ADOPTION OF JADEN (And Three Companion Cases). ( 2024 )

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-314
ADOPTION OF JADEN (and three companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother, the father, and the two oldest children, Jaden
and Alex, appeal from decrees entered in the Juvenile Court
finding the parents unfit and terminating their parental rights
to the children.2 They argue that the finding of unfitness was
not supported by clear and convincing evidence and that the
judge abused his discretion in terminating the parents' rights.
The father, Jaden, and Alex also argue that the Department of
Children and Families (DCF) failed to provide adequate adoption
plans, and that the judge erred in declining to order
posttermination and postadoption visitation.3 Finally, both
1 Adoption of Alex, Adoption of Kerrianne, and Adoption of
Lexy. The children's names are pseudonyms.
2The mother was the sole parent identified on Lexy's birth
certificate. The judge terminated the parental rights of "any
unknown, named, and unnamed father" of Lexy.
3The father adopts the arguments in the mother's brief and
in Jaden's (and Alex's) brief.
parents raise arguments grounded in alleged deprivations of due
process. We affirm.
Background. We summarize the judge's findings of fact,
which find ample support in the record.4 The mother and father
began a relationship in 2011. The four subject children in this
matter are Jaden, born in 2013; Alex, born in 2016; Kerrianne,
born in 2018; and Lexy, born in 2020. Before moving to
Massachusetts, Jaden was born substance exposed in Connecticut.5
DCF became involved with the family in 2017. Between May
2017 and March 2021, nine G. L. c. 119, § 51A, reports (51A
reports) were filed, alleging neglect and physical abuse of the
children. DCF supported seven reports, which involved, inter
alia, Lexy testing positive for cocaine at birth, the mother
physically assaulting the father in front of the children,
substance use occurring at the home, the mother choking Jaden,
and concerns about the mother's mental health and substance use.
In August 2020, DCF created a safety plan with the father, in
which he agreed that the mother was not to be the sole caregiver
4 General Laws c. 119, § 51A, reports were admitted in
evidence solely "to set the stage," and G. L. c. 119, § 51B,
reports were considered by the judge "for statements of
fact . . . and not for purposes of diagnosis, prognosis and
evaluation." See Custody of Michel, 28 Mass. App. Ct. 260, 266-
267 (1990).
5 In 2017, the mother's parental rights to a child from a
previous relationship were terminated in Connecticut.
2
of the children and that he would ensure that the home was free
of illegal substances. The parents did not follow the safety
plan. A February 27, 2021, report alleged that there was drug
activity occurring in the apartment, that people were "passed
out" several days a week, that the mother often arrived home
intoxicated, and that the mother sometimes drove under the
influence with the children in the car.
DCF filed the instant care and protection petition on March
18, 2021. The children were placed in the conditional custody
of the mother and the father. During that time period, six
additional 51A reports were filed, alleging neglect of the
children by the mother and the father due to the children not
attending school, a lack of supervision of the children, the
mother's use of substances in the home, and Jaden testing
positive for cocaine.6 On May 24, 2021, the children were
removed from the mother's and the father's custody and placed in
DCF care.
6 On May 23, 2021, two 51A reports were filed. The first
alleged that Kerrianne was able to access the mother's Suboxone
from her purse and may have ingested it. The second alleged
that the mother hid a substance in the home and was "acting
erratically." During the ensuing G. L. c. 119, § 51B,
investigation, the father admitted that the children were not
always supervised. The mother refused to sign releases for DCF
to speak with her substance abuse treatment providers, and DCF
later learned that she was no longer in treatment.
3
Following removal, the mother and the father struggled to
make progress on the action plan tasks that DCF assigned them.7
The mother did not take any steps to address her substance use
or mental health issues. She "called the police to arrest" a
DCF worker, sent threatening e-mails to DCF, and appeared to be
under the influence during two visits with the children. At the
time of trial, she had open warrants on seven charges. The
father also failed to make progress on his action plan tasks.
Police were called to the home on three occasions, yet both
parents refused to engage in recommended domestic violence
services. The parents often failed to confirm or attend visits
with the children, and they did not attend any visits between
October 2021 and June 2022.8 The father later resumed visitation
and began meeting with DCF, but he still had not made any
progress on his action plan tasks.
