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-339

ADOPTION OF NEESA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father 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 father claims that his attorney (hereinafter,

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

was 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 prepared, had not 

spoken with the father 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 these 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 2018 when the 

Department of Children and Families (DCF) obtained 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 father's termination of parental rights trial. 

Neesa has never lived with the father, who was incarcerated 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 father was currently 

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

decree terminating the father'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 father 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 following Neesa's removal from the

mother's custody.
3

presented with substantial evidence of the father's unfitness,

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

father 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 his mother (paternal 

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

paternal grandmother prior to trial to discuss that proposed 

plan, and she was not present at the trial. Although the 

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

guardianship, the judge found that contact between Neesa and the 

paternal grandmother was limited and that she had not followed

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 father 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. DCF'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 be removed from that home, she would likely 

suffer psychological stress and harm.
4

We now turn to the facts that are relevant to the father's 

claim that counsel did not provide him with effective 

assistance. A week prior to trial, on May 16, 2022, counsel 

filed an emergency motion to continue the trial or, in the 

alternative, to appoint substitute 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 

withdrawing from all of her care and protection cases. She 

acknowledged that she had not spoken with the father for the 

prior three months and was not prepared to go forward. Counsel 

further explained that, given this lack of contact, she "was not 

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

also stated that there were a few other witnesses (in addition 

to the paternal grandmother) that the father 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 final pretrial conference.

The father was present at the hearing, and he addressed the 

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

had been scheduled and 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 had 
5

witnesses 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 father explained that he did not have 

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

contact any family members. He then informed the judge that he 

believed he would remain 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. That the father and counsel's relationship was in 

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

father told the judge that he believed counsel's feelings toward 

her own father had a deleterious effect on 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 father did not believe he was 

receiving adequate representation. Counsel also requested 

permission for the father to present his own closing argument so 

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

5 Ultimately, the father did not call any witnesses.

6 According to the father, 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 father 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 citations omitted). Adoption of Azziza, 77 

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

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

father prior to trial amounts to conduct falling measurably 

below that which might be expected from an ordinary fallible 

lawyer. Indeed, counsel 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 father in this 

manner was typical of the courtesy 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 the father 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 father

has failed to demonstrate prejudice. They contend that the 

evidence of the father's unfitness was so overwhelming that no 

lawyer could have accomplished more for him.9 Given the father'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. This is not a case in which 

inadequate pretrial preparation was repaired 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 became 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

father.
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 father's shortcomings. Because the

father was entitled to competent representation to assist him in 

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

vacate 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.