NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
24-P-712 Appeals Court
ADOPTION OF DORETTA (and two companion cases1).
No. 24-P-712.
Hampden. September 15, 2025. – January 30, 2026.
Present: Shin, Grant, & Hershfang, JJ.
Adoption, Care and protection. Minor, Adoption, Care and protection. Parent and Child, Adoption, Care and protection of minor. Due Process of Law, Care and protection of minor, Assistance of counsel. Constitutional Law, Assistance of counsel. Department of Children & Families. Practice, Civil, Adoption, Care and protection proceeding, Assistance of counsel, Self-representation.
Petition filed in the Hampden County Division of the Juvenile Court Department on September 7, 2021.
Following review by this court, 101 Mass. App. Ct. 584 (2022), the case was heard by Carol A. Shaw, J.; a motion to
1 Adoption of Daniel and Adoption of Erik. The children's names are pseudonyms. We use the same pseudonyms for the children that we used in an earlier appeal in this case. See Care & Protection of Doretta, 101 Mass. App. Ct. 584 (2022). By order of a single justice, Erik's appeal of the order denying his amended and renewed motion to reopen the evidence was consolidated with this appeal. As he has not addressed the order in his brief, the appeal of that order is deemed waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). 2
reopen the evidence, filed on July 11, 2024, also was considered by her.
Joan M. Altamore for the mother. Kylah Clay for Erik. Margaret M. Geary for the father. Kristin S. Braithwaite for Department of Children and Families. Warren M. Yanoff for Doretta. Lisa M. Kling for Daniel.
HERSHFANG, J. The father, the mother, and one of the
children, Erik, appeal from decrees issued by a judge of the
Juvenile Court finding the father and the mother unfit to parent
their three children and terminating their parental rights after
a trial. The appeals focus primarily on the judge's denial of
the father's requests to represent himself and the mother's
requests for new counsel, as well as the sufficiency of the
evidence. We affirm.
1. Background. The facts underlying the care and
protection petition are detailed in an earlier appeal, Care &
Protection of Doretta, 101 Mass. App. Ct. 584 (2022) (Doretta
I). We summarize here the judge's relevant posttrial findings
of fact and conclusions of law, reserving some facts for
discussion.
a. The children. The father and the mother are parents to
three children: Doretta, age thirteen at the time of trial, and
twins Daniel and Erik, twelve years old at the time of trial. 3
The Department of Children and Families (department) filed a
care and protection petition on behalf of the children in
September 2021. Initially, the court granted conditional
custody to the parents, but when the parents failed to comply
with the conditions of custody, the department sought and was
granted temporary custody. The children remained in the
department's temporary custody throughout the case and,
following the trial, were placed in the department's permanent
custody.
All three children faced mental health and learning
challenges. Doretta has been diagnosed with depression and
anxiety. As of February 2023, Doretta attended outpatient
therapy once a week with a treatment goal of reducing the
intensity of her anxiety, fears, and worries, which stemmed in
part from her relationship with her parents and issues that
arose from their visits.
Doretta testified during the trial, and the judge
implicitly credited that testimony. Although Doretta loved her
parents, she was angry at them and "[felt] fine" not living with
them. Visits with them were stressful; the mother forced food
on her, and the father talked about the court proceedings. The
mother whispered in Doretta's ear, telling her that she was
coming home, but then denied having done so when Doretta, who
"couldn't stand it," told the department about the whispering. 4
Doretta also testified that she "was raised to lie." The
father told her what to say to the department, including that he
and the mother were completely disabled and confined to a bed
and a wheelchair, which Doretta testified was not true. Before
Doretta was removed, the father controlled Doretta's
participation in therapy sessions, which took place by video
conference, by giving her scripts to use and telling her what to
say. Because of this, Doretta "never . . . got to open up to
[her] therapist."
Erik was diagnosed with autism, depression, and anxiety; as
of February 2023, he attended outpatient therapy once a week.
Erik did well in school, where he benefited from an
individualized education plan. He needed "continued support
from professionals . . . to develop as an individual person,
separate from both [his siblings], and independent of the
inappropriate and unrealistic demands of [the parents]."
Daniel was diagnosed with severe autism. He was a
residential student at an educational center specializing in
providing applied behavioral analysis (ABA) services. When he
arrived there, Daniel was essentially nonverbal and deliberately
harmed himself by hitting his head and biting himself. By the
time of trial, his consistent engagement in ABA services had
significantly reduced his dangerous behaviors and increased his
verbal and nonverbal communication skills. Daniel still 5
required vigilant supervision twenty-four hours a day, seven
days a week; continued consistent engagement with ABA services
was necessary to keep him safe and help him achieve his full
potential.
