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SJC-11892

L.B. & another1 vs. CHIEF JUSTICE OF THE PROBATE AND FAMILY 

COURT DEPARTMENT & others.2

Suffolk. October 5, 2015. - May 4, 2016.

Present: Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Probate Court, Guardian. Due Process of Law, Assistance of 

counsel. Constitutional Law, Assistance of counsel.

Practice, Civil, Assistance of counsel.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on May 6, 2015.

The case was reported by Botsford, J.

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, Mary K. Ryan, & Melanie 

V. Woodward, for Massachusetts Law Reform Institute, Inc., & 

others, amici curiae, submitted a brief.

 

1 C.L.

2 Justices of the Worcester County and Hampden County 

Divisions of the Probate and Family Court Department, the three

minor children of L.B., and the minor child of C.L.
2

Andrew L. Cohen, Committee for Public Counsel Services, for 

Committee for Public Counsel Services, amicus curiae, submitted 

a brief.

Susan M. Finegan, Sandra J. Badin, & Geoffrey A. Friedman, 

for S.D., amicus curiae, submitted a brief.

Richard M. Page, Jr., for Boston Bar Association, amicus 

curiae, joined in a brief.

SPINA, J. In Guardianship of V.V., 470 Mass. 590 (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 
3

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.
4

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. 

 

3 We acknowledge the amicus brief submitted by the Committee 

for Public Counsel Services and the amicus brief submitted 

jointly by the Massachusetts Law Reform Institute, Women's Bar 

Association of Massachusetts, Greater Boston Legal Services, 

Justice Center of Southeast Massachusetts LLC, Community Legal 

Aid Services and Counseling Center, Harvard Legal Aid Bureau, 

Northeast Legal Aid, Mental Health Legal Advisors Committee, and 

Center for Public Representation. The Boston Bar Association 

also submitted a letter stating that it endorsed the latter 

brief.

In addition, the single justice indicated in her 

reservation and report that the children and guardians in the 

underlying cases could be heard on the question whether they 

have standing to address the issue of appointment of counsel for 

the parents. The guardians have not submitted briefs. Both 

plaintiffs' children have submitted briefs arguing that they do 

have standing on that issue (although they take different 

positions on the substantive merits of the issue). No party or 

amicus argues otherwise, so we shall assume without deciding 

that the children do have standing, and, accordingly, we 

consider their arguments on the issue as well.

4 These facts are drawn principally from the materials in 

the record before the single justice.
5

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

 

5 The statute provides in relevant part: "A minor 

[fourteen] or more years of age or any person interested in the 

welfare of the minor may petition for appointment of a 

guardian." G. L. c. 190B, § 5-206 (a).

6 Specifically, in April, 2012, L.B.'s parents petitioned to 

have themselves appointed as guardians for her three minor 

children. Their petitions were granted in October, 2012. There 

was one guardianship petition, and one decree issued, for each 

child. Each decree indicated that L.B. had been given proper 

notice of the petition and did not object to the appointment of 

guardians. Each decree also stated that the guardians were 

prohibited from permanently removing the child from 

Massachusetts without a court order, and that the guardians were 

required to notify the court of any change of address for the 

guardians or the child. Those were the only restrictions on the 

rights of the guardians expressly contained in the decrees. 

None of the decrees contained any provision for visitation by 

L.B. with her children or for any other type of contact or 

communication between her and them.

7 In September, 2012, C.L.'s mother and stepfather 

petitioned to have themselves appointed as guardians for C.L.'s 

minor child. Their petition was granted in February, 2013. The 

decree stated that, after a hearing, C.L. was found to be unfit 

to parent her child. The decree also contained provisions 
6

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 

 

similar to the decrees for L.B.'s children concerning removal or 

relocation of the child. The decree further specified certain 

days and times that C.L. would be permitted to visit with the 

child; that additional visits could occur by agreement of the 

parties; that the visitation would be unsupervised; and that 

there was to be no contact during the visits between the child 

and C.L.'s boy friend.

