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- 296 Appeals Court
GUARDI ANSHIP OF MINOR CHILDREN.

No. 19

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- 296. Essex. February 3, 2020.

- April 13 , 2020. Present: Green, C.J., Wolohojian, & Sullivan, JJ.

Probate Court , Guardian, Jurisdiction. Jurisdiction , Probate Court. Practice, Civil , Guardianship proceeding, Dismissal.

P etitions for appointment of guardians filed in the Essex Division of the Probate and Family Court Department on December 3, 2013. Motions to dismiss p etitions for removal of guardians , filed on February 1 3, 201 8 , were heard by Jennifer M.R. Ulwick , J. Robert E. Curtis, Jr
. , for the f ather. Erin Whelan Pennock for the g uardian s . John P. Dennis for the c hildren.

WOLOHOJIAN, J . At issue is whether the Essex Division of
the Probate and Family Court Department (probate court) , having appointed permanent guardians over three minor children , ha d exclusive continuing "home s tate" jurisdiction over the2

petition s to remove th ose guardians and, if not, whether the
p robate judge abused her discretion in declining to exercise jurisdiction in favor of California, where the children and the guardians have lived for several years. We conclude that the probate court did not have home S tate jurisdiction over the termination petition s ; nor did it have jurisdiction under any of the other provisions of G. L. c. 209, § 2. We accordingly affirm the dismissal of the termination petition s without reaching the question whether the judge acted within her discretion when she decline d jurisdiction on forum non conveniens grounds
. Background
. In 2013, Steven and Maria Fitzgerald (Fitzgeralds) , long

- time residents of California, filed a petition with the p robate c ourt seeking to be appointed guardians of the three minor children. 1 The children were already under the guardianship of Jeanette Mari a Fitzgerald (Jeanette) , 2 who was Steven's mother. But b ecause of her advancing age , Jeanette , who was the children's great

grandmother, wished to move to California to live with the Fitzgeralds and to have them assu me guardianship of the

1 Separate appointment and removal petitions were filed for each child. But for ease, we refer to each type of petition as a single petition in the background and discussion sections of this opinion
.

2 We use the name that appears on the petitions.3

children. This arrangement was agreed to by the children's mother, who was at that time not able to care for the children. These parties entered into an agreement to have the Fitzgeralds become the permanent guardians of the childr en, to permit the children to move to California to live with the Fitzgeralds, and
to transfer jurisdiction to Los Angeles County. The terms of this agreement were incorporated into the guardianship decree , which entered on December 3, 2013
. 3 The father, who was incarcerated, did not appear in the guardianship proceeding , nor

wa s he a party to the agreement. As planned, the children moved to California, where they have lived with the Fitzgeralds continuously since the beginning of 2014. Despite the fact that the parties had agreed that jurisdiction would transfer to Los Angeles County, the Fitzgeralds never registered the guardianship decree with the California courts. 4 They also recognized the p robate c ourt's continuing interest in the guardianship by complying with the requirement that they file annual reports on the status and
progress o f the children.

3 Sepa rate decrees were entered for each child. But for ease, we refer to them collectively as a single decree in the background and discussion sections of this opinion
.

4 We do not mean to suggest that registration was required, which is a matter that has not been briefed.4

T he father was released from incarceration in August 2017
. Approximately six months later, on February 13, 2018, the father, contending that he was g ainfully employed, had managed to put his troubles behind him, and was now fit to parent the children, filed a petition , pursuant to G. L. c. 190B, § 5

- 212, to remove the Fitzgeralds as guardians of the children and to

assume custody of the children
. The father also contended that the 2013 guardianship decree was void for lack of service. At the time of the termination petition, the father lived in Burlington and the mother lived in Connecticut. 5 The Fitzgeralds responded to the petition in two ways. First, they filed papers in a California court seeking to register the guardianship decree. 6 Second, they moved in the probate court to dismiss the father's termination petition on jurisdictional grounds. The Fitzgeralds noted that they have lived in C alifornia since 1994 and are gainfully employed there. They represented that they have substantial evidence regarding

