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-182

ADOPTION OF VELMA (and a companion case).1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2019, the Department of Children and Families 

(department) filed two separate care and protection actions in 

the Juvenile Court regarding the children, Velma and Cynthia.2 

The judge denied the father's motions to bifurcate the two 

cases, and, after a trial, the judge issued decrees terminating 

the mother's rights to both children and the father's rights to 

his child, Cynthia. We affirm.

Discussion. 1. Mother's appeal. The mother argues that 

the decrees terminating her rights to Velma and Cynthia must be 

vacated because the judge violated her right to counsel in three 

ways: first, in failing to hold a hearing on the mother's 

1 Adoption of Cynthia. The children's names are pseudonyms.

2 The first action, involving the mother, Velma, and Velma's 

father was filed in February 2019. Velma's father died during 

the pendency of that litigation. A second action, involving the 

mother, Cynthia, and Cynthia's father was initiated in September 

2019. The two cases were tried together. The mother and 

Cynthia's father, whom we refer to here as "the father," are the 

appellants here.
2

counsel's motion to withdraw from representation before trial; 

second, in improperly concluding that the mother made a valid 

waiver of her right to counsel at trial; and third, by failing 

to reconsider the validity of the mother's waiver of counsel 

when, on the fourth day of the trial, standby counsel raised a 

concern about the mother's mental health. We address each of 

these arguments in turn.

a. Failure to hold hearing on the mother's motion to 

appoint new counsel. Several weeks before trial, the mother's 

counsel moved to withdraw. As grounds for the motion, counsel 

indicated that the mother had discharged her; she also 

represented that "the attorney client relationship has broken 

down." We reject the mother's assertion that the trial judge 

violated her right to counsel by refusing to schedule a hearing 

on this motion. For one thing, the judge did not refuse to 

schedule a hearing.3 Rather, she denied the motion to withdraw

"in part, administratively," but provided that the motion "may 

be renewed on the day of trial, as the court is unable to 

schedule a hearing prior to that date." As ordered by the 

judge, the mother filed a written plan with the court indicating 

that the mother would represent herself at trial with standby 

counsel. The mother's attorney did not renew her motion to 

3 We note that the trial was held at a time when the Juvenile 

Court was conducting hearings and trials virtually.
3

withdraw on the first day of trial, nor did she otherwise 

indicate that the mother wanted to hire new counsel.

Recognizing that the mother agreed to proceed with standby 

counsel "[w]ithout another option," we assume for the sake of 

argument that counsel's motion to withdraw implied an 

accompanying request by the mother for appointment of new 

counsel. However, even if mother had requested new counsel, we 

conclude that by failing to raise an objection to the judge's 

"administrative" action in the trial court, the mother's

argument that she was improperly denied a hearing on the motion 

was waived.4 See Care and Protection of Zeb, 489 Mass. 783, 787 

(2022) (objection not raised at trial deemed waived).

b. Validity of the mother's waiver of counsel. Next, we 

turn to the mother's challenge to the validity of her waiver of 

counsel on the first day of trial. "[W]e look to the criminal 

law to determine the validity of a purported waiver of counsel 

in a proceeding which operates to terminate parental rights." 

Adoption of William, 38 Mass. App. Ct. 661, 663 (1995). Before 

accepting the mother's waiver of counsel, the judge was 

4 If the judge had denied the mother's request for a hearing 

outright, our analysis might have been different. However, 

given the judge's written acknowledgment of the mother's request

for a hearing and her contemplation of a hearing on the first 

day of trial, we discern no error where the mother did not take 

any further action related to a hearing on the motion to 

withdraw.
4

obligated to "determine both that the waiver [was] knowing and 

voluntary and that the [mother] [was] competent to make it."5

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, 268-269 (1995) (two-part 

inquiry required). To prevail on her challenge to the validity 

of her waiver of counsel, the mother must prove the invalidity 

of that waiver by a preponderance of the evidence. See Adoption 

of William, supra at 664. "The validity of [the] waiver depends 

on the particular facts and circumstances of each case." 

