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19-P-1029 Appeals Court
GUARDIANSHIP OF A MINOR.
No. 19-P-1029.
Bristol. April 9, 2020. - July 28, 2020.
Present: Milkey, Shin, & Englander, JJ.
Jurisdiction, Custody of child, Probate Court. Probate Court, Guardian, Jurisdiction. Massachusetts Child Custody Jurisdiction Act. Parental Kidnapping Prevention Act. Minor, Custody. Parent and Child, Custody of minor. Practice, Civil, Guardianship proceeding.
Petition for appointment of guardian filed in the Bristol Division of the Probate and Family Court Department on May 9, 2017.
A petition for removal of guardians was filed on April 26, 2018; a motion to dismiss was heard by Peter Smola, J., and a motion to alter or amend the judgment was considered by him.
The case was submitted on briefs. John H. Walsh for the mother. Julie A. Lowre for the child. S.M., pro se.
SHIN, J. At issue is whether the Probate and Family Court
(probate court or Massachusetts probate court) retained home 2
State jurisdiction over a custody dispute between the mother of
the minor child and the child's permanent guardians, L.M. and
S.M., who now reside with the child in Michigan. For the first
six years of her life, the child lived with the mother in
Massachusetts. L.M. and S.M. removed the child to Michigan in
November 2017, one day after they were appointed permanent
guardians following a hearing in the probate court. Less than
six months later, the mother filed a petition in the probate
court to terminate the guardianship, claiming among other things
that she did not receive notice of the hearing. On L.M.'s
motion, a probate court judge dismissed the mother's petition,
concluding that jurisdiction lies in Michigan, not
Massachusetts. The basis for the judge's ruling was that, in
the interim between the child's removal from Massachusetts and
the mother's filing of the petition in the probate court, the
Michigan Probate Court for Jackson County (Michigan court) had
issued its own order granting L.M. and S.M. permanent
guardianship of the child. Believing that that order was
"controlling," the judge ruled that the mother had to seek
relief in Michigan. Complicating matters, while the mother's
appeal from the decree of dismissal was pending in this court,
S.M. initiated a custody action in the Michigan court and
obtained a judgment granting her permanent custody of the child. 3
We conclude that the probate court judge erred in
determining that the Massachusetts courts lack jurisdiction over
the mother's petition to terminate the guardianship. Under the
Massachusetts Child Custody Jurisdiction Act (MCCJA), G. L.
c. 209B, the probate court has jurisdiction because
Massachusetts had been the child's home State within six months
before the filing of the petition, the child is absent from
Massachusetts because of her removal by the guardians, and the
mother continues to reside in Massachusetts. Furthermore, under
the Federal Parental Kidnapping Prevention Act, 28 U.S.C.
§ 1738A, the jurisdiction of the Massachusetts courts is
exclusive and continuing. This means that the Michigan court
was precluded by Federal law from issuing a superseding
guardianship order and from exercising jurisdiction over S.M.'s
custody complaint while the mother was pursuing her appeal of
the decree of dismissal in this court. Accordingly, we reverse.1
Background. Partly because of the procedural posture of
the case, the factual record before us is sparse. We set forth
the facts that appear to be uncontested based on the parties'
1 Although the child filed a brief as appellee, she supports the mother's position on the jurisdictional question. The child also raises an argument not raised by the mother, which is that the child had a due process right to court-appointed counsel in the probate court proceeding. Because the child did not appeal from the decree of dismissal, we do not address this argument. 4
filings in the probate court and in this court.2 For context we
also include some of the mother's factual allegations, noting
them as such where they appear.
The child was born in August 2011 in Taunton and lived with
the mother for the first several years of her life. The child
does not have a relationship with her father, and his
whereabouts are unknown.
Sometime after the child was born, the mother developed a
substance use disorder, which led L.M., the maternal great-
grandmother, to petition the probate court in May 2017 for
guardianship of the child. On August 8, 2017, the mother
consented to a temporary guardianship, valid for ninety days.
She apparently did so with the understanding that L.M. would
move to Michigan with the child and with S.M. (L.M.'s daughter,
the maternal great-aunt), and the mother could join them once
she was drug-free. The probate court docket reflects that the
mother, who is indigent, did not have counsel when she signed
the consent form. See Guardianship of V.V., 470 Mass. 590, 594
2 L.M. and S.M. did not file a brief on appeal. Instead, S.M. filed a motion to dismiss on November 7, 2019 -- which a single justice of this court denied without prejudice to renewal in S.M.'s brief -- and a letter dated March 5, 2020, that we construe as a second motion to dismiss. On April 1, 2020, we issued an order for supplemental briefing, specifically directing L.M. and S.M. to attach to their supplemental brief "copies of all orders, judgments or decrees entered by the Michigan courts, as well as copies of all docket sheets." They failed to respond. 5
(2015) (indigent parent whose child is subject of guardianship
petition "has a right to have counsel appointed and to be so
informed").
