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
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Phone: 312-988-5765; FAX: 312-988-5483
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ABA Directory Of Law Governing Appointment Of Counsel In State Civil Proceedings  Massachusetts Feb 2016
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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...........................................................2
2. SUSTENANCE......................................................................................................................................2
Federal Statutes and Court Decisions Interpretng Statutes...........................................................2
State Court Decisions Addressing Due Process or Equal Protecton...............................................3
3. 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..............................................................9
4. 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.............................................18
5. 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
ABA Directory Of Law Governing Appointment Of Counsel In State Civil Proceedings  Massachusetts Feb 2016
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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
ABA Directory Of Law Governing Appointment Of Counsel In State Civil Proceedings  Massachusetts Feb 2016
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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 2016. 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.
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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. § 3613 (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.
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737 F.2d 1173, 1183-85 (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.”
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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, 5-204 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, 687-688 (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.)
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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
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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[.]
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M.G.L.A. 123 § 23.
“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. 123 § 18A.
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. 123 § 18A.
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, 2016. However, none of the herein cited quotes or
informaton appears to be changing.
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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, 309-10 (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).
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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. 7083 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 …”
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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, 5-204 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, 687-688 (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.)
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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.
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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, 762-763 (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, 723-724 (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).
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[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, 1024-25 (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.
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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 1024-25.
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 243.
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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
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.
Id. at 244.
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
244-245.
C. Appointment of Counsel for Child—State-Inittated Proceedings
State Statutes and Court Decisions Interpretng Statutes
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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).
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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, provides the following with regard to any removal, placement, or terminaton of
parental rights proceeding:
10
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.
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42 U.S.C. § 5106a(b)(2).
D. Appointment of Counsel for Child—Privately Initated Proceedings
State Statutes and Court Decisions Interpretng Statutes
In private guardianship proceedings, M. G. L. c. 190B, § 5-106(a) states:
Afer fling of a petton for appointment of a guardian … if the ward … or
someone on his behalf requests appointment of counsel; or if the court
determines at any tme in the proceeding that the interests of the ward … are or
may be inadequately represented, the court shall appoint a n atorney to
represent the person, giving consideraton to the choice of the person if 14 or
more years of age. If the ward … has adequate resources, his counsel shall be
compensated from the estate, unless the court shall order that such
compensaton be paid by the pettoner. Counsel for any indigent ward … shall be
compensated by the commonwealth or the pettoner as the court may order.
This secton shall not be interpreted to abridge or limit the right of any ward … to
retain counsel of his own choice and to prosecute or defend a petton under this
artcle.
This provision would apply to guardianships of children. See L.B. v. Chief Justce of the
Probate and Family Court, 474 Mass. 231, 245 (Mass. 2016) (citng this provision in private
child guardianship case as well as power to appoint GAL, and commentng, “We trust that
judges of the Probate and Family Court will consider exercising one or both of these
prerogatves in appropriate cases, especially where counsel is appointed for a pettoning
parent but the judge is concerned that the petton might not be in the child's best interest.
Guardians faced with removal or modifcaton claims should also be fairly informed that
they may request counsel for the child.”)
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 children 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 stated: "The decision
whether to terminate is of enormous consequence to the child. The child cannot have a
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meaningful opportunity to be heard in a contested proceeding without the assistance of
counsel, regardless whether the case is initated by the department or other agency or by a
private party. Moreover, as CPCS points out, children are enttled to appointed counsel in a
variety of circumstances where the parent-child relatonship is at stake." Id. at 113. The
Massachusets Court of Appeals held in In re Adopton of Gabe, 84 Mass.App.Ct. 286 (2013),
that the In re Meaghan decision had retroactve applicability. It held that afer the court held in
1979 that the right to counsel applied to state-initated adoptons, "A predictable next step
would be the extension of the right to terminaton proceedings brought by a private party and
requiring the judicial authority of the State for their accomplishment." Id. at 291. It cited to the
U.S. Supreme Court’s decision in Shelley v. Kraemer, 334 U.S. 1 (1948), in support.
In L.B. v. Chief Justce of the Probate and Family Court, 474 Mass. 231, 245 (Mass. 2016),
the Court declined to address whether children have a consttutonal right to counsel in private
child guardianship cases, since the issue had not been raised below. However, it cited to the
statutory right to counsel provisions, as well as provisions permitng appointment of a GAL for
the child, and stated, “We trust that judges of the Probate and Family Court will consider
exercising one or both of these prerogatves in appropriate cases, especially where counsel is
appointed for a pettoning parent but the judge is concerned that the petton might not be in
the child's best interest. Guardians faced with removal or modifcaton claims should also be
fairly informed that they may request counsel for the child.” Id.
See also Balboni v. Balboni, 654 N.E.2d 937, 938 (Mass. App. Ct. 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).
5. MISCELLANEOUS
A. Civil Contempt Proceedings
No law could be located regarding the appointment of counsel for indigent litgants in
civil contempt proceedings.
