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
24-P-742
ADOPTION OF ZANDRA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this consolidated appeal, the father appeals from (1)
the decree of a Juvenile Court judge finding him unfit,
terminating his parental rights to his daughter Zandra (Zandra
or the child), and approving the plan for Zandra's adoption by
her foster parents; and (2) the denial by a single justice of
this court of his request for a stay of this appeal so that he
could file a motion for relief from the judgment in the trial
court on the ground of ineffective assistance of counsel. We
affirm.
Background. We summarize the Juvenile Court judge's
findings of fact, which the father does not challenge,
supplemented by uncontested evidence from the record.
1 The child's name is a pseudonym. The Department of Children and Families (department) took
emergency custody of Zandra in July 2017, one day after she was
born. The mother regained conditional custody the next day, but
the department removed the child from her mother's care again in
September 2017, following multiple G. L. c. 119, § 51A, reports
of neglect. The department placed the child with her current
preadoptive family when she was roughly two months old. At the
time of trial, the child was six years old. She lived with her
younger half-sister and regularly visited with two siblings
living in other homes. Diagnosed with autism spectrum disorder,
she received fifteen hours of therapy per week at home.
Including Zandra, the father had eleven children at the
time of trial, several of whom had been in State custody for
parts or all of their childhoods. He had been the defendant on
at least nine abuse prevention complaints brought under G. L.
c. 209A by three of the mothers of his children. Two other
mothers, including Zandra's mother, had accused him of domestic
violence without seeking abuse prevention orders. At trial, the
father argued that these orders and allegations were all the
product of jealous retaliation and denied any history of or
issues with domestic violence. The judge declined to credit his
testimony on these matters.
The father attended visits with Zandra only sporadically.
Since 2019, the father has visited in person with the child only
2 twice, due in part to the COVID-19 pandemic and in part to the
father's relocation to Georgia to care for an ailing family
member. Given his frequent lateness to and inconsistent
attendance at scheduled visits, the department switched the
father to virtual visits on a permanent basis in 2021. From
April 2021 to June 2023, the father attended just one of twenty-
two scheduled virtual visits with Zandra. He failed to confirm
sixteen of those visits, and he confirmed but did not attend
five.
Testifying at trial, the father suggested that if he had
custody of Zandra, she would live in Georgia while he worked in
New Hampshire; however, he did not identify a primary address in
either State or provide information as to who would care for the
child in Georgia in his absence. He had limited parenting
experience, he did not demonstrate an interest in or awareness
of the challenges or best practices in caring for a child with
autism, and he did not indicate what steps he might take to
learn how to care for Zandra's specific needs.2
Following a two-day trial, the judge found both parents
unfit and determined it was in Zandra's best interests to
2 The judge did not credit the father's testimony that he had experience caring for a child with autism and an understanding of Zandra's special needs.
3 terminate their parental rights.3 Following the judgment, the
father filed a motion to stay appellate proceedings in order to
return to the Juvenile Court to seek relief from judgment under
Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), arguing he had
received ineffective assistance of trial counsel. A single
justice of this court denied the father's motion.
Discussion. "A parent facing termination of parental
rights is entitled to the effective assistance of counsel."
Adoption of Ulrich, 94 Mass. App. Ct. 668, 672 (2019). "A claim
of ineffective assistance in the context of care and protection
proceedings is considered under the standards applicable to
judging the effectiveness of counsel's assistance in criminal
cases." Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 345
(2008). In reviewing such a claim, we conduct "a discerning
examination and appraisal of the specific circumstances of the
given case to see whether there has been serious incompetency,
inefficiency, or inattention of counsel -- behavior of counsel
falling measurably below that which might be expected from an
ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass.
89, 96 (1974). We do not disturb a judgment merely because
counsel could have performed better; we hold attorneys to a
"practical" standard, not an aspirational one. Id. at 98.
3 The mother did not appeal.
4 "Counsel may strive for perfection, but only competence or the
avoidance of a 'serious incompetency' is required."
Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting
Commonwealth v. Walker, 443 Mass. 213, 225 (2005).