8 The statute provides in relevant part: "Any person 

interested in the welfare of a ward or the ward, if [fourteen]

or more years of age, may petition for removal of a guardian on 

the ground that removal would be in the best interest of the 

ward or for any other order that is in the best interest of the 

ward." G. L. c. 190B, § 5-212 (a).

9 The pleading was entitled "general probate petition." It 

was, in essence, a petition to modify the guardianship pursuant 

to G. L. c. 190B, § 5-212 (a). See note 8, supra.
7

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

 

10 After the case was reported by the single justice to the 

full court, L.B. resolved the matters involving her three 

children in the Probate and Family Court. Consequently, her 

present claims are moot. Nevertheless, we address her principal 

claim -- concerning a parent's due process right to counsel on a 

petition to remove a guardian -- because it is fully briefed, is 

likely to arise in many other cases, is of considerable public 

importance, and is something that can easily evade appellate 
8

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. 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. 

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 

 

review otherwise. See Guardianship of V.V., 470 Mass. 590, 591-

592 (2015); Care & Protection of Erin, 443 Mass. 567, 568 

(2005), and cases cited.

11 "That the mother was represented by counsel at the trial 

on her petition to remove the guardian would not render the 

appointment of counsel issue moot. The fact remains that the 

mother was not represented by counsel at the outset of the 

guardianship proceedings, and our concern regarding whether a 
9

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 

 

parent is entitled to counsel applies to all proceedings related 

to guardianship." Guardianship of V.V., 470 Mass. at 591 n.2.
10

or, similarly, in a care and protection proceeding." 

Guardianship of V.V., 470 Mass. at 592-593. 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 the 

terms of the guardianship.

a. Removal petitions. It is well settled that "parents 

have a fundamental liberty interest in the care, custody, and 

management of their children," Matter of Hilary, 450 Mass. 491, 

496 (2008), and that "[d]ue process requirements must be met 

where a parent is deprived of the right to raise his or her 

child." Care & Protection of Erin, 443 Mass. 567, 571 (2005). 
11

See Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3 (1979). 

"In determining what process is due . . . this court 'must 

balance the interests of the individual affected, the risk of 

erroneous deprivation of those interests and the government's 

interest in the efficient and economic administration of its 

affairs.'" Commonwealth v. Barboza, 387 Mass. 105, 112, cert. 

denied, 459 U.S. 1020 (1982), quoting Thompson v. Commonwealth, 

386 Mass. 811, 817 (1982). See Care & Protection of Robert, 408 

Mass. 52, 58-59 (1990). When balancing the interests, we bear 

in mind that "[t]he requirements of procedural due process are 

pragmatic and flexible, not rigid or hypertechnical." Roe v. 

Attorney Gen., 434 Mass. 418, 427 (2001). Due process "calls 

for such procedural protections as the particular situation 

demands." Id., quoting Morrissey v. Brewer, 408 U.S. 471, 481 

(1972).

i. Individual interests. The interest of parents in their

relationship with their children is substantial. "Our 

decisions, and those of the United States Supreme Court, leave 

no doubt that '[t]he rights to conceive and raise one's 

children' are 'essential . . . basic civil rights of man . . . 

far more precious . . . than property rights.'" Department of 

Pub. Welfare v. J.K.B., 379 Mass. at 3, quoting Stanley v. 

Illinois, 405 U.S. 645, 651 (1972). Fundamental rights and

interests of parents are implicated not only at the stage when a 
12

guardian is first appointed for a minor child, as in 

Guardianship of V.V., but also when a parent subsequently 

petitions to regain custody by removing the guardian.12 This is 

so because the appointment of a guardian only displaces the 

parent's rights and responsibilities for the duration of the 

guardianship (except as provided in the decree or otherwise by 

law); it does not terminate them. Guardianship of V.V., 470 

Mass. at 592. The parent is free to attempt to reactivate those 

rights by removing the guardian and putting an end to the 

guardianship. It would be incongruous to recognize the 

significance of the parent's rights for due process purposes at 

the time those rights are first displaced, as we did in 

Guardianship of V.V., but not to do so at the time the parent 

seeks to regain them. The deprivation at the former stage and 

the continued deprivation at the latter stage are equally real 

and significant. Cf. Care & Protection of Erin, 443 Mass. at 

571 (describing review and redetermination proceeding in care 

 

