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SJC-12195
GUARDIANSHIP OF K.N.
Suffolk. December 6, 2016. - April 13, 2017.
Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk,
Hines, Gaziano, Lowy, & Budd, JJ.1
Probate Court, Guardian, General equity power. Constitutional
Law, Assistance of counsel. Due Process of Law, Assistance
of counsel. Practice, Civil, Guardianship proceeding,
Assistance of counsel.
Petition for appointment of a guardian for a minor child
filed in the Suffolk Division of the Probate and Family Court
Department on November 4, 2005.
A motion by the child for appointment of counsel for the
guardian was heard by Brian J. Dunn, J.
A proceeding for interlocutory review was allowed in the
Appeals Court by Judd J. Carhart, J., and the appeal was
reported by him to the Appeals Court. The Supreme Judicial
Court granted an application for direct appellate review.
Claudia Leis Bolgen for the child.
Deborah W. Kirchwey for the mother.
Stephen H. Merlin, for the guardian, was present but did
not argue.
1
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
Maura Healey, Attorney General, & Abigail B. Taylor,
Assistant Attorney General, for the Attorney General, amicus
curiae, submitted a brief.
LOWY, J. In L.B. v. Chief Justice of the Probate and
Family Court Dep't, 474 Mass. 231, 232 (2016), this court held
that a parent whose minor child is the subject of a guardianship
petition pursuant to G. L. c. 190B, § 5-206, has a right to
counsel in certain situations. The issue in this case is
whether an indigent guardian who is the subject of a removal
petition under G. L. c. 190B, § 5-212, is entitled to appointed
counsel in the proceedings. We conclude that guardians who have
established a de facto parent relationship with their wards do
not have a liberty interest in that relationship such that they
have a procedural due process right to counsel. We hold,
however, that the equitable powers of the Probate and Family
Court allow a judge of that court to grant a motion requesting
counsel for a guardian in a removal proceeding where the judge,
in his or her sound discretion, concludes that doing so would
materially assist in determining the best interests of the
child.2
Background. K.N., a minor child, was born in 2005 when her
mother was fifteen years of age. Within a matter of weeks, the
child's maternal grandmother was appointed as the child's
2
We acknowledge the amicus brief of the Attorney General.
3
permanent guardian, and has remained so ever since. The
guardianship arrangement has not proven satisfactory to the
mother. The removal proceeding that is now at the center of
this dispute is the fourth such proceeding that the mother has
initiated (in addition to the myriad other complaints and
motions that both the mother and the guardian have filed
regarding the custody of the child).
In connection with the current removal petition, the mother
and the guardian were each appointed counsel in the fall of
2015. Several months later, the mother filed an emergency
motion to remove the child from the guardian's care. The judge
allowed this motion, and the child was temporarily returned to
her mother. The next day, the guardian filed a motion for the
appointment of counsel, which was denied. One week after the
mother's emergency motion was filed, the judge issued an order
returning the child to her guardian.
With the current removal petition still pending, the
guardian retained counsel, who filed a limited appearance and a
motion to reconsider the guardian's request for counsel. The
judge denied the motion and stayed the proceedings while her
counsel appealed. The Appeals Court, however, ordered that her
counsel move to dismiss the appeal due to procedural error. At
this point, her counsel withdrew from the case.
4
In the summer of 2016, the child, through counsel, filed a
motion in the Probate and Family Court to appoint counsel for
her guardian. This motion was denied. Counsel petitioned the
Appeals Court for relief, pursuant to G. L. c. 231, § 118, first
par. A single justice of that court allowed the appeal,
reported the issue, stayed the proceedings below, and ordered
that the child be treated as the appellant. We granted the
child's application for direct appellate review.3
Discussion.4 1. Alleged liberty interest. The child
asserts that guardians who are de facto parents have a
procedural due process right to appointed counsel in contested
guardian removal proceedings. The mother counters that only
legal parents have a protected liberty interest in the context
of raising children, and even guardians who qualify as de facto
3
At our request, the guardian's previous counsel filed a
letter in which he agreed to represent her pro bono before this
court, and adopted and joined the child's brief. Counsel noted
in his letter that much of the legal representation he had
provided the guardian concerning the denial of her motion for
appointment of counsel also was done pro bono because the small
retainer she had given him (her "living expense money") was
exhausted early in the representation and it was obvious to him
that she could not afford to pay more.
4
The mother argues that the child has no standing to bring
this appeal because she is asserting a right of the guardian.
The issue of representation raised by the child, however, is one
that will arise in other cases, and is of public importance. We
therefore choose to decide it. See Wellesley College v.
Attorney Gen., 313 Mass. 722, 731 (1943).
5
parents do not have a procedural due process right to appointed
counsel in removal proceedings.
"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." Guardianship of V.V., 470 Mass. 590, 592
(2015), citing J.K.B., supra.
"Guardianships, by contrast, are solely creatures of
statute." Care & Protection of Jamison, 467 Mass. 269, 283
(2014). See G. L. c. 190B, § 1-302. They do not give rise to a
protected liberty interest in the guardian's relationship with
his or her ward. Jamison, supra. ("A guardianship is neither
the equivalent of nor coextensive with parenthood"). Therefore,
if the guardian here has a protected liberty interest in her
relationship with the child, such that she has a right to
appointed counsel in a removal proceeding, it must be found in
her alleged de facto parent relationship with the child.5
This court has recognized the concept of de facto
parenthood. In E.N.O. v. L.M.M., 429 Mass. 824, cert. denied,
528 U.S. 1005 (1999), we defined a de facto parent as "one who
5
The guardian has not yet been adjudicated a de facto
parent.
