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SJC-12195

                      GUARDIANSHIP OF K.N.



         Suffolk.    December 6, 2016. - April 13, 2017.

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


Probate Court, Guardian, General equity power. Constitutional
     Law, Assistance of counsel. Due Process of Law, Assistance
     of counsel. Practice, Civil, Guardianship proceeding,
     Assistance of counsel.



     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.

     1
       Justice Botsford participated in the deliberation on this
case prior to her retirement.
                                                                     2


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


     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


     2
         We acknowledge the amicus brief of the Attorney General.
                                                                         3


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 after the

mother's emergency motion was filed, the judge issued an order

returning the child to her guardian.

    With the current removal petition still pending, the

guardian retained counsel, who filed a limited appearance and a

motion to reconsider the guardian's request for counsel.      The

judge denied the motion and stayed the proceedings while her

counsel appealed.   The Appeals Court, however, ordered that her

counsel move to dismiss the appeal due to procedural error.         At

this point, her counsel withdrew from the case.
                                                                      4


       In the summer of 2016, the child, through counsel, filed a

motion in the Probate and Family Court to appoint counsel for

her guardian.      This motion was denied.   Counsel petitioned the

Appeals Court for relief, pursuant to G. L. c. 231, § 118, first

par.       A single justice of that court allowed the appeal,

reported the issue, stayed the proceedings below, and ordered

that the child be treated as the appellant.       We granted the

child's application for direct appellate review.3

       Discussion.4    1.   Alleged liberty interest.   The child

asserts that guardians who are de facto parents have a

procedural due process right to appointed counsel in contested

guardian removal proceedings.       The mother counters that only

legal parents have a protected liberty interest in the context

of raising children, and even guardians who qualify as de facto




       3
       At our request, the guardian's previous counsel filed a
letter in which he agreed to represent her pro bono before this
court, and adopted and joined the child's brief. Counsel noted
in his letter that much of the legal representation he had
provided the guardian concerning the denial of her motion for
appointment of counsel also was done pro bono because the small
retainer she had given him (her "living expense money") was
exhausted early in the representation and it was obvious to him
that she could not afford to pay more.
       4
       The mother argues that the child has no standing to bring
this appeal because she is asserting a right of the guardian.
The issue of representation raised by the child, however, is one
that will arise in other cases, and is of public importance. We
therefore choose to decide it. See Wellesley College v.
Attorney Gen., 313 Mass. 722, 731 (1943).
                                                                      5


parents do not have a procedural due process right to appointed

counsel in removal proceedings.

     "The interest of parents in their relationship with their

children has been deemed fundamental, and is constitutionally

protected."   Department of Pub. Welfare v. J.K.B., 379 Mass. 1,

3 (1979), and cases cited.    "Due process requirements must

therefore be met before a parent is deprived of his or her

parental rights."    Guardianship of V.V., 470 Mass. 590, 592

(2015), citing J.K.B., supra.

     "Guardianships, by contrast, are solely creatures of

statute."   Care & Protection of Jamison, 467 Mass. 269, 283

(2014).   See G. L. c. 190B, § 1-302.   They do not give rise to a

protected liberty interest in the guardian's relationship with

his or her ward.    Jamison, supra.   ("A guardianship is neither

the equivalent of nor coextensive with parenthood").     Therefore,

if the guardian here has a protected liberty interest in her

relationship with the child, such that she has a right to

appointed counsel in a removal proceeding, it must be found in

her alleged de facto parent relationship with the child.5

     This court has recognized the concept of de facto

parenthood.   In E.N.O. v. L.M.M., 429 Mass. 824, cert. denied,

528 U.S. 1005 (1999), we defined a de facto parent as "one who


     5
       The guardian has not yet been adjudicated a de facto
parent.
                                                                    6


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."

Id. at 829, citing Youmans v. Ramos, 429 Mass. 774, 776 & n.3

(1999), and ALI Principles of the Law of Family Dissolution

§ 2.03(1)(b) (Tent. Draft No. 3 Part 1 1998) (adopted at annual

meeting May, 1998).

    The recognition of de facto parenthood "proceeds from the

premise 'that disruption of a child's preexisting relationship

with a nonbiological parent can be potentially harmful to the

child.'"   A.H. v. M.P., 447 Mass. 828, 838 (2006), quoting Blixt

v. Blixt, 437 Mass. 649, 658–659 (2002), cert. denied, 537 U.S.

