AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings MASSACHUSETTS

Transcription

1 AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings MASSACHUSETTS Copyright 2016 American Bar Associaton All rights reserved. American Bar Associaton Standing Commitee on Legal Aid and Indigent Defendants 321 N. Clark Street Chicago, IL Phone: ; FAX: htp:// The materials herein may be reproduced, in whole or in part, provided that such use is for informatonal, noncommercial purposes only and any copy of the materials or porton thereof acknowledges original publicaton by the American Bar Associaton and includes the ttle of the publicaton, the name of the author, and the legend Copyright 2016 American Bar Associaton. Reprinted by permission. Requests to reproduce materials in any other manner should be addressed to: Copyrights and Contracts Department, American Bar Associaton, 321 N. Clark Street, Chicago, IL 60610; Phone: ; FAX: ; i

2 MASSACHUSETTS Table of Contents Preface...1 Law Addressing Authorizaton or Requirement to Appoint Counsel in Specifc Types of Civil Proceedings 2 1. SHELTER...2 Federal Statutes and Court Decisions Interpretng Statutes SUSTENANCE...2 Federal Statutes and Court Decisions Interpretng Statutes...2 State Court Decisions Addressing Due Process or Equal Protecton SAFETY AND/OR HEALTH...3 A. Domestc Violence Protecton Order Proceedings...3 B. Conservatorship, Adult Guardianship, or Adult Protectve Proceedings...3 State Statutes and Court Decisions Interpretng Statutes...3 C. Civil Commitment or Involuntary Mental Health Proceedings...5 State Statutes and Court Decisions Interpretng Statutes...5 D. Sex Ofender Proceedings...8 State Statutes and Court Decisions Interpretng Statutes...8 E. Involuntary Quarantne, Inoculaton, or Sterilizaton Proceedings...9 State Statutes and Court Decisions Interpretng Statutes CHILD CUSTODY...10 A. Appointment of Counsel for Parent State-Initated Proceedings...10 State Statutes and Court Decisions Interpretng Statutes...10 Federal Statutes and Court Decisions Interpretng Statutes...10 State Court Decisions Addressing Due Process or Equal Protecton...11 B. Appointment of Counsel for Parent Privately Initated Proceedings...13 State Court Decisions Addressing Due Process or Equal Protecton...13 C. Appointment of Counsel for Child State-Inittated Proceedings...15 State Statutes and Court Decisions Interpretng Statutes...15 Federal Statutes and Court Decisions Interpretng Statutes...17 D. Appointment of Counsel for Child Privately Initated Proceedings...17 State Statutes and Court Decisions Interpretng Statutes...18 State Court Decisions Addressing Due Process or Equal Protecton MISCELLANEOUS...19 A. Civil Contempt Proceedings...19 B. Paternity Proceedings...19 State Statutes and Court Decisions Interpretng Statutes...19 C. Proceedings for Judicial Bypass of Parental Consent for Minor to Obtain an Aborton...19 State Statutes and Court Decisions Interpretng Statutes...20 State Court Rules and Court Decisions Interpretng Court Rules...20 D. Proceedings Involving Claims by and Against Prisoners...21 State Court Decisions Addressing Due Process or Equal Protecton...21 E. Marriage Dissoluton/Divorce Proceedings...21 ii

3 State Court Decisions Addressing Due Process or Equal Protecton...21 F. Juvenile Delinquency, Status Ofenses, or Child in Need of Services Proceedings...21 State Statutes and Court Decisions Interpretng Statutes...21 Law Addressing Authorizaton or Requirement to Appoint Counsel in Civil Proceedings Generally...23 Federal Statutes and Court Decisions Interpretng Statutes...23 State Court Decisions Addressing Court s Rulemaking Authority...23 iii

4 Preface Important Informaton to Read Before Using This Directory The ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings (Directory) is a compilaton of existng statutory provisions, case law, and court rules requiring or permitng judges to appoint counsel for civil litgants. The Directory consists of 51 detailed research reports one for each state plus D.C. that present informaton organized by types of civil proceedings. Prior to using the Directory, please read the Introducton, at the Directory s home page, for the reasons behind the development of the Directory, the various sources of authority from which judicial powers to appoint counsel in civil proceedings may derive, and the structure used to organize informaton within each of the research reports. Terms of Use/Disclaimers This Directory should not be construed as providing legal advice and the ABA makes no warrantes concerning the informaton contained therein, which has been updated to refect the law through February The Directory does not seek to address all conceivable subsidiary issues in each jurisdicton, but some such issues were researched and addressed, including: notfcaton of right to counsel; standards for waiver of right to counsel; standard of review on appeal for improper denial of counsel at trial; whether counsel for a child means a client-directed atorney or a best interests atorney/atorney ad litem; and federal court decisions fnding a right to counsel. Similarly, the research did not exhaustvely identfy all law regarding the issue of compensaton of appointed counsel in each jurisdicton, though discussion of such law does appear within some of the reports. The Directory atempts to identfy as unpublished any court decisions not published within an ofcial or unofcial case reporter. Discussion of unpublished cases appears only for those jurisdictons where court rules currently permit their citaton in briefs or opinions. Limitatons on the use of unpublished opinions vary by jurisdicton (e.g., whether unpublished cases have value as precedent), and such limits were not exhaustvely researched. Users should conduct independent, jurisdicton-specifc research both to confrm whether a case is published and to familiarize themselves with all rules relatng to the citaton and use of unpublished or unreported cases. Acknowledgments This Directory was a mult-year project of the ABA s Standing Commitee on Legal Aid and Indigent Defendants (SCLAID). We are indebted to our partner in this project, the Natonal Coaliton for a Civil Right to Counsel (NCCRC), for sharing the body of research that was adapted to form the Directory s reports. The Acknowledgments, at the Directory s home page, details additonal specifc contributons of the many individuals involved in this project. 1

