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-182
ADOPTION OF VELMA (and a companion case). 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2019, the Department of Children and Families
(department) filed two separate care and protection actions in
the Juvenile Court regarding the children, Velma and Cynthia. 2
The judge denied the father's motions to bifurcate the two
cases, and, after a trial, the judge issued decrees terminating
the mother's rights to both children and the father's rights to
his child, Cynthia. We affirm.
Discussion. 1. Mother's appeal. The mother argues that
the decrees terminating her rights to Velma and Cynthia must be
vacated because the judge violated her right to counsel in three
ways: first, in failing to hold a hearing on the mother's
1 Adoption of Cynthia. The children's names are pseudonyms. 2 The first action, involving the mother, Velma, and Velma's father was filed in February 2019. Velma's father died during the pendency of that litigation. A second action, involving the mother, Cynthia, and Cynthia's father was initiated in September 2019. The two cases were tried together. The mother and Cynthia's father, whom we refer to here as "the father," are the appellants here. counsel's motion to withdraw from representation before trial;
second, in improperly concluding that the mother made a valid
waiver of her right to counsel at trial; and third, by failing
to reconsider the validity of the mother's waiver of counsel
when, on the fourth day of the trial, standby counsel raised a
concern about the mother's mental health. We address each of
these arguments in turn.
a. Failure to hold hearing on the mother's motion to
appoint new counsel. Several weeks before trial, the mother's
counsel moved to withdraw. As grounds for the motion, counsel
indicated that the mother had discharged her; she also
represented that "the attorney client relationship has broken
down." We reject the mother's assertion that the trial judge
violated her right to counsel by refusing to schedule a hearing
on this motion. For one thing, the judge did not refuse to
schedule a hearing. 3 Rather, she denied the motion to withdraw
"in part, administratively," but provided that the motion "may
be renewed on the day of trial, as the court is unable to
schedule a hearing prior to that date." As ordered by the
judge, the mother filed a written plan with the court indicating
that the mother would represent herself at trial with standby
counsel. The mother's attorney did not renew her motion to
3 We note that the trial was held at a time when the Juvenile Court was conducting hearings and trials virtually.
2 withdraw on the first day of trial, nor did she otherwise
indicate that the mother wanted to hire new counsel.
Recognizing that the mother agreed to proceed with standby
counsel "[w]ithout another option," we assume for the sake of
argument that counsel's motion to withdraw implied an
accompanying request by the mother for appointment of new
counsel. However, even if mother had requested new counsel, we
conclude that by failing to raise an objection to the judge's
"administrative" action in the trial court, the mother's
argument that she was improperly denied a hearing on the motion
was waived. 4 See Care and Protection of Zeb, 489 Mass. 783, 787
(2022) (objection not raised at trial deemed waived).
b. Validity of the mother's waiver of counsel. Next, we
turn to the mother's challenge to the validity of her waiver of
counsel on the first day of trial. "[W]e look to the criminal
law to determine the validity of a purported waiver of counsel
in a proceeding which operates to terminate parental rights."
Adoption of William, 38 Mass. App. Ct. 661, 663 (1995). Before
accepting the mother's waiver of counsel, the judge was
4 If the judge had denied the mother's request for a hearing outright, our analysis might have been different. However, given the judge's written acknowledgment of the mother's request for a hearing and her contemplation of a hearing on the first day of trial, we discern no error where the mother did not take any further action related to a hearing on the motion to withdraw.
3 obligated to "determine both that the waiver [was] knowing and
voluntary and that the [mother] [was] competent to make it." 5
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, 268-269 (1995) (two-part
inquiry required). To prevail on her challenge to the validity
of her waiver of counsel, the mother must prove the invalidity
of that waiver by a preponderance of the evidence. See Adoption
of William, supra at 664. "The validity of [the] waiver depends
on the particular facts and circumstances of each case."
