NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1138
ADOPTION OF IGOR. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree of the Juvenile Court
finding her unfit to parent the child, terminating her parental
rights, and dispensing with her consent to the adoption of the
child. 2 See G. L. c. 119, § 26; G. L. c. 210, § 3. Represented
by counsel on appeal, she argues that she was not competent to
waive her right to trial counsel; she also challenges the
sufficiency of certain of the judge's findings. We affirm.
Background. In March 2019 the Department of Children and
Families (DCF) commenced a care and protection proceeding in the
Juvenile Court on behalf of the child, who was then four years
old. 3 The judge ordered an emergency mental health screening of
the mother and referred her to the court clinic for an
1 A pseudonym. 2 The child's "unknown/unnamed father" was also found unfit and his rights were terminated. 3 In 2020, DCF changed its goal to the termination of the
mother's parental rights. evaluation of her competency to respond to the proceeding and to
engage in a temporary custody hearing (or waive her right to
one). 4 The same judge presided over all subsequent matters in
the proceeding. On June 7, 2021, the first day of trial, the
mother's court-appointed attorney, her fifth in the case,
informed the judge that the mother was meeting with her
therapist "so that she could better [be] able to address the
[c]ourt in kind of the way she wants to proceed on this case";
he also moved to withdraw. The judge ordered a competency
screening (screening evaluation) at the court clinic, which was
conducted that same day by a second clinician. The mother
complied with the order.
Thereafter, the judge conducted a two-day hearing on the
motion to withdraw and the mother's earlier request to represent
herself (competency hearing). During the hearing, the judge
warned the mother of the "pitfalls" and the potential dire
consequences of representing herself, including the termination
4 In a report dated March 22, 2019, a clinician (first clinician) opined that the mother had a factual understanding of the roles of the attorneys, the judge, and court procedures; the mother "demonstrated a rational understanding of how a judge considers evidence and testimony at a hearing to make a determination"; and that while the mother "demonstrated a tangential thought process . . . her thought content was free of delusion or paranoid beliefs." The first clinician opined that further evaluation was required "to clarify the nature of her impaired thought process." Another clinician opined that hospitalization was not required.
2 of her parental rights and the adoption of the child; he further
counseled her it would not be in her best interest to waive her
experienced counsel. He also explained her numerous duties with
regard to the trial process, and unsuccessfully tried to talk
her out of self-representation. After two colloquies with the
mother on June 8 and June 9, 2021, the judge determined that she
was competent to waive her right to counsel and that she had
made an informed decision to represent herself. He appointed
the same attorney as standby counsel to assist her.
In his written decision issued on the following day, the
judge made detailed findings of fact and explained his decision.
First, the judge continued to credit the opinion of the first
clinician that the mother was competent to participate in the
proceedings. See Commonwealth v. Scionti, 81 Mass. App. Ct.
266, 273 (2012) (prior mental health evaluations are relevant to
competency determination). Next, based on his numerous
observations of and conversations with the mother, the judge
found that the mother had been "actively engaged in her defense
of this [p]etition," had appeared at all pretrial hearings, and
understood that DCF had removed the child from her custody as a
result of allegations that the child was neglected. As evidence
of the mother's understanding and insight into the trial
process, the judge noted the mother's research into the child's
rights under the Indian Child Welfare Act, and her questioning
3 on how the judge could ignore hearsay he had struck in limine at
the trial (where he would serve as the fact finder). See
Commonwealth v. Corbett, 98 Mass. App. Ct. 34, 38-39 (2020) (in
making competency determination judge may rely on own
observations and direct knowledge of events). Next, the judge
observed that none of the mother's court-appointed attorneys had
suggested that she did not or could not understand the
proceedings, and further that her attorney at the time of trial,
who attended her screening evaluation on June 7, had not
requested the mother be evaluated for competency. 5 See id. at 39
("impressions of counsel" are relevant to judge's competency
determination). The judge found that while the mother was
"overly verbose and often interrupts," there was "no indication
that she [was] unaware of the nature of the proceeding nor its
significance," and that her responses to his questions
demonstrated she understood the issues in the case. See
Scionti, supra (judge is "entitled to place great weight on
[his] own communications with the defendant"). The judge
further explained that earlier in the case, he had successfully
talked the mother out of representing herself, but at the time
of trial, and despite the judge's express request that she
5 On June 9, 2021, in response to a direct question from the judge, that attorney said that he was not asking for a competency evaluation of the mother.
