Adoption of Igor.

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-1138

ADOPTION OF IGOR. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree of the Juvenile Court

finding her unfit to parent the child, terminating her parental

rights, and dispensing with her consent to the adoption of the

child. 2 See G. L. c. 119, § 26; G. L. c. 210, § 3. Represented

by counsel on appeal, she argues that she was not competent to

waive her right to trial counsel; she also challenges the

sufficiency of certain of the judge's findings. We affirm.

Background. In March 2019 the Department of Children and

Families (DCF) commenced a care and protection proceeding in the

Juvenile Court on behalf of the child, who was then four years

old. 3 The judge ordered an emergency mental health screening of

the mother and referred her to the court clinic for an

1 A pseudonym.
2 The child's "unknown/unnamed father" was also found unfit and
his rights were terminated.
3 In 2020, DCF changed its goal to the termination of the

mother's parental rights.
evaluation of her competency to respond to the proceeding and to

engage in a temporary custody hearing (or waive her right to

one). 4 The same judge presided over all subsequent matters in

the proceeding. On June 7, 2021, the first day of trial, the

mother's court-appointed attorney, her fifth in the case,

informed the judge that the mother was meeting with her

therapist "so that she could better [be] able to address the

[c]ourt in kind of the way she wants to proceed on this case";

he also moved to withdraw. The judge ordered a competency

screening (screening evaluation) at the court clinic, which was

conducted that same day by a second clinician. The mother

complied with the order.

Thereafter, the judge conducted a two-day hearing on the

motion to withdraw and the mother's earlier request to represent

herself (competency hearing). During the hearing, the judge

warned the mother of the "pitfalls" and the potential dire

consequences of representing herself, including the termination

4 In a report dated March 22, 2019, a clinician (first clinician)
opined that the mother had a factual understanding of the roles
of the attorneys, the judge, and court procedures; the mother
"demonstrated a rational understanding of how a judge considers
evidence and testimony at a hearing to make a determination";
and that while the mother "demonstrated a tangential thought
process . . . her thought content was free of delusion or
paranoid beliefs." The first clinician opined that further
evaluation was required "to clarify the nature of her impaired
thought process." Another clinician opined that hospitalization
was not required.

2
of her parental rights and the adoption of the child; he further

counseled her it would not be in her best interest to waive her

experienced counsel. He also explained her numerous duties with

regard to the trial process, and unsuccessfully tried to talk

her out of self-representation. After two colloquies with the

mother on June 8 and June 9, 2021, the judge determined that she

was competent to waive her right to counsel and that she had

made an informed decision to represent herself. He appointed

the same attorney as standby counsel to assist her.

In his written decision issued on the following day, the

judge made detailed findings of fact and explained his decision.

First, the judge continued to credit the opinion of the first

clinician that the mother was competent to participate in the

proceedings. See Commonwealth v. Scionti, 81 Mass. App. Ct.

266, 273 (2012) (prior mental health evaluations are relevant to

competency determination). Next, based on his numerous

observations of and conversations with the mother, the judge

found that the mother had been "actively engaged in her defense

of this [p]etition," had appeared at all pretrial hearings, and

understood that DCF had removed the child from her custody as a

result of allegations that the child was neglected. As evidence

of the mother's understanding and insight into the trial

process, the judge noted the mother's research into the child's

rights under the Indian Child Welfare Act, and her questioning

3
on how the judge could ignore hearsay he had struck in limine at

the trial (where he would serve as the fact finder). See

Commonwealth v. Corbett, 98 Mass. App. Ct. 34, 38-39 (2020) (in

making competency determination judge may rely on own

observations and direct knowledge of events). Next, the judge

observed that none of the mother's court-appointed attorneys had

suggested that she did not or could not understand the

proceedings, and further that her attorney at the time of trial,

who attended her screening evaluation on June 7, had not

requested the mother be evaluated for competency. 5 See id. at 39

("impressions of counsel" are relevant to judge's competency

determination). The judge found that while the mother was

"overly verbose and often interrupts," there was "no indication

that she [was] unaware of the nature of the proceeding nor its

significance," and that her responses to his questions

demonstrated she understood the issues in the case. See

Scionti, supra (judge is "entitled to place great weight on

[his] own communications with the defendant"). The judge

further explained that earlier in the case, he had successfully

talked the mother out of representing herself, but at the time

of trial, and despite the judge's express request that she

5 On June 9, 2021, in response to a direct question from the
judge, that attorney said that he was not asking for a
competency evaluation of the mother.