The father and the mother opposed Daniel's placement at the
educational center and maintained that its services were
unnecessary and inappropriate. The judge found that if Daniel
was in the father's custody, Daniel would not be enrolled at the
educational center, and "would not have made such significant
progress." Further, the father and the mother repeatedly -- and
falsely -- accused the educational center of abusing Daniel.
Both tried to take photos of his naked body to substantiate
alleged injuries. The center staff described the parents'
visits with Daniel as distressing for him and not "therapeutic."
The parents had unrealistic expectations that Daniel participate
in hour-long virtual visits. The father was "unsupportive" and
potentially "combative" of the staff's attempts to support
Daniel.
b. The father. The father reported coming to the United
States in his twenties as an Iranian refugee fleeing political
and religious persecution. In his life in the United States, he
has been dedicated to advocating for issues including worker
protection and veterans' safety, and he reported having been a
whistleblower and having engaged in public protest to bring 6
attention to these issues. He is highly educated and asserted
fluency in four languages.
Although the father loves his children and "considers them
to be gifts," the judge found that the father's ability to
engage with, accurately report to, and follow up with the
children's service providers was "hampered, and at times made
impossible by his detrimental patterns of behavior." The judge
found that the father is "argumentative, fixated, and passionate
to the point of appearing aggressive and threatening. He
perseverates on certain topics and repeats decades-old examples
of how he has been wronged or victimized." The father denied
throughout the proceedings, including trial, and continues to
deny on appeal, that he has any mental health issues. The judge
concluded that his behavior in court indicated otherwise and
noted that his denial prevented him from receiving potentially
helpful treatment.
Throughout the case, the father identified his experience
as a whistleblower sixteen years before trial as the reason he
and his family have been -- in his view -- consistently
targeted, victimized, and retaliated against. The father
"insisted on discussing the 2007 whistleblower story . . . when
it was completely irrelevant to the situation at hand," and as a
result, he was "unable to effectively communicate with
professionals in the community." For example, the father called 7
911 when he thought Daniel was being assaulted but could not
communicate with the 911 dispatcher about the emergency because
he insisted on recounting his whistleblower history. The father
would not be deterred from his recounting, even when the
dispatcher tried to ask questions relevant to the emergency.
When attempting to address an "issue or challenge he or the
[c]hildren face," the father "demands the specific service he
believes is appropriate and necessary and will accept nothing
else." Communication with service providers became "on-going
battle[s] about retaliation against the family for the
whistleblower situation, followed by complaints, grievances, and
lawsuits." The father's "all or nothing approach often resulted
in nothing for the [c]hildren."
The father appropriately initiated some services and
interactions, but "collaboration [was] only possible to the
extent that the party he engage[d] [was] willing to comply with
his rules; his rules [were] inflexible and [could not] be
altered, even in the face of contradictory information." For
example, once, at the father's request, an agency agreed to pay
to have a taller fence installed around the family's home for
Daniel's safety, but the father insisted that the department
secure a needed variance. Despite being told the variance was
his responsibility, the father refused to budge from his
position. As a result, the "[f]ather's insistence on strict 8
adherence to his specific method of problem solving prevented
his own solution from being implemented," and the fence was
never built. "[A]ttempts to challenge or alter his rules [were]
treated by [the] [f]ather as an existential threat." The father
similarly "respond[ed] to minor issues or problems as though
they [were] significantly larger and more serious, demanding
responses which end[ed] up being grossly out of proportion."
This trait "severely limit[ed] his ability to be an "advocate
and protector of his [c]hildren . . . leav[ing] them at risk of
serious abuse and/or neglect."
The father's physical condition was the subject of
contradictory evidence. He described himself as "totally
disabled," unable to leave the house without an ambulance and
two emergency medical technicians, incontinent, in constant need
of supplemental oxygen, and using a feeding tube. Doretta
testified that when "important people" came to the house, her
father would "go to his bed," and that she saw her father both
"put on" medical equipment when people come to the house and
camouflage himself in blankets before walking outside. During
the trial, the father said that he was working out up to sixteen
hours a day and looked like Rambo and Hulk Hogan. He asserted
that he experienced headaches, neck and back pain, and nerve
damage that prevented him from using his hands. Yet the judge
saw him writing what appeared to be pages of notes during trial, 9
and the father would not permit the department to verify the
father's reported health issues with his medical providers.
c. The mother. The mother's native spoken language is
Fuzhou, a Chinese dialect. She is unable to read or write. She
reported that she does not speak, read, or write English other
than a few simple words. The mother relied on the father to
communicate for her, although the record reveals no fluently
spoken language common between the two of them. The mother's
inability to communicate in English "resulted in her total
dependence on [the] [f]ather, and limited her ability to
function as the parent the [c]hildren need." The mother
deferred to the father in practically every respect: the father
handled appointments for her and the children, and the father
controlled her engagement with the department.
