ADOPTION OF JADEN (And Three Companion Cases).

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-314

ADOPTION OF JADEN (and three companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother, the father, and the two oldest children, Jaden

and Alex, appeal from decrees entered in the Juvenile Court

finding the parents unfit and terminating their parental rights

to the children.2 They argue that the finding of unfitness was

not supported by clear and convincing evidence and that the

judge abused his discretion in terminating the parents' rights.

The father, Jaden, and Alex also argue that the Department of

Children and Families (DCF) failed to provide adequate adoption

plans, and that the judge erred in declining to order

posttermination and postadoption visitation.3 Finally, both

1 Adoption of Alex, Adoption of Kerrianne, and Adoption of
Lexy. The children's names are pseudonyms.

2The mother was the sole parent identified on Lexy's birth
certificate. The judge terminated the parental rights of "any
unknown, named, and unnamed father" of Lexy.

3The father adopts the arguments in the mother's brief and
in Jaden's (and Alex's) brief.
parents raise arguments grounded in alleged deprivations of due

process. We affirm.

Background. We summarize the judge's findings of fact,

which find ample support in the record.4 The mother and father

began a relationship in 2011. The four subject children in this

matter are Jaden, born in 2013; Alex, born in 2016; Kerrianne,

born in 2018; and Lexy, born in 2020. Before moving to

Massachusetts, Jaden was born substance exposed in Connecticut.5

DCF became involved with the family in 2017. Between May

2017 and March 2021, nine G. L. c. 119, § 51A, reports (51A

reports) were filed, alleging neglect and physical abuse of the

children. DCF supported seven reports, which involved, inter

alia, Lexy testing positive for cocaine at birth, the mother

physically assaulting the father in front of the children,

substance use occurring at the home, the mother choking Jaden,

and concerns about the mother's mental health and substance use.

In August 2020, DCF created a safety plan with the father, in

which he agreed that the mother was not to be the sole caregiver

4 General Laws c. 119, § 51A, reports were admitted in
evidence solely "to set the stage," and G. L. c. 119, § 51B,
reports were considered by the judge "for statements of
fact . . . and not for purposes of diagnosis, prognosis and
evaluation." See Custody of Michel, 28 Mass. App. Ct. 260, 266-
267 (1990).

5 In 2017, the mother's parental rights to a child from a
previous relationship were terminated in Connecticut.

2
of the children and that he would ensure that the home was free

of illegal substances. The parents did not follow the safety

plan. A February 27, 2021, report alleged that there was drug

activity occurring in the apartment, that people were "passed

out" several days a week, that the mother often arrived home

intoxicated, and that the mother sometimes drove under the

influence with the children in the car.

DCF filed the instant care and protection petition on March

18, 2021. The children were placed in the conditional custody

of the mother and the father. During that time period, six

additional 51A reports were filed, alleging neglect of the

children by the mother and the father due to the children not

attending school, a lack of supervision of the children, the

mother's use of substances in the home, and Jaden testing

positive for cocaine.6 On May 24, 2021, the children were

removed from the mother's and the father's custody and placed in

DCF care.

6 On May 23, 2021, two 51A reports were filed. The first
alleged that Kerrianne was able to access the mother's Suboxone
from her purse and may have ingested it. The second alleged
that the mother hid a substance in the home and was "acting
erratically." During the ensuing G. L. c. 119, § 51B,
investigation, the father admitted that the children were not
always supervised. The mother refused to sign releases for DCF
to speak with her substance abuse treatment providers, and DCF
later learned that she was no longer in treatment.

3
Following removal, the mother and the father struggled to

make progress on the action plan tasks that DCF assigned them.7

The mother did not take any steps to address her substance use

or mental health issues. She "called the police to arrest" a

DCF worker, sent threatening e-mails to DCF, and appeared to be

under the influence during two visits with the children. At the

time of trial, she had open warrants on seven charges. The

father also failed to make progress on his action plan tasks.

Police were called to the home on three occasions, yet both

parents refused to engage in recommended domestic violence

services. The parents often failed to confirm or attend visits

with the children, and they did not attend any visits between

October 2021 and June 2022.8 The father later resumed visitation

and began meeting with DCF, but he still had not made any

progress on his action plan tasks.

7 As part of the mother's action plan, DCF recommended that
the mother confirm visits with the ongoing social worker;
confirm and attend visits in the DCF office; complete a
substance abuse evaluation, a mental health evaluation, and
toxicology screens; and attend individual therapy and
psychiatry. The father's action plan tasks required the father
to, inter alia, meet with the DCF social worker at least
monthly, complete a substance use evaluation and a mental health
evaluation, engage in individual therapy, and attend all virtual
and in-person visits. By October 7, 2022, neither parent had
made progress on their tasks.

