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SJC-11739

GUARDIANSHIP OF V.V.

Essex. January 5, 2015. - February 10, 2015.

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

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

counsel. Practice, Civil, Appointment of guardian, Relief 

from judgment, Assistance of counsel, Moot case. Moot 

Question.

Petition for appointment of a guardian for a minor filed in 

the Essex Division of the Probate and Family Court Department on 

July 17, 2012.

The case was heard by Susan D. Ricci, J., and a motion for 

relief from judgment was considered by her; a petition for 

removal of the guardian, filed on May 7, 2013, was heard by 

Randy J. Kaplan, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Glenna Goldis for the mother.

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

Committee for Public Counsel Services, amicus curiae, submitted 

a brief.

Susan R. Elsen, Jamie Ann Sabino, Julie Gallup, Russell 

Engler, Mary K. Ryan, Shaghayegh Tousi, & Alison Holdway, for 

Massachusetts Law Reform Institute, Inc., & others, amici 

curiae, submitted a brief.
2

SPINA, J. The mother of the minor child, V.V., appeals 

from the denial, in the Probate and Family Court, of her motion 

for relief from judgment pursuant to Mass. R. Civ. P. 

60 (b) (4), 365 Mass. 828 (1974). In the motion she alleged 

that a judgment appointing a permanent guardian for V.V. was 

void for lack of due process because she was not appointed 

counsel or afforded alternative procedural safeguards in the 

guardianship proceeding. We granted her application for direct 

appellate review. We dismiss the appeal as moot but also hold 

that a parent of a minor child has a right to counsel where, as 

here, someone other than the parent seeks to have himself or 

herself appointed as the child's guardian pursuant to G. L. 

c. 190B, § 5-206.

1

Background. The details of the events leading up to the 

guardianship decree are set forth in Gianareles v. Zegarowski, 

467 Mass. 1012 (2014). The essential facts are as follows. A 

judge in the Probate and Family Court appointed the mother's

 

1 We acknowledge the amicus briefs submitted by the 

Committee for Public Counsel Services; and, collectively, the 

Massachusetts Law Reform Institute, Inc., Boston Bar 

Association, Massachusetts Bar Association, Women's Bar 

Association of Massachusetts, Greater Boston Legal Services, 

Community Legal Aid, Justice Center of Southeast Massachusetts 

LLC (a subsidiary of South Counties Legal Services, Inc.), 

MetroWest Legal Services, Community Legal Services and 

Counseling Center, Mental Health Legal Advisors Committee, 

Children's Law Center of Massachusetts, Harvard Legal Aid 

Bureau, Center for Public Representation, and Safe Passage, Inc.
3

grandmother, and V.V.'s great-grandmother, as V.V.'s permanent 

guardian in December, 2012. Id. at 1013. The mother was not 

represented by counsel in the guardianship proceeding. Id. In 

May, 2013, then represented by counsel, the mother filed her 

rule 60 (b) (4) motion as well as a petition to remove the 

great-grandmother as V.V.'s guardian pursuant to G. L. c. 190B, 

§ 5-212 (a). Id. The judge denied the rule 60 (b) (4) motion. 

While the mother's appeal from that denial has been pending, her 

petition for removal of the guardian proceeded in the regular 

course. On July 29, 2014, after a trial, a judge (who was not

the judge who had appointed the guardian) vacated the 

guardianship. All parties, including both the mother and V.V., 

were represented by counsel at the trial on the removal 

petition. The great-grandmother did not appeal from the 

judgment vacating the guardianship.

Because the guardianship has been vacated and V.V. has been 

returned to the mother's custody, the issue whether the mother 

was entitled to counsel is moot.2 The issue, however, is of 

significant public importance. It is also capable of repetition

and, given the short time periods in which guardianship matters 

 

2 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

parent is entitled to counsel applies to all proceedings related 

to guardianship.
4

are often decided and the fluidity of the proceedings even after 

an appointment of a guardian (as demonstrated by this case), it 

is an issue that can easily evade appellate review in the 

ordinary course. We therefore exercise our discretion to 

address it. See, e.g., Care & Protection of Erin, 443 Mass. 

567, 568 (2005), and cases cited.

