NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11739

                       GUARDIANSHIP OF V.V.



        Essex.     January 5, 2015. - February 10, 2015.

  Present:   Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.


Probate Court, Guardian. Due Process of Law, Assistance of
     counsel. Practice, Civil, Appointment of guardian, Relief
     from judgment, Assistance of counsel, Moot case. Moot
     Question.



     Petition for appointment of a guardian for a minor filed in
the Essex Division of the Probate and Family Court Department on
July 17, 2012.

     The case was heard by Susan D. Ricci, J., and a motion for
relief from judgment was considered by her; a petition for
removal of the guardian, filed on May 7, 2013, was heard by
Randy J. Kaplan, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Glenna Goldis for the mother.
     Andrew L. Cohen, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae, submitted
a brief.
     Susan R. Elsen, Jamie Ann Sabino, Julie Gallup, Russell
Engler, Mary K. Ryan, Shaghayegh Tousi, & Alison Holdway, for
Massachusetts Law Reform Institute, Inc., & others, amici
curiae, submitted a brief.
                                                                      2




     SPINA, J.   The mother of the minor child, V.V., appeals

from the denial, in the Probate and Family Court, of her motion

for relief from judgment pursuant to Mass. R. Civ. P.

60 (b) (4), 365 Mass. 828 (1974).     In the motion she alleged

that a judgment appointing a permanent guardian for V.V. was

void for lack of due process because she was not appointed

counsel or afforded alternative procedural safeguards in the

guardianship proceeding.     We granted her application for direct

appellate review.    We dismiss the appeal as moot but also hold

that a parent of a minor child has a right to counsel where, as

here, someone other than the parent seeks to have himself or

herself appointed as the child's guardian pursuant to G. L.

c. 190B, § 5-206.1

     Background.     The details of the events leading up to the

guardianship decree are set forth in Gianareles v. Zegarowski,

467 Mass. 1012 (2014).     The essential facts are as follows.    A

judge in the Probate and Family Court appointed the mother's

     1
       We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services; and, collectively, the
Massachusetts Law Reform Institute, Inc., Boston Bar
Association, Massachusetts Bar Association, Women's Bar
Association of Massachusetts, Greater Boston Legal Services,
Community Legal Aid, Justice Center of Southeast Massachusetts
LLC (a subsidiary of South Counties Legal Services, Inc.),
MetroWest Legal Services, Community Legal Services and
Counseling Center, Mental Health Legal Advisors Committee,
Children's Law Center of Massachusetts, Harvard Legal Aid
Bureau, Center for Public Representation, and Safe Passage, Inc.
                                                                         3


grandmother, and V.V.'s great-grandmother, as V.V.'s permanent

guardian in December, 2012.     Id. at 1013.   The mother was not

represented by counsel in the guardianship proceeding.      Id.     In

May, 2013, then represented by counsel, the mother filed her

rule 60 (b) (4) motion as well as a petition to remove the

great-grandmother as V.V.'s guardian pursuant to G. L. c. 190B,

§ 5-212 (a).    Id.   The judge denied the rule 60 (b) (4) motion.

While the mother's appeal from that denial has been pending, her

petition for removal of the guardian proceeded in the regular

course.   On July 29, 2014, after a trial, a judge (who was not

the judge who had appointed the guardian) vacated the

guardianship.    All parties, including both the mother and V.V.,

were represented by counsel at the trial on the removal

petition.   The great-grandmother did not appeal from the

judgment vacating the guardianship.

     Because the guardianship has been vacated and V.V. has been

returned to the mother's custody, the issue whether the mother

was entitled to counsel is moot.2    The issue, however, is of

significant public importance.     It is also capable of repetition

and, given the short time periods in which guardianship matters

     2
       That the mother was represented by counsel at the trial on
her petition to remove the guardian would not render the
appointment of counsel issue moot. The fact remains that the
mother was not represented by counsel at the outset of the
guardianship proceedings, and our concern regarding whether a
parent is entitled to counsel applies to all proceedings related
to guardianship.
                                                                      4


are often decided and the fluidity of the proceedings even after

an appointment of a guardian (as demonstrated by this case), it

is an issue that can easily evade appellate review in the

ordinary course.    We therefore exercise our discretion to

address it.     See, e.g., Care & Protection of Erin, 443 Mass.

