ADOPTION OF VELMA (And a Companion Case).

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

23-P-182

ADOPTION OF VELMA (and a companion case). 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2019, the Department of Children and Families

(department) filed two separate care and protection actions in

the Juvenile Court regarding the children, Velma and Cynthia. 2

The judge denied the father's motions to bifurcate the two

cases, and, after a trial, the judge issued decrees terminating

the mother's rights to both children and the father's rights to

his child, Cynthia. We affirm.

Discussion. 1. Mother's appeal. The mother argues that

the decrees terminating her rights to Velma and Cynthia must be

vacated because the judge violated her right to counsel in three

ways: first, in failing to hold a hearing on the mother's

1 Adoption of Cynthia. The children's names are pseudonyms.
2 The first action, involving the mother, Velma, and Velma's
father was filed in February 2019. Velma's father died during
the pendency of that litigation. A second action, involving the
mother, Cynthia, and Cynthia's father was initiated in September
2019. The two cases were tried together. The mother and
Cynthia's father, whom we refer to here as "the father," are the
appellants here.
counsel's motion to withdraw from representation before trial;

second, in improperly concluding that the mother made a valid

waiver of her right to counsel at trial; and third, by failing

to reconsider the validity of the mother's waiver of counsel

when, on the fourth day of the trial, standby counsel raised a

concern about the mother's mental health. We address each of

these arguments in turn.

a. Failure to hold hearing on the mother's motion to

appoint new counsel. Several weeks before trial, the mother's

counsel moved to withdraw. As grounds for the motion, counsel

indicated that the mother had discharged her; she also

represented that "the attorney client relationship has broken

down." We reject the mother's assertion that the trial judge

violated her right to counsel by refusing to schedule a hearing

on this motion. For one thing, the judge did not refuse to

schedule a hearing. 3 Rather, she denied the motion to withdraw

"in part, administratively," but provided that the motion "may

be renewed on the day of trial, as the court is unable to

schedule a hearing prior to that date." As ordered by the

judge, the mother filed a written plan with the court indicating

that the mother would represent herself at trial with standby

counsel. The mother's attorney did not renew her motion to

3 We note that the trial was held at a time when the Juvenile
Court was conducting hearings and trials virtually.

2
withdraw on the first day of trial, nor did she otherwise

indicate that the mother wanted to hire new counsel.

Recognizing that the mother agreed to proceed with standby

counsel "[w]ithout another option," we assume for the sake of

argument that counsel's motion to withdraw implied an

accompanying request by the mother for appointment of new

counsel. However, even if mother had requested new counsel, we

conclude that by failing to raise an objection to the judge's

"administrative" action in the trial court, the mother's

argument that she was improperly denied a hearing on the motion

was waived. 4 See Care and Protection of Zeb, 489 Mass. 783, 787

(2022) (objection not raised at trial deemed waived).

b. Validity of the mother's waiver of counsel. Next, we

turn to the mother's challenge to the validity of her waiver of

counsel on the first day of trial. "[W]e look to the criminal

law to determine the validity of a purported waiver of counsel

in a proceeding which operates to terminate parental rights."

Adoption of William, 38 Mass. App. Ct. 661, 663 (1995). Before

accepting the mother's waiver of counsel, the judge was

4 If the judge had denied the mother's request for a hearing
outright, our analysis might have been different. However,
given the judge's written acknowledgment of the mother's request
for a hearing and her contemplation of a hearing on the first
day of trial, we discern no error where the mother did not take
any further action related to a hearing on the motion to
withdraw.

3
obligated to "determine both that the waiver [was] knowing and

voluntary and that the [mother] [was] competent to make it." 5

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, 268-269 (1995) (two-part

inquiry required). To prevail on her challenge to the validity

of her waiver of counsel, the mother must prove the invalidity

of that waiver by a preponderance of the evidence. See Adoption

of William, supra at 664. "The validity of [the] waiver depends

on the particular facts and circumstances of each case."