According to the mother, about one month after signing the
consent form, she was involuntarily committed for substance use
treatment at facilities in Taunton and Fall River. She alleges
that she reached out to her family around this time to ask about
the next hearing date, but "was told not to worry about it."
Unbeknownst to her, a hearing was scheduled for November 6,
2017, and later continued to November 20, 2017. The mother
alleges that she was not served with notice.
After the November 20, 2017, hearing, at which neither the
mother nor counsel on her behalf appeared, the judge appointed
L.M. and S.M. as permanent coguardians and authorized them "to
remove the minor child from the Commonwealth of Massachusetts
and relocate to Jackson, Michigan."3 The judge's order stated
that the mother "after hearing, is found to be currently unfit,"
as she "is unable to properly care for the child and did not
object to [the guardianship] petition." L.M. and S.M. moved to
Michigan with the child the next day.
3 The paternal grandmother, who was represented by counsel at the hearing, entered into a stipulation with L.M. and S.M., allowing her visitation with the child. 6
Just over five months later on April 26, 2018, the mother,
now with appointed counsel, filed a petition in the probate
court to revoke her consent and to remove the guardians. L.M.,
also represented by counsel, moved to dismiss the petition for
lack of subject matter jurisdiction, on the basis that the
Michigan court had issued letters of guardianship on January 8,
2018, granting L.M. and S.M. full, permanent coguardianship of
the child. As reflected in the report of the home study
conducted by the Michigan Department of Human Services, the
Michigan letters of guardianship purportedly were intended to
effectuate the Massachusetts probate court judge's November 20,
2017, order. Specifically, the home study report states that,
"[t]he [Massachusetts] court informed [L.M. and S.M.] that
Michigan is one of the very few states that a new guardianship
request must be made as they don't have an agreement to honor
guardianships out of state." The report also states that L.M.
and S.M. informed the Michigan department worker that "they have
the biological mother's approval, which was verified through
Massachusetts court paperwork."
The probate court judge held a nonevidentiary hearing on
L.M.'s motion to dismiss the mother's petition in July 2018. In
opposing the motion, the mother's counsel argued that the mother
had not received notice of the November 20, 2017, hearing,
noting that she had been involuntarily committed under G. L. 7
c. 123, § 35, in the weeks prior to that hearing. Counsel also
argued that the Michigan court lacked "authority to issue the
guardianship . . . because [the child] had not been a resident
of Michigan for six months." Counsel represented that the
Michigan court "did not contact the mother at all" -- relying
instead on "her having been notified of the hearings [in
Massachusetts]" -- and that the mother did not have the
financial means to travel to Michigan to fight for custody. On
the merits of the mother's petition for removal of the
guardians, counsel argued that it was in the child's best
interest to terminate the guardianship because she had been
acting out and L.M. and S.M. wanted to treat her with
psychoactive drugs over the mother's objection.
Ruling from the bench, the judge allowed the motion to
dismiss on the following rationale:
"[T]he State of Michigan entered[,] subsequent to this Court entering its guardianship order, . . . [its] own order for permanent guardianship. What their rules are, what their requirements are for service, whatever it might be, they did it; and I think the remedy or the relief has got to go to Michigan. Mother has to go there and ask for relief.
"I strongly would believe that Michigan's order is the controlling order right now, and so I'm going to allow the motion to dismiss."
The mother's motion to alter or amend the judgment was denied.
She appealed from both the decree dismissing her petition to 8
remove the guardians and the order denying the motion to alter
or amend the judgment.
In June 2019, while the mother's appeal was pending in this
court, S.M., with L.M.'s consent, filed a "complaint for
custody" in the Michigan court, seeking sole legal and physical
custody of the child and an order that the mother pay child
support. This prompted the mother's Massachusetts counsel to
send a letter to the Michigan court seeking appointment of
counsel for the mother in the Michigan case. By return letter,
a judge of the Michigan court explained that "Jackson County
does not provide court appointed counsel on custody matters as
they are civil." According to the mother, she then filed four
pro se motions in the Michigan case -- a motion to dismiss for
lack of personal jurisdiction, a motion to dismiss for lack of
subject matter jurisdiction, a motion to stay the proceeding
pending the outcome of the Massachusetts case, and a motion for
appointment of counsel -- but none was acted on. In the
mother's supplemental brief filed at the request of this court,
counsel represents that he spoke to the Michigan court's clerk's
office about the mother's motions and was told that they would
not be heard without a Michigan attorney. Counsel then tried to
secure legal assistance for the mother from Legal Services of
South Central Michigan but was unsuccessful. 9
On August 29, 2019, the Michigan court judge issued a
temporary order granting S.M. sole legal custody and primary
physical custody of the child, specifically noting in the order
that the mother had failed to appear at a conciliation
conference. Final judgment entered in the Michigan case on
January 30, 2020. In the March 5, 2020, letter that S.M. filed
with this court, she represents that the judgment granted her
permanent custody of the child.
