Guardianship of a Minor

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19-P-1029 Appeals Court

GUARDIANSHIP OF A MINOR.

No. 19-P-1029.

Bristol. April 9, 2020. - July 28, 2020.

Present: Milkey, Shin, & Englander, JJ.

Jurisdiction, Custody of child, Probate Court. Probate Court,
Guardian, Jurisdiction. Massachusetts Child Custody
Jurisdiction Act. Parental Kidnapping Prevention Act.
Minor, Custody. Parent and Child, Custody of minor.
Practice, Civil, Guardianship proceeding.

Petition for appointment of guardian filed in the Bristol
Division of the Probate and Family Court Department on May 9,
2017.

A petition for removal of guardians was filed on April 26,
2018; a motion to dismiss was heard by Peter Smola, J., and a
motion to alter or amend the judgment was considered by him.

The case was submitted on briefs.
John H. Walsh for the mother.
Julie A. Lowre for the child.
S.M., pro se.

SHIN, J. At issue is whether the Probate and Family Court

(probate court or Massachusetts probate court) retained home
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State jurisdiction over a custody dispute between the mother of

the minor child and the child's permanent guardians, L.M. and

S.M., who now reside with the child in Michigan. For the first

six years of her life, the child lived with the mother in

Massachusetts. L.M. and S.M. removed the child to Michigan in

November 2017, one day after they were appointed permanent

guardians following a hearing in the probate court. Less than

six months later, the mother filed a petition in the probate

court to terminate the guardianship, claiming among other things

that she did not receive notice of the hearing. On L.M.'s

motion, a probate court judge dismissed the mother's petition,

concluding that jurisdiction lies in Michigan, not

Massachusetts. The basis for the judge's ruling was that, in

the interim between the child's removal from Massachusetts and

the mother's filing of the petition in the probate court, the

Michigan Probate Court for Jackson County (Michigan court) had

issued its own order granting L.M. and S.M. permanent

guardianship of the child. Believing that that order was

"controlling," the judge ruled that the mother had to seek

relief in Michigan. Complicating matters, while the mother's

appeal from the decree of dismissal was pending in this court,

S.M. initiated a custody action in the Michigan court and

obtained a judgment granting her permanent custody of the child.
 3

We conclude that the probate court judge erred in

determining that the Massachusetts courts lack jurisdiction over

the mother's petition to terminate the guardianship. Under the

Massachusetts Child Custody Jurisdiction Act (MCCJA), G. L.

c. 209B, the probate court has jurisdiction because

Massachusetts had been the child's home State within six months

before the filing of the petition, the child is absent from

Massachusetts because of her removal by the guardians, and the

mother continues to reside in Massachusetts. Furthermore, under

the Federal Parental Kidnapping Prevention Act, 28 U.S.C.

§ 1738A, the jurisdiction of the Massachusetts courts is

exclusive and continuing. This means that the Michigan court

was precluded by Federal law from issuing a superseding

guardianship order and from exercising jurisdiction over S.M.'s

custody complaint while the mother was pursuing her appeal of

the decree of dismissal in this court. Accordingly, we reverse.1

Background. Partly because of the procedural posture of

the case, the factual record before us is sparse. We set forth

the facts that appear to be uncontested based on the parties'

1 Although the child filed a brief as appellee, she supports
the mother's position on the jurisdictional question. The child
also raises an argument not raised by the mother, which is that
the child had a due process right to court-appointed counsel in
the probate court proceeding. Because the child did not appeal
from the decree of dismissal, we do not address this argument.
 4

filings in the probate court and in this court.2 For context we

also include some of the mother's factual allegations, noting

them as such where they appear.

The child was born in August 2011 in Taunton and lived with

the mother for the first several years of her life. The child

does not have a relationship with her father, and his

whereabouts are unknown.

Sometime after the child was born, the mother developed a

substance use disorder, which led L.M., the maternal great-

grandmother, to petition the probate court in May 2017 for

guardianship of the child. On August 8, 2017, the mother

consented to a temporary guardianship, valid for ninety days.

She apparently did so with the understanding that L.M. would

move to Michigan with the child and with S.M. (L.M.'s daughter,

the maternal great-aunt), and the mother could join them once

she was drug-free. The probate court docket reflects that the

mother, who is indigent, did not have counsel when she signed

the consent form. See Guardianship of V.V., 470 Mass. 590, 594

2 L.M. and S.M. did not file a brief on appeal. Instead,
S.M. filed a motion to dismiss on November 7, 2019 -- which a
single justice of this court denied without prejudice to renewal
in S.M.'s brief -- and a letter dated March 5, 2020, that we
construe as a second motion to dismiss. On April 1, 2020, we
issued an order for supplemental briefing, specifically
directing L.M. and S.M. to attach to their supplemental brief
"copies of all orders, judgments or decrees entered by the
Michigan courts, as well as copies of all docket sheets." They
failed to respond.
 5

(2015) (indigent parent whose child is subject of guardianship

petition "has a right to have counsel appointed and to be so

informed").