1189 (2003).   As such, we have held that de facto parents may be

granted visitation rights over the objection of legal parents.

See E.N.O., 429 Mass. at 832-833; Youmans, 429 Mass. at 785.

The visitation rights that de facto parents receive derive from

the Probate and Family Court's equitable powers under G. L.

c. 215, § 6, to protect the welfare of children.    See A.H.,

supra at 837-838.     These visitation rights, however, are not

based on any liberty interest that de facto parents have in

their relationship with the children in question.     E.N.O., supra

at 833; Youmans, supra at 787 ("It is not the [de facto
                                                                      7


parent's] interests that the visitation order protects, but [the

child's] interests").    Indeed, we have found no case where we

have held that de facto parents have such a liberty interest.

    Although the raising of children by guardians and de facto

parents provides incalculable benefit to many children and

society as a whole, we decline to recognize a liberty interest

in de facto parent-guardians sufficient to warrant a procedural

due process right to appointed counsel.

    2.   Equitable powers of the Probate and Family Court.      The

child argues that even if the guardian has no liberty interest

entitling her to counsel, the Probate and Family Court has the

equitable power to allow for the appointment of counsel for

indigent guardians in removal proceedings.    We agree.

    The Probate and Family Court has equity jurisdiction over

"all matters relative to guardianship," G. L. c. 215, § 6, and

its equitable powers are "broad," Youmans, 429 Mass. at 782-783.

The court's "duty as parens patriae necessitates that its

equitable powers extend to protecting the best interests of

children in actions before the court, even if the Legislature

has not determined what the best interests require in a

particular situation."   E.N.O., 429 Mass. at 827-828.

    Guardianship removal proceedings require judges to " make

complex determinations that consider numerous factors regarding

the child's best interest and the parent's fitness."      L.B, 474
                                                                        8


Mass. at 238.      Given the complex nature of the legal and factual

questions before the judge, the presence of counsel for the

guardian may help the judge reach the best possible result for

the child.6      Cf. id. at 239 (presence of counsel for parent in

guardian removal proceeding assists judge in making accurate and

fair determinations).       For instance, guardian removal

proceedings may require the judge to consider "the child's

bonding with the guardian during the guardianship, and the

potential effect on the child of being removed from the

guardian's care and returned to the parent's custody."       Id. at

239.       Appointed counsel for the guardian may assist the court in

resolving these issues with the "utmost care."       J.K.B., 379

Mass. at 4.      This is particularly true where the child or legal

parent may be unwilling or unable to present a full picture of

the case to the judge, whether because the guardian has all the

necessary and relevant information about the child or the legal

parent has an incentive to withhold information.

       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


       6
       The appointment of a guardian ad litem may be the most
appropriate way to determine the best interest of the child in
certain circumstances. See G. L. c. 215, § 56A. The ability to
appoint counsel to represent a guardian in a removal proceeding
is simply another tool in the judge's toolbox, which may be used
separately from or in conjunction with a guardian ad litem.
                                                                    9


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.7,8

     Conclusion.   A guardian who is a de facto parent does not

have a liberty interest in her relationship with her ward

sufficient to warrant the appointment of counsel.   A Probate and

Family Court judge, however, may grant a motion requesting the

appointment of counsel to the guardian in a removal proceeding

if the judge finds, in the exercise of his or her sound

discretion, that doing so would materially assist in determining

the best interests of the child.   The case is remanded to the

Probate and Family Court for further proceedings consistent with

this opinion.

     7
       To the extent that this holding is inconsistent with dicta
found in Greco v. Probate and Family Court Dep't of the Trial
Court, 422 Mass. 7, 9 (1996), we do not follow it.
     8
       Such appointment of counsel for the guardian does not
derogate from the due process right of the legal parent, who is
also entitled to counsel at guardianship removal proceedings
provided the parent presents a meritorious claim for removal.
L.B. v. Chief Justice of the Probate and Family Court Dep't, 474
Mass. 231, 242 (2016). See Institute of Judicial
Administration-American Bar Association Joint Commission on
Juvenile Justice Standards, Standards Relating to Counsel for
Private Parties 1.1 (1976) ("The participation of counsel on
behalf of all parties subject to . . . family court proceedings
is essential to the administration of justice and to the fair
and accurate resolution of issues at all stages of those
proceedings").
              10


So ordered.
