Guardianship of Duku Lado (Lawyers Weekly No. 10-178-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12143 GUARDIANSHIP OF DUKU LADO. November 7, 2017. Supreme Judicial Court, Superintendence of inferior courts. Probate Court, Guardian. Practice, Civil, Guardianship proceeding. Guardian. The petitioner, Betty Hinds, appeals from a judgment of a single justice of this court denying her petition pursuant to G. L. c. 211, § 3. We affirm. In her petition, Hinds asked the court to stay an order of the Suffolk Probate and Family Court appointing a temporary guardian for her adult son, Duku Lado. In denying the petition, the single justice noted that Hinds had already sought the same relief in the Appeals Court and that a single justice of that court had denied the request without prejudice to Hinds first seeking a stay in the trial court. Hinds instead filed her G. L. c. 211, § 3, petition. Relief pursuant to G. L. c. 211, § 3, is available only in exceptional circumstances and when no other remedy is available. Here, the single justice denied the petition essentially on the basis that Hinds did have an adequate alternative remedy — that is, to seek a stay in the trial court and then, if the request were denied, to challenge that denial, or perhaps make a fresh request for a stay, in the Appeals Court. In her appeal from the single justice’s judgment, Hinds no longer focuses on her motion to stay, but rather asks the court to vacate the trial court order appointing the temporary guardian. As far as we can tell from the record that was before the single justice as well as the record that is before us, both of which are difficult to discern, Hinds did not raise this issue before the single justice, and we therefore need not consider it. See Carvalho v. Commonwealth, 460 Mass. 1014, 1014 (2011), and cases cited. Even if we were to consider it, however, Hinds would fare no better. As with the motion to stay, G. L. c. 211, § 3, does not provide a means for Hinds to pursue the relief that she seeks in the circumstances presented. Rather, she can adequately challenge any adverse rulings regarding the guardianship in the ordinary course in the Appeals Court, whether pursuant to G. L. c. 231, § 118, first par., with respect to any interlocutory rulings of the trial court, or by way of an appeal from any final, appealable orders […]
Guardianship of Yosselin Guadalupe Penate; Department of Revenue v. Lopez, et al. (Lawyers Weekly No. 10-102-17)
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-12138 SJC-12184 GUARDIANSHIP OF YOSSELIN GUADALUPE PENATE. DEPARTMENT OF REVENUE[1] vs. MANUEL MORALES LOPEZ & another.[2] Suffolk. January 6, 2017. – June 9, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Alien. Probate Court, Jurisdiction. Jurisdiction, Probate Court. Petition for appointment of a guardian filed in the Suffolk Division of the Probate and Family Court Department on September 14, 2015. A motion for special findings of fact was heard by Virginia M. Ward, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Complaint to establish paternity filed in the Suffolk Division of the Probate and Family Court Department on November 25, 2014. A motion for special findings of fact was heard by Virginia M. Ward, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Valquiria C. Ribeiro for Marvin H. Penate. Jennifer B. Luz (Joshua M. Daniels also present) for E.G. Elizabeth Badger for Kids in Need of Defense & others, amici curiae. The following submitted briefs for amici curiae: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, William C. Peachey, Erez Reuveni, & Joseph A. Darrow, of the District of Columbia, for the United States. Mary K. Ryan & Meghan S. Stubblebine for American Immigration Lawyers Association, New England Chapter, & others. HINES, J. In these appeals brought by E.G., an eight year old undocumented immigrant from Guatemala, and Yosselin Guadalupe Penate, a nineteen year old undocumented immigrant from El Salvador, we consider for the second time[3] the statutorily mandated role of the Probate and Family Court (and the Juvenile Court) in a juvenile’s application for special immigrant juvenile status (SIJ) under 8 U.S.C. § 1101(a)(27)(J) (2012). Congress established the SIJ status classification “to create a pathway to citizenship for immigrant children,” Recinos v. Escobar, 473 Mass. 734, 737 (2016), who have been abused, neglected, or abandoned by one or both parents. The issue presented in these appeals is whether a judge may decline to make special findings based on an assessment of the likely merits of the movant’s application for SIJ status or on the movant’s motivation for seeking SIJ status. The judge implicitly determined that neither child would be entitled to […]