4 reconsider her decision, the mother was "adamant" that she
wanted to represent herself. Drawing from the Judicial
Guidelines for Civil Hearings Involving Self-Represented
Litigants (2006), the judge informed the mother of her duties
regarding evidentiary and procedural rules, and the mother
responded that she understood she would be required to follow
the rules, and that termination of parental rights was a serious
matter sometimes referred to as a "civil death penalty" case.
To support his finding that the mother understood the severity
of the matter and was aware of what she was "requesting of the
court," the judge took "particular notice" of the mother's prior
experience in a different care and protection proceeding in
which the mother had prevailed. Based on his subsidiary
findings, the judge ultimately concluded that "the mother has a
rational and factual understanding of the proceeding and its
potential consequences and that she has waived her right to
counsel intelligently, knowingly and voluntarily." 6
6 Trial was rescheduled to begin on June 16, 2021, but the mother arrived late on that date and again on the following day. Noting that the mother had not managed to "make it to court" on the previous day until around 3:45 P.M., the judge drew an adverse inference against the mother and allowed the trial to begin on June 17. When the mother arrived during the testimony of the second witness, the judge conducted a third colloquy with her, this time under oath. After confirming the mother's understanding of the magnitude of her undertaking, the nature of the proceeding, and the potential consequences, the judge confirmed his earlier findings on her competency to waive counsel and the validity of her waiver. At that time, the
5 Following forty-five days of trial, the judge concluded
that the mother was currently unfit and that her unfitness was
"likely to continue into the indefinite future to a near
certitude." He further concluded that termination of the
mother's parental rights and DCF's permanency plan were in the
best interests of the child. Accordingly, he approved DCF's
permanency plan of adoption. This timely appeal from the decree
followed.
Discussion. 1. Waiver of the right to counsel. The
mother's primary argument is that the judge committed structural
error by allowing her to waive her constitutional right to an
attorney. We are not persuaded.
In parental termination proceedings, courts look to the
criminal law for guidance in assessing whether a waiver of the
right to counsel was valid. See Adoption of William, 38 Mass.
App. Ct. 661, 663-664 (1995). As to a criminal defendant who
seeks to waive counsel, "a judge must determine both that the
waiver is knowing and voluntary and that the defendant is
competent to make it." Commonwealth v. Haltiwanger, 99 Mass.
App. Ct. 543, 555 (2021), citing Godinez v. Moran, 509 U.S. 389,
400-401 (1993). See Commonwealth v. L'Abbe, 421 Mass. 262, 268
(1995) (two-part inquiry required). "Because mental illness
mother executed a waiver of the right to counsel, which the judge certified.
6 itself is not a unitary concept, there is no single mental
competency standard for deciding both (1) whether a defendant
who is represented by counsel can proceed to trial and (2)
whether a defendant who goes to trial must be permitted to
represent himself" (quotation, footnote, and citation omitted). 7
Haltiwanger, supra at 555-556. "[T]he competence that is
required of a defendant seeking to waive his right to counsel is
the competence to waive the right, not the competence to
represent himself" (citation omitted). Id. at 555. To conclude
that a waiver of the right to counsel was "voluntary,
unequivocal, knowing and intelligent" and thus valid, Adoption
of William, 38 Mass. App. Ct. at 663, an appellate court "must
be confident that [the mother] was adequately aware of the
seriousness of the [proceedings], the magnitude of [her]
undertaking, the availability of advisory counsel, and the
7 "[T]here does not seem to be any significant difference between competency to stand trial and competency to waive counsel." Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 516 (2011) (Kantrowitz, J., dissenting). See L'Abbe, 421 Mass. at 268. A defendant is competent to stand trial unless her "mental condition is such that . . . [she] lacks the capacity to understand the nature and object of the proceedings against . . . [her], to consult with counsel, and to assist in preparing . . . [her] defense" (citation omitted). Corbett, 98 Mass. App. Ct. at 35. "[U]ltimately competency is based on the defendant's functional abilities," Scionti, 81 Mass. App. Ct. at 273, a standard that requires "sufficient present ability to consult with [her] lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against [her]." Commonwealth v. Companonio, 445 Mass. 39, 48 (2005).
7 disadvantages of self-representation" (quotation and citation
omitted). Id. at 665. We review a judge's competency
determination for abuse of discretion, Scionti, 81 Mass. App.
Ct. at 273, giving "substantial deference to his findings of
fact because the judge had the opportunity to view the witnesses
in open court and to evaluate the defendant personally."
Commonwealth v. Prater, 420 Mass. 569, 574 (1995). A claim of a
violation of the defendant's right to counsel is reviewed de
novo. See Commonwealth v. Means, 454 Mass. 81, 88 (2009).
