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Parental Right to Counsel in Private Guardianship Cases

In the case, Guardianship of V.V., the Supreme Judicial Court was faced with the issue of whether a parent whose minor child is the subject of a guardianship proceeding 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.

This case involved a guardianship proceeding between a minor's mother and great-grandmother.  The mother was not initially represented by counsel when the lower courts awarded guardianship to the great-grandmother, although the mother obtained counsel later in the proceedings.

Because the guardianship had been vacated and V.V. had been returned to the mother's custody, the issue whether the mother was entitled to counsel was moot.

The court found this issue to be of significant public importance.  Since this issue is also capable of repetition and, given the short time periods in which guardianship matters are often decided and the fluidity of the proceedings even after an appointment of a guardian, it is an issue that can easily evade appellate review in the ordinary course.  Therefore, the Supreme Judical Court exercised discretion to address the issue.

The Massachusetts legislature has already provided for the appointment of counsel in a guardianship proceeding where the Department of Children and Families or a licensed child placement agency is a party.  

The same interests that warrant appointment of counsel when the State is involved in a guardianship proceeding are also at stake in a guardianship proceeding when the State is absent.

The Supreme Judical Court found that 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 subject of a guardianship proceedings 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.  

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