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L.B. v. Chief Justice of Probate and Family Court Department

Supreme Judicial Court of Massachusetts, Suffolk

May 4, 2016

L.B. & another [1]
v.
CHIEF JUSTICE OF THE PROBATE AND FAMILY COURT DEPARTMENT & others. [2]

Date October 5, 2015.

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.

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.

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

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 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.

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 ...


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