In re Guardianship of B.V.G.
| Decision Date | 06 April 2015 |
| Docket Number | No. 14–P–307.,14–P–307. |
| Citation | 27 N.E.3d 842,87 Mass.App.Ct. 250 |
| Parties | GUARDIANSHIP OF B.V.G. |
| Court | Appeals Court of Massachusetts |
Anthony D. Martin (Jennifer L. Mikels with him), Boston, for the grandfather.
Adam J. Nussenbaum for the father.
Present: RUBIN, MILKEY, & CARHART, JJ.
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 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, 467 N.E.2d 87 (1984)
. See also Keene v. Brigham & Women's Hosp., Inc., 56 Mass.App.Ct. 10, 11, 775 N.E.2d 725 (2002), S.C., 439 Mass. 223, 786 N.E.2d 824 (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 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-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.
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
. The judge reasoned that to construe the statute otherwise would invite even legal strangers with a mere “curious interest in the 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, 120 S.Ct. 2054, 147 L.Ed.2d 49 (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, 977 N.E.2d 1042 (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, 139 N.E. 481 (1923).7 Section 14 of G.L. c. 201, as then in effect, permitted petitions for appointments of temporary guardians by, inter alia, “other person[s] in interest.” Gardiner, supra at 277, 139 N.E. 481. 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, 8 N.E.2d 18 (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:
, 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, 843 N.E.2d 1035
, cert. denied, 549 U.S. 855, 127 S.Ct. 130, 166 L.Ed.2d 96 (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 “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....
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In re B.V.G.
...and the Appeals Court affirmed the denial, on grounds other than those relied upon by the motion judge. See Guardianship of B.V.G., 87 Mass.App.Ct. 250, 27 N.E.3d 842 (2015). We allowed the grandfather's petition for further appellate review.3 General Laws c. 190B, § 5–306 (c ), provides th......