Adoption of Raissa.

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16-P-1747 Appeals Court

ADOPTION OF RAISSA.1

No. 16-P-1747.

Suffolk. September 19, 2017. - June 22, 2018.

Present: Vuono, Blake, & Singh, JJ.

Parent and Child, Adoption, Dispensing with parent's consent to
adoption. Adoption, Dispensing with parent's consent.
Minor, Adoption. Due Process of Law, Adoption, Assistance
of counsel. Constitutional Law, Assistance of counsel,
Waiver of constitutional rights. Practice, Civil,
Assistance of counsel, Waiver, New trial.

Petition filed in the Suffolk County Division of the
Juvenile Court Department on November 27, 2013.

The case was heard by Stephen M. Limon, J., and a motion
for a new trial was also heard by him.

Cara M. Cheyette for the mother.
Brian R. Pariser for Department of Children and Families.
Andrea Peraner-Sweet (Kate C. Billman-Golemme also present)
for the father.
Rizwanul Huda for the child.

1 A pseudonym.
 2

SINGH, J. As a result of her mother's incarceration, three

year old Raissa was left without a guardian, leading the

Department of Children and Families (department) to file a care

and protection petition. Following a trial in the Juvenile

Court, the judge found the mother to be unfit and terminated her

parental rights. The mother appeals, claiming that she was

denied due process when she was required to proceed to trial

without counsel. She also appeals from the denial of her motion

for new trial, primarily claiming she received ineffective

assistance from the nine attorneys who were successively

appointed to represent her. We affirm.

Background. On November 26, 2013, the mother was arrested

at the scene of a motor vehicle accident. She was allegedly

driving under the influence of alcohol when she struck a woman

and her seven year old child; the woman was seriously injured,

and the child was killed. The mother was held without bail on

criminal charges arising out of the incident.2 As no one could

be located to take immediate custody of Raissa, the department

filed a petition for care and protection in the Juvenile Court.

Ultimately, Raissa was placed with her father, who obtained

2 At the time of the March, 2016, trial in Juvenile Court,
the mother had been indicted for manslaughter, motor vehicle
homicide, operating a motor vehicle while under the influence
causing serious bodily injury, leaving the scene of an accident
involving property damage, and assault and battery by means of a
dangerous weapon.
 3

permanent custody, and the mother's parental rights were

terminated.3 The mother remained in custody on the criminal

matter during the pendency of the Juvenile Court proceedings.

In November, 2013, the judge appointed an attorney to

represent the mother. In March of 2014, that attorney moved to

withdraw at the request of the mother and indicated that an

irretrievable breakdown in communication had occurred. The

mother requested that another attorney be appointed to represent

her. Over the course of the following year, three additional

attorneys were successively appointed to represent the mother.

She effectively discharged each of them by requesting each to

withdraw from her case.4

In February, 2015, the judge appointed a fifth attorney to

represent the mother. At a May, 2015, pretrial hearing, the

mother refused to enter the court room. In July, 2015, within

weeks of the scheduled trial, the fifth attorney moved to

At the time the care and protection petition was filed,
3

Raissa's biological father, who did not reside in the United
States, was seeking a judgment establishing his paternity. Over
the mother's objection, he was adjudicated the father of Raissa
by the Probate and Family Court in September, 2014, and then
afforded full party status in the ongoing care and protection
proceeding. After a period of transition from foster care,
Raissa was placed with her father (who had relocated to
Massachusetts) in February, 2015.

Of these four attorneys, three indicated that the mother
4

had explicitly requested them to withdraw, while one stated that
she was unable to repair the relationship after the mother had
expressed her belief that there was a serious breakdown in
communication between them.
 4

withdraw at the direction of the mother. At a hearing on July

1, 2015, the mother initially refused to enter the court room.

The attorney cited the mother's refusal to attend court

proceedings and her insistence on speaking in Spanish, rather

than in English (although they had always communicated in

English in the past without any difficulty), as additional

grounds for withdrawal. The mother was eventually persuaded to

come into the court room on that day,5 and the judge asked her

about her ability to communicate in English. Speaking in

English, the mother stated that her first language was Spanish;

however, she agreed that she could speak and understand English

well. The judge then advised the mother that he was going to

appoint a sixth attorney for her, that she had to communicate in

English with the new attorney, and that he was going to schedule

a new trial date that would give the new attorney sufficient

time to prepare.