According to the mother, about one month after signing the

consent form, she was involuntarily committed for substance use

treatment at facilities in Taunton and Fall River. She alleges

that she reached out to her family around this time to ask about

the next hearing date, but "was told not to worry about it."

Unbeknownst to her, a hearing was scheduled for November 6,

2017, and later continued to November 20, 2017. The mother

alleges that she was not served with notice.

After the November 20, 2017, hearing, at which neither the

mother nor counsel on her behalf appeared, the judge appointed

L.M. and S.M. as permanent coguardians and authorized them "to

remove the minor child from the Commonwealth of Massachusetts

and relocate to Jackson, Michigan."3 The judge's order stated

that the mother "after hearing, is found to be currently unfit,"

as she "is unable to properly care for the child and did not

object to [the guardianship] petition." L.M. and S.M. moved to

Michigan with the child the next day.

3 The paternal grandmother, who was represented by counsel
at the hearing, entered into a stipulation with L.M. and S.M.,
allowing her visitation with the child.
 6

Just over five months later on April 26, 2018, the mother,

now with appointed counsel, filed a petition in the probate

court to revoke her consent and to remove the guardians. L.M.,

also represented by counsel, moved to dismiss the petition for

lack of subject matter jurisdiction, on the basis that the

Michigan court had issued letters of guardianship on January 8,

2018, granting L.M. and S.M. full, permanent coguardianship of

the child. As reflected in the report of the home study

conducted by the Michigan Department of Human Services, the

Michigan letters of guardianship purportedly were intended to

effectuate the Massachusetts probate court judge's November 20,

2017, order. Specifically, the home study report states that,

"[t]he [Massachusetts] court informed [L.M. and S.M.] that

Michigan is one of the very few states that a new guardianship

request must be made as they don't have an agreement to honor

guardianships out of state." The report also states that L.M.

and S.M. informed the Michigan department worker that "they have

the biological mother's approval, which was verified through

Massachusetts court paperwork."

The probate court judge held a nonevidentiary hearing on

L.M.'s motion to dismiss the mother's petition in July 2018. In

opposing the motion, the mother's counsel argued that the mother

had not received notice of the November 20, 2017, hearing,

noting that she had been involuntarily committed under G. L.
 7

c. 123, § 35, in the weeks prior to that hearing. Counsel also

argued that the Michigan court lacked "authority to issue the

guardianship . . . because [the child] had not been a resident

of Michigan for six months." Counsel represented that the

Michigan court "did not contact the mother at all" -- relying

instead on "her having been notified of the hearings [in

Massachusetts]" -- and that the mother did not have the

financial means to travel to Michigan to fight for custody. On

the merits of the mother's petition for removal of the

guardians, counsel argued that it was in the child's best

interest to terminate the guardianship because she had been

acting out and L.M. and S.M. wanted to treat her with

psychoactive drugs over the mother's objection.

Ruling from the bench, the judge allowed the motion to

dismiss on the following rationale:

"[T]he State of Michigan entered[,] subsequent to this
Court entering its guardianship order, . . . [its] own
order for permanent guardianship. What their rules are,
what their requirements are for service, whatever it might
be, they did it; and I think the remedy or the relief has
got to go to Michigan. Mother has to go there and ask for
relief.

"I strongly would believe that Michigan's order is the
controlling order right now, and so I'm going to allow the
motion to dismiss."

The mother's motion to alter or amend the judgment was denied.

She appealed from both the decree dismissing her petition to
 8

remove the guardians and the order denying the motion to alter

or amend the judgment.