12 In the Probate and Family Court, L.B.'s cases involved

petitions to remove guardians in order to put an end to the 

guardianships and restore the parent's right to custody. The 

custody of the children was thus directly at stake. The same 

rights and interests might not be implicated when a parent seeks 

to remove a guardian in circumstances that would not lead to the 

child returning to the parent, e.g., where the petition seeks 

merely to remove one guardian and replace him or her with 

another. See G. L. c. 190B, § 5-212 (a) (authorizing petitions 

for removal of guardian and petitions by guardian for permission 

to resign; "A petition for removal or for permission to resign 

may, but need not, include a request for appointment of a 

successor guardian").
13

and protection case as "a readjudication" of initial custody 

order; "[a]s such, it implicates the same liberty interests that 

exist at an initial determination that a child is in need of 

care and protection. In a review and redetermination 

proceeding, the judge is deciding simply whether to maintain the 

separation of parent from child").

ii. Risk of erroneous deprivation. The risk of 

erroneously adjudicating these fundamental rights and interests 

of parents is no less real at the guardian removal stage than at 

the appointment stage. Judges at both stages may be called on 

to make complex determinations that consider numerous factors 

regarding the child's best interest and the parent's fitness.

13 

 

13 The provision for removal of a guardian, G. L. c. 190B, 

§ 5-212 (a), speaks of removal when it is in "the best interest 

of the [child]." Unlike the provision that states the bases for 

appointment of guardians initially, see G. L. c. 190B, § 5-

204 (a), it does not expressly mention parental fitness. Our 

cases have made clear, however, that consideration of parental 

fitness, when parental fitness is at issue, will be highly 

relevant to a determination of a child's best interest. See, 

e.g., R.D. v. A.H., 454 Mass. 706, 715 (2009) ("In the context 

of a custody determination, . . . it is essential to recognize 

that the determination whether a parent is 'unfit' is closely 

intertwined with a consideration of the best interests of the 

child"); Bezio v. Patenaude, 381 Mass. 563, 576 (1980) ("Neither 

the 'parental fitness' test nor the 'best interests of the 

child' test is properly applied to the exclusion of the other"), 

citing Petition of the New England Home for Little Wanderers to 

Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975) 

(stating that "the tests . . . reflect different degrees of 

emphasis on that same factors" and "are not separate and 

distinct but cognate and connected"). Judges hearing removal 

petitions will thus inevitably hear evidence, and be asked to 

make determinations, concerning parental fitness.
14

Questions, often difficult ones, about the child's physical and 

psychological well-being must be answered; questions about a 

parent's mental and physical health, addictions, history of 

abuse or neglect, and the impact of these things on the parent's 

ability to meet the needs of the child are also often in play.

Additionally, as the plaintiffs and amici point out, judges 

hearing removal petitions may be called on to consider evidence, 

and make difficult determinations, on the child's bonding with 

the guardian during the guardianship, and the potential effect 

on the child of being removed from the guardian's care and 

returned to the parent's custody. See, e.g., Guardianship of 

Cheyenne, 77 Mass. App. Ct. 826, 830-831 (2010); Guardianship of 

Estelle, 70 Mass. App. Ct. 575, 581-582 (2007), and cases cited.

With the complexity of the legal and factual issues comes 

an increased risk that a judge might incorrectly decide those 

issues, especially in the absence of counsel to present and 

defend the positions of the parent, and hence an increased risk 

that an unrepresented parent will suffer an erroneous 

deprivation of his or her rights. Cf. Department of Pub. 