5 We have taken the mother's residence from the address on the affidavit of service.

6 The father asks that we take judicial notice of the fact that the California Superior Court in Los Angeles County denied the registration without prejudi ce to its refiling in the P robate D ivision. This information was not available at the time the judge ruled on the Fitzgerald s' motion to dismiss the termination petition. Even taking it into account, however, it would not aff ect the jurisdictional analys is , except as we note in note 9, infra
.5

the children's care, protection, training , and personal relationships in California. The Fitzgeralds further noted that it was likely a guardian ad litem would need to be appointed in order to help determine the best interest of the children , and that California would be a more convenient forum. The Fit z geralds' motion to dismiss was accompanied by an affidavit from a California attorney explaining certain provisions of California's Family Code and opining that the Los Angeles County Superior Court would likely accept jurisdiction over the guardianship termination proceeding were jurisdiction declined by the probate court
. The Fitzgeralds also averred that the father had been served by various means, including by service on the correctional facility at which he was then housed, with the original guardianship petition , and that he had received notice
of the guardianship proceedings. After a hearing, the probate judge allowed the motion to dismiss on alternat ive grounds. First, the judge concluded that
she did not have jurisdiction over the termination petition because Massachusetts was neither the home S tate of the children on the date the termination petition was file d, nor had it been the children ' s home S tate during the previous six months
. G. L.

c. 209B, § 2 ( a ) ( 1). Second, in the a lternative, the judge concluded that, even if the probate court had jur isdiction, she would decline to exercise it in favor of California as the more6

convenient forum. G. L. c. 209B, § 7 ( a ) , ( b ). It is clear from the transcript of the hearing that the judge was particularly concerned about the fact that important witnesses , such as the children's teachers, therapists, and doctors, were located in California and could not be compelled to come to
Massachusetts. In the judge's view, the inability to obtain such important information bearing on the children's best interest mad e Massachusetts a less convenient forum than California. Finally, the judge concluded that the father could not collaterally attack the validity of the guardianship decree by way of a petition to remove the guardians. Rather, the father's argument that t he guardianship decree was void for lack of service should have instead been raised via a motion pursuant to Mass. R. Civ. P. 60 (b) , 365 Mass. 828 (1974) (rule 60 [b])
. To preserve the father's ability to pursue that avenue of relief, t he judge's dismiss al of the petition was without prejudice to the father's ability to file a r ule 60 (b) motion. Discussion . On appeal, t he father challenges the dismissal of the termination petition on two grounds. First, he contends
that as the probate court entered the guardianship decree, it retained exclusive continuing home S tate jurisdiction over all matters thereafter pertaining to the guardianship, including its termination. In connection with this argument, he points to the continuing status of the guardianship, the filing of annual7

status reports in Massachusetts , and the fact that the Fitzgeralds never register ed the guardianship in California. Second , the father contends that the guardianship decree was void for lack of service. We address e ach of these arguments in
turn. "A Massachusetts court's exercise of jurisdiction over custody determinations must be based solely on the [Massachusetts Child Custody Jurisdiction Act ( MCCJA )] , G. L.

c. 209B." MacDougall v. Acres , 427 Mass. 363, 366 (199 8)
. See Redding v. Redding , 398 Mass. 102, 106 (1986) . This means that "[j]urisdiction must be exercised pursuant to any of the four subsections of G. L. c. 209B, § 2 ( a )." Guardianship of Zeke , 422 Mass. 438, 441 (1996). Those four subsections provide that "[a]ny court which is competent to decide child custody matters has jurisdiction to make a custody determination by initial or modification judgment if:

" (1) the commonwealth (i) is the home state of the child on the commencement of the custody proceeding, or (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; or

" (2) it appears that no other state would have jurisdiction under paragraph (1) and it is in the best interest of the child that a court of the commonwe alth assume jurisdiction because (i) the child and his or her parents, or the child and at least one contestant, have a significant connection with the commonwealth, and (ii) there is available in the8

commonwealth substantial evidence concerning the child' s present or future care, protection, training, and personal relationships; or

" (3) the child is physically present in the commonwealth and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child from abuse or neglect or for other good cause shown, provided that in the event that jurisdictional prerequisites are not established pursuant to any other paragraph of this subsection and a court of another state shall be entitled to assert jurisdiction under any other subpar agraph of this paragraph then a court exercising jurisdiction pursuant to this clause of paragraph (3) may do so only by entering such temporary order or orders as it deems necessary unless the court of the other state has declined to exercise jurisdiction , has stayed its proceedings or has otherwise deferred to the jurisdiction of a court of the commonwealth; or

