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.