Adoption of Olivia, 53 Mass. App. Ct. 670, 676 (2002), quoting
Adoption of William, supra. In conducting our review, we accord
"substantial deference" to the judge's findings of fact on the
question of waiver, but our review of the judge's application of
the law to her factual findings is de novo. See Commonwealth v.
Means, 454 Mass. 81, 88 (2009).
First, we consider whether mother's waiver of counsel was
made knowingly and intelligently. We review the judge's
findings for clear error. See Custody of Eleanor, 414 Mass.
795, 802 (1993). "The focus of our review is the [mother]'s
subjective understanding of [her] decision and its
5 This obligation is distinct from the judge's duty to ensure that the defendant is competent to stand trial. See Commonwealth v. Haltiwanger, 99 Mass. App. Ct. 543, 555-556 (2021).
4 consequences"; waiver "may properly be based on the background,
experience, and conduct of the [mother] and the circumstances of
the case" (citation omitted). Commonwealth v. Pamplona, 58
Mass. App. Ct. 239, 241 (2003). Here, we are satisfied that the
mother demonstrated the requisite "subjective understanding of
[her] decision and its consequences," and we are "confident that
[she] was 'adequately aware of the seriousness of the
[proceedings], the magnitude of [her] undertaking, the
availability of advisory counsel, and the disadvantages of self-
representation.'" Adoption of William, 38 Mass. App. Ct. at
665, quoting Commonwealth v. Jackson, 376 Mass. 790, 795 (1978).
In reaching this conclusion, we consider the evidence in the
record showing that the mother had been actively involved in the
care and protection actions concerning Velma and Cynthia
throughout the litigation and the indications that she
understood that her parental rights were at stake in the trial.
Standby counsel was not only available to the mother, but was,
in fact, appointed to her. The judge also conducted a colloquy
with the mother in which she cautioned her about the challenges
inherent in self-representation. In this colloquy, the judge
advised the mother that if she represented herself at trial, she
would be held to the same standards applicable to a member of
the bar, and explicitly warned her that "[she] could be at a
5 disadvantage in representing [he]rself." 6 See Pamplona, supra at
241-242 (where "judge advised the defendant that difficulties
can attend self-representation and that knowledge of the law and
the rules of evidence would be helpful," colloquy held
"truncated . . . [but] adequate"). We discern no error in the
judge's finding that the mother's waiver was knowing and
voluntary.
Second, we consider the mother's competence to waive
counsel. Our review here is for an abuse of discretion. See
Commonwealth v. Scionti, 81 Mass. App. Ct. 266, 273 (2012).
Although we consider the question a close one, we give
"substantial deference to a trial judge's determination that
[the mother] is competent 'because the judge had the opportunity
to view the witnesses in open court and to evaluate the [mother]
personally.'" Id., quoting Commonwealth v. Prater, 420 Mass.
569, 574 (1995). See Commonwealth v. Russin, 420 Mass. 309, 317
(1995) ("[I]n reviewing the judge's determination of competency,
we must give weight to the judge's opportunity to observe the
6 We acknowledge that this is not a case in which the mother demanded that she be permitted to represent herself; her statement that she was waiving counsel "without another option" suggests that doing so was not her preference. Even reading this statement as some evidence that the mother's waiver was equivocal, however, considering the circumstances of the mother's waiver as a whole, we do not consider that statement adequate to establish the invalidity of the waiver by a preponderance of the evidence. See Adoption of William, 38 Mass. App. Ct. at 664.
6 defendant's demeanor during the trial and the plea hearing").
Doing so, we conclude that the mother has failed to show that
she was not competent to waive her right to counsel.
We begin by noting that although the judge appears to have
been assigned to the case shortly before the trial, the docket
reflects that she had at least one opportunity to interact with
the mother in the court room before the trial began. See
Scionti, 81 Mass. App. Ct. at 273 (judge "entitled to place
great weight on her own communications with the [mother]").