5 Law Addressing Authorizaton or Requirement to Appoint Counsel in Specifc Types of Civil Proceedings 1. SHELTER Federal Statutes and Court Decisions Interpretng Statutes The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968, provides that [a]n aggrieved person may commence a civil acton in an appropriate United States district court or State court. 42 U.S.C (a)(1)(a). Further, [u]pon applicaton by a person alleging a discriminatory housing practce or a person against whom such a practce is alleged, the court may-- (1) appoint an atorney for such person. 42 U.S.C. 3613(b). 2. SUSTENANCE Federal Statutes and Court Decisions Interpretng Statutes Title VII of the Civil Rights Act of 1964 prohibits employment discriminaton. While nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has specifed that state courts have concurrent jurisdicton with federal courts for Title VII claims. Yellow Freight System Inc. v. Donnelly, 494 U.S. 820, 826 (1990). Title VII provides that [u]pon applicaton by the complainant and in such circumstances as the court may deem just, the court may appoint an atorney for such complainant. 42 U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Court of Appeals observed: Title VII's provision for atorney appointment was not included simply as an aferthought; it is an important part of Title VII's remedial scheme, and therefore courts have an obligaton to consider requests for appointment with care. In actng on such requests, courts must remain mindful that appointment of an atorney may be essental for a plaintf to fulfll the role of a private atorney general, vindicatng a policy of the highest priority. Once the plaintf has triggered the atorney appointment provision, courts must give serious consideraton to the plaintf's request such discretonary choices are not lef to a court's inclinaton, but to its judgment; and its judgment is to be guided by sound legal principles. Furthermore, in exercising this discreton, the court should clearly indicate its dispositon of the request for appointment and its basis for that dispositon. 2

6 737 F.2d 1173, (D.C. Cir. 1984). State Court Decisions Addressing Due Process or Equal Protecton The Massachusets Supreme Judicial Court held in Aiello v. Commissioner of Public Welfare, 260 N.E.2d 662 (Mass. 1970), that there is no right to counsel under the Fourteenth Amendment of the U.S. Consttuton in welfare eligibility determinaton hearings, and reversed a trial court decision that had ordered the state to pay the atorney s fees for the applicant. The court noted that the Supreme Court in Goldberg v. Kelly, 397 U.S. 254 (1970), had stopped short of requiring counsel at benefts terminaton hearings, and that it is elementary that the Consttuton does not provide a requirement that the government provide lawyers for litgants in civil maters. Those who suggest the desirability of an American Ombudsman advocate that this be achieved by statute, not because the Consttuton ordains it. Aiello, 260 N.E.2d at 663 (internal citaton omited). 3. SAFETY AND/OR HEALTH A. Domestc Violence Protecton Order Proceedings No law could be located regarding the appointment of counsel for indigent litgants in domestc violence protecton order proceedings. B. Conservatorship, Adult Guardianship, or Adult Protectve Proceedings State Statutes and Court Decisions Interpretng Statutes Pursuant to the Massachusets Uniform Probate Code, afer fling a petton for appointment of a guardian, conservator or other protectve order, if the ward, incapacitated person, or person to be protected or someone on his or her behalf requests appointment of counsel, or if the court determines that the interests of the ward, incapacitated person, or person to be protected are or may be inadequately represented, the court shall appoint an atorney to represent the person, giving consideraton to the choice of the person if 14 or more years of age. M.G.L. ch. 190B, 5-106(a). If the ward, incapacitated person, or person to be protected has adequate resources, his counsel shall be compensated from the estate unless the court orders that the counsel shall be paid by the pettoner. Id. If, on the other hand, the ward, incapacitated person, or person to be protected is indigent, then their counsel shall be compensated by the commonwealth or the pettoner as the court may order. Id. 1 M.G.L. ch. 1 Prior to 2011 MA S.B. 704, it simply said counsel shall be compensated by the commonwealth. 3