Discussion. A Massachusetts court's jurisdiction over
child custody proceedings is governed by the MCCJA, G. L. c.
209B. See Custody of Brandon, 407 Mass. 1, 5 (1990);
Guardianship of Minor Children, 97 Mass. App. Ct. 316, 319
(2020). Under the MCCJA a court must first determine whether it
has the power to exercise jurisdiction over the custody
proceeding; if it has that power, the court may still decline
jurisdiction based on one of the grounds specified in G. L.
c. 209B, § 7 (a). See Custody of Brandon, supra; Guardianship
of Minor Children, supra at 323. In this case it is evident
from the judge's remarks at the motion to dismiss hearing that
he did not decline jurisdiction for discretionary reasons but,
rather, concluded that the issuance of the letters of
guardianship by the Michigan court divested the Massachusetts
courts of jurisdiction. The mother and the child contend that
this was legal error. We agree. 10
Under G. L. c. 209B, § 2 (a), there are four bases upon
which a Massachusetts court can exercise jurisdiction over a
custody proceeding. See Guardianship of Minor Children, 97
Mass. App. Ct. at 320.4 The first is home State jurisdiction,
which exists where Massachusetts "(i) is the home state of the
child on the commencement of the custody proceeding" or, as
pertinent here, where Massachusetts "(ii) had been the child's
home state within six months before the date of the commencement
of the proceeding and the child is absent from the commonwealth
because of his or her removal or retention by a person claiming
his or her custody or for other reasons, and a parent or person
acting as parent continues to reside in the commonwealth."
G. L. c. 209B, § 2 (a) (1). "Home state" is defined as "the
state in which the child immediately preceding the date of
commencement of the custody proceeding resided with his parents,
a parent, or a person acting as parent, for at least [six]
consecutive months." G. L. c. 209B, § 1.
As the Supreme Judicial Court has explained, "[c]onsistent
with the underlying purpose of [the MCCJA] to allow for uniform
treatment of custody issues by an appropriate court, the statute
creates an exception to the residency requirement if
4 A "petition to terminate [a] guardianship is a custody proceeding." Guardianship of Minor Children, 97 Mass. App. Ct. at 321. 11
Massachusetts would be the child's home State except that the
child is absent from the State 'because of his or her removal or
retention' by a person claiming custody and a parent . . .
continues to reside in the Commonwealth." Custody of Victoria,
473 Mass. 64, 70 n.11 (2015), quoting G. L. c. 209B,
§ 2 (a) (1). Such is the case here. When the mother filed her
petition to terminate the guardianship -- the operative date for
jurisdictional purposes, see Guardianship of Minor Children, 97
Mass. App. Ct. at 321-322 -- about five months had passed since
L.M. and S.M. removed the child to Michigan. Before the removal
the child had lived continuously, i.e., for at least six
consecutive months, in Massachusetts. Thus, Massachusetts "had
been the child's home state within six months before the" mother
filed the petition, and this, combined with the fact that the
mother "continues to reside in the commonwealth," gave the
probate court jurisdiction over the petition. G. L. c. 209B,
§ 2 (a) (1) (ii).
Contrary to the probate court judge's rationale, the
Michigan letters of guardianship did not divest the probate
court of jurisdiction. Their apparent purpose, as the record
reflects, was to give effect to the judge's own November 20,
2017, order granting L.M. and S.M. permanent guardianship. See
Nadimpali v. Byrraju, 326 Mich. App. 73, 88-91 (2018)
(describing Michigan's procedure for registering child custody 12
determinations from another State); Jamil v. Jahan, 280 Mich.
App. 92, 102 (2008) ("registration to enforce a child-custody
determination from another state is distinct from actually
making a child-custody determination"). The letters of
guardianship could not supersede the probate court judge's
order, as he appears to have found. Were that the Michigan
court judge's intent, the letters of guardianship would violate
the Federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.
§ 1738A, which "imposes a duty on the States to enforce a child
custody determination entered by a court of a sister State if
the determination is consistent with the provisions of the
[PKPA]." Thompson v. Thompson, 484 U.S. 174, 175-176 (1988).
