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