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Guardianship of B.V.G.

Supreme Judicial Court of Massachusetts, Norfolk

May 23, 2016

GUARDIANSHIP OF B.V.G.

          Heard: Date December 7, 2015.

         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. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

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

          Adam J. Nussenbaum for the father.

          Frederick M. Misilo, Jr., for The Arc of Massachusetts, Inc., amicus curiae, submitted a brief.

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

          DUFFLY, J.

         The maternal grandfather of B.V.G., a young woman with intellectual disabilities, sought to intervene in permanent guardianship proceedings pending in the Probate and Family Court on the petition of B.V.G.'s father, who had been appointed B.V.G.'s temporary guardian when she was eighteen years old.[1] The grandfather asserted that his relationship with B.V.G. has been restricted by her father in his capacity as temporary guardian, that B.V.G. has indicated expressly her desire to communicate with him and has sought contact with him via social media, and that such a relationship is in B.V.G.'s best interests. The grandfather filed a motion to intervene, pursuant to Mass. R. Civ. P. 24, 365 Mass. 769 (1974), [2] in the guardianship proceedings, seeking to limit the father's ability to restrict B.V.G.'s access to the grandfather.

         Concluding that the grandfather lacked standing to intervene because he was not an "interested person" within the meaning of G. L. c. 190B, § 5-306 (c), a Probate and Family Court judge denied the motion. The grandfather appealed, and the Appeals Court affirmed the denial, on grounds other than those relied upon by the motion judge. See Guardianship of B.V.G., 87 Mass.App.Ct. 250 (2015). We allowed the grandfather's petition for further appellate review.[3]

         General Laws c. 190B, § 5-306 (c), provides that the Probate and Family Court may, "on its own motion or on appropriate petition or motion of the incapacitated person or other interested person, . . . limit the powers of a guardian . . . and thereby create a limited guardianship." Based on our review of the record and the judge's findings, we conclude that the facts relevant to the grandfather's standing to bring the petition are not disputed, and that those facts support the conclusion that the grandfather is an "interested person" within the meaning of G. L. c. 190B, § 5-306 (c). As such, the grandfather is entitled to intervene as of right in the pending proceeding for permanent guardianship.[4]

         In that proceeding, the grandfather may pursue his claim that the guardianship should be limited because it is in the best interests of B.V.G. that she be permitted to communicate with him if she continues to express a wish to do so. We therefore reverse the order denying the grandfather's motion to intervene and remand the matter to the Probate and Family Court for further proceedings in the pending petition for permanent guardianship, consistent with this opinion.[5]

         1. Background and prior proceedings.

         In considering the grandfather's standing to intervene, [6] the motion judge conducted a nonevidentiary hearing at which B.V.G.'s appointed counsel, [7] the father's counsel, the grandfather's counsel, and the mother, appearing pro se, were each permitted to make representations and submit documentary material. We summarize the uncontested facts based on the judge's decision, supplemented by uncontested statements and documents presented at the hearing. See Board of Registration in Med. v. Doe, 457 Mass. 738, 745 (2010) (party's concessions and exhibits attached to party's pleadings sufficient to establish facts despite lack of evidentiary hearing).

         B.V.G. was born in February, 1993. She has an intellectual disability as well as attention deficit hyperactivity disorder and Tourette's syndrome. B.V.G.'s parents, who separated when she was quite young, were divorced following a lengthy and acrimonious custody dispute over B.V.G. The father was awarded sole legal and physical custody of B.V.G. in 2005, when she was twelve years old. Although B.V.G. had enjoyed contact with the grandfather until 2005, thereafter, the father precluded contact between B.V.G. and her maternal relatives, including the grandfather. According to B.V.G.'s mother, B.V.G. had had a "strong relationship" with her grandfather, which B.V.G. wished to maintain while the father had tried to "cut off" this relationship.

