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Guardianship of K.N.

Supreme Judicial Court of Massachusetts, Suffolk

April 13, 2017

GUARDIANSHIP OF K.N.

          Heard: December 6, 2016.

         Petition for appointment of a guardian for a minor child filed in the Suffolk Division of the Probate and Family Court Department on November 4, 2005.

         A motion by the child for appointment of counsel for the guardian was heard by Brian J. Dunn, J.

         A proceeding for interlocutory review was allowed in the Appeals Court by Judd J. Carhart, J., and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review.

          Claudia Leis Bolgen for the child.

          Deborah W. Kirchwey for the mother.

          Stephen H. Merlin, for the guardian, was present but did not argue.

          Maura Healey, Attorney General, & Abigail B. Taylor, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

          Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1]

          LOWY, J.

         In L.B. v. Chief Justice of the Probate and Family Court Dep't, 474 Mass. 231, 232 (2016), this court held that a parent whose minor child is the subject of a guardianship petition pursuant to G. L. c. 190B, § 5-206, has a right to counsel in certain situations. The issue in this case is whether an indigent guardian who is the subject of a removal petition under G. L. c. 190B, § 5-212, is entitled to appointed counsel in the proceedings. We conclude that guardians who have established a de facto parent relationship with their wards do not have a liberty interest in that relationship such that they have a procedural due process right to counsel. We hold, however, that the equitable powers of the Probate and Family Court allow a judge of that court to grant a motion requesting counsel for a guardian in a removal proceeding where the judge, in his or her sound discretion, concludes that doing so would materially assist in determining the best interests of the child.[2]

         Background.

         K.N., a minor child, was born in 2005 when her mother was fifteen years of age. Within a matter of weeks, the child's maternal grandmother was appointed as the child's permanent guardian, and has remained so ever since. The guardianship arrangement has not proven satisfactory to the mother. The removal proceeding that is now at the center of this dispute is the fourth such proceeding that the mother has initiated (in addition to the myriad other complaints and motions that both the mother and the guardian have filed regarding the custody of the child).

         In connection with the current removal petition, the mother and the guardian were each appointed counsel in the fall of 2015. Several months later, the mother filed an emergency motion to remove the child from the guardian's care. The judge allowed this motion, and the child was temporarily returned to her mother. The next day, the guardian filed a motion for the appointment of counsel, which was denied. One week ...


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