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19-P-296                                              Appeals Court

                    GUARDIANSHIP OF MINOR CHILDREN.


                             No. 19-P-296.

           Essex.      February 3, 2020. - April 13, 2020.

       Present:     Green, C.J., Wolohojian, & Sullivan, JJ.


Probate Court, Guardian, Jurisdiction. Jurisdiction, Probate
     Court. Practice, Civil, Guardianship proceeding,
     Dismissal.



     Petitions for appointment of guardians filed in the Essex
Division of the Probate and Family Court Department on December
3, 2013.

     Motions to dismiss petitions for removal of guardians,
filed on February 13, 2018, were heard by Jennifer M.R. Ulwick,
J.

    Robert E. Curtis, Jr., for the father.
    Erin Whelan Pennock for the guardians.
    John P. Dennis for the children.


    WOLOHOJIAN, J.      At issue is whether the Essex Division of

the Probate and Family Court Department (probate court), having

appointed permanent guardians over three minor children, had

exclusive continuing "home state" jurisdiction over the
                                                                   2


petitions to remove those guardians and, if not, whether the

probate judge abused her discretion in declining to exercise

jurisdiction in favor of California, where the children and the

guardians have lived for several years.    We conclude that the

probate court did not have home State jurisdiction over the

termination petitions; nor did it have jurisdiction under any of

the other provisions of G. L. c. 209, § 2.    We accordingly

affirm the dismissal of the termination petitions without

reaching the question whether the judge acted within her

discretion when she declined jurisdiction on forum non

conveniens grounds.

     Background.    In 2013, Steven and Maria Fitzgerald

(Fitzgeralds), long-time residents of California, filed a

petition with the probate court seeking to be appointed

guardians of the three minor children.1    The children were

already under the guardianship of Jeanette Maria Fitzgerald

(Jeanette),2 who was Steven's mother.    But because of her

advancing age, Jeanette, who was the children's great-

grandmother, wished to move to California to live with the

Fitzgeralds and to have them assume guardianship of the


     1 Separate appointment and removal petitions were filed for
each child. But for ease, we refer to each type of petition as
a single petition in the background and discussion sections of
this opinion.

     2   We use the name that appears on the petitions.
                                                                   3


children.    This arrangement was agreed to by the children's

mother, who was at that time not able to care for the children.

These parties entered into an agreement to have the Fitzgeralds

become the permanent guardians of the children, to permit the

children to move to California to live with the Fitzgeralds, and

to transfer jurisdiction to Los Angeles County.    The terms of

this agreement were incorporated into the guardianship decree,

which entered on December 3, 2013.3   The father, who was

incarcerated, did not appear in the guardianship proceeding, nor

was he a party to the agreement.

     As planned, the children moved to California, where they

have lived with the Fitzgeralds continuously since the beginning

of 2014.    Despite the fact that the parties had agreed that

jurisdiction would transfer to Los Angeles County, the

Fitzgeralds never registered the guardianship decree with the

California courts.4   They also recognized the probate court's

continuing interest in the guardianship by complying with the

requirement that they file annual reports on the status and

progress of the children.




     3 Separate decrees were entered for each child. But for
ease, we refer to them collectively as a single decree in the
background and discussion sections of this opinion.

     4 We do not mean to suggest that registration was required,
which is a matter that has not been briefed.
                                                                   4


     The father was released from incarceration in August 2017.

Approximately six months later, on February 13, 2018, the

father, contending that he was gainfully employed, had managed

to put his troubles behind him, and was now fit to parent the

children, filed a petition, pursuant to G. L. c. 190B, § 5-212,

to remove the Fitzgeralds as guardians of the children and to

assume custody of the children.   The father also contended that

the 2013 guardianship decree was void for lack of service.    At

the time of the termination petition, the father lived in

Burlington and the mother lived in Connecticut.5

     The Fitzgeralds responded to the petition in two ways.

First, they filed papers in a California court seeking to

register the guardianship decree.6   Second, they moved in the

probate court to dismiss the father's termination petition on

jurisdictional grounds.   The Fitzgeralds noted that they have

lived in California since 1994 and are gainfully employed there.