         In February, 2011, when B.V.G. reached the age of eighteen, the father filed a petition in the Probate and Family Court seeking to be appointed her legal guardian on the basis of her intellectual disability. The father was appointed B.V.G.'s temporary legal guardian in December, 2011.[8] See G. L. c. 190B, §§ 5-303, 5-308. The order establishing the temporary guardianship authorized B.V.G. to determine with whom she socialized, except for her mother; the order allowed limited supervised visitation between B.V.G. and her mother.[9]

         In January, 2013, the father filed a petition seeking permanent guardianship. At that time, the father's temporary guardianship was extended through April, 2013, pending a hearing on his petition for permanent guardianship. A stipulation by the father, the mother, and an attorney appointed to represent B.V.G. was incorporated in the extended guardianship, authorizing slightly increased visitation between B.V.G. and her mother.[10] The order for temporary guardianship also was amended to authorize certain limited contact between B.V.G. and her grandfather.[11] Under the terms of that stipulation, the grandfather was permitted to send B.V.G. one electronic mail message per day, and to receive no more than one electronic mail message from her. This stipulation, however, did not result in increased contact between B.V.G. and the grandfather. B.V.G. did not have access to electronic mail at the residential treatment program where she lived during the week, and the grandfather contends that, on the weekends, when B.V.G. lived with her father, the father did not permit her to receive electronic mail messages from the grandfather.

         Arguing that the father was not furthering B.V.G.'s best interests by restricting her relationship with him, the grandfather filed a motion to intervene, seeking to limit the pending permanent guardianship pursuant to G. L. c. 190B, § 5-306 (c). In support of his motion that he was an "interested person, " the grandfather submitted printouts of his electronic communications with B.V.G. through a social media Web site as evidence of his caring for B.V.G., and of her wish to have contact with him. The grandfather's assertion that it was B.V.G. who initiated the electronic contact is supported by these documents.[12]

         The father does not suggest that there is any reason that B.V.G. should not be allowed to maintain a relationship with her grandfather, and no longer contests that the grandfather has an interest in B.V.G.'s welfare. The father also does not dispute that he has restricted B.V.G.'s relationship with the grandfather. Rather, in response to the grandfather's contention that such a relationship is in B.V.G.'s best interests, the father maintains that, as B.V.G.'s legal guardian, he has the right to determine those with whom she associates.

         Concluding that the grandfather was not an "interested person" within the meaning of G. L. c. 190B, § 5-306 (c), the judge denied the grandfather's motion to intervene as of right.[13]The judge also appointed a guardian ad litem, however, to report to the court on whether B.V.G.'s best interests are served with her present circle of activities, acquaintances, and contacts.

         2. Discussion.

         Review of a question of statutory interpretation is de novo. Water Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744 (2010). In reviewing a motion to intervene, which involves questions of fact and of law, "[a] judge has discretion in determining whether an intervening party has demonstrated facts that entitle him or her to intervention as of right, and we accordingly review the judge's factual findings for clear error." Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 217 (2011). Apart from the discretion to find facts, however, a judge's ruling on a motion to intervene as of right is a ruling of law, not a discretionary matter. See id. ("Whether those facts are sufficient to meet the requirements for intervention is a question of law, . . . and is reviewed as such").

         Here, the motion judge properly concluded that G. L. c. 190B, § 5-306 (c), creates a cognizable interest that may provide the basis upon which to intervene in a pending matter in a motion filed pursuant to Mass. R. Civ. P. 24 (a). As stated, the judge then determined that the grandfather was not an "interested person" within the meaning of G. L. c. 190B, § 5-306 (c). We turn first to the judge's determination that the grandfather is not an "interested person."

         a. Meaning of "interested person."

         General Laws c. 190B, § 5-306 (c), provides that the Probate and Family Court may, "on its own motion or on appropriate petition or motion of the incapacitated person or other interested person, . . . limit the powers of a guardian . . . and thereby create a limited guardianship." An ...


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