B. Paternity Proceedings
State Statutes and Court Decisions Interpretng Statutes
In actons to establish paternity, the department of revenue, and its division of child
support enforcement, which is known statutorily as “the IV-D agency,” may appear on behalf of
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a plaintf in an acton to establish paternity. M.G.L. ch. 119A, § 3. Additonally, M.G.L. ch.
209C, § 7 provides that in paternity actons "in which custody or visitaton are contested, court
may appoint counsel to represent either party whenever the interests of justce require.”
C. Proceedings for Judicial Bypass of Parental Consent for Minor to Obtain an
Aborton
State Statutes and Court Decisions Interpretng Statutes
If a woman under the age of 18 desires to obtain an aborton, she must sign an informed
consent form, and so must her parents. M.G.L. ch. 112, § 12S. If her parents refuse to give
consent or if the woman elects not to seek their consent, a judge of the superior court shall,
upon petton or moton and afer an appropriate hearing, authorize the aborton “if said judge
determines that the pregnant woman is mature and capable of giving informed consent to the
proposed aborton or, if said judge determines that she is not mature, that the performance of
an aborton upon her would be in her best interests.” Id. The woman may partcipate in the
proceedings on her own behalf, and the court may appoint a guardian ad litem for her. Id. “The
court shall, however, advise her that she has a right to court appointed counsel, and shall, upon
her request, provide her with such counsel.” Id.
State Court Rules and Court Decisions Interpretng Court Rules
In Baird v. Atorney General, 360 N.E.2d 288 (Mass. 1977), the Massachusets Supreme
Judicial Court held that in the context of a minor seeking court approval of her right to aborton
despite one or more parents disapproving, the trial judge had the power to appoint counsel for
the minor to assist her in the asserton of her consttutonal rights, pursuant to Mass. R. Civ. P.
17(b) (in civil acton, “the court shall appoint a guardian ad litem for an infant … not otherwise
represented in an acton or shall make such other order as it deems proper for the protecton of
the infant.”) The queston was raised whether a judge may appoint counsel if public funds are
not available for the payment of atorneys’ fees and expenses of the minor’s counsel. The
Court held that:
In order to avoid a consttutonal queston concerning the burden on the asserton of a
minor’s consttutonal rights which would arise from a contrary interpretaton, we
construe the statutes of the Commonwealth to authorize the appointment of counsel or
a guardian ad litem for an indigent minor at public expense, if necessary, if the judge, in
his discreton, concludes that the best interests of the minor would be served by such an
appointment.
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Baird, 360 N.E.2d at 301.11
D. Proceedings Involving Claims by and Against Prisoners
State Court Decisions Addressing Due Process or Equal Protecton
In Commonwealth v. Paton, 934 N.E.2d 236 (Mass. 2010), the Supreme Judicial Court
ruled that a probatoner was enttled to appointed counsel at a probaton revocaton hearing
afer sexually assaultng a child. Such a hearing is not considered a criminal trial because the
probatoner has already been convicted of a crime at trial, and sentenced. Id. at 243. However,
due process rights under the Fourteenth Amendment of the U.S. Consttuton are implicated at
such a hearing because an individual’s personal liberty is at stake. Id. at 243-244. The
Massachusets Supreme Judicial Court went on to explain that, regarding hearings for violatons
of probaton (which are diferent from revocaton hearings), it took a “somewhat more
expansive view” than the U.S. Supreme Court and held that, “whenever imprisonment palpably
may result from a violaton of probaton, ‘simple justce’ requires that, absent waiver, a
probatoner is enttled to assistance of counsel.” (citaton omited). Id. at 244. In both instances
previously mentoned, the right to appointed counsel includes the right to efectve assistance
of counsel. Id.
E. Marriage Dissoluton/Divorce Proceedings
State Court Decisions Addressing Due Process or Equal Protecton
While the Massachusets Supreme Judicial Court in Genninger v. Genninger, 418 Mass.
732, 735 (1994) restated the holding of Dept. of Public Welfare v. J.K.B., 379 Mass. 1 (1979)
(hereinafer “J.K.B.”), discussed supra Part 4.A, it held that there was no right to counsel in the
divorce case at issue because (a) only property interests were at stake; (b) there were no
exceptonal circumstances, such as complex legal issues or a litgant’s inability to present the
case. While it is not completely clear whether the court was analyzing the U.S. Consttuton or
the Massachusets Declaraton of Rights in reaching this conclusion, it did say that the litgant
had raised both and seemed to suggest that it would not extend the J.K.B. ruling so far. Id. at
735. But in Peace v. Peace, 288 N.E.2d 602 (Mass. 1972), the court held that in a divorce case,
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The court distnguished Payne v. Superior Court of Los Angeles County, 553 P.2d 565 (Cal. 1976), where the
Supreme Court of California had appointed counsel for an incarcerated defendant to defend against a civil acton
but had “disclaimed any power to order that counsel should be paid from public funds.” The Baird court
commented that “[i]n the Payne case, the fundamental issue in the underlying civil acton did not involve the
incarcerated, indigent defendant's asserton of a consttutonal right.”