8 When the father did attend visits with the children, he
was observed to be "loving and attentive."

4
On November 1, 2022, trial commenced via Zoom on DCF's

request to terminate the mother's and the father's parental

rights. The father did not appear, and the judge allowed his

counsel's oral motion to withdraw.9 The judge also conducted a

colloquy with the mother, who had been proceeding pro se since

January 2022.10 The mother said that she felt "mentally

anguished" and "forced" to represent herself due to

"malpractice" by her previous attorneys. The judge stopped the

colloquy, allowed her to speak to standby counsel twice, and

offered to appoint an attorney to represent her. After a third

conversation with standby counsel, the judge continued with the

colloquy, and the mother confirmed her decision to proceed pro

se with standby counsel. The judge accepted her waiver of

counsel and found that it was made "voluntarily[,] intelligently

and with knowledge of the consequences." On the second day of

trial, the mother did not appear. After efforts to contact her

were unsuccessful, the trial proceeded without her.

9 On several prior court dates, the father's counsel
reported having "no position" from him. The judge had allowed
the father's counsel to withdraw on June 22, 2022, but
reappointed counsel on October 11, 2022, because the father had
attended some visits.

10On January 14, 2022, the judge found that the mother's
waiver of counsel was made "voluntarily, intelligently, and with
knowledge of its consequences."

5
Following trial, the judge ordered the entry of decrees

finding the mother and the father unfit and terminating their

parental rights.11 He approved the adoption plans proposed by

DCF and ordered sibling visitation, but left posttermination and

postadoption visitation with the parents to the discretion of

DCF for Jaden and Lexy, and to the discretion of the maternal

aunt for Kerrianne.12

Discussion. 1. Unfitness and termination of parental

rights. The mother, the father, Jaden, and Alex contend that

DCF did not meet its burden to prove parental unfitness by clear

and convincing evidence.13 We disagree.

"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

11The judge issued his decision on November 3, 2022, but
DCF had not yet filed a birth certificate for Alex. The judge
issued an amended decision and order on December 8, 2022. On
February 15, 2023, after DCF filed the birth certificate, the
judge issued his findings of fact, rulings of law, and orders
regarding all four children.

12 The judge did not make orders regarding visitation with
Alex.

13The father, Jaden, and Alex do not challenge any of the
judge's findings as clearly erroneous.

6
child's best interests." Adoption of Jacques, 82 Mass. App. Ct.

601, 606 (2012). "Parental unfitness is determined by

considering a parent's character, temperament, conduct, and

capacity to provide for the child's particular needs,

affections, and age." Care & Protection of Vick, 89 Mass. App.

Ct. 704, 706 (2016). We give substantial deference to the

judge's findings, which we do not disturb unless they are

clearly erroneous. See Adoption of Jacques, supra at 606-607.

The evidence at trial supported the judge's findings that

the mother: exposed Jaden and Lexy to substances during

pregnancy; exposed the children to substances while caring for

them; physically abused Jaden; refused to engage in substance

abuse and mental health treatment; assaulted the father and

failed to engage in domestic violence services; and failed to

confirm or attend visits with the children. The record supports

the judge's findings that DCF proved by clear and convincing

evidence that the mother is unfit.14

14The mother also challenges the judge's findings regarding
her mental health. She argues that the record does not support
the judge's finding that her behavior demonstrated "mental
instability." The argument is unpersuasive. In addition to his
observations of the mother throughout the proceedings, the judge
considered, inter alia, the mother's inappropriate conduct
towards DCF, her interview with a court investigator where she
appeared "paranoid," and her failure to engage in mental health
services. The judge's findings were supported by the record and
not clearly erroneous. See Custody of Eleanor, 414 Mass. 795,
799 (1993).

7
As to the father, the evidence demonstrated that he showed

"a level of instability and lack of safety that do not serve the

best interests of the children." While he was meant to be the

primary caregiver according to the safety plan, the children

were exposed to dangerous substances, were not adequately

supervised, and were not attending school. After the children

were removed, he did not attend consistent visits or engage in

the action plan tasks. Between his inability to ensure the

safety of the children while they were in his care and his

failure to demonstrate improvement after their removal, we

discern no error in the judge's determination of unfitness.

