L.B. v. Chief Justice of the Probate & Family Court Dep't

• Decision Date: 04 May 2016
• Docket Number: SJC–11892.
• Parties: L.B. & another v. CHIEF JUSTICE OF the PROBATE AND FAMILY COURT DEPARTMENT & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

474 Mass. 231

49 N.E.3d 230

L.B. & another¹

v.CHIEF JUSTICE OF the PROBATE AND FAMILY COURT DEPARTMENT & others.²

SJC–11892.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Oct. 5, 2015.

Decided May 4, 2016.

Laura Williams Gal (Christina L. Paradiso with her) for L.B. & another.

Norah E. Kane for the minor children of L.B.

Jo Ann Shotwell Kaplan, Assistant Attorney General, for Chief Justice of the Probate and Family Court Department.

Deborah W. Kirchwey for the minor child of C.L.

Jamie Ann Sabino, Susan R. Elsen, Lynn, Mary K. Ryan, & Melanie V. Woodward, Boston, for Massachusetts Law Reform Institute, Inc., & others, amici curiae, submitted a brief.

Andrew L. Cohen, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Susan M. Finnegan, Sandra J. Badin, Boston, & Geoffrey A. Friedman, for S.D., amicus curiae, submitted a brief.

Richard M. Page, Jr., Boston, for Boston Bar Association, amicus curiae, joined in a brief.

Present: SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

SPINA

, J.

In Guardianship of V.V., 470 Mass. 590, 24 N.E.3d 1022 (2015)

, we held that a parent whose minor child is the subject of a guardianship petition pursuant to G.L. c. 190B, § 5–206, and who cannot afford counsel has a right to have counsel appointed and to be so informed. The issue in this case is whether a parent also has a right to counsel if and when the parent petitions to have the guardian removed or to have the terms of the guardianship modified. We conclude that a parent does have a right to counsel for certain of those types of petitions. We also offer some guidance to the Probate and Family Court, where these private guardianships occur, for the development of rules and policies to implement this right to counsel.

Procedural history. The plaintiffs, L.B. and C.L., are the mothers of minor children for whom guardians were appointed, in 2012 and 2013 respectively, pursuant to G.L. c. 190B, § 5–206

. They commenced this action in the county court in 2015, challenging a written policy of the Chief Justice of the Probate and Family Court Department (Chief Justice) concerning the appointment of counsel in cases involving guardianships of minors under G.L. c. 190B. Specifically, they challenged a portion of a memorandum that the Chief Justice issued to the judges of the Probate and Family Court and to court personnel on February 20, 2015, shortly after we released our opinion in Guardianship of V.V., supra. The memorandum addressed our decision and identified a number of steps that the Probate and Family Court was taking to implement our holding. The portion of the memorandum challenged by the plaintiffs is a single sentence that, in speaking of Guardianship of V.V., states: “Based on the holding in this case, the right to counsel for indigent parents only applies in a Petition to Appoint a Guardian of a Minor.” By this sentence, the Chief Justice essentially informed the probate judges and court personnel that, in her view, the right to counsel recognized in Guardianship

of V.V.

applies only to proceedings on the initial petition for appointment of a guardian for a minor, and, conversely, does not apply in subsequent proceedings such as petitions to remove a guardian after he or she has been appointed or to modify the terms of the guardianship. The plaintiffs, as described below, were engaged in the latter types of proceedings in the Probate and Family Court at the time they commenced this action, and their requests for counsel were denied.

The plaintiffs alleged in their complaint that the Chief Justice's policy, by limiting the right to counsel to proceedings for the initial appointment of guardians, contravened our decision in Guardianship of V.V. and violated their right to due process. A single justice of this court reserved and reported the plaintiffs' complaint to the full court.³

Facts.⁴ As stated, the plaintiffs are the mothers of minor children for whom guardians were appointed pursuant to G.L. c. 190B, § 5–206

.⁵ Each guardianship proceeding began, and each appointment occurred, well before our decision in Guardianship of V.V., so it was not established at the time of those proceedings that parents whose minor children were the subject of guardianship petitions had a right to counsel. It appears that neither L.B. nor C.L. was represented by counsel at the time the guardians were appointed. The guardianship decree for each child specified

that the guardianship was to extend to the child's eighteenth birthday, unless terminated sooner by order of the court.^{6 , 7}

In December, 2014, L.B. filed three petitions in the trial court pursuant to G.L. c. 190B, § 5–212

,⁸ one with respect to each of her children, seeking to remove the guardians. She alleged that she was able to “resume parental responsibilities.” She stated that she “no longer consents to the guardianship[s] because [she] has appropriate housing and supportive services,” that “she has played an active role in [her children's lives] during the guardianship[s],” and that “she is fit to resume primary responsibility for, and care of, her [children].”