" (4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), o r another state has declined to exercise jurisdiction on the ground that the commonwealth is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that a court of the commonwealth assume jurisdic tion."
G. L. c. 209B, § 2 ( a ). These can be referred to more simply as (1) home S tate jurisdiction, (2) default jurisdiction, (3)
emergency jurisdiction, and (4) appropriate forum jurisdiction.
See MacDougall , supra at 368

- 369.
Home S tate jurisdiction exists where Massachusetts is the
"home s tate of the child on the commencement of the custody proceeding." G. L. c. 209B, § 2 ( a ) (1) (i). A "custody proceeding" " includes proceedings in which a custody determination is one of several issues presented fo r resolution,9

such as an action for divorce or separation, guardianship, and care and protection ." G. L. c. 209B, § 1. There is no doubt that the father's petition to terminate the guardianship is a custody proceeding; it sought to change the custody of the children from the Fitzgeralds to himself. "Home s tate" is defined as " the s tate in which the child immediately preceding the date of commencement of the custody proceeding resided with his [or her] parents, a parent, or a person acting as parent,
fo r at least [six] consecutive months." Id . There is likewise no dispute that the children had lived in California with the Fitzgeralds for at least six consecutive months before the date that the termination petition was filed and that, therefore, California was the home S tate of the children at the time the petition was filed
. We note that California has enacted parallel provisions of the Uniform Child Custody Jurisdiction Act under which it uses the same definition of home S tate as Massachusetts
. See Cal. Fam. Code § 3402(g). 7 The father argues, however, that the court's jurisdiction should not be assessed as of the date of the filing of the termination petition, but rather as of the date of the original guardianship petiti on. His view is that guardianships are different from other types of custody orders because the court

7 Also, Cal. Fam. Code § 3421 is parallel to G. L. c. 209B, § 2.10

retains continuing oversight of them, as evidenced in this case by the requirement that the Fitzgeralds file annual reports on the status and well

- being of the children. The father also points to G. L. c. 190B, § 5

- 201, which provides that the guardianship status of minors "continues until terminated, without regard to the location from time to time of the guardian or minor ward." Th e continuing nature o f a guardianship , in the father's view, means that the court continues to have home S tate jurisdiction over the guardianship as long as the guardianship lasts

-- regardless of the physical location of the children. 8 Our law does not support this view. In stead, jurisdiction under the MCCJA must exist at the time the co urt is being called on to act; i t is not enough that home S tate jurisdiction existed at some previous point in time
. See Adoption of Yvette ( No. 1 ) , 71 Mass. App. Ct. 327, 336 n.12 (2008). The statute provides that the court has "jurisdiction to make a custody determination by initial or modification judgment
. " G. L. c. 209B, § 2 ( a )
.

" U se of the disjunctive signals a legislative intention to treat modification proceedings as distinct from initial ones. Reason favors treating modification proceedings as separate and fresh ones because, if it were otherwise, jurisdiction would lodge

8 The father also places much weight on Guardianship of Enos , 41 M a ss. App. Ct. 360 (1996). Enos , however, has no bea ring here; it does not involve a minor or the provisions of the MCCJA.11

perpetually with the State where the initial custody order had been made, potentially long after that State h ad any relevant contact with the child." Umina v. Malbica , 27 Mass. App. Ct. 351, 358 (1989). See MacDougall , 427 Mass. at 370. "[I]t is not unusual for a court which exercised original jurisdiction to lose 'home state' jurisdiction." Custody of Brando n , 407 Mass. 1, 10 (1990), quoting Umina , supra . A Massachusetts court does not have continuing home S tate jurisdiction unless the requirements of MCCJA home S tate jurisdiction a re satisfied at the time that modification of an existing custodial arrangeme nt is sought. See MacDougall , supra ("Massachusetts continuing jurisdiction in this case is predicated on its having jurisdiction under its own laws") ; Umina , supra ("Massachusetts