7 As part of the mother's action plan, DCF recommended that
the mother confirm visits with the ongoing social worker;
confirm and attend visits in the DCF office; complete a
substance abuse evaluation, a mental health evaluation, and
toxicology screens; and attend individual therapy and
psychiatry. The father's action plan tasks required the father
to, inter alia, meet with the DCF social worker at least
monthly, complete a substance use evaluation and a mental health
evaluation, engage in individual therapy, and attend all virtual
and in-person visits. By October 7, 2022, neither parent had
made progress on their tasks.
8 When the father did attend visits with the children, he
was observed to be "loving and attentive."
4
On November 1, 2022, trial commenced via Zoom on DCF's
request to terminate the mother's and the father's parental
rights. The father did not appear, and the judge allowed his
counsel's oral motion to withdraw.9 The judge also conducted a
colloquy with the mother, who had been proceeding pro se since
January 2022.10 The mother said that she felt "mentally
anguished" and "forced" to represent herself due to
"malpractice" by her previous attorneys. The judge stopped the
colloquy, allowed her to speak to standby counsel twice, and
offered to appoint an attorney to represent her. After a third
conversation with standby counsel, the judge continued with the
colloquy, and the mother confirmed her decision to proceed pro
se with standby counsel. The judge accepted her waiver of
counsel and found that it was made "voluntarily[,] intelligently
and with knowledge of the consequences." On the second day of
trial, the mother did not appear. After efforts to contact her
were unsuccessful, the trial proceeded without her.
9 On several prior court dates, the father's counsel
reported having "no position" from him. The judge had allowed
the father's counsel to withdraw on June 22, 2022, but
reappointed counsel on October 11, 2022, because the father had
attended some visits.
10On January 14, 2022, the judge found that the mother's
waiver of counsel was made "voluntarily, intelligently, and with
knowledge of its consequences."
5
Following trial, the judge ordered the entry of decrees
finding the mother and the father unfit and terminating their
parental rights.11 He approved the adoption plans proposed by
DCF and ordered sibling visitation, but left posttermination and
postadoption visitation with the parents to the discretion of
DCF for Jaden and Lexy, and to the discretion of the maternal
aunt for Kerrianne.12
Discussion. 1. Unfitness and termination of parental
rights. The mother, the father, Jaden, and Alex contend that
DCF did not meet its burden to prove parental unfitness by clear
and convincing evidence.13 We disagree.
"To terminate parental rights to a child and to dispense
with parental consent to adoption, a judge must find 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
11The judge issued his decision on November 3, 2022, but
DCF had not yet filed a birth certificate for Alex. The judge
issued an amended decision and order on December 8, 2022. On
February 15, 2023, after DCF filed the birth certificate, the
judge issued his findings of fact, rulings of law, and orders
regarding all four children.
12 The judge did not make orders regarding visitation with
Alex.
13The father, Jaden, and Alex do not challenge any of the
judge's findings as clearly erroneous.
6
child's best interests." Adoption of Jacques, 82 Mass. App. Ct.
601, 606 (2012). "Parental unfitness is determined by
considering a parent's character, temperament, conduct, and
capacity to provide for the child's particular needs,
affections, and age." Care & Protection of Vick, 89 Mass. App.
Ct. 704, 706 (2016). We give substantial deference to the
judge's findings, which we do not disturb unless they are
clearly erroneous. See Adoption of Jacques, supra at 606-607.
The evidence at trial supported the judge's findings that
the mother: exposed Jaden and Lexy to substances during
pregnancy; exposed the children to substances while caring for
them; physically abused Jaden; refused to engage in substance
abuse and mental health treatment; assaulted the father and
failed to engage in domestic violence services; and failed to
confirm or attend visits with the children. The record supports
the judge's findings that DCF proved by clear and convincing
evidence that the mother is unfit.14
14The mother also challenges the judge's findings regarding
her mental health. She argues that the record does not support
the judge's finding that her behavior demonstrated "mental
instability." The argument is unpersuasive. In addition to his
observations of the mother throughout the proceedings, the judge
considered, inter alia, the mother's inappropriate conduct
towards DCF, her interview with a court investigator where she
appeared "paranoid," and her failure to engage in mental health
services. The judge's findings were supported by the record and
not clearly erroneous. See Custody of Eleanor, 414 Mass. 795,
799 (1993).
7
As to the father, the evidence demonstrated that he showed
"a level of instability and lack of safety that do not serve the
best interests of the children." While he was meant to be the
primary caregiver according to the safety plan, the children
were exposed to dangerous substances, were not adequately
supervised, and were not attending school. After the children
were removed, he did not attend consistent visits or engage in
the action plan tasks. Between his inability to ensure the
safety of the children while they were in his care and his
failure to demonstrate improvement after their removal, we
discern no error in the judge's determination of unfitness.