The mother has some physical limitations, the cause and
extent of which are unclear. She would not allow the department
to verify her physical health. The father has described her as
totally disabled, yet also able to mow the lawn, shovel snow,
and chase the children. Doretta corroborated that her mother
"mow[ed] the grass and did outside work, and . . . raked the
leaves."
Both parents refused to engage in any services because they
did not acknowledge that their parenting could be improved. 10
d. Court clinic evaluation. On October 19, 2021, the
judge ordered both parents to "undergo court clinic evaluation
as to competency to represent themselves." The evaluations were
filed by the clinic on November 2, 2021. The clinician, noting
there was no legal standard for either "competency to proceed in
[care and protection] cases in [Massachusetts]" or "evaluating
the capacity for self-representation," decided to "adapt[] the
legal criteria for competency to stand trial in criminal cases."
The clinician's effort to evaluate the mother was hampered
by many factors: an expedited schedule, the need to meet by
video conference because of COVID-19 concerns, limitations on
the interpreter's availability, language and cultural
differences, possible coaching by the father, and the absence of
requested records from the department. Despite the limitations,
the clinician conducted the evaluation and opined that the
mother "did not demonstrate the skills generally associated with
competence to stand trial."
The clinical evaluation of the father was more robust; the
clinician met three times (by telephone or video conference)
with the father, interviewed the father's then-current lawyer,
and reviewed documents the father provided. She concluded that
the father had neither a "cognitive defect" nor a "significant
mental illness that would interfere with his competency to
proceed at this time." She noted that, although the father had 11
"some mental health limitations," in her opinion they were not
"currently . . . a significant impediment to his competency to
proceed with his cases." The clinician opined that the father
"require[d] support to parse what is relevant detail for the
purpose of his defense in his case" and "does well with an
explanation of why certain data, which he believes is important,
does not contribute to his defense."
e. The father's representation. Before trial, while
represented by his fifth counsel, the father asked to represent
himself.2 At a status hearing on January 24, 2022, the father
informed the judge that he "was going to represent [himself] on
this hearing" and there was "a possibility that [he] may
continue to request for representing [himself] in a future
hearing." The judge explained that self-representation was not
available "on an event-by-event basis" and that the father's
lawyer could either represent him or act as standby counsel.
The father said he "definitely need[ed] a standby attorney with
[an] expanded scope of work."
On January 28, 2022, the father's counsel filed a motion to
withdraw. Citing a "respectful but irreconcilable disagreement"
2 The father had earlier asked to represent himself during the temporary custody hearing. The father, the mother, and the children appealed the temporary custody determination, which gave rise to Doretta I. They did not raise the issue of self- representation in that appeal, see Doretta I, 101 Mass. App. Ct. 584, and we do not consider that issue here. 12
about the role of standby counsel, counsel sought a "complete
withdrawal" and requested that the father be allowed to
represent himself. At a hearing on the January 28 motion, the
judge acknowledged the court clinic evaluation of the father's
competency to represent himself but noted that she was not
required to adopt its conclusions. The judge also made clear
that she had no reason to question the father's fifth counsel's
"level of preparedness or readiness to engage in representing"
the father.
During a colloquy with the father, the judge explained
that, if he represented himself, he would be bound by the same
rules, regulations, procedures, and practices as any practicing
lawyer. The father acknowledged that he understood, but stated
he was entitled to an accommodation under the Americans with
Disabilities Act (ADA). When the judge asked him what
accommodation he was seeking, the father raised "potential
judicial bias and judicial conflict of interest," and asked for
a change of venue.
The judge asked the father many times whether he was asking
to have his lawyer removed from the case. The father's answers
ranged from "I do believe that only a fool will have himself for
an attorney" to assertions that he was a victim of past
ineffective representation, to seeking to represent himself and
his children, to asking for standby counsel. The judge told the 13
father that he could not represent his wife or children and
again reminded him that, if he were to represent himself, he
would be bound by all the same rules and procedures as a lawyer.
After the judge took the motion to withdraw under advisement,
the father interrupted the hearing to repeat that he would need
standby counsel with an "expanded scope of work," including
administrative duties, such as typing e-mail messages. The
judge explained that this request demonstrated a
misunderstanding of the role of standby counsel.
The judge ruled that the father's fifth counsel could
withdraw as soon as successor counsel filed an appearance and
denied the father's request to represent himself and appoint
standby counsel. On a subsequent motion to reconsider, the
judge declined to alter her original order.3 No new counsel
filed an appearance, and trial began on February 6, 2023, with
the father represented by his fifth counsel.
