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Guardianship of B.V.G.

Appeals Court of Massachusetts, Norfolk

April 6, 2015

Guardianship of B.V.G.

Argued December 1, 2014.

Petition for guardianship filed in the Norfolk Division of the Probate and Family Court Department on February 16, 2011.

A motion to intervene was heard by George F. Phelan, J.

Anthony D. Martin ( Jennifer L. Mikels with him) for the grandfather.

Adam J. Nussenbaum for the father.

Present: Rubin, Milkey, & Carhart, JJ.

OPINION

[27 N.E.3d 843] Milkey, J.

For years, the maternal grandfather of B.V.G. has sought to rekindle his relationship with B.V.G., his adult granddaughter. He alleges that these efforts have been stymied by her father, who serves as her temporary guardian. Based on his asserted interest in B.V.G.'s welfare, the grandfather filed a motion to intervene in the Probate and Family Court guardianship proceedings.[1] The judge denied that motion based on his conclusion that, as a matter of law, the grandfather lacked standing under § 5-306( c ) of the Massachusetts Uniform Probate Code (MUPC), G. L. c. 190B. We affirm, but on different grounds.

Background.

The pertinent facts, which are largely uncon-

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tested, are drawn from the representations the parties (or their counsel) made at the nonevidentiary hearing on the grandfather's motion to intervene. See Local 589, Amalgamated Transit Union v. Massachusetts Bay Transp. Authy., 392 Mass. 407, 408, 467 N.E.2d 87 (1984). See also Keene v. Brigham & Women's Hosp., Inc., 56 Mass.App.Ct. 10, 11, 775 N.E.2d 725 (2002), S. C., 439 Mass. 223, 786 N.E.2d 824 (2003). Open factual disputes are noted.

B.V.G., born in 1993, suffers from a number of serious impairments, including an intellectual disability,[2] Tourette syndrome, and emotional difficulties. Her parents separated when she was a child, and a long custody battle ensued between her father and her mother, who, by her own admission, was in a " bad situation, a bad place in my life at that time." In 2005, the father was awarded sole legal and physical custody, and he retained such custody of B.V.G. until 2011, when she reached the age of majority. During that period, B.V.G. had no contact with her mother or any of her maternal relatives, including the grandfather.[3]

In 2011, on his own petition, the father was appointed B.V.G.'s temporary guardian. The temporary guardianship order contemplated a rapprochement between B.V.G. and her mother. Thus, the order provided for supervised visitation between the two, and it stated that if B.V.G. expressed a desire to have contact with the mother, the father was not to interfere. In January, 2013, the temporary guardianship was extended until April, 2013, by a stipulation signed by the father, the mother, [27 N.E.3d 844] and an attorney appointed to represent B.V.G. The stipulation also nominally provided for some contact between B.V.G. and the grandfather. Specifically, it provided that, each day, the grandfather could send one electronic mail message (e-mail) to B.V.G. and could receive one e-mail from her. However, that provision proved unworkable, in part because B.V.G. had no e-mail access at the residential treatment program at which she spent her weekdays. In addition, according to the grandfather, the father blocked B.V.G. from

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receiving the grandfather's e-mails on the computer at the father's home (where ...


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