NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; [email protected]

SJC-11892

L.B. & another1 vs. CHIEF JUSTICE OF THE PROBATE AND FAMILY COURT DEPARTMENT & others.2

Suffolk. October 5, 2015. - May 4, 2016.

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

Probate Court, Guardian. Due Process of Law, Assistance of counsel. Constitutional Law, Assistance of counsel. Practice, Civil, Assistance of counsel.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 6, 2015.

The case was reported by Botsford, J.

Laura Williams Gal (Christina L. Paradiso with her) for L.B. & another. Norah E. Kane for the minor children of L.B. Jo Ann Shotwell Kaplan, Assistant Attorney General, for Chief Justice of the Probate and Family Court Department. Deborah W. Kirchwey for the minor child of C.L. Jamie Ann Sabino, Susan R. Elsen, Mary K. Ryan, & Melanie V. Woodward, for Massachusetts Law Reform Institute, Inc., & others, amici curiae, submitted a brief.

1 C.L. 2 Justices of the Worcester County and Hampden County Divisions of the Probate and Family Court Department, the three minor children of L.B., and the minor child of C.L. 2

Andrew L. Cohen, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. Susan M. Finegan, Sandra J. Badin, & Geoffrey A. Friedman, for S.D., amicus curiae, submitted a brief. Richard M. Page, Jr., for Boston Bar Association, amicus curiae, joined in a brief.

SPINA, J. In Guardianship of V.V.,

(2015),

we held that a parent whose minor child is the subject of a

guardianship petition 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. The issue in this case is whether a

parent also has a right to counsel if and when the parent

petitions to have the guardian removed or to have the terms of

the guardianship modified. We conclude that a parent does have

a right to counsel for certain of those types of petitions. We

also offer some guidance to the Probate and Family Court, where

these private guardianships occur, for the development of rules

and policies to implement this right to counsel.

Procedural history. The plaintiffs, L.B. and C.L., are the

mothers of minor children for whom guardians were appointed, in

2012 and 2013 respectively, pursuant to G. L. c. 190B, § 5-206.

They commenced this action in the county court in 2015,

challenging a written policy of the Chief Justice of the Probate

and Family Court Department (Chief Justice) concerning the

appointment of counsel in cases involving guardianships of 3

minors under G. L. c. 190B. Specifically, they challenged a

portion of a memorandum that the Chief Justice issued to the

judges of the Probate and Family Court and to court personnel on

February 20, 2015, shortly after we released our opinion in

Guardianship of

The memorandum addressed our

decision and identified a number of steps that the Probate and

Family Court was taking to implement our holding. The portion

of the memorandum challenged by the plaintiffs is a single

sentence that, in speaking of Guardianship of V.V., states:

"Based on the holding in this case, the right to counsel for

indigent parents only applies in a Petition to Appoint a

Guardian of a Minor." By this sentence, the Chief Justice

essentially informed the probate judges and court personnel

that, in her view, the right to counsel recognized in

Guardianship of V.V. applies only to proceedings on the initial

petition for appointment of a guardian for a minor, and,

conversely, does not apply in subsequent proceedings such as

petitions to remove a guardian after he or she has been

appointed or to modify the terms of the guardianship. The

plaintiffs, as described below, were engaged in the latter types

of proceedings in the Probate and Family Court at the time they

commenced this action, and their requests for counsel were

denied. 4

The plaintiffs alleged in their complaint that the Chief

Justice's policy, by limiting the right to counsel to

proceedings for the initial appointment of guardians,

contravened our decision in Guardianship of V.V. and violated

their right to due process. A single justice of this court

reserved and reported the plaintiffs' complaint to the full

court.3

Facts.4 As stated, the plaintiffs are the mothers of minor

children for whom guardians were appointed pursuant to G. L.

