Massachusetts State House.
Policy Library

Expanding Access to Justice: Right to Counsel Amicus Brief

December 11, 2014

The BBA is committed to facilitating access to justice.  Of late, much of our discussion on this topic has focused on Investing in Justice, the report of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, and its recommendation for an additional $30 million in civil legal aid funding to help cover the deficit in legal aid services for those in need.  However, this week we are pleased to report on an amicus brief we joined.

Filed yesterday, in the case of In re Guardianship of V.V., the amicus brief argues for a right to counsel for indigent parents of a minor child in private guardianship actions where someone other than the parent seeks to have him or herself appointed by the court as the child’s guardian.  In the case at hand, a 19-year-old self-represented mother, lost custody of her one-year-old son to her grandmother, who had counsel.  The child has since been returned to his mother, so the underlying case is moot, but the Supreme Judicial Court has requested amicus briefs on the right-to-counsel issue.

As the brief notes, this case reflects a gap in counsel rights.  Currently, indigent parents have a right to counsel in other guardianship proceedings, such as those between an individual and the Department of Children and Families – a legal proceeding with the “same fundamental parenting issue at stake”: the potential loss of child custody to a non-parent.  In addition, the brief argues that appointment of counsel is required under due process and equal-protection rights granted in the Massachusetts Constitution, promotes a sound child welfare system, and follows pre-existing national and state policy.

Specifically, the circumstances of this case meet the three-part analysis required for appointment of counsel in Massachusetts, which asks a court to consider: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used; and (3) the Government’s interest.  The private interest here is that of a parent’s relationship with her child, an interest which has been deemed fundamental in Massachusetts case law.

There is a significant risk of erroneous deprivation of this interest due to the imbalance of power, as explained in the BBA’s Gideon’s New Trumpet report from 2008, because the parent faces a potential loss of custody and a represented opponent.

Finally, although the Commonwealth is not a party in these proceedings, the state still plays a role through the Department of Children and Families (DCF), which frequently refers potential guardians to Probate and Family Court to prevent the agency from having to file a Care and Protection case in Juvenile Court and also advises potential guardians to seek guardianships.

In addition, the brief explains how failure to provide counsel violates constitutional equal protection rights.  It compares private guardianship cases with Care and Protection proceedings, noting that they are nearly identical in many facets, except that both state and federal law provide parents with numerous procedural protections in in the latter.  The brief goes on to state that there is no legitimate or compelling government interest that can justify this differential treatment.

Finally, the brief examines policy aspects of the right to counsel.  It demonstrates that providing a right to counsel in private guardianship cases would be good for the justice and child welfare systems, noting that judges surveyed in Investing in Justice witnessed problems due to lack of representations and observed the problem worsening.  It also prospectively examines the process for implementing the right to counsel, warning about a potential for unknowing waiver of substantive rights by vulnerable parents. The brief recommends a “Targeted Representation” approach as set forth by the BBA’s Task Force on Civil Right to Counsel in both Gideon’s New Trumpet and The Importance of Representation in Eviction Cases & Homelessness Prevention, whereby the Court should recognize a right on a case-by-case basis, and ensure that a parent’s decision on whether to retain counsel is voluntary and informed.

We are proud to be a part of this brief and this effort to improve access to justice for parents in these cases and applaud the drafters for all of their hard work to make this brief a reality.  We look forward to its upcoming review by the justices of the SJC on January 5, 2015, and hope they reach the same conclusions explained here.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association