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“the Probate Court shall consider the appointment of counsel for the [defendant in a divorce] if
the later so desires and is indigent.”
F. Juvenile Delinquency, Status Ofenses, or Child in Need of Services Proceedings
State Statutes and Court Decisions Interpretng Statutes
When a child is alleged to be in need of services and is brought before a juvenile court
or a juvenile session of a district court on a petton seeking a determinaton of such need
(“CHINS proceeding”), the child shall have counsel appointed for him or her (at all hearings
pertaining to the determinaton of need of services) if the child is not able to retain counsel.
M.G.L. ch. 119, § 39F. In such cases, the court shall determine whether the parent or guardian
of the child is also indigent. Id. If the parent or guardian is not indigent, the court shall assess a
$300 fee against the parent or guardian to pay for the cost of court appointed counsel, and if
the parent is indigent but able to contribute some payment, the court shall order the parent to
pay a reasonable amount towards the cost of appointed counsel. Id.
As discussed supra Part 4.A, 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 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.
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Law Addressing Authorizaton or Requirement to Appoint Counsel in
Civil Proceedings Generally
Federal Statutes and Court Decisions Interpretng Statutes
The federal Servicemembers Civil Relief Act (SCRA), which applies to each state and to
all civil proceedings (including custody), provides:
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If in an acton covered by this secton it appears that the defendant is in military service,
the court may not enter a judgment untl afer the court appoints an atorney to
represent the defendant. If an atorney appointed under this secton to represent a
servicemember cannot locate the servicemember, actons by the atorney in the case
shall not waive any defense of the servicemember or otherwise bind the
servicemember.
50 App. U.S.C. § 3931(b)(2).
Additonally, 50 App. U.S.C. § 3932(d)(1), which also applies to all civil proceedings
(including custody), specifes that a service member previously granted a stay may apply for an
additonal stay based on a contnuing inability to appear, while § 3932(d)(2) states: “If the court
refuses to grant an additonal stay of proceedings under paragraph (1), the court shall appoint
counsel to represent the servicemember in the acton or proceeding.”
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State Court Decisions Addressing Court’s Rulemaking Authority
Part 1, Artcle 30, of the Massachusets State Consttuton contains an express
separaton of powers provision:
In the government of this commonwealth, the legislatve department shall never
exercise the executve and judicial powers, or either of them; the executve shall never
12
50 App. U.S.C.A. § 3912(a) states, “This chapter applies to-- …(2) each of the States, including the politcal
subdivisions thereof…”
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50 App. U.S.C. § 3931(a) states, “This secton applies to any civil acton or proceeding, including any child custody
proceeding, in which the defendant does not make an appearance.”
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50 App. U.S.C. § 3932(a) applies to “any civil acton or proceeding, including any child custody proceeding, in
which the plaintf or defendant at the tme of fling an applicaton under this secton-- (1) is in military service or is
within 90 days afer terminaton of or release from military service; and (2) has received notce of the acton or
proceeding.”
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exercise the legislatve and judicial powers, or either of them; the judicial shall never
exercise the legislatve and executve powers, or either of them: to the end it may be a
government of laws and not of men.
The Massachusets Supreme Judicial Court recognizes that there may be some overlap
in the three divisions of government. “While the limitatons of art. 30 must be scrupulously
observed, ‘separaton of powers does not require three watertght compartments within the
government.’” Commonwealth v. Gonsalves, 739 N.E.2d 1100, 1105 (Mass. 2000) (quotatons
omited). “An act of one branch of government does not violate art. 30 unless the act ‘unduly
restrict[s]’ a core functon of a coordinate branch. ‘The essence of what cannot be tolerated is
the creaton of interference by one department with the power of another department.’” Id.
(quotatons omited).
The Massachusets Supreme Judicial Court has recognized that the courts do not have
the power to order the legislature to appropriate funds on grounds that it would violate the
separaton of powers provision of the state consttuton. “[A]ny atempt by this court to
compel the Legislature to make a partcular appropriaton . . . would violate art. 30.” Gonsalves,
739 N.E.2d at 1105. “The power to direct the spending of State funds is a quintessental
prerogatve of the Legislature.” County of Barnstable v. Commonwealth, 661 N.E.2d 47, 54
(Mass. 1996) (where county brought an acton seeking judgment requiring the Commonwealth
to pay them the full amount of contract rent for leased courthouse space despite lack of
appropriated funds sufcient to do so).
However, the Supreme Judicial Court has held that the courts do have the power to
order payment of atorney’s fees by rule and the implicit authority to specify the source of the
payment. See Gonsalves, 739 N.E.2d at 1105; but see Bromfeld v. Treasurer and ReceiverGeneral, 459 N.E.2d 445, 450 (Mass. 1983) (where landowner was awarded compensaton
when his land was taken by eminent domain, and original appropriaton for acquisiton had
been exhausted, the trial court did not have authority to compel payment of judgment).
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