3 We acknowledge the amicus brief submitted by the Committee for Public Counsel Services and the amicus brief submitted jointly by the Massachusetts Law Reform Institute, Women's Bar Association of Massachusetts, Greater Boston Legal Services, Justice Center of Southeast Massachusetts LLC, Community Legal Aid Services and Counseling Center, Harvard Legal Aid Bureau, Northeast Legal Aid, Mental Health Legal Advisors Committee, and Center for Public Representation. The Boston Bar Association also submitted a letter stating that it endorsed the latter brief.

In addition, the single justice indicated in her reservation and report that the children and guardians in the underlying cases could be heard on the question whether they have standing to address the issue of appointment of counsel for the parents. The guardians have not submitted briefs. Both plaintiffs' children have submitted briefs arguing that they do have standing on that issue (although they take different positions on the substantive merits of the issue). No party or amicus argues otherwise, so we shall assume without deciding that the children do have standing, and, accordingly, we consider their arguments on the issue as well. 4 These facts are drawn principally from the materials in the record before the single justice. 5

c. 190B, § 5-206.5 Each guardianship proceeding began, and each

appointment occurred, well before our decision in Guardianship

of V.V., so it was not established at the time of those

proceedings that parents whose minor children were the subject

of guardianship petitions had a right to counsel. It appears

that neither L.B. nor C.L. was represented by counsel at the

time the guardians were appointed. The guardianship decree for

each child specified that the guardianship was to extend to the

child's eighteenth birthday, unless terminated sooner by order

of the court.6,7

5 The statute provides in relevant part: "A minor [fourteen] or more years of age or any person interested in the welfare of the minor may petition for appointment of a guardian." G. L. c. 190B, § 5-206 (a). 6 Specifically, in April, 2012, L.B.'s parents petitioned to have themselves appointed as guardians for her three minor children. Their petitions were granted in October, 2012. There was one guardianship petition, and one decree issued, for each child. Each decree indicated that L.B. had been given proper notice of the petition and did not object to the appointment of guardians. Each decree also stated that the guardians were prohibited from permanently removing the child from Massachusetts without a court order, and that the guardians were required to notify the court of any change of address for the guardians or the child. Those were the only restrictions on the rights of the guardians expressly contained in the decrees. None of the decrees contained any provision for visitation by L.B. with her children or for any other type of contact or communication between her and them. 7 In September, 2012, C.L.'s mother and stepfather petitioned to have themselves appointed as guardians for C.L.'s minor child. Their petition was granted in February, 2013. The decree stated that, after a hearing, C.L. was found to be unfit to parent her child. The decree also contained provisions 6

In December, 2014, L.B. filed three petitions in the trial

court pursuant to G. L. c. 190B, § 5-212,8 one with respect to

each of her children, seeking to remove the guardians. She

alleged that she was able to "resume parental responsibilities."

She stated that she "no longer consents to the guardianship[s]

because [she] has appropriate housing and supportive services,"

that "she has played an active role in [her children's lives]

during the guardianship[s]," and that "she is fit to resume

primary responsibility for, and care of, her [children]."

In February, 2015, C.L. filed a petition in the trial court

seeking to modify the terms of her visitation with her child.9

She alleged, among other things, that she was living in a stable

environment, had income, and was attending college, and that she

had "done what has been asked of [her]," presumably by the terms

similar to the decrees for L.B.'s children concerning removal or relocation of the child. The decree further specified certain days and times that C.L. would be permitted to visit with the child; that additional visits could occur by agreement of the parties; that the visitation would be unsupervised; and that there was to be no contact during the visits between the child and C.L.'s boy friend. 8 The statute provides in relevant part: "Any person interested in the welfare of a ward or the ward, if [fourteen] or more years of age, may petition for removal of a guardian on the ground that removal would be in the best interest of the ward or for any other order that is in the best interest of the ward." G. L. c. 190B, § 5-212 (a). 9 The pleading was entitled "general probate petition." It was, in essence, a petition to modify the guardianship pursuant to G. L. c. 190B, § 5-212 (a). See note 8, supra. 7

of the guardianship and by the guardians. She requested more

visitation, and on different terms, than had been prescribed in

the guardianship decree, specifically, overnight visitation on

weekends and during vacations.