Guardianship of K.N. (Lawyers Weekly No. 10-057-17)
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-12195 GUARDIANSHIP OF K.N. Suffolk. December 6, 2016. – April 13, 2017. Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Probate Court, Guardian, General equity power. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Practice, Civil, Guardianship proceeding, Assistance of counsel. Petition for appointment of a guardian for a minor child filed in the Suffolk Division of the Probate and Family Court Department on November 4, 2005. A motion by the child for appointment of counsel for the guardian was heard by Brian J. Dunn, J. A proceeding for interlocutory review was allowed in the Appeals Court by Judd J. Carhart, J., and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Claudia Leis Bolgen for the child. Deborah W. Kirchwey for the mother. Stephen H. Merlin, for the guardian, was present but did not argue. Maura Healey, Attorney General, & Abigail B. Taylor, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief. LOWY, J. In L.B. v. Chief Justice of the Probate and Family Court Dep’t, 474 Mass. 231, 232 (2016), this court held that a parent whose minor child is the subject of a guardianship petition pursuant to G. L. c. 190B, § 5-206, has a right to counsel in certain situations. The issue in this case is whether an indigent guardian who is the subject of a removal petition under G. L. c. 190B, § 5-212, is entitled to appointed counsel in the proceedings. 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. 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.[2] Background. K.N., a minor child, was born in 2005 when her mother was fifteen years of age. Within a matter of weeks, the child’s maternal grandmother was appointed […]
Guardianship of B.V.G. (Lawyers Weekly No. 10-068-16)
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-11925 GUARDIANSHIP OF B.V.G. Norfolk. December 7, 2015. – May 23, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Guardian, Incompetent person. Probate Court, Guardian, Standing. Practice, Civil, Appointment of guardian, Intervention, Standing. Words, “Interested person.” Petition for guardianship filed in the Norfolk Division of the Probate and Family Court Department on February 16, 2011. A motion to intervene was heard by George F. Phelan, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Anthony D. Martin (Jennifer L. Mikels with him) for the grandfather. Adam J. Nussenbaum for the father. Frederick M. Misilo, Jr., for The Arc of Massachusetts, Inc., amicus curiae, submitted a brief. DUFFLY, J. The maternal grandfather of B.V.G., a young woman with intellectual disabilities, sought to intervene in permanent guardianship proceedings pending in the Probate and Family Court on the petition of B.V.G.’s father, who had been appointed B.V.G.’s temporary guardian when she was eighteen years old.[1] The grandfather asserted that his relationship with B.V.G. has been restricted by her father in his capacity as temporary guardian, that B.V.G. has indicated expressly her desire to communicate with him and has sought contact with him via social media, and that such a relationship is in B.V.G.’s best interests. The grandfather filed a motion to intervene, pursuant to Mass. R. Civ. P. 24, 365 Mass. 769 (1974),[2] in the guardianship proceedings, seeking to limit the father’s ability to restrict B.V.G.’s access to the grandfather. Concluding that the grandfather lacked standing to intervene because he was not an “interested person” within the meaning of G. L. c. 190B, § 5-306 (c), a Probate and Family Court judge denied the motion. The grandfather appealed, and the Appeals Court affirmed the denial, on grounds other than those relied upon by the motion judge. See Guardianship of B.V.G., 87 Mass. App. Ct. 250 (2015). We allowed the grandfather’s petition for further appellate review.[3] General Laws c. 190B, § 5-306 (c), provides that the Probate and Family Court may, “on its own motion or on appropriate petition or motion of the incapacitated person or other interested person, . . . limit the powers of a guardian . . . and thereby create a limited guardianship.” Based on our review of the record and the judge’s […]
Guardianship of J.T. (Lawyers Weekly No. 10-061-16)