7 190B, 5-311(c) specifes that the court is to follow the same procedures for terminaton of guardianship as for establishment, so presumably the right to counsel applies as well. Further, [n]o guardian, temporary guardian, or special guardian of a minor or incapacitated person shall have the authority to consent to treatment for which substtuted judgment determinaton may be required. M.G.L. ch. 190B, 5-306A(a). However, a court may hold a hearing to determine whether to authorize a treatment plan based on the substtuted judgment of the court. Id. To authorize treatment, the court must fnd that the person, if not incapacitated, would consent to the treatment and must approve, authorize, and endorse the treatment plan. Id. In such hearings, indigent minors or indigent incapacitated persons have the mandatory right to court-appointed counsel in any hearing in which the court shall consider a treatment plan. Id. Additonally, the court shall inform of the right to counsel and shall appoint counsel for the parents, guardians, or custodians of the child at all hearings in which a court is appointng a guardian for a minor. See M.G.L. ch. 119, 29 (pointng to M.G.L. ch. 190B, 5-201, and 5-206). 2 If an elderly person is believed to be sufering from abuse and lacks the capacity to consent to the provision of protectve service, the Department of Elder Afairs or its designated agency may petton the court for a fnding that the elderly person is incapable of consentng to protectve services. M.G.L. ch. 19A, 20(a). Upon receipt of such a petton, the court must hold a hearing within fourteen days, of which the elderly person is enttled to at least fve days notce. Id. At such a hearing the elderly person has the right to be represented by counsel and if the elderly person is indigent, the court shall appoint counsel to represent him or her, and shall appoint a guardian ad litem to represent the interests of the elderly person if the elder lacks the capacity to retain counsel or to waive the right to counsel. Id. (emphasis added). In cases of emergency, the court may hold a hearing short of the fourteen-day period provided for in subsecton (a). Id., 20(b). If the elderly person who is the subject of the petton is indigent, the court shall appoint counsel to represent such elderly person. Id. (emphasis added). 2 However, the Supreme Court of Massachusets has held that a father who did not appear in court for a preliminary hearing regarding his appeal from an order terminatng his right to consent to the state-initated adopton of his child was not enttled to appointed counsel under this statute. [B]efore a consttutonal right to counsel, or a statutory right to counsel under G. L. c. 119, 29, ataches, a parent must frst come forward and appear, or in some way indicate a desire to be heard or to contest the petton, and must demonstrate his or her indigence. In re Adopton of Holly, 432 Mass. 680, (2000). The court also explained that S.J.C. Rule 3:10(2) requires that a party make some appearance before the court in order to be advised of the right to counsel. Thus, when a parent has made no appearance at all, counsel need not be appointed. Id. at 689; 44A Mass. Prac., Juvenile Law 3.18 (2d ed.) 4

8 Similarly, if the Disabled Persons Protecton Commission, the general counsel, the department of mental health, or the department of public health, has reasonable cause to believe that a disabled person is sufering from abuse and lacks the capacity to consent to the provision of protectve services, the Commission or other listed person may petton the court for a fnding that the disabled person is incapable of consentng to the provision of protectve services. M.G.L. ch. 19C, 7(a). The court shall hold a hearing within fourteen days, and the disabled person shall be provided at least fve days notce in advance of the hearing. If the disabled person who is the subject of the petton is indigent, the court shall appoint counsel to represent such disabled person. Id. (emphasis added). A guardian ad litem shall be appointed if the court determines that the disabled person lacks the capacity to waive the right to counsel. Id. In the event of an emergency petton, the court shall provide the disabled person at least twenty-four hours notce prior to the hearing on the emergency petton unless the court fnds that immediate and reasonable foreseeable physical harm to the individual or others will result from the twenty-four hour delay and that reasonable atempts have been made to give such notce. Id. 7(b). It should be noted that secton 7(b) regarding emergency pettons involving the abuse of disabled persons does not contain the same provision regarding the appointment of counsel for indigent disabled persons that appears in the corollary statute regarding the abuse of elderly persons. Given the similarity between the two statutes and the mandatory provision for the appointment of counsel in chapter 19A, 20(b), it is possible that the omission is merely an oversight, or perhaps that the right to the appointment of counsel in chapter 19C, 7(a) is meant to carry over into the emergency hearing context. C. Civil Commitment or Involuntary Mental Health Proceedings State Statutes and Court Decisions Interpretng Statutes Physicians, certain qualifed mental health professionals, and, in some cases, police ofcers, may restrain or authorize the restraint of any person who, afer examinaton, is believed to pose a likely risk of serious harm by reason of mental illness in the absence of such hospitalizaton. M.G.L. ch. 123, 12(a). Such restraint shall last for a period of three days. Id. An examinaton is not required when restraint is sought by a police ofcer, and the requirement may be dispensed with if it is not possible because of the emergency nature of the case and the person refuses to consent to such examinaton. Id. Upon admission of the person to a designated facility, the facility shall inform the person that it shall, upon such person s request, notfy the commitee for public counsel services of the name and locaton of the person admited. Id. 12(b). The commitee for public counsel services shall forthwith appoint an atorney who shall meet with the person. If the appointed atorney determines that the person voluntarily and knowingly waives the right to be represented, or is presently represented or will 5

