New York Family Law Blog
May 4, 2016
Judge Spina commented that in the Guardianship of V.V. 470 Mass 590 (2015) the court ruled that a parent who has a minor child subject to a guardianship proceeding pursuant to G.L. c. 190B. Sec. 5-206 and can’t afford a lawyer does indeed have a right to counsel. The issue here is if a parent has a right to counsel when a parent files a petition to have a guardian removed, or the terms are modified. He court finds that a parent has a right to counsel when they file a petition to have a guardian removed, or the terms modified. The court finds that a parent has a right to counsel for those types of proceedings. The court also offers guidance to the probate and family court, when these guardianship issues occur and to create standards regarding right to counsel.
The plaintiffs are mothers of children where guardians have been appointed pursuant to G.L. c. 190B, Sec. 5-206. They brought this action in County Court, contesting a policy put in place by the Chief Justice of Probate and Family Court regarding the appointment of counsel in guardianship proceedings (G.L. 190B). They challenged a memorandum that was released to the court personnel regarding this issue.
The portion challenged was pertaining to the case Guardianship of V.V. that stated “Based on the holding in this case, the right to counsel only applies to a Petition to Appoint a Guardian of a Minor. By this statement it can be gathered that the right to counsel only applies to a Petition to Appoint the Guardian of a minor. By this statement it can be gathered that the right to counsel only applies to the initial proceedings for appointment of a guardian, and not any subsequent proceedings.
The plaintiff was engaged in a different aspect of a guardian proceeding, and in court their request for counsel was denied.
The plaintiffs contend that by limiting their right to counsel violated to decision in Guardianship of V.V. and the right to due process.
Facts of the Case
The plaintiffs were mothers of children where guardians were appointed pursuant to G.L. c. 190B, Sec. 206. Each proceeding was already in process before the Guardianship of V.V. was decided. Neither plaintiff was represented by counsel at the time of the guardianship appointment. Each guardian was to remain as such until the children’s 18th birthday.
One mother, L.B., filed petitions pursuant to G.L. 190B, 5-212. In both instances, the request for counsel was denied. The judge states that consistent with policy, neither petition qualified for the right to counsel. After this, the filed this action in County Court.
Discussion
The plaintiffs say that the Guardianship of V.V already resolves this question. The court said this was incorrect. The case Guardianship of V.V., 470 Mass at 590,592 solely discussed if a plaintiff was entitled to counsel for a particular type of petition. While the appeal was in process, the court proceeded to trial in the probate and family court to remove a guardian and the plaintiff was represented by counsel.
To support their contention, the plaintiffs rely on parts of the Guardianship of V.V. In a footnote, it addressed the issue of mootness. The court said too much weight was put on this by the plaintiffs.
The plaintiffs also rely on a sentence that said in essence, because of the serious nature of a guardianship proceeding and how it impacts a child, an indigent parent should be entitled to counsel. The court said that this was taken out of context.
The justice agrees that based on due process, the plaintiff may have a right to counsel. However in order to qualify, the parent must have met a particular threshold concerning a change in circumstances. There is no right to counsel when the guardianship is being modified.
The court says that parents have a fundamental liberty interest in the care, custody and management of their children (Matter of Hillary 450 Mass. 491, 496 (2008). However the court must balance the interests of the child and the risk of violating those interests. Also keep in mind the government’s interest in administering its affairs (Commonwealth v. Babooza 387 Mass. 105, 112.
For this and other reasons the court held that an indigent person who seeks to modify a guardianship is entitled to due process, and therefore legal counsel.
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