In March, 2015, L.B. filed an application for the

appointment of counsel to represent her in each of the three

cases involving her, and C.L. similarly moved for appointment of

counsel in the case involving her. By that time, we had decided

Guardianship of V.V. and the Chief Justice had issued her

memorandum indicating her position that the holding in that case

did not extend to situations like L.B.'s and C.L.'s. Their

requests for counsel were therefore denied. Consistent with the

Chief Justice's stated policy, the judge in L.B.'s cases denied

her requests on the ground that a "petition for removal of [a]

guardian does not qualify [for] appointment of parent's

counsel," and the judge in C.L.'s case denied her motion because

her pending petition to modify the guardianship was "not an

initial petition" for appointment of a guardian. Shortly

thereafter, they commenced this action in the county court.10

10 After the case was reported by the single justice to the full court, L.B. resolved the matters involving her three children in the Probate and Family Court. Consequently, her present claims are moot. Nevertheless, we address her principal claim -- concerning a parent's due process right to counsel on a petition to remove a guardian -- because it is fully briefed, is likely to arise in many other cases, is of considerable public importance, and is something that can easily evade appellate 8

Discussion. 1. The holding in Guardianship of V.V. The

plaintiffs maintain that our decision in Guardianship of V.V.

already resolves the questions that are now before us. That is

incorrect. That case involved a petition for the initial

appointment of a guardian under G. L. c. 190B, § 5-206. The

sole question was whether the mother was entitled to counsel on

that particular type of petition. Guardianship of V.V.,

. Significantly, while the appeal was pending,

the case proceeded to trial in the Probate and Family Court on

the mother's petition to remove the guardian, and on that

petition the mother was represented by counsel.

at 591 n.2.

The appeal therefore did not concern, and the court did not

address, any question of a parent's right to counsel on a

petition to remove the guardian or to modify the terms of the

guardianship.

To support their argument, the plaintiffs rely on two

excerpts from Guardianship of V.V. First, they cite a footnote

near the beginning of the opinion that concerned mootness.11 The

review otherwise. See Guardianship of V.V.,

, 591- 592 (2015); Care & Protection of Erin,

(2005), and cases cited. 11 "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 9

plaintiffs read too much into the footnote. It was meant only

to explain that the presence of counsel on the petition to

remove the guardian did not obviate the need to answer the

question whether the mother was entitled to counsel on the

petition for appointment of the guardian in the first place.

Having counsel at one phase of a guardianship proceeding clearly

does not suffice for due process purposes if the parent is also

entitled to have counsel at another phase. The additional

statement in the footnote, that "our concern regarding whether a

parent is entitled to counsel applies to all proceedings related

to guardianship," was not a holding that the right to counsel

does in fact apply to all such proceedings. It was a

recognition that the important question whether a parent has a

right to counsel applies equally to all phases of the

proceedings.

The plaintiffs also rely on a sentence in which we said:

"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

parent is entitled to counsel applies to all proceedings related to guardianship." Guardianship of V.V.,

n.2. 10

or, similarly, in a care and protection proceeding."

Guardianship of V.V.,

. Read in context,

that sentence refers only to the phase of the guardianship

proceeding that was actually at issue in that case, namely, the

initial petition to appoint a guardian. It was not intended as

a holding with respect to other phases of a guardianship

proceeding that were not at issue.

2. Due process claim. We next turn to the plaintiffs'

main claim, that due process requires the appointment of counsel

for indigent parents who petition to remove guardians for their

children or to modify the terms of the guardianships. The Chief

Justice now acknowledges that counsel may be required

constitutionally on a petition to remove a guardian; she argues,

however, that the parent must first make a credible threshold

showing of "substantial and relevant changed circumstances"

since the guardian was appointed. She also argues that there is

no right to counsel when a parent petitions only to modify the

terms of the guardianship.

a. Removal petitions. It is well settled that "parents

have a fundamental liberty interest in the care, custody, and

management of their children," Matter of Hilary,

(2008), and that "[d]ue process requirements must be met

where a parent is deprived of the right to raise his or her

child." Care & Protection of Erin,

(2005). 11

See Department of Pub. Welfare v. J.K.B.,

(1979).