Here, we discern no abuse of discretion in the judge's
determination that the mother was competent to waive her right
to counsel. The record establishes that out of concern for the
mother's competency, the judge sent her for a screening
evaluation, and conducted a two-day hearing on the matter. See
Haltiwanger, 99 Mass. App. Ct. at 556. On the second hearing
date, the two clinicians who had evaluated the mother were
present. Before allowing her attorney's motion to withdraw and
the mother's request to represent herself, the judge held two
colloquies with the mother; after the second, the mother waived
her right to counsel. In addition to his oral findings from the
bench, the judge made the written findings required by S.J.C.
Rule 3:10, § 3, as appearing in 475 Mass. 1301 (2016). 8 See
8 The competency hearing was held over the Zoom platform due to COVID-19 protocols that were then in place. In his written
8 Haltiwanger, supra at 556-557. All of this occurred before the
rescheduled trial date. At their first in-person meeting on
June 17, 2021, eight days after the competency hearing, the
judge conducted a third colloquy under oath, obtained a written
waiver of counsel form from the mother, and certified her waiver
of counsel. See Commonwealth v. Johnson, 80 Mass. App. Ct. 505,
511 (2011) (formal waiver colloquy should be conducted and
written waiver obtained "as soon as the defendant expressed his
desire to represent himself, or shortly thereafter").
The judge cannot be faulted for the mother's failure to
show up on time for trial on June 16 and June 17. In any event,
given the procedural history of the case, any error in the
judge's allowing the trial to proceed in her absence (and
without an executed written waiver in place) does not constitute
structural error requiring reversal. Contrast Johnson, 80 Mass.
App. Ct. at 510-511 (constitutional error occurred where first
informal colloquy between defendant and judge occurred on first
day of trial, formal waiver did not occur until second day of
trial, and defendant had earlier been permitted to represent
himself for eighteen months, including during "critical" stages
of pretrial proceedings).
decision permitting the mother to represent herself and allowing the attorney's motion to withdraw, the judge stated that the "[m]other shall execute the [w]aiver of [c]ounsel form."
9 On appeal, the mother argues that her waiver was not
unequivocal. It is true that the mother initially equivocated
about whether she wanted to represent herself, and although her
attorney represented to the judge that he had filed the motion
to withdraw with her knowledge, when questioned about it by the
judge the mother refused to take a position on the motion. This
led to the judge continuing the competency hearing until the
next day in order to give the mother the opportunity to speak
with her attorney about the motion. The mother also brought up
many irrelevant matters and engaged in some rambling discourse
with the judge. However, when focused by the judge, the mother
confirmed during the second colloquy that she had sufficient
time to speak with her attorney, she wanted to represent herself
as was her right, and she was agreeing to the motion for her
attorney to withdraw and to the standby counsel arrangement. 9 In
short, the evidence amply supported the judge's finding that the
mother understood the nature of the proceedings and had waived
her right to counsel knowingly, intelligently, and voluntarily. 10
9 Her attorney also confirmed that the mother had told him she wanted to represent herself with his assistance as standby counsel, and that he was satisfied he had a sufficient discussion with the mother outlining what would be entailed in self-representation. The attorney had made similar statements to the judge at the June 8, 2021, hearing. 10 As further evidence that her waiver was "equivocal," the
mother points to language she added to the waiver form stating that she was a "woman under duress." The trial judge questioned the mother about those words, and informed her that if she was
10 Nor did the judge abuse his discretion in his handling of
the report from the clinician who performed the screening
evaluation. That clinician opined that the mother had some
deficits in understanding the case and that the mother "would
encounter difficulty if she were to represent herself."
However, as the judge noted, the clinician did not opine that
the mother had any major mental illness or impairment and
stopped short of opining that the mother was unable to represent
herself. 11 Nothing in the report compelled the judge to find the
mother incompetent to waive her right to counsel. "While it may
be useful for a judge to hear opinions from medical experts, the
determination [of competency] is ultimately a legal, not a
medical, judgment." Commonwealth v. Carson C., 489 Mass. 54, 58
(2022), quoting Commonwealth v. Jones, 479 Mass. 1, 14 (2018).
2. Adequacy of the judge's findings. The mother argues
that the judge's findings (1) "do not clearly and convincingly
show that [the] mother's mental health issues had any nexus with
her ability to provide minimally adequate care for her [child]";
claiming duress, he would not accept the waiver and would appoint counsel to represent her as well as a guardian ad litem. The mother clarified that the duress referred to other matters including "any contact with the [DCF]"; she stated that she was "not under duress to waive the counsel," and that no one had forced her to waive the right. 11 As the mother points out, she told the clinician that she
would prefer to have an attorney. However, when the judge asked her about this very statement during the June 17 colloquy, she reversed course.