At the same hearing, the judge heard the mother's

complaints about her attorneys. The mother complained that her

current attorney would not provide her with copies of certain

5 In an effort to coax the mother into attendance, the judge
appointed a guardian ad litem (GAL) for the mother and asked him
to speak with the mother. After speaking with the GAL, the
mother agreed to come into the court room and speak with the
judge on the condition that no other party or their counsel
would be present. All parties consented to this procedure. The
judge found that the mother's "responses and questions" in
English were "perfectly formed, unaccented[, and] colloquial."
 5

documents. The judge explained that issues of confidentiality

prevented the attorney from doing so. He told the mother that

he would not continue the case again and that, if she could not

cooperate with the new attorney, she would have to represent

herself at trial. He discouraged self-representation in favor

of reliance on competent counsel with expertise in the field.

He emphasized the important stakes involved, namely the ability

of the mother to have custody of her child, and the importance

of finality, particularly for Raissa.

On September 30, 2015, the mother's sixth attorney moved to

withdraw, citing an irretrievable breakdown in communications

with his client. The attorney indicated that the mother had

written a letter instructing him to withdraw and then had

refused to meet with him when he attempted to visit with her to

discuss the matter. The judge allowed the attorney to withdraw.

He also ordered a court clinic evaluation (evaluation) of the

mother's competency to represent herself, in the event that she

intended to do so. In the event that the mother was still

seeking successor counsel or at least standby counsel, the judge

appointed a seventh attorney to represent the mother.6 The trial

was rescheduled for January 21, 2016. A month before the trial

6 The judge had previously appointed the seventh attorney as
the GAL for the mother. See note 5, supra.
 6

date, however, the seventh attorney also moved to withdraw,

indicating that the mother had discharged him.

On January 21, 2016, the mother appeared for the court

hearing, representing herself (with her seventh attorney present

as standby counsel) and speaking through a Spanish language

interpreter. The mother complained that the seventh attorney

had not worked on the case as she had requested. She asked the

judge to appoint another attorney, to give her the assistance of

a Spanish language interpreter, and to allow her to complete the

evaluation. The judge arranged for the evaluation,7 continued

the trial, and appointed an eighth attorney to represent the

mother, emphasizing that the trial must take place on the next

scheduled date.

On March 30, 2016, the next scheduled trial date, the

eighth attorney moved to withdraw at the mother's request. The

attorney cited an irretrievable breakdown in communication as

well as ethical issues with continued representation. The judge

allowed the attorney to withdraw.

7 Since the mother stated that she intended to proceed at
trial with a lawyer, the judge changed the focus of the
previously ordered evaluation from an assessment of her
competency to represent herself at trial to an assessment of her
psychological functioning relating to parental fitness. On
appeal, the mother claims that the judge abused his discretion
in changing the nature of the evaluation in the circumstances.
As the mother herself acknowledges, however, the completed
evaluation concluded that the mother did not suffer from any
kind of mental illness or impairment. There was no abuse of
discretion in the judge's handling of the evaluation.
 7

The judge then considered the mother's request for a

Spanish language interpreter. After finding that the mother did

not need the services of an interpreter due to her exhibited

proficiency in English, both in her communications with the

judge and her attorneys, the judge then excused the interpreter,

who had been present in the court room. The judge asked the

mother whether there was any reason that the trial should not go

forward as planned. After the mother failed to answer the

judge's repeated questions, he noted that the mother was

"sitting there and is not responding in any way." Finding that

the mother had engaged in dilatory tactics to delay trial, the

judge ordered the trial to proceed. He appointed a new attorney

to act as standby counsel to assist the mother in representing

herself at trial. After a recess called to allow the mother to

confer, standby counsel reported that the mother spoke only in

Spanish, and that they could not communicate.

Trial commenced. The first witness was the family

preservation program director at the Massachusetts Correctional

Institution in Framingham (MCI-Framingham), where the mother was

being held. She testified that her conversations with the

mother had been in English and that she had observed the mother

communicating with other MCI-Framingham staff members in

English. The department called additional witnesses and

submitted documents in evidence. When given the opportunity to
 8

cross-examine each witness, the mother spoke only in Spanish.

After the department rested, the judge asked the mother whether

she wanted to testify or present witnesses, but she responded

only in Spanish. The mother did submit documents with the

assistance of standby counsel. The trial concluded and the

judge later issued a notice of decision determining that the

mother was unfit and terminating her parental rights. The

father was determined to be fit, and permanent custody of Raissa

was awarded to him.

