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 t he 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 F ebruary 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

- 339

ADOPTION OF NEESA

. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The f ather appeals from a decree issued by a judge of the

Juvenile Court terminating his parental rights to his daughter ,

Neesa , who was eight years old at the time of trial in May 2022. 2

On appeal , the f ather claims that his attorney ( hereinafter ,

counsel ) was not prepared to represent him a nd , as a result , he

w as denied his right to the effective assistance of counsel. He

further argues that the judge abused her discretion when she

denied his motion for a short continuance once it became clear

that counsel , who stated that she was not prepa red , had not

spoken with the f ather for the prior three months , had not

1 A pseudonym.

2 The mother ' s parental rights were terminated at a separate trial in August 2021. She has not appealed and is not a party to these proceedings.2

attended the pretrial conference , had no witness or exhibit

list , and wanted to withdraw from the case and have substitute

counsel appointed

. Given the s e circumstances , we are

constrained to vacate the decree and remand the case for further

proceedings.

Background

. Neesa was born in April 2014 , to unmarried

parents. She lived with her mother until January 201 8 when the

Department of Children and Families (DCF) obtaine d emergency

custody and placed her in a foster home that subsequently became

her preadoptive home. Neesa was residing in that home at the

time of the f ather ' s termination of parental rights trial.

Neesa has never lived with the f ather , who was incarcerat ed for

much of Neesa ' s life and was in jail on pending charges when the

trial commenced. 3 At the conclusion of a five

- day trial , the

judge issued detailed findings of fact and conclusions of law

that amply supported her finding that the f ather was currently

unfit and that Neesa ' s best interests would be served by a

decree terminating the f ather ' s parental rights. Because we

conclude that the decree must be vacated , we need not recite

those findings here. It suffices to note that the judge was

3 The f ather did not sign Neesa ' s birth certificate when she was born and was not recognized as her legal father until he took a paternity test f ollowing Neesa ' s removal from the

m other ' s custody.3

pres ented with substantial evidence of the f ather ' s unfitness ,

and , in fact , he does not argue otherwise. To the contrary , the

f ather acknowledged at trial that he was not then ready to

assume custody of Neesa

. 4 He was in jail , and even though he was

confident that he would soon be released , he had no firm

prospects for employment or stable housing . In recognition of

his inability to care for Neesa in the immediate future , he

proposed that Neesa be placed with h is mother (pater nal

grandmother) . However , neither he nor counsel had contacted the

paternal grandmother prior to trial to discuss that p roposed

plan , and she was not present at the trial

. Although the

paternal grandmother had , at one point , filed a petition for

guardia nship , the judge found that contact between Neesa and the

paternal grandmother was limited and that she had not follow ed

through with the petition . Ultimately , the judge dismissed the

guardianship petition and concluded DCF ' s proposed permanency

plan of adoption with the current preadoptive family to be in

Neesa ' s best interests.

4 The f ather also acknowledged that it would be difficult for Neesa to leave her preadoptive family and that Neesa would need time to adjust to a permanent change in custody

. There was no dispute that by the time of trial Neesa had developed a close bond with her preadoptive family. DC F ' s bonding and attachment expert witness , Dr. Rachmaciej , testified that he conducted an assessment of Neesa with her preadoptive family and opined that if Neesa were to b e removed from that home , she would likely suffer psychological stre ss and harm.4

W e now turn to the facts that are relevant to the f ather ' s

claim that counsel did not provide hi m with effective

assistance. A week prior to tr ial , on May 1 6 , 2022 , cou nsel

filed an emergency motion to continu e the trial or , in the

alternative , to appoint sub stitute counsel

. The motion was

heard the day before trial commenced. At that time , counsel

explained that she had just finished a year

- long trial and was

withdraw ing from all of her care and protection cases. She

acknowledge d that she had not spoken with the f ather for the

prior three months and was no t prepared to go forward. Counsel

further explained that , given this lack of cont ac t , she " was not

able to submit a pretrial final witness and exhibit list. " She

also stated that there were a few other witness es ( in addition

to the paternal grandmother ) that the f ather wanted to call to

testify on his behalf. Thereafter , it came to light that

counsel had not appeared for trial on a prior scheduled trial

date and had not been present at the fi nal pretrial conference.

