Opinion
14-P-553
12-12-2014
ADOPTION OF IGOR.1
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial on the merits, a judge of the Juvenile Court entered a decree dispensing with the mother's consent to the adoption of her son. The mother appeals, asserting first that the trial judge abused his discretion and violated her due process rights when he granted only a one-day continuance and second, that the trial judge abused his discretion when he denied her motions for increased visitation. For the reasons set forth below, we affirm the decree and an order denying a motion for new trial.
B ackground. The following background is drawn from the Juvenile Court judge's findings supplemented by undisputed facts in the record, unless otherwise noted.
The mother does not contest any of the judge's explicit factual findings.
Trial commenced on October 15, 2012, at which time the mother was represented by counsel, Attorney Adams. At the beginning of the second day of trial, Attorney Adams filed a motion to withdraw at the mother's instruction and the mother requested to proceed pro se. The trial judge allowed the motion after a colloquy with the mother. The judge granted a continuance until the next morning so the mother could prepare to represent herself. The mother did not appear the next morning and was not present for the remainder of the trial, at the conclusion of which her parental rights were terminated. The mother now contends that the judge abused his discretion and violated her due process rights by not allowing a longer continuance to allow her to prepare for trial.
The mother acknowledges that she knowingly waived her right to counsel. Our review of the record also leads to that conclusion.
Discussion. "Whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and his decision will be upheld absent an abuse of that discretion." Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002). Adoption & Visitation of a Minor, 14 Mass. App. Ct. 992, 993 (1982). "The court has 'broad discretionary power . . . over requests for last-minute shifts in representation which threaten to delay a proceeding.'" Commonwealth v. Johnson, 424 Mass. 338, 341 (1997), quoting from Commonwealth v. Jackson, 376 Mass. 790, 796 (1978). A judge's exercise of his discretion must be consistent with due process and therefore "cannot substantially impair[] [the mother's] ability to prepare and present a full and fair defense." Commonwealth v. Miles, 420 Mass. 67, 85 (1995). This is a fact-specific inquiry. See Commonwealth v. Cruz, 456 Mass. 741, 747 (2010).
The mother's main argument is that she did not have access to her case file and therefore could not prepare in the allotted time. On this record the argument fails: Specifically, at a pretrial hearing, the mother was told how to obtain her own copy of her file but made no effort to do so. The mother had participated in preparing her defense with Attorney Adams before moving to proceed pro se. The record also states explicitly that the mother was present in court at the time the trial date was set, more than three months before trial began.
The mother further asserts on appeal that she did not have enough time to review the records or the transcript from the previous trial. However, by her own admission, the mother was present at a previous trial terminating her rights to another child. Finally, we note the judge advised the mother that she would not receive any preferential treatment if she chose to proceed pro se. Given the mother's involvement with both this trial and the previous one, we discern no error in the length of the continuance provided the mother.
The judge admitted the findings as well as some documentary evidence from the previous trial.
The mother was not faced with the "Hobson's choice of being forced to proceed with an unprepared lawyer or representing oneself pro se." Commonwealth v. Johnson, supra at 341. The record indicates that Attorney Adams was both prepared and effective, as the judge informed the mother before she waived her right to counsel and elected to proceed pro se.
The mother also contends that by refusing a longer continuance, the judge denied her due process right to effective assistance of counsel and to be heard at a meaningful time and in a meaningful manner. We do not agree. For the same reasons discussed supra, the contention that the mother did not have access to the records in this case and therefore could not prepare to proceed pro se is without merit. She was advised by the trial judge of the administrative procedures available to her to receive a copy of the records. She did not avail herself of that procedure. She cannot now claim that she required more time to review the records when they were available to her throughout the pendency of this case. Further, as stated, she was present at the previous trial and had past experience with the process of the termination of parental rights.
As the mother agreed to proceed pro se, her argument that she was denied counsel in violation of her right to due process is devoid of sense and her cited legal authority for the contention is inapposite; this assertion does not rise to the level of appellate argument. See Mass.R.A.P. 16 (a)(4), as amended, 367 Mass. 921 (1975); G.E.B. v. S.R.W., 422 Mass. 158, 170 n.11 (1996). See also note 3, supra.
Motions for increased visitation. The mother also appeals from the denial of two pretrial motions for increased visitation with the child. The record does not indicate that the mother ever filed an interlocutory appeal of these orders denying increased visitation. The appeal is moot. Adoption of Helen, 429 Mass. 856, 862-864 (1999). The trial judge issued an order terminating the mother's parental rights and denied the mother's request for posttermination visitation after making detailed findings of fact as to the best interests of the child. The matter of pretermination visitation is manifestly no longer relevant after the termination of parental rights.
Even if the appeal were properly before us, the record, supporting as it does the detailed findings of fact made by the trial judge, indicate that it was not an abuse of discretion to deny increased visitation.
Decree affirmed.
Order denying motion for new trial affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: December 12, 2014.