ADOPTION OF CALISTA v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, the judge issued a decree finding that the father was unfit to assume parental responsibility of his daughter, Calista, terminated his parental rights, and approved the adoption plan proposed by the Department of Children and Families (department). The judge declined to order posttermination and postadoption visitation. The father filed a motion to stay and for leave to file a motion for a new trial in this court. The motion was denied by the single justice. This consolidated appeal from the decree and the order of the single justice followed. The father claims that he was denied the effective assistance of counsel, the adoption plan is not in the child's best interests, it was error to decline to order posttermination and postadoption visitation, and the single justice erred in denying the motion to stay.³ We affirm.

Background. We draw on the detailed findings of fact made by the trial judge, which find ample support in the record. In September of 2013, the department received a report from a mandated reporter pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of the child and her half siblings (twins).⁴ The police found the mother in a hotel, working as a prostitute. The twins' father, who was the mother's pimp, and the three children were present. The department supported the allegations, filed a care and protection petition, and was awarded custody. The children were placed in different foster homes.

The father, who was living in Tennessee, first had contact with the department in 2013.⁵ Although he was not listed on the child's birth certificate, he acknowledged that he was the child's father. He agreed that he was unable to take custody but asked that his mother (paternal grandmother) be considered as a placement. Against the father's wishes, the child was moved from her foster home, reunited with the twins, and placed with the maternal grandmother. The department began the process of initiating the Interstate Compact on the Placement of Children (ICPC) in Florida, where the paternal grandmother lived. However, because the goal was to reunify the child and the mother, the process ended. Shortly thereafter, the father ceased contact with the department for approximately eighteen months.

The father moved to Massachusetts in the spring of 2015. The department had previously created a service plan for him that included signing releases for service providers, notifying the department if he was in Massachusetts, refraining from criminal activity, and maintaining contact with the department. The father was minimally compliant. He did not engage in services, maintain contact with the department, or provide his address. The father visited the child without the department's knowledge or supervision in 2013 and 2015. He also moved in with the mother in 2015 and had a “somewhat hostile” relationship with the department.

In August 2015, the father came home intoxicated. He yelled obscenities at the mother and threw a cooking pot at her head. The pot missed the mother, but left a hole in the wall. The mother fled to a neighbor's house and called the police. Thereafter she obtained a G. L. c. 209A abuse prevention order against the father. The father claimed that the mother fabricated the incident.

In the fall of 2015, the father began requesting visitation with the child. In response to the child's question at a supervised visit, the father said he was in Massachusetts to “help your mother get you back” and that the child “needed to accept the truth.” This upset the child; she cried, hyperventilated, and expressed concern that she might have to live with the father. She told the department that she no longer wanted to visit with the father. Despite the child's expressed preference, a visit occurred in April 2016 where the child refused to look at or interact with her father. Although he requested visits, the father did not comply with any of the other service plan tasks, including the additional tasks of engaging in domestic violence services and finding appropriate housing.

In October 2015, the department moved the child from the maternal grandmother's care to her original foster home, where she was reunited with the twins. A child-specific foster home licensing home study was completed on the foster mother and her partner. The home study recommended denial of the placement, but the child and the twins remained in the home. In January of 2017, a 51A report was filed which alleged that the foster mother physically abused the child and another child. The child and the twins were removed from the placement and subsequently placed in separate foster homes. The department immediately began recruitment efforts to locate a family that could take all three children. As part of this effort, the department considered four kinship placements, including the paternal grandmother. All four potential placements were rejected for a myriad of reasons. Specifically, the paternal grandmother was rejected because she had never met the twins and told the department she would take the child but not “the twins as they are not her family.” The department then began active recruitment for an adoptive home that would take all three children.

Relevant procedural background. The father was appointed counsel on September 30, 2013. On October 1, 2014, the appointed attorney withdrew from the case due to her impending move out of State. On the same day, a second attorney was appointed for the father. In March 2017, the second attorney moved to withdraw because he had not heard from the father and the trial date was approaching. The trial began in June 2017. At the start of the trial, the father requested new counsel because he did not think the second attorney was “on [his] team.” The father said that there were arguments that he wanted made and questions that he wanted asked, but that his attorney was uncomfortable doing so. After a lengthy colloquy, the father elected to represent himself while the second attorney served as standby counsel. At the end of the trial, the judge declared a mistrial and recused herself from the case after the father said that he put a “curse” on the court and that anyone in the court room that had children would die or wish they had died.

The second trial began before a different judge in October 2018. The father once again represented himself, while the second attorney served as standby counsel. This time the mother stipulated to her unfitness and termination of her parental rights. Although they testified at the first trial, neither the mother nor the child testified at this trial.

Discussion. a. Best interests of the child. “To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests.” Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). On appeal, “[w]e give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.” Adoption of Ilona, 459 Mass. 53, 59 (2011).

Here, the record amply supports the judge's finding that the father was unfit and that termination of his parental rights was in the best interests of the child. Notably, the father does not contest the finding of unfitness. Nor does the father claim that any of the judge's 131 findings of fact are clearly erroneous. Instead, he contends that the termination of his parental rights was not in the child's best interests. We disagree.