"In determining what process is due . . . this court 'must

balance the interests of the individual affected, the risk of

erroneous deprivation of those interests and the government's

interest in the efficient and economic administration of its

affairs.'" Commonwealth v. Barboza,

, cert.

denied,

(1982), quoting Thompson v. Commonwealth,

(1982). See Care & Protection of Robert,

(1990). When balancing the interests, we bear

in mind that "[t]he requirements of procedural due process are

pragmatic and flexible, not rigid or hypertechnical." Roe v.

Attorney Gen.,

(2001). Due process "calls

for such procedural protections as the particular situation

demands."

quoting Morrissey v. Brewer,

(1972).

i. Individual interests. The interest of parents in their

relationship with their children is substantial. "Our

decisions, and those of the United States Supreme Court, leave

no doubt that '[t]he rights to conceive and raise one's

children' are 'essential . . . basic civil rights of man . . .

far more precious . . . than property rights.'" Department of

Pub. Welfare v. J.K.B.,

, quoting Stanley v.

Illinois,

(1972). Fundamental rights and

interests of parents are implicated not only at the stage when a 12

guardian is first appointed for a minor child, as in

Guardianship of V.V., but also when a parent subsequently

petitions to regain custody by removing the guardian.12 This is

so because the appointment of a guardian only displaces the

parent's rights and responsibilities for the duration of the

guardianship (except as provided in the decree or otherwise by

law); it does not terminate them. Guardianship of V.V.,

. The parent is free to attempt to reactivate those

rights by removing the guardian and putting an end to the

guardianship. It would be incongruous to recognize the

significance of the parent's rights for due process purposes at

the time those rights are first displaced, as we did in

Guardianship of V.V., but not to do so at the time the parent

seeks to regain them. The deprivation at the former stage and

the continued deprivation at the latter stage are equally real

and significant. Cf. Care & Protection of Erin,

(describing review and redetermination proceeding in care

12 In the Probate and Family Court, L.B.'s cases involved petitions to remove guardians in order to put an end to the guardianships and restore the parent's right to custody. The custody of the children was thus directly at stake. The same rights and interests might not be implicated when a parent seeks to remove a guardian in circumstances that would not lead to the child returning to the parent, e.g., where the petition seeks merely to remove one guardian and replace him or her with another. See G. L. c. 190B, § 5-212 (a) (authorizing petitions for removal of guardian and petitions by guardian for permission to resign; "A petition for removal or for permission to resign may, but need not, include a request for appointment of a successor guardian"). 13

and protection case as "a readjudication" of initial custody

order; "[a]s such, it implicates the same liberty interests that

exist at an initial determination that a child is in need of

care and protection. In a review and redetermination

proceeding, the judge is deciding simply whether to maintain the

separation of parent from child").

ii. Risk of erroneous deprivation. The risk of

erroneously adjudicating these fundamental rights and interests

of parents is no less real at the guardian removal stage than at

the appointment stage. Judges at both stages may be called on

to make complex determinations that consider numerous factors

regarding the child's best interest and the parent's fitness.13

13 The provision for removal of a guardian, G. L. c. 190B, § 5-212 (a), speaks of removal when it is in "the best interest of the [child]." Unlike the provision that states the bases for appointment of guardians initially, see G. L. c. 190B, § 5- 204 (a), it does not expressly mention parental fitness. Our cases have made clear, however, that consideration of parental fitness, when parental fitness is at issue, will be highly relevant to a determination of a child's best interest. See, e.g., R.D. v. A.H.,

(2009) ("In the context of a custody determination, . . . it is essential to recognize that the determination whether a parent is 'unfit' is closely intertwined with a consideration of the best interests of the child"); Bezio v. Patenaude,

(1980) ("Neither the 'parental fitness' test nor the 'best interests of the child' test is properly applied to the exclusion of the other"), citing Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption,

(1975) (stating that "the tests . . . reflect different degrees of emphasis on that same factors" and "are not separate and distinct but cognate and connected"). Judges hearing removal petitions will thus inevitably hear evidence, and be asked to make determinations, concerning parental fitness. 14

Questions, often difficult ones, about the child's physical and

psychological well-being must be answered; questions about a

parent's mental and physical health, addictions, history of

abuse or neglect, and the impact of these things on the parent's

ability to meet the needs of the child are also often in play.