Adoption of Olivia, 53 Mass. App. Ct. 670, 676 (2002), quoting 

Adoption of William, supra. In conducting our review, we accord 

"substantial deference" to the judge's findings of fact on the 

question of waiver, but our review of the judge's application of 

the law to her factual findings is de novo. See Commonwealth v. 

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

First, we consider whether mother's waiver of counsel was 

made knowingly and intelligently. We review the judge's 

findings for clear error. See Custody of Eleanor, 414 Mass. 

795, 802 (1993). "The focus of our review is the [mother]'s 

subjective understanding of [her] decision and its 

5 This obligation is distinct from the judge's duty to ensure 

that the defendant is competent to stand trial. See 

Commonwealth v. Haltiwanger, 99 Mass. App. Ct. 543, 555-556

(2021).
5

consequences"; waiver "may properly be based on the background, 

experience, and conduct of the [mother] and the circumstances of 

the case" (citation omitted). Commonwealth v. Pamplona, 58 

Mass. App. Ct. 239, 241 (2003). Here, we are satisfied that the 

mother demonstrated the requisite "subjective understanding of 

[her] decision and its consequences," and we are "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 selfrepresentation.'" Adoption of William, 38 Mass. App. Ct. at

665, quoting Commonwealth v. Jackson, 376 Mass. 790, 795 (1978). 

In reaching this conclusion, we consider the evidence in the 

record showing that the mother had been actively involved in the 

care and protection actions concerning Velma and Cynthia

throughout the litigation and the indications that she 

understood that her parental rights were at stake in the trial. 

Standby counsel was not only available to the mother, but was, 

in fact, appointed to her. The judge also conducted a colloquy 

with the mother in which she cautioned her about the challenges 

inherent in self-representation. In this colloquy, the judge 

advised the mother that if she represented herself at trial, she 

would be held to the same standards applicable to a member of 

the bar, and explicitly warned her that "[she] could be at a 
6

disadvantage in representing [he]rself."6 See Pamplona, supra at

241-242 (where "judge advised the defendant that difficulties 

can attend self-representation and that knowledge of the law and 

the rules of evidence would be helpful," colloquy held 

"truncated . . . [but] adequate"). We discern no error in the 

judge's finding that the mother's waiver was knowing and 

voluntary.

Second, we consider the mother's competence to waive 

counsel. Our review here is for an abuse of discretion. See 

Commonwealth v. Scionti, 81 Mass. App. Ct. 266, 273 (2012). 

Although we consider the question a close one, we give 

"substantial deference to a trial judge's determination that 

[the mother] is competent 'because the judge had the opportunity 

to view the witnesses in open court and to evaluate the [mother]

personally.'" Id., quoting Commonwealth v. Prater, 420 Mass. 

569, 574 (1995). See Commonwealth v. Russin, 420 Mass. 309, 317 

(1995) ("[I]n reviewing the judge's determination of competency, 

we must give weight to the judge's opportunity to observe the 

6 We acknowledge that this is not a case in which the mother 

demanded that she be permitted to represent herself; her

statement that she was waiving counsel "without another option" 

suggests that doing so was not her preference. Even reading 

this statement as some evidence that the mother's waiver was 

equivocal, however, considering the circumstances of the 

mother's waiver as a whole, we do not consider that statement 

adequate to establish the invalidity of the waiver by a 

preponderance of the evidence. See Adoption of William, 38 

Mass. App. Ct. at 664.
7

defendant's demeanor during the trial and the plea hearing"). 

Doing so, we conclude that the mother has failed to show that 

she was not competent to waive her right to counsel.

We begin by noting that although the judge appears to have 

been assigned to the case shortly before the trial, the docket 

reflects that she had at least one opportunity to interact with 

the mother in the court room before the trial began. See 

Scionti, 81 Mass. App. Ct. at 273 (judge "entitled to place 

great weight on her own communications with the [mother]"). 

