Opinion
22-P-19
10-06-2022
CARE AND PROTECTION OF HADASSAH (and three companion cases[1]).
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial in the Juvenile Court, a judge determined that the mother was unfit to parent the four children involved in this case. Having done so, he granted permanent custody of the two oldest children, Hadassah and John, to the Department of Children and Families (department), and terminated the mother's parental rights to her then-three year old twins, Kevin and Lori, freeing them for adoption by their foster parents. On appeal, the mother argues that we should vacate that judgment and the decrees because the judge (1) erred in concluding that through her conduct, the mother waived her right to appointed counsel, (2) was biased against her and deprived her of a fair trial, and (3) drew improper inferences from her refusal to testify at trial. After careful review of the record, including the transcript of twenty hearing and trial days, we are not persuaded. Accordingly, we affirm.
The children's fathers are not parties to this appeal.
In doing so, we note that Hadassah turned eighteen during the pendency of this appeal and is no longer subject to the judgment at issue here.
Background.
We summarize the relevant procedural history and the facts of the case as the judge found them, reserving certain facts for later discussion.
In February 2019, the department filed a nonemergency care and protection petition as to the children. The mother was appointed counsel (first attorney) at that time. The judge ordered all four children brought to court. On March 7, 2019, John, Kevin, and Lori appeared, but Hadassah did not. On March 11, 2019, at a temporary custody hearing, the first attorney moved to withdraw on the grounds that the mother had discharged her that morning. The mother told the judge that she wished to represent herself; despite the judge's explanation of the challenges of doing so, and his urging her to continue representation by counsel, the mother refused. The judge allowed, in part, the first attorney's motion to withdraw, amending her appointment to provide that she was to serve as standby counsel. After an evidentiary hearing, the judge ordered the mother to provide information about Hadassah, including her address and contact telephone number, by March 14, 2019. The mother failed to do so and, although the judge found that she had the ability to comply with his order, she did not do so until March 25, when she appeared in court, late, with Hadassah.
The department's claims about the older children, Hadassah and John, focused on their failure to attend school. The younger children, Kevin and Lori, were reportedly suffering from a nutritional deficiency.
In the interim, the judge had held two hearings, one on March 18 and another on March 21. The mother consistently refused to comply with the judge's order, arguing that it was unenforceable for reasons including the use of a courtesy title in the printed version of her name. At the second of these hearings, the judge found the mother in contempt of his March 14, 2019 order for failing to produce Hadassah in the face of his finding that the mother had the ability to do so. The judge considered, but did not impose, sanctions for this contempt.
The mother neither appeared nor produced Hadassah in court for resumption of the temporary custody hearing on March 27, 2019. As a result, the judge concluded that the mother had waived her right to a temporary custody hearing as to John, Kevin, and Lori; he again ordered Hadassah to be produced in court.
On April 12, 2019, the judge held a hearing on (1) the department's intent to seek medical care for John, Kevin, and Lori, and (2) Hadassah's whereabouts. The mother claimed not to know where Hadassah was and not to recall Hadassah's telephone number or contact information. The judge repeatedly urged the mother to agree to be represented by counsel; the mother declined. When the judge indicated that the mother's questions about the order to produce Hadassah should be directed to her lawyer, the mother replied, "I don't have a lawyer." Although the mother failed to follow through on two separate promises to produce Hadassah at specified times that day, the judge ultimately continued the case at her request to allow her more time to produce Hadassah.
The judge also held an in-camera hearing to determine whether the mother had a privilege under the Fifth Amendment to the United States Constitution that permitted her to decline to answer questions regarding Hadassah's whereabouts. See Commonwealth v. Martin, 372 Mass. 412 (1977). The judge concluded that the mother did not have such a privilege.
The mother was in court with Hadassah on April 16, 2019. After a hearing at which the mother refused to provide information about where she and Hadassah were staying, the judge placed Hadassah in the department's temporary custody, with a further temporary custody hearing scheduled for April 18, 2019. When the mother failed to appear on the next date, the judge continued the department's temporary custody of Hadassah.
Additional court dates came and went. At a pretrial hearing on October 24, 2019, the mother's first attorney again moved to withdraw (this time from her appointment as standby counsel) because the mother refused to work with her. The judge appointed another attorney (second attorney) to act as the mother's standby counsel.
