex. February 3, 2020. - April 13, 2020.
Present: Green, C.J., Wolohojian, & Sullivan, JJ.
Probate Court, Guardian, Jurisdiction. Jurisdiction, Probate
Court. Practice, Civil, Guardianship proceeding,
Dismissal.
Petitions for appointment of guardians filed in the Essex
Division of the Probate and Family Court Department on December
3, 2013.
Motions to dismiss petitions for removal of guardians,
filed on February 13, 2018, were heard by Jennifer M.R. Ulwick,
J.
Robert E. Curtis, Jr., for the father.
Erin Whelan Pennock for the guardians.
John P. Dennis for the children.
WOLOHOJIAN, J. At issue is whether the Essex Division of
the Probate and Family Court Department (probate court), having
appointed permanent guardians over three minor children, had
exclusive continuing "home state" jurisdiction over the
2
petitions to remove those guardians and, if not, whether the
probate judge abused her discretion in declining to exercise
jurisdiction in favor of California, where the children and the
guardians have lived for several years. We conclude that the
probate court did not have home State jurisdiction over the
termination petitions; nor did it have jurisdiction under any of
the other provisions of G. L. c. 209, § 2. We accordingly
affirm the dismissal of the termination petitions without
reaching the question whether the judge acted within her
discretion when she declined jurisdiction on forum non
conveniens grounds.
Background. In 2013, Steven and Maria Fitzgerald
(Fitzgeralds), long-time residents of California, filed a
petition with the probate court seeking to be appointed
guardians of the three minor children.1 The children were
already under the guardianship of Jeanette Maria Fitzgerald
(Jeanette),2 who was Steven's mother. But because of her
advancing age, Jeanette, who was the children's great-
grandmother, wished to move to California to live with the
Fitzgeralds and to have them assume guardianship of the
1 Separate appointment and removal petitions were filed for
each child. But for ease, we refer to each type of petition as
a single petition in the background and discussion sections of
this opinion.
2 We use the name that appears on the petitions.
3
children. This arrangement was agreed to by the children's
mother, who was at that time not able to care for the children.
These parties entered into an agreement to have the Fitzgeralds
become the permanent guardians of the children, to permit the
children to move to California to live with the Fitzgeralds, and
to transfer jurisdiction to Los Angeles County. The terms of
this agreement were incorporated into the guardianship decree,
which entered on December 3, 2013.3 The father, who was
incarcerated, did not appear in the guardianship proceeding, nor
was he a party to the agreement.
As planned, the children moved to California, where they
have lived with the Fitzgeralds continuously since the beginning
of 2014. Despite the fact that the parties had agreed that
jurisdiction would transfer to Los Angeles County, the
Fitzgeralds never registered the guardianship decree with the
California courts.4 They also recognized the probate court's
continuing interest in the guardianship by complying with the
requirement that they file annual reports on the status and
progress of the children.
3 Separate decrees were entered for each child. But for
ease, we refer to them collectively as a single decree in the
background and discussion sections of this opinion.
4 We do not mean to suggest that registration was required,
which is a matter that has not been briefed.
4
The father was released from incarceration in August 2017.
Approximately six months later, on February 13, 2018, the
father, contending that he was gainfully employed, had managed
to put his troubles behind him, and was now fit to parent the
children, filed a petition, pursuant to G. L. c. 190B, § 5-212,
to remove the Fitzgeralds as guardians of the children and to
assume custody of the children. The father also contended that
the 2013 guardianship decree was void for lack of service. At
the time of the termination petition, the father lived in
Burlington and the mother lived in Connecticut.5
The Fitzgeralds responded to the petition in two ways.
First, they filed papers in a California court seeking to
register the guardianship decree.6 Second, they moved in the
probate court to dismiss the father's termination petition on
jurisdictional grounds. The Fitzgeralds noted that they have
lived in California since 1994 and are gainfully employed there.
They represented that they have substantial evidence regarding
5 We have taken the mother's residence from the address on
the affidavit of service.
6 The father asks that we take judicial notice of the fact
that the California Superior Court in Los Angeles County denied
the registration without prejudice to its refiling in the
Probate Division. This information was not available at the
time the judge ruled on the Fitzgeralds' motion to dismiss the
termination petition. Even taking it into account, however, it
would not affect the jurisdictional analysis, except as we note
in note 9, infra.