Additionally, as we have discussed, the judge conducted a 

colloquy with the mother before accepting her waiver of counsel, 

ultimately, if inferentially, finding the mother to be

competent.7 Although in light of the concerns raised by the 

mother's standby counsel about the mother's mental health, and 

with the benefit of hindsight, the colloquy might have included 

a more probing inquiry into the mother's mental health status at 

the time of the waiver, see Means, 454 Mass. at 96 ("The scope 

of the inquiry into a mentally ill defendant's competence to 

waive counsel and self-represent are determined by the 

7 We infer this finding from (1) the judge's acceptance of the 

mother's waiver of counsel and (2) her contemporaneous rejection 

of a suggestion by father's counsel that the mother lacked 

competence to stand trial. When father's counsel suggested that 

the mother suffered from "a [mental] health issue that will 

affect her ability to represent herself," the judge responded, 

"[o]nce or if those issues are presented," she would reconsider 

the question of the mother's competency (emphasis added).
8

circumstances at hand"), we are satisfied that it provided 

sufficient evidence of the mother's competency to make a valid 

waiver of counsel. Cf. Haltiwanger, 99 Mass. App. Ct. at 555-

556 (where defendant's presentation led to judge's development 

of "bona fide doubt" as to his competence, judge obligated to 

inquire further).

Although, as the mother points out in her brief, her trial 

testimony indicated that she had, in fact, suffered from mental 

health challenges and had undergone related voluntary and 

involuntary mental health treatment, held unusual spiritual 

beliefs, and believed that she had paranormal powers, the judge 

who heard the testimony in its entirety explicitly found "that 

there was absolutely nothing in mother's presentation that leads 

this Court to believe she is unable to represent herself or [is] 

otherwise incompetent." Granting the judge's findings the 

deference to which they are entitled, see Scionti, 81 Mass. App. 

Ct. at 273, we cannot say that the judge abused her discretion 

in concluding that the mother was competent to waive counsel. 

Reviewing the propriety of the waiver de novo, we conclude that 

the mother has failed to demonstrate the invalidity of her 

waiver of counsel at trial.8 See Adoption of William, 38 Mass. 

App. Ct. at 664.

8 We are not persuaded by the mother's contention that the 

judge's decision was based on her finding that the mother had 
9

c. Denial of request for Haltiwanger evaluation. For 

similar reasons, we are not persuaded that the judge abused her 

discretion on the last day of trial when she declined to order a

competency evaluation for the mother in response to standby 

counsel's filing of a motion under Haltiwanger, 99 Mass. App. 

Ct. at 556-557. In Haltiwanger, we ruled that "where the judge 

has a bona fide doubt about the defendant's competence [to waive 

counsel]," the judge is obligated to conduct a separate inquiry 

into the question, on the record and accompanied by written 

findings. Id. at 556-557. Notably, however, in that case, it 

was apparent from the record that the judge did have the 

requisite doubt about the defendant's competence. See id. at 

559 (noting judge "sua sponte raised a concern about the 

defendant's competency"). Here, by contrast, the opposite is 

true. After presiding over four days of trial, including the 

mother's extensive testimony about, among other things, her 

made "an implied waiver by conduct" of her right to counsel

based on her apparent difficulty in working with the attorneys 

appointed to her during this litigation. See Adoption of 

Raissa, 93 Mass. App. Ct. 447, 452 (2018) (describing 

requirements for parent's "waiver by conduct" of right to 

counsel). That concern appears to be rooted in the judge's 

references to the "constitutional crisis" created by the very 

real shortage of attorneys available for appointment to 

qualified families involved in care and protection litigation. 

We recognize the accuracy of the judge's characterization of the 

problem as a "crisis," and offer no solutions to it here, but we 

urge judges to avoid any suggestion that the attorney shortage 

provides a proper basis on which to deny an otherwise eligible 

parent appointed counsel in a care and protection action.
10

belief systems and history of mental health treatment, the judge 

explicitly stated that she had no concerns about the mother's 

competency. We discern no abuse of discretion or other error in 

the judge's failure to conduct further inquiry into the matter 

under Haltiwanger.

2. Father's appeal. On appeal, the father contends that 

the judge erred in finding him unfit, prejudiced him by 

improperly allowing the department to enter evidence about 

crimes for which the father was acquitted, and abused her 

discretion in failing to bifurcate his trial from that of the 

mother.

a. Sufficiency of the evidence of unfitness. Before 

terminating a parent's rights to a child, a judge must find by 

clear and convincing evidence that the parent is unfit. See 

Adoption of Jacob, 99 Mass. App. Ct. 258, 262 (2021). 