Additionally, as we have discussed, the judge conducted a
colloquy with the mother before accepting her waiver of counsel,
ultimately, if inferentially, finding the mother to be
competent. 7 Although in light of the concerns raised by the
mother's standby counsel about the mother's mental health, and
with the benefit of hindsight, the colloquy might have included
a more probing inquiry into the mother's mental health status at
the time of the waiver, see Means, 454 Mass. at 96 ("The scope
of the inquiry into a mentally ill defendant's competence to
waive counsel and self-represent are determined by the
7 We infer this finding from (1) the judge's acceptance of the mother's waiver of counsel and (2) her contemporaneous rejection of a suggestion by father's counsel that the mother lacked competence to stand trial. When father's counsel suggested that the mother suffered from "a [mental] health issue that will affect her ability to represent herself," the judge responded, "[o]nce or if those issues are presented," she would reconsider the question of the mother's competency (emphasis added).
7 circumstances at hand"), we are satisfied that it provided
sufficient evidence of the mother's competency to make a valid
waiver of counsel. Cf. Haltiwanger, 99 Mass. App. Ct. at 555-
556 (where defendant's presentation led to judge's development
of "bona fide doubt" as to his competence, judge obligated to
inquire further).
Although, as the mother points out in her brief, her trial
testimony indicated that she had, in fact, suffered from mental
health challenges and had undergone related voluntary and
involuntary mental health treatment, held unusual spiritual
beliefs, and believed that she had paranormal powers, the judge
who heard the testimony in its entirety explicitly found "that
there was absolutely nothing in mother's presentation that leads
this Court to believe she is unable to represent herself or [is]
otherwise incompetent." Granting the judge's findings the
deference to which they are entitled, see Scionti, 81 Mass. App.
Ct. at 273, we cannot say that the judge abused her discretion
in concluding that the mother was competent to waive counsel.
Reviewing the propriety of the waiver de novo, we conclude that
the mother has failed to demonstrate the invalidity of her
waiver of counsel at trial. 8 See Adoption of William, 38 Mass.
App. Ct. at 664.
8 We are not persuaded by the mother's contention that the judge's decision was based on her finding that the mother had
8 c. Denial of request for Haltiwanger evaluation. For
similar reasons, we are not persuaded that the judge abused her
discretion on the last day of trial when she declined to order a
competency evaluation for the mother in response to standby
counsel's filing of a motion under Haltiwanger, 99 Mass. App.
Ct. at 556-557. In Haltiwanger, we ruled that "where the judge
has a bona fide doubt about the defendant's competence [to waive
counsel]," the judge is obligated to conduct a separate inquiry
into the question, on the record and accompanied by written
findings. Id. at 556-557. Notably, however, in that case, it
was apparent from the record that the judge did have the
requisite doubt about the defendant's competence. See id. at
559 (noting judge "sua sponte raised a concern about the
defendant's competency"). Here, by contrast, the opposite is
true. After presiding over four days of trial, including the
mother's extensive testimony about, among other things, her
made "an implied waiver by conduct" of her right to counsel based on her apparent difficulty in working with the attorneys appointed to her during this litigation. See Adoption of Raissa, 93 Mass. App. Ct. 447, 452 (2018) (describing requirements for parent's "waiver by conduct" of right to counsel). That concern appears to be rooted in the judge's references to the "constitutional crisis" created by the very real shortage of attorneys available for appointment to qualified families involved in care and protection litigation. We recognize the accuracy of the judge's characterization of the problem as a "crisis," and offer no solutions to it here, but we urge judges to avoid any suggestion that the attorney shortage provides a proper basis on which to deny an otherwise eligible parent appointed counsel in a care and protection action.
9 belief systems and history of mental health treatment, the judge
explicitly stated that she had no concerns about the mother's
competency. We discern no abuse of discretion or other error in
the judge's failure to conduct further inquiry into the matter
under Haltiwanger.
2. Father's appeal. On appeal, the father contends that
the judge erred in finding him unfit, prejudiced him by
improperly allowing the department to enter evidence about
crimes for which the father was acquitted, and abused her
discretion in failing to bifurcate his trial from that of the
mother.
a. Sufficiency of the evidence of unfitness. Before
terminating a parent's rights to a child, a judge must find by
clear and convincing evidence that the parent is unfit. See
Adoption of Jacob, 99 Mass. App. Ct. 258, 262 (2021).
