Gianareles v. Zegarowski (Lawyers Weekly No. 10-052-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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     SJC‑11531   PATRICE GIANARELES  vs.  PATRICIA ZEGAROWSKI & another.[1],[2]     March 19, 2014.   Supreme Judicial Court, Superintendence of inferior courts.  Probate Court, Guardian.  Practice, Civil, Appointment of guardian, Relief from judgment.       The petitioner, Patrice Gianareles, appeals from a judgment of a single justice of this court denying her petition pursuant to G. L. c. 211, § 3.  We affirm.   Background.  This matter began in the Probate and Family Court in July, 2012, when the respondent sought to have herself appointed as the guardian for the petitioner’s infant child.  See G. L. c. 190B, §§ 5-201 et seq.  The respondent is the petitioner’s grandmother and the child’s great-grandmother.  The child was one year old at the time the respondent commenced the guardianship proceeding; the petitioner was seventeen years old at that time.     The respondent was initially appointed as the child’s temporary guardian, with a trial on the question of permanent guardianship scheduled to take place in December, 2012.  Before trial, the petitioner — who had turned eighteen years old in the meantime — and the respondent entered into a written stipulation that provided, among other things, that the respondent would be appointed as the child’s permanent guardian.  The petitioner also executed a “Notarized Waiver and Consent to Petition for Guardianship of Minor,” by which she purported to consent to the respondent’s appointment as the permanent guardian.  The petitioner was not represented by counsel at the time she signed either of these documents, or at any other point in the proceeding up until then.  Based on the stipulation and the executed, notarized consent form, the judge issued a final decree appointing the respondent as the child’s permanent guardian.  See G. L. c. 190B, § 2-204.   In May, 2013, the petitioner, then represented by counsel, filed a petition to remove the respondent as the child’s guardian, see G. L. c. 190B, § 5-212, and a motion for relief from the judgment pursuant to Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974).  She alleged in her rule 60 (b) motion that the judgment was “void for lack of due process because [the petitioner] was not appointed counsel or afforded alternative procedural safeguards to which she was entitled.”  The same judge who issued the final decree denied the motion.  The petitioner filed a timely notice of appeal from that ruling.  Her petition to remove the respondent as […]

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