"'[P]arental unfitness' means 'grievous shortcomings or 

handicaps' that put the child's welfare 'much at hazard.'" Id., 

quoting Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997).

In making this determination, "the judge 'may consider past 

conduct to predict future ability and performance.'" Adoption 

of Jacob, supra, quoting Adoption of Katharine, supra at 32–33.

Here, the judge's findings span more than forty-five pages, 

and include detail that reflects the judge's careful 

consideration of all the evidence presented at trial. The judge 
11

conducted an even-handed assessment of the evidence, noting, for 

example, that the father completed some of the tasks included in 

his action plans, participated in visits with his child and was 

"engaged" in those visits, and had made progress in addressing 

some of his mental health and substance abuse concerns. She 

made other findings, however, that reflected poorly on the 

father's parenting ability. As examples, the judge found that 

the father refused to engage in certain services included on his 

department action plan and failed to benefit from some of the 

services in which he did engage (notably, those related to 

addressing domestic violence). See Adoption of Rhona, 63 Mass. 

App. Ct. 117, 126 (2005) (evidence of parents' failure to 

maintain service plans and refusal to participate in counseling 

programs relevant to fitness determination). She took into 

account that the father's repeated incarcerations presented 

obstacles to his ability to be present for his child, see 

Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001), and found that 

the father was unable to prioritize the child's welfare over his 

own relationship with the mother. The judge's greatest concern, 

however, appears to have been the long and apparently 

intractable history of domestic violence between the mother and 

the father, a pattern she determined was almost certain to 

continue, given the mother's and father's insistence on 

coparenting Cynthia. See Adoption of Xarissa, 99 Mass. App. Ct. 
12

610, 618-619 (2021) (parent's history of domestic violence, 

including in relationship in which parent intended to stay, 

predictive of parent's indefinite unfitness).

While no single factor is determinative of parental 

unfitness, see Care & Protection of Yetta, 84 Mass. App. Ct. 

691, 695 (2014), it is well settled "that exposure to domestic 

violence works a 'distinctly grievous kind of harm' on 

children," Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017), 

quoting Custody of Vaughn, 422 Mass. 590, 595 (1996), "and 

instances of such familial violence are compelling evidence for 

a finding of parental unfitness." See id. at 595-596. The 

judge's findings, which the father does not challenge as 

erroneous, amply support her conclusion that despite his 

"capacity to love and nurture" his child, the father was unfit 

to parent her.9 Where the judge also determined that termination 

of the father's parental rights was in the best interests of the 

child, Cynthia, the judge did not abuse her discretion in 

terminating those rights. See Adoption of Mary, 414 Mass. 705, 

710 (1993).

b. Evidentiary challenge. In 2017, the father was accused 

of sexually assaulting a child when the child was thirteen years 

old. The father was acquitted of the criminal charges brought 

9 The judge likewise found that the mother had the capacity to 

love and nurture both Velma and Cynthia.
13

against him in connection with that accusation, and at the 

subsequent trial of these matters testified that the alleged 

abuse never happened. At trial, and over the father's 

objections, the judge allowed the department to introduce

several exhibits related to or which referenced the sexual abuse 

allegations. On appeal, the father argues that the admission of 

exhibits 24 (G. L. c. 119, § 51A report), 26 (family action 

plan), 28 (affidavit of department social worker), 29 (court 

investigator's report), 68 (police reports concerning sexual 

abuse allegations against father), and 69 (police reports 

concerning domestic violence between mother and father) amounted 

to prejudicial error.10 We do not agree.

There was no error in the judge's admission of the 51A 

report (exhibit 24), see G. L. c. 119, § 51A, for the purpose of 

"setting the stage." See Adoption of Querida, 94 Mass. App. Ct. 