As to termination of parental rights, the judge evaluated
the provisions of G. L. c. 210, § 3 (c), and found factors (ii),
(iii), (iv), (v), (vi), (vii), (viii), (x), and (xii) to be
applicable. The record supports this determination. Moreover,
as detailed above, in light of each parent's failure to
meaningfully address the issues that led to the removal of the
children, there was ample record evidence to support the judge's
findings and determination that the mother and the father were
unfit, and that termination of their parental rights was in the
children's best interests.15
15We are not persuaded by the father's, Jaden's, and Alex's
argument that the judge's findings were not sufficiently "child-
specific." The key elements of the parents' unfitness applied
to their inability to parent each of the children. Moreover,
8
2. Adoption plans. The father, Jaden, and Alex claim that
the judge erred in terminating parental rights because DCF did
not present adequate adoption plans for Jaden, Alex, and Lexy.16
"In determining the best interests of the child, the judge must
consider, among other things, 'the plan proposed by the
department.'" Adoption of Varik, 95 Mass. App. Ct. 762, 770
(2019), quoting G. L. c. 210, § 3 (c). "The law does not
require that the adoption plan be fully developed in order to
support a termination order, but it must provide sufficient
information about the prospective adoptive placement so that the
judge may properly evaluate the suitability of the department's
proposal" (quotations and citation omitted). Adoption of Varik,
supra.
While DCF did not submit written adoption plans or identify
adoptive placements for Jaden, Alex, or Lexy, the DCF social
worker testified that the plan for the children was adoption.
She testified that Lexy was receiving early intervention and was
in a "comprehensive foster care home," and that a cousin in
the judge made numerous factual findings and conclusions about
the individual needs, placements, and progress of both Jaden and
Alex.
16Kerrianne and Lexy argue in their brief that the father
"does not have standing to argue any issue to [Lexy] where he is
not listed on her birth certificate." The father does not
address that argument in his reply brief. Even assuming,
arguendo, that the father does have standing, the outcome is no
different.
9
Virginia was a potential placement. She also testified about
how Jaden and Alex were doing in their foster home, their
specific needs, and the services they were receiving to aid
their transition. Based on this evidence, the judge made
specific findings about each child's needs and the type of
caregiver and home they will require. The adoption plans
"convey[ed] enough information for the judge to assess the
various options that [DCF] was actively considering." Adoption
of Varik, 95 Mass. App. Ct. at 771.
3. Posttermination and postadoption visitation. The
father, Jaden, and Alex contend that the judge abused his
discretion in declining to order posttermination and
postadoption visitation between the father and Jaden and Alex.17
Once a parent is established as unfit, "[a] judge may decline to
order postadoption visitation, or may order limited postadoption
contact, including visitation, between a child and biological
parent where such contact is currently in the best interests of
the child" (quotation and citation omitted). Adoption of Saul,
60 Mass. App. Ct. 546, 556 (2004). The record reflects the
17At trial, the father did not appear, and neither Jaden
nor Alex requested posttermination and postadoption visitation.
See Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005)
(issue of visitation waived where parents did not raise it prior
to termination of their parental rights). Even assuming the
issue is not waived, we discern no abuse of discretion for the
reasons discussed herein.
10
father's failure to ensure the safety of the children, engage
with action plan tasks, and attend consistent visits. On the
record before us, we cannot say that the judge abused his
discretion in declining to order posttermination and
postadoption visitation with the father. See L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
4. Due process. The mother and father also raise various
claims of due process violations. These claims are unavailing
for the reasons discussed below.
a. The mother's waiver of counsel. The mother contends
that the judge erred in accepting her waiver of counsel because
he harbored "bona fide doubts" about her competence to do so.
We disagree. In parental termination proceedings, we 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). Before accepting a waiver
of counsel, the 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). To conclude that a waiver was valid, "[w]e must be
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-
11
representation" (quotation and citation omitted). Care &
Protection of Ollie, 104 Mass. App. Ct. 269, 274 (2024). The
competence that is required to waive the right to counsel is the
competence to waive the right, not the competence to represent
oneself. See Haltiwanger, supra. We review claims of
violations of the right to counsel de novo. See Commonwealth v.
Means, 454 Mass. 81, 88 (2009).