5
the children's care, protection, training, and personal
relationships in California. The Fitzgeralds further noted that
it was likely a guardian ad litem would need to be appointed in
order to help determine the best interest of the children, and
that California would be a more convenient forum. The
Fitzgeralds' motion to dismiss was accompanied by an affidavit
from a California attorney explaining certain provisions of
California's Family Code and opining that the Los Angeles County
Superior Court would likely accept jurisdiction over the
guardianship termination proceeding were jurisdiction declined
by the probate court. The Fitzgeralds also averred that the
father had been served by various means, including by service on
the correctional facility at which he was then housed, with the
original guardianship petition, and that he had received notice
of the guardianship proceedings.
After a hearing, the probate judge allowed the motion to
dismiss on alternative grounds. First, the judge concluded that
she did not have jurisdiction over the termination petition
because Massachusetts was neither the home State of the children
on the date the termination petition was filed, nor had it been
the children's home State during the previous six months. G. L.
c. 209B, § 2 (a) (1). Second, in the alternative, the judge
concluded that, even if the probate court had jurisdiction, she
would decline to exercise it in favor of California as the more
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convenient forum. G. L. c. 209B, § 7 (a), (b). It is clear
from the transcript of the hearing that the judge was
particularly concerned about the fact that important witnesses,
such as the children's teachers, therapists, and doctors, were
located in California and could not be compelled to come to
Massachusetts. In the judge's view, the inability to obtain
such important information bearing on the children's best
interest made Massachusetts a less convenient forum than
California. Finally, the judge concluded that the father could
not collaterally attack the validity of the guardianship decree
by way of a petition to remove the guardians. Rather, the
father's argument that the guardianship decree was void for lack
of service should have instead been raised via a motion pursuant
to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974) (rule 60 [b]).
To preserve the father's ability to pursue that avenue of
relief, the judge's dismissal of the petition was without
prejudice to the father's ability to file a rule 60 (b) motion.
Discussion. On appeal, the father challenges the dismissal
of the termination petition on two grounds. First, he contends
that as the probate court entered the guardianship decree, it
retained exclusive continuing home State jurisdiction over all
matters thereafter pertaining to the guardianship, including its
termination. In connection with this argument, he points to the
continuing status of the guardianship, the filing of annual
7
status reports in Massachusetts, and the fact that the
Fitzgeralds never registered the guardianship in California.
Second, the father contends that the guardianship decree was
void for lack of service. We address each of these arguments in
turn.
"A Massachusetts court's exercise of jurisdiction over
custody determinations must be based solely on the
[Massachusetts Child Custody Jurisdiction Act (MCCJA)], G. L.
c. 209B." MacDougall v. Acres, 427 Mass. 363, 366 (1998). See
Redding v. Redding, 398 Mass. 102, 106 (1986). This means that
"[j]urisdiction must be exercised pursuant to any of the four
subsections of G. L. c. 209B, § 2 (a)." Guardianship of Zeke,
422 Mass. 438, 441 (1996). Those four subsections provide that
"[a]ny court which is competent to decide child custody matters
has jurisdiction to make a custody determination by initial or
modification judgment if:
"(1) the commonwealth (i) is the home state of the child on
the commencement of the custody proceeding, or (ii) had
been the child's home state within six months before the
date of the commencement of the proceeding and the child is
absent from the commonwealth because of his or her removal
or retention by a person claiming his or her custody or for
other reasons, and a parent or person acting as parent
continues to reside in the commonwealth; or
"(2) it appears that no other state would have jurisdiction
under paragraph (1) and it is in the best interest of the
child that a court of the commonwealth assume jurisdiction
because (i) the child and his or her parents, or the child
and at least one contestant, have a significant connection
with the commonwealth, and (ii) there is available in the
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commonwealth substantial evidence concerning the child's
present or future care, protection, training, and personal
relationships; or
"(3) the child is physically present in the commonwealth
and (i) the child has been abandoned or (ii) it is
necessary in an emergency to protect the child from abuse
or neglect or for other good cause shown, provided that in
the event that jurisdictional prerequisites are not
established pursuant to any other paragraph of this
subsection and a court of another state shall be entitled
to assert jurisdiction under any other subparagraph of this
paragraph then a court exercising jurisdiction pursuant to
this clause of paragraph (3) may do so only by entering
such temporary order or orders as it deems necessary unless
the court of the other state has declined to exercise
jurisdiction, has stayed its proceedings or has otherwise
deferred to the jurisdiction of a court of the
commonwealth; or
"(4) (i) it appears that no other state would have
jurisdiction under prerequisites substantially in
accordance with paragraph (1), (2) or (3), or another state
has declined to exercise jurisdiction on the ground that
the commonwealth is the more appropriate forum to determine
the custody of the child, and (ii) it is in the best
interest of the child that a court of the commonwealth
assume jurisdiction."