In finding that the termination was in the child's best interests, the judge properly considered the father's criminal history, see Care & Protection of Quinn, 54 Mass. App. Ct. 117, 125-126 (2002); history of domestic violence, see Adoption of Zak, 87 Mass. App. Ct. 540, 542-543 (2015); failure to visit the child, see Adoption of Darla, 56 Mass. App. Ct. 519, 522 (2002); substance misuse, see Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008); and his failure to work with the department, see Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). Taken in their totality, the findings demonstrate that the father was unfit to parent the child and that termination of his parental rights was in her best interests. See Adoption of Jacques, 82 Mass. App. Ct. at 606.

b. Ineffective assistance of counsel. The father, who chose to represent himself at trial,⁶ contends that his prior attorneys were ineffective and that the decree is void because he was deprived of his fundamental due process protections including the right to counsel and a right to meaningful notice and opportunity to be heard. See Harris v. Sannella, 400 Mass. 392, 395 (1987) (“A judgment is void if the court from which it issues ․ failed to provide due process of law”).

To succeed on the ineffective assistance of counsel claim, the father must demonstrate that counsel's behavior fell measurably below the standard expected of ordinary fallible lawyers. See Care & Protection of Georgette, 439 Mass. 28, 33 n.7 (2003). Put another way, the father must make a realistic showing that, but for the alleged deficiencies in counsel's performance, the outcome of the trial would have been different. Commonwealth v. Salcedo, 405 Mass. 346, 350-351 (1989).

The father claims that the conduct of the two attorneys, who represented him years before the trial, denied him his most substantial ground of defense -- proposing the paternal grandmother as a placement option.⁷ This claim is belied by the record. The affidavit of the father's first attorney describes the strategic decisions that she made in furtherance of the father's goal: to reunify the child with the mother.⁸ The affidavit of the father's second attorney explains the strategic decisions that he made, which were sorely hampered by his inability to contact the father. See Adoption of Valentina, 97 Mass. App. Ct. 130, 135 (2020) (“Once counsel is appointed, counsel's appearance may be stricken if the parent repeatedly fails to communicate with the department and counsel”). When the father communicated with the second attorney, his stated goal was to have the child placed with the paternal grandmother, only if she was not placed with either of her parents. Because the father's plan was reunification of the child with the mother, the second attorney did not aggressively pursue the paternal grandmother as a placement option.

At trial, the father testified that he planned to live with the child in Florida or North Carolina, and that after sealing his criminal record, he would leave the country with the child. However, during the year between the two trials, the father took no action to request an ICPC for the paternal grandmother, and did not list her as a witness. These failures cannot be attributed to his first or second attorney and his argument to the contrary is pure conjecture. See Commonwealth v. Molino, 411 Mass. 149, 152 (1991) (no constitutional right to minimum level of assistance from standby counsel).

At bottom, the father has not identified a pretrial strategy or settlement option that the attorneys should have pursued given the overwhelming evidence of his unfitness. See Care & Protection of Stephen, 401 Mass. 144, 149-150 (1987). Nor has he demonstrated that the attorneys' conduct fell so far below the standard of acceptable representation to constitute a constructive denial of counsel. See Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 440 & n.20 (2016).

c. Posttermination and postadoption visitation. For the first time on appeal, the father claims it was error for the judge to decline to order posttermination and postadoption visitation between the child and the paternal grandmother. “Once it is established that a parent is unfit, the decision whether to grant postadoption [or posttermination] visits must be left to the sound discretion of the trial judge.” Adoption of Terrence, 57 Mass. App. Ct. 832, 839 (2003), quoting Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). Here, the paternal grandmother never filed a petition for visitation pursuant to G. L. c. 119, § 26B (a), and even if she had, any visitation would end upon the child's adoption. G. L. c. 119, § 39D. There was no error.

d. Single justice proceeding. We review a single justice's denial of a motion to stay for an abuse of discretion or other error of law. See Fronk v. Fowler, 456 Mass. 317, 328 (2010). Here, the father failed to demonstrate that his motion to stay and for a new trial had a “sufficiently strong likelihood of success on the merits to justify” a delay in appellate review. Adoption of Ulrich, 94 Mass. App. Ct. 668, 675 (2019). The single justice properly balanced the importance of the prompt resolution of this child welfare case with the possible merit of a new trial motion. Id. Indeed, “[n]o cases of any kind have a greater claim for expedition at all stages than those involving care and custody of children.” Custody of a Minor, 389 Mass. 755, 764 n.2 (1983). This is particularly true where, as here, the father's misconduct resulted in a mistrial causing additional and unnecessary delay.

Decree affirmed.

Order of the single justice affirmed.

FOOTNOTES

3.   The mother stipulated to her unfitness and the termination of her parental rights. She is not a party to this appeal.

4.   The child was born in 2006. Her half siblings are twins born in 2012. The child and the twins do not share the same father. The twins' father and the mother stipulated to their unfitness and termination of their parental rights. Accordingly, the twins are not the subject of this appeal.

5.   The father confirmed that he had visited the child once in her lifetime and had occasionally spoken to her on the telephone.

6.   To the extent that the father claims that his self-representation constitutes ineffective assistance of counsel, that claim fails. See Commonwealth v. Jackson, 419 Mass. 716, 720-721 (1995), citing Faretta v. California, 422 U.S. 806, 834-835 & n.46 (1975).

7.   When the father requested a new attorney, he did not assert that the attorney was unprepared, only that he was not feeling comfortable with the attorney. But “[t]he right to counsel does not include the right to dictate who shall be appointed.” Adoption of Olivia, 53 Mass. App. Ct. 670, 675 (2002). And, following the mistrial that resulted from his own conduct, the father did not request new counsel. The second trial was not imminent. The father chose to continue representing himself.

8.   He also told the first attorney that he wanted to have his parental rights terminated so that he did not have to be involved in the case.