1. Performance standards. The father contends his trial
attorney failed to provide effective assistance because she did
not comply with the performance standards issued by the
Committee for Public Counsel Services (CPCS) in its Appointed
Counsel Manual governing the representation of children and
parents in child welfare cases. "In determining the level of
performance required of an ordinary fallible lawyer, we look to
the 'professional standards of the legal community.'"
Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting
Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). However, the
courts do not treat professional standards and guidelines such
as the CPCS manual as definitive. "Prevailing norms of practice
as reflected in American Bar Association standards and the like
. . . are guides to determining what is reasonable, but they are
only guides." Strickland v. Washington, 466 U.S. 668, 688
(1984). Although the CPCS standards may offer guidance as to
what constitutes competent performance in the Massachusetts
legal community, we decline the father's invitation to apply
these standards wholesale or otherwise treat the manual as a
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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
24-P-742
ADOPTION OF ZANDRA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this consolidated appeal, the father appeals from (1)
the decree of a Juvenile Court judge finding him unfit,
terminating his parental rights to his daughter Zandra (Zandra
or the child), and approving the plan for Zandra's adoption by
her foster parents; and (2) the denial by a single justice of
this court of his request for a stay of this appeal so that he
could file a motion for relief from the judgment in the trial
court on the ground of ineffective assistance of counsel. We
affirm.
Background. We summarize the Juvenile Court judge's
findings of fact, which the father does not challenge,
supplemented by uncontested evidence from the record.
1 The child's name is a pseudonym. The Department of Children and Families (department) took
emergency custody of Zandra in July 2017, one day after she was
born. The mother regained conditional custody the next day, but
the department removed the child from her mother's care again in
September 2017, following multiple G. L. c. 119, § 51A, reports
of neglect. The department placed the child with her current
preadoptive family when she was roughly two months old. At the
time of trial, the child was six years old. She lived with her
younger half-sister and regularly visited with two siblings
living in other homes. Diagnosed with autism spectrum disorder,
she received fifteen hours of therapy per week at home.
Including Zandra, the father had eleven children at the
time of trial, several of whom had been in State custody for
parts or all of their childhoods. He had been the defendant on
at least nine abuse prevention complaints brought under G. L.
c. 209A by three of the mothers of his children. Two other
mothers, including Zandra's mother, had accused him of domestic
violence without seeking abuse prevention orders. At trial, the
father argued that these orders and allegations were all the
product of jealous retaliation and denied any history of or
issues with domestic violence. The judge declined to credit his
testimony on these matters.
The father attended visits with Zandra only sporadically.
Since 2019, the father has visited in person with the child only
2 twice, due in part to the COVID-19 pandemic and in part to the
father's relocation to Georgia to care for an ailing family
member. Given his frequent lateness to and inconsistent
attendance at scheduled visits, the department switched the
father to virtual visits on a permanent basis in 2021. From
April 2021 to June 2023, the father attended just one of twenty-
two scheduled virtual visits with Zandra. He failed to confirm
sixteen of those visits, and he confirmed but did not attend
five.
Testifying at trial, the father suggested that if he had
custody of Zandra, she would live in Georgia while he worked in
New Hampshire; however, he did not identify a primary address in
either State or provide information as to who would care for the
child in Georgia in his absence. He had limited parenting
experience, he did not demonstrate an interest in or awareness
of the challenges or best practices in caring for a child with
autism, and he did not indicate what steps he might take to
learn how to care for Zandra's specific needs.2
Following a two-day trial, the judge found both parents
unfit and determined it was in Zandra's best interests to
2 The judge did not credit the father's testimony that he had experience caring for a child with autism and an understanding of Zandra's special needs.
3 terminate their parental rights.3 Following the judgment, the
father filed a motion to stay appellate proceedings in order to
return to the Juvenile Court to seek relief from judgment under
Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), arguing he had
received ineffective assistance of trial counsel. A single
justice of this court denied the father's motion.
Discussion. "A parent facing termination of parental
rights is entitled to the effective assistance of counsel."
Adoption of Ulrich, 94 Mass. App. Ct. 668, 672 (2019). "A claim
of ineffective assistance in the context of care and protection
proceedings is considered under the standards applicable to
judging the effectiveness of counsel's assistance in criminal
cases." Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 345
(2008). In reviewing such a claim, we conduct "a discerning
examination and appraisal of the specific circumstances of the
given case to see whether there has been serious incompetency,
inefficiency, or inattention of counsel -- behavior of counsel
falling measurably below that which might be expected from an
ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass.