Adoption of Olivia, 53 Mass. App. Ct. 670, 676 (2002), quoting

Adoption of William, supra. In conducting our review, we accord

"substantial deference" to the judge's findings of fact on the

question of waiver, but our review of the judge's application of

the law to her factual findings is de novo. See Commonwealth v.

Means, 454 Mass. 81, 88 (2009).

First, we consider whether mother's waiver of counsel was

made knowingly and intelligently. We review the judge's

findings for clear error. See Custody of Eleanor, 414 Mass.

795, 802 (1993). "The focus of our review is the [mother]'s

subjective understanding of [her] decision and its

5 This obligation is distinct from the judge's duty to ensure
that the defendant is competent to stand trial. See
Commonwealth v. Haltiwanger, 99 Mass. App. Ct. 543, 555-556
(2021).

4
consequences"; waiver "may properly be based on the background,

experience, and conduct of the [mother] and the circumstances of

the case" (citation omitted). Commonwealth v. Pamplona, 58

Mass. App. Ct. 239, 241 (2003). Here, we are satisfied that the

mother demonstrated the requisite "subjective understanding of

[her] decision and its consequences," and we are "confident that

[she] 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.'" Adoption of William, 38 Mass. App. Ct. at

665, quoting Commonwealth v. Jackson, 376 Mass. 790, 795 (1978).

In reaching this conclusion, we consider the evidence in the

record showing that the mother had been actively involved in the

care and protection actions concerning Velma and Cynthia

throughout the litigation and the indications that she

understood that her parental rights were at stake in the trial.

Standby counsel was not only available to the mother, but was,

in fact, appointed to her. The judge also conducted a colloquy

with the mother in which she cautioned her about the challenges

inherent in self-representation. In this colloquy, the judge

advised the mother that if she represented herself at trial, she

would be held to the same standards applicable to a member of

the bar, and explicitly warned her that "[she] could be at a

5
disadvantage in representing [he]rself." 6 See Pamplona, supra at

241-242 (where "judge advised the defendant that difficulties

can attend self-representation and that knowledge of the law and

the rules of evidence would be helpful," colloquy held

"truncated . . . [but] adequate"). We discern no error in the

judge's finding that the mother's waiver was knowing and

voluntary.

Second, we consider the mother's competence to waive

counsel. Our review here is for an abuse of discretion. See

Commonwealth v. Scionti, 81 Mass. App. Ct. 266, 273 (2012).

Although we consider the question a close one, we give

"substantial deference to a trial judge's determination that

[the mother] is competent 'because the judge had the opportunity

to view the witnesses in open court and to evaluate the [mother]

personally.'" Id., quoting Commonwealth v. Prater, 420 Mass.

569, 574 (1995). See Commonwealth v. Russin, 420 Mass. 309, 317

(1995) ("[I]n reviewing the judge's determination of competency,

we must give weight to the judge's opportunity to observe the

6 We acknowledge that this is not a case in which the mother
demanded that she be permitted to represent herself; her
statement that she was waiving counsel "without another option"
suggests that doing so was not her preference. Even reading
this statement as some evidence that the mother's waiver was
equivocal, however, considering the circumstances of the
mother's waiver as a whole, we do not consider that statement
adequate to establish the invalidity of the waiver by a
preponderance of the evidence. See Adoption of William, 38
Mass. App. Ct. at 664.

6
defendant's demeanor during the trial and the plea hearing").

Doing so, we conclude that the mother has failed to show that

she was not competent to waive her right to counsel.

We begin by noting that although the judge appears to have

been assigned to the case shortly before the trial, the docket

reflects that she had at least one opportunity to interact with

the mother in the court room before the trial began. See

Scionti, 81 Mass. App. Ct. at 273 (judge "entitled to place

great weight on her own communications with the [mother]").