As to termination of parental rights, the judge evaluated

the provisions of G. L. c. 210, § 3 (c), and found factors (ii),

(iii), (iv), (v), (vi), (vii), (viii), (x), and (xii) to be

applicable. The record supports this determination. Moreover,

as detailed above, in light of each parent's failure to

meaningfully address the issues that led to the removal of the

children, there was ample record evidence to support the judge's

findings and determination that the mother and the father were

unfit, and that termination of their parental rights was in the

children's best interests.15

15We are not persuaded by the father's, Jaden's, and Alex's
argument that the judge's findings were not sufficiently "child-
specific." The key elements of the parents' unfitness applied
to their inability to parent each of the children. Moreover,

8
2. Adoption plans. The father, Jaden, and Alex claim that

the judge erred in terminating parental rights because DCF did

not present adequate adoption plans for Jaden, Alex, and Lexy.16

"In determining the best interests of the child, the judge must

consider, among other things, 'the plan proposed by the

department.'" Adoption of Varik, 95 Mass. App. Ct. 762, 770

(2019), quoting G. L. c. 210, § 3 (c). "The law does not

require that the adoption plan be fully developed in order to

support a termination order, but it must provide sufficient

information about the prospective adoptive placement so that the

judge may properly evaluate the suitability of the department's

proposal" (quotations and citation omitted). Adoption of Varik,

supra.

While DCF did not submit written adoption plans or identify

adoptive placements for Jaden, Alex, or Lexy, the DCF social

worker testified that the plan for the children was adoption.

She testified that Lexy was receiving early intervention and was

in a "comprehensive foster care home," and that a cousin in

the judge made numerous factual findings and conclusions about
the individual needs, placements, and progress of both Jaden and
Alex.

16Kerrianne and Lexy argue in their brief that the father
"does not have standing to argue any issue to [Lexy] where he is
not listed on her birth certificate." The father does not
address that argument in his reply brief. Even assuming,
arguendo, that the father does have standing, the outcome is no
different.

9
Virginia was a potential placement. She also testified about

how Jaden and Alex were doing in their foster home, their

specific needs, and the services they were receiving to aid

their transition. Based on this evidence, the judge made

specific findings about each child's needs and the type of

caregiver and home they will require. The adoption plans

"convey[ed] enough information for the judge to assess the

various options that [DCF] was actively considering." Adoption

of Varik, 95 Mass. App. Ct. at 771.

3. Posttermination and postadoption visitation. The

father, Jaden, and Alex contend that the judge abused his

discretion in declining to order posttermination and

postadoption visitation between the father and Jaden and Alex.17

Once a parent is established as unfit, "[a] judge may decline to

order postadoption visitation, or may order limited postadoption

contact, including visitation, between a child and biological

parent where such contact is currently in the best interests of

the child" (quotation and citation omitted). Adoption of Saul,

60 Mass. App. Ct. 546, 556 (2004). The record reflects the

17At trial, the father did not appear, and neither Jaden
nor Alex requested posttermination and postadoption visitation.
See Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005)
(issue of visitation waived where parents did not raise it prior
to termination of their parental rights). Even assuming the
issue is not waived, we discern no abuse of discretion for the
reasons discussed herein.

10
father's failure to ensure the safety of the children, engage

with action plan tasks, and attend consistent visits. On the

record before us, we cannot say that the judge abused his

discretion in declining to order posttermination and

postadoption visitation with the father. See L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

4. Due process. The mother and father also raise various

claims of due process violations. These claims are unavailing

for the reasons discussed below.

a. The mother's waiver of counsel. The mother contends

that the judge erred in accepting her waiver of counsel because

he harbored "bona fide doubts" about her competence to do so.

We disagree. In parental termination proceedings, we 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). Before accepting a waiver

of counsel, the 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). To conclude that a waiver was valid, "[w]e must be

confident that [she] was adequately aware of the seriousness of

the [proceedings], the magnitude of [her] undertaking, the

availability of advisory counsel, and the disadvantages of self-

11
representation" (quotation and citation omitted). Care &

Protection of Ollie, 104 Mass. App. Ct. 269, 274 (2024). The

competence that is required to waive the right to counsel is the

competence to waive the right, not the competence to represent

oneself. See Haltiwanger, supra. We review claims of

violations of the right to counsel de novo. See Commonwealth v.

Means, 454 Mass. 81, 88 (2009).

