Adoption of Brianna.

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-933
ADOPTION OF BRIANNA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, a judge found both
the mother and the father unfit to parent Brianna, terminated
their respective parental rights, and approved the plan of the
Department of Children and Families (department). On appeal,
the mother contends that (1) she was denied due process when she
was required to proceed to trial with standby counsel; (2) the
finding of her unfitness was not supported by clear and
convincing evidence; and (3) termination of her parental rights
was not in the child's best interests. The father contends that
(1) the judge violated his right to due process by relying upon
documents not in evidence; (2) the department failed to make
reasonable efforts to reunify him with Brianna; (3) the judge
abused her discretion by selecting the department's permanency
plan over his; and (4) the judge erred in declining to order
1 A pseudonym.
posttermination visitation. We reverse in part and affirm in
part.
Background. Brianna was born in March 2014. The
department filed a care and protection petition on behalf of
Brianna on June 8, 2017, based on concerns of neglect, the
mother's mental health, and Brianna's exposure to domestic
violence.2 At the June 8 hearing, the judge determined that the
mother was indigent and appointed counsel to represent her.3 One
year later, in June 2018, counsel withdrew for personal reasons
and the judge appointed successor counsel. Over two years
thereafter, in August 2020, the second attorney filed a motion
to withdraw at the mother's request. In September 2020, when
questioned by the judge at a hearing conducted via an Internet-
based video conferencing platform, Zoom Video Communications,
Inc. (Zoom), the mother indicated that she had issues with the
second attorney's availability and requested the first attorney
be reappointed. The judge allowed the second attorney's motion
to withdraw and appointed a third attorney. Almost immediately,
the mother expressed concern with the third attorney because she
recognized him from the court house and did not "like" him. The
judge advised the mother that she did not "get to pick" her
2 This was the third care and protection petition filed by the
department involving Brianna since 2014.
3 The father was not present at that hearing.
2
appointed counsel and warned that "if you keep firing your
attorneys, you don't get another one and then you'll be forced
to represent yourself."
Six months later, during a Zoom hearing in March 2021, the
mother again requested new counsel.4 She stated that the third
attorney did not "have the time of day for [her]." Before
acting on the motion, the judge told the mother that she could
either continue with the third attorney or proceed pro se. When
the mother responded, "for shoots and giggles, I can go pro se,"
the judge advised, "I would truly recommend you not do that
because I'm about to set this case for trial." The mother then
stated, "I'm willing with the pro se for shits and giggles."
The judge admonished her for "cursing" and again gave her "a
choice to keep [the third attorney]." The mother, despite
continuing to complain about his performance, replied "I'm going
to keep [the attorney]." However, the judge then indicated she
would "split the difference" and modified the attorney's role to
standby counsel. The mother agreed to maintain the attorney "on
the sidebar," but also stated she wanted to hire another lawyer.
After a brief back and forth between the judge, the attorney,
and the mother regarding scheduling the trial and the role of
4 At a hearing in October 2020, the third attorney told the trial
judge he had a "stormy relationship" with the mother and
questioned her "mental status."
3
standby counsel,5 the mother reiterated, "I want a new attorney.
You guys are giving me a short end of the stick. Like, I'm not
blind."
The matter was tried over four nonconsecutive days in
August and September 2021.6 The mother, who was not present for
the first day of trial, proceeded with the third attorney acting
as standby counsel.7 The father and child were represented by
counsel. The evidence consisted of the testimony of two social
workers, the mother, the paternal aunt, and an expert in
permanency planning, as well as seventy exhibits offered by the
department. After the trial concluded, the judge issued a
series of decisions and orders determining that both parents
were unfit and terminating their parental rights.8 See G. L.
c. 119, § 26; G. L. c. 210, § 3.
Discussion. 1. Waiver of right to counsel. "An indigent
parent in a G. L. c. 210, § 3, proceeding has a constitutional
right to counsel. . . . Because the loss of a child may be as
onerous a penalty as the deprivation of the parents'
5 During the exchange and at other times during the hearing, the
mother frequently interrupted the judge and veered off topic.
6 The first trial had resulted in a mistrial in January 2020.
7 As standby counsel, the attorney requested a continuance on the
first day when the mother failed to appear, cross-examined the
mother, and assisted with the cross-examination of two other
witnesses. He also filed a motion to file a late appeal, filed
a notice of appeal, and filed motions for funds and appointment
of appellate counsel.
8 At the time of trial Brianna was seven years old.
4
freedom, . . . courts have looked to the criminal law in
deciding issues of individual rights in care and protection
cases, including the right to counsel" (quotations omitted).
Adoption of Raissa, 93 Mass. App. Ct. 447, 451-452 (2018). A
waiver of counsel must be "voluntary, unequivocal, knowing, and
intelligent." Adoption of William, 38 Mass. App. Ct. 661, 663-
664 (1995). However, as in a criminal proceeding, the right to
counsel may be waived either explicitly or through conduct. See
id. at 664-665; Commonwealth v. Means, 454 Mass. 81, 89-91
(2009). We review claims of violations of the right to counsel
de novo. See Means, supra at 88.
