In re Valentina
| Citation | 143 N.E.3d 458,97 Mass.App.Ct. 130 |
| Decision Date | 06 March 2020 |
| Docket Number | No. 19-P-885,19-P-885 |
| Court | Appeals Court of Massachusetts |
| Parties | ADOPTION OF VALENTINA. |
Margaret M. Geary, Leominster, for the mother.
Yvette L. Kruger, Dover, for the child.
Julie L. Datres, Assistant Attorney General, for Department of Children and Families.
Present: Desmond, Sacks, & Ditkoff, JJ.
The mother appeals from a decree issued by a Juvenile Court judge terminating her parental rights to her daughter and placing the child into the care of the Department of Children and Families (department) pursuant to G. L. c. 119, § 26.2 We consider the options available to a judge when a parent provides no instructions to her appointed attorney concerning the proceedings. We conclude that a judge has the discretion to strike the attorney's appearance, but may instead have the attorney participate in the trial as an officer of the court. In such a circumstance, the attorney generally will be unable to advocate for a particular outcome, and the attorney's consequent limited activity is not a constructive denial of counsel. Further concluding that the mother was not prejudiced by the judge's citations to two exhibits introduced after the termination trial, we affirm the decree.
1. Background. a. The child. The child was born in 2007. For the first five years of her life, she was exposed to violence and inconsistent care while in the mother's custody. In November 2012, a report pursuant to G. L. c. 119, § 51A (51A report), was filed and supported based on the mother's neglect of the child. Specifically, the child was not reaching developmental benchmarks or receiving routine medical care. The child disclosed that her mother "beat her" on the legs with a belt and that she felt unsafe.
The maternal grandmother assumed custody of the child in 2013 pursuant to a "Care Giver Affidavit" signed by the mother. From 2013 through 2015, the child nonetheless lived with the mother for brief periods of time in shelters and in the homes of the mother's friends.3 While the child was living with the maternal grandmother, three 51A reports were filed based on the child's disclosure that she was sexually assaulted by a resident of the grandmother's housing complex.
On October 29, 2015, the department petitioned for and received emergency custody of the child. Since then, the child "has lived in the care of at least four foster parents and six trauma specific hospitals and group homes."
On December 9, 2015, the department placed the child with a maternal aunt. There the child suffered from a psychiatric episode when the aunt intentionally withheld medication. The department then placed the child with a paternal aunt. In early January 2016, the child reported suffering from another sexual assault. The judge found that the child is a trauma-reactive child, and that the mother has been unable to address this issue and indeed has contributed to it. The child has significant psychological, behavioral, emotional, and educational needs. She has a well-documented mental health history that includes several mental health hospitalizations and a diagnosis of posttraumatic stress disorder
and adjustment disorder with mixed disturbances of emotions and conduct.
The department designed a service plan for the mother to address the steps needed for reunification. The mother was required to engage in mental health treatment, counselling, substance abuse evaluations, domestic violence evaluations, and parenting classes. Additionally, the mother's service plan required that she follow department protocol for her scheduled visits with the child, meet with the department monthly, and sign release forms. As of October 2016, the mother "was not in compliance with nor making any progress on her service plan tasks."
In August 2016, the child's permanency plan changed from reunification to adoption. At the time of the trial, the mother had failed to complete any service plan task. The mother has a lengthy criminal record and had several open cases at the time of trial. The mother provided no evidence of stable housing or employment, and there was no evidence that the mother's parenting skills had improved.
The mother's attendance at visits was inconsistent. When the mother did visit, she berated the child, threatened department staff, and brought unapproved visitors. The mother's telephone conversations with the child were suspended in March 2016 because of the mother's inconsistency and the negative impact they had on the child. The mother's visits were suspended in December 2016 for the same reasons. The mother's unfulfilled promises to visit the child caused an increase in tantrums and defiant behavior and poor peer interactions. The child prevented herself from using the bathroom to get the mother's attention. In January 2017, the child had a sigmoidoscopy
because of her constipation issues.
b. Procedural history. Leading up to the trial, the mother's participation in court proceedings was inconsistent. Some of this may have been because of her unresolved criminal cases; she was taken into custody to answer multiple warrants at her last appearance in Juvenile Court on April 24, 2017.