The father made numerous requests to represent himself
during and after trial. These requests centered on the father's
3 At the father's request, the judge filed findings of fact and an explanation relative to her denial of the father's counsel's request to withdraw. Shortly thereafter, the father pursued an interlocutory appeal of the order. The single justice denied the father's petition noting that, after a review of the petition and supporting materials, the father had "not met his burden of establishing that the judge abused her discretion when denying" the father's request to represent himself. 14
dissatisfaction with counsel's trial strategy; in one, the
father explained that he had "200,000 exhibits" and needed "at
least a month of trial." After the close of evidence, the
father's counsel successfully sought to reopen the evidence and
then filed another motion to withdraw. The judge denied the
motion, noting that she had previously denied two similar
motions, and saw no "substantial difference" that warranted
reversal.
f. The mother's representation. By the time of trial, the
mother was represented by her third counsel, having been without
a lawyer for two status conferences.
The third counsel filed a motion to withdraw on December 9,
2022. Trial was scheduled to begin in February of 2023. At the
hearing on the motion, the mother's then-counsel stated that the
mother "completely disagree[d] with anything and everything [the
counsel] would want to do at this point" and would prefer to
represent herself, or, failing that, have substitute counsel.
The judge denied this request, noting that the court clinic
evaluation "suggested that self-representation was not
appropriate," and citing the multiple changes of counsel that
had resulted in significant delays and gaps in representation,
as well as the approaching trial date.
On August 25, 2023, the last day of trial, the third lawyer
filed a second motion to withdraw, asking the judge either to 15
allow the mother to proceed pro se, or to appoint new counsel.
This motion was denied. The judge relied on the court clinic
evaluation to find that the mother was not competent to waive
her right to counsel.
2. Discussion. a. The father's right of self-
representation at trial. We review the judge's denial of the
father's requests to represent himself de novo, affording
"'substantial deference' to the trial judge's factual findings
related to the loss of the right to counsel." Adoption of
Raissa, 93 Mass. App. Ct. 447, 452 (2018), quoting Commonwealth
v. Means, 454 Mass. 81, 88 (2009).
The father contends that he has a constitutional right to
self-representation in this care and protection case.4 He bases
his claim on criminal law, including art. 12 of the
Massachusetts Declaration of Rights, and Means, 454 Mass. at 88-
89. Because it helps to frame the issue, we begin with a short
summary of the right to self-representation.
The constitutional right to counsel in criminal cases is
well established under both Federal and Massachusetts law. See
United States v. Cronic, 466 U.S. 648, 653-654 (1984); Gideon v.
4Erik also purports to challenge the judge's orders relative to the father's and the mother's representation, but he has no standing to raise these claims. See Adoption of Mary, 414 Mass. 705, 713 (1993). 16
Wainwright, 372 U.S. 335, 343-345 (1963); Commonwealth v.
Dufresne, 489 Mass. 195, 203 (2022).
Under both Massachusetts and Federal law, a criminal
defendant also has a constitutional right of self-
representation. See Means, 454 Mass. at 89, citing Faretta v.
California, 422 U.S. 806, 821 (1975); Commonwealth v. Martin,
425 Mass. 718, 720-721 (1997). Both the right to counsel and
the right to represent oneself in criminal proceedings are
established by art. 12 ("every subject shall have a right to
. . . be fully heard in his defence by himself, or his council,
at his election"). The right of self-representation in the
criminal context "is not wholly unqualified," Commonwealth v.
Mott, 2 Mass. App. Ct. 47, 51 (1974), a thread we pick up later.
Parents facing the permanent loss of their children in care
and protection cases have both a constitutional right to
counsel, which is grounded in the Fourteenth Amendment to the
United States Constitution and in art. 10 of the Massachusetts
Declaration of Rights, and a statutory right to counsel. See
G. L. c. 119, § 29; Department of Pub. Welfare v. J.K.B., 379
Mass. 1, 3-4 (1979). As the Supreme Judicial Court explained,
"[t]he interest of parents in their relationship with their
children has been deemed fundamental, and is constitutionally
protected." J.K.B., supra at 3. "An indigent parent facing the
possible loss of a child cannot be said to have a meaningful 17
right to be heard in a contested proceeding without the
assistance of counsel." Id. at 4. The court further explained
that
"[t]he petition may well involve complex questions of fact and law, and require the marshalling and rebutting of sophisticated expert testimony. These aspects of adjudication underscore the necessity of affording appointed counsel to those defendant parents who contest the proceedings. Provision of appointed counsel not only safeguards the rights of the parents, but it assists the court in reaching its decision with the utmost care and an extra measure of evidentiary protection, required by law" (quotations and citation omitted).