They represented that they have substantial evidence regarding




     5 We have taken the mother's residence from the address on
the affidavit of service.

     6 The father asks that we take judicial notice of the fact
that the California Superior Court in Los Angeles County denied
the registration without prejudice to its refiling in the
Probate Division. This information was not available at the
time the judge ruled on the Fitzgeralds' motion to dismiss the
termination petition. Even taking it into account, however, it
would not affect the jurisdictional analysis, except as we note
in note 9, infra.
                                                                     5


the children's care, protection, training, and personal

relationships in California.   The Fitzgeralds further noted that

it was likely a guardian ad litem would need to be appointed in

order to help determine the best interest of the children, and

that California would be a more convenient forum.    The

Fitzgeralds' motion to dismiss was accompanied by an affidavit

from a California attorney explaining certain provisions of

California's Family Code and opining that the Los Angeles County

Superior Court would likely accept jurisdiction over the

guardianship termination proceeding were jurisdiction declined

by the probate court.   The Fitzgeralds also averred that the

father had been served by various means, including by service on

the correctional facility at which he was then housed, with the

original guardianship petition, and that he had received notice

of the guardianship proceedings.

    After a hearing, the probate judge allowed the motion to

dismiss on alternative grounds.    First, the judge concluded that

she did not have jurisdiction over the termination petition

because Massachusetts was neither the home State of the children

on the date the termination petition was filed, nor had it been

the children's home State during the previous six months.     G. L.

c. 209B, § 2 (a) (1).   Second, in the alternative, the judge

concluded that, even if the probate court had jurisdiction, she

would decline to exercise it in favor of California as the more
                                                                     6


convenient forum.    G. L. c. 209B, § 7 (a), (b).   It is clear

from the transcript of the hearing that the judge was

particularly concerned about the fact that important witnesses,

such as the children's teachers, therapists, and doctors, were

located in California and could not be compelled to come to

Massachusetts.   In the judge's view, the inability to obtain

such important information bearing on the children's best

interest made Massachusetts a less convenient forum than

California.    Finally, the judge concluded that the father could

not collaterally attack the validity of the guardianship decree

by way of a petition to remove the guardians.    Rather, the

father's argument that the guardianship decree was void for lack

of service should have instead been raised via a motion pursuant

to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974) (rule 60 [b]).

To preserve the father's ability to pursue that avenue of

relief, the judge's dismissal of the petition was without

prejudice to the father's ability to file a rule 60 (b) motion.

    Discussion.     On appeal, the father challenges the dismissal

of the termination petition on two grounds.     First, he contends

that as the probate court entered the guardianship decree, it

retained exclusive continuing home State jurisdiction over all

matters thereafter pertaining to the guardianship, including its

termination.   In connection with this argument, he points to the

continuing status of the guardianship, the filing of annual
                                                                     7


status reports in Massachusetts, and the fact that the

Fitzgeralds never registered the guardianship in California.

Second, the father contends that the guardianship decree was

void for lack of service.    We address each of these arguments in

turn.

    "A Massachusetts court's exercise of jurisdiction over

custody determinations must be based solely on the

[Massachusetts Child Custody Jurisdiction Act (MCCJA)], G. L.

c. 209B."   MacDougall v. Acres, 427 Mass. 363, 366 (1998).    See

Redding v. Redding, 398 Mass. 102, 106 (1986).    This means that

"[j]urisdiction must be exercised pursuant to any of the four

subsections of G. L. c. 209B, § 2 (a)."    Guardianship of Zeke,

422 Mass. 438, 441 (1996).   Those four subsections provide that

"[a]ny court which is competent to decide child custody matters

has jurisdiction to make a custody determination by initial or

modification judgment if:

    "(1) the commonwealth (i) is the home state of the child on
    the commencement of the custody proceeding, or (ii) had
    been the child's home state within six months before the
    date of the commencement of the proceeding and the child is
    absent from the commonwealth because of his or her removal
    or retention by a person claiming his or her custody or for
    other reasons, and a parent or person acting as parent
    continues to reside in the commonwealth; or

    "(2) it appears that no other state would have jurisdiction
    under paragraph (1) and it is in the best interest of the
    child that a court of the commonwealth assume jurisdiction
    because (i) the child and his or her parents, or the child
    and at least one contestant, have a significant connection
    with the commonwealth, and (ii) there is available in the
                                                                    8


    commonwealth substantial evidence concerning the child's
    present or future care, protection, training, and personal
    relationships; or

    "(3) the child is physically present in the commonwealth
    and (i) the child has been abandoned or (ii) it is
    necessary in an emergency to protect the child from abuse
    or neglect or for other good cause shown, provided that in
    the event that jurisdictional prerequisites are not
    established pursuant to any other paragraph of this
    subsection and a court of another state shall be entitled
    to assert jurisdiction under any other subparagraph of this
    paragraph then a court exercising jurisdiction pursuant to
    this clause of paragraph (3) may do so only by entering
    such temporary order or orders as it deems necessary unless
    the court of the other state has declined to exercise
    jurisdiction, has stayed its proceedings or has otherwise
    deferred to the jurisdiction of a court of the
    commonwealth; or

    "(4) (i) it appears that no other state would have
    jurisdiction under prerequisites substantially in
    accordance with paragraph (1), (2) or (3), or another state
    has declined to exercise jurisdiction on the ground that
    the commonwealth is the more appropriate forum to determine
    the custody of the child, and (ii) it is in the best
    interest of the child that a court of the commonwealth
    assume jurisdiction."