4
reconsider her decision, the mother was "adamant" that she

wanted to represent herself. Drawing from the Judicial

Guidelines for Civil Hearings Involving Self-Represented

Litigants (2006), the judge informed the mother of her duties

regarding evidentiary and procedural rules, and the mother

responded that she understood she would be required to follow

the rules, and that termination of parental rights was a serious

matter sometimes referred to as a "civil death penalty" case.

To support his finding that the mother understood the severity

of the matter and was aware of what she was "requesting of the

court," the judge took "particular notice" of the mother's prior

experience in a different care and protection proceeding in

which the mother had prevailed. Based on his subsidiary

findings, the judge ultimately concluded that "the mother has a

rational and factual understanding of the proceeding and its

potential consequences and that she has waived her right to

counsel intelligently, knowingly and voluntarily." 6

6 Trial was rescheduled to begin on June 16, 2021, but the mother
arrived late on that date and again on the following day.
Noting that the mother had not managed to "make it to court" on
the previous day until around 3:45 P.M., the judge drew an
adverse inference against the mother and allowed the trial to
begin on June 17. When the mother arrived during the testimony
of the second witness, the judge conducted a third colloquy with
her, this time under oath. After confirming the mother's
understanding of the magnitude of her undertaking, the nature of
the proceeding, and the potential consequences, the judge
confirmed his earlier findings on her competency to waive
counsel and the validity of her waiver. At that time, the

5
 Following forty-five days of trial, the judge concluded

that the mother was currently unfit and that her unfitness was

"likely to continue into the indefinite future to a near

certitude." He further concluded that termination of the

mother's parental rights and DCF's permanency plan were in the

best interests of the child. Accordingly, he approved DCF's

permanency plan of adoption. This timely appeal from the decree

followed.

Discussion. 1. Waiver of the right to counsel. The

mother's primary argument is that the judge committed structural

error by allowing her to waive her constitutional right to an

attorney. We are not persuaded.

In parental termination proceedings, courts 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). As to a criminal defendant who

seeks to waive counsel, "a 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). See Commonwealth v. L'Abbe, 421 Mass. 262, 268

(1995) (two-part inquiry required). "Because mental illness

mother executed a waiver of the right to counsel, which the
judge certified.

6
itself is not a unitary concept, there is no single mental

competency standard for deciding both (1) whether a defendant

who is represented by counsel can proceed to trial and (2)

whether a defendant who goes to trial must be permitted to

represent himself" (quotation, footnote, and citation omitted). 7

Haltiwanger, supra at 555-556. "[T]he competence that is

required of a defendant seeking to waive his right to counsel is

the competence to waive the right, not the competence to

represent himself" (citation omitted). Id. at 555. To conclude

that a waiver of the right to counsel was "voluntary,

unequivocal, knowing and intelligent" and thus valid, Adoption

of William, 38 Mass. App. Ct. at 663, an appellate court "must

be confident that [the mother] was adequately aware of the

seriousness of the [proceedings], the magnitude of [her]

undertaking, the availability of advisory counsel, and the

7 "[T]here does not seem to be any significant difference between
competency to stand trial and competency to waive counsel."
Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 516 (2011)
(Kantrowitz, J., dissenting). See L'Abbe, 421 Mass. at 268. A
defendant is competent to stand trial unless her "mental
condition is such that . . . [she] lacks the capacity to
understand the nature and object of the proceedings against
. . . [her], to consult with counsel, and to assist in preparing
. . . [her] defense" (citation omitted). Corbett, 98 Mass. App.
Ct. at 35. "[U]ltimately competency is based on the defendant's
functional abilities," Scionti, 81 Mass. App. Ct. at 273, a
standard that requires "sufficient present ability to consult
with [her] lawyer with a reasonable degree of rational
understanding . . . [and] a rational as well as factual
understanding of the proceedings against [her]." Commonwealth
v. Companonio, 445 Mass. 39, 48 (2005).

7
disadvantages of self-representation" (quotation and citation

omitted). Id. at 665. We review a judge's competency

determination for abuse of discretion, Scionti, 81 Mass. App.

Ct. at 273, giving "substantial deference to his findings of

fact because the judge had the opportunity to view the witnesses

in open court and to evaluate the defendant personally."

Commonwealth v. Prater, 420 Mass. 569, 574 (1995). A claim of a

violation of the defendant's right to counsel is reviewed de

novo. See Commonwealth v. Means, 454 Mass. 81, 88 (2009).