"'[P]arental unfitness' means 'grievous shortcomings or
handicaps' that put the child's welfare 'much at hazard.'" Id.,
quoting Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997).
In making this determination, "the judge 'may consider past
conduct to predict future ability and performance.'" Adoption
of Jacob, supra, quoting Adoption of Katharine, supra at 32–33.
Here, the judge's findings span more than forty-five pages,
and include detail that reflects the judge's careful
consideration of all the evidence presented at trial. The judge
10 conducted an even-handed assessment of the evidence, noting, for
example, that the father completed some of the tasks included in
his action plans, participated in visits with his child and was
"engaged" in those visits, and had made progress in addressing
some of his mental health and substance abuse concerns. She
made other findings, however, that reflected poorly on the
father's parenting ability. As examples, the judge found that
the father refused to engage in certain services included on his
department action plan and failed to benefit from some of the
services in which he did engage (notably, those related to
addressing domestic violence). See Adoption of Rhona, 63 Mass.
App. Ct. 117, 126 (2005) (evidence of parents' failure to
maintain service plans and refusal to participate in counseling
programs relevant to fitness determination). She took into
account that the father's repeated incarcerations presented
obstacles to his ability to be present for his child, see
Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001), and found that
the father was unable to prioritize the child's welfare over his
own relationship with the mother. The judge's greatest concern,
however, appears to have been the long and apparently
intractable history of domestic violence between the mother and
the father, a pattern she determined was almost certain to
continue, given the mother's and father's insistence on
coparenting Cynthia. See Adoption of Xarissa, 99 Mass. App. Ct.
11 610, 618-619 (2021) (parent's history of domestic violence,
including in relationship in which parent intended to stay,
predictive of parent's indefinite unfitness).
While no single factor is determinative of parental
unfitness, see Care & Protection of Yetta, 84 Mass. App. Ct.
691, 695 (2014), it is well settled "that exposure to domestic
violence works a 'distinctly grievous kind of harm' on
children," Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017),
quoting Custody of Vaughn, 422 Mass. 590, 595 (1996), "and
instances of such familial violence are compelling evidence for
a finding of parental unfitness." See id. at 595-596. The
judge's findings, which the father does not challenge as
erroneous, amply support her conclusion that despite his
"capacity to love and nurture" his child, the father was unfit
to parent her. 9 Where the judge also determined that termination
of the father's parental rights was in the best interests of the
child, Cynthia, the judge did not abuse her discretion in
terminating those rights. See Adoption of Mary, 414 Mass. 705,
710 (1993).
b. Evidentiary challenge. In 2017, the father was accused
of sexually assaulting a child when the child was thirteen years
old. The father was acquitted of the criminal charges brought
9 The judge likewise found that the mother had the capacity to love and nurture both Velma and Cynthia.
12 against him in connection with that accusation, and at the
subsequent trial of these matters testified that the alleged
abuse never happened. At trial, and over the father's
objections, the judge allowed the department to introduce
several exhibits related to or which referenced the sexual abuse
allegations. On appeal, the father argues that the admission of
exhibits 24 (G. L. c. 119, § 51A report), 26 (family action
plan), 28 (affidavit of department social worker), 29 (court
investigator's report), 68 (police reports concerning sexual
abuse allegations against father), and 69 (police reports
concerning domestic violence between mother and father) amounted
to prejudicial error. 10 We do not agree.
There was no error in the judge's admission of the 51A
report (exhibit 24), see G. L. c. 119, § 51A, for the purpose of
"setting the stage." See Adoption of Querida, 94 Mass. App. Ct.