Id.
Traditionally, Massachusetts "courts have looked to the
criminal law in deciding issues of individual rights in care and
protection cases." Adoption of Raissa, 93 Mass. App. Ct. at
452. See Care & Protection of Stephen, 401 Mass. 144, 149
(1987). Even so, courts have "repeatedly rejected incorporating
the full panoply of constitutional rights afforded criminal
defendants into proceedings involving custody and termination of
parental rights." Adoption of Don, 435 Mass. 158, 169 (2001).
This limit is grounded in the purpose of a care and protection
case, where "the State does not act to punish misbehaving
parents[,] but to protect children" (citation omitted). Id. at
168. The privilege against self-incrimination, Care &
Protection of Quinn, 54 Mass. App. Ct 117, 121 (2002), the right
to face-to-face confrontation, Adoption of Don, supra, and 18
principles of double jeopardy, Custody of a Minor, 375 Mass.
733, 746 (1978), are examples of constitutional rights deemed
essential in the criminal context, but not applicable in care
and protection proceedings.
Relying on Means and Faretta, the father asserts that he
has a constitutional right of self-representation. After
careful review, we consider the passing reference in Means, 454
Mass. at 89, relating to self-representation in civil cases to
be dictum and thus without precedential value. See Commonwealth
v. Rahim, 441 Mass. 273, 284-285 (2004). Means was a criminal
case, and the comment about civil cases was not dispositive to
the outcome. See Means, supra, citing Faretta, 422 U.S. at 821
("Just as criminal defendants have a constitutional right to be
represented by counsel, individuals in criminal and civil
matters have a constitutional right to represent themselves").
See also Martinez v. District Court of Appeal of Cal., 528 U.S.
152, 154 (2000) (Faretta "extend[s] only to a defendant's
constitutional right to conduct his own defense" [quotation
omitted]).
Unlike art. 12, which grants criminal defendants both the
right to counsel and the right of self-representation, there is
no provision in the Massachusetts Declaration of Rights that 19
speaks to the right of self-representation in civil cases.5 The
father has not briefed whether such a right can be inferred from
art. 10 of the Declaration of Rights, the Fourteenth Amendment
to the United States Constitution, or some other constitutional
provision, and he has cited no case (nor have we found one)
addressing a constitutional right of self-representation in the
context of a care and protection case. Moreover, although a
parent in a care and protection case has the same statutory
right of self-representation applicable to all Massachusetts
civil cases, G. L. c. 221, § 48,6 the father has not shown, or
even argued, that he was unlawfully deprived of his statutory
right or that he suffered resulting prejudice, as was his
burden. See Commonwealth v. A Juvenile (No. 2), 396 Mass. 215,
224 (1985) ("Ordinarily, . . . the deprivation of a statutory
right is not grounds for reversal unless the [party] can
demonstrate resulting prejudice").
5 Nor is there any such provision in the United States Constitution. Indeed, numerous courts have held in the civil commitment context that there is no Federal constitutional right to self-representation in civil cases. See, e.g., United States v. O'Laughlin, 934 F.3d 840, 841 (8th Cir. 2019), cert. denied, 589 U.S. 1283 (2020); Matter of V.H., 996 N.W.2d 530, 537 (Iowa 2023); Matter of S.M., 389 Mont. 28, 32, 38 (2017).
6 Parties in civil cases are statutorily permitted to "prosecute or defend their own suits personally, or by such attorneys as they may engage." G. L. c. 221, § 48. 20
In the case before us, however, we need not decide whether
parents have a constitutional right of self-representation in
care and protection cases because, if such a right exists, the
father did not properly exercise that right. Even in the
criminal context, where defendants do have a constitutional
right to self-representation, Faretta, 422 U.S. at 836; Means,
454 Mass. at 89, the right is not absolute. Mott, 2 Mass. App.
Ct. at 51. First, a defendant's request to exercise this right
"must be unequivocal." Id. "Second, the request should be
asserted before trial." Id. "Third, and perhaps most
important, the trial judge should be satisfied that the right is
being exercised knowingly and intelligently, and not for an
ulterior purpose." Id.
Before applying this test borrowed from the criminal law,
we pause to recognize that care and protection cases are
materially different from criminal cases because "the focus of
proceeding[s] [that terminate or curtail parental rights] should
be on the best interests of the child." J.K.B., 379 Mass. at 5.
