SPINA, J.
In Guardianship of V.V., 470 Mass. 590 (2015), we held that a parent whose minor child is the subject of a guardianship petition 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. The issue in this case is whether a parent also has a right to counsel if and when the parent petitions to have the guardian removed or to have the terms of the guardianship modified. We conclude that a parent does have a right to counsel for certain of those types of petitions. We also offer some guidance to the Probate and Family Court, where these private guardianships occur, for the development of rules and policies to implement this right to counsel.
Procedural history. The plaintiffs, L.B. and C.L., are the mothers of minor children for whom guardians were appointed, in 2012 and 2013 respectively, pursuant to G. L. c. 190B, § 5-206. They commenced this action in the county court in 2015, challenging a written policy of the Chief Justice of the Probate and Family Court Department (Chief Justice) concerning the appointment of counsel in cases involving guardianships of minors under G. L. c. 190B. Specifically, they challenged a portion of a memorandum that the Chief Justice issued to the judges of the Probate and Family Court and to court personnel on February 20, 2015, shortly after we released our opinion in Guardianship of V.V., supra. The memorandum addressed our decision and identified a number of steps that the Probate and Family Court was taking to implement our holding. The portion of the memorandum challenged by the plaintiffs is a single sentence that, in speaking of Guardianship of V.V., states: "Based on the holding in this case, the right to counsel for indigent parents only applies in a Petition to Appoint a Guardian of a Minor." By this sentence, the Chief Justice essentially informed the probate judges and court personnel that, in her view, the right to counsel recognized in Guardianship
The plaintiffs alleged in their complaint that the Chief Justice's policy, by limiting the right to counsel to proceedings for the initial appointment of guardians, contravened our decision in Guardianship of V.V. and violated their right to due process. A single justice of this court reserved and reported the plaintiffs' complaint to the full court.
Facts.
In December, 2014, L.B. filed three petitions in the trial court pursuant to G. L. c. 190B, § 5-212,
In February, 2015, C.L. filed a petition in the trial court seeking to modify the terms of her visitation with her child.
In March, 2015, L.B. filed an application for the appointment of counsel to represent her in each of the three cases involving her, and C.L. similarly moved for appointment of counsel in the case involving her. By that time, we had decided Guardianship of V.V. and the Chief Justice had issued her memorandum indicating her position that the holding in that case did not extend to situations like L.B.'s and C.L.'s. Their requests for counsel were therefore denied. Consistent with the Chief Justice's stated policy, the judge in L.B.'s cases denied her requests on the ground that a "petition for removal of [a] guardian does not qualify [for] appointment of parent's counsel," and the judge in C.L.'s case denied her motion because her pending petition to modify the guardianship was "not an initial petition" for appointment of a guardian. Shortly thereafter, they commenced this action in the county court.
Discussion. 1. The holding in Guardianship of V.V. The plaintiffs maintain that our decision in Guardianship of V.V. already resolves the questions that are now before us. That is incorrect. That case involved a petition for the initial appointment of a guardian under G. L. c. 190B, § 5-206. The sole question was whether the mother was entitled to counsel on that particular type of petition. Guardianship of V.V., 470 Mass. at 590-591. Significantly, while the appeal was pending, the case proceeded to trial in the Probate and Family Court on the mother's petition to remove the guardian, and on that petition the mother was represented by counsel. Id. at 591 n.2. The appeal therefore did not concern, and the court did not address, any question of a parent's right to counsel on a petition to remove the guardian or to modify the terms of the guardianship.
To support their argument, the plaintiffs rely on two excerpts from Guardianship of V.V. First, they cite a footnote near the
The plaintiffs also rely on a sentence in which we said: "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 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." Guardianship of V.V., 470 Mass. at 592-593. Read in context, that sentence refers only to the phase of the guardianship proceeding that was actually at issue in that case, namely, the initial petition to appoint a guardian. It was not intended as a holding with respect to other phases of a guardianship proceeding that were not at issue.
