Adoption of Zandra.

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.

12