Section Review

The practicioner’s perspective: Guardianship of minors practice in the Probate and Family Court

In the past 10 years, the number of children under guardianship in Massachusetts has increased by 38 percent.1 In August 2008, the Children’s Law Center of Massachusetts issued the report Protecting Children: A Study of the Nature and Management of Guardianship of Minor Cases in Masschusetts (hereinafter “the study”). The study reported various findings, such as Department of Social Services (DSS) supported reports of abuse and neglect of children under guardianship, that give rise to the concern that our current guardianship practice is not adequately safeguarding the interests of the children it seeks to protect.

From a practitioner’s perspective, there are several reforms that may improve the practice of guardianship actions in the Probate and Family Court, and improve the outcomes for children under guardianship. This article will discuss four: (1) the requirement of heightened pleading standards; (2) joining DSS as a necessary third-party to guardianship actions that have DSS involvement; (3) establishing a nisi period after the guardianship decree has issued; (4) and requiring the permanent guardianship decree to include specific written findings.

Require heightened pleading standards under the Guardianship of Minors Statute

The liberty interest of a parent in his relationship to his child is fundamental.2 In recognition that it implicates the fundamental right of a parent, under a guardianship proceeding, the petitioner has a heightened burden of proof: unfitness must be proven by clear and convincing evidence.3 Due to the fundamental liberty interests at stake, heightened pleadings standards are also warranted.

A guardianship action pursuant to G.L.c. 201, § 5 (2006) is commenced by the filing of a petition on the official form. The current form does not require the petitioner to state the reason for seeking the guardianship. The form is not sufficient to safeguard the constitutional concerns at issue.

In Blixt v. Blixt, the Supreme Judicial Court found that heightened pleading requirements are appropriate in grandparent visitation actions where “the burden of litigating a domestic relations proceeding can itself be so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare become implicated.”4 It is inarguable that the same concerns present in grandparent visitation matters are present in guardianship actions and involve a much more serious infringement of parental rights.

In Blixt, the Court stated that because a parent’s liberty interests are implicated in a grandparent visitation action, the petitioner “should make an initial showing that satisfies a judge that the burden of proof … can be met.5 The SJC described the type of pleading appropriate under the circumstances: “[A]ny complaint filed under the statute should be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief.”6

Under guardianship petitions where the potential interference with parental rights is profound, the heightened pleading standard set out in Blixt should apply. The petitioner should be required to state the reason for seeking the guardianship in a detailed and verified manner, or file an accompanying affidavit detailing the factual basis for the relief sought consistent with Blixt.

Join the Department of Social Services as a necessary third party to guardianship actions that have DSS involvement

The Protecting Children study reported several concerning findings with regard to the role of DSS in guardianship actions. The study reported the following with regard to DSS involvement with children under guardianships that were involved with the study:

Of the 491 children in the study, 276 (69%) were found to be in the DSS database. Of these 217 (54%) were involved prior to the filing of the guardianship petition in the Probate and Family Court. 189 of the 276 children were the subject of “supported” reports of abuse and neglect under chapter 119, §§ 51A and 51B and 46 children had been placed in the custody of the DSS.

Of the 401 children in this study, 129/ 32% were found to be in the DSS database after the filing of the guardianship petition in the Probate and Family Court. 76 of the 129 children were the subject of supported reports of abuse and neglect and 51 children had been placed in the custody of the DSS.7

 

It is of particular concern that such a high percentage of children have been the subject of supported reports of abuse and neglect after they have been placed under a guardianship. This outcome suggests that the guardianship statute has provided inadequate safeguards for these children.