Welfare v. J.K.B., 379 Mass. at 4 (noting complexity of issues 

in adjudicating petitions to dispense with consent to adoption 

as consideration in finding right to counsel). The presence of 

counsel for a parent will both help to protect the parent's 

rights and interests in this regard and assist a judge to ensure 
15

accuracy and fairness in his or her adjudications. Id. (noting 

benefits of counsel both for parents and for judges).

iii. Government interests. Finally, we must consider the 

Commonwealth's interest in the efficient and economic operation 

of its affairs. Although the Commonwealth is not a party per se 

in a private guardianship proceeding under G. L. c. 190B,14 it 

nevertheless has interests that are affected and must be 

weighed. It has an interest in ensuring that the children of 

the Commonwealth are protected adequately and, toward that end, 

that accurate and fair adjudications are made by judges in these 

cases. Care & Protection of Robert, 408 Mass. at 65-66, and 

cases cited. Significantly, it also has an interest in seeing 

that State resources are not used irresponsibly. There is no 

need, for example, to require the State to incur the cost and 

administrative burden of providing counsel for removal petitions 

that have no hope of prevailing. The risk of erroneously 

depriving a parent of his or her interests on such a petition 

would be negligible, the presence of counsel would add little of 

value, and an expenditure of State resources for an attorney to 

 

14 Many of the private guardianship cases in the Probate and 

Family Court do, however, concern children who have been 

involved with the Department of Children and Families. See 

V. Weisz & B. Kaban, Children's Law Center of Massachusetts, 

Protecting Children: A Study of the Nature and Management of 

Guardianship of Minor Cases in Massachusetts Probate and Family 

Court, at 22 (2008). See also Annie E. Casey Foundation, The 

Kinship Diversion Debate: Policy and Practice Implications for 

Children, Families and Child Welfare Agencies (2013).
16

pursue such a petition would therefore be unnecessary. See Roe

v. Attorney Gen., 434 Mass. at 427, quoting Mathews v. Eldridge, 

424 U.S. 319, 335 (1976) (referring to "the risk of an erroneous 

deprivation of such interest through the procedures used, and 

the probable value, if any, of additional or substitute 

procedural safeguards" [emphasis added]).

iv. Balancing of interests. The most pragmatic way to 

balance all three due process considerations -- the parental 

interests, the risk of erroneous adjudication of those 

interests, and the government interests -- is to require that 

counsel be made available for those petitions that present a 

colorable claim for removal, but not for petitions that are 

obviously meritless. Requiring a parent to make a modest yet 

meaningful preliminary showing that he or she has a colorable

case for removal of the guardian, before counsel is appointed to 

prosecute such a petition, will help to guard against an

unnecessary and irresponsible expenditure of State resources 

and, we hope, will discourage, and thereby help to keep the 

courts free of, patently meritless attempts at removal.

The Chief Justice contends that the parent should be 

required to make an initial showing that there have been 

"substantial and relevant changed circumstances" since the 

guardian was appointed. She analogizes to review and 

redetermination proceedings in care and protection cases, see 
17

G. L. c. 119, § 26,15 and relies heavily on the analysis in Care 

& Protection of Erin, 443 Mass. at 570-572. This court held in 

that case that the ultimate burden of proof on review and 

redetermination is on the Department of Children and Families 

(then the Department of Social Services) (department) to prove 

that a parent remains unfit to further the best interests of the 

child and that the child, therefore, is still in need of care 

and protection. Id. at 572. The court also held that the

parent petitioning for review and redetermination bears a 

preliminary burden to produce some credible evidence of changed 

circumstances since the initial determination, and it is then 

and only then that the department is put to its burden of proof. 

Id. It is the latter kind of burden that the Chief Justice 

argues is applicable by analogy here.