Additionally, as the plaintiffs and amici point out, judges

hearing removal petitions may be called on to consider evidence,

and make difficult determinations, on 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. See, e.g., Guardianship of

Cheyenne,

(2010); Guardianship of

Estelle,

(2007), and cases cited.

With the complexity of the legal and factual issues comes

an increased risk that a judge might incorrectly decide those

issues, especially in the absence of counsel to present and

defend the positions of the parent, and hence an increased risk

that an unrepresented parent will suffer an erroneous

deprivation of his or her rights. Cf. Department of Pub.

Welfare v. J.K.B.,

(noting complexity of issues

in adjudicating petitions to dispense with consent to adoption

as consideration in finding right to counsel). The presence of

counsel for a parent will both help to protect the parent's

rights and interests in this regard and assist a judge to ensure 15

accuracy and fairness in his or her adjudications.

(noting

benefits of counsel both for parents and for judges).

iii. Government interests. Finally, we must consider the

Commonwealth's interest in the efficient and economic operation

of its affairs. Although the Commonwealth is not a party per se

in a private guardianship proceeding under G. L. c. 190B,14 it

nevertheless has interests that are affected and must be

weighed. It has an interest in ensuring that the children of

the Commonwealth are protected adequately and, toward that end,

that accurate and fair adjudications are made by judges in these

cases. Care & Protection of Robert,

, and

cases cited. Significantly, it also has an interest in seeing

that State resources are not used irresponsibly. There is no

need, for example, to require the State to incur the cost and

administrative burden of providing counsel for removal petitions

that have no hope of prevailing. The risk of erroneously

depriving a parent of his or her interests on such a petition

would be negligible, the presence of counsel would add little of

value, and an expenditure of State resources for an attorney to

14 Many of the private guardianship cases in the Probate and Family Court do, however, concern children who have been involved with the Department of Children and Families. See V. Weisz & B. Kaban, Children's Law Center of Massachusetts, Protecting Children: A Study of the Nature and Management of Guardianship of Minor Cases in Massachusetts Probate and Family Court, at 22 (2008). See also Annie E. Casey Foundation, The Kinship Diversion Debate: Policy and Practice Implications for Children, Families and Child Welfare Agencies (2013). 16

pursue such a petition would therefore be unnecessary. See Roe

v. Attorney Gen.,

, quoting Mathews v. Eldridge,

(1976) (referring to "the risk of an erroneous

deprivation of such interest through the procedures used, and

the probable value, if any, of additional or substitute

procedural safeguards" [emphasis added]).

iv. Balancing of interests. The most pragmatic way to

balance all three due process considerations -- the parental

interests, the risk of erroneous adjudication of those

interests, and the government interests -- is to require that

counsel be made available for those petitions that present a

colorable claim for removal, but not for petitions that are

obviously meritless. Requiring a parent to make a modest yet

meaningful preliminary showing that he or she has a colorable

case for removal of the guardian, before counsel is appointed to

prosecute such a petition, will help to guard against an

unnecessary and irresponsible expenditure of State resources

and, we hope, will discourage, and thereby help to keep the

courts free of, patently meritless attempts at removal.

The Chief Justice contends that the parent should be

required to make an initial showing that there have been

"substantial and relevant changed circumstances" since the

guardian was appointed. She analogizes to review and

redetermination proceedings in care and protection cases, see 17

G. L. c. 119, § 26,15 and relies heavily on the analysis in Care

& Protection of Erin,

. This court held in

that case that the ultimate burden of proof on review and

redetermination is on the Department of Children and Families

(then the Department of Social Services) (department) to prove

that a parent remains unfit to further the best interests of the

child and that the child, therefore, is still in need of care

and protection.