We agree with the mother that her waiver of counsel was not
voluntary, unequivocal, knowing, or intelligent, and that the
judge erroneously accepted her waiver without conducting an
adequate colloquy.9 See Adoption of William, 38 Mass. App. Ct.
at 665. It is evident from the record that the mother's
demeanor and frequent interruptions of the judge, compounded by
issues with the Zoom connection, created a difficult dynamic.
Still, it was the judge's obligation to ensure that "[the
9 Because we conclude that the mother's waiver was not voluntary,
unequivocal, knowing, and intelligent we need not reach her
argument that she was deprived of due process based on the
judge's failure to comply with S.J.C. Rule 3:10 (3), as
appearing in 475 Mass. 1301 (2016), which includes requirements
of a written waiver, certification by the judge, and written
findings following a colloquy. We also need not reach her
challenges to the unfitness and best interests determinations.
5
mother] 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" (quotation and citation omitted). Id. The
judge did not probe the mother's reasons for wishing to
represent herself, inquire into her educational background, or
address concerns regarding her mental health to establish that
her waiver was knowing and intelligent. See id.; Commonwealth
v. Haltiwanger, 99 Mass. App. Ct. 543, 555 (2021). During her
interaction with the mother, the judge provided a cursory
explanation that as a pro se litigant the mother would be
responsible for defending the case and filing motions and that
standby counsel would not file motions or contact people on her
behalf. The mother never explicitly stated she understood that
proceeding pro se meant she would have to defend the case
herself. Her statement that she would represent herself "for
shits and giggles" hardly reflected a sense of the seriousness
of the proceedings or the magnitude of a decision to self-
represent. Nor did the mother unequivocally state that she
wanted to represent herself. In fact, the opposite occurred --
the mother stated she wanted to "keep" the third attorney
immediately before the judge told her he would be standby
counsel. The mother then indicated she "wante[ed] to bring an
attorney to the table" by hiring private counsel and reiterated
6
that "I need a new attorney" and "I don't need him at the
sidebar" before the judge told her, "you're not getting a new
attorney." The hearing ended moments later with the mother
telling the judge, "I can't even get a fair trial." Based on
all of these circumstances, the mother has demonstrated by a
preponderance of the evidence that her waiver was not voluntary,
unequivocal, knowing, or intelligent. See Adoption of William,
supra at 664-665.
We are also persuaded that the mother did not forfeit her
right to counsel by her conduct. "Waiver by conduct may occur
where a parent engages in misconduct after having been warned by
the judge that such behavior will result in the loss of the
right to counsel." Adoption of Raissa, 93 Mass. App. Ct. at
452. The department argues that the mother's refusal to work
with court-appointed counsel was without good cause and thus
constituted waiver. Yet, while the mother expressed
reservations about her second and third attorneys, she evidently
was able to work well with her first appointed attorney for one
year until that attorney withdrew for personal reasons unrelated
to the mother. The mother's two requests for different counsel
were based on her belief that the second and third lawyers were
unavailable and thus could not properly assist her. This was a
far cry from the circumstances in Adoption of Raissa, where that
mother "either fired or failed to communicate with each of the
7
eight attorneys appointed to her, which resulted in their need
to withdraw." Id. Furthermore, notwithstanding the mother's
request for different counsel, she agreed to work with the third
attorney despite her reservations about him. The judge
nevertheless modified that attorney's role to standby counsel.
We do not view the mother's disinclination to work with the
second and third attorneys in the circumstances of this case as
"engag[ing] in misconduct after having been warned by the judge
that such behavior will result in the loss of the right to
counsel." Id.
Although the mother had the assistance of standby counsel,
that is not the equivalent of full representation at trial.
"Standby counsel is available only to assist the [party] to the
extent, and in the manner, the [party] wishes to call upon such
counsel while representing [themselves]. Standby counsel does
not formally represent the [party]. Nor does standby counsel
protect the [party]'s interests in the same way or to the same
extent as counsel." Commonwealth v. Leonardi, 76 Mass. App. Ct.
271, 275-276 (2010). Because the mother was deprived of the
right to an attorney, the decree is void. See Adoption of Rory,
80 Mass. App. Ct. 454, 458 (2011).
2. Father's claims. a. Documents. The father contends
the judge erroneously relied on six documents not in evidence in
8
making certain findings of fact.10 Although we agree the judge
referred to excluded documents in her findings of fact, we are
satisfied that there was ample admissible evidence of the
father's unfitness. The judge's findings were supported by
properly admitted testimony and exhibits showing that the father
continued to engage in criminal activity while the department's
review was ongoing; consistently failed to make progress with
the department's action plan for him; first contacted the
department eight months after the care and protection case was
filed; was frequently incarcerated and had inconsistent
visitation with Brianna, thus disrupting his ability to form a
bond with her; did not communicate with the department despite
the department's attempts to reach him; and had supervised
visits with Brianna only six times in four years. Therefore,
even assuming error in the judge's consideration of documents
not properly before her, we discern no prejudice to the father.
