MA high court: parents have right to counsel in private child guardianship establishment and modification proceedings

In Guardianship of V.V., the Supreme Judicial Court of Massachusetts unanimously held that parents have a constitutional right to counsel in private proceedings to establish guardianships of their children.  The holding was pursuant to the due process clause of the Massachusetts Constitution, although the court hinted at an equal protection rationale too. The case was brought by a legal aid organization and supported (via amicus briefs) by both CPCS (the state indigent defense program) and a consortium of legal aid and nonprofit groups.

This case involved a mother who was not given counsel at a proceeding where she consented to a private guardianship (Massachusetts statutory law provides a right to counsel for guardianships initiated by the state but not those done privately). She later sought to revoke it, and although the guardianship was eventually revoked and the child returned to the mother, the high court found that the right to counsel issue was still of substantial public importance.

Following up on its prior decisions in J.K.B. (right to counsel in termination of parental rights cases) and In re Meaghan (right to counsel in private adoption cases), the court stated that the parental rights at stake in a guardianship proceeding are “no less compelling” than in a termination case because the guardian’s rights completely displaces those of the parent, and no less compelling when the state is absent. It added, "Even if the guardianship lasts for only a brief period of time, the displacement impacts the parent’s liberty interests … While it is true that the parent's underlying parental rights are not forever terminated as a result of the guardianship, they are severely circumscribed, becoming subsidiary to those of the guardian, for as long as the guardianship remains in effect.” It then concluded:

[A]n indigent parent whose child is the subject of a guardianship proceeding is entitled to, and must be furnished with, counsel in the same manner as an indigent parent whose parental rights are at stake in a termination proceeding or, similarly, in a care and protection proceeding … there is every reason, given the fundamental rights that are at stake, why an indigent parent is entitled to the benefit of counsel when someone other than the parent, whether it be the State or a private entity or individual, seeks to displace the parent and assume the primary
rights and responsibilities for the child, whether it be in a care and protection proceeding, a termination proceeding, an adoption case, or a guardianship proceeding.

Prior to this case, the Massachusetts high court had never found a right to counsel in care and protection proceedings (although it had said that a six-month deprivation of custody was a “substantial” intrusion on the parental interest, and although Massachusetts has a statutory right to counsel in such cases), so this case breaks even more ground than just guardianships.

A writer for Bloomberg View discussed the case, and there are also articles in The Salem News and Go Local Worcester.

In May 2016, the Court in L.B. v. Chief Justice of Probate Court extended the right to counsel to parental petitions to modify or terminate the guardianship.  The Court observed:

It would be incongruous to recognize the significance of the parent's rights for due process purposes at the time those rights are first displaced, as we did in Guardianship of V.V., but not to do so at the time the parent seeks to regain them. The deprivation at the former stage and the continued deprivation at the latter stage are equally real and significant.  

As to visitation, the Court commented:

Visitation, like custody, is at the core of a parent's relationship with a child; being physically present in a child's life, sharing time and experiences, and providing personal support are among the most intimate aspects of a parent-child relationship. For a parent who has lost (or willingly yielded) custody of a child temporarily to a guardian, visitation can be especially critical because it provides an opportunity to maintain a physical, emotional, and psychological bond with the child during the guardianship period, if that is in the child's best interest; and in cases where the parent aspires to regain custody at some point, it provides an opportunity to demonstrate the ability to properly care for the child.

The Court rejected the suggestion of the chief justice of the probate court that the parent be required to show "substantial and relevant changed circumstances” before the the right to counsel attaches.  This, the Court found, "will set the bar too high for an unrepresented litigant before the right to counsel is triggered. ‘Substantial,' ‘relevant,' ‘material,’ and ‘significant' all suggest that a parent's burden would be to show that circumstances have changed in a legally significant manner and to a legally cognizable degree. It would be unusual and potentially unfair to require a litigant unaided by counsel to make that kind of a legal demonstration before the right to counsel arises.”  The Court described the “colorable claim” approach as “modest” and “not onerous.”

The Law Professor Blogs Network’s Human Rights at Home Blog, courtesy of NCCRC participant Martha Davis, covered the L.B. decision.