. The court also held that the

parent petitioning for review and redetermination bears a

preliminary burden to produce some credible evidence of changed

circumstances since the initial determination, and it is then

and only then that the department is put to its burden of proof.

It is the latter kind of burden that the Chief Justice

argues is applicable by analogy here.

The Chief Justice's analogy is not perfect, but, as stated,

we agree in general that there should be some threshold

assessment of the claim for removal before the right to counsel

materializes. We are concerned, however, that her formulation

of what is required -- a demonstration of "substantial and

15 The statute provides in relevant part: "On any petition filed in any court under this section, the [Department of Children and Families] or the parents, person having legal custody, probation officer or guardian of a child or the counsel or guardian ad litem for a child may petition the court not more than once every [six] months for a review and redetermination of the current needs of such child whose case has come before the court. . . ." G. L. c. 119, § 26 (c). 18

relevant changed circumstances"16 -- will set the bar too high

for an unrepresented litigant before the right to counsel is

triggered. "Substantial," "relevant," "material," and

"significant" all suggest that a parent's burden would be to

show that circumstances have changed in a legally significant

manner and to a legally cognizable degree. It would be unusual

and potentially unfair to require a litigant unaided by counsel

to make that kind of a legal demonstration before the right to

counsel arises. A more appropriate threshold showing would be

for the parent simply to satisfy the judge that he or she has a

colorable or "meritorious" claim in the sense that it is worthy

of being presented to and considered by the court. See General

Motors Corp., petitioner,

(1962) ("A

meritorious case is one that is worthy of presentation to a

court, not one which is sure of success"). This is a lighter,

less technical burden than the one proposed by the Chief

Justice, and something that will be more manageable for an

unrepresented litigant with fundamental liberty interests at

stake. "Meritorious" is a familiar concept that has been

16 The brief of the Chief Justice of the Probate and Family Court Department (Chief Justice) also describes the proposed burden as a showing that "circumstances have materially and significantly changed since due process procedures were afforded or available last (i.e., at the time of the original appointment or the most recent review of the appointment pursuant to a petition to remove the guardian)." 19

applied in a variety of circumstances.17 It is not an onerous

standard.

In sum, we hold that when an indigent, unrepresented parent

seeks, pursuant to G. L. c. 190B, § 5-212, to remove a guardian

for a minor child and thereby regain custody of the child, the

parent has a due process right to counsel to prosecute the

petition, and to be so informed, provided the parent presents a

meritorious claim for removal.

b. Modification petitions. Petitions to modify the terms

of a guardianship, like petitions to remove a guardian and

regain custody of a child, can also affect the fundamental

rights and interests of a parent. A petition such as C.L.'s,

17 See, e.g., Commonwealth v. Gunter,

, cert. denied,

(2011) (gatekeeper proceeding pursuant to G. L. c. 278, § 33E; when determining whether new issue is "substantial," "[t]he bar . . . is not high. It must only be a meritorious issue in the sense of being worthy of consideration by an appellate court"); Lovell v. Lovell,

(1931) (petition to remove default decree requires some showing that petitioner has meritorious claim or defense to assert -- "one which is worthy of judicial inquiry"); Jones v. Manns,

, 492-493 & n.9 (1992) (transfer of appeal filed in wrong court; case "involves meritorious issues, in the usual sense of that phrase in appellate practice," i.e., "worthy of presentation to a court" [citation omitted]); Levin v. Levin,

, 503- 504 (1979) (stay of execution of sentence pending appeal; discussing "meritorious" standard and concluding that it connotes opposite of "frivolous"); Tisei v. Building Inspector of Marlborough,