Additionally, as we have discussed, the judge conducted a

colloquy with the mother before accepting her waiver of counsel,

ultimately, if inferentially, finding the mother to be

competent. 7 Although in light of the concerns raised by the

mother's standby counsel about the mother's mental health, and

with the benefit of hindsight, the colloquy might have included

a more probing inquiry into the mother's mental health status at

the time of the waiver, see Means, 454 Mass. at 96 ("The scope

of the inquiry into a mentally ill defendant's competence to

waive counsel and self-represent are determined by the

7 We infer this finding from (1) the judge's acceptance of the
mother's waiver of counsel and (2) her contemporaneous rejection
of a suggestion by father's counsel that the mother lacked
competence to stand trial. When father's counsel suggested that
the mother suffered from "a [mental] health issue that will
affect her ability to represent herself," the judge responded,
"[o]nce or if those issues are presented," she would reconsider
the question of the mother's competency (emphasis added).

7
circumstances at hand"), we are satisfied that it provided

sufficient evidence of the mother's competency to make a valid

waiver of counsel. Cf. Haltiwanger, 99 Mass. App. Ct. at 555-

556 (where defendant's presentation led to judge's development

of "bona fide doubt" as to his competence, judge obligated to

inquire further).

Although, as the mother points out in her brief, her trial

testimony indicated that she had, in fact, suffered from mental

health challenges and had undergone related voluntary and

involuntary mental health treatment, held unusual spiritual

beliefs, and believed that she had paranormal powers, the judge

who heard the testimony in its entirety explicitly found "that

there was absolutely nothing in mother's presentation that leads

this Court to believe she is unable to represent herself or [is]

otherwise incompetent." Granting the judge's findings the

deference to which they are entitled, see Scionti, 81 Mass. App.

Ct. at 273, we cannot say that the judge abused her discretion

in concluding that the mother was competent to waive counsel.

Reviewing the propriety of the waiver de novo, we conclude that

the mother has failed to demonstrate the invalidity of her

waiver of counsel at trial. 8 See Adoption of William, 38 Mass.

App. Ct. at 664.

8 We are not persuaded by the mother's contention that the
judge's decision was based on her finding that the mother had

8
c. Denial of request for Haltiwanger evaluation. For

similar reasons, we are not persuaded that the judge abused her

discretion on the last day of trial when she declined to order a

competency evaluation for the mother in response to standby

counsel's filing of a motion under Haltiwanger, 99 Mass. App.

Ct. at 556-557. In Haltiwanger, we ruled that "where the judge

has a bona fide doubt about the defendant's competence [to waive

counsel]," the judge is obligated to conduct a separate inquiry

into the question, on the record and accompanied by written

findings. Id. at 556-557. Notably, however, in that case, it

was apparent from the record that the judge did have the

requisite doubt about the defendant's competence. See id. at

559 (noting judge "sua sponte raised a concern about the

defendant's competency"). Here, by contrast, the opposite is

true. After presiding over four days of trial, including the

mother's extensive testimony about, among other things, her

made "an implied waiver by conduct" of her right to counsel
based on her apparent difficulty in working with the attorneys
appointed to her during this litigation. See Adoption of
Raissa, 93 Mass. App. Ct. 447, 452 (2018) (describing
requirements for parent's "waiver by conduct" of right to
counsel). That concern appears to be rooted in the judge's
references to the "constitutional crisis" created by the very
real shortage of attorneys available for appointment to
qualified families involved in care and protection litigation.
We recognize the accuracy of the judge's characterization of the
problem as a "crisis," and offer no solutions to it here, but we
urge judges to avoid any suggestion that the attorney shortage
provides a proper basis on which to deny an otherwise eligible
parent appointed counsel in a care and protection action.

9
belief systems and history of mental health treatment, the judge

explicitly stated that she had no concerns about the mother's

competency. We discern no abuse of discretion or other error in

the judge's failure to conduct further inquiry into the matter

under Haltiwanger.

2. Father's appeal. On appeal, the father contends that

the judge erred in finding him unfit, prejudiced him by

improperly allowing the department to enter evidence about

crimes for which the father was acquitted, and abused her

discretion in failing to bifurcate his trial from that of the

mother.

a. Sufficiency of the evidence of unfitness. Before

terminating a parent's rights to a child, a judge must find by

clear and convincing evidence that the parent is unfit. See

Adoption of Jacob, 99 Mass. App. Ct. 258, 262 (2021).