9 be represented by another atorney, the appointed atorney shall so notfy said commitee for public counsel services, which shall withdraw the appointment. Id. (emphasis added). Any person may make applicaton for a three day commitment to a facility of a mentally ill person whom the failure to confne would cause a likelihood of serious harm. Id. 12(e). The court shall appoint counsel to represent said person. Id. (emphasis added). Indigent persons shall be appointed counsel in commitment or retenton hearings or in hearings for medical treatment, including antpsychotc medicaton treatment. M.G.L. ch. 123, 5 (mental health ttle). See also M.G.L. ch. 123, 8B(d) (Afer hearing upon petton regarding antpsychotc medicaton treatment, court shall not authorize medical treatment unless, among other requirements, it determines, afer careful inquiry and upon representatons of counsel, that there are not contested issues of fact[.] ) Any person may make writen applicaton to a justce of a superior court at any tme and in any county, statng that he believes a person being retained in a facility afer having been civilly commited should no longer be retained or that the person should no longer be given medical treatment. M.G.L. ch. 123, 9(b). The justce shall appoint an atorney to represent any applicant whom he fnds to be indigent. Id. M.G.L. ch. 123, 33 seems to suggest that if civil commitment proceedings are commenced against a person but do not result in that persons commitment then counsel shall be compensated: Necessary expenses atending the apprehension, examinaton or hearing of any person sought to be commited pursuant to this chapter but not so commited shall be so presented, examined and audited if they have been allowed in the discreton of the judge and certfed by him. All expenses certfed, examined and audited as provided in this secton shall be paid by the commonwealth. The Department of Mental Health has an afrmatve obligaton to facilitate access to legal counsel for its residents or for persons receiving its services, although the secton does not specify any state contributons toward representaton: Any program or facility, or part thereof, operated by, licensed by or contractng with the department shall ensure reasonable access by atorneys and legal advocates of the Massachusets Mental Health Protecton and Advocacy Project, the Mental Health Legal Advisors Commitee, the commitee for public counsel services and any other legal service agencies funded by the Massachusets Legal Assistance Corporaton under the provisions of chapter 221A, to provide free legal services. Upon admission, and upon request at any tme thereafer, persons shall be provided with the name, address and telephone number of such organizatons and shall be provided with reasonable assistance in contactng and receiving visits or telephone calls from atorneys or legal advocates from such organizatons[.] 6

10 M.G.L.A A person who is a resident in a facility of the department of mental health or in the Bridgewater state hospital and who has funds held in trust for him by the department of mental health or the department of correcton, shall contribute toward the cost of any counsel appointed... to provide representaton in proceedings under this chapter[.] M.G.L A. The amount to be contributed shall not exceed fve hundred dollars unless a larger contributon has been ordered by a court pursuant to sectons two and fve of chapter two hundred and eleven D. Whenever the department of correcton or the department of mental health holds funds in trust for such a person, the department shall turn over such funds, but not exceeding fve hundred dollars, to the treasurer to be credited toward the cost of providing such counsel. M.G.L A. If it is proposed to transfer a person with an intellectual disability from one residental facility to another, the person shall have the right to counsel in adjudicatory hearings regarding the transfer, but the statute does not state whether counsel will be appointed in the event the person is unable to retain counsel. M.G.L. ch. 123B, 3. Police ofcers, physicians, spouses, blood relatves, guardians, and court ofcials may petton any district court or any juvenile court department for an order of commitment of a person believed to be an alcoholic or substance abuser, as defned under Massachusets General Law ch. 123, 35. Upon receiving the petton, the court shall schedule a hearing and cause the individual named to be served with process. M.G.L. ch. 123, 35. At such hearing, the person has the right to be represented by legal counsel. Id. If the court fnds the person indigent, it shall immediately appoint counsel. The court shall order examinaton by a qualifed physician, a qualifed psychologist or a social worker. Id. (emphasis added). The individual may be commited for a period not to exceed ninety days if the person is found to be an alcoholic or substance abuser based on competent medical testmony and there is a likelihood of serious harm as a result of the person s addicton. Id. 3 M.G.L. ch. 120, 17 provides that when the Department of Youth Services determines that a person previously commited to the Department as a delinquent child who is to be discharged from the Department s control at the age of eighteen would be physically dangerous to the public, the Department shall make an order directng that the person remain subject to its control beyond the period of confnement and shall make applicaton to the commitng court for a review of the order. The statute provides that courts reviewing the applicaton and orders of the Department shall appoint counsel to represent the person 3 The cited statute's wording is changing, efectve April 24, However, none of the herein cited quotes or informaton appears to be changing. 7