Compare Care & Protection of Zita, 455 Mass. 272, 284 (2009).
b. Reasonable efforts. The father also asserts that the
department failed to make reasonable efforts to reunify him with
Brianna. "Before seeking to terminate parental rights, the
department must make 'reasonable efforts' aimed at restoring the
10Specifically, the father argues the judge improperly relied
upon two psychological evaluations, a court activity record, a
court-appointed special advocate report, a care and protection
evaluation, and a police file.
9
child to the care of the natural parents." Adoption of Ilona,
459 Mass. 53, 60 (2011), quoting Adoption of Lenore, 55 Mass.
App. Ct. 275, 278 (2002). The judge, when terminating parental
rights, is required to determine whether the department made
reasonable efforts to "prevent or eliminate the need for removal
from the home," and we defer to the judge's findings unless
clearly erroneous. Adoption of Ilona, supra at 61-62, quoting
G. L. c. 119, § 29C.
Here, the judge determined that the department made
reasonable efforts to reunify the father and child, but the
father was "unable to maintain long term stability and address
his repeated incarcerations, drug involvement, and lack of
consistent communication." The judge stated that the "Father
did not contact the Department until February 2018, eight months
after this care and protection was filed. Father has not
communicated with the Department or had a visit with [Brianna]
in over a year. Father has provided no proof of engagement in
services, nor has he taken steps necessary for stability in the
home, having been homeless, unemployed, and incarcerated
multiple times during this care and protection proceeding."
The father argues that the department failed to locate him
and coordinate visits with the child while he was incarcerated.
Contrary to this argument, however, the record indicates the
department arranged a visit with the father while he was
10
incarcerated. The record also supports the judge's finding that
the father failed to respond to the department's attempts to
contact him. Although the social worker testified that she did
not check police reports and the father's CORI, or conduct a
family search to locate the father when his whereabouts became
unknown, the father did not attend scheduled meetings and
consistently failed to engage with the department. Based on the
evidence of inconsistent communication with the department, the
judge's finding of reasonable efforts was not clearly erroneous.
See Adoption of Ilona, 459 Mass. at 62.
c. Permanency plan. The father claims the judge
improperly weighed the evidence of his competing permanency plan
-- placement with his sister. "In cases where the parents have
offered a competing plan, the judge must assess the alternatives
and, if both pass muster, choose which plan is in the child's
best interests, however difficult that choice may be." Adoption
of Dora, 52 Mass. App. Ct. 472, 475 (2001). We review the
decision for abuse of discretion or error of law. See Adoption
of Hugo, 428 Mass. 219, 225 (1998), cert denied sub nom, Hugo P.
v. George P., 526 U.S. 1034 (1999).
The department's permanency plan for Brianna was adoption
by her current foster mother. The father offered an alternative
plan, placement with his sister, Brianna's paternal aunt. In
rejecting placement with the aunt, the judge found that the aunt
11
(1) delayed three years in approaching the department for
custody despite knowing that Brianna was in foster care; (2) did
not have a preexisting relationship with the child; (3) failed
to provide the department with the requested documentation to
complete the "caretaker/custody application"; (4) permitted the
father to have unauthorized contact with Brianna during a visit;
and (5) "demonstrated a repeated pattern of delay in
establishing her relationship with [Brianna] and taking the
necessary steps to obtain custody." We discern no error. See
Adoption of Jacob, 99 Mass. App. Ct. 258, 272 (2021) (no abuse
of discretion where judge concluded placement with grandparents
did not advance child's best interests).
d. Visitation. Finally, the father contends the judge
abused her discretion in declining to order posttermination and
postadoption visitation. "A judge may order that no
postadoption [and posttermination] visitation take place. . . .
An order for . . . visitation is not warranted in the absence of
a finding that a significant bond exists between the child and a
biological parent and 'that continued contact is currently in
the best interests of the child.'" Adoption of John, 53 Mass.
App. Ct. 431, 439 (2001), quoting Adoption of Vito, 431 Mass.
550, 563-564 (2000). The decision whether to grant visitation
is "left to the sound discretion of the trial judge." Adoption
of John, supra.
12
Here, the judge declined to order posttermination or
postadoption visitation between the father and the child, and
left the issue of such visitation to the discretion of the
department or adoptive parents, because visitation was not in
Brianna's best interests. Based on the absence of a strong bond
between the father and the child, inconsistent visitation by the
father, and the father's failure to see the child in over one
year, we discern no abuse of discretion in the judge's
determination that a visitation order was not required.
Conclusion. The decree as to the mother is vacated, and
the case is remanded to the Juvenile Court for further
proceedings consistent with this memorandum and order. The
decree as to the father is affirmed.
So ordered.
By the Court (Milkey, Singh &
Brennan, JJ.11),
Clerk
Entered: July 5, 2023.
11 The panelists are listed in order of seniority.
13