The study reported that many guardianship petitioners stated that they sought guardianships at the Probate and Family Court at the express instigation of DSS.8 The common practice of DSS referral to the Probate and Family Court was noted in the Massachusetts Court Improvement Reassessment report to the Massachusetts Supreme Judicial Court, which stated that “DSS itself frequently refers potential guardians (usually family members) to Probate and Family Court to prevent the agency from having to file a C&P (care and protection) case in the Juvenile Court.9 Many of the petitioners who were directed to the Probate and Family Court by DSS also reported that their DSS services were terminated as soon as they obtained temporary guardianship in the Probate and Family Court.10

The Protecting Children study indicates that seeking a guardianship in the Probate and Family Court may have had the unintended consequence of actually preventing the parties to guardianship petitions from receiving much needed services. The practice of DSS terminating its services upon the Probate and Family Court issuing a guardianship is particularly problematic in that the guardianship cases that have had DSS involvement often have issues of parental substance abuse and mental illness indicating that the children involved are among the most vulnerable and at the highest risk.11

To avoid this problematic situation, in cases where DSS is involved at the time of the filing of the guardianship petition, the department should be joined as a third party to the guardianship action. Alternatively, guardianship can be granted temporarily on the condition that DSS continue to provide services to the family.  As a third party to the action, DSS can have the role of providing a service plan for the family as it does in care and protection proceedings. The continued involvement of DSS in the case may prevent some of the most vulnerable children from “falling through the cracks” by providing them with ongoing services that may result in safer and more stable placements.

Establish a Nisi period after the guardianship decree has issued

The Protecting Children study also reported several findings that give rise to concerns regarding the safety and permanency of guardianship placements. The study attempted to contact the 401 subject cases for feedback and the whereabouts of many petitioners was unknown.12 Of the 401 cases, the study was only able to conduct follow interviews with 113 petitioners.13 The inability to contact the petitioners questions the stability of the guardianship placements.

It is also of concern that a significant number of petitioners themselves were found to be abusive and neglectful of their children after the filing of the guardianship petition.14 The involvement of DSS in connection with the abusive and/or neglectful conduct of petitioners calls into question the safety of the guardianship placements.

The court does not have to approve the petitioner seeking guardianship. The court should take certain steps to ensure that the petitioner is suitable and will provide a stable and safe environment for the child.

A nisi period should be imposed after the guardianship decree has issued. The petitioners should be required, prior to the guardianship decree becoming absolute, to provide certain documentation with regard to the well-being of the ward, including verification of school enrollment, including attendance records, compliance with the DSS service plan, and verification from a physician that there are no concerns with regard to the well-being of the child. The Probation Department should also verify that there has been no DSS involvement since the filing of the guardianship petition, and run Criminal Offender Record Information (CORI) checks on the petitioners and the other members of the ward’s household.

If the petitioner cannot provide sufficient documentation of the child’s well-being or has had DSS involvement or criminal activity since the filing of the guardianship petition, permanent decree should not issue and the matter should be referred to DSS.

Require the permanent guardianship decree to include specific written findings

The guardianship of a minor statute pertains to both unfitness and assented to petitions. The petitioner may seek guardianship for many reasons, some that implicate the fitness of the parent, some that do not. The reason may be an allegation of unfitness based on mental illness or drug abuse, or it may be a fit parent that cannot currently exercise custodial duties due to military service, job relocation or medical illness. The court should issue specific written findings that determine the “fitness” of the parent and address the other issues concerning the ward such as visitation, support and health care.

Petitions involving “unfitess”

The permanent guardianship decree may result in the complicated scenario of a natural parent declared unfit and deprived of custodial rights, but leaving intact that unfit parent’s fundamental right as a parent. The standard of unfitness, by specifically characterizing unfitness as current, anticipates that the parent may become fit.15 Our courts have been careful to distinguish guardianship petitions from those actions that result in a permanent severance of the parent-child relationship.16 The court should issue findings that are consistent with the nature of the parent-child relationship under the guardianship.

Our courts have found that “[a] finding that a parent is unfit to further the welfare of the child must be predicated upon parental behavior which adversely affects the child.”17 If the court determines that a parent is unfit, it should make specific written findings as to both the nature of the parental behavior and the negative impact of that behavior on the child.