G. L. c. 209B, § 2 (a).   These can be referred to more simply as

(1) home State jurisdiction, (2) default jurisdiction, (3)

emergency jurisdiction, and (4) appropriate forum jurisdiction.

See MacDougall, supra at 368-369.

    Home State jurisdiction exists where Massachusetts is the

"home state of the child on the commencement of the custody

proceeding."   G. L. c. 209B, § 2 (a) (1) (i).   A "custody

proceeding" "includes proceedings in which a custody

determination is one of several issues presented for resolution,
                                                                         9


such as an action for divorce or separation, guardianship, and

care and protection."      G. L. c. 209B, § 1.     There is no doubt

that the father's petition to terminate the guardianship is a

custody proceeding; it sought to change the custody of the

children from the Fitzgeralds to himself.        "Home state" is

defined as "the state in which the child immediately preceding

the date of commencement of the custody proceeding resided with

his [or her] parents, a parent, or a person acting as parent,

for at least [six] consecutive months."      Id.     There is likewise

no dispute that the children had lived in California with the

Fitzgeralds for at least six consecutive months before the date

that the termination petition was filed and that, therefore,

California was the home State of the children at the time the

petition was filed.      We note that California has enacted

parallel provisions of the Uniform Child Custody Jurisdiction

Act under which it uses the same definition of home State as

Massachusetts.      See Cal. Fam. Code § 3402(g).7

       The father argues, however, that the court's jurisdiction

should not be assessed as of the date of the filing of the

termination petition, but rather as of the date of the original

guardianship petition.      His view is that guardianships are

different from other types of custody orders because the court


       7   Also, Cal. Fam. Code § 3421 is parallel to G. L. c. 209B,
§ 2.
                                                                     10


retains continuing oversight of them, as evidenced in this case

by the requirement that the Fitzgeralds file annual reports on

the status and well-being of the children.    The father also

points to G. L. c. 190B, § 5-201, which provides that the

guardianship status of minors "continues until terminated,

without regard to the location from time to time of the guardian

or minor ward."   The continuing nature of a guardianship, in the

father's view, means that the court continues to have home State

jurisdiction over the guardianship as long as the guardianship

lasts -- regardless of the physical location of the children.8

     Our law does not support this view.    Instead, jurisdiction

under the MCCJA must exist at the time the court is being called

on to act; it is not enough that home State jurisdiction existed

at some previous point in time.   See Adoption of Yvette (No. 1),

71 Mass. App. Ct. 327, 336 n.12 (2008).    The statute provides

that the court has "jurisdiction to make a custody determination

by initial or modification judgment."     G. L. c. 209B, § 2 (a).

"Use of the disjunctive signals a legislative intention to treat

modification proceedings as distinct from initial ones.     Reason

favors treating modification proceedings as separate and fresh

ones because, if it were otherwise, jurisdiction would lodge


     8 The father also places much weight on Guardianship of
Enos, 41 Mass. App. Ct. 360 (1996). Enos, however, has no
bearing here; it does not involve a minor or the provisions of
the MCCJA.
                                                                     11


perpetually with the State where the initial custody order had

been made, potentially long after that State had any relevant

contact with the child."    Umina v. Malbica, 27 Mass. App. Ct.

351, 358 (1989).   See MacDougall, 427 Mass. at 370.    "[I]t is

not unusual for a court which exercised original jurisdiction to

lose 'home state' jurisdiction."    Custody of Brandon, 407 Mass.

1, 10 (1990), quoting Umina, supra.     A Massachusetts court does

not have continuing home State jurisdiction unless the

requirements of MCCJA home State jurisdiction are satisfied at

the time that modification of an existing custodial arrangement

is sought.   See MacDougall, supra ("Massachusetts continuing

jurisdiction in this case is predicated on its having

jurisdiction under its own laws"); Umina, supra ("Massachusetts

. . . does not explicitly reserve jurisdiction under a

continuing jurisdiction or a 'best interest' provision").

Guardianships are no different in this regard from any other

custody determination.     For these reasons, we agree with the

judge that home State jurisdiction under § 2 (a) (1) did not

exist over the father's termination petition.