89, 96 (1974). We do not disturb a judgment merely because
counsel could have performed better; we hold attorneys to a
"practical" standard, not an aspirational one. Id. at 98.
3 The mother did not appeal.
4 "Counsel may strive for perfection, but only competence or the
avoidance of a 'serious incompetency' is required."
Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting
Commonwealth v. Walker, 443 Mass. 213, 225 (2005).
1. Performance standards. The father contends his trial
attorney failed to provide effective assistance because she did
not comply with the performance standards issued by the
Committee for Public Counsel Services (CPCS) in its Appointed
Counsel Manual governing the representation of children and
parents in child welfare cases. "In determining the level of
performance required of an ordinary fallible lawyer, we look to
the 'professional standards of the legal community.'"
Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting
Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). However, the
courts do not treat professional standards and guidelines such
as the CPCS manual as definitive. "Prevailing norms of practice
as reflected in American Bar Association standards and the like
. . . are guides to determining what is reasonable, but they are
only guides." Strickland v. Washington, 466 U.S. 668, 688
(1984). Although the CPCS standards may offer guidance as to
what constitutes competent performance in the Massachusetts
legal community, we decline the father's invitation to apply
these standards wholesale or otherwise treat the manual as a
"checklist." Id.; Saferian, 366 Mass. at 99. Compliance or
5 noncompliance with the defined standards may serve as evidence
of counsel's effectiveness, but neither is dispositive.
2. Trial counsel's performance and prejudice. The
father's trial attorney was appointed March 2, 2023, slightly
less than four months before trial commenced on June 28, 2023.
She was the father's fifth appointed attorney since proceedings
began in August 2018.4 The father argues trial counsel fell
short in a variety of ways, including by failing to communicate
with him prior to trial, failing to pursue motions in limine and
discovery, failing to call witnesses and present evidence as the
father suggested, and failing to pursue the father's objective
of securing in-person visitation with the child.
With respect to the allegation that counsel failed to
communicate with him, the trial attorney stated in her affidavit
that she mailed an introductory letter to the father shortly
after being appointed to represent him, on or around March 14,
2023. The father denied receiving any such letter, but given
his admitted inconsistency in maintaining an address, we cannot
conclude that any lapses in communication were the fault of
trial counsel.
4 Although the father does not address the withdrawals from representation of the first three attorneys, he explains the fourth attorney withdrew because the father was dissatisfied with his representation.
6 With respect to counsel's conduct at trial, "tactical or
strategic decisions" are generally left to the expertise of the
trial attorney. Kolenovic, 471 Mass. at 673, quoting
Commonwealth v. Valentin, 470 Mass. 186, 190 (2014). When such
decisions form the basis of a claim of ineffective assistance of
counsel, we review them only to determine "whether the decision
was manifestly unreasonable when made" (quotations and citation
omitted). Kolenovic, supra at 674. "[T]aking into account all
the circumstances known or that should have been known to
counsel" during trial, id., trial counsel's strategic decisions
do not strike us as incompetent.
For example, the father alleges that counsel failed to call
his wife, from whom he had been separated since 2008, as a
witness to testify that she obtained abuse prevention orders
against him in jealous retaliation. Particularly where a
parent's relationship with a witness has been tumultuous, it is
not manifestly unreasonable for a trial attorney to decline to
call that witness "to avoid the risk that the department or
counsel for the children might elicit testimony from her on
cross-examination that would be damaging." Adoption of Ulrich,
94 Mass. App. Ct. at 674 (counsel not ineffective for failing to
call witness who had previously obtained abuse prevention order
against parent).
7 But in any event, we need not look too closely at counsel's
conduct because the father has failed to demonstrate that he
suffered any prejudice. Even if counsel failed to perform the
tasks set out in the CPCS manual, such failure alone does not
require a new trial: "prejudice must be shown in a claim for
ineffective assistance of counsel." Commonwealth v. LaChance,
469 Mass. 854, 860 (2014). The father simply fails to
demonstrate how trial counsel's alleged failures "had any
bearing on the result of the trial." Adoption of Ulrich, 94
Mass. App. Ct. at 675.
