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
23-P-339
ADOPTION OF NEESA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree issued by a judge of the
Juvenile Court terminating his parental rights to his daughter,
Neesa, who was eight years old at the time of trial in May 2022.2
On appeal, the father claims that his attorney (hereinafter,
counsel) was not prepared to represent him and, as a result, he
was denied his right to the effective assistance of counsel. He
further argues that the judge abused her discretion when she
denied his motion for a short continuance once it became clear
that counsel, who stated that she was not prepared, had not
spoken with the father for the prior three months, had not
1 A pseudonym.
2The mother's parental rights were terminated at a separate trial in August 2021. She has not appealed and is not a party to these proceedings. attended the pretrial conference, had no witness or exhibit
list, and wanted to withdraw from the case and have substitute
counsel appointed. Given these circumstances, we are
constrained to vacate the decree and remand the case for further
proceedings.
Background. Neesa was born in April 2014, to unmarried
parents. She lived with her mother until January 2018 when the
Department of Children and Families (DCF) obtained emergency
custody and placed her in a foster home that subsequently became
her preadoptive home. Neesa was residing in that home at the
time of the father's termination of parental rights trial.
Neesa has never lived with the father, who was incarcerated for
much of Neesa's life and was in jail on pending charges when the
trial commenced.3 At the conclusion of a five-day trial, the
judge issued detailed findings of fact and conclusions of law
that amply supported her finding that the father was currently
unfit and that Neesa's best interests would be served by a
decree terminating the father's parental rights. Because we
conclude that the decree must be vacated, we need not recite
those findings here. It suffices to note that the judge was
3 The father did not sign Neesa's birth certificate when she was born and was not recognized as her legal father until he took a paternity test following Neesa's removal from the mother's custody.
2 presented with substantial evidence of the father's unfitness,
and, in fact, he does not argue otherwise. To the contrary, the
father acknowledged at trial that he was not then ready to
assume custody of Neesa.4 He was in jail, and even though he was
confident that he would soon be released, he had no firm
prospects for employment or stable housing. In recognition of
his inability to care for Neesa in the immediate future, he
proposed that Neesa be placed with his mother (paternal
grandmother). However, neither he nor counsel had contacted the
paternal grandmother prior to trial to discuss that proposed
plan, and she was not present at the trial. Although the
paternal grandmother had, at one point, filed a petition for
guardianship, the judge found that contact between Neesa and the
paternal grandmother was limited and that she had not followed
through with the petition. Ultimately, the judge dismissed the
guardianship petition and concluded DCF's proposed permanency
plan of adoption with the current preadoptive family to be in
Neesa's best interests.
4 The father also acknowledged that it would be difficult for Neesa to leave her preadoptive family and that Neesa would need time to adjust to a permanent change in custody. There was no dispute that by the time of trial Neesa had developed a close bond with her preadoptive family. DCF's bonding and attachment expert witness, Dr. Rachmaciej, testified that he conducted an assessment of Neesa with her preadoptive family and opined that if Neesa were to be removed from that home, she would likely suffer psychological stress and harm.
3 We now turn to the facts that are relevant to the father's
claim that counsel did not provide him with effective
assistance. A week prior to trial, on May 16, 2022, counsel
filed an emergency motion to continue the trial or, in the
alternative, to appoint substitute counsel. The motion was
heard the day before trial commenced. At that time, counsel
explained that she had just finished a year-long trial and was
withdrawing from all of her care and protection cases. She
acknowledged that she had not spoken with the father for the
prior three months and was not prepared to go forward. Counsel
further explained that, given this lack of contact, she "was not
able to submit a pretrial final witness and exhibit list." She
also stated that there were a few other witnesses (in addition
to the paternal grandmother) that the father wanted to call to
testify on his behalf. Thereafter, it came to light that
counsel had not appeared for trial on a prior scheduled trial
date and had not been present at the final pretrial conference.
