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