In re Igor

1

ADOPTION OF IGOR.^[1]

No. 22-P-1138

Appeals Court of Massachusetts

August 23, 2023

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

The mother appeals from a decree of the Juvenile Court finding her unfit to parent the child, terminating her parental rights, and dispensing with her consent to the adoption of the child.^[2] See G. L. c. 119, § 26; G. L c. 210, § 3. Represented by counsel on appeal, she argues that she was not competent to waive her right to trial counsel; she also challenges the sufficiency of certain of the judge's findings. We affirm.

Background.

In March 2019 the Department of Children and Families (DCF) commenced a care and protection proceeding in the Juvenile Court on behalf of the child, who was then four years old.^[3] The judge ordered an emergency mental health screening of the mother and referred her to the court clinic for an evaluation of her competency to respond to the proceeding and to engage in a temporary custody hearing (or waive her right to one).^[4] The same judge presided over all subsequent matters in the proceeding. On June 7, 2021, the first day of trial, the mother's court-appointed attorney, her fifth in the case, informed the judge that the mother was meeting with her therapist "so that she could better [be] able to address the [c]ourt in kind of the way she wants to proceed on this case"; he also moved to withdraw. The judge ordered a competency screening (screening evaluation) at the court clinic, which was conducted that same day by a second clinician. The mother complied with the order.

Thereafter, the judge conducted a two-day hearing on the motion to withdraw and the mother's earlier request to represent herself (competency hearing). During the hearing, the judge warned the mother of the "pitfalls" and the potential dire consequences of representing herself, including the termination of her parental rights and the adoption of the child; he further counseled her it would not be in her best interest to waive her experienced counsel. He also explained her numerous duties with regard to the trial process, and unsuccessfully tried to talk her out of self-representation. After two colloquies with the mother on June 8 and June 9, 2021, the judge determined that she was competent to waive her right to counsel and that she had made an informed decision to represent herself. He appointed the same attorney as standby counsel to assist her.

In his written decision issued on the following day, the judge made detailed findings of fact and explained his decision. First, the judge continued to credit the opinion of the first clinician that the mother was competent to participate in the proceedings. See Commonwealth v. Scionti, 81 Mass.App.Ct. 266, 273 (2012) (prior mental health evaluations are relevant to competency determination). Next, based on his numerous observations of and conversations with the mother, the judge found that the mother had been "actively engaged in her defense of this [p]etition," had appeared at all pretrial hearings, and understood that DCF had removed the child from her custody as a result of allegations that the child was neglected. As evidence of the mother's understanding and insight into the trial process, the judge noted the mother's research into the child's rights under the Indian Child Welfare Act, and her questioning on how the judge could ignore hearsay he had struck in limine at the trial (where he would serve as the fact finder). See Commonwealth v. Corbett, 98 Mass.App.Ct. 34, 38-39 (2020) (in making competency determination judge may rely on own observations and direct knowledge of events). Next, the judge observed that none of the mother's court-appointed attorneys had suggested that she did not or could not understand the proceedings, and further that her attorney at the time of trial, who attended her screening evaluation on June 7, had not requested the mother be evaluated for competency.^[5] See id. at 39 ("impressions of counsel" are relevant to judge's competency determination). The judge found that while the mother was "overly verbose and often interrupts," there was "no indication that she [was] unaware of the nature of the proceeding nor its significance," and that her responses to his questions demonstrated she understood the issues in the case. See Scionti, supra (judge is "entitled to place great weight on [his] own communications with the defendant"). The judge further explained that earlier in the case, he had successfully talked the mother out of representing herself, but at the time of trial, and despite the judge's express request that she reconsider her decision, the mother was "adamant" that she wanted to represent herself. Drawing from the Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants (2006), the judge informed the mother of her duties regarding evidentiary and procedural rules, and the mother responded that she understood she would be required to follow the rules, and that termination of parental rights was a serious matter sometimes referred to as a "civil death penalty" case. To support his finding that the mother understood the severity of the matter and was aware of what she was "requesting of the court," the judge took "particular notice" of the mother's prior experience in a different care and protection proceeding in which the mother had prevailed. Based on his subsidiary findings, the judge ultimately concluded that "the mother has a rational and factual understanding of the proceeding and its potential consequences and that she has waived her right to counsel intelligently, knowingly and voluntarily."^[6]

Following forty-five days of trial, the judge concluded that the mother was currently unfit and that her unfitness was "likely to continue into the indefinite future to a near certitude." He further concluded that termination of the mother's parental rights and DCF's permanency plan were in the best interests of the child. Accordingly, he approved DCF's permanency plan of adoption. This timely appeal from the decree followed.

Discussion.

1. Waiver of the right to counsel.

The mother's primary argument is that the judge committed structural error by allowing her to waive her constitutional right to an attorney. We are not persuaded.

In parental termination proceedings, courts look to the criminal law for guidance in assessing whether a waiver of the right to counsel was valid. See Adoption of William, 38 Mass.App.Ct. 661, 663-664 (1995). As to a criminal defendant who seeks to waive counsel, "a judge must determine both that the waiver is knowing and voluntary and that the defendant is competent to make it." 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 (1995) (two-part inquiry required). "Because mental illness itself is not a unitary concept, there is no single mental competency standard for deciding both (1) whether a defendant who is represented by counsel can proceed to trial and (2) whether a defendant who goes to trial must be permitted to represent himself" (quotation, footnote, and citation omitted).^[7] Haltiwanger, supra at 555-556. "[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself" (citation omitted). Id. at 555. To conclude that a waiver of the right to counsel was "voluntary, unequivocal, knowing and intelligent" and thus valid, Adoption of William, 38 Mass.App.Ct. at 663, an appellate court "must be confident that [the mother] 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" (quotation and citation omitted). Id. at 665. We review a judge's competency determination for abuse of discretion, Scionti, 81 Mass.App.Ct. at 273, giving "substantial deference to his findings of fact because the judge had the opportunity to view the witnesses in open court and to evaluate the defendant personally." Commonwealth v. Prater, 420 Mass. 569, 574 (1995). A claim of a violation of the defendant's right to counsel is reviewed de novo. See Commonwealth v. Means, 454 Mass. 81, 88 (2009).

Here we discern no abuse of discretion in the judge's determination that the mother was competent to waive her right to counsel. The record establishes that out of concern for the mother's competency, the judge sent her for a screening evaluation, and conducted a two-day hearing on the matter. See Haltiwanger, 99 Mass.App.Ct. at 556. On the second hearing date, the two clinicians who had evaluated the mother were present. Before allowing her attorney's motion to withdraw and the mother's request to represent herself, the judge held two colloquies with the mother; after the second, the mother waived her right to counsel. In addition to his oral findings from the bench, the judge made the written findings required by S.J.C. Rule...