2. Due process claim. We next turn to the plaintiffs' main claim, that due process requires the appointment of counsel for indigent parents who petition to remove guardians for their children or to modify the terms of the guardianships. The Chief Justice now acknowledges that counsel may be required constitutionally on a petition to remove a guardian; she argues, however, that the parent must first make a credible threshold showing of "substantial and relevant changed circumstances" since the guardian was appointed. She also argues that there is no right to counsel when a parent petitions only to modify the terms of the guardianship.
i. Individual interests. The interest of parents in their relationship with their children is substantial. "Our decisions, and those of the United States Supreme Court, leave no doubt that `[t]he rights to conceive and raise one's children' are `essential ... basic civil rights of man ... far more precious ... than property rights.'" Department of Pub. Welfare v. J.K.B., 379 Mass. at 3, quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972). Fundamental rights and interests of parents are implicated not only at the stage when a guardian is first appointed for a minor child, as in Guardianship of V.V., but also when a parent subsequently petitions to regain custody by removing the guardian.
ii. Risk of erroneous deprivation. The risk of erroneously adjudicating these fundamental rights and interests of parents is no less real at the guardian removal stage than at the appointment stage. Judges at both stages may be called on to make complex determinations that consider numerous factors regarding the child's best interest and the parent's fitness.
With the complexity of the legal and factual issues comes an increased risk that a judge might incorrectly decide those issues, especially in the absence of counsel to present and defend the positions of the parent, and hence an increased risk that an unrepresented parent will suffer an erroneous deprivation of his or her rights. Cf. Department of Pub. Welfare v. J.K.B., 379 Mass. at 4 (noting complexity of issues in adjudicating petitions to dispense with consent to adoption as consideration in finding right to counsel). The presence of counsel for a parent will both help to protect the parent's rights and interests in this regard and assist a judge to ensure accuracy and fairness in his or her adjudications. Id. (noting benefits of counsel both for parents and for judges).
iii. Government interests. Finally, we must consider the Commonwealth's interest in the efficient and economic operation of its affairs. Although the Commonwealth is not a party per se in a private guardianship proceeding under G. L. c. 190B,
iv. Balancing of interests. The most pragmatic way to balance all three due process considerations — the parental interests, the risk of erroneous adjudication of those interests, and the government interests — is to require that counsel be made available for those petitions that present a colorable claim for removal, but not for petitions that are obviously meritless. Requiring a parent to make a modest yet meaningful preliminary showing that he or she has a colorable case for removal of the guardian, before counsel is appointed to prosecute such a petition, will help to guard against an unnecessary and irresponsible expenditure of State resources and, we hope, will discourage, and thereby help to keep the courts free of, patently meritless attempts at removal.
The Chief Justice contends that the parent should be required to make an initial showing that there have been "substantial and relevant changed circumstances" since the guardian was appointed. She analogizes to review and redetermination proceedings in care and protection cases, see G. L. c. 119, § 26,
The Chief Justice's analogy is not perfect, but, as stated, we agree in general that there should be some threshold assessment of the claim for removal before the right to counsel materializes. We are concerned, however, that her formulation of what is required — a demonstration of "substantial and relevant changed circumstances"
In sum, we hold that when an indigent, unrepresented parent seeks, pursuant to G. L. c. 190B, § 5-212, to remove a guardian for a minor child and thereby regain custody of the child, the parent has a due process right to counsel to prosecute the petition, and to be so informed, provided the parent presents a meritorious claim for removal.
b. Modification petitions. Petitions to modify the terms of a guardianship, like petitions to remove a guardian and regain custody of a child, can also affect the fundamental rights and interests of a parent. A petition such as C.L.'s, which seeks a significant change in the terms of visitation based on changed circumstances since the appointment of the guardian, is such a case.
For these reasons, and considering the due process factors discussed above, we hold that an indigent parent who petitions to modify the terms of a guardianship by seeking a substantial
3. Other issues. The plaintiffs and amici raise a host of additional issues that go well beyond the issues raised by the plaintiffs' complaint. For example, the plaintiffs argue, in addition to their due process claim, that they have a right to counsel based on equal protection principles; they also ask us to "issue a directive" definitively resolving certain questions concerning the burden of proof and the elements of proof on petitions to remove a guardian under G. L. c. 190B, § 5-212. The children, who filed no pleadings of their own in the county court, and who were brought into the case for the limited purpose of addressing a question of standing on their right to be heard on the plaintiffs' claims, see note 3, supra, argue that they have their own right to counsel in cases like this. And the amicus Committee for Public Counsel Services asks us to decide a number of other issues in order to "clarify the parameters of the right to counsel for indigent parents in guardianship cases."