The Chief Justice's analogy is not perfect, but, as stated,

we agree in general that there should be some threshold 

assessment of the claim for removal before the right to counsel 

materializes. We are concerned, however, that her formulation 

of what is required -- a demonstration of "substantial and 

 

15 The statute provides in relevant part: "On any petition 

filed in any court under this section, the [Department of 

Children and Families] or the parents, person having legal 

custody, probation officer or guardian of a child or the counsel 

or guardian ad litem for a child may petition the court not more 

than once every [six] months for a review and redetermination of 

the current needs of such child whose case has come before the 

court. . . ." G. L. c. 119, § 26 (c).
18

relevant changed circumstances"16 -- will set the bar too high 

for an unrepresented litigant before the right to counsel is 

triggered. "Substantial," "relevant," "material," and 

"significant" all suggest that a parent's burden would be to 

show that circumstances have changed in a legally significant 

manner and to a legally cognizable degree. It would be unusual

and potentially unfair to require a litigant unaided by counsel 

to make that kind of a legal demonstration before the right to 

counsel arises. A more appropriate threshold showing would be 

for the parent simply to satisfy the judge that he or she has a

colorable or "meritorious" claim in the sense that it is worthy 

of being presented to and considered by the court. See General 

Motors Corp., petitioner, 344 Mass. 481, 482 (1962) ("A 

meritorious case is one that is worthy of presentation to a 

court, not one which is sure of success"). This is a lighter, 

less technical burden than the one proposed by the Chief 

Justice, and something that will be more manageable for an 

unrepresented litigant with fundamental liberty interests at 

stake. "Meritorious" is a familiar concept that has been 

 

16 The brief of the Chief Justice of the Probate and Family 

Court Department (Chief Justice) also describes the proposed 

burden as a showing that "circumstances have materially and 

significantly changed since due process procedures were afforded 

or available last (i.e., at the time of the original appointment 

or the most recent review of the appointment pursuant to a 

petition to remove the guardian)."
19

applied in a variety of circumstances.17 It is not an onerous 

standard.

In sum, we hold that when an indigent, unrepresented parent 

seeks, pursuant to G. L. c. 190B, § 5-212, to remove a guardian 

for a minor child and thereby regain custody of the child, the 

parent has a due process right to counsel to prosecute the 

petition, and to be so informed, provided the parent presents a 

meritorious claim for removal.

b. Modification petitions. Petitions to modify the terms 

of a guardianship, like petitions to remove a guardian and 

regain custody of a child, can also affect the fundamental 

rights and interests of a parent. A petition such as C.L.'s,

 

17 See, e.g., Commonwealth v. Gunter, 459 Mass. 480, 487, 

cert. denied, 132 S. Ct. 218 (2011) (gatekeeper proceeding 

pursuant to G. L. c. 278, § 33E; when determining whether new 

issue is "substantial," "[t]he bar . . . is not high. It must 

only be a meritorious issue in the sense of being worthy of 

consideration by an appellate court"); Lovell v. Lovell, 276 

Mass. 10, 11-12 (1931) (petition to remove default decree 

requires some showing that petitioner has meritorious claim or 

defense to assert -- "one which is worthy of judicial inquiry"); 

Jones v. Manns, 33 Mass. App. Ct. 485, 492-493 & n.9 (1992) 

(transfer of appeal filed in wrong court; case "involves 

meritorious issues, in the usual sense of that phrase in 

appellate practice," i.e., "worthy of presentation to a court"

[citation omitted]); Levin v. Levin, 7 Mass. App. Ct. 501, 503-

504 (1979) (stay of execution of sentence pending appeal; 

discussing "meritorious" standard and concluding that it 

connotes opposite of "frivolous"); Tisei v. Building Inspector 

of Marlborough, 3 Mass. App. Ct. 377, 379 (1975) (motion for 

leave to docket appeal late; moving party must show "a case 

meritorious or substantial in the sense of presenting a question 

of law deserving judicial investigation and discussion"

[citation omitted]).
20

which seeks a significant change in the terms of visitation

based on changed circumstances since the appointment of the 

guardian, is such a case.18 Visitation, like custody, is at the 

core of a parent's relationship with a child; being physically 

present in a child's life, sharing time and experiences, and 

providing personal support are among the most intimate aspects 

of a parent-child relationship. For a parent who has lost (or 

willingly yielded) custody of a child temporarily to a guardian, 

visitation can be especially critical because it provides an 

opportunity to maintain a physical, emotional, and psychological 

bond with the child during the guardianship period, if that is 

in the child's best interest; and in cases where the parent 

aspires to regain custody at some point, it provides an 

opportunity to demonstrate the ability to properly care for the 

child. See generally L. Edwards, Reasonable Efforts: A 

Judicial Perspective, at 41-47 (2014); M. Smariga, American Bar 

Association Center on Children and the Law & ZERO TO THREE 

Policy Center, Visitation with Infants and Toddlers in Foster 

Care: What Judges and Attorneys Need to Know (2007).