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-11882 GUARDIANSHIP OF J.T. May 4, 2016. Moot Question. Practice, Civil, Moot case, Assistance of counsel. Probate Court, Guardian. This case is before us on a report from a judge in the Probate and Family Court. It concerns a guardianship of a minor child pursuant to G. L. c. 190B. Specifically, the question is whether an indigent parent who petitions to remove a guardian and regain custody of her child, or to establish visitation with the child, has a right to counsel on those petitions. We discharge the report as moot. The guardian was appointed in accordance with G. L. c. 190B, § 5-206, in May, 2014. The mother, who was not represented by counsel, consented to the appointment of the guardian. In March, 2015, the mother filed a petition to remove the guardian, see G. L. c. 190B, § 5-212, alleging that she was “presently fit and able to resume care of the child.” She also filed an application for the appointment of counsel to represent her in the removal proceeding. Several days later she filed a separate petition requesting “the opportunity to have visitation with” the child. (The guardianship decree had no provision for visitation.) A judge in the Probate and Family Court denied the mother’s request for counsel and reported this interlocutory ruling to the Appeals Court. We transferred the case to this court on our own motion.[1],[2] While the case has been pending here, the mother and the guardian mediated and resolved the underlying matter in the trial court. A decree has been entered terminating the guardianship, the child has been returned to the custody of the mother, and a separate petition that the guardian had filed to adopt the child has been dismissed by agreement.[3] The judge’s interlocutory report has been rendered moot by the resolution of the underlying case. There is no need to address the issues further in this case. Essentially the same issues are raised and addressed in L.B. v. Chief Justice of the Probate & Family Court Dep’t, 474 Mass. (2016), which we also decide today. Although the matter is moot, we have carefully considered the mother’s brief as an amicus brief in the L.B. case. Report discharged as moot. Susan M. Finegan (Geoffrey A. Friedman & Sandra J. Badin with her) for the mother. Jamie Ann Sabino, Susan R. Elsen, […]
Guardianship of V.V. (Lawyers Weekly No. 10-019-15)
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. 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 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 […]
Guardianship of L.H. (Lawyers Weekly No. 11-005-14)
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 11‑P‑1510 Appeals Court GUARDIANSHIP OF L.H. No. 11‑P‑1510. Middlesex. September 18, 2012. ‑ January 24, 2014. Present: Berry, Brown, & Agnes, JJ. Incompetent Person, Consent to medical treatment. Guardian, Incompetent person, Consent to medical treatment. Probate Court, Guardian, Incompetent person. Practice, Civil, Guardianship proceeding, Assistance of counsel. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Petition for guardianship filed in the Middlesex Division of the Probate and Family Court Department on November 30, 2009. The case was heard by Peter C. DiGangi, J., and a motion to reinstate Rogers authority was considered by him. Laura A. Sanford for the ward. Miriam H. Ruttenberg, Phillip Kassel, Richard M. Glassman, Hillary J. Dunn, Thomas P. Murphy, & Robert D. Fleischner, for Mental Health Legal Advisors Committee & others, amici curiae, submitted a brief. BERRY, J. This case involves two substituted judgment proceedings on petitions filed, following the precedent of Rogers v. Commissioner of the Dept. of Mental Health, 390 Mass. 489 (1983), and cases decided in its wake, in respect to the administration of antipsychotic medications to L.H. L.H. appeals from a decree and findings of the Probate and Family Court that she was not competent to make medical decisions and would benefit from a proposed treatment plan to use the antipsychotic drug Risperdal, and that she would consent to use of that drug were she competent. L.H. also appeals from the judge’s subsequent allowance of a motion to reinstate and to modify the treatment plan to allow for the administration by injection of Risperdal. The two appeals were consolidated here. L.H. argues on appeal that there was insufficient evidence that the administration of antipsychotic medication was appropriate. In addition, L.H. argues that her trial counsel rendered ineffective assistance. We affirm. For the reasons addressed in part 2, we conclude that the evidence in these substituted judgment proceedings and the probate judge’s findings established by a preponderance that L.H. was in need of treatment with antipsychotic drugs. See G. L. c. 190B, § 5-306A. See generally Guardianship of Erma, 459 Mass. 801, 802 n.2 (2011) (discussing substituted judgment in context of involuntary administration of antipsychotic drugs). For the reasons addressed in part 3, we decline to reach the ineffective assistance of counsel claims in these direct appeals. First, […]