For example, even if we agreed with the father that counsel
should have called his wife as a witness, the failure to do so
did not result in prejudice. The father had been the defendant
on restraining orders filed by two other partners and was
accused of violent behavior by two more. The father's wife was
far from a "critical witness" regarding his history of domestic
violence, Adoption of Ulrich, 94 Mass. App. Ct. at 674, much
less on his current ability to care for the child. Even if the
trial judge had credited the wife's recantation of her
allegations against the father, such testimony had no reasonable
probability of affecting the outcome of the trial.
We come to a similar conclusion as to the attorney's
decision not to present photographs of the father's home in
Georgia to demonstrate its suitability for the child. The
8 father was unprepared in multiple respects to care for the
child, in Georgia or elsewhere. Especially considering that the
father did not identify the Georgia home as his primary
residence, and more importantly, that he did not explain who
would care for the child if she lived in Georgia while he
continued working in New Hampshire, the condition of the home
was likely of little importance to the judge's ultimate
determination of unfitness.
Nor would taking appropriate steps to secure the father in-
person visitation with the child have likely affected the
outcome, which must be shown to demonstrate ineffective
assistance. The attorney stated in her affidavit that she
contacted the department to request in-person visitation on June
16, 2023. She did not, however, as the father correctly notes,
file a motion seeking to compel the department to provide such
visits. But on this point, too, the case against the father was
overwhelming: his history of inconsistent attendance at
scheduled visits had resulted in the permanent switch to virtual
visitation in 2021. As the father conceded, the department had
clearly communicated to him that in order to return to in-person
visitation with the child, he had to confirm and attend three
virtual visits in a row. The father had been unable to fulfill
this requirement. "It is not ineffective assistance of counsel
when trial counsel declines to file a motion with a minimal
9 chance of success." Commonwealth v. Conceicao, 388 Mass. 255,
264 (1983). Since the father himself could not demonstrate
genuine pursuit of in-person visitation, any such effort by
trial counsel is unlikely to have succeeded. In any event, a
sudden increase in visitation on the eve of trial would not have
erased the father's years of inattention to the child.
Finally, as to counsel's alleged deficiencies in pursuing
motions in limine and discovery from the department, the father
does not explain what better work in these areas might have
accomplished, or how it deprived him of "an otherwise available,
substantial ground of defence." Saferian, 366 Mass. at 96. In
short, the father has not carried his burden of proving
ineffective assistance of counsel.
3. Appeal of the single justice's order. The father also
appeals from the denial by a single justice of this court of his
motion for a stay of appellate proceedings to return to the
trial court to seek relief from judgment under Mass. R. Civ. P.
60 (b), based on his claim of ineffective assistance. The
single justice, quoting Adoption of Ulrich, 94 Mass. App. Ct. at
675, concluded that the father failed to demonstrate "a
sufficiently strong likelihood of success on the merits to
justify the resulting delay in completion of appellate review."
We recognize that the "preferred approach" for raising such
claims "is for the party claiming ineffective assistance to move
10 to stay the appeal in order to allow prosecution of a motion for
new trial in the trial court." Id. at 673. However,
"[a]llowance of a motion to stay is not automatic." Id. We
review the single justice's decision for a clear error of law or
abuse of discretion. See id. at 674.
Because the father's issues with trial counsel's
performance largely "involve tactical decisions by his attorney
that were not manifestly unreasonable," Adoption of Rhona, 63
Mass. App. Ct. 117, 130 (2005), and because, in any event, he
"has failed to demonstrate any prejudice based on the
overwhelming proof of the father's unfitness," Care & Protection
of Georgette, 439 Mass. 28, 34 (2003), we "discern no error of
law or abuse of discretion by the single justice to the extent
she determined that the [father's] claim of ineffective
assistance showed an inadequate prospect for success to justify
a stay of appellate proceedings to allow [him] to pursue it."
Adoption of Ulrich, 94 Mass. App. Ct. at 674.
Conclusion. The decree entered in the Juvenile Court is
11 affirmed. The order of the single justice denying the motion
for a stay of appeal is also affirmed.
So ordered.
By the Court (Massing, Hand & Allen, JJ.5),
Clerk
Entered: December 2, 2025.
5 The panelists are listed in order of seniority.