See Adoption of Don, 435 Mass. at 169 (listing criminal
constitutional rights not afforded parents in proceedings
involving custody and termination of parental rights). Where
children's interests are at stake, "the balance to be struck"
between "the rights of the individual parent and the interest of
society" and the "rights and needs of the child" is "complex." 21
Adoption of Olivia, 53 Mass. App. Ct. 670, 677 (2002), quoting
J.K.B., supra. "[R]ecognition of important parental rights does
not change the 'crucial fact' that the focus of proceedings that
terminate or curtail parental rights should be the best
interest[s] of the child." Id. "The children's rights to a
stable and safe environment, therefore, assume an importance at
least equal to the parent's interest." Adoption of Olivia,
supra.
In criminal cases, by contrast, "where the accused is
harming himself by insisting on conducting his own defense,
respect for individual autonomy requires that he be allowed to
go to jail under his own banner if he so desires." Mott, 2
Mass. App. Ct. at 52, quoting United States ex rel. Maldonado v.
Denno, 348 F.2d 12, 15 (2d Cir. 1965), cert. denied sub nom.
DiBlasi v. McMann, 384 U.S. 1007 (1966).
With this distinction in mind, we turn to the three-part
inquiry from Mott, beginning with timeliness. A "defendant's
right to proceed pro se can be circumscribed if it is raised
during or on the eve on trial." Commonwealth v. Najjar, 96
Mass. App. Ct. 569, 578 (2019). "It is in these situations that
the judge must weigh 'the interests of the courts and the public
in efficient trial administration' with 'a showing of good cause
to support the defendant's motion.'" Id., quoting Commonwealth
v. Chavis, 415 Mass. 703, 712 (1993). This good cause 22
requirement "is designed to protect efficient trial
administration, not to protect a defendant from making a poor
decision." Id. at 578-579. The timely adjudication of child
custody cases is no less urgent than the timely adjudication of
criminal cases. See Adoption of Valentina, 97 Mass. App. Ct.
130, 134 (2020). A careful review of the record reveals one
pretrial request by the father: the January 28, 2022 motion to
withdraw and the associated May 9, 2022 motion to reconsider.
The father's remaining requests were made after trial began, so
it was within the judge's discretion to deny them, and we need
not consider them here. Najjar, supra.
We are not convinced that the father's pretrial request was
unequivocal. Although the written motion unambiguously sought
the court's leave for counsel to withdraw, the father vacillated
when questioned by the judge. The father's "vacillat[ion] in
his requests between several different arrangements regarding
his representation" demonstrates the request was not
unequivocal. Commonwealth v. Chapman, 8 Mass. App. Ct. 260, 266
n.4 (1979).
The father's behavior stands in stark contrast to that of
the criminal defendant in Mott, who told the judge that he would
prefer to defend himself, was "ready for trial," and had to
"think of [his] case the way [he] figure[d] [was] better for
[him]." Mott, 2 Mass. App. Ct. at 49 n.2. See Najjar, 96 Mass. 23
App. Ct. at 581 (defendant engaged in "extensive pretrial
dialogue" with judge and gave "unequivocal responses" to
questions about proceeding pro se). In the circumstances, we
cannot conclude that the father's pretrial request to represent
himself was unequivocal.
Even if the father's request was unequivocal, we conclude
that his request would still fail because it was not being
exercised "knowingly and intelligently, and not for an ulterior
purpose." Mott, 2 Mass. App. Ct. at 51. To analyze this
factor, in a criminal case, "the trial judge should conduct some
sort of inquiry once the defendant has made a timely and
unequivocal request in order to ascertain the defendant's
motives for asserting the right." Chapman, 8 Mass. App. Ct. at
265, citing Mott, supra at 52.
Although the judge did not conduct a colloquy explicitly
directed at answering this question, it is evident both from her
extended discussion with the father at the March 8, 2021 hearing
and from her written findings denying the father's January 28
motion that she concluded that the father's request did not pass
this test. For example, the judge found that the father's
actions repeatedly delayed the proceedings, noting that the
"[f]ather has consistently interrupted and spoken out asserting
his thoughts and opinions during court events, sometimes related
to the matter being discussed, and often relating to other 24
issues entirely." After reviewing the clinic evaluation and
seeing the father in court, the judge found she had "no
confidence in [the] [f]ather's ability to maintain proper
courtroom decorum, follow procedural rules, or abide by [c]ourt
orders and directions." These findings support the denial of
the father's request to represent himself. Contrast
Commonwealth v. Conefrey, 410 Mass. 1, 11-12 (1991) (no ulterior
purpose could be presumed where nothing in record suggested
defendant "would [not] cooperate in good faith with rulings and
directions of the judge throughout the trial . . . ."); Chapman,
8 Mass. App. Ct. at 267 (where nothing in record showed
defendant was trying to delay proceedings, it cannot be said he
"waived his right by asserting it to further an ulterior,
dilatory purpose"). The judge's assessment of the situation
finds support in the father's requests to try his case with
20,000 to 200,000 exhibits and up to 200 witnesses.