G. L. c. 209B, § 2 (a). These can be referred to more simply as
(1) home State jurisdiction, (2) default jurisdiction, (3)
emergency jurisdiction, and (4) appropriate forum jurisdiction.
See MacDougall, supra at 368-369.
Home State jurisdiction exists where Massachusetts is the
"home state of the child on the commencement of the custody
proceeding." G. L. c. 209B, § 2 (a) (1) (i). A "custody
proceeding" "includes proceedings in which a custody
determination is one of several issues presented for resolution,
9
such as an action for divorce or separation, guardianship, and
care and protection." G. L. c. 209B, § 1. There is no doubt
that the father's petition to terminate the guardianship is a
custody proceeding; it sought to change the custody of the
children from the Fitzgeralds to himself. "Home state" is
defined as "the state in which the child immediately preceding
the date of commencement of the custody proceeding resided with
his [or her] parents, a parent, or a person acting as parent,
for at least [six] consecutive months." Id. There is likewise
no dispute that the children had lived in California with the
Fitzgeralds for at least six consecutive months before the date
that the termination petition was filed and that, therefore,
California was the home State of the children at the time the
petition was filed. We note that California has enacted
parallel provisions of the Uniform Child Custody Jurisdiction
Act under which it uses the same definition of home State as
Massachusetts. See Cal. Fam. Code § 3402(g).7
The father argues, however, that the court's jurisdiction
should not be assessed as of the date of the filing of the
termination petition, but rather as of the date of the original
guardianship petition. His view is that guardianships are
different from other types of custody orders because the court
7 Also, Cal. Fam. Code § 3421 is parallel to G. L. c. 209B,
§ 2.
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retains continuing oversight of them, as evidenced in this case
by the requirement that the Fitzgeralds file annual reports on
the status and well-being of the children. The father also
points to G. L. c. 190B, § 5-201, which provides that the
guardianship status of minors "continues until terminated,
without regard to the location from time to time of the guardian
or minor ward." The continuing nature of a guardianship, in the
father's view, means that the court continues to have home State
jurisdiction over the guardianship as long as the guardianship
lasts -- regardless of the physical location of the children.8
Our law does not support this view. Instead, jurisdiction
under the MCCJA must exist at the time the court is being called
on to act; it is not enough that home State jurisdiction existed
at some previous point in time. See Adoption of Yvette (No. 1),
71 Mass. App. Ct. 327, 336 n.12 (2008). The statute provides
that the court has "jurisdiction to make a custody determination
by initial or modification judgment." G. L. c. 209B, § 2 (a).
"Use of the disjunctive signals a legislative intention to treat
modification proceedings as distinct from initial ones. Reason
favors treating modification proceedings as separate and fresh
ones because, if it were otherwise, jurisdiction would lodge
8 The father also places much weight on Guardianship of
Enos, 41 Mass. App. Ct. 360 (1996). Enos, however, has no
bearing here; it does not involve a minor or the provisions of
the MCCJA.
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perpetually with the State where the initial custody order had
been made, potentially long after that State had any relevant
contact with the child." Umina v. Malbica, 27 Mass. App. Ct.
351, 358 (1989). See MacDougall, 427 Mass. at 370. "[I]t is
not unusual for a court which exercised original jurisdiction to
lose 'home state' jurisdiction." Custody of Brandon, 407 Mass.
1, 10 (1990), quoting Umina, supra. A Massachusetts court does
not have continuing home State jurisdiction unless the
requirements of MCCJA home State jurisdiction are satisfied at
the time that modification of an existing custodial arrangement
is sought. See MacDougall, supra ("Massachusetts continuing
jurisdiction in this case is predicated on its having
jurisdiction under its own laws"); Umina, supra ("Massachusetts
. . . does not explicitly reserve jurisdiction under a
continuing jurisdiction or a 'best interest' provision").
Guardianships are no different in this regard from any other
custody determination. For these reasons, we agree with the
judge that home State jurisdiction under § 2 (a) (1) did not
exist over the father's termination petition.