The father was present at the hearing, and he addressed the
judge directly. He stated that he was unaware that a trial date
had been scheduled and joined in counsel's request for
additional time so that he could "get all [his] ducks in a row
to handle this properly." He further indicated that he had
4 witnesses that he wanted to testify on his behalf.5 In response
to the judge's questions as to why he had not yet contacted
these witnesses, the father explained that he did not have
access to his cell phone while in jail and therefore could not
contact any family members. He then informed the judge that he
believed he would remain incarcerated for "no more than [sixty]
days, [at] the most," and was asking for a short continuance.6
On the second day of trial, counsel renewed her motion to
withdraw based on a breakdown in the attorney-client
relationship. That the father and counsel's relationship was in
jeopardy became evident when, at a later point in the trial, the
father told the judge that he believed counsel's feelings toward
her own father had a deleterious effect on the attorney-client
relationship. Then, on the last day of trial, counsel raised
the issue of her motion to withdraw again. This time, counsel
expressed concern that the father did not believe he was
receiving adequate representation. Counsel also requested
permission for the father to present his own closing argument so
that "he feels he's being effectively represented or something
5 Ultimately, the father did not call any witnesses.
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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
23-P-339
ADOPTION OF NEESA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree issued by a judge of the
Juvenile Court terminating his parental rights to his daughter,
Neesa, who was eight years old at the time of trial in May 2022.2
On appeal, the father claims that his attorney (hereinafter,
counsel) was not prepared to represent him and, as a result, he
was denied his right to the effective assistance of counsel. He
further argues that the judge abused her discretion when she
denied his motion for a short continuance once it became clear
that counsel, who stated that she was not prepared, had not
spoken with the father for the prior three months, had not
1 A pseudonym.
2The mother's parental rights were terminated at a separate trial in August 2021. She has not appealed and is not a party to these proceedings. attended the pretrial conference, had no witness or exhibit
list, and wanted to withdraw from the case and have substitute
counsel appointed. Given these circumstances, we are
constrained to vacate the decree and remand the case for further
proceedings.
Background. Neesa was born in April 2014, to unmarried
parents. She lived with her mother until January 2018 when the
Department of Children and Families (DCF) obtained emergency
custody and placed her in a foster home that subsequently became
her preadoptive home. Neesa was residing in that home at the
time of the father's termination of parental rights trial.
Neesa has never lived with the father, who was incarcerated for
much of Neesa's life and was in jail on pending charges when the
trial commenced.3 At the conclusion of a five-day trial, the
judge issued detailed findings of fact and conclusions of law
that amply supported her finding that the father was currently
unfit and that Neesa's best interests would be served by a
decree terminating the father's parental rights. Because we
conclude that the decree must be vacated, we need not recite
those findings here. It suffices to note that the judge was
3 The father did not sign Neesa's birth certificate when she was born and was not recognized as her legal father until he took a paternity test following Neesa's removal from the mother's custody.
2 presented with substantial evidence of the father's unfitness,
and, in fact, he does not argue otherwise. To the contrary, the
father acknowledged at trial that he was not then ready to
assume custody of Neesa.4 He was in jail, and even though he was
confident that he would soon be released, he had no firm
prospects for employment or stable housing. In recognition of
his inability to care for Neesa in the immediate future, he
proposed that Neesa be placed with his mother (paternal
grandmother). However, neither he nor counsel had contacted the
paternal grandmother prior to trial to discuss that proposed
plan, and she was not present at the trial. Although the
paternal grandmother had, at one point, filed a petition for
guardianship, the judge found that contact between Neesa and the
paternal grandmother was limited and that she had not followed
through with the petition. Ultimately, the judge dismissed the
guardianship petition and concluded DCF's proposed permanency
plan of adoption with the current preadoptive family to be in
Neesa's best interests.
4 The father also acknowledged that it would be difficult for Neesa to leave her preadoptive family and that Neesa would need time to adjust to a permanent change in custody. There was no dispute that by the time of trial Neesa had developed a close bond with her preadoptive family. DCF's bonding and attachment expert witness, Dr. Rachmaciej, testified that he conducted an assessment of Neesa with her preadoptive family and opined that if Neesa were to be removed from that home, she would likely suffer psychological stress and harm.
3 We now turn to the facts that are relevant to the father's
claim that counsel did not provide him with effective
assistance. A week prior to trial, on May 16, 2022, counsel
filed an emergency motion to continue the trial or, in the
alternative, to appoint substitute counsel. The motion was
heard the day before trial commenced. At that time, counsel
explained that she had just finished a year-long trial and was
withdrawing from all of her care and protection cases. She
acknowledged that she had not spoken with the father for the
prior three months and was not prepared to go forward. Counsel
further explained that, given this lack of contact, she "was not
able to submit a pretrial final witness and exhibit list." She
also stated that there were a few other witnesses (in addition
to the paternal grandmother) that the father wanted to call to
testify on his behalf. Thereafter, it came to light that
counsel had not appeared for trial on a prior scheduled trial
date and had not been present at the final pretrial conference.