. . . does not explicitly reserve jurisdiction under a continuing jurisdiction or a 'best interest' provision")
. Guardianships are no different in this regard from any other custody determination. For these reasons, we agree with the judge that home S tate jurisdiction under § 2 ( a ) (1) did not exist over the father's t ermination petition. Nor did the court have jurisdiction under the three remaining subsections of G. L. c. 209B, § 2 ( a ). Default jurisdiction under § 2 ( a ) (2) "allows Massachusetts courts to exercise jurisdiction over a custody proceeding if ' no other [S] tate would have jurisdiction under paragraph ( 1)' and the12

best interest of the child would be served by the court assuming jurisdiction of the matter." Custody of Victoria , 473 Mass. 64, 71 (2015) , quoting G. L. c. 209B, § 2 ( a ) ( 2 ) . Here, the childre n have lived in California for over four years and California accordingly has home S tate jurisdiction. Thus, a necessary predicate for default jurisdiction in Massachusetts does not exist. Emergency jurisdiction under § 2 ( a ) (3) may be exercised in appropriate circumstances where the child is physically in Massachusetts. That is not the case here, nor does the father claim any emergency. Finally, under § 2 ( a ) (4), appropriate forum jurisdiction "allows Massachusetts courts to exercise jurisdiction over custody if (i) no other State would have jurisdiction under any of the first three paragraphs or another State has 'declined to exercise jurisdiction on the ground that the [ C ] ommonwealth is the more appropriate forum to determine the custody of the child,' and (ii) it is in the 'best interest of the child' for Massachusetts to assume jurisdiction." Custody of Victoria , 473 Mass. at 71

- 72 , quoting G. L. c. 209B, § 2 ( a ) ( 4). As we have already noted, because California is the home S tate , jurisdictio n would not lie under the first prong of § 2 ( a ) (4) (i). In addition, because there was nothing before the judge to suggest that California would decline to exercise jurisdiction13

in favor of Massachusetts as the more appropriate forum, ju risdiction also would not lie under the second prong of § 2 ( a ) (4) (i). 9 Because jurisdiction did not lie under § 2, we need not examine whether the judge appropriately exercised her discretion
when she decline d jurisd iction on forum non conveniens grounds under G. L. c . 209 B , § 7. The jurisdictional analysis under
G. L. c. 209B is a two

- step one in which the first step is to determine whether, under § 2, the court has the power to exercise jurisdiction in a custody proceeding ; if the court has that power, the second step is to determine whether it should decline to exercise that power as a matter of discretion under § 7. 10 See Custody of Brandon , 407 Mass. at 5; Hernandez v. Branciforte , 55 Mass. App. Ct. 212, 217 (2002). Here, because

9 However, we note that the question of jurisdiction does not yet appear to have been put to a California court , and therefore, we cannot definitively foreclose the possibility that California might decline to exercise jurisdiction for some reason. If that were to become the case, then the father would not be foreclosed from returning to Massachusetts, claiming jurisdiction under the second prong of § 2 ( a ) (4) (i).

10 " A court which has jurisdiction pursuant to [G. L. c. 209B, § 2,] may decline to exercise its jurisdiction at any time prior to making a custody determination upon finding that its assumption of jurisdiction would be (i) violative of the purposes of this chapter; or (ii) would be based upon the illegal or otherwise wrongful conduct of a party; or (iii) would constitute an inconvenient forum and that a court of another state would constitute a more convenient forum. " G. L. c. 209B, § 7 ( a ).14

the court did not have the powe r to exercise jurisdiction under § 2, we need not examine the judge's alternative conclusion that she would have declined to exercise jurisdiction if she had had it. This leaves the father's contention that the guardianship decree was void for lack of ser vice. Like the probate judge, we conclude that a petition to remove the guardians is not the appropriate mechanism to challenge the validity of the underlying guardianship decree, which instead should be brought via a r ule 60 (b) (4) motion or an independ ent action . See Reporters ' Notes to Rule 60 , Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 1259 (2018) ("Rule 60 [ b ] [ 4 ] allows relief from a void judgment .
. . . A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or where it acted in a manner inconsistent with due process of law")
. S ee also Fleishman v. Stone , 57 Mass. App. Ct. 916 (2003) ( r ule 60 [ b ] [ 4 ] motion used to have judgment declared void for lack of service). The judge deliberately left open the father's ability to bring such a motion or independent action, and nothing in our opinion here is to be read to curtail or diminish the father's right to do so. Conclusion . W e affirm the judgments dismissing the father's petiti on s to terminate the guardianship s for lack of jurisdiction under G. L. c. 209B, § 2, without prejudice to the15

father's ability to challenge the guardianship decree s as void pursuant to r ule 60 (b) (4). So ordered
.