771, 778 (2019). The family action plan (exhibit 26), 

department social worker's affidavit (exhibit 28), and court 

investigator's report (exhibit 29) were likewise admissible11; 

10 Understanding that the father objected at trial to the 

admission of "all evidence of, and reference to" the sexual 

assault and abuse allegations, we confine our analysis to the 

arguments made in the father's brief. See Mass. R. A. P. 16 (a)

(9) (A), as appearing in 481 Mass. 1628 (2019). 11 Where the court investigator was appointed on the day that the 

care and protection case involving the mother and Velma was 

filed, we understand the report to have been ordered pursuant to 

G. L. c. 119, § 24.
14

the father does not contend that he lacked the requisite ability 

to cross-examine the sources of the information incorporated in 

these documents. See Adoption of Luc, 484 Mass. 139, 150-151, 

152-154 (2020), and cases cited; Mass. G. Evid. § 1115(b)(2)(B) 

(2023). Where the judge explicitly stated that she would not 

take the police reports introduced as exhibits 68 and 69 "for 

[the] truth of any statements other than firsthand observations 

by police officers," the admission of those exhibits was also 

proper.12 See Mass. G. Evid. § 1115(b)(5). We decline the 

father's invitation to apply the holding of Commonwealth v. 

Dorazio, 472 Mass. 535, 543-548 (2015), to the facts of this 

case, absent any binding precedent requiring us to do so.

More to the point, even if the challenged evidence was not 

properly before the judge, that information was only cumulative 

of evidence admitted at the request of the father himself in the 

form of a "psychosexual risk assessment" conducted by an expert 

witness called by the father to testify at trial. Where the 

evidence to which the father objects was cumulative of other, 

properly admitted evidence, the father has failed to show that 

he was prejudiced.13 See Adoption of Luc, 484 Mass. at 148.

12 Given our conclusion, we need not reach the question whether 

the police reports, exhibits 68 and 69, were properly admitted 

under the business records exception to the hearsay rule. See 

Mass. G. Evid. § 803(6) (2023).

13 We find no support in the record for the father's claim that 

the judge relied on second-level hearsay to assess the 
15

c. Father's motions to bifurcate. The father filed two 

unsuccessful motions to bifurcate his trial from that of the 

mother. See Mass. R. Civ. P. 42 (b), as amended, 423 Mass. 1402 

(1996). Reviewing the judge's rulings on the motions for an 

abuse of discretion, we discern none. See Dobos v. Driscoll, 

404 Mass. 634, 644-645 (1989).

The father's first motion, filed prior to trial, was 

premised on (1) his view that his "interests [we]re not aligned" 

with those of the mother, and (2) that based on "the 

unavailability of services and programs during the . . . COVID19 pandemic," he needed additional time to complete his action 

plan tasks and to have meaningful parenting time with his child. 

Although it is true that the consolidated trials included some 

evidence that bore only on the mother's case, the judge's 

findings are clear that one of the central considerations in her 

determination of the parents' unfitness was their unwillingness 

to extricate themselves from their violent relationship and

their plans to coparent the children. Additionally, the judge 

found that the father failed to engage in most of the services 

offered to him and that despite his positive parenting when at 

liberty, he made himself unavailable to parent the child by his 

repeated incarcerations. The judge's denial of the father's 

credibility of his denial at trial of having perpetrated the 

sexual assaults of which he had been acquitted.
16

first motion to bifurcate the trial was not the result of "'a 

clear error of judgment in weighing' the factors relevant to the 

decision . . . such that the decision [fell] outside the range 

of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 

169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 

512 F.3d 9, 15 (1st Cir. 2008).

We reach the same conclusion as to the father's second 

motion to bifurcate, filed after the judge accepted the mother's 

waiver of trial counsel. The father's argument that his case 

"[was] materially prejudiced by Mother's apparent mental illness 

and its effect on her ability to represent herself pro se" was 

not supported by any showing of prejudice to the father. To the 

extent that the father was arguing that the mother lacked the 

ability to make a valid waiver of her right to counsel, the 

father lacked standing to do so.

Conclusion. The decrees terminating the mother's parental 

rights to Velma and terminating each parent's rights to Cynthia

are affirmed.

So ordered.

By the Court (Blake, 

Massing & Hand, JJ.14),

Clerk

Entered: November 15, 2023.

14 The panelists are listed in order of seniority.