Here, we discern no abuse of discretion in the judge's

determination that the mother was competent to waive her right

to counsel. The record establishes that out of concern for the

mother's competency, the judge sent her for a screening

evaluation, and conducted a two-day hearing on the matter. See

Haltiwanger, 99 Mass. App. Ct. at 556. On the second hearing

date, the two clinicians who had evaluated the mother were

present. Before allowing her attorney's motion to withdraw and

the mother's request to represent herself, the judge held two

colloquies with the mother; after the second, the mother waived

her right to counsel. In addition to his oral findings from the

bench, the judge made the written findings required by S.J.C.

Rule 3:10, § 3, as appearing in 475 Mass. 1301 (2016). 8 See

8 The competency hearing was held over the Zoom platform due to
COVID-19 protocols that were then in place. In his written

8
Haltiwanger, supra at 556-557. All of this occurred before the

rescheduled trial date. At their first in-person meeting on

June 17, 2021, eight days after the competency hearing, the

judge conducted a third colloquy under oath, obtained a written

waiver of counsel form from the mother, and certified her waiver

of counsel. See Commonwealth v. Johnson, 80 Mass. App. Ct. 505,

511 (2011) (formal waiver colloquy should be conducted and

written waiver obtained "as soon as the defendant expressed his

desire to represent himself, or shortly thereafter").

The judge cannot be faulted for the mother's failure to

show up on time for trial on June 16 and June 17. In any event,

given the procedural history of the case, any error in the

judge's allowing the trial to proceed in her absence (and

without an executed written waiver in place) does not constitute

structural error requiring reversal. Contrast Johnson, 80 Mass.

App. Ct. at 510-511 (constitutional error occurred where first

informal colloquy between defendant and judge occurred on first

day of trial, formal waiver did not occur until second day of

trial, and defendant had earlier been permitted to represent

himself for eighteen months, including during "critical" stages

of pretrial proceedings).

decision permitting the mother to represent herself and allowing
the attorney's motion to withdraw, the judge stated that the
"[m]other shall execute the [w]aiver of [c]ounsel form."

9
 On appeal, the mother argues that her waiver was not

unequivocal. It is true that the mother initially equivocated

about whether she wanted to represent herself, and although her

attorney represented to the judge that he had filed the motion

to withdraw with her knowledge, when questioned about it by the

judge the mother refused to take a position on the motion. This

led to the judge continuing the competency hearing until the

next day in order to give the mother the opportunity to speak

with her attorney about the motion. The mother also brought up

many irrelevant matters and engaged in some rambling discourse

with the judge. However, when focused by the judge, the mother

confirmed during the second colloquy that she had sufficient

time to speak with her attorney, she wanted to represent herself

as was her right, and she was agreeing to the motion for her

attorney to withdraw and to the standby counsel arrangement. 9 In

short, the evidence amply supported the judge's finding that the

mother understood the nature of the proceedings and had waived

her right to counsel knowingly, intelligently, and voluntarily. 10

9 Her attorney also confirmed that the mother had told him she
wanted to represent herself with his assistance as standby
counsel, and that he was satisfied he had a sufficient
discussion with the mother outlining what would be entailed in
self-representation. The attorney had made similar statements
to the judge at the June 8, 2021, hearing.
10 As further evidence that her waiver was "equivocal," the

mother points to language she added to the waiver form stating
that she was a "woman under duress." The trial judge questioned
the mother about those words, and informed her that if she was

10
 Nor did the judge abuse his discretion in his handling of

the report from the clinician who performed the screening

evaluation. That clinician opined that the mother had some

deficits in understanding the case and that the mother "would

encounter difficulty if she were to represent herself."

However, as the judge noted, the clinician did not opine that

the mother had any major mental illness or impairment and

stopped short of opining that the mother was unable to represent

herself. 11 Nothing in the report compelled the judge to find the

mother incompetent to waive her right to counsel. "While it may

be useful for a judge to hear opinions from medical experts, the

determination [of competency] is ultimately a legal, not a

medical, judgment." Commonwealth v. Carson C., 489 Mass. 54, 58

(2022), quoting Commonwealth v. Jones, 479 Mass. 1, 14 (2018).

2. Adequacy of the judge's findings. The mother argues

that the judge's findings (1) "do not clearly and convincingly

show that [the] mother's mental health issues had any nexus with

her ability to provide minimally adequate care for her [child]";

claiming duress, he would not accept the waiver and would
appoint counsel to represent her as well as a guardian ad litem.
The mother clarified that the duress referred to other matters
including "any contact with the [DCF]"; she stated that she was
"not under duress to waive the counsel," and that no one had
forced her to waive the right.
11 As the mother points out, she told the clinician that she

would prefer to have an attorney. However, when the judge asked
her about this very statement during the June 17 colloquy, she
reversed course.

