MA Supreme Court: parents have a right to counsel in abuse/neglect cases

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02/10/2015, Litigation, Abuse/Neglect/Dependency - Accused Parents

In Guardianship of V.V., the Supreme Judicial Court of Massachusetts unanimously ruled in pursuant to the due process clause of the Massachusetts Constitution, parents have a constitutional right to counsel in private proceedings to establish guardianships of their children (the court hinted at an equal protection rationale too, but only due process was explicitly mentioned). This was a case brought by a legal aid organization and supported (via amicus briefs) by both CPCS (the state indigent defense program) and a consortium of legal aid and nonprofit groups.


This case involved a mother who was not given counsel at a proceeding where she consented to a private guardianship (Massachusetts statutory law provides a right to counsel for guardianships initiated by the state but not those done privately). She later sought to revoke it, and although the guardianship was eventually revoked and the child returned to the mother, the high court found that the right to counsel issue was still of substantial public importance.


Following up on its prior decisions in J.K.B. (right to counsel in termination of parental rights cases) and In re Meaghan (right to counsel in private adoption cases), the court stated that the parental rights at stake in a guardianship proceeding are “no less compelling” than in a termination case because the guardian’s rights completely displaces those of the parent, and no less compelling when the state is absent. It added, "Even if the guardianship lasts for only a brief period of time, the displacement impacts the parent’s liberty interests … 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.” It then concluded:


[A]n 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 … 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.


Prior to this case, the Massachusetts high court had never found a right to counsel in care and protection proceedings (although it had said that a six-month deprivation of custody was a “substantial” intrusion on the parental interest, and although Massachusetts has a statutory right to counsel in such cases), so this case estabilshes such a constitutional right.

Appointment of Counsel: categorical Qualified: no


Nccrc_involvement_icon NCCRC assisted with the briefing in the case.