And, crucially, this was not a criminal case. We end this
analysis where we began, with the unique characteristics of care
and protection cases. See, e.g., Adoption of Don, 435 Mass. at
169; Adoption of Valentina, 97 Mass. App. Ct. at 134 ("judge
must balance the interests of the parent with the child[ren]'s
interest in finality"). The children, with special needs
ranging from mild to severe, had been removed from their
parents' care for eight months when the judge issued her 25
findings on the January 28 motion. Even if the father's
interest in representing himself was constitutionally protected,
in the circumstances of this case the judge did not err in
denying the father that opportunity. See Adoption of Ilona, 459
Mass. 53, 61 (2011) ("the parents' rights are secondary to the
child's best interests and . . . the proper focus of termination
proceedings is the welfare of the child" [citation omitted]).
b. The father's right of self-representation on appeal.
The father also asserted, in an emergency preargument filing,
that he had a right to self-representation on appeal. Even in
the criminal context, there is no such right under the United
States Constitution, see Martinez, 528 U.S. at 163, and we have
found no case recognizing one under the Massachusetts
Declaration of Rights. Rather, appellate courts may exercise
their discretion in deciding whether to allow nonlawyers to
represent themselves on appeal. See id. Given the eleventh-
hour timing of the father's request, the challenge of balancing
the priorities of care and protection cases and self-
representation by a parent, and the "significant differences
between the trial and appellate stages" of a case (citation
omitted), id. at 162, we exercised our discretion to deny the
father's request.
c. Counsel for the mother. The mother contends that her
due process rights were violated because she did not have 26
appointed counsel during "critical hearings," and was
subsequently "forced to retain counsel not of her choice." The
mother makes no argument as to what transpired at these hearings
or how they were "critical." We have reviewed the transcripts
of the two status hearings held while the mother was without an
attorney and see no rulings that give us pause. The judge
steered clear of any substantive discussion related solely to
the mother, noting that efforts were underway to provide her
with new lawyers, and that matters including the mother's ADA
meeting would be scheduled after she had counsel.
The mother's brief strongly conveys her dissatisfaction
with counsel but fails conclusively to tie that dissatisfaction
to a particular legal framework. Although she adverts to
Faretta, she failed to assert that any ruling by the judge
denying a self-representation request was error. Application of
the Mott framework is therefore not called for. The mother
disclaims any ineffective assistance of counsel, so we do not
apply the Saferian standard, see Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). See also Adoption of Raissa, 93 Mass. App.
Ct. at 455. The nub of her objection seems to be that she did
not have "a representative who would handle the case in the
manner that [the] mother requested," and did not "want the
counsel that will not accede to her demands." But we are aware
of no principle, and the mother cites none, that dictates a 27
client is entitled to counsel who will "follow her theory of the
case." See Commonwealth v. Moran, 17 Mass. App. Ct. 200, 204
(1983). "The right to counsel does not include the right to
dictate who shall be appointed"; in the absence of demonstrated
"good cause" to substitute counsel, a "perceived lack of a
meaningful relationship" is not "grounds for discharging [a]
lawyer." Adoption of Olivia, 53 Mass. App. at 675. There was
no error.
d. Sufficiency of the evidence. A judge's decision to
terminate parental rights must be supported by "clear and
convincing evidence, based on subsidiary findings proved by at
least a fair preponderance of evidence, that the parent is unfit
to care for the child and that termination is in the child's
best interests." Adoption of Arianne, 104 Mass. App. Ct. 716,
720 (2024), quoting Adoption of Xarissa, 99 Mass. App. Ct. 610,
615 (2021). "We review the judge's findings with substantial
deference, recognizing her discretion to evaluate a witness's
credibility and to weigh the evidence." Adoption of Nancy, 443
Mass. 512, 515 (2005). We "reverse only where the findings of
fact are clearly erroneous or where there is a clear error of
law or abuse of discretion." Adoption of Ilona, 459 Mass. at
59. Having considered the parties' arguments and reviewed the
extensive record, we see no reason to disturb the judge's
findings of unfitness or the best interests determinations. 28
"Parental unfitness must be determined by taking into
consideration a parent's character, temperament, conduct and
capacity to provide for the child in the same context with the
child's particular needs, affections, and age." Adoption of
Mary, 414 Mass. at 711. See Adoption of Quentin, 424 Mass. 882,
887 (1997) ("judge may consider whether parental behavior
adversely affects the child"). In making the best interests
determination, the judge was entitled to weigh the evidence as
she saw fit, and "[w]e do not sit as a trial court to review de
novo the evidence presented by the parties." Adoption of Paula,
420 Mass. 716, 730 (1995).
Here, the judge's findings identified each of the
children's individual needs, including the need for "a safe and
secure home, with parents who can put the [c]hildren's needs
first, and assure that their educational, developmental,
emotional, mental, and physical health needs are consistently
met." The father, the mother, and Erik do not contest any of
the specific findings relative to the needs of the children.