11 whose liberty is at stake [w]hen he is unable to provide his own counsel. Id. 18 (emphasis added). However, this statute was found to be substantvely unconsttutonal by the state high court in Kenniston v. Department of Youth Services, 900 N.E.2d 852, 860 (Mass. 2009) (fnding that concept of juvenile being physically dangerous was unconsttutonally vague, and statute did not require specifc degree of certainty that an individual is dangerous ; court also observes that statute does not provide procedural due process either). D. Sex Ofender Proceedings State Statutes and Court Decisions Interpretng Statutes Massachusets provides a process for the district atorney or atorney general to petton the court for a trial by jury to have a person declared a sexually dangerous person and commited for treatment. M.G.L. ch. 123A, 14(a). Although based on the criminal liability for sexually based ofenses, involuntary commitment proceedings under this statute are civil proceedings requiring due process protectons because the person s liberty is at stake. Commonwealth v. Dresser, 883 N.E.2d 306, (Mass. Ct. App. 2008) (explaining that, Certain rights ordinarily aforded criminal defendants have been extended to those civilly charged with being sexually dangerous persons, e.g., the right to counsel, the right to have counsel appointed if the defendant is indigent ). Consequently, the person named in the petton shall be enttled to the assistance of counsel and shall be enttled to have counsel appointed if he is indigent. M.G.L. ch. 123A, 14(b). Secton 12(d)(1) of chapter 123A provides the right to counsel at the probable cause hearing for the civil commitment of prisoners or youths in the department of youth services, who are alleged to be sexually dangerous. Although the statute providing the right to counsel at the probable cause hearing does not expressly state that such counsel will be appointed for indigent persons, it is more than likely the case. As for the trial on the petton, the person named shall be enttled to the assistance of counsel and shall be enttled to have counsel appointed if he is indigent in accordance with chapter 211D, secton 2. M.G.L. ch. 123A, 14(b) (emphasis added). Counsel also will be appointed for indigent persons under a related statute that permits the temporary commitment of prisoners or youths prior to the trial referenced above. Id. 13(a), (c). Upon a showing of probable cause that the person named in the petton is a sexually dangerous person, the prisoner or youth shall be commited to a treatment center for a period not exceeding 60 days for the purpose of examinaton and diagnosis. Id. 13(a). During such examinaton, the individual is also enttled to retain a psychologist or psychiatrist, which shall be provided at public expense if the person is indigent. Id. 13(d). 8

12 Once persons are commited to a treatment center pursuant to chapter 123A, they have the right to fle a petton for examinaton and discharge once every twelve months. Id. 9 (petton may be fled by commited person, his parents, spouse, issue, next of kin, or any friend, including the department of correcton). Upon the fling of the petton for examinaton and discharge, the person is enttled to a speedy hearing, and counsel shall be appointed upon the moton of the person or upon the court s own moton. Id. Sex ofenders in Massachusets may be declared sexually violent predators, and the designaton impacts the informaton disseminated to the public and the ofender s registraton requirements. The sex ofender registry board, afer classifying a sex ofender under a level 3 classifcaton (most dangerous/restrictve), shall transmit a report to the sentencing court explaining the basis of the recommendaton to have the ofender declared a sexually violent predator. M.G.L. ch. 6, 178K(2)(c). The report is not subject to judicial review, but the court shall provide the ofender the opportunity to be heard and inform the ofender of the right to have counsel appointed if indigent. Id. The court shall then determine, by a preponderance of the evidence, whether the sex ofender is a sexually violent predator. Id. The determinaton does not afect the classifcaton of the ofender, but the disseminaton of informaton about the ofender to the public shall include the sexually violent predator designaton. Id. Indigent sex ofenders, seeking judicial review of the sex ofender registry board s fnal classifcaton and registraton requirements, are enttled to have court appointed counsel represent them if they request appointment from the court. M.G.L. ch. 6, 178M. Indigent sex ofenders are also enttled to have counsel appointed to represent them in evidentary hearings before the sex ofender registry board if the ofender submits to the board documentary evidence pertaining to the ofender s risk of recidivism, dangerousness to the public, and duty to register, and then pettons the board for a hearing to challenge the ofender s classifcaton and registraton duty. Id. 178L(1)(a) (ofenders in custody), (c) (ofenders not in custody). Indigent ofenders may also apply for and the board may grant the payment of fees for an expert witness where the board intends to rely on expert testmony or reports. Id. While Massachusets law provides a right to counsel in classifcaton hearings, the high court in Doe, Sex Ofender Registry Board No v. Sex Ofender Registry Board, 35 N.E.3d 698, 701 (Mass. 2015), held that [A]t a reclassifcaton hearing, the regulatons do not enttle him to appointed counsel if he is indigent 9