 

18 In the Probate and Family Court, C.L.'s case involved a 

petition to modify the guardianship by changing the terms of the 

visitation. Obviously, not all modification petitions concern 

visitation. Petitions that seek other changes to the 

guardianship -- for example, changes in child support or other 

strictly financial matters -- will not necessarily implicate the 

same core parent-child concerns.
21

For these reasons, and considering the due process factors 

discussed above, we hold that an indigent parent who petitions

to modify the terms of a guardianship by seeking a substantial 

change in the provisions for visitation, like a parent 

petitioning to remove a guardian and regain custody, is entitled 

as a matter of due process to counsel, and to be so informed, 

provided the parent presents a meritorious claim.

3. Other issues. The plaintiffs and amici raise a host of

additional issues that go well beyond the issues raised by the 

plaintiffs' complaint. For example, the plaintiffs argue, in 

addition to their due process claim, that they have a right to 

counsel based on equal protection principles; they also ask us 

to "issue a directive" definitively resolving certain questions

concerning the burden of proof and the elements of proof on 

petitions to remove a guardian under G. L. c. 190B, § 5-212. 

The children, who filed no pleadings of their own in the county 

court, and who were brought into the case for the limited 

purpose of addressing a question of standing on their right to 

be heard on the plaintiffs' claims, see note 3, supra, argue 

that they have their own right to counsel in cases like this. 

And the amicus Committee for Public Counsel Services asks us to 

decide a number of other issues in order to "clarify the 

parameters of the right to counsel for indigent parents in 

guardianship cases."
22

These matters are not properly before us, and we therefore 

decline to address them. Some of these questions will 

undoubtedly need to be resolved in future cases where they are 

properly raised and preserved in the trial court and fully 

briefed on appeal,

19 and where the records for deciding them are 

fully developed. Others might appropriately be addressed by 

court rules and policies established by the Probate and Family 

Court or by amendments to the governing statutes.

4. Development of court rules and policies. Our decision 

in Guardianship of V.V., decided approximately fifteen months

ago, recognized a parent's due process right to counsel in 

guardianship of minor cases where none previously existed, on 

the initial petition for appointment of a guardian. The Probate 

and Family Court has taken a number of steps since then to 

implement that right. Our decision today establishes a right to 

counsel beyond that, on a parent's petition to remove a guardian 

and regain custody of the child or to modify the guardianship in 

order to make a significant change in visitation. Recognizing 

 

19 We note, for example, that no guardian has submitted a 

brief in the case before us. Some of the other issues we are 

asked to decide would clearly affect a guardian's rights and 

interests.
23

that additional steps will be needed to implement these rights, 

we offer a few thoughts and suggestions.20

a. The Probate and Family Court can facilitate the process 

for unrepresented parents by creating forms that will help the 

parent to articulate -- in plain, nonlegal terms -- the reasons 

why he or she believes the guardian should be removed or the 

visitation modified, and the facts on which he or she relies to 

support that claim. Forms that promote a clear and sufficiently 

detailed statement from the parent will also help judges to 

evaluate whether the parent has stated a meritorious claim as we 

have described that term, such that the parent may have an 

attorney if he or she would like one.21

b. We leave it to the Probate and Family Court to consider

in the first instance whether an indigent, unrepresented parent 

must actually file a pro se petition to remove the guardian or 

 

20 A working group of experienced probate judges, child 

advocates, guardians ad litem, representatives of guardian and 

parent interests, and others concerned may be helpful to explore 

these suggestions (and other possibilities) in depth. The Chief 

Justice may wish to consider convening such a group if none 

already exists.