These matters are not properly before us, and we therefore decline to address them. Some of these questions will undoubtedly need to be resolved in future cases where they are properly raised and preserved in the trial court and fully briefed on appeal,
4. Development of court rules and policies. Our decision in Guardianship of V.V., decided approximately fifteen months ago, recognized a parent's due process right to counsel in guardianship of minor cases where none previously existed, on the initial petition for appointment of a guardian. The Probate and Family Court has taken a number of steps since then to implement that right. Our decision today establishes a right to counsel beyond that, on a parent's petition to remove a guardian and regain custody of the child or to modify the guardianship in order to make a significant change in visitation. Recognizing that additional steps will be needed to implement these rights, we offer a
a. The Probate and Family Court can facilitate the process for unrepresented parents by creating forms that will help the parent to articulate — in plain, nonlegal terms — the reasons why he or she believes the guardian should be removed or the visitation modified, and the facts on which he or she relies to support that claim. Forms that promote a clear and sufficiently detailed statement from the parent will also help judges to evaluate whether the parent has stated a meritorious claim as we have described that term, such that the parent may have an attorney if he or she would like one.
b. We leave it to the Probate and Family Court to consider in the first instance whether an indigent, unrepresented parent must actually file a pro se petition to remove the guardian or modify the guardianship before an attorney is appointed. Another approach might be for the parent to be allowed first to apply for counsel, and be required to state on an application for counsel form the meritorious reasons why he or she is seeking removal or modification. The judge would then be in a position to assess whether appointment of counsel is called for before the actual petition is filed. The Probate and Family Court is better equipped than this court to weigh the pros and cons of each approach initially. It would appear that either approach provides due process.
c. General Laws c. 190B, § 5-212, places no express limitation on how often a parent may file a petition to remove a guardian or to modify a guardianship. The Probate and Family Court might consider whether it is feasible and wise to create guidelines designed to discourage the filing of unnecessarily frequent petitions. For example, the court may be able to identify different classes of petitions according to what relief is being sought (e.g., removal or modification) and the bases on which the guardianships
d. In deciding both Guardianship of V.V. and this case, we have found it useful to draw certain comparisons between the guardianship process under G. L. c. 190B and the care and protection process under G. L. c. 119. We have not held, however, that all of the procedures and protections provided by statute in care and protection cases must necessarily be incorporated into private guardianship proceedings under the rubric of due process. The two types of proceedings, while similar in some respects, are not identical. What process is constitutionally due in guardianship cases must continue to be decided by applying the factors discussed above.
e. Although we do not decide the question of a child's constitutional right to counsel in this case, we note the provisions of G. L. c. 190B, § 5-106 (a). "After filing of a petition for appointment of a guardian ... if the ward ... or someone on his behalf requests appointment of counsel; or if the court determines at any time in the proceeding that the interests of the ward ... are or may be inadequately represented, the court shall appoint an attorney to represent the person." Id. The court may also appoint a "guardian ad litem ... to investigate the condition of the ward ... and make appropriate recommendations to the court." G. L. c. 190B, § 5-106 (b). We trust that judges of the Probate and Family Court will consider exercising one or both of these prerogatives in appropriate cases, especially where counsel is appointed for a petitioning parent but the judge is concerned that the petition might not be in the child's best interest. Guardians faced with removal or modification claims should also be fairly informed that they may request counsel for the child.
So ordered.
In addition, the single justice indicated in her reservation and report that the children and guardians in the underlying cases could be heard on the question whether they have standing to address the issue of appointment of counsel for the parents. The guardians have not submitted briefs. Both plaintiffs' children have submitted briefs arguing that they do have standing on that issue (although they take different positions on the substantive merits of the issue). No party or amicus argues otherwise, so we shall assume without deciding that the children do have standing, and, accordingly, we consider their arguments on the issue as well.