"'[P]arental unfitness' means 'grievous shortcomings or

handicaps' that put the child's welfare 'much at hazard.'" Id.,

quoting Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997).

In making this determination, "the judge 'may consider past

conduct to predict future ability and performance.'" Adoption

of Jacob, supra, quoting Adoption of Katharine, supra at 32–33.

Here, the judge's findings span more than forty-five pages,

and include detail that reflects the judge's careful

consideration of all the evidence presented at trial. The judge

10
conducted an even-handed assessment of the evidence, noting, for

example, that the father completed some of the tasks included in

his action plans, participated in visits with his child and was

"engaged" in those visits, and had made progress in addressing

some of his mental health and substance abuse concerns. She

made other findings, however, that reflected poorly on the

father's parenting ability. As examples, the judge found that

the father refused to engage in certain services included on his

department action plan and failed to benefit from some of the

services in which he did engage (notably, those related to

addressing domestic violence). See Adoption of Rhona, 63 Mass.

App. Ct. 117, 126 (2005) (evidence of parents' failure to

maintain service plans and refusal to participate in counseling

programs relevant to fitness determination). She took into

account that the father's repeated incarcerations presented

obstacles to his ability to be present for his child, see

Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001), and found that

the father was unable to prioritize the child's welfare over his

own relationship with the mother. The judge's greatest concern,

however, appears to have been the long and apparently

intractable history of domestic violence between the mother and

the father, a pattern she determined was almost certain to

continue, given the mother's and father's insistence on

coparenting Cynthia. See Adoption of Xarissa, 99 Mass. App. Ct.

11
610, 618-619 (2021) (parent's history of domestic violence,

including in relationship in which parent intended to stay,

predictive of parent's indefinite unfitness).

While no single factor is determinative of parental

unfitness, see Care & Protection of Yetta, 84 Mass. App. Ct.

691, 695 (2014), it is well settled "that exposure to domestic

violence works a 'distinctly grievous kind of harm' on

children," Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017),

quoting Custody of Vaughn, 422 Mass. 590, 595 (1996), "and

instances of such familial violence are compelling evidence for

a finding of parental unfitness." See id. at 595-596. The

judge's findings, which the father does not challenge as

erroneous, amply support her conclusion that despite his

"capacity to love and nurture" his child, the father was unfit

to parent her. 9 Where the judge also determined that termination

of the father's parental rights was in the best interests of the

child, Cynthia, the judge did not abuse her discretion in

terminating those rights. See Adoption of Mary, 414 Mass. 705,

710 (1993).

b. Evidentiary challenge. In 2017, the father was accused

of sexually assaulting a child when the child was thirteen years

old. The father was acquitted of the criminal charges brought

9 The judge likewise found that the mother had the capacity to
love and nurture both Velma and Cynthia.

12
against him in connection with that accusation, and at the

subsequent trial of these matters testified that the alleged

abuse never happened. At trial, and over the father's

objections, the judge allowed the department to introduce

several exhibits related to or which referenced the sexual abuse

allegations. On appeal, the father argues that the admission of

exhibits 24 (G. L. c. 119, § 51A report), 26 (family action

plan), 28 (affidavit of department social worker), 29 (court

investigator's report), 68 (police reports concerning sexual

abuse allegations against father), and 69 (police reports

concerning domestic violence between mother and father) amounted

to prejudicial error. 10 We do not agree.

There was no error in the judge's admission of the 51A

report (exhibit 24), see G. L. c. 119, § 51A, for the purpose of

"setting the stage." See Adoption of Querida, 94 Mass. App. Ct.

