Revisiting A Fundamental Right in the BBA’s Latest Amicus Brief

In early September, the BBA received a request from the Massachusetts Law Reform Institute (MLRI) to sign onto their amicus brief regarding the issues laid out in two cases before the Massachusetts Supreme Judicial Court (SJC).  One catch, they would need our approval within a couple weeks, as briefs were due before the end of the month.  Now, normally the BBA amicus review and approval process takes months (our own Amicus Brief Policy suggests two to three).  However, we had an advantage here: the cases dealt with a narrow interpretation of an issue on which we had already spoken – the fundamental right to counsel in parental guardianship actions.

As you may recall, the BBA signed onto an amicus brief in December of 2014 in the case of In re Guardianship of V.V., arguing for a right to counsel for indigent parents in private guardianship cases.  The brief there argued, based on due process, equal protection, and policy considerations, for a broad right to counsel in all guardianship cases.  It included quotations from multiple BBA reports, including our recent Investing in Justice task force report, on the impacts of pro se litigants who struggle to access justice and can bog down court procedures.

Following oral argument in January 2015, the SJC took a position consistent with the brief that a right to counsel exists in these cases.  In the words of Justice Francis X. Spina on behalf of a unanimous court, “[T]here 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 … seeks to displace the parent and assume the primary rights and responsibilities for the child.”  The full decision is available here.

However, the Administrative Office of the Probate and Family Court has read the ruling narrowly, asserting that the right to counsel applies only to the initial petition for appointment of counsel, but not to post-appointment petitions to remove a guardian or to modify a guardianship, such as to allow or increase visitation or contact.  These new issues are now before the SJC in two cases, Galvin v. Depelteau (SJC-11882) and Blouin v. Ordoñez and others (SJC-11892).  The SJC has requested amicus briefs on the “matter of guardianship of a minor,” asking “whether a parent of a minor child for whom a guardian has been appointed has a right to counsel when the parent subsequently petitions to remove the guardian or to modify the terms of the guardianship.”

In Galvin, in conjunction with a Petition to Remove Guardian pursuant to G.L. c. 190B, §5-212, a biological mother filed an application for appointment of counsel on March 31, 2015.  On May 6, 2015, the Probate and Family Court denied the request for appointment of counsel, citing In re Guardianship of V.V. On the same day, the Probate and Family Court reported the correctness of its interlocutory order denying appointment of counsel to the Appeals Court and stayed all further proceedings except those necessary to preserve the rights of the parties.  In its Reservation and Report, the court cited a February 2015 memorandum of the Chief Justice of the Probate and Family Court that limited the holding of Guardianship of V.V. to provide for appointed counsel only at the initial petition for guardianship stage of guardianship proceedings.

In Blouin, the plaintiffs were indigent parents whose minor children were under decrees of guardianship at the time of the case.  Both plaintiffs filed petitions to modify the guardianship and subsequently, to terminate the guardianships.  The plaintiffs each sought appointment of counsel to represent them in these proceedings, and both were denied based on the above referenced policy memorandum.

The MLRI amicus brief argues that, although the last line of Guardianship of V.V. references only one section of the guardianship statute, G.L. c. 190B, §5-206, a review of the statute as a whole makes it clear that any motions to modify or petitions to remove a guardian of necessity concern a child who is still the subject of a guardianship proceeding pursuant to G.L. c. 190B, §5-206.  Guardianship is an ongoing matter in which the child, guardian, and the guardianship itself remain under the oversight of the court.  This is evinced by the language of the statute, the guardian’s annual reporting requirement, and the provision ordering notice for parents of a hearing on petitions for subsequent order or appointment of a guardian. G.L. c. 190B, §5-212(b).

In addition, the brief states that due process and equal protection concerns necessitate counsel for indigent parents at all stages of private guardianship proceedings, as parents have a fundamental and constitutionally protected relationship with their children.  Due process, which includes the right to be heard at a meaningful time and in a meaningful manner, requires that indigent parents benefit from counsel when a third-party seeks to deprive them of this relationship through a guardianship.  Parents in post-appointment guardianship proceedings have the same fundamental constitutionally protected interests in their relationship with their children as they do in initial appointment proceedings.  These proceedings still deal with complex issues, a lack of counsel in them establishes the same imbalance of power as would occur at initial appointment proceedings, and the government’s fiscal concerns, including the cost of appointing counsel to indigent parents, are outweighed by the fundamental rights at stake.

The brief closes by arguing that the Probate and Family court interpretation of Guardianship of V.V. violates the equal protection provisions of the Massachusetts Constitution.  Denying appointed counsel to parents in post-appointment guardianship proceedings results in these parents being treated differently from similarly situated parents in two ways: (1) they are treated differently from indigent parents in guardianships at the initial petition stage and (2) they are treated differently from parents in ongoing child welfare custody proceedings.  The brief argues that, given the fundamental right at stake, the equal protection violation must be analyzed under a “strict scrutiny” standard, which it fails as there is no “legitimate and compelling” reason to justify either distinction.

Despite the time crunch, our Amicus Committee was able to thoroughly review, consider, and debate the brief, as did a number of family law practitioners active in the BBA.  They unanimously supported signing onto the brief, and the BBA Council endorsed that recommendation at their October meeting.  Upon their approval we filed a letter with the SJC noting our support of the brief and including our statement of interest.  We look forward to seeing the role the brief plays in oral argument and the ultimate decision in the coming months.  We will, as always, keep you posted here on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association