13 E. Involuntary Quarantne, Inoculaton, or Sterilizaton Proceedings State Statutes and Court Decisions Interpretng Statutes Persons aficted with actve tuberculosis may be commited to prolonged hospitalizaton at a tuberculosis treatment center. M.G.L. ch. 111, 94C. In nonemergency situatons, the court shall give the individual notce of his right to hearing. Id. 94C(1). If a hearing is requested and it is determined that the person cannot be present at the hearing because he is contagious, he shall be given notce of his inability to be present and of his right to have counsel and witnesses present at the hearing. Id. In the later case, the court shall appoint legal counsel to represent the person s interests at the hearing if he does not have his own legal counsel. Id. 4. CHILD CUSTODY A. Appointment of Counsel for Parent State-Initated Proceedings State Statutes and Court Decisions Interpretng Statutes Massachusets General Laws provides that the court shall inform of the right to counsel and shall appoint counsel for the parent, guardian, or custodian of a child at all hearings whenever the Department of Children and Families or a licensed child placement agency is a party to child custody proceedings if such person is unable to retain counsel. M.G.L. ch. 119, 29. Such hearings include proceedings in which a court is appointng a guardian for a minor. See M.G.L. ch. 119, 29 (pointng to M.G.L. ch. 190B, 5-201, and 5-206). 4 The Massachusets Supreme Judicial Court has held that, pursuant to M.G.L. ch. 119, 29, indigent parents are enttled to court-appointed counsel at the dispositonal phase of a CHINS proceeding if it is possible that custody of the child will be awarded to the Department of Social Services because the Department is a party. In re Hilary, 880 N.E.2d 343, 345, 346 (Mass. 2008) ( [I]f the child is subject to a permanency plan, both the parent and child are enttled to counsel and, if either the parent or child is indigent, counsel will be appointed. ). If the judge is 4 However, the Massachusets Supreme Judicial Court has held that a father who did not appear in court for a preliminary hearing regarding his appeal from an order terminatng his right to consent to the state-initated adopton of his child was not enttled to appointed counsel under this statute. Before a consttutonal right to counsel, or a statutory right to counsel under G. L. c. 119, 29, ataches, a parent must frst come forward and appear, or in some way indicate a desire to be heard or to contest the petton, and must demonstrate his indigence. In re Adopton of Holly, 432 Mass. 680, (2000). The court also explained that S.J.C. Rule 3:10(2) requires that a party make some appearance before the court in order to be advised of the right to counsel. Thus, when a parent has made no appearance at all, counsel need not be appointed. Id.; 44A Mass. Prac., Juvenile Law 3.18 (2d ed.) 10

14 not considering removing the child from the custody of the parents, however, counsel need not be appointed for the parents. Id. at 352 n.19. Federal Statutes and Court Decisions Interpretng Statutes The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 5 provides: In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or terminaton proceeding.where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notfy the Secretary upon appointment of counsel, and the Secretary, upon certfcaton of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to secton 13 of this ttle. 25 U.S.C. 1912(b). State Court Decisions Addressing Due Process or Equal Protecton The Massachusets Supreme Judicial Court established a consttutonal right to counsel for indigent parents contestng a petton fled by the state to dispense with parental consent to adopton. Dept. of Public Welfare v. J.K.B., 379 Mass. 1 (1979) (hereinafer J.K.B. ). The court established a right to counsel under the procedural due process clause of Art. 10 of the Massachusets Declaraton of Rights. Id. at 3. See also In re Care and Protecton of Ivan, 786 N.E.2d 1 (Mass. App. Ct. 2003) (citng to J.K.B. and holding that parent s right to counsel was not violated due to court s refusal to allow non-atorney advocates to represent him at a hearing, for such a right refers only to licensed atorneys). In grantng a right to counsel to indigents in these state-initated contested adopton cases, the court considered the fact that such a case may well involve complex questons of fact and law, and require the marshaling and rebutng of sophistcated expert testmony. 5 While the ICWA does not appear to have a defnitve statement about jurisdicton, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additonally, 25 U.S.C. 1912(b) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or terminaton of parental rights to, an Indian child shall notfy the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of interventon. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 11

15 J.K.B., 379 Mass. at 4. 6 The presence of counsel, the court determined, would assist litgants in adequately addressing these questons and enable them to present a proper defense to charges of parental unftness. The court added that virtually every other court which has faced [the issue of whether to appoint counsel to indigent parents in custody proceedings] has reached the same conclusion. Id. at 4-5. The court also artculated the idea that the loss of a child may be as onerous a penalty as the deprivaton of the parents freedom, and the interest of parents in their relatonship with their children has been deemed fundamental. Id. (internal citatons omited). 7 The court further stated: The second queston reported asks if atorneys who are appointed in G.L. c. 210, s 3, proceedings are enttled to compensaton. The department has taken the positon that if appointed counsel are required in these cases, the courts have the power to order compensaton for them. This is entrely consistent with our prior cases, indicatng that (1) a judge has the power to appoint and order compensaton for an atorney for a minor seeking an aborton, Baird v. Atorney Gen., 371 Mass. 741, (1977); (2) a judge has the power to contract for expenses reasonably necessary for the operaton of his court, O Coin s, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 509 (1972); and (3) atorneys appointed to represent indigents are enttled to compensaton even in the absence of explicit statutory authorizaton, Abodeely v. County of Worcester, 352 Mass. 719, (1967). The answer to the second queston is that appointed atorneys are enttled to be paid. J.K.B., 379 Mass. at 6. Notably, however, in a case preceding J.K.B, the court had held that the Fourteenth Amendment of the U.S. Consttuton did not require the payment of legal fees for an indigent litgant at a welfare hearing. Aiello v. Commissioner of Public Welfare, 260 N.E.2d 662 (Mass. 1970). In Guardianship of V.V., a case establishing a state consttutonal due process right to counsel in private proceedings to establish guardianships of their children, the court commented: 6 While the J.K.B. court did not explicitly cite Mathews as the source of its analysis, the court did consider and balance against one another the three factors in its procedural due process analysis. See J.K.B., 418 Mass. at 3-5. Massachusets later adopted the three-factor test formally. Commonwealth v. Brown, 426 Mass. 475, 482 (1998). 7 Indeed, Massachusets courts have been partcularly protectve of the parent-child relatonship, statng that an intrusion into that relatonship, even a temporary one, is substantal. In the Mater of Angela, 445 Mass. 55, 62 (2005). According to the U.S. Supreme Court, the state interest in protectng and fostering familial relatonships has historically been of paramount importance and established beyond debate as an enduring American traditon. Wisconsin v. Yoder, 406 U.S. 205, 232 (1972). 12