    Nor did the court have jurisdiction under the three

remaining subsections of G. L. c. 209B, § 2 (a).     Default

jurisdiction under § 2 (a) (2) "allows Massachusetts courts to

exercise jurisdiction over a custody proceeding if 'no other

[S]tate would have jurisdiction under paragraph (1)' and the
                                                                    12


best interest of the child would be served by the court assuming

jurisdiction of the matter."    Custody of Victoria, 473 Mass. 64,

71 (2015), quoting G. L. c. 209B, § 2 (a) (2).    Here, the

children have lived in California for over four years and

California accordingly has home State jurisdiction.    Thus, a

necessary predicate for default jurisdiction in Massachusetts

does not exist.

       Emergency jurisdiction under § 2 (a) (3) may be exercised

in appropriate circumstances where the child is physically in

Massachusetts.    That is not the case here, nor does the father

claim any emergency.

       Finally, under § 2 (a) (4), appropriate forum jurisdiction

"allows Massachusetts courts to exercise jurisdiction over

custody if (i) no other State would have jurisdiction under any

of the first three paragraphs or another State has 'declined to

exercise jurisdiction on the ground that the [C]ommonwealth is

the more appropriate forum to determine the custody of the

child,' and (ii) it is in the 'best interest of the child' for

Massachusetts to assume jurisdiction."    Custody of Victoria, 473

Mass. at 71-72, quoting G. L. c. 209B, § 2 (a) (4).    As we have

already noted, because California is the home State,

jurisdiction would not lie under the first prong of § 2 (a) (4)

(i).    In addition, because there was nothing before the judge to

suggest that California would decline to exercise jurisdiction
                                                                   13


in favor of Massachusetts as the more appropriate forum,

jurisdiction also would not lie under the second prong of

§ 2 (a) (4) (i).9

     Because jurisdiction did not lie under § 2, we need not

examine whether the judge appropriately exercised her discretion

when she declined jurisdiction on forum non conveniens grounds

under G. L. c. 209B, § 7.    The jurisdictional analysis under

G. L. c. 209B is a two-step one in which the first step is to

determine whether, under § 2, the court has the power to

exercise jurisdiction in a custody proceeding; if the court has

that power, the second step is to determine whether it should

decline to exercise that power as a matter of discretion under

§ 7.10    See Custody of Brandon, 407 Mass. at 5; Hernandez v.

Branciforte, 55 Mass. App. Ct. 212, 217 (2002).    Here, because




     9 However, we note that the question of jurisdiction does
not yet appear to have been put to a California court, and
therefore, we cannot definitively foreclose the possibility that
California might decline to exercise jurisdiction for some
reason. If that were to become the case, then the father would
not be foreclosed from returning to Massachusetts, claiming
jurisdiction under the second prong of § 2 (a) (4) (i).

     10"A court which has jurisdiction pursuant to [G. L.
c. 209B, § 2,] may decline to exercise its jurisdiction at any
time prior to making a custody determination upon finding that
its assumption of jurisdiction would be (i) violative of the
purposes of this chapter; or (ii) would be based upon the
illegal or otherwise wrongful conduct of a party; or (iii) would
constitute an inconvenient forum and that a court of another
state would constitute a more convenient forum." G. L. c. 209B,
§ 7 (a).
                                                                    14


the court did not have the power to exercise jurisdiction under

§ 2, we need not examine the judge's alternative conclusion that

she would have declined to exercise jurisdiction if she had had

it.

      This leaves the father's contention that the guardianship

decree was void for lack of service.    Like the probate judge, we

conclude that a petition to remove the guardians is not the

appropriate mechanism to challenge the validity of the

underlying guardianship decree, which instead should be brought

via a rule 60 (b) (4) motion or an independent action.       See

Reporters' Notes to Rule 60, Mass. Ann. Laws Court Rules, Rules

of Civil Procedure, at 1259 (2018) ("Rule 60 [b] [4] allows

relief from a void judgment . . . .    A judgment is void only if

the court rendering it lacked jurisdiction of the subject matter

or of the parties, or where it acted in a manner inconsistent

with due process of law").    See also Fleishman v. Stone, 57

Mass. App. Ct. 916 (2003) (rule 60 [b] [4] motion used to have

judgment declared void for lack of service).   The judge

deliberately left open the father's ability to bring such a

motion or independent action, and nothing in our opinion here is

to be read to curtail or diminish the father's right to do so.

      Conclusion.   We affirm the judgments dismissing the

father's petitions to terminate the guardianships for lack of

jurisdiction under G. L. c. 209B, § 2, without prejudice to the
                                                                 15


father's ability to challenge the guardianship decrees as void

pursuant to rule 60 (b) (4).

                                  So ordered.