Under the PKPA the jurisdiction of the State court that made the
initial custody determination (here, the Massachusetts probate
court) is exclusive and continuing so long as that State
"remains the residence of the child or of any contestant" and
the court still has jurisdiction under its own laws. 28 U.S.C.
§ 1738A(d). Therefore, a court of one State may not modify a
custody determination made by a court of another State unless
"it has jurisdiction to make such a . . . determination" and
"the court of the other State no longer has jurisdiction, or it
has declined to exercise such jurisdiction to modify such
determination." 28 U.S.C. § 1738A(f). Accord Mich. Comp. Laws
§ 722.1203. "[M]odify" in this context "refer[s] to a custody 13
or visitation determination which modifies, replaces,
supersedes, or otherwise is made subsequent to, a prior custody
or visitation determination concerning the same child" (emphasis
added). 28 U.S.C. § 1738A(b).
When the Michigan court issued the letters of guardianship
in January 2018, the Massachusetts probate court still had home
State jurisdiction (as the child had then been living in
Michigan for less than two months), and the mother remained a
resident of Massachusetts. As a result, under the PKPA, the
Michigan court had no power to modify the Massachusetts probate
court judge's November 20, 2017, order. This conclusion is in
accord with Michigan case law. As the Supreme Court of Michigan
has stated, "the jurisdiction of the initial court continues to
the exclusion of all others as long as that court has
jurisdiction under the law of that state and the state remains
the residence of the child or any contestant" (citation
omitted). In re Clausen, 442 Mich. 648, 671 (1993). Where
these requirements are met, as they are here, Michigan courts
have consistently dismissed attempts to modify child custody
determinations issued by a sister State. See, e.g., id. at 671-
673; Nash v. Salter, 280 Mich. App. 104, 111 (2008); Atchison v.
Atchison, 256 Mich. App. 531, 538 (2003). The probate court
judge thus erred in his belief that the Michigan letters of 14
guardianship replaced or superseded his order and thereby
divested the probate court of jurisdiction.
This would end the jurisdictional inquiry were it not for
S.M.'s later act of filing a complaint for custody in the
Michigan court. At that point Michigan would have been the
child's home State assuming the child had lived there for the
prior six consecutive months. See 28 U.S.C. § 1738A(b); Mich.
Comp. Laws §§ 722.1102, 722.1201. But even so, the PKPA still
confers exclusive and continuing jurisdiction on the
Massachusetts courts because this appeal was pending when S.M.
filed the custody complaint in the Michigan court. The PKPA
provides that "[a] court of a State shall not exercise
jurisdiction in any proceeding for a custody or visitation
determination commenced during the pendency of a proceeding in a
court of another State where such court of that other State is
exercising jurisdiction consistently with the provisions of this
section to make a custody or visitation determination." 28
U.S.C. § 1738A(g). Accord Mich. Comp. Laws § 722.1206. This
means that "[o]nce a State exercises jurisdiction consistently
with the provisions of the [PKPA], no other State may exercise
concurrent jurisdiction over the custody dispute, . . . even if
it would have been empowered to take jurisdiction in the first
instance, and all States must accord full faith and credit to
the first State's ensuing custody decree" (emphasis added; 15
footnote omitted). Thompson, 484 U.S. at 177.5 The bar on
concurrent jurisdiction furthers "one of the chief purposes of
the PKPA" -- "to 'avoid jurisdictional competition and conflict
between State courts.'" Id., quoting Pub. L. 96-611, 94 Stat.
3569, § 7(c)(5).
As we have explained above, the probate court had
jurisdiction, consistent with the PKPA, to adjudicate the
mother's petition to terminate the guardianship, which was filed
when Massachusetts was still the child's home State. We thus
conclude that the PKPA prevented the Michigan court from
exercising concurrent jurisdiction over the custody dispute
during the pendency of this appeal.6 The PKPA also prevented the
5 See Miller-Jenkins v. Miller-Jenkins, 180 Vt. 441, 449 (2006) ("Because the Vermont dissolution proceeding was still pending . . . and the Vermont proceeding was consistent with the PKPA, the Virginia court lacked jurisdiction pursuant to § 1738A(g) of the PKPA").