The f ather was present at the hearing , and he addressed the

judge directly. He stated that he was unaware that a trial date

had been scheduled a nd joined in counsel ' s request for

additional time so that he could " get all [his] ducks in a row

to handle this properly ." He further indicated that he had5

witnesse s that he wanted to testify on his behalf

. 5 In response

to the judge ' s questions as to why he had not yet contacted

these witnesses , the f ather explained th at he did not have

access to his cell phone while in jail and therefore could not

contact an y family mem bers. He then informed the judge that he

believed he would remai n incarcerated for " no more than [sixty]

days , [at] the most ," and was asking for a short continuance

. 6

On the second day of trial , counsel renewed her motion to

withdraw based on a breakdown in the attorney

- client

relationship. Th at the f ather and counsel ' s relationship was in

jeopardy became evident when , at a later point in the trial , the

f ather told the judge that he believed counsel ' s feeling s toward

her own father had a deleterious effect o n the attorney

- client

relationship. Then , on the last day of trial , counsel raised

the issue of her motion to withdraw again. This time , counsel

expressed concern that the f ather did not believe he was

receiving adequate representation. Counsel also requested

permission for the f ather to present his own clo sing a rgument so

that " he feels he ' s being effectively represented or something

5 U ltimately , the f ather did not call any witnesses

.

6 According to the f ather , he was due to appear in the District Court on one of the two matters for which he was being held within a few days. The record is not clear if this happened or whether the cases were resolved.6

of that nature should he want to testify or give his own closing

argument. " The judge denied the request but stated that she

would permit the f ather to address the court if there was

something he wanted to bring to her attention after counsel

presented a closing argument on his behalf. 7

Discussion

. " On the question of ineffective assistance of

counsel , [f]irst , we look to determine whether the behavior of

counsel [fell ] measurably below that which might be expected

from an ordinary fallible lawyer and , if so , we further inquire

whether [counsel ' s conduct] has likely deprived the defendant of

an otherwise available , substantial ground of defence

. Under

the second prong , prejudice must be shown; prejudice is not

shown if there is overwhelming evidence of unfitness

. "

( Quotations and citation s omitted). Adoption of Azziza , 77

Mass. App. Ct. 363 , 368 (2010).

There is no question that counsel ' s failure to contact the

f ather prior to trial amounts to conduct falling measurably

below that which might be expected from an ordinary fallible

lawyer. Indeed , c ounsel recognized her failure and , inferably ,
requested a continuance in order to rectify that failure. At

the same time , we recognize that the judge , knowing that the

7 The judge ' s willingness to accommodate the f ather in this manner was typical of the co urtesy she extended to him throughout the trial.7

case had already been continued once and that Neesa was

deserving of permanency , was appropriately concerned about a

further delay . Nonetheless , because th e f ather was entitled to

consult with counsel and develop a strategy before the first day

of trial , a short continuance would have been the best path

forward. 8

As to the second prong , DCF and Neesa argue that the f ather

has failed to demonstrate prejudic e

. They contend that the

evidence of the f ather ' s unfitness was so overwhelming that no

lawyer could have accomplished more for him. 9 Given the f ather ' s

criminal history , which included violence against women , his

alcohol abuse , and Neesa ' s fear of him stemming from an incident

when she saw him assault her mother , we have no doubt that the

evidence as presented warranted a finding of unfitness. But

that is not the only consideration . T his is not a case in which

inadequate pretrial preparation was r epaired by competent

representation during the proceeding trial. See Commonwealth v.

Saferian , 366 Mass. 89 , 97

– 98 (1974) (inadequate pretrial

8 In reaching this conclusion , we recognize that the judge was placed in a difficult position. Indeed , although DCF was not initially opposed to a continuance , when the parties discussed the matter , it bec ame clear that the court calendar could not easily accommodate one.

9 At oral argument , counsel for Neesa suggested that not

even " Clarence Darrow " could have accomplished more for the f ather.8

preparation not prejudicial after court concluded " [i]t is hard

to believe that in the end [after two

- day trial] any aspect of

the matter plausibly helpful to the defendant was ignored or

skimped " ). In sum , the record fails to disclose whether

adequate preparation or performance during trial could have

revealed any material fact or defense so as to sufficiently

diminish the impact of the f ather ' s shortcomings. B ecause the

f ather was entitled to competent representation to assist him in

presenting his case , a new trial is warranted. Accordingly, we

vac ate the decree and remand the matter for further proceedings.

So ordered

.
By the Court (Vuono , Rubin & Smyth , JJ. 10 ) ,

Assistant Clerk

Entered: May 21 , 2024.

10 The panelists are listed in order of seniority.