Discussion. "The interest of parents in their relationship 

with their children has been deemed fundamental, and is 

constitutionally protected." Department of Pub. Welfare v. 

J.K.B., 379 Mass. 1, 3 (1979), and cases cited. Due process 

requirements must therefore be met before a parent is deprived 

of his or her parental rights. Id. Due process includes "the 

right to be heard 'at a meaningful time and in a meaningful 

manner.'" Id. at 4, quoting Armstrong v. Manzo, 380 U.S. 545, 

552 (1965). An indigent parent whose parental rights may be 

terminated, for example, "cannot be said to have a meaningful 

right to be heard in a contested proceeding without the 

assistance of counsel." Department of Pub. Welfare v. J.K.B., 

supra at 4.

These interests are no less compelling for a parent whose 

child is the subject of a guardianship proceeding. The 

guardian, once appointed, assumes significant rights and 

responsibilities during the period of guardianship that 

otherwise would have resided with the parent. See G. L. 
5

c. 190B, § 5-209. "A guardian of a ward has the powers and 

responsibilities of a parent regarding the ward's support, care, 

education, health and welfare." G. L. c. 190B, § 5-209 (a). 

The guardian's rights and responsibilities to ensure the child's 

welfare effectively displace those of the parent. The guardian, 

and not the parent, becomes the primary caretaker and decision 

maker for the child. Even if the guardianship lasts for only a 

brief period of time, the displacement impacts the parent's 

liberty interests. Cf. Matter of Hilary, 450 Mass. 491, 496 

(2008) (noting that even six-month placement of child outside 

home when child has been adjudicated child in need of services 

has impact on parent's liberty interest in parent-child 

relationship). While it is true that the parent's underlying 

parental rights are not forever terminated as a result of the 

guardianship, they are severely circumscribed, becoming 

subsidiary to those of the guardian, for as long as the 

guardianship remains in effect.

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 

or, similarly, in a care and protection proceeding. To be sure, 
6

the Legislature has already expressly provided for the 

appointment of counsel in a guardianship proceeding where the 

Department of Children and Families or a licensed child 

placement agency is a party. General Laws c. 119, § 29, thus 

provides:

"Whenever the department or a licensed child placement 

agency is a party to child custody proceedings, the parent, 

guardian or custodian of the child . . . shall have and be 

informed of the right to counsel at all such hearings, 

including proceedings under [G. L. c. 190B, § 5-201, 5-204 

or 5-206], and that the court shall appoint counsel if the 

parent, guardian or custodian is financially unable to 

retain counsel . . ." (emphasis added).

The same interests that warrant appointment of counsel when the 

State is involved in a guardianship proceeding are also at stake

in a guardianship proceeding when the State is absent.

We encountered a similar situation recently in Adoption of 

Meaghan, 461 Mass. 1006 (2012). In that case the legal 

guardians of a child petitioned to adopt the child pursuant to 

G. L. c. 210, §§ 3 (a) and 6. Id. at 1006. We considered 

whether the child's father, who was indigent and whose rights 

would be terminated by the adoption, was entitled to counsel in 

a private adoption case as he would have been if the State were 

involved in the adoption. Id. at 1007. We concluded that he 

was, noting that "the same fundamental, constitutionally 

protected interests are at stake, and the cost of erroneously 

terminating the parent's rights remains too high to require an 
7

indigent parent to risk it without counsel." Id. The same 

general considerations govern here. There is no reason why an 

indigent parent whose child is the subject of a guardianship 

proceeding should receive the benefit of counsel only if the 

State is involved. To the contrary, there is every reason, 

given the fundamental rights that are at stake, why an indigent 

parent is entitled to the benefit of counsel when someone other 

than the parent, whether it be the State or a private entity or 

individual, seeks to displace the parent and assume the primary 

rights and responsibilities for the child, whether it be in a 

care and protection proceeding, a termination proceeding, an 

adoption case, or a guardianship proceeding.

Conclusion. The mother's appeal must be dismissed as moot 

because the guardianship has been vacated and the child has been 

returned to the mother's custody. We hold, however, that a 

parent whose minor child is the subject of a guardianship

proceeding 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.

So ordered.