In June 2019, while the mother's appeal was pending in this

court, S.M., with L.M.'s consent, filed a "complaint for

custody" in the Michigan court, seeking sole legal and physical

custody of the child and an order that the mother pay child

support. This prompted the mother's Massachusetts counsel to

send a letter to the Michigan court seeking appointment of

counsel for the mother in the Michigan case. By return letter,

a judge of the Michigan court explained that "Jackson County

does not provide court appointed counsel on custody matters as

they are civil." According to the mother, she then filed four

pro se motions in the Michigan case -- a motion to dismiss for

lack of personal jurisdiction, a motion to dismiss for lack of

subject matter jurisdiction, a motion to stay the proceeding

pending the outcome of the Massachusetts case, and a motion for

appointment of counsel -- but none was acted on. In the

mother's supplemental brief filed at the request of this court,

counsel represents that he spoke to the Michigan court's clerk's

office about the mother's motions and was told that they would

not be heard without a Michigan attorney. Counsel then tried to

secure legal assistance for the mother from Legal Services of

South Central Michigan but was unsuccessful.
 9

On August 29, 2019, the Michigan court judge issued a

temporary order granting S.M. sole legal custody and primary

physical custody of the child, specifically noting in the order

that the mother had failed to appear at a conciliation

conference. Final judgment entered in the Michigan case on

January 30, 2020. In the March 5, 2020, letter that S.M. filed

with this court, she represents that the judgment granted her

permanent custody of the child.

Discussion. A Massachusetts court's jurisdiction over

child custody proceedings is governed by the MCCJA, G. L. c.

209B. See Custody of Brandon, 407 Mass. 1, 5 (1990);

Guardianship of Minor Children, 97 Mass. App. Ct. 316, 319

(2020). Under the MCCJA a court must first determine whether it

has the power to exercise jurisdiction over the custody

proceeding; if it has that power, the court may still decline

jurisdiction based on one of the grounds specified in G. L.

c. 209B, § 7 (a). See Custody of Brandon, supra; Guardianship

of Minor Children, supra at 323. In this case it is evident

from the judge's remarks at the motion to dismiss hearing that

he did not decline jurisdiction for discretionary reasons but,

rather, concluded that the issuance of the letters of

guardianship by the Michigan court divested the Massachusetts

courts of jurisdiction. The mother and the child contend that

this was legal error. We agree.
 10

Under G. L. c. 209B, § 2 (a), there are four bases upon

which a Massachusetts court can exercise jurisdiction over a

custody proceeding. See Guardianship of Minor Children, 97

Mass. App. Ct. at 320.4 The first is home State jurisdiction,

which exists where Massachusetts "(i) is the home state of the

child on the commencement of the custody proceeding" or, as

pertinent here, where Massachusetts "(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."

G. L. c. 209B, § 2 (a) (1). "Home state" is defined as "the

state in which the child immediately preceding the date of

commencement of the custody proceeding resided with his parents,

a parent, or a person acting as parent, for at least [six]

consecutive months." G. L. c. 209B, § 1.

As the Supreme Judicial Court has explained, "[c]onsistent

with the underlying purpose of [the MCCJA] to allow for uniform

treatment of custody issues by an appropriate court, the statute

creates an exception to the residency requirement if

4 A "petition to terminate [a] guardianship is a custody
proceeding." Guardianship of Minor Children, 97 Mass. App. Ct.
at 321.
 11

Massachusetts would be the child's home State except that the

child is absent from the State 'because of his or her removal or

retention' by a person claiming custody and a parent . . .

continues to reside in the Commonwealth." Custody of Victoria,

473 Mass. 64, 70 n.11 (2015), quoting G. L. c. 209B,

§ 2 (a) (1). Such is the case here. When the mother filed her

petition to terminate the guardianship -- the operative date for

jurisdictional purposes, see Guardianship of Minor Children, 97

Mass. App. Ct. at 321-322 -- about five months had passed since

L.M. and S.M. removed the child to Michigan. Before the removal

the child had lived continuously, i.e., for at least six

consecutive months, in Massachusetts. Thus, Massachusetts "had

been the child's home state within six months before the" mother

filed the petition, and this, combined with the fact that the

mother "continues to reside in the commonwealth," gave the

probate court jurisdiction over the petition. G. L. c. 209B,

§ 2 (a) (1) (ii).

Contrary to the probate court judge's rationale, the

Michigan letters of guardianship did not divest the probate

court of jurisdiction. Their apparent purpose, as the record

reflects, was to give effect to the judge's own November 20,

2017, order granting L.M. and S.M. permanent guardianship. See

Nadimpali v. Byrraju, 326 Mich. App. 73, 88-91 (2018)

(describing Michigan's procedure for registering child custody
 12

determinations from another State); Jamil v. Jahan, 280 Mich.

App. 92, 102 (2008) ("registration to enforce a child-custody

determination from another state is distinct from actually

making a child-custody determination"). The letters of

guardianship could not supersede the probate court judge's

order, as he appears to have found. Were that the Michigan

court judge's intent, the letters of guardianship would violate

the Federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.

§ 1738A, which "imposes a duty on the States to enforce a child

custody determination entered by a court of a sister State if

the determination is consistent with the provisions of the

[PKPA]." Thompson v. Thompson, 484 U.S. 174, 175-176 (1988).