11
and (2) do not explain how those issues and her behavior

impacted her parenting or posed a future risk of harm to the

child. She also argues that the judge made no findings as to

how her mental health issues resulted in abuse or neglect of the

child. We disagree.

The mother's lack of treatment for mental health issues was

just one of her "grievous shortcomings" upon which the judge

based his finding of unfitness. 12 Other shortcomings included

her "failure to understand the impact of her mental health on

[the child], her lack of stable housing, her lack of action plan

compliance and/or her failure to meaningfully benefit from the

services to which she engaged, her failure to present to visits,

appointments, and trial on time or at all, her continued

instability in terms of her lifestyle and romantic

relationships, and her lack of insight into her shortcomings as

a parent." All of these factors were relevant considerations

and supported the judge's finding of unfitness. See Adoption of

Mary, 414 Mass. 705, 711 (1993). See also Adoption of Greta,

431 Mass. 577, 587-588 (2000) (affirming decree where "it was

clear from the judge's careful and comprehensive findings and

12At trial, the mother denied having any mental health issues at
all. The judge found that the full extent of her issues could
not be determined "due to her refusal to engage in consistent
treatment, complete requested evaluations, and cooperate with
[DCF]."

12
his rationale for the decree that his judgment was not based

simply on . . . [the mother's] psychiatric problems . . . but

rather on a constellation of factors that pointed to termination

as being in the best interests of the child").

As for nexus, the judge did explain the impact of the

mother's mental health issues and behavior on the child. For

example, the judge found that after the mother "made

inappropriate statements about her anxieties and concerns" in

front of the child, the child would "manifest anxiety, mimicking

[the] mother's behavior." 13 Among other findings of negative

impact upon the child caused by the mother's "lack of insight,"

the judge noted that the child displayed symptoms of anxiety

during visits with the mother and "became emotional" following

the mother's inappropriate statement about the foster parent.

As for future risk of harm to the child, the judge found that

the mother's "longstanding history of meeting random men on

dating websites" -- a practice that continued during the

proceedings -- had "expos[ed] [the child] to unsafe

13The judge gave several specific examples of "concerning"
statements and found that the mother did not understand the
impact of her behavior and statements on the child. The judge
further found that the mother endorsed beliefs not based in
reality such as repeatedly stating that the child was
"kidnapped," and that the mother failed to shield the child from
her own anxieties. The judge, consistent with the evidence,
found that the mother's statements provoked anxiety, fear, and
nervousness in the child.

13
individuals." The judge noted that the child had witnessed many

instances of domestic violence and "most concerning," the child

had been hit during one violent episode. The judge explained

how the mother's continued risky behaviors, including her

failure to acknowledge the full extent of domestic violence in

her romantic relationships, placed the child at risk of future

abuse and neglect.

To the extent that the mother points to evidence of her

positive parenting, the judge was not required to credit it or

to give it any special weight. See Care & Protection of

Jamison, 467 Mass. 269, 280 (2014) (appellate courts give

substantial deference to trial judge's findings based on witness

credibility and weight of evidence).

The judge explained how the mother's actions and behavior

demonstrated that she could not "be an adequate, consistent

caregiver for [the child]." 14 The judge concluded, based on the

14As examples, the judge noted the mother's failure to meet with
DCF consistently to discuss her action plan tasks as well as the
mother's failure to arrive on time or to attend her visits
consistently, which the judge found "considerably impact[ed] the
amount of time she was able to spend with [the child]." The
judge found that the mother's "lackadaisical attitude" in this
regard "adversely impacted" the child. The judge further found
that this behavior as well as her behavior in court demonstrated
her inability to be a "stable, consistent caregiver" for the
child. The judge found that the mother was unable to adhere to
a consistent routine; when asked what her plan was for providing
the child with structure and routine, the mother did not
acknowledge the importance of routine.

14
mother's belief that she had no parental deficiencies, "it is

unlikely that her parenting, mental health or personal issues

will be addressed in the near future. Due to these

shortcomings, [the child] would be endangered if this court were

to place [the child] in [m]other's custody."

Conclusion. For the reasons discussed above, we conclude,

first, that the trial judge did not err by allowing the mother

to waive her constitutional right to an attorney, and second,

the judge did not err in finding the mother unfit or abuse his

discretion in terminating the mother's parental rights.

Decree affirmed.

By the Court (Sacks, Grant &
Smyth, JJ. 15),

Clerk

Entered: August 23, 2023.

15 The panelists are listed in order of seniority.

15