11 and (2) do not explain how those issues and her behavior
impacted her parenting or posed a future risk of harm to the
child. She also argues that the judge made no findings as to
how her mental health issues resulted in abuse or neglect of the
child. We disagree.
The mother's lack of treatment for mental health issues was
just one of her "grievous shortcomings" upon which the judge
based his finding of unfitness. 12 Other shortcomings included
her "failure to understand the impact of her mental health on
[the child], her lack of stable housing, her lack of action plan
compliance and/or her failure to meaningfully benefit from the
services to which she engaged, her failure to present to visits,
appointments, and trial on time or at all, her continued
instability in terms of her lifestyle and romantic
relationships, and her lack of insight into her shortcomings as
a parent." All of these factors were relevant considerations
and supported the judge's finding of unfitness. See Adoption of
Mary, 414 Mass. 705, 711 (1993). See also Adoption of Greta,
431 Mass. 577, 587-588 (2000) (affirming decree where "it was
clear from the judge's careful and comprehensive findings and
12At trial, the mother denied having any mental health issues at all. The judge found that the full extent of her issues could not be determined "due to her refusal to engage in consistent treatment, complete requested evaluations, and cooperate with [DCF]."
12 his rationale for the decree that his judgment was not based
simply on . . . [the mother's] psychiatric problems . . . but
rather on a constellation of factors that pointed to termination
as being in the best interests of the child").
As for nexus, the judge did explain the impact of the
mother's mental health issues and behavior on the child. For
example, the judge found that after the mother "made
inappropriate statements about her anxieties and concerns" in
front of the child, the child would "manifest anxiety, mimicking
[the] mother's behavior." 13 Among other findings of negative
impact upon the child caused by the mother's "lack of insight,"
the judge noted that the child displayed symptoms of anxiety
during visits with the mother and "became emotional" following
the mother's inappropriate statement about the foster parent.
As for future risk of harm to the child, the judge found that
the mother's "longstanding history of meeting random men on
dating websites" -- a practice that continued during the
proceedings -- had "expos[ed] [the child] to unsafe
13The judge gave several specific examples of "concerning" statements and found that the mother did not understand the impact of her behavior and statements on the child. The judge further found that the mother endorsed beliefs not based in reality such as repeatedly stating that the child was "kidnapped," and that the mother failed to shield the child from her own anxieties. The judge, consistent with the evidence, found that the mother's statements provoked anxiety, fear, and nervousness in the child.
13 individuals." The judge noted that the child had witnessed many
instances of domestic violence and "most concerning," the child
had been hit during one violent episode. The judge explained
how the mother's continued risky behaviors, including her
failure to acknowledge the full extent of domestic violence in
her romantic relationships, placed the child at risk of future
abuse and neglect.
To the extent that the mother points to evidence of her
positive parenting, the judge was not required to credit it or
to give it any special weight. See Care & Protection of
Jamison, 467 Mass. 269, 280 (2014) (appellate courts give
substantial deference to trial judge's findings based on witness
credibility and weight of evidence).
The judge explained how the mother's actions and behavior
demonstrated that she could not "be an adequate, consistent
caregiver for [the child]." 14 The judge concluded, based on the
14As examples, the judge noted the mother's failure to meet with DCF consistently to discuss her action plan tasks as well as the mother's failure to arrive on time or to attend her visits consistently, which the judge found "considerably impact[ed] the amount of time she was able to spend with [the child]." The judge found that the mother's "lackadaisical attitude" in this regard "adversely impacted" the child. The judge further found that this behavior as well as her behavior in court demonstrated her inability to be a "stable, consistent caregiver" for the child. The judge found that the mother was unable to adhere to a consistent routine; when asked what her plan was for providing the child with structure and routine, the mother did not acknowledge the importance of routine.
14 mother's belief that she had no parental deficiencies, "it is
unlikely that her parenting, mental health or personal issues
will be addressed in the near future. Due to these
shortcomings, [the child] would be endangered if this court were
to place [the child] in [m]other's custody."
Conclusion. For the reasons discussed above, we conclude,
first, that the trial judge did not err by allowing the mother
to waive her constitutional right to an attorney, and second,
the judge did not err in finding the mother unfit or abuse his
discretion in terminating the mother's parental rights.
Decree affirmed.
By the Court (Sacks, Grant & Smyth, JJ. 15),
Clerk
Entered: August 23, 2023.
15 The panelists are listed in order of seniority.