Discussion. 1. Waiver of right to counsel.8 "An indigent

parent in a G. L. c. 210, § 3, proceeding has a constitutional

right to counsel. Department of Pub. Welfare v. J.K.B., 379

Mass. 1, 2-5 (1979)." Adoption of William, 38 Mass. App. Ct.

661, 663 (1995). Because the "loss of a child may be as onerous

a penalty as the deprivation of the parents' freedom," Custody

of a Minor (No. 1), 377 Mass. 876, 884 (1979), courts have

looked to the criminal law in deciding issues of individual

rights in care and protection cases, including the right to

8 In her brief, the mother assails the judge's dismissal of
the interpreter as evidencing "insensitivity," but makes no
distinct legal argument relating to the denial of a request for
an interpreter. See Commonwealth v. Vargas, 475 Mass. 338, 355-
356 (2016) (party claiming right to interpreter has burden of
proving entitlement). In view of the mother's exhibited
proficiency in English, there was no abuse of discretion or
error in the judge's determination that the mother was not
entitled to an interpreter. See G. L. c. 221C, §§ 1-2 ("non-
English speaker" entitled to interpreter).
 9

counsel. See Adoption of William, supra. As in a criminal

proceeding, however, a parent may waive the right to counsel

either explicitly, see id. at 664, or, as here, through conduct.

See Commonwealth v. Means, 454 Mass. 81, 89-92 (2009). See also

Commonwealth v. Babb, 416 Mass. 732, 735 (1994) (defendant's

refusal to proceed with appointed counsel without good cause

constitutes abandonment).

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. See

Commonwealth v. Gibson, 474 Mass. 726, 741 (2016). "The key to

waiver by conduct is misconduct occurring after an express

warning has been given to the [parent] about the [parent's]

behavior and the consequences of proceeding without counsel"

(emphasis in original). Means, 454 Mass. at 91. With

"substantial deference" to the trial judge's factual findings

related to the loss of the right to counsel, we review the

judge's determination of waiver of counsel de novo. Id. at 88.

Here, the judge found that the mother either fired or

failed to communicate with each of the eight attorneys appointed

to her, which resulted in their need to withdraw. After the

appointment and withdrawal of five attorneys, the judge

conducted a colloquy with the mother, warning her that she would

have to cooperate with her sixth attorney because she would not
 10

be appointed another one, and she would consequently have to

proceed pro se. The judge detailed the difficulties with self-

representation and emphasized the important stakes involved.

Despite the warning, the mother was appointed two additional

attorneys, whom she also discharged. Finding the mother to have

engaged in the same behavior which the judge had previously

warned would result in the loss of counsel, the judge concluded

that the mother had waived the right to counsel through her

conduct and proceeded to trial.

On appeal, the mother first claims that the judge erred in

finding that she fired her lawyers. She points out that she

never filed a single motion seeking a change in counsel;

instead, the attorneys made the motions (which were supported by

their affidavits). However, seven out of eight of the attorneys

averred in their submissions that they moved to withdraw at the

direction of the mother.9 The judge was entitled to credit these

affidavits. See Adoption of Paula, 420 Mass. 716, 730 (1995)

(judge's findings with clear record support accepted on appeal).

See also Means, 454 Mass. at 93 n.19 ("Where trouble in an

attorney-client relationship extends through multiple counsel,

it is less likely that the disquiet is due to the particular

9 The mother contends that the serial withdrawal of counsel
violated rules of professional responsibility. Once the mother
discharged counsel, it was appropriate for the attorneys to seek
to withdraw. See Mass.R.Prof.C. 1.16(a)(3), as appearing in 471
Mass. 1396 (2015).
 11

attorney-client relationship, and more likely that the

difficulty is due to the client's intransigence or misconduct").

The mother next contends that the colloquy with the judge

on July 1, 2015, was "too hypothetical and stale" to suffice as

adequate warning of what would happen at trial on March 30,

2016, if she persisted in her behavior.10 She also contends that

the judge failed to describe with adequate specificity the type

of behavior that would result in the loss of appointed counsel.

The record does not support this assertion. The judge's

colloquy with the mother clearly focused on the number of

attorneys who had been appointed and had withdrawn due to an

irretrievable breakdown in communication.