21 Nothing we have said requires that counsel actually be 

appointed for every indigent parent who presents a meritorious 

claim. Parents must be fairly informed of the right to counsel 

and of the procedure for requesting counsel, but due process in 

these circumstances only requires that counsel actually be 

appointed if the parent so requests. A parent who has been 

informed of the right to counsel and the procedure for 

requesting counsel will always have the prerogative to opt to 

proceed without counsel.
24

modify the guardianship before an attorney is appointed. 

Another approach might be for the parent to be allowed first to 

apply for counsel, and be required to state on an application 

for counsel form the meritorious reasons why he or she is 

seeking removal or modification. The judge would then be in a 

position to assess whether appointment of counsel is called for 

before the actual petition is filed. The Probate and Family 

Court is better equipped than this court to weigh the pros and 

cons of each approach initially. It would appear that either 

approach provides due process.

c. General Laws c. 190B, § 5-212, places no express 

limitation on how often a parent may file a petition to remove a 

guardian or to modify a guardianship. The Probate and Family 

Court might consider whether it is feasible and wise to create

guidelines designed to discourage the filing of unnecessarily 

frequent petitions. For example, the court may be able to

identify different classes of petitions according to what relief 

is being sought (e.g., removal or modification) and the bases on 

which the guardianships were established initially (e.g., 

consent, various reasons for unavailability or unfitness, etc.),

and indicate frequencies with which petitions in the different 

classes might reasonably be expected to be filed. Petitions 

filed at more frequent intervals than provided by the guidelines 

presumptively would not merit the appointment of counsel. These 
25

guidelines and presumptions would not be binding, since the 

statute appears to permit the filing of a removal or 

modification petition at any time, each case is different, and 

counsel should always be appointed for a meritorious case, but 

they may help to create realistic expectations for unrepresented 

parents as to how often, at most, they should file.

22

d. In deciding both Guardianship of V.V. and this case, we 

have found it useful to draw certain comparisons between the 

guardianship process under G. L. c. 190B and the care and 

protection process under G. L. c. 119. We have not held, 

however, that all of the procedures and protections provided by 

statute in care and protection cases must necessarily be 

incorporated into private guardianship proceedings under the 

rubric of due process. The two types of proceedings, while 

similar in some respects, are not identical. What process is 

constitutionally due in guardianship cases must continue to be 

decided by applying the factors discussed above.

e. Although we do not decide the question of a child's 

constitutional right to counsel in this case, we note the 

provisions of G. L. c. 190B, § 5-106 (a). "After filing of a 

petition for appointment of a guardian . . . if the ward . . . 

 

22 Likewise, it may be possible in some situations for the

judge, at the time the guardianship is created, to indicate when 

or on what conditions the parent might realistically expect to 

petition for removal or modification.
26

or someone on his behalf requests appointment of counsel; or if 

the court determines at any time in the proceeding that the 

interests of the ward . . . are or may be inadequately 

represented, the court shall appoint an attorney to represent 

the person." Id. The court may also appoint a "guardian ad 

litem . . . to investigate the condition of the ward . . . and 

make appropriate recommendations to the court." G. L. c. 190B, 

§ 5-106 (b). We trust that judges of the Probate and Family 

Court will consider exercising one or both of these prerogatives 

in appropriate cases, especially where counsel is appointed for 

a petitioning parent but the judge is concerned that the 

petition might not be in the child's best interest. Guardians 

faced with removal or modification claims should also be fairly 

informed that they may request counsel for the child.

Conclusion. A judgment shall enter in the county court 

declaring that (a) when an indigent parent seeks, pursuant to 

G. L. c. 190B, § 5-212, to remove a guardian for a minor child 

and thereby regain custody of the child, the parent has a due 

process right to counsel to prosecute the petition, and to be so

informed, provided the parent presents a meritorious claim for 

removal; and (b) similarly, when an indigent parent seeks to 

modify the terms of a guardianship by substantially changing the 

terms of visitation with the minor child, the parent also has a 
27

due process right to counsel, and to be so informed, provided 

the parent presents a meritorious claim for modification.

So ordered.