Massachusetts family law attorney Jason V. Owens reviews a recent Massachusetts Supreme Judicial Court decision finding that some guardians of minors may be entitled to court-appointed lawyers in the Probate & Family Court.

When a parent is found unfit in Massachusetts, there are two common outcomes for children: foster care or a legal guardian. Although parental unfitness can lead to either outcome, the legal process for a child’s placement in foster care is quite different from the process surrounding the appointment of a guardian of a minor.

Guardianship proceedings in the Massachusetts Probate and Family Court are often tricky and emotional affairs, and very unlike “care and custody” proceedings in the Juvenile Court, in which a judge orders a child into foster care. Care and custody proceedings occur between a child’s parent and the state, and deal with whether the child can live his or her parent(s) or will be placed in foster care by the Massachusetts Department of Children and Families (DCF). Guardianship proceedings, on the other hand, generally happen in the Probate and Family Court, and pit a child’s biological parent directly against a private individual – like a grandparent, aunt, or uncle – who has volunteered to act as a legal parent.

The single biggest difference between guardianship proceedings and care and custody proceedings comes down to resources. In a foster care case, DCF brings the full power of the state – armed with a large workforce of social workers, investigators and attorneys. Meanwhile a potential guardian is just a regular person; the guardian has no team of investigators or expert attorneys.

Table of Contents for this Blog

• Court-Appointed Attorneys: OK for Biological Parents but not for Guardians?
• Due Process and Court-Appointed Attorneys for Parents in Massachusetts
• Parents’ Rights to a Court-Appointed Attorney in Massachusetts Guardianship Cases
• New Case Gives Rights to Some Guardians, Too

Court-Appointed Attorneys: OK for Biological Parents but not for Guardians?

The law in Massachusetts has long provided court-appointed attorneys for biological parents in care and custody proceedings in which DCF seeks to place children in foster care. The logic behind this rule was simple: faced with the full power and resources of the state, poor biological parents need court-appointed legal counsel to navigate the legal process. In 2015, however, the Massachusetts Supreme Judicial Court entered a controversial decision extending the right to court-appointed counsel to biological parents in guardianship proceedings in the Probate and Family Court. We blogged about the case at the time, explaining the controversy as follows:

Under the V.V. ruling, biological parents will now have free court-appointed counsel in guardianship proceedings, while guardians – those ordinary grandparents, aunts, and uncles who care enough to help a child – will be forced to pay for an attorney or proceed without one. (Prior to the ruling, neither the parent nor the guardian were entitled to free legal counsel.) Needless to say, the already thankless job of guardians in Massachusetts will only get harder and more expensive as a result.

Following the V.V. ruling, a new and crucial difference emerged between care and custody proceedings and guardianship proceedings: in care and custody proceedings, the party seeking custody of the children (i.e. DCF acting behalf of foster parents), had the benefit of an attorney, while in guardianship proceedings, the party seeking custody (i.e. the individual guardian) did not have the right to an attorney.

A recent ruling, though, is a big win for guardians across the state in their efforts to help children lead the best lives possible.

Due Process and Court-Appointed Attorneys for Parents in Massachusetts

For some people, hiring an attorney to represent them in court is not an option because they lack the financial means to afford an lawyer. When this is the case, a court has to appoint an attorney for them, free of charge – if the party has a right to a court-appointed lawyer under the Due Process Clause of the Constitution.

Importantly, due process rights rarely apply in situations where the state is not trying to take away an individual’s life, liberty, or property. For example, in ordinary child custody proceedings between two parents, parties due not have the right to court-appointed counsel, because the other parent – and not the state – is seeking custody of the child. When faced by action by DCF to take custody, however, courts have found that parents in care and custody proceedings have a right under due process to have an attorney appointed for them – they have a liberty interest in being with their children. However, the state is not a player in guardianship proceedings, so the applicable due process rights are more complex.

Parents’ Rights to a Court-Appointed Attorney in Massachusetts Guardianship Cases

Back in 2015, the Massachusetts Supreme Judicial Court weighed in on the due process rights that a parent had in guardianship cases. In Guardianship of V.V., 470 Mass. 590 (2015), the court decided that biological parents in these cases had a due process right to a court-appointed attorney, but that guardians did not.

As we discussed in our blog post covering the case, providing free lawyers for parents in guardianship cases raised some troubling practical issues. In these cases, the reality on the ground is often that the biological parent is either incapable of raising their child or lacks an interest in doing so, and the guardian is stepping in to help. Despite the guardian’s good intentions, the biological parent can challenge the guardianship case. Unfortunately, if the biological parent is successful in removing the guardian from the situation, the loser is often the child, who frequently relies on the guardian to fill in the gaps for an incapable biological parent. To give parents, but not guardians, a due process right to a court-appointed attorney stacked the deck against guardians by giving biological parents access to free legal expertise.

New Case Gives Rights to Some Guardians, Too

Guardianship of V.V. was a very unpopular case for family law attorneys because it flew in the face of a court’s focus on the child’s best interests. In a new decision, however, the Massachusetts Supreme Judicial Court put some of the pieces back together by holding that poor guardians – who are also de facto parents – have an equitable right to a court-appointed attorney.

The case, Guardianship of K.N. (2017), had a common fact pattern: A child was born to a fifteen-year-old mother. Immediately, the child’s maternal grandmother was appointed a permanent guardian of the child. The child’s young biological mother, however, repeatedly filed proceedings to remove the guardian. After years in court, the guardian filed a motion for the court to appoint her an attorney in the case, which was denied, and that motion made it to the state’s highest court.

The Supreme Judicial Court determined that, because she was just a guardian and not a biological parent, the child’s maternal grandmother had no due process right to an attorney. However, because she was also a de facto parent of the child, the Probate and Family Court had the power to create an equitable right for her that guaranteed her access to a court-appointed lawyer:

Accordingly, we hold that the equitable powers of the Probate and Family Court allow a judge of that court to grant a motion requesting the appointment of counsel for an indigent guardian who is the subject of a removal proceeding, G. L. c. 190B, § 5-212, where the judge, based on the exercise of his or her sound discretion, concludes that doing so would materially assist in determining the best interest of the child and parental fitness.

The ruling, of course is a narrow one. To have a court appoint them an attorney, the guardian has to be both unable to pay for one. In addition, the guardian must meet the standard for a de facto parent. For a guardian to show that they are a child’s de facto parent, unfortunately, is not easy:

A de facto parent is one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent. . . . The de-facto parent shapes the child’s daily routine, addresses his developmental needs, disciplines the child, provides for his education and medical care, and serves as a moral guide.

Nevertheless, any time the courts carve out an exception that lets guardians step in and help vulnerable children is a step in the right direction.

About the Author: Jason V. Owens is a Massachusetts divorce lawyer and family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. He is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Jason V. Owens today at (781) 253-2049 or send him an email.