Under the PKPA the jurisdiction of the State court that made the

initial custody determination (here, the Massachusetts probate

court) is exclusive and continuing so long as that State

"remains the residence of the child or of any contestant" and

the court still has jurisdiction under its own laws. 28 U.S.C.

§ 1738A(d). Therefore, a court of one State may not modify a

custody determination made by a court of another State unless

"it has jurisdiction to make such a . . . determination" and

"the court of the other State no longer has jurisdiction, or it

has declined to exercise such jurisdiction to modify such

determination." 28 U.S.C. § 1738A(f). Accord Mich. Comp. Laws

§ 722.1203. "[M]odify" in this context "refer[s] to a custody
 13

or visitation determination which modifies, replaces,

supersedes, or otherwise is made subsequent to, a prior custody

or visitation determination concerning the same child" (emphasis

added). 28 U.S.C. § 1738A(b).

When the Michigan court issued the letters of guardianship

in January 2018, the Massachusetts probate court still had home

State jurisdiction (as the child had then been living in

Michigan for less than two months), and the mother remained a

resident of Massachusetts. As a result, under the PKPA, the

Michigan court had no power to modify the Massachusetts probate

court judge's November 20, 2017, order. This conclusion is in

accord with Michigan case law. As the Supreme Court of Michigan

has stated, "the jurisdiction of the initial court continues to

the exclusion of all others as long as that court has

jurisdiction under the law of that state and the state remains

the residence of the child or any contestant" (citation

omitted). In re Clausen, 442 Mich. 648, 671 (1993). Where

these requirements are met, as they are here, Michigan courts

have consistently dismissed attempts to modify child custody

determinations issued by a sister State. See, e.g., id. at 671-

673; Nash v. Salter, 280 Mich. App. 104, 111 (2008); Atchison v.

Atchison, 256 Mich. App. 531, 538 (2003). The probate court

judge thus erred in his belief that the Michigan letters of
 14

guardianship replaced or superseded his order and thereby

divested the probate court of jurisdiction.

This would end the jurisdictional inquiry were it not for

S.M.'s later act of filing a complaint for custody in the

Michigan court. At that point Michigan would have been the

child's home State assuming the child had lived there for the

prior six consecutive months. See 28 U.S.C. § 1738A(b); Mich.

Comp. Laws §§ 722.1102, 722.1201. But even so, the PKPA still

confers exclusive and continuing jurisdiction on the

Massachusetts courts because this appeal was pending when S.M.

filed the custody complaint in the Michigan court. The PKPA

provides that "[a] court of a State shall not exercise

jurisdiction in any proceeding for a custody or visitation

determination commenced during the pendency of a proceeding in a

court of another State where such court of that other State is

exercising jurisdiction consistently with the provisions of this

section to make a custody or visitation determination." 28

U.S.C. § 1738A(g). Accord Mich. Comp. Laws § 722.1206. This

means that "[o]nce a State exercises jurisdiction consistently

with the provisions of the [PKPA], no other State may exercise

concurrent jurisdiction over the custody dispute, . . . even if

it would have been empowered to take jurisdiction in the first

instance, and all States must accord full faith and credit to

the first State's ensuing custody decree" (emphasis added;
 15

footnote omitted). Thompson, 484 U.S. at 177.5 The bar on

concurrent jurisdiction furthers "one of the chief purposes of

the PKPA" -- "to 'avoid jurisdictional competition and conflict

between State courts.'" Id., quoting Pub. L. 96-611, 94 Stat.

3569, § 7(c)(5).

As we have explained above, the probate court had

jurisdiction, consistent with the PKPA, to adjudicate the

mother's petition to terminate the guardianship, which was filed

when Massachusetts was still the child's home State. We thus

conclude that the PKPA prevented the Michigan court from

exercising concurrent jurisdiction over the custody dispute

during the pendency of this appeal.6 The PKPA also prevented the

5 See Miller-Jenkins v. Miller-Jenkins, 180 Vt. 441, 449
(2006) ("Because the Vermont dissolution proceeding was still
pending . . . and the Vermont proceeding was consistent with the
PKPA, the Virginia court lacked jurisdiction pursuant to
§ 1738A(g) of the PKPA").

