Supreme Judicial Court Qualifies Right to Appointed Counsel for Indigent Probate Court Litigants

Posted on Posted in Family & Domestic Relations

The right to counsel is a cornerstone of American constitutional law. In a recent decision, the Supreme Judicial Court of Massachusetts has qualified that right as applied to indigent guardians.

Historically, Massachusetts Courts have observed 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 circumstances. See L.B. v. Chief Justice of the Probate and Family Court Dep’t, 474 Mass. 231, 232 (2016).

In the case of Guardianship of K.N. (date of decision April 13, 2017, SJC Docket No. SJC-12195), the Court was presented with the issue of whether an indigent guardian who is the subject of a removal petition under G.L. c. 190B §5-212, is entitled to court-appointed counsel.

The Massachusetts high court concluded that guardians who have developed a “de facto parent relationship” with their wards do not have a liberty interest in that relationship, and thus, do not have a procedural due process right to counsel. The Supreme Judicial Court did state, however, that it is within the equitable powers of the Probate and Family Court to grant a motion requesting counsel for an indigent guardian, where doing so would “materially assist” in determining the best interests of the child.

K.N. was a minor child, born in 2005, to a 15-year old mother. Shortly after birth, the child’s maternal grandmother was appointed as the child’s permanent guardian. Despite this appointment, the mother tried four (4) times to remove the maternal grandmother as the minor child’s guardian (the instant SJC decision being the fourth such attempt).

In 2015, both grandmother and mother were appointed counsel. Following an emergency motion to remove the child from the grandmother’s care, the trial court ordered the return of the child to the mother. The following day, the grandmother filed a motion for the appointment of counsel. The motion was denied.

One week thereafter, the trial court ordered the child be returned to the grandmother. Ultimately, the grandmother retained counsel on a limited appearance basis, who filed a motion to reconsider the grandmother’s request for counsel. The trial court denied the motion for reconsideration, and stayed the proceedings while grandmother’s counsel appealed. The Appeals Court ordered that grandmother’s counsel move to dismiss the appeal due to a procedural error. Shortly thereafter, grandmother’s counsel withdrew from the case.

In the summer of 2016, the child – through counsel – filed a motion to appoint counsel for the grandmother. The Motion was denied. After filing an appeal before a single justice of the Appeals Court, the Appeals Court stayed the underlying proceedings, and ordered that the child be treated as an appellant. The SJC granted the child’s application for direct appellate review.

Following the submission of an amicus curae brief by the office of the Attorney General, the Supreme Judicial Court cautiously opened its opinion by reminding that ” ‘Guardianships…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.”

The Court went on to declare that “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.”

Cognizant of the sweeping implications of such language, the Court assured 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 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.” Following their reasoning, the Supreme Judicial Court remanded the case to the trial court for further proceedings consistent with their opinion.

This post was written by Anthony J. Low, Esq, who is a Partner at the Shapiro Law Group. He focuses his practice on contested litigation.