In recognition of the fact that the parent-child relationship continues to exist, the court should make findings with regard to the appropriateness of visitation between the parent and child. If the court terminates visitation between the parent and the child, the judge is required to “make specific findings that parental visits will harm the child” on the basis of clear and convincing evidence.18 The court should also make findings with respect to visitation between the ward and his or her siblings, if any.19

The court should also make findings with regard to child support and medical insurance for the ward.

By issuing specific written findings on the nature of the parental fitness, visitation and support issues, the court may avoid some unnecessary future litigation with regard to these matters. Addressing these issues should also help promote a more stable environment for the child.

“Assented to” petitions

The guardianship of minors form contains a section whereby the parent(s) of the minor can assent to the petition. The signature is not currently required to be notarized.

Where a fundamental right is at issue, the court should make specific findings with regard to the nature of a parent’s assent to the petition. It is of particular concern that parents that may be “unfit” may be assenting to guardianships without fully understanding what it is that they are assenting to. The parent should be given notice of the hearing date and should be required to attend the hearing on the permanent guardianship and testify that the petition was signed freely and voluntarily, that the parent hasn’t taken any drugs or alcohol that may impede his or her ability to understand the petition, that it is fair and reasonable, and that he or she understands that by signing the petition, he or she is giving up their rights to a trial on this matter. If the parent is unable to do this, the guardianship should not proceed as an assented to petition. The record should, at a minimum, reflect the presence or absence of the parent at the hearing.

Summary

Guardianship of minor actions implicate both the fundamental rights of parents and the compelling state interest in protecting children from harm. The current guardianship of minor practice is insufficient to protect these interests.

To protect the parental liberty interest, heightened pleading standards should be required under guardianship actions. The court should also make specific findings with regards to parental fitness, and whether contact with the parent is appropriate.

To protect the welfare of the child, a nisi period should be required to ensure that the guardianship placement is suitable. In cases where DSS is involved, DSS should be joined as a third party to ensure that the child continues to receive needed services and to promote the success of the placement.

Endnotes

1.  Virginia G. Weisz & Barbara Kaban, Protecting Children: A Study of the Nature and Management of Guardianship of Minor Cases in Massachusetts Probate and Family Court, 5 (Aug. 2008).

2.  Opinion of the Justices, 427 Mass. 1201, 1203 (1998).

3.  See Guardianship of Clyde, 44 Mass. App. Ct. 767, 773 (1998).

4.  Blixt v. Blixt, 437 Mass. 649, 665-66 (2002)

5.  Id. at 666.

6.  Id.

7.  Weisz & Kaban, supra note 1, at 13.

8.  Weisz & Kaban, supra note 1, at 22.

9.  D. Gout, K. Monahan, T. Richards & A. St. Onge, Muskie School of Public Service (Portland, ME), Massachusetts Court Improvement Program Reassessment, 43-44 (Feb. 2006) (cited in Virginia G. Weisz &Barbara Kaban, Protecting Children: A Study of the Nature and Management of Guardianship of Minor Cases in Massachusetts Probate and Family Court, 22 (Aug. 2008)).

10.  Weisz & Kaban, supra note 1, at 26.

11.  Weisz & Kaban, supra note 1, at 23.

12.  Weisz & Kaban, supra note 1, at 11.

13.  Weisz & Kaban, supra note 1, at 11.

14.  Weisz & Kaban, supra note 1, at 14.

15.  See Petition of Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 589 (1981) (parental unfitness standard remains the same whether applied in parental rights termination, care and protection, or guardianship of minor actions).

16.  Id.; See also Adoption of Gillian, 63 Mass. App. Ct. 398, 405-06 (2005)(discussion of the relationship between termination of parental rights and permanent guardianship).

17.  See Bezio v. Patenaude, 381 Mass. 563, 579 (1980).

18.  Custody of a Minor, 22 Mass. App. Ct. 91, 93-94 (1986).

19.  See Care and Protection of Three Minor, 392 Mass. 704, 717-18 (1984).

 

Sollins, Amy bw.jpg Amy T. Sollins is an associate at Legasey & Niarchos PC, where she concentrates her practice in family and probate law litigation. She is currently serving on the Massachusetts Bar Association Family Law Section Council.  

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