6
has no biological relation to the child, but has participated in
the child's life as a member of the child's family. The de
facto parent resides with the child and, with the consent and
encouragement of the legal parent, performs a share of
caretaking functions at least as great as the legal parent."
Id. at 829, citing Youmans v. Ramos, 429 Mass. 774, 776 & n.3
(1999), and ALI Principles of the Law of Family Dissolution
§ 2.03(1)(b) (Tent. Draft No. 3 Part 1 1998) (adopted at annual
meeting May, 1998).
The recognition of de facto parenthood "proceeds from the
premise 'that disruption of a child's preexisting relationship
with a nonbiological parent can be potentially harmful to the
child.'" A.H. v. M.P., 447 Mass. 828, 838 (2006), quoting Blixt
v. Blixt, 437 Mass. 649, 658–659 (2002), cert. denied, 537 U.S.
1189 (2003). As such, we have held that de facto parents may be
granted visitation rights over the objection of legal parents.
See E.N.O., 429 Mass. at 832-833; Youmans, 429 Mass. at 785.
The visitation rights that de facto parents receive derive from
the Probate and Family Court's equitable powers under G. L.
c. 215, § 6, to protect the welfare of children. See A.H.,
supra at 837-838. These visitation rights, however, are not
based on any liberty interest that de facto parents have in
their relationship with the children in question. E.N.O., supra
at 833; Youmans, supra at 787 ("It is not the [de facto
7
parent's] interests that the visitation order protects, but [the
child's] interests"). Indeed, we have found no case where we
have held that de facto parents have such a liberty interest.
Although the raising of children by guardians and de facto
parents provides incalculable benefit to many children and
society as a whole, we decline to recognize a liberty interest
in de facto parent-guardians sufficient to warrant a procedural
due process right to appointed counsel.
2. Equitable powers of the Probate and Family Court. The
child argues that even if the guardian has no liberty interest
entitling her to counsel, the Probate and Family Court has the
equitable power to allow for the appointment of counsel for
indigent guardians in removal proceedings. We agree.
The Probate and Family Court has equity jurisdiction over
"all matters relative to guardianship," G. L. c. 215, § 6, and
its equitable powers are "broad," Youmans, 429 Mass. at 782-783.
The court's "duty as parens patriae necessitates that its
equitable powers extend to protecting the best interests of
children in actions before the court, even if the Legislature
has not determined what the best interests require in a
particular situation." E.N.O., 429 Mass. at 827-828.
Guardianship removal proceedings require judges to " make
complex determinations that consider numerous factors regarding
the child's best interest and the parent's fitness." L.B, 474
8
Mass. at 238. Given the complex nature of the legal and factual
questions before the judge, the presence of counsel for the
guardian may help the judge reach the best possible result for
the child.6 Cf. id. at 239 (presence of counsel for parent in
guardian removal proceeding assists judge in making accurate and
fair determinations). For instance, guardian removal
proceedings may require the judge to consider "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." Id. at
239. Appointed counsel for the guardian may assist the court in
resolving these issues with the "utmost care." J.K.B., 379
Mass. at 4. This is particularly true where the child or legal
parent may be unwilling or unable to present a full picture of
the case to the judge, whether because the guardian has all the
necessary and relevant information about the child or the legal
parent has an incentive to withhold information.
Accordingly, we hold that the equitable powers of the
Probate and Family Court allow a judge of that court to grant a
motion requesting the appointment of counsel for an indigent
6
The appointment of a guardian ad litem may be the most
appropriate way to determine the best interest of the child in
certain circumstances. See G. L. c. 215, § 56A. The ability to
appoint counsel to represent a guardian in a removal proceeding
is simply another tool in the judge's toolbox, which may be used
separately from or in conjunction with a guardian ad litem.
9
guardian who is the subject of a removal proceeding, G. L.
c. 190B, § 5-212, where the judge, based on the exercise of his
or her sound discretion, concludes that doing so would
materially assist in determining the best interest of the child
and parental fitness.7,8
Conclusion. A guardian who is a de facto parent does not
have a liberty interest in her relationship with her ward
sufficient to warrant the appointment of counsel. A Probate and
Family Court judge, however, may grant a motion requesting the
appointment of counsel to the guardian in a removal proceeding
if the judge finds, in the exercise of his or her sound
discretion, that doing so would materially assist in determining
the best interests of the child. The case is remanded to the
Probate and Family Court for further proceedings consistent with
this opinion.
7
To the extent that this holding is inconsistent with dicta
found in Greco v. Probate and Family Court Dep't of the Trial
Court, 422 Mass. 7, 9 (1996), we do not follow it.
8
Such appointment of counsel for the guardian does not
derogate from the due process right of the legal parent, who is
also entitled to counsel at guardianship removal proceedings
provided the parent presents a meritorious claim for removal.
L.B. v. Chief Justice of the Probate and Family Court Dep't, 474
Mass. 231, 242 (2016). See Institute of Judicial
Administration-American Bar Association Joint Commission on
Juvenile Justice Standards, Standards Relating to Counsel for
Private Parties 1.1 (1976) ("The participation of counsel on
behalf of all parties subject to . . . family court proceedings
is essential to the administration of justice and to the fair
and accurate resolution of issues at all stages of those
proceedings").
10
So ordered.