(1975) (motion for leave to docket appeal late; moving party must show "a case meritorious or substantial in the sense of presenting a question of law deserving judicial investigation and discussion" [citation omitted]). 20

which seeks a significant change in the terms of visitation

based on changed circumstances since the appointment of the

guardian, is such a case.18 Visitation, like custody, is at the

core of a parent's relationship with a child; being physically

present in a child's life, sharing time and experiences, and

providing personal support are among the most intimate aspects

of a parent-child relationship. For a parent who has lost (or

willingly yielded) custody of a child temporarily to a guardian,

visitation can be especially critical because it provides an

opportunity to maintain a physical, emotional, and psychological

bond with the child during the guardianship period, if that is

in the child's best interest; and in cases where the parent

aspires to regain custody at some point, it provides an

opportunity to demonstrate the ability to properly care for the

child. See generally L. Edwards, Reasonable Efforts: A

Judicial Perspective, at 41-47 (2014); M. Smariga, American Bar

Association Center on Children and the Law & ZERO TO THREE

Policy Center, Visitation with Infants and Toddlers in Foster

Care: What Judges and Attorneys Need to Know (2007).

18 In the Probate and Family Court, C.L.'s case involved a petition to modify the guardianship by changing the terms of the visitation. Obviously, not all modification petitions concern visitation. Petitions that seek other changes to the guardianship -- for example, changes in child support or other strictly financial matters -- will not necessarily implicate the same core parent-child concerns. 21

For these reasons, and considering the due process factors

discussed above, we hold that an indigent parent who petitions

to modify the terms of a guardianship by seeking a substantial

change in the provisions for visitation, like a parent

petitioning to remove a guardian and regain custody, is entitled

as a matter of due process to counsel, and to be so informed,

provided the parent presents a meritorious claim.

3. Other issues. The plaintiffs and amici raise a host of

additional issues that go well beyond the issues raised by the

plaintiffs' complaint. For example, the plaintiffs argue, in

addition to their due process claim, that they have a right to

counsel based on equal protection principles; they also ask us

to "issue a directive" definitively resolving certain questions

concerning the burden of proof and the elements of proof on

petitions to remove a guardian under G. L. c. 190B, § 5-212.

The children, who filed no pleadings of their own in the county

court, and who were brought into the case for the limited

purpose of addressing a question of standing on their right to

be heard on the plaintiffs' claims, see note 3, supra, argue

that they have their own right to counsel in cases like this.

And the amicus Committee for Public Counsel Services asks us to

decide a number of other issues in order to "clarify the

parameters of the right to counsel for indigent parents in

guardianship cases." 22

These matters are not properly before us, and we therefore

decline to address them. Some of these questions will

undoubtedly need to be resolved in future cases where they are

properly raised and preserved in the trial court and fully

briefed on appeal,19 and where the records for deciding them are

fully developed. Others might appropriately be addressed by

court rules and policies established by the Probate and Family

Court or by amendments to the governing statutes.

4. Development of court rules and policies. Our decision

in Guardianship of V.V., decided approximately fifteen months

ago, recognized a parent's due process right to counsel in

guardianship of minor cases where none previously existed, on

the initial petition for appointment of a guardian. The Probate

and Family Court has taken a number of steps since then to

implement that right. Our decision today establishes a right to

counsel beyond that, on a parent's petition to remove a guardian

and regain custody of the child or to modify the guardianship in

order to make a significant change in visitation. Recognizing

19 We note, for example, that no guardian has submitted a brief in the case before us. Some of the other issues we are asked to decide would clearly affect a guardian's rights and interests. 23

that additional steps will be needed to implement these rights,

we offer a few thoughts and suggestions.20

a. The Probate and Family Court can facilitate the process

for unrepresented parents by creating forms that will help the

parent to articulate -- in plain, nonlegal terms -- the reasons

why he or she believes the guardian should be removed or the

visitation modified, and the facts on which he or she relies to

support that claim. Forms that promote a clear and sufficiently

detailed statement from the parent will also help judges to

evaluate whether the parent has stated a meritorious claim as we

have described that term, such that the parent may have an

attorney if he or she would like one.21

b. We leave it to the Probate and Family Court to consider

in the first instance whether an indigent, unrepresented parent

must actually file a pro se petition to remove the guardian or

20 A working group of experienced probate judges, child advocates, guardians ad litem, representatives of guardian and parent interests, and others concerned may be helpful to explore these suggestions (and other possibilities) in depth. The Chief Justice may wish to consider convening such a group if none already exists. 21 Nothing we have said requires that counsel actually be appointed for every indigent parent who presents a meritorious claim. Parents must be fairly informed of the right to counsel and of the procedure for requesting counsel, but due process in these circumstances only requires that counsel actually be appointed if the parent so requests. A parent who has been informed of the right to counsel and the procedure for requesting counsel will always have the prerogative to opt to proceed without counsel. 24

modify the guardianship before an attorney is appointed.