The trial on the underlying petition began on March 9, 2020, and continued over eleven nonconsecutive days, ending on September 23, 2020. On the first day of trial, the second attorney moved to withdraw, citing an irretrievable breakdown of communications with the mother. The second attorney represented that the mother had threatened to file a lawsuit against her and to report her to the Board of Bar Overseers if she did not cease being the mother's standby counsel. While acknowledging that the second attorney was in a difficult position, the judge denied the motion. On the third day of trial, July 14, 2020, the mother filed a motion seeking to discharge the second attorney and, contrary to her prior insistence on representing herself, to have new counsel appointed. As grounds for seeking termination of the second attorney's appointment, the mother represented to the judge that "[w]ithin the past several years," the second attorney had been involved in "inciden[ts] of a sexual and violent nature" with a member of the mother's family. The judge then conducted a hearing on the mother's motion. During that hearing, the mother did not provide details of her allegations, even when pressed by the judge, nor did she explain the months-long delay in bringing the conflict to the judge's attention. The judge allowed the second attorney to withdraw. After hearing at length from mother and counsel for the department and children on the mother's motion for appointment of a third attorney, the judge found that the mother's request for appointment of new counsel was made for the purposes of delay and not because there was a true conflict, and he denied that motion. The judge stayed the matter until the following day, July 15, to allow the mother to file an interlocutory appeal of the denial of her motion to appoint new counsel. The mother did so on the afternoon of the following day; her petition was denied.
The trial schedule was interrupted by the COVID-19 pandemic. When it recommenced in July 2020, the trial was conducted via Zoom.
The second attorney reported that although she had been involved with an argument in 2017 with an individual with the name noted by the mother, there was no violent sexual behavior involved in the altercation, and no further contact between herself and that individual. She told the judge that she had first learned of the mother's conflict claim earlier that day.
The mother also filed a petition for a writ of habeas corpus in the United States District Court. The record does not reflect the outcome of her petition.
The trial continued on July 17, 27, and 28, 2020. After a scheduling conference at the end of the trial day on July 28, the judge continued the proceedings for approximately one month to accommodate the court's calendar; the mother objected to the delay. Concluding that, in light of the month-long postponement of the trial, appointment of new counsel for the mother would no longer cause a delay in the proceedings, the judge reconsidered his denial of the mother's motion for appointment of a third attorney. On August 7, 2020, he appointed an attorney to act as a "legal advisor" for the mother.
The judge's order specified that the legal advisor was to assist the mother in preparing for the continued trial and presenting her case, including with the mechanics of objecting, examining and cross-examining witnesses, and filing pleadings. We understand the effect of the judge's appointment of a legal advisor to be the equivalent of his appointing standby counsel.
The case resumed in September. The legal advisor was present, although the mother did not respond to his efforts to communicate with her, and his participation in the trial was limited because the mother would not permit him to act on her behalf. When the mother refused to testify when called as a witness by the department, the department requested that the judge draw negative inferences from the mother's refusal to answer certain questions. At the conclusion of the evidence and after closing arguments (during which the mother had to be escorted from the court room after she repeatedly interrupted the department's argument), the judge took the matter under advisement. Ultimately finding the mother unfit to parent the children, the judge granted permanent custody of Hadassah and John to the department and issued decrees terminating her parental rights to Kevin and Lori. He issued ninety-four pages of findings and rulings supporting his decision. An amended judgment entered on December 28, 2020, and this appeal followed.
The judge also approved the department's permanency plan for Kevin and Lori, which included their adoption by their foster parents.
Discussion.
1. Appointment of counsel.
Although the mother was entitled to appointed counsel in this case, she could -- and in the judge's estimation, did -- waive that right through her conduct. See Adoption of Raissa, 93 Mass.App.Ct. 447, 451-452 (2018). Reviewing the question de novo, although "[w]ith 'substantial deference' to the trial judge's factual findings related to the loss of the right to counsel," id. at 452, quoting Commonwealth v. Means, 454 Mass. 81, 91 (2009), we agree the mother waived her right to appointment of a third attorney in the circumstances here.
