Heard: December 6, 2016.
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.
motion by the child for appointment of counsel for the
guardian was heard by Brian J. Dunn, J.
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
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.
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.
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).
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 ...