Nor did the court have jurisdiction under the three
remaining subsections of G. L. c. 209B, § 2 (a). Default
jurisdiction under § 2 (a) (2) "allows Massachusetts courts to
exercise jurisdiction over a custody proceeding if 'no other
[S]tate would have jurisdiction under paragraph (1)' and the
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best interest of the child would be served by the court assuming
jurisdiction of the matter." Custody of Victoria, 473 Mass. 64,
71 (2015), quoting G. L. c. 209B, § 2 (a) (2). Here, the
children have lived in California for over four years and
California accordingly has home State jurisdiction. Thus, a
necessary predicate for default jurisdiction in Massachusetts
does not exist.
Emergency jurisdiction under § 2 (a) (3) may be exercised
in appropriate circumstances where the child is physically in
Massachusetts. That is not the case here, nor does the father
claim any emergency.
Finally, under § 2 (a) (4), appropriate forum jurisdiction
"allows Massachusetts courts to exercise jurisdiction over
custody if (i) no other State would have jurisdiction under any
of the first three paragraphs or another State has 'declined to
exercise jurisdiction on the ground that the [C]ommonwealth is
the more appropriate forum to determine the custody of the
child,' and (ii) it is in the 'best interest of the child' for
Massachusetts to assume jurisdiction." Custody of Victoria, 473
Mass. at 71-72, quoting G. L. c. 209B, § 2 (a) (4). As we have
already noted, because California is the home State,
jurisdiction would not lie under the first prong of § 2 (a) (4)
(i). In addition, because there was nothing before the judge to
suggest that California would decline to exercise jurisdiction
13
in favor of Massachusetts as the more appropriate forum,
jurisdiction also would not lie under the second prong of
§ 2 (a) (4) (i).9
Because jurisdiction did not lie under § 2, we need not
examine whether the judge appropriately exercised her discretion
when she declined jurisdiction on forum non conveniens grounds
under G. L. c. 209B, § 7. The jurisdictional analysis under
G. L. c. 209B is a two-step one in which the first step is to
determine whether, under § 2, the court has the power to
exercise jurisdiction in a custody proceeding; if the court has
that power, the second step is to determine whether it should
decline to exercise that power as a matter of discretion under
§ 7.10 See Custody of Brandon, 407 Mass. at 5; Hernandez v.
Branciforte, 55 Mass. App. Ct. 212, 217 (2002). Here, because
9 However, we note that the question of jurisdiction does
not yet appear to have been put to a California court, and
therefore, we cannot definitively foreclose the possibility that
California might decline to exercise jurisdiction for some
reason. If that were to become the case, then the father would
not be foreclosed from returning to Massachusetts, claiming
jurisdiction under the second prong of § 2 (a) (4) (i).
10"A court which has jurisdiction pursuant to [G. L.
c. 209B, § 2,] may decline to exercise its jurisdiction at any
time prior to making a custody determination upon finding that
its assumption of jurisdiction would be (i) violative of the
purposes of this chapter; or (ii) would be based upon the
illegal or otherwise wrongful conduct of a party; or (iii) would
constitute an inconvenient forum and that a court of another
state would constitute a more convenient forum." G. L. c. 209B,
§ 7 (a).
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the court did not have the power to exercise jurisdiction under
§ 2, we need not examine the judge's alternative conclusion that
she would have declined to exercise jurisdiction if she had had
it.
This leaves the father's contention that the guardianship
decree was void for lack of service. Like the probate judge, we
conclude that a petition to remove the guardians is not the
appropriate mechanism to challenge the validity of the
underlying guardianship decree, which instead should be brought
via a rule 60 (b) (4) motion or an independent action. See
Reporters' Notes to Rule 60, Mass. Ann. Laws Court Rules, Rules
of Civil Procedure, at 1259 (2018) ("Rule 60 [b] [4] allows
relief from a void judgment . . . . A judgment is void only if
the court rendering it lacked jurisdiction of the subject matter
or of the parties, or where it acted in a manner inconsistent
with due process of law"). See also Fleishman v. Stone, 57
Mass. App. Ct. 916 (2003) (rule 60 [b] [4] motion used to have
judgment declared void for lack of service). The judge
deliberately left open the father's ability to bring such a
motion or independent action, and nothing in our opinion here is
to be read to curtail or diminish the father's right to do so.
Conclusion. We affirm the judgments dismissing the
father's petitions to terminate the guardianships for lack of
jurisdiction under G. L. c. 209B, § 2, without prejudice to the
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father's ability to challenge the guardianship decrees as void
pursuant to rule 60 (b) (4).
So ordered.