Over the course of twenty months, five different attorneys were appointed to represent the mother. The mother's first attorney was appointed on October 30, 2015. The mother asked the first attorney to withdraw on October 24, 2016, based on the breakdown of the relationship. The mother attended the October 24, 2016, hearing in which the judge allowed the motion to withdraw after determining that it would not delay a trial date. The department announced the changed goal to adoption, and the mother was appointed a second attorney. After a brief recess, the second attorney stated that the mother "is not completely against the idea of a guardianship or adoption, though would prefer her mother be considered rather than the sister."
The second attorney withdrew on December 1, 2016, because the mother expressed a desire for the judge to appoint different counsel. The third attorney was appointed that same day, and the third attorney withdrew on May 31, 2017, because of a complete breakdown in communication and the mother's lack of confidence in the attorney's advice. The judge appointed a fourth attorney that same day, and the fourth attorney withdrew on July 20, 2017. The judge immediately appointed the fifth attorney to represent the mother that same day.
The mother had the ability to contact the fifth attorney, but provided the attorney with no instructions about how to proceed. When the trial date was set, the fifth attorney stated she would send the mother a registered letter with the date. In response, the mother informed the fifth attorney that she had hired another attorney and instructed the fifth attorney to withdraw. The fifth attorney filed a motion to withdraw.
On the day of trial, May 16, 2018, the mother did not appear, and there was no sign of any retained counsel. The fifth attorney brought her previously-filed motion to withdraw to the attention of the judge and explained, The trial judge denied the motion to withdraw.
During the trial, the fifth attorney objected several times on grounds of hearsay and relevance but did not introduce evidence, present any witnesses, or cross-examine the witnesses. At the time for closing argument, the fifth attorney stated,
2. Constructive denial of counsel. The mother argues that she was constructively denied the assistance of counsel. We disagree. Essentially, the mother asserts that, where an attorney who has received no instructions is denied leave to withdraw, that attorney must presume the parent opposes termination, and must advocate for that position or automatically be found ineffective. As we explain, such a presumption is not generally sound.
a. Motion to withdraw. "Parents have a fundamental liberty interest in maintaining custody of their children, which is protected by the Fourteenth Amendment to the United States Constitution." Adoption of Rory, 80 Mass. App. Ct. 454, 457-458, 954 N.E.2d 22 (2011), quoting Care & Protection of Erin, 443 Mass. 567, 570, 823 N.E.2d 356 (2005). To that end, "[a]n indigent parent in a G. L. c. 210, § 3, proceeding has a constitutional right to counsel." Adoption of Raissa, 93 Mass. App. Ct. 447, 451-452, 105 N.E.3d 1218 (2018), quoting Adoption of William, 38 Mass. App. Ct. 661, 663, 651 N.E.2d 849 (1995). "That right, however, is not absolute." Adoption of Olivia, 53 Mass. App. Ct. 670, 674, 761 N.E.2d 536 (2002). "[R]ecognition of important parental rights does not change the ‘crucial fact’ that the focus of proceedings that terminate or curtail parental rights should be the best interest of the child." Adoption of Raissa, supra at 454, 105 N.E.3d 1218, quoting Adoption of Olivia, supra at 677, 761 N.E.2d 536.
The mother was not constructively denied counsel. She had been appointed five attorneys, and each of them moved to withdraw. See Commonwealth v. Means, 454 Mass. 81, 93 n.19, 907 N.E.2d 646 (2009) (). The judge did not abuse her discretion in denying the fifth attorney's motion to withdraw, when it was the day of trial, and the motion was based only on the apparently inaccurate premise that the mother had hired private counsel. See Adoption of Raissa, 93 Mass. App. Ct. at 454, 105 N.E.3d 1218 (...
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