771, 778 (2019). The family action plan (exhibit 26),
department social worker's affidavit (exhibit 28), and court
investigator's report (exhibit 29) were likewise admissible 11;
10 Understanding that the father objected at trial to the admission of "all evidence of, and reference to" the sexual assault and abuse allegations, we confine our analysis to the arguments made in the father's brief. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). 11 Where the court investigator was appointed on the day that the
care and protection case involving the mother and Velma was filed, we understand the report to have been ordered pursuant to G. L. c. 119, § 24.
13 the father does not contend that he lacked the requisite ability
to cross-examine the sources of the information incorporated in
these documents. See Adoption of Luc, 484 Mass. 139, 150-151,
152-154 (2020), and cases cited; Mass. G. Evid. § 1115(b)(2)(B)
(2023). Where the judge explicitly stated that she would not
take the police reports introduced as exhibits 68 and 69 "for
[the] truth of any statements other than firsthand observations
by police officers," the admission of those exhibits was also
proper. 12 See Mass. G. Evid. § 1115(b)(5). We decline the
father's invitation to apply the holding of Commonwealth v.
Dorazio, 472 Mass. 535, 543-548 (2015), to the facts of this
case, absent any binding precedent requiring us to do so.
More to the point, even if the challenged evidence was not
properly before the judge, that information was only cumulative
of evidence admitted at the request of the father himself in the
form of a "psychosexual risk assessment" conducted by an expert
witness called by the father to testify at trial. Where the
evidence to which the father objects was cumulative of other,
properly admitted evidence, the father has failed to show that
he was prejudiced. 13 See Adoption of Luc, 484 Mass. at 148.
12 Given our conclusion, we need not reach the question whether the police reports, exhibits 68 and 69, were properly admitted under the business records exception to the hearsay rule. See Mass. G. Evid. § 803(6) (2023). 13 We find no support in the record for the father's claim that
the judge relied on second-level hearsay to assess the
14 c. Father's motions to bifurcate. The father filed two
unsuccessful motions to bifurcate his trial from that of the
mother. See Mass. R. Civ. P. 42 (b), as amended, 423 Mass. 1402
(1996). Reviewing the judge's rulings on the motions for an
abuse of discretion, we discern none. See Dobos v. Driscoll,
404 Mass. 634, 644-645 (1989).
The father's first motion, filed prior to trial, was
premised on (1) his view that his "interests [we]re not aligned"
with those of the mother, and (2) that based on "the
unavailability of services and programs during the . . . COVID-
19 pandemic," he needed additional time to complete his action
plan tasks and to have meaningful parenting time with his child.
Although it is true that the consolidated trials included some
evidence that bore only on the mother's case, the judge's
findings are clear that one of the central considerations in her
determination of the parents' unfitness was their unwillingness
to extricate themselves from their violent relationship and
their plans to coparent the children. Additionally, the judge
found that the father failed to engage in most of the services
offered to him and that despite his positive parenting when at
liberty, he made himself unavailable to parent the child by his
repeated incarcerations. The judge's denial of the father's
credibility of his denial at trial of having perpetrated the sexual assaults of which he had been acquitted.
15 first motion to bifurcate the trial was not the result of "'a
clear error of judgment in weighing' the factors relevant to the
decision . . . such that the decision [fell] outside the range
of reasonable alternatives." L.L. v. Commonwealth, 470 Mass.
169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co.,
512 F.3d 9, 15 (1st Cir. 2008).
We reach the same conclusion as to the father's second
motion to bifurcate, filed after the judge accepted the mother's
waiver of trial counsel. The father's argument that his case
"[was] materially prejudiced by Mother's apparent mental illness
and its effect on her ability to represent herself pro se" was
not supported by any showing of prejudice to the father. To the
extent that the father was arguing that the mother lacked the
ability to make a valid waiver of her right to counsel, the
father lacked standing to do so.
Conclusion. The decrees terminating the mother's parental
rights to Velma and terminating each parent's rights to Cynthia
are affirmed.
So ordered.
By the Court (Blake, Massing & Hand, JJ. 14),
Clerk Entered: November 15, 2023.
14 The panelists are listed in order of seniority.