We are guided by our decision in Adoption of Raissa, 93 Mass.App.Ct. 447. As in that case, the mother here "either fired or failed to communicate with each of the . . . attorneys appointed to her," id. at 452, despite the judge's repeated warnings to the mother about "[her] behavior and the consequences of proceeding without counsel" (quotation and citation omitted). Id. We discern no error in the judge's conclusion that the mother's mid-trial request for a third appointed attorney was a tactic intended to delay the proceedings, and no abuse of discretion in his decision to deny her request on that basis. See id. at 454. The mother's obstructionist approach throughout the case, her repeated failure to appear or tardy appearance for court dates, and her consumption of unreasonable amounts of court time debating minutiae of forms of address and frivolous arguments paint a picture of intentional delay from the outset of the case. She failed to provide a credible basis for her claim that the second attorney had an actual conflict that precluded the attorney from representing her, nor did she explain the reason for her delay in bringing forward the alleged conflict between herself and the second attorney until the trial was already well underway. Then, despite probing questions by the judge and an ample opportunity to explain her sudden rejection of her plan to represent herself, she did not do so. Finally, the children had a clear interest in avoiding unnecessary delay. See Adoption of Raissa, supra at 455, quoting Custody of a Minor, 389 Mass. 755, 764 n.2 (1983) ("[n]o cases of any kind have a greater claim for expedition at all stages than those involving care and custody of children"). There was no error in the judge's denial of the mother's motion to appoint a third attorney to represent her in this action.
The mother insisted that both she and Hadassah be referred to without courtesy title and by first, middle, and last names in each instance.
For example, on multiple occasions, the mother claimed the children as her "property."
Given our conclusion, we do not address the effect of the judge's appointment of a "legal advisor," other than to note that it appears the mother was no more willing to work with the legal advisor than she had been to work with prior appointed counsel.
To the extent that the mother contends that the judge erred in failing to appoint counsel to represent her in her interlocutory appeals and habeas corpus petition, she cites to no supporting authority and her challenge does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
2. Due process.
Highlighting a handful of statements in the nearly 2,000 pages of transcript included in the record, the mother contends that she was denied a fair trial in this case because the judge was biased against her and prejudged the evidence. We discern no error requiring reversal.
In the main, the statements the mother characterizes as evidencing judicial bias reflect only the judge's assessment of the mother's credibility based on her representations and conduct at trial. This was proper. See Adoption of Querida, 94 Mass.App.Ct. 771, 776 (2019) (no improper bias where judge's assessments of mother were "based on impressions he formed from his role in the case, and not from extrajudicial sources"). The one or two remaining comments on which the mother focuses did not evidence bias, particularly given the overwhelming showing in the record of the judge's even-handed conduct of the proceedings in this case.
We place the judge's comments about the credibility of the mother's statements about her ignorance of Hadassah's whereabouts and contact information in this category.
We likewise discern no support for the mother's claim that certain comments the judge made during the trial indicated that he had prejudged the evidence in favor of the department. The judge's statement at the April 12, 2019, motion hearing that "[t]he children are in need of care and protection" was a response to the mother's demand that the children be released to her that day and was preceded by his statement that "[t]he children are lawfully in the temporary custody of the [department]." Reading the remaining challenged comments in context, we are satisfied that each of them was made to emphasize to the mother the judge's concerns about her tactical choices -- specifically, her refusal to testify when called by the department and to put on evidence of her own -- and underscore the risk to the mother of failing to rebut the department's case. The statements, almost all of which indicated what the judge would be constrained to decide if the mother failed to rebut the department's evidence or follow procedural rules for the admission of evidence, did not indicate that the judge had predecided the case.
3. Adverse inferences.
We touch only briefly on the mother's argument that the judge erred in drawing adverse inferences on seventeen discrete factual questions based on the mother's refusal to testify when called by the department as a trial witness. Contrary to the mother's suggestion, nothing precluded the department from calling the mother to testify. See Adoption of Salvatore, 57 Mass.App.Ct. 929, 930 (2003); Mass. G. Evid. § 1115(e)(3) (2022). Where the department put on "a case adverse to the interests of the party affected" through evidence of, inter alia, the mother's failure to ensure that the children had basic medical care and proper nutrition, attended school, and met developmental expectations, the mother's failure to testify "[was] a fair subject of comment" (quotation and citation omitted). Adoption of Nadia, 42 Mass.App.Ct. 304, 307 (1997). By drawing certain negative inferences, the judge did not err by shifting the burden of proof away from the department or otherwise. See id.
Conclusion.
The decrees and the order for judgment, as amended on December 28, 2020, are affirmed.
So ordered.
By the Court
The panelists are listed in order of seniority.