QUINNELL v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a trial, a Juvenile Court judge concluded that Quinnell was a child in need of care and protection and that the mother was unfit to parent him. The judge further found that Quinnell's best interests would be served by allowing the petition for guardianship filed by the maternal grandfather and his wife (grandparents).⁴ The sole issue on appeal is whether the judge erred in failing to appoint a fourth attorney to represent the mother on the morning of trial after the mother had dismissed three appointed attorneys. The mother claims that the judge's failure to appoint a fourth attorney violated her due process right to counsel and that the judgments are therefore void. We affirm.

Background. We briefly summarize the facts relevant to the mother's unfitness, which she does not challenge on appeal. Quinnell was born in July 2016 and is the mother's only child. The putative father did not attempt to establish paternity and did not participate in the trial. The mother has been diagnosed with schizoaffective disorder which has caused her to be hospitalized on several occasions. In May 2016, she was involuntarily hospitalized for eleven days after police officers reported her paranoid and delusional behavior during a well-being check.

The Department of Children and Families (department) began an investigation pursuant to G. L. c. 119, § 51B, shortly after Quinnell's birth in July 2016, when a report filed under G. L. c. 119, § 51A, expressed concern about the mother's mental health and her failure to take her medication. Following the investigation, the report was supported and Quinnell was removed from the mother's care on an emergency basis on August 2, 2016. On September 19, 2016, the grandparents filed in the Juvenile Court a petition for guardianship of Quinnell. On October 14, 2016, the department temporarily placed Quinnell with the grandparents in Maine, where he received “excellent care” and was “doing great.” The trial concluded on October 18, 2017, and on November 27, 2017, the judge found the mother unfit to parent Quinnell and allowed the grandparents' petition for guardianship. This appeal followed.

Discussion. “Because the ‘loss of a child may be as onerous a penalty as the deprivation of the parents' freedom’ ․ courts have looked to the criminal law in deciding issues of individual rights in care and protection cases, including the right to counsel.” Adoption of Raissa, 93 Mass. App. Ct. 447, 452 (2017), quoting Custody of a Minor (No. 1), 377 Mass. 876, 884 (1979). As in a criminal case, however, the right to counsel in a care and protection proceeding is not absolute. See Commonwealth v. Means, 454 Mass. 81, 89 (2009). A parent may waive the right to counsel either explicitly or through her conduct. See Adoption of Raissa, supra. To be valid, the waiver must be “voluntary, unequivocal, knowing and intelligent.” Adoption of William, 38 Mass. App. Ct. 661, 663-664 (1995). Findings related to waiver are entitled to substantial deference, but we review claims of violation of the right to counsel de novo. See Means, supra at 88.

Here, the judge appointed counsel to represent the mother on August 3, 2016, the date the care and protection petition was filed. During the course of the pretrial proceedings extending over the next several months, the judge twice appointed successor counsel at the mother's request. In each instance, counsel reported an irretrievable breakdown in communication with the mother and that she had either “fired” them or asked them to withdraw. On June 14, 2017, after allowing the second appointed attorney to withdraw, the judge told the mother “this is the last attorney you're going to get ․ If this doesn't work out, you're going to have to hire your own attorney or represent yourself.”

On July 18, 2017, approximately two months before trial, the mother's third appointed attorney sought to withdraw at the mother's request, again citing a “breakdown of communication.” Before acting on the motion, the judge explained to the mother that the case was very serious, that her appointed counsel was well qualified, and that self-representation was a very difficult undertaking. The judge asked the mother to reconsider, stating that she “would just hate for [the mother] ․ to be disadvantaged.” The judge urged the mother to continue to work with her attorney, at least as standby counsel, and the judge repeated that she would not appoint another attorney. The mother stated that she understood and stated, “I'll go on my own Your Honor. Thank you.” The judge then allowed counsel's motion to withdraw.

Two months later, on the morning the trial was scheduled to begin, the mother repeated her desire to represent herself and proceed to trial. She did not claim, and does not claim now, that she did not understand the nature of the proceedings or the challenges of representing herself. The record shows 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.” Commonwealth v. Jackson, 376 Mass. 790, 795 (1978). Accordingly, the mother has failed to show by a preponderance of the evidence that her express waiver of counsel was not knowing, intelligent, and voluntary. See Adoption of William, 38 Mass. App. Ct. at 664 (party challenging validity of waiver of counsel has burden of proof by preponderance of evidence).

We are not persuaded by the mother's argument that the judge erred in denying her request for a new attorney. First, the record does not indicate that the mother ever asked for appointment of a fourth attorney. The third attorney's motion to withdraw included no such request, and the mother did not ask for a new attorney either at the hearing on July 18, 2017, or on the morning of trial.⁵ Indeed, when given multiple opportunities to reconsider her position, the mother unequivocally indicated she would “go on [her] own.”

Moreover, we are mindful that in cases involving the termination or curtailment of parental rights, the judge is required to consider the child's best interests, including his right to a stable and safe environment. See Adoption of Olivia, 53 Mass. App. Ct. 670, 677 (2002). Even were we to construe the mother’s inquiry on the morning of trial about another opportunity for an appointment of counsel as a request for such an appointment, see note 4, supra, we cannot say that the denial of the request was an abuse of discretion under the circumstances. See Adoption of Olivia, supra at 675. The case was over one year old, the mother's fitness to parent Quinnell remained unresolved, and Quinnell was entitled to stability. See Adoption of Nancy, 443 Mass. 512, 517 (2005). In the circumstances, the judge acted within her discretion in holding the mother to her express waiver of counsel rather than permitting further delay, particularly in light of the mother's established inability to work effectively with her previously appointed counsel before discharging them. See Means, 454 Mass. at 93 n.19.

The judgment entered on the care and protection petition, Middlesex Juvenile Court no. 16CP0220FH, and the judgment entered on the petition for guardianship, Middlesex Juvenile Court no. 16GU0081FH, are affirmed.

So ordered.

Affirmed.

FOOTNOTES

4.   The parties agreed to consolidate the guardianship and care and protection cases, and evidence regarding both cases was presented at a single trial. The judge's “Order of Adjudication” entered on the docket in each case.

5.   When the judge asked the mother on the morning of trial if she still wanted to proceed without counsel, the mother asked, “Um, do I have another opportunity to obtain an attorney?” The judge then explained that the mother's options were to agree to a finding of unfitness and to the guardianship petition filed by the maternal grandparents or proceed to trial that day. The mother elected to proceed to trial and to represent herself.