In reviewing the adequacy of the warning, we also consider

the judge's findings that the mother had prior experience with

court proceedings, including the paternity action pertaining to

the child (see note 3, supra), restraining order proceedings,

and various criminal matters. She also had a college degree and

was described as "very bright and articulate." See Commonwealth

v. Appleby, 389 Mass. 359, 368, cert. denied, 464 U.S. 941

(1983) (background, experience, and conduct of litigant and

10 It is preferable, if possible, to give, or repeat, the
warning close to the time of trial. We recognize that this was
an unusual and protracted situation. Here, the judge displayed
extraordinary patience in appointing additional attorneys to
represent the mother after he had warned her that continued
failure to cooperate with counsel would result in her proceeding
without counsel.
 12

circumstances of case may be considered in waiver analysis).

The warning was adequate, given the mother's particular

circumstances. See Commonwealth v. Pamplona, 58 Mass. App. Ct.

239, 242 (2003). Thus, the colloquy was sufficient to warn the

mother that any further decision to discharge counsel without

good cause would be considered problematic misconduct and that

if she thwarted another counsel's efforts to represent her, she

would face the consequence of representing herself.

Finally, the mother contends that her conduct did not

justify denying her counsel. She points out that there was no

indication that she was violent or threatening to anyone. "The

acts leading to waiver by conduct need not be violent, but they

must be highly disruptive of orderly or safe proceedings."

Means, 454 Mass. at 91. Repeated changes in counsel delay

proceedings because of the need for each new attorney to become

familiar with the client and the case; consequently, they

interfere with orderly proceedings. See Appleby, 389 Mass. at

366-368 (motion for new counsel employed as delay tactic);

Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 237 (2010)

("most common problem accompanying a request for a change of

counsel is the need for a continuance of the trial").11

11 Notwithstanding the successive discharge and appointment
of counsel, we agree with the mother that some of the delay was
attributable to the fact that the paternity proceedings were
ongoing for part of the time in question.
 13

When faced with this situation, it is within the trial

judge's broad discretion to take reasonable measures to keep the

proceedings moving forward, even if the result is to leave the

defendant, or in this case the parent, without counsel. When

taking such action, "[t]he judge must weigh the constitutional

protections of a [parent] against the interest of orderly trial

administration." Commonwealth v. Kenney, 437 Mass. 141, 150

(2002). See Commonwealth v. Pena, 462 Mass. 183, 192-195 (2012)

(judge did not violate probationer's right to counsel when he

required him to proceed pro se with standby counsel in interest

of judicial efficiency, where probationer "refused" services of

succession of court-appointed counsel and probationer thereafter

was "purposefully . . . trying to delay" proceedings).

In cases involving the termination or curtailment of a

parent's rights, there is an additional, competing

consideration, beyond the mother's right to counsel -- the

rights of the child. "[R]ecognition of important parental

rights does not change the 'crucial fact' that the focus of

proceedings that terminate or curtail parental rights should be

the best interest of the child." Adoption of Olivia, 53 Mass.

App. Ct. 670, 677 (2002). See Custody of Two Minors, 396 Mass.

610, 617 (1986) (children's right to stable and safe environment

equally as important as parent's interest in fair proceedings).
 14

It follows that "[n]o cases of any kind have a greater

claim for expedition at all stages than those involving care and

custody of children." Custody of a Minor, 389 Mass. 755, 764

n.2 (1983). See Care & Protection of Quinn, 54 Mass. App. Ct.

117, 122 (2002) (judge did not abuse discretion in declining

father's request to continue care and protection trial where

"[o]ther interests, specifically the paramount interests of the

children involved, argued against delay"). There was no error.

2. Motion for new trial. Following entry of the decree

terminating the mother's parental rights, the mother filed a pro

se motion for new trial, claiming that (a) she received

ineffective assistance of counsel, (b) the evidence was

insufficient to sustain the judge's decision, and (c) there were

manifest errors at trial, depriving her of due process.12

After a hearing, at which the mother represented herself

(with the assistance of standby counsel), the judge denied the

12On appeal, the mother raises additional issues not raised
below, which we briefly address, although we need not do so.
See Adoption of Larry, 434 Mass. 456, 470 (2001) (issues raised
for first time on appeal not preserved for appellate review).
The admission of the G. L. c. 119, §§ 51A and 51B, reports from
one year before the petition, filed "to set the stage," was not
error. See Custody of Michel, 28 Mass. App. Ct. 260, 267
(1990). In any event, there was other competent evidence, from
a variety of sources, of the mother's alcohol-related issues.