6 The Michigan Uniform Child Custody Jurisdiction and Enforcement Act requires "a party's pleadings [to] state whether the party knows of another pending custody proceeding." Fisher v. Belcher, 269 Mich. App. 247, 255 (2005), citing Mich. Comp. Laws § 722.1209(1)(b). It also imposes "a continuing duty [on parties] to inform the court of a proceeding in this or another state that could affect the current child-custody proceeding." Mich. Comp. Laws § 722.1209(4). S.M.'s complaint for custody filed in the Michigan court did not mention that the mother had filed a petition to terminate the guardianship in the Massachusetts probate court, nor did it mention that this appeal was pending. Instead, the complaint referenced only the letters of guardianship issued by the Michigan court in January 2018 and then stated that, "[e]xcept for the referenced guardianship matter, no other Michigan court has continuing jurisdiction over the minor child." 16
Michigan court from entering the ensuing custody judgment
because the requirements of 28 U.S.C. § 1738A(f)(2) -- allowing
modifications of custody determinations only where "the court of
the other State no longer has jurisdiction, or it has declined
to exercise such jurisdiction" for discretionary reasons -- were
not met. As a result, the Michigan court's judgment is not
entitled to full faith and credit. Cf. E.N. v. E.S., 67 Mass.
App. Ct. 182, 194 (2006) (because Puerto Rico court did not have
home State jurisdiction, its judgment awarding custody to father
not afforded full faith and credit). Rather, under the PKPA, it
is the "first State's ensuing custody decree" that is entitled
to full faith and credit, Thompson, 484 U.S. at 177, and here,
that first State is Massachusetts.
We recognize that our decision, by virtue of the fact that
the Michigan court has already entered a judgment in the custody
action, raises the potential for conflicting custody orders.
That difficult issue has not yet ripened into an actual
controversy, however, and we cannot resolve it in this appeal.
We do note that both the MCCJA and the Michigan Uniform Child
Custody Jurisdiction and Enforcement Act encourage communication
and exchange of information with the courts of other States.
See G. L. c. 209B, § 7 (c); Mich. Comp. Laws § 722.1206(2). See
also Redding v. Redding, 398 Mass. 102, 105 (1986) (MCCJA
"encourage[s] communication, cooperation, and mutual assistance 17
between courts and seek[s] to avoid jurisdictional competition
and conflict"); Fisher v. Belcher, 269 Mich. App. 247, 255
(2005) (Michigan Uniform Child Custody Jurisdiction and
Enforcement Act "allows courts of this state to confer with
courts of another state to determine proper jurisdiction"). To
the extent the mother seeks to have the Michigan judgment
declared void, we lack the power to grant that relief. It must
be sought in the Michigan courts, as there is no private right
of action to enforce the PKPA in the Federal courts. See
Thompson, 484 U.S. at 187.
We address a final point, which concerns L.M.'s alternative
argument in her motion to dismiss the mother's petition that
Massachusetts is not a convenient forum and so, if jurisdiction
exists, the probate court judge should decline to exercise it
under G. L. c. 209B, § 7. While we do not read the judge's
remarks to have endorsed this argument, we offer a few
observations should the issue recur on remand.
Under G. L. c. 209B, § 7 (a) (iii), a court may decline to
exercise jurisdiction if it finds that Massachusetts "would
constitute an inconvenient forum and that a court of another
state would constitute a more convenient forum." Given our
conclusion that the mother is entitled to be heard on the merits
of her petition to terminate the guardianship, it follows that
Michigan could not be the more convenient forum absent action by 18
the Michigan court vacating the judgment granting permanent
custody of the child to S.M., and providing the mother an
opportunity to be heard on why custody should be transferred to
her. In the event the Michigan court takes such action, the
probate court judge should consider the burden on the mother to
litigate the custody dispute in Michigan, given especially her
lack of resources and apparent inability to obtain counsel in
Michigan. The judge should also consider any renewed assertion
by L.M. that it would be burdensome on her and S.M., and
contrary to the child's best interest, to litigate in
Massachusetts. Finally, we think the judge could appropriately
consider that Massachusetts was the child's home State when the
mother filed her petition and it would have been fully in line
with the purpose of the MCCJA for the probate court to have
exercised jurisdiction from the outset. See G. L. c. 209B,
§ 7 (d) (5) (court may consider "whether the exercise of
jurisdiction . . . would contravene any of the purposes of this
chapter"); Custody of Brandon, 407 Mass. at 13 ("Massachusetts
court's decision to exercise jurisdiction was in keeping with
the purposes of the statute"). 19
Conclusion. The decree of dismissal is reversed, and the
case is remanded for further proceedings consistent with this
opinion.7,8
So ordered.
7 To the extent the mother seeks to vacate the November 20, 2017, order as void for lack of service, that part of the petition shall be treated nunc pro tunc as a motion for relief under Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974). See Guardianship of Minor Children, 97 Mass. App. Ct. at 323-324.
8 S.M.'s March 5, 2020, request to dismiss the appeal is denied.