Another approach might be for the parent to be allowed first to

apply for counsel, and be required to state on an application

for counsel form the meritorious reasons why he or she is

seeking removal or modification. The judge would then be in a

position to assess whether appointment of counsel is called for

before the actual petition is filed. The Probate and Family

Court is better equipped than this court to weigh the pros and

cons of each approach initially. It would appear that either

approach provides due process.

c. General Laws c. 190B, § 5-212, places no express

limitation on how often a parent may file a petition to remove a

guardian or to modify a guardianship. The Probate and Family

Court might consider whether it is feasible and wise to create

guidelines designed to discourage the filing of unnecessarily

frequent petitions. For example, the court may be able to

identify different classes of petitions according to what relief

is being sought (e.g., removal or modification) and the bases on

which the guardianships were established initially (e.g.,

consent, various reasons for unavailability or unfitness, etc.),

and indicate frequencies with which petitions in the different

classes might reasonably be expected to be filed. Petitions

filed at more frequent intervals than provided by the guidelines

presumptively would not merit the appointment of counsel. These 25

guidelines and presumptions would not be binding, since the

statute appears to permit the filing of a removal or

modification petition at any time, each case is different, and

counsel should always be appointed for a meritorious case, but

they may help to create realistic expectations for unrepresented

parents as to how often, at most, they should file.22

d. In deciding both Guardianship of V.V. and this case, we

have found it useful to draw certain comparisons between the

guardianship process under G. L. c. 190B and the care and

protection process under G. L. c. 119. We have not held,

however, that all of the procedures and protections provided by

statute in care and protection cases must necessarily be

incorporated into private guardianship proceedings under the

rubric of due process. The two types of proceedings, while

similar in some respects, are not identical. What process is

constitutionally due in guardianship cases must continue to be

decided by applying the factors discussed above.

e. Although we do not decide the question of a child's

constitutional right to counsel in this case, we note the

provisions of G. L. c. 190B, § 5-106 (a). "After filing of a

petition for appointment of a guardian . . . if the ward . . .

22 Likewise, it may be possible in some situations for the judge, at the time the guardianship is created, to indicate when or on what conditions the parent might realistically expect to petition for removal or modification. 26

or someone on his behalf requests appointment of counsel; or if

the court determines at any time in the proceeding that the

interests of the ward . . . are or may be inadequately

represented, the court shall appoint an attorney to represent

the person." Id. The court may also appoint a "guardian ad

litem . . . to investigate the condition of the ward . . . and

make appropriate recommendations to the court." G. L. c. 190B,

§ 5-106 (b). We trust that judges of the Probate and Family

Court will consider exercising one or both of these prerogatives

in appropriate cases, especially where counsel is appointed for

a petitioning parent but the judge is concerned that the

petition might not be in the child's best interest. Guardians

faced with removal or modification claims should also be fairly

informed that they may request counsel for the child.

Conclusion. A judgment shall enter in the county court

declaring that (a) when an indigent parent seeks, pursuant to

G. L. c. 190B, § 5-212, to remove a guardian for a minor child

and thereby regain custody of the child, the parent has a due

process right to counsel to prosecute the petition, and to be so

informed, provided the parent presents a meritorious claim for

removal; and (b) similarly, when an indigent parent seeks to

modify the terms of a guardianship by substantially changing the

terms of visitation with the minor child, the parent also has a 27

due process right to counsel, and to be so informed, provided

the parent presents a meritorious claim for modification.

So ordered.