In Haltiwanger, we ruled that a judge who has a bona fide
doubt about a defendant's competence to waive counsel is
obligated to conduct a separate inquiry into the question, on
the record and accompanied by written findings. Haltiwanger, 99
Mass. App. Ct. at 556-557. The judge in Haltiwanger "sua sponte
raised a concern about the defendant's competency" to stand
trial because the defendant, during a colloquy, was
uncooperative, provided nonsensical answers, and refused to have
standby counsel appointed. See id. at 554, 557, 559. Here, the
judge conducted three comprehensive colloquies with the mother.
Moreover, at the slightest hesitation from her, he stopped the
colloquy, offered to appoint counsel, and allowed her to have
three conversations with standby counsel. Only then did the
judge accept her waiver and make a finding on the record that it
was made "voluntarily, intelligently and with knowledge of the
consequences." Neither the judge, nor standby counsel,
expressed any doubts about her competency, and her "unaddressed
12
mental health condition" was only a concern in the context of
her parental fitness. See Indiana v. Edwards, 554 U.S. 164, 175
(2008) ("Mental illness itself is not a unitary concept"). We
discern no error in the judge's finding that the mother's waiver
was knowing, intelligent, and voluntary.
b. Failure to continue the trial. The mother also
contends that the that the judge "should have postponed the
trial" after she did not appear on the second day. "The
decision on whether to continue any judicial proceeding is a
matter entrusted to the sound discretion of the judge, and the
judge's decision will be upheld absent an abuse of that
discretion." Adoption of Gillian, 63 Mass. App. Ct. 398, 409-
410 (2005). The judge did not abuse his discretion in
proceeding without the mother. She participated during the
first day of trial and had been participating virtually since
the beginning of the proceedings.18 She declined the opportunity
to appear in person, and there has been no indication or proffer
-- at trial or on appeal -- that her failure to appear on the
second day of trial was due to technology issues or anything
apart from her unilateral choice not to participate. Contrast
Adoption of Patty, 489 Mass. 630, 644-646 (2022) (judge abused
discretion in drawing adverse inference against parent for not
18On several occasions, the mother was able to reconnect
after disconnecting and utilize virtual, breakout rooms.
13
participating in video conference trial, where parent's absence
was attributable to inadequate explanation of video technology).
c. Termination of the father's parental rights to Alex.
The father claims that the judge's "sua sponte" termination of
his parental rights to Alex constituted a due process violation.
This argument is likewise unavailing because the trial in
November 2022 proceeded as to all four children, and, as
discussed supra, involved ample evidence of the father's
unfitness. At the end of the second day of trial, the judge
informed the parties that he would issue a decision as to Alex
after DCF filed a birth certificate. No party objected to the
process chosen by the judge. The father had an opportunity to
be heard in a meaningful time and manner throughout trial with
respect to Alex. See Care & Protection of Quinn, 54 Mass. App.
Ct. 117, 122 (2002). There was no error.
d. The father's right to counsel. Finally, the father
argues that he was denied due process when the judge allowed his
counsel's oral motion to withdraw at trial. We disagree.
Indigent parents have a constitutional right to counsel in a
proceeding brought to terminate their parental rights. See
Adoption of William, 38 Mass. App. Ct. at 663. The right is not
absolute, however, and can be lost if the parent abandons the
proceedings. See Care & Protection of Marina, 424 Mass. 1003,
1003-1004 (1997). The father's counsel was unable to provide a
14
position on the father's behalf throughout the proceedings due
to the father's failure to communicate with her. The father
then failed to attend trial or communicate with his counsel,
thereby abandoning the proceeding and his right to counsel. See
id. (despite involvement in initial stages of proceeding,
father's failure to attend later hearings and trial constituted
"absolute abandonment" of proceeding and right to counsel).19
Conclusion. The record and the judge's detailed and
comprehensive findings compel the conclusion that the decrees
"reflect an even-handed assessment of all the relevant facts,"
Petition of the Dep't of Pub. Welfare to Dispense with Consent
to Adoption, 376 Mass. 252, 261 (1978), and that the judge did
not err or abuse his discretion in finding the mother and the
father unfit, terminating their parental rights, and declining
19Raised for the first time on appeal, the arguments of
Jaden, Alex, and the father about the Family Treatment Court
were not properly preserved in the trial court, and are
therefore not before us. See Adoption of Yalena, 100 Mass. App.
Ct. 542, 554 (2021).
15
to order posttermination and postadoption visitation with the
father.
Decrees affirmed.
By the Court (Vuono, Neyman &
D'Angelo, JJ.20),
Clerk
Entered: October 7, 2024.
20 The panelists are listed in order of seniority.
16