771, 778 (2019). The family action plan (exhibit 26),

department social worker's affidavit (exhibit 28), and court

investigator's report (exhibit 29) were likewise admissible 11;

10 Understanding that the father objected at trial to the
admission of "all evidence of, and reference to" the sexual
assault and abuse allegations, we confine our analysis to the
arguments made in the father's brief. See Mass. R. A. P. 16 (a)
(9) (A), as appearing in 481 Mass. 1628 (2019).
11 Where the court investigator was appointed on the day that the

care and protection case involving the mother and Velma was
filed, we understand the report to have been ordered pursuant to
G. L. c. 119, § 24.

13
the father does not contend that he lacked the requisite ability

to cross-examine the sources of the information incorporated in

these documents. See Adoption of Luc, 484 Mass. 139, 150-151,

152-154 (2020), and cases cited; Mass. G. Evid. § 1115(b)(2)(B)

(2023). Where the judge explicitly stated that she would not

take the police reports introduced as exhibits 68 and 69 "for

[the] truth of any statements other than firsthand observations

by police officers," the admission of those exhibits was also

proper. 12 See Mass. G. Evid. § 1115(b)(5). We decline the

father's invitation to apply the holding of Commonwealth v.

Dorazio, 472 Mass. 535, 543-548 (2015), to the facts of this

case, absent any binding precedent requiring us to do so.

More to the point, even if the challenged evidence was not

properly before the judge, that information was only cumulative

of evidence admitted at the request of the father himself in the

form of a "psychosexual risk assessment" conducted by an expert

witness called by the father to testify at trial. Where the

evidence to which the father objects was cumulative of other,

properly admitted evidence, the father has failed to show that

he was prejudiced. 13 See Adoption of Luc, 484 Mass. at 148.

12 Given our conclusion, we need not reach the question whether
the police reports, exhibits 68 and 69, were properly admitted
under the business records exception to the hearsay rule. See
Mass. G. Evid. § 803(6) (2023).
13 We find no support in the record for the father's claim that

the judge relied on second-level hearsay to assess the

14
c. Father's motions to bifurcate. The father filed two

unsuccessful motions to bifurcate his trial from that of the

mother. See Mass. R. Civ. P. 42 (b), as amended, 423 Mass. 1402

(1996). Reviewing the judge's rulings on the motions for an

abuse of discretion, we discern none. See Dobos v. Driscoll,

404 Mass. 634, 644-645 (1989).

The father's first motion, filed prior to trial, was

premised on (1) his view that his "interests [we]re not aligned"

with those of the mother, and (2) that based on "the

unavailability of services and programs during the . . . COVID-

19 pandemic," he needed additional time to complete his action

plan tasks and to have meaningful parenting time with his child.

Although it is true that the consolidated trials included some

evidence that bore only on the mother's case, the judge's

findings are clear that one of the central considerations in her

determination of the parents' unfitness was their unwillingness

to extricate themselves from their violent relationship and

their plans to coparent the children. Additionally, the judge

found that the father failed to engage in most of the services

offered to him and that despite his positive parenting when at

liberty, he made himself unavailable to parent the child by his

repeated incarcerations. The judge's denial of the father's

credibility of his denial at trial of having perpetrated the
sexual assaults of which he had been acquitted.

15
first motion to bifurcate the trial was not the result of "'a

clear error of judgment in weighing' the factors relevant to the

decision . . . such that the decision [fell] outside the range

of reasonable alternatives." L.L. v. Commonwealth, 470 Mass.

169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co.,

512 F.3d 9, 15 (1st Cir. 2008).

We reach the same conclusion as to the father's second

motion to bifurcate, filed after the judge accepted the mother's

waiver of trial counsel. The father's argument that his case

"[was] materially prejudiced by Mother's apparent mental illness

and its effect on her ability to represent herself pro se" was

not supported by any showing of prejudice to the father. To the

extent that the father was arguing that the mother lacked the

ability to make a valid waiver of her right to counsel, the

father lacked standing to do so.

Conclusion. The decrees terminating the mother's parental

rights to Velma and terminating each parent's rights to Cynthia

are affirmed.

So ordered.

By the Court (Blake,
Massing & Hand, JJ. 14),

Clerk
Entered: November 15, 2023.

14 The panelists are listed in order of seniority.

16