Does a Parent Have a Right to Counsel in Proceedings Where a Third Party Seeks to be Appointed as Guardian?

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The Supreme Judicial Court recently ruled, in a much-anticipated decision, that a parent has a right to court-appointed counsel when a third party is petitioning for permanent guardianship over his or her child. The decision in the case, the Guardianship of V.V., is of particular note because the SJC ruled on the underlying issue – whether a parent has a right to counsel in guardianship cases – despite the fact that the decision affecting the parties was moot, as the mother has succeeded in removal of the guardianship. It is highly unusual for courts to rule on cases that are moot. However, the court stated that, due to the importance of the issue, it was incumbent upon the court to exercise its discretion and provide an answer to the central question.

The case originated when V.V.’s great-grandmother was appointed as V.V.’s guardian despite the fact that V.V.’s mother, who is indigent, did not have counsel in the case. Subsequently, the mother moved to vacate the decision and to remove the great-grandmother as a guardian. Although the mother eventually won on the latter motion, and V.V.’s great-grandmother’s guardianship was removed, the Supreme Judicial Court deemed the issue so fundamental that it issued a broad decision declaring that “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.”

The court stated that the interest of parents in their relationship with their children has been deemed fundamental, and is constitutionally protected. Therefore, due process must be followed before a parent is deprived of this right. Although in guardianship cases the deprivation of parental rights may not be permanent, the court reasoned that parents’ rights are “severely circumscribed” because the guardian steps into their shoes to become the primary caretaker and decision-maker for the child. Because of the impact of the guardianship on a parent-child relationship, and because of the fundamental rights at issue, the court held that “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.”

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