567, 568 (2005), and cases cited.

    Discussion.      "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.     Id.   Due process includes "the

right to be heard 'at a meaningful time and in a meaningful

manner.'"     Id. at 4, quoting Armstrong v. Manzo, 380 U.S. 545,

552 (1965).    An indigent parent whose parental rights may be

terminated, for example, "cannot be said to have a meaningful

right to be heard in a contested proceeding without the

assistance of counsel."     Department of Pub. Welfare v. J.K.B.,

supra at 4.

    These interests are no less compelling for a parent whose

child is the subject of a guardianship proceeding.      The

guardian, once appointed, assumes significant rights and

responsibilities during the period of guardianship that

otherwise would have resided with the parent.      See G. L.
                                                                      5


c. 190B, § 5-209.    "A guardian of a ward has the powers and

responsibilities of a parent regarding the ward's support, care,

education, health and welfare."    G. L. c. 190B, § 5-209 (a).

The guardian's rights and responsibilities to ensure the child's

welfare effectively displace those of the parent.     The guardian,

and not the parent, becomes the primary caretaker and decision

maker for the child.    Even if the guardianship lasts for only a

brief period of time, the displacement impacts the parent's

liberty interests.   Cf. Matter of Hilary, 450 Mass. 491, 496

(2008) (noting that even six-month placement of child outside

home when child has been adjudicated child in need of services

has impact on parent's liberty interest in parent-child

relationship).   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.

    Because of the impact of a guardianship on the parent-child

relationship, and the particular nature of the fundamental

rights at stake, an 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.     To be sure,
                                                                   6


the Legislature has already expressly provided for the

appointment of counsel in a guardianship proceeding where the

Department of Children and Families or a licensed child

placement agency is a party.    General Laws c. 119, § 29, thus

provides:

    "Whenever the department or a licensed child placement
    agency is a party to child custody proceedings, the parent,
    guardian or custodian of the child . . . shall have and be
    informed of the right to counsel at all such hearings,
    including proceedings under [G. L. c. 190B, § 5-201, 5-204
    or 5-206], and that the court shall appoint counsel if the
    parent, guardian or custodian is financially unable to
    retain counsel . . ." (emphasis added).

The same interests that warrant appointment of counsel when the

State is involved in a guardianship proceeding are also at stake

in a guardianship proceeding when the State is absent.

    We encountered a similar situation recently in Adoption of

Meaghan, 461 Mass. 1006 (2012).     In that case the legal

guardians of a child petitioned to adopt the child pursuant to

G. L. c. 210, §§ 3 (a) and 6.     Id. at 1006.   We considered

whether the child's father, who was indigent and whose rights

would be terminated by the adoption, was entitled to counsel in

a private adoption case as he would have been if the State were

involved in the adoption.   Id. at 1007.    We concluded that he

was, noting that "the same fundamental, constitutionally

protected interests are at stake, and the cost of erroneously

terminating the parent's rights remains too high to require an
                                                                     7


indigent parent to risk it without counsel."     Id.   The same

general considerations govern here.     There is no reason why an

indigent parent whose child is the subject of a guardianship

proceeding should receive the benefit of counsel only if the

State is involved.    To the contrary, 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.

    Conclusion.      The mother's appeal must be dismissed as moot

because the guardianship has been vacated and the child has been

returned to the mother's custody.     We hold, however, that a

parent whose minor child is the subject of a guardianship

proceeding pursuant to G. L. c. 190B, § 5-206, and who cannot

afford counsel, has a right to have counsel appointed and to be

so informed.

                                      So ordered.