In Haltiwanger, we ruled that a judge who has a bona fide

doubt about a defendant's competence to waive counsel is

obligated to conduct a separate inquiry into the question, on

the record and accompanied by written findings. Haltiwanger, 99

Mass. App. Ct. at 556-557. The judge in Haltiwanger "sua sponte

raised a concern about the defendant's competency" to stand

trial because the defendant, during a colloquy, was

uncooperative, provided nonsensical answers, and refused to have

standby counsel appointed. See id. at 554, 557, 559. Here, the

judge conducted three comprehensive colloquies with the mother.

Moreover, at the slightest hesitation from her, he stopped the

colloquy, offered to appoint counsel, and allowed her to have

three conversations with standby counsel. Only then did the

judge accept her waiver and make a finding on the record that it

was made "voluntarily, intelligently and with knowledge of the

consequences." Neither the judge, nor standby counsel,

expressed any doubts about her competency, and her "unaddressed

12
mental health condition" was only a concern in the context of

her parental fitness. See Indiana v. Edwards, 554 U.S. 164, 175

(2008) ("Mental illness itself is not a unitary concept"). We

discern no error in the judge's finding that the mother's waiver

was knowing, intelligent, and voluntary.

b. Failure to continue the trial. The mother also

contends that the that the judge "should have postponed the

trial" after she did not appear on the second day. "The

decision on whether to continue any judicial proceeding is a

matter entrusted to the sound discretion of the judge, and the

judge's decision will be upheld absent an abuse of that

discretion." Adoption of Gillian, 63 Mass. App. Ct. 398, 409-

410 (2005). The judge did not abuse his discretion in

proceeding without the mother. She participated during the

first day of trial and had been participating virtually since

the beginning of the proceedings.18 She declined the opportunity

to appear in person, and there has been no indication or proffer

-- at trial or on appeal -- that her failure to appear on the

second day of trial was due to technology issues or anything

apart from her unilateral choice not to participate. Contrast

Adoption of Patty, 489 Mass. 630, 644-646 (2022) (judge abused

discretion in drawing adverse inference against parent for not

18On several occasions, the mother was able to reconnect
after disconnecting and utilize virtual, breakout rooms.

13
participating in video conference trial, where parent's absence

was attributable to inadequate explanation of video technology).

c. Termination of the father's parental rights to Alex.

The father claims that the judge's "sua sponte" termination of

his parental rights to Alex constituted a due process violation.

This argument is likewise unavailing because the trial in

November 2022 proceeded as to all four children, and, as

discussed supra, involved ample evidence of the father's

unfitness. At the end of the second day of trial, the judge

informed the parties that he would issue a decision as to Alex

after DCF filed a birth certificate. No party objected to the

process chosen by the judge. The father had an opportunity to

be heard in a meaningful time and manner throughout trial with

respect to Alex. See Care & Protection of Quinn, 54 Mass. App.

Ct. 117, 122 (2002). There was no error.

d. The father's right to counsel. Finally, the father

argues that he was denied due process when the judge allowed his

counsel's oral motion to withdraw at trial. We disagree.

Indigent parents have a constitutional right to counsel in a

proceeding brought to terminate their parental rights. See

Adoption of William, 38 Mass. App. Ct. at 663. The right is not

absolute, however, and can be lost if the parent abandons the

proceedings. See Care & Protection of Marina, 424 Mass. 1003,

1003-1004 (1997). The father's counsel was unable to provide a

14
position on the father's behalf throughout the proceedings due

to the father's failure to communicate with her. The father

then failed to attend trial or communicate with his counsel,

thereby abandoning the proceeding and his right to counsel. See

id. (despite involvement in initial stages of proceeding,

father's failure to attend later hearings and trial constituted

"absolute abandonment" of proceeding and right to counsel).19

Conclusion. The record and the judge's detailed and

comprehensive findings compel the conclusion that the decrees

"reflect an even-handed assessment of all the relevant facts,"

Petition of the Dep't of Pub. Welfare to Dispense with Consent

to Adoption, 376 Mass. 252, 261 (1978), and that the judge did

not err or abuse his discretion in finding the mother and the

father unfit, terminating their parental rights, and declining

19Raised for the first time on appeal, the arguments of
Jaden, Alex, and the father about the Family Treatment Court
were not properly preserved in the trial court, and are
therefore not before us. See Adoption of Yalena, 100 Mass. App.
Ct. 542, 554 (2021).

15
to order posttermination and postadoption visitation with the

father.

Decrees affirmed.

By the Court (Vuono, Neyman &
D'Angelo, JJ.20),

Clerk

Entered: October 7, 2024.

20 The panelists are listed in order of seniority.

16