Appointment of Representation for Indigent Guardians – Recent Case Law
Is an indigent guardian or de facto parent whose guardianship of a child is subject to removal entitled to legal counsel? This was the issue addressed in a recent decision of the Massachusetts Supreme Judicial Court.
Guardianship of K.N. addressed the case of a child, born to a 15-year-old mother, whose maternal grandmother was granted guardianship of the child. Ten years later, the mother of the child filed a petition for removal of the child from the grandmother’s care. The mother also filed an emergency motion to return the child to her, which was granted. The grandmother filed a motion the following day, seeking the appointment of counsel; that motion was denied.
The grandmother filed a motion to reconsider, having retained counsel, but her motion was dismissed due to a procedural error, and her counsel then withdrew. The child eventually appealed, through counsel, claiming that the guardian’s procedural due process rights required that she be allowed to have counsel appointed in order to represent her interests. Alternatively, the child argued, the equitable powers which reside with the Probate and Family Court allowed the Court to appoint counsel for the guardian.
“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,” the Court noted. “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.” As with all issues involving the custody of children, the best interests of the child will be the governing factor here.
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[1] Guardianship of K.N., 476 Mass. 762 (2017).
[2] Id., at 762.