16 [A]n indigent parent whose child is the subject of a guardianship proceeding is enttled to, and must be furnished with, counsel in the same manner as an indigent parent whose parental rights are at stake in a terminaton proceeding or, similarly, in a care and protecton proceeding. [T]here is every reason, given the fundamental rights that are at stake, why an indigent parent is enttled to the beneft of counsel when someone other than the parent, whether it be the State or a private entty or individual, seeks to displace the parent and assume the primary rights and responsibilites for the child, whether it be in a care and protecton proceeding, a terminaton proceeding, an adopton case, or a guardianship proceeding. 24 N.E.3d 1022, (Mass. 2015). Notably, prior to this case, the Massachusets high court had never found a right to counsel in care and protecton proceedings, thus making this case stand for that propositon. B. Appointment of Counsel for Parent Privately Initated Proceedings State Court Decisions Addressing Due Process or Equal Protecton In Adopton of Meaghan, 961 N.E.2d 110 (Mass. 2012), the Massachusets Supreme Judicial Court extended Dept. of Public Welfare v. J.K.B., 379 Mass. 1 (1979) (hereinafer J.K.B. ), discussed supra Part 4.A, to privately initated adopton proceedings that are contested. The Meaghan court held that the parents were enttled to counsel in private adoptons as a mater of due process and equal protecton, relying in part on J.K.B. (meaning, presumably, that the right is based on the state consttuton). The court commented: "Where the pettoner is a private party, the same fundamental, consttutonally protected interests are at stake, and the cost of erroneously terminatng the parent's rights remains too high to require an indigent parent to risk it without counsel." Id. at 113. In Guardianship of V.V., 24 N.E.3d 1022 (Mass. 2015), the Supreme Judicial Court of Massachusets unanimously ruled that parents have a state consttutonal due process right to counsel in proceedings to establish guardianships of their children (the court hinted at an equal protecton ratonale too, but only due process was explicitly mentoned). The case involved a mother who was not given counsel at a proceeding where she consented to guardianship (Massachusets statutory law provides a right to counsel for guardianships initated by the state but not those done privately). She later sought to revoke it, and although the guardianship was eventually revoked and the child returned to the mother, the high court found that the right to counsel issue was stll of substantal public importance. 13

17 Following up on its prior decisions in J.K.B. and In re Meaghan, the court stated that the parental rights at stake in a guardianship proceeding are no less compelling than in a terminaton case because the guardian s rights completely displaces those of the parent, and no less compelling when the state is absent. 24 N.E.3d 1022, 1024 (Mass. 2015). It added, "Even if the guardianship lasts for only a brief period of tme, the displacement impacts the parent s liberty interests While it is true that the parent's underlying parental rights are not forever terminated as a result of the guardianship, they are severely circumscribed, becoming subsidiary to those of the guardian, for as long as the guardianship remains in efect. Id. It then concluded: [A]n indigent parent whose child is the subject of a guardianship proceeding is enttled to, and must be furnished with, counsel in the same manner as an indigent parent whose parental rights are at stake in a terminaton proceeding or, similarly, in a care and protecton proceeding there is every reason, given the fundamental rights that are at stake, why an indigent parent is enttled to the beneft of counsel when someone other than the parent, whether it be the State or a private entty or individual, seeks to displace the parent and assume the primary rights and responsibilites for the child, whether it be in a care and protecton proceeding, a terminaton proceeding, an adopton case, or a guardianship proceeding. Id. at Notably, prior to this case, the Massachusets high court had never found a right to counsel in care and protecton proceedings. Then, in L.B. v. Chief Justce of the Probate and Family Court, 474 Mass. 231 (Mass. 2016), the Court held in the follow up to V.V. that parents have a due process right to counsel when seeking modifcaton or terminaton of a guardianship of their children, provided that the parent "make a modest yet meaningful preliminary showing that he or she has a colorable case for removal or modifcaton. 8 Id. at 240. As to why counsel is needed for pettons seeking to terminate the guardianship, the Court observed, "It would be incongruous to recognize the signifcance of the parent's rights for due process purposes at the tme those rights are frst displaced, as we did in Guardianship of V.V., but not to do so at the tme the parent seeks to regain them. The deprivaton at the former stage and the contnued deprivaton at the later stage are equally real and signifcant. Id. As to visitaton, the Court commented, "Visitaton, like custody, is at the core of a parent's relatonship with a child; being physically present in a child's life, sharing tme and experiences, and providing personal support are among the most intmate aspects of a parent-child relatonship. For a parent who has lost (or 8 The Court declined to answer whether equal protecton also necessitated the presence of counsel and whether children also have a right to counsel in such proceedings, since neither claim was raised below. Id. at