The father was present at the hearing, and he addressed the
judge directly. He stated that he was unaware that a trial date
had been scheduled and joined in counsel's request for
additional time so that he could "get all [his] ducks in a row
to handle this properly." He further indicated that he had
4 witnesses that he wanted to testify on his behalf.5 In response
to the judge's questions as to why he had not yet contacted
these witnesses, the father explained that he did not have
access to his cell phone while in jail and therefore could not
contact any family members. He then informed the judge that he
believed he would remain incarcerated for "no more than [sixty]
days, [at] the most," and was asking for a short continuance.6
On the second day of trial, counsel renewed her motion to
withdraw based on a breakdown in the attorney-client
relationship. That the father and counsel's relationship was in
jeopardy became evident when, at a later point in the trial, the
father told the judge that he believed counsel's feelings toward
her own father had a deleterious effect on the attorney-client
relationship. Then, on the last day of trial, counsel raised
the issue of her motion to withdraw again. This time, counsel
expressed concern that the father did not believe he was
receiving adequate representation. Counsel also requested
permission for the father to present his own closing argument so
that "he feels he's being effectively represented or something
5 Ultimately, the father did not call any witnesses.
6 According to the father, he was due to appear in the District Court on one of the two matters for which he was being held within a few days. The record is not clear if this happened or whether the cases were resolved.
5 of that nature should he want to testify or give his own closing
argument." The judge denied the request but stated that she
would permit the father to address the court if there was
something he wanted to bring to her attention after counsel
presented a closing argument on his behalf.7
Discussion. "On the question of ineffective assistance of
counsel, [f]irst, we look to determine whether the behavior of
counsel [fell] measurably below that which might be expected
from an ordinary fallible lawyer and, if so, we further inquire
whether [counsel's conduct] has likely deprived the defendant of
an otherwise available, substantial ground of defence. Under
the second prong, prejudice must be shown; prejudice is not
shown if there is overwhelming evidence of unfitness."
(Quotations and citations omitted). Adoption of Azziza, 77
Mass. App. Ct. 363, 368 (2010).
There is no question that counsel's failure to contact the
father prior to trial amounts to conduct falling measurably
below that which might be expected from an ordinary fallible
lawyer. Indeed, counsel recognized her failure and, inferably,
requested a continuance in order to rectify that failure. At
the same time, we recognize that the judge, knowing that the
7 The judge's willingness to accommodate the father in this manner was typical of the courtesy she extended to him throughout the trial.
6 case had already been continued once and that Neesa was
deserving of permanency, was appropriately concerned about a
further delay. Nonetheless, because the father was entitled to
consult with counsel and develop a strategy before the first day
of trial, a short continuance would have been the best path
forward.8
As to the second prong, DCF and Neesa argue that the father
has failed to demonstrate prejudice. They contend that the
evidence of the father's unfitness was so overwhelming that no
lawyer could have accomplished more for him.9 Given the father's
criminal history, which included violence against women, his
alcohol abuse, and Neesa's fear of him stemming from an incident
when she saw him assault her mother, we have no doubt that the
evidence as presented warranted a finding of unfitness. But
that is not the only consideration. This is not a case in which
inadequate pretrial preparation was repaired by competent
representation during the proceeding trial. See Commonwealth v.
Saferian, 366 Mass. 89, 97–98 (1974) (inadequate pretrial
8 In reaching this conclusion, we recognize that the judge was placed in a difficult position. Indeed, although DCF was not initially opposed to a continuance, when the parties discussed the matter, it became clear that the court calendar could not easily accommodate one.
9 At oral argument, counsel for Neesa suggested that not even "Clarence Darrow" could have accomplished more for the father.
7 preparation not prejudicial after court concluded "[i]t is hard
to believe that in the end [after two-day trial] any aspect of
the matter plausibly helpful to the defendant was ignored or
skimped"). In sum, the record fails to disclose whether
adequate preparation or performance during trial could have
revealed any material fact or defense so as to sufficiently
diminish the impact of the father's shortcomings. Because the
father was entitled to competent representation to assist him in
presenting his case, a new trial is warranted. Accordingly, we
vacate the decree and remand the matter for further proceedings.
So ordered.
By the Court (Vuono, Rubin & Smyth, JJ.10),
Assistant Clerk
Entered: May 21, 2024.
10 The panelists are listed in order of seniority.