In re Adoption Raissa

• Decision Date: 22 June 2018
• Docket Number: No. 16–P–1747,16–P–1747
• Citation: 105 N.E.3d 1218,93 Mass.App.Ct. 447
• Parties: ADOPTION OF RAISSA.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 447

105 N.E.3d 1218

ADOPTION OF RAISSA.¹

No. 16–P–1747

Appeals Court of Massachusetts, Suffolk..

Argued September 19, 2017.

Decided June 22, 2018.

Cara M. Cheyette, for the mother.

Brian R. Pariser, for Department of Children and Families.

Andrea Peraner–Sweet (Kate C. Billman–Golemme, also present), Boston, for the father.

Rizwanul Huda, Jamaica Plain, for the child.

Present: Vuono, Blake, & Singh, JJ.

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 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 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 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 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.

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 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, 651 N.E.2d 849 (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, 389 N.E.2d 68 (1979), courts have looked to the criminal law in deciding issues of individual rights in care and protection cases, including the right to 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, 651 N.E.2d 849, or, as here, through conduct. See Commonwealth v. Means, 454 Mass. 81, 89–92, 907 N.E.2d 646 (2009). See also Commonwealth v. Babb, 416 Mass. 732, 735, 625 N.E.2d 544 (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, 54 N.E.3d 458 (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, 907 N.E.2d 646. 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, 907 N.E.2d 646.

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...