HOUSE DOCKET, NO. 2851        FILED ON: 1/20/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2274

The Commonwealth of Massachusetts

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PRESENTED BY:

Paul J. Donato and Patricia D. Jehlen

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to promote the well-being of minor children living with guardians.

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PETITION OF:

HOUSE DOCKET, NO. 2851        FILED ON: 1/20/2017

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2274

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act to promote the well-being of minor children living with guardians.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Section 5-106 of chapter 190B of the General Laws is hereby amended by inserting the following new subsections:-

(e) For proceedings pursuant to a petition to remove a guardian of a minor child, the guardian shall have and be informed of the right to counsel, and the court shall appoint counsel if the guardian is financially unable to retain counsel, when the guardian makes an initial showing that he or she has been the primary caretaker for the child for at least two years or otherwise for a significant part of the child’s lifetime. This time period may include caretaking provided during the guardianship or before the guardian was appointed.

(f) The court may appoint counsel to represent a guardian of a minor during proceedings pursuant to Article V of this chapter if the guardian is financially unable to retain counsel and the court determines at any time in the proceedings that the interest of the guardian is or may be inadequately represented.

(g) The court may appoint counsel to represent a prospective guardian of a minor child upon a petition to establish a guardianship if the prospective guardian is financially unable to retain counsel, the petitioner has presented a meritorious claim that the conditions in section 5-206(c) of this chapter have been met, and the court determines that the interest of the prospective guardian is or may be inadequately represented.

(h) Any living parent of a minor child whose parental rights have not been terminated shall have and be informed of the right to counsel, and the court shall appoint counsel if the parent or parents are financially unable to retain counsel, when said parent objects to appointment of a guardian of a minor child or when the parent presents a meritorious claim in petitioning to terminate or modify the guardianship of a minor child.

SECTION 2. Section 5-204 of said chapter 190B, as so appearing, is hereby amended by inserting, after subsection (a), the following new subsection:-

(b) When the court establishes a guardianship of a minor who has at least one living parent whose parental rights have not been terminated, the court’s reasons for establishing the guardianship, the petitioner’s reasons for petitioning for guardianship, and the parent’s reasons for consenting or objecting to the guardianship shall be noted in the order.

SECTION 3. Section 5-212 of said chapter 190B, as appearing in the 2014 Official Edition, is hereby amended by inserting after the word “removal”, in line 15, the following words:-

“brought by someone other than a parent whose parental rights have not been terminated”.

SECTION 4. Said section 5-212 of said chapter 190B, as so appearing, is hereby further amended by inserting the following new subsections:-

(d) After notice and hearing on a petition for removal of a guardian brought by a parent whose parental rights have not been terminated, the court may terminate the guardianship if the minor's parent or parents show by a preponderance of the evidence that the impediments to the parent's custody listed in the order pursuant to G.L. c. 190B, § 5-204(b) have been removed and they are currently fit to parent the child, unless the guardian establishes by clear and convincing evidence that termination of the guardianship would not be in the best interests of the minor. It is presumed that the best interests of the child would not be served by terminating the guardianship if a parent has filed a petition for termination in the past 6 months and such petition was not dismissed under this clause. This presumption may be overcome by clear and convincing evidence.  The court may enter orders to facilitate the minor's reintegration into the home of the parent or parents for a reasonable period before the termination.

(e) In determining parental fitness for purposes of G.L. c. 190B, § 5-212(d), the court shall determine the ability and willingness of the parent or parents to provide a safe, nurturing environment for the minor.

(f) In determining what constitutes the best interest of the ward for purposes of G.L. c. 190B, § 5-212(d), the court shall consider the physical, emotional, and educational well-being of the child. In so doing, the court shall look to the history of caregiving or parenting by the parent and the guardian and each party’s current ability and willingness to care for the child.