6 The Michigan Uniform Child Custody Jurisdiction and
Enforcement Act requires "a party's pleadings [to] state whether
the party knows of another pending custody proceeding." Fisher
v. Belcher, 269 Mich. App. 247, 255 (2005), citing Mich. Comp.
Laws § 722.1209(1)(b). It also imposes "a continuing duty [on
parties] to inform the court of a proceeding in this or another
state that could affect the current child-custody proceeding."
Mich. Comp. Laws § 722.1209(4). S.M.'s complaint for custody
filed in the Michigan court did not mention that the mother had
filed a petition to terminate the guardianship in the
Massachusetts probate court, nor did it mention that this appeal
was pending. Instead, the complaint referenced only the letters
of guardianship issued by the Michigan court in January 2018 and
then stated that, "[e]xcept for the referenced guardianship
matter, no other Michigan court has continuing jurisdiction over
the minor child."
 16

Michigan court from entering the ensuing custody judgment

because the requirements of 28 U.S.C. § 1738A(f)(2) -- allowing

modifications of custody determinations only where "the court of

the other State no longer has jurisdiction, or it has declined

to exercise such jurisdiction" for discretionary reasons -- were

not met. As a result, the Michigan court's judgment is not

entitled to full faith and credit. Cf. E.N. v. E.S., 67 Mass.

App. Ct. 182, 194 (2006) (because Puerto Rico court did not have

home State jurisdiction, its judgment awarding custody to father

not afforded full faith and credit). Rather, under the PKPA, it

is the "first State's ensuing custody decree" that is entitled

to full faith and credit, Thompson, 484 U.S. at 177, and here,

that first State is Massachusetts.

We recognize that our decision, by virtue of the fact that

the Michigan court has already entered a judgment in the custody

action, raises the potential for conflicting custody orders.

That difficult issue has not yet ripened into an actual

controversy, however, and we cannot resolve it in this appeal.

We do note that both the MCCJA and the Michigan Uniform Child

Custody Jurisdiction and Enforcement Act encourage communication

and exchange of information with the courts of other States.

See G. L. c. 209B, § 7 (c); Mich. Comp. Laws § 722.1206(2). See

also Redding v. Redding, 398 Mass. 102, 105 (1986) (MCCJA

"encourage[s] communication, cooperation, and mutual assistance
 17

between courts and seek[s] to avoid jurisdictional competition

and conflict"); Fisher v. Belcher, 269 Mich. App. 247, 255

(2005) (Michigan Uniform Child Custody Jurisdiction and

Enforcement Act "allows courts of this state to confer with

courts of another state to determine proper jurisdiction"). To

the extent the mother seeks to have the Michigan judgment

declared void, we lack the power to grant that relief. It must

be sought in the Michigan courts, as there is no private right

of action to enforce the PKPA in the Federal courts. See

Thompson, 484 U.S. at 187.

We address a final point, which concerns L.M.'s alternative

argument in her motion to dismiss the mother's petition that

Massachusetts is not a convenient forum and so, if jurisdiction

exists, the probate court judge should decline to exercise it

under G. L. c. 209B, § 7. While we do not read the judge's

remarks to have endorsed this argument, we offer a few

observations should the issue recur on remand.

Under G. L. c. 209B, § 7 (a) (iii), a court may decline to

exercise jurisdiction if it finds that Massachusetts "would

constitute an inconvenient forum and that a court of another

state would constitute a more convenient forum." Given our

conclusion that the mother is entitled to be heard on the merits

of her petition to terminate the guardianship, it follows that

Michigan could not be the more convenient forum absent action by
 18

the Michigan court vacating the judgment granting permanent

custody of the child to S.M., and providing the mother an

opportunity to be heard on why custody should be transferred to

her. In the event the Michigan court takes such action, the

probate court judge should consider the burden on the mother to

litigate the custody dispute in Michigan, given especially her

lack of resources and apparent inability to obtain counsel in

Michigan. The judge should also consider any renewed assertion

by L.M. that it would be burdensome on her and S.M., and

contrary to the child's best interest, to litigate in

Massachusetts. Finally, we think the judge could appropriately

consider that Massachusetts was the child's home State when the

mother filed her petition and it would have been fully in line

with the purpose of the MCCJA for the probate court to have

exercised jurisdiction from the outset. See G. L. c. 209B,

§ 7 (d) (5) (court may consider "whether the exercise of

jurisdiction . . . would contravene any of the purposes of this

chapter"); Custody of Brandon, 407 Mass. at 13 ("Massachusetts

court's decision to exercise jurisdiction was in keeping with

the purposes of the statute").
 19

Conclusion. The decree of dismissal is reversed, and the

case is remanded for further proceedings consistent with this

opinion.7,8

So ordered.

7 To the extent the mother seeks to vacate the November 20,
2017, order as void for lack of service, that part of the
petition shall be treated nunc pro tunc as a motion for relief
under Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974). See
Guardianship of Minor Children, 97 Mass. App. Ct. at 323-324.

8 S.M.'s March 5, 2020, request to dismiss the appeal is
denied.