Nor do they contest the findings that the father's "detrimental
patterns of behavior" hamper his "ability to initiate, engage,
accurately report, and follow up with" service providers; that
his "[rigid] and insistent methods often result in no services
or assistance at all"; and that "it is emotionally abusive and
neglectful to require that the [c]hildren join in perpetuating 29
his untruths." Instead, the majority of the father's, the
mother's, and Erik's claims about the evidence of unfitness
"amount to no more than dissatisfaction with the judge's
weighing of the evidence and [her] credibility determinations."
Adoption of Quentin, 424 Mass. at 886 n.3.
The father also contends that the lack of expert evidence
establishing a nexus between his mental health and any instances
of neglect precluded the judge from finding that "[t]he barriers
to [the] [f]ather's safe parenting of the [c]hildren are rooted
in his untreated mental health issues." We are not persuaded.
The father's behavior was one of several factors the judge
properly considered in determining the father's unfitness. See
Care & Protection of Vick, 89 Mass. App. Ct. 704, 709 (2016)
(parent's "over-all demeanor . . . was one of several factors
that contributed to [their] parental shortcomings"); Adoption of
Eduardo, 57 Mass. App. Ct. 278, 282-283 (2003) (judge did not
err in considering parent's mental illness to extent it
explained inability to provide for child). Although the father
unquestionably loves the children, the judge thoroughly detailed
the link between the father's detrimental patterns of behavior
and his unfitness. We see no reason to disturb the judge's
findings.
The record evidence is also sufficient to demonstrate the
mother's unfitness. Although she too unquestionably loves the 30
children, her visits with both Doretta and Daniel were extremely
upsetting to the children; she did not engage in her action plan
tasks, and her relationship to the world -- including the
department and the children's service providers -- was solely
through the father, resulting in a lack of cooperation. The
judge found that the mother "is a willing participant in the
family dynamic that allows [the] [f]ather to be in total
control, and she persists in this position despite the negative
consequences, all to the [c]hildren's detriment."
The record amply supports the judge's findings that the
children suffered damage to their psychological, emotional, and
moral development while in the parents' custody. Furthermore,
"the judge was entitled to focus on the consistent inability or
unwillingness of the parents to cooperate with service plans and
the comparative improvement" of the children in their
preadoptive placements. Custody of Michel, 28 Mass. App. Ct.
260, 270 (1990). See Adoption of Carla, 416 Mass. 510, 519-520
(1993). "[T]he judge [was] not required to grant the [parents]
an indefinite opportunity to reform," and, in considering the
evidence that their unfitness was not temporary, and that they
had not complied with their service plans, "the judge . . .
properly determine[d] that the child[ren]'s welfare would be
best served by ending all legal relations between [the] 31
parent[s] and [the] child[ren]." Adoption of Cadence, 81 Mass.
App. Ct. 162, 169 (2012).
e. The father's access to case records. The father also
asserts that his due process rights were violated because he was
denied access to his case records and thus precluded from
participating meaningfully at trial and assisting his counsel.
Given the timing and nature of his requests, we are unpersuaded.
The father's sole pretrial request for these materials was
a contingent one made in the context of his counsel's January
28, 2022 motion to withdraw; counsel asked that, if he were
allowed to withdraw, he be permitted "to deliver . . . all
materials received by [him] from the [department], and/or prior
counsel" to the father. This request became moot when the judge
denied the motion for the father to represent himself.
The father also rests this claim on the midtrial denial of
a motion for fees and costs to obtain a transcript of the
previous days of trial, asserting that his disabilities
prevented him from taking notes, and that future trial dates
needed to be postponed for the father "to review the transcript
and prepare for his rebuttal testimony." The father does not
challenge the judge's findings, in denying the request, that in
fact he could write and take notes. We conclude that the denial 32
of this motion did not hinder the father's ability to rebut the
allegations against him.7
f. Conclusion. The decrees are affirmed. The order
denying the amended and renewed motion to reopen evidence is
affirmed.
So ordered.
7 The father also relies on a December 2023 pro se motion seeking access to the court case records. Because this motion postdated trial, its denial could not have meaningfully affected the father's ability to participate in the trial or assist his counsel.