The petitioner, Patrice Gianareles, appeals from a judgment of a single justice of this court denying her petition pursuant to G. L. c. 211, § 3. We affirm.
Background. This matter began in the Probate and Family Court in July, 2012, when the respondent sought to have herself appointed as the guardian for the petitioner’s infant child. See G. L. c. 190B, §§ 5-201 et seq. The respondent is the petitioner’s grandmother and the child’s great-grandmother. The child was one year old at the time the respondent commenced the guardianship proceeding; the petitioner was seventeen years old at that time.
In May, 2013, the petitioner, then represented by counsel, filed a petition to remove the respondent as the child’s guardian, see G. L. c. 190B, § 5-212, and a motion for relief from the judgment pursuant to Mass. R. Civ. P. 60 (b) (4),
In August, 2013, with her appeal from the denial of her rule 60 (b) motion not yet entered in the Appeals Court, the petitioner filed her petition in the county court pursuant to G. L. c. 211, § 3. She alleged, as she had alleged in her rule 60 (b) motion, that she had a constitutional right to have counsel appointed for her in the underlying guardianship proceeding. More specifically, she argued that parents whose minor children are the subject of guardianship proceedings pursuant to G. L. c. 190B, §§ 5-201 et seq., should be entitled to counsel just like parents whose children are the subject of care and protection proceedings pursuant to G. L. c. 119. The single justice did not entertain the petition on its substantive merits; he concluded instead that the petition failed to satisfy the basic threshold requirement for obtaining extraordinary relief under G. L. c. 211, § 3, namely, a showing that the petitioner had no adequate alternative remedy. The petitioner appeals on that very limited point.
Discussion. The requirement that there be no adequate alternative remedy is not, as the petitioner describes it, a mere “technicality.” It is a critical component of one’s entitlement to extraordinary relief under the statute, absent which a single justice is well within his or her discretion to deny relief. See McMenimen v. Passatempo,
As the single justice observed, the petitioner has an adequate alternative
The Appeals Court’s decision in Adoption of Rory, 80 Mass. App. Ct. 454 (2011), is illustrative. The trial judge in that case found two children to be in need of care and protection and dispensed with their father’s consent to adoption. Id. at 454-455. The father did not appeal from the judgment. Months later he moved under rule 60 (b) for relief from the judgment, claiming that the judge, at trial, had improperly struck his counsel’s appearance and thereby deprived him of his right to an attorney. Id. at 455. The judge denied the motion, and the father appealed. The Appeals Court treated the motion as one pursuant to rule 60 (b) (4) (“the court may relieve a party from a final judgment . . . [if] the judgment is void”), the same subsection of the rule on which this petitioner relies. While acknowledging the general principle that rulings on rule 60 (b) motions ordinarily are reviewed only for abuse of discretion, the court recognized that there exists an important exception to that principle: “If a judgment is void . . . for failure to conform to the requirements of due process of law, the judge must vacate it. See Harris v. Sannella,
The Appeals Court concluded in Adoption of Rory, supra at 458-459, that the deprivation of the father’s right to counsel in the circumstances of that case rendered the judgment void for purposes of rule 60 (b) (4). The court accordingly reversed the judge’s denial of the motion, vacated the underlying decrees, and ordered a new trial. Id. at 459. We can conceive of no good reason why the petitioner in this case, in her appeal from the denial of her rule 60 (b) (4) motion, if she is successful on the merits of her claim that she had, and was deprived of, a constitutional right to counsel in the underlying guardianship proceeding, would not be entitled to precisely the same relief here. See Petition of Worcester Children’s Friend Soc’y to Dispense with Consent to Adoption, 9 Mass. App. Ct. 594, 602 (1980) (relaxing strict restrictions ordinarily applicable under rule 60 [b] in case dispensing with mother’s consent to adoption; “[c]onfinement to procedural boundaries cannot have priority over the concern at stake in proceedings to determine the best interests of a child”).
The dockets in the Probate and Family Court and in the Appeals Court indicate that the record for the petitioner’s rule 60 (b) (4) appeal has not yet been assembled and that the appeal, therefore, has not yet been entered in the
Conclusion. The single justice’s judgment denying extraordinary relief under G. L. c. 211, § 3, shall be modified to include a direction to the Probate and Family Court to assemble forthwith the record for purposes of the petitioner’s appeal from the denial of her rule 60 (b) (4) motion, and to transmit the assembled record to the Appeals Court. As modified, the judgment is affirmed.
So ordered.
Notes
To support her argument that an appeal from the denial of the motion for relief from judgment pursuant to Mass. R. Civ. P. 60 (b) (4),
The respondent’s request for attorney’s fees is denied. Although the petitioner’s appeal is unsuccessful, it is not frivolous. See Mass. R. A. P. 25, as appearing in