18 willingly yielded) custody of a child temporarily to a guardian, visitaton can be especially critcal because it provides an opportunity to maintain a physical, emotonal, and psychological bond with the child during the guardianship period, if that is in the child's best interest; and in cases where the parent aspires to regain custody at some point, it provides an opportunity to demonstrate the ability to properly care for the child." Id. at 242. The L.B. Court rejected the suggeston of the chief justce of the probate court that the parent be required to show "substantal and relevant changed circumstances before the right to counsel ataches. This, the Court held, "will set the bar too high for an unrepresented litgant before the right to counsel is triggered. Substantal,' relevant,' material, and signifcant' all suggest that a parent's burden would be to show that circumstances have changed in a legally signifcant manner and to a legally cognizable degree. It would be unusual and potentally unfair to require a litgant unaided by counsel to make that kind of a legal demonstraton before the right to counsel arises. Id. at 241. The Court described the colorable claim approach as modest and not onerous. Id. at 240, 242. The Court also suggested that Id. at 244. The Probate and Family Court can facilitate the process for unrepresented parents by creatng forms that will help the parent to artculate -- in plain, nonlegal terms -- the reasons why he or she believes the guardian should be removed or the visitaton modifed, and the facts on which he or she relies to support that claim. Forms that promote a clear and sufciently 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 atorney if he or she would like one. Finally, the L.B. Court observed that the current procedures do not specify how ofen a parent can seek removal or modifcaton of the guardianship, and " The Probate and Family Court might consider whether it is feasible and wise to create guidelines designed to discourage the fling of unnecessarily frequent pettons. Pettons fled at more frequent intervals than provided by the guidelines presumptvely would not merit the appointment of counsel. Id. at C. Appointment of Counsel for Child State-Inittated Proceedings State Statutes and Court Decisions Interpretng Statutes 15

19 Secton 29 of Chapter 119 of the Massachusets General Laws provides that children have a right to appointed counsel in all of the following types of custody proceedings (and must be informed of the right as well): (1) proceedings involving children who have reached adulthood but are stll the responsibility of the Department of Children and Families under M.G.L. ch. 119, 23(a) (1); 9 (2) the Department of Children and Families applicaton or petton for an order of the probate court grantng responsibility for the child to the Department based on the child s lack of proper guardianship due to death, unavailability, incapacity, or unftness under M.G.L. ch. 119, 23(a)(3); (3) a hearing on a petton brought by any person alleging that the child is being abused or neglected or otherwise requires the care and protecton of the Department of Children and Families, including removal from the home and transfer of custody to the Department under chapter 119, 24 & 26; (4) a determinaton of custody pending a hearing on the merits of any petton brought pursuant to chapter 119, 24. See also ch. 119, 25 (explaining the procedure for such a hearing); (5) court determinatons of the future status of children commited to the responsibility of the Department, including permanency plan hearings under chapter 119, 29B; and (6) appeals of any orders of commitment of children or adjudicatons that the child is in need of care and protecton, including pettons for a review and determinaton of the current needs of a child, which are brought by the child, parent, guardian, or any person appearing on behalf of the child pursuant to chapter 119, 26. M.G.L. ch. 119, 29. Children shall be enttled to the appointment of counsel in proceedings initated by the Department of Children and Families or a licensed child care agency, independent of a petton for adopton, to dispense with the need for consent of any person to the adopton of the child in the care or custody of the department or agency unless the petton is not contested 9 Given that M.G.L. ch. 119, 23(a)(1) only refers to actual children and not children who become adults, it is possible that the legislatve change that occurred to M.G.L. ch. 119, 29 in 2011 accidentally pointed at the wrong provision of 23. Previously it pointed to 23(a)(3). 16

20 by any party. M.G.L. ch. 210, 3(b). See also Balboni v. Balboni, 654 N.E.2d 937, 938 (Mass. Ct. App. 1995) (in divorce proceeding, children must be appointed counsel if they are not able to retain counsel when involvement of the Department of Social Services becomes imminent and judge is considering awarding custody of the children to the Department of Social Services). Federal Statutes and Court Decisions Interpretng Statutes The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state court, 10 provides the following with regard to any removal, placement, or terminaton of parental rights proceeding: The court may, in its discreton, appoint counsel for the child upon a fnding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notfy the Secretary upon appointment of counsel, and the Secretary, upon certfcaton of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to secton 13 of this ttle. 25 U.S.C. 1912(b). The federal Child Abuse Preventon and Treatment Act (CAPTA) provides: A State plan submited under paragraph (1) shall contain a descripton of the actvites that the State will carry out using amounts received under the grant to achieve the objectves of this subchapter, including (B) an assurance in the form of a certfcaton by the Governor of the State that the State has in efect and is enforcing a State law, or has in efect and is operatng a statewide program, relatng to child abuse and neglect that includes-- (xiii) provisions and procedures requiring that in every case involving a victm of child abuse or neglect which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, including training in early childhood, child, and adolescent development, and who may be an atorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings. 10 While the ICWA does not appear to have a defnitve statement about jurisdicton, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additonally, 25 U.S.C. 1912(b) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or terminaton of parental rights to, an Indian child shall notfy the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of interventon. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 17