We also note that there was no impropriety in the judge
reviewing the transcript of the paternity trial, offered by the
father, to help assess the mother's English language fluency.
 15

motion. We review the denial of a motion for new trial for an

abuse of discretion. See Adoption of Marc, 49 Mass. App. Ct.

798, 801 (2000) (review of denial of posttrial motion for abuse

of discretion).

a. Ineffective assistance of counsel. "Ineffective

assistance of counsel contentions in care and protection

proceedings are assessed by determining 'whether the "behavior

of counsel [fell] measurably below that which might be expected

from an ordinary fallible lawyer" and, if so, . . . "whether

[counsel's conduct] has likely deprived the defendant of an

otherwise available, substantial ground of defence."' Care &

Protection of Stephen, 401 Mass. 144, 149 (1987), quoting

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974)." Adoption of

Mary, 414 Mass. 705, 712-713 (1993).

In her motion for new trial, the mother set out a litany of

complaints against her lawyers, primarily revolving around their

failure to take action to challenge the father's paternity and

parental fitness. On appeal, the mother argues that "the lack

of representation at the paternity trial created a record that

could be, and was, weaponized against her." Given that the

lawyers did not represent her in the paternity action and that

the Probate and Family Court's adjudication of paternity could

not be challenged in the Juvenile Court, the lawyers were not

deficient in declining to pursue these requests.
 16

As to issues of the father's fitness, the mother raised her

concerns with the department, which investigated them and found

no support for them. To the extent that the concerns involved

criminal allegations, they were further raised with law

enforcement authorities, which also investigated and found no

support for them. Despite her claims about the father's alleged

shortcomings, the mother failed to establish that better work on

the part of trial counsel would have yielded anything material,

either in her attempt to undermine the father's position or in

defense of her own fitness to parent. There was no abuse of

discretion or error of law in the denial of the mother's motion

for new trial on this ground.

b. Clear and convincing evidence. A judge may only

terminate parental rights if he determines, first, that the

parent is unfit, and second, that termination would be in the

best interests of the child. See Adoption of Nancy, 443 Mass.

512, 514-515 (2005). We review the judge's findings with

substantial deference, recognizing the judge's discretion to

evaluate witness credibility and the evidence. Id. at 515.

Subsidiary findings must be proved by a preponderance of the

evidence, and will not be disturbed unless clearly erroneous.

Ibid. The critical finding of unfitness must be proved by clear

and convincing evidence. Ibid. We review to discern any abuse
 17

of discretion or clear error of law on the part of the trial

judge. See Adoption of Ilona, 459 Mass. 53, 59 (2011).

The judge determined that the mother was unfit due to

unaddressed mental health and alcohol abuse issues, which placed

Raissa in danger and ultimately left her without a guardian. He

found that the mother failed to cooperate with the department in

any way, even revoking permission for representatives of the

department to visit her while she was in custody so that they

could discuss a plan for reunification.13 He also found that the

mother demonstrated a vacillation of feeling toward the child

and placed her own needs above that of the child. By contrast,

the judge found that Raissa had developed a strong, nurturing

bond with the father and was thriving in his care. The judge

further found that the animosity the mother had demonstrated

toward the father, including denying his paternity on the

child's birth certificate, precluded any possibility that the

mother and father would be able to coparent the child. These

findings were supported by the record.14

13 The mother's decision to block department representatives
from visiting her resulted in her inability to have visits with
the child. Instead of simply cooperating with the department,
the mother attempted to have the foster parent arrange visits
without the knowledge of the department. When this plan did not
succeed, the mother refused to reverse course. The result was
that the mother had not seen the child for more than two years
by the time of trial.
14 In her motion for new trial, the mother made some

additional arguments regarding the evidence but has not pressed
 18

c. Manifest errors at trial. On appeal, the mother

alleges that the judge erred in denying her motion for new trial

on the basis that the trial was infected with structural error,

resulting from the denial of counsel. In her motion for new

trial, the mother accused the various attorneys of lying to the

judge in representing that she had demanded them to withdraw.

She claims that the attorneys withdrew because they were

unwilling to do the work requested of them. The judge

considered these claims and provided his reasoning in rejecting

them. Given our disposition of the mother's claim of denial of

counsel, supra, we need not address this issue any further,

other than to note that the judge was well within his discretion

in rejecting the mother's contentions.

Decree affirmed.

Order denying motion for
new trial affirmed.

them on appeal. We do not address them here. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975).