In February, 2015, C.L. filed a petition in the trial court seeking to modify the terms of her visitation with her child.⁹ She alleged, among other things, that she was living in a stable environment, had income, and was attending college, and that she had “done what has been asked of [her],” presumably by the terms of the guardianship and by the guardians. She requested more visitation,

and on different terms, than had been prescribed in the guardianship decree, specifically, overnight visitation on weekends and during vacations.

In March, 2015, L.B. filed an application for the appointment of counsel to represent her in each of the three cases involving her, and C.L. similarly moved for appointment of counsel in the case involving her. By that time, we had decided Guardianship of V.V. and the Chief Justice had issued her memorandum indicating her position that the holding in that case did not extend to situations like L.B.'s and C.L.'s. Their requests for counsel were therefore denied. Consistent with the Chief Justice's stated policy, the judge in L.B.'s cases denied her requests on the ground that a “petition for removal of [a] guardian does not qualify [for] appointment of parent's counsel,” and the judge in C.L.'s case denied her motion because her pending petition to modify the guardianship was “not an initial petition” for appointment of a guardian. Shortly thereafter, they commenced this action in the county court.¹⁰

Discussion. 1. The holding in Guardianship of V.V. The plaintiffs maintain that our decision in Guardianship of V.V. already resolves the questions that are now before us. That is incorrect. That case involved a petition for the initial appointment of a guardian under G.L. c. 190B, § 5–206

. The sole question was whether the mother was entitled to counsel on that particular type of petition. Guardianship of V.V., 470 Mass. at 590–591, 24 N.E.3d 1022. Significantly, while the appeal was pending, the case proceeded to trial in the Probate and Family Court on the mother's petition to remove the guardian, and on that petition the mother was represented by counsel. Id. at 591 n. 2, 24 N.E.3d 1022. The appeal therefore did not concern, and the court did not address, any question of a parent's right to counsel on a petition to remove the guardian or to modify the terms of the guardianship.

To support their argument, the plaintiffs rely on two excerpts from Guardianship of V.V. First, they cite a footnote near the

beginning of the opinion that concerned mootness.¹¹ The plaintiffs read too much into the footnote. It was meant only to explain that the presence of counsel on the petition to remove the guardian did not obviate the need to answer the question whether the mother was entitled to counsel on the petition for appointment of the guardian in the first place. Having counsel at one phase of a guardianship proceeding clearly does not suffice for due process purposes if the parent is also entitled to have counsel at another phase. The additional statement in the footnote, that “our concern regarding whether a parent is entitled to counsel applies to all proceedings related to guardianship,” was not a holding that the right to counsel does in fact apply to all such proceedings. It was a recognition that the important question whether a parent has a right to counsel applies equally to all phases of the proceedings.

The plaintiffs also rely on a sentence in which we said: “Because of the impact of a guardianship on the parent-child relationship, and the particular nature of the fundamental rights at stake, an indigent parent whose child is the subject of a guardianship proceeding is entitled to, and must be furnished with, counsel in the same manner as an indigent parent whose parental rights are at stake in a termination proceeding or, similarly, in a care and protection proceeding.” Guardianship of V.V., 470 Mass. at 592–593, 24 N.E.3d 1022

. Read in context, that sentence refers only to the phase of the guardianship proceeding that was actually at issue in that case, namely, the initial petition to appoint a guardian. It was not intended as a holding with respect to other phases of a guardianship proceeding that were not at issue.

2. Due process claim. We next turn to the plaintiffs' main claim, that due process requires the appointment of counsel for indigent parents who petition to remove guardians for their children or to modify the terms of the guardianships. The Chief Justice now acknowledges that counsel may be required constitutionally on a petition to remove a guardian; she argues, however, that the parent must first make a credible threshold showing of “substantial and relevant changed circumstances” since the guardian was appointed. She also argues that there is no right to counsel when a parent petitions only to modify...