Petition filed in the Suffolk County Division of the Juvenile Court Department on July 20, 2021.

      The case was heard by Maura Hardiman, J.

      Garry M. O'Brien for the mother.

      Mirna Diaz for the child.

      Julia M. Healy, Committee for Public Counsel Services, for the father.

      Lynne M. Murphy for Department of Children and Families.

      GREEN, C.J.  On appeal from a judgment issued by a judge of the Juvenile Court finding the mother unfit to parent her son, Ollie, and awarding permanent custody to the child's father, the mother contends, inter alia, that the judge erred in declining to appoint successor counsel upon the withdrawal of her fourth court-appointed attorney, with the consequence that the mother did not have counsel to represent her during the trial.  We agree with the mother that the manner in which the judge proceeded failed to satisfy the procedural requirements for waiver of the right to counsel by conduct, and vacate the judgment.[2]

      Background.  We summarize the factual and procedural history relevant to the mother's claim concerning her right to counsel.  On July 20, 2021, the Department of Children and Families (department) filed a care and protection petition on behalf of the child pursuant to G. L. c. 119, § 24, and was granted emergency temporary custody of him.  Counsel was appointed to represent the mother on July 20, 2021.  Approximately three weeks later, on August 11, 2021, the attorney filed a motion to withdraw as counsel for the mother.  The mother confirmed that she wanted a new attorney, stating that the current attorney had not done "everything that [the mother] requested her to do," did not present "everything" to the judge, and had been "very nasty."  The motion to withdraw was allowed by the judge on September 14, 2021, and a second attorney was appointed to represent the mother. 

      After just over a month, on October 19, 2021, the second attorney filed a motion to withdraw, which was heard by the judge on November 10, 2021.  While the mother claimed that she had not asked the second attorney to withdraw, she complained that he was "not doing [his] job," "not doing [her] paperwork," and not filing "motions that [she had] request[ed]."  The judge told the mother that she had been assigned two attorneys and stated that "a limited [number] of attorneys" were available to represent her.  The judge allowed the motion to withdraw and encouraged the mother to "try to work with [her] attorney." 

      A third attorney was then assigned to represent the mother.  On February 7, 2022, that attorney filed a motion to withdraw, which was heard and allowed by the judge on February 10, 2022.  At the hearing, the mother confirmed that she had asked the attorney to withdraw, stating that she "want[ed] the case done properly," and that the attorney had failed to file the motions the mother had requested.  The judge told the mother that she had been assigned three attorneys and reiterated that there was not an "endless supply of attorneys" available for appointment as her counsel.  The judge told the mother that she would be appointed "one more attorney," and once again encouraged her to work with her assigned counsel.[3]

      On February 10, 2022, a fourth attorney was appointed to represent the mother.  One week later, on February 17, 2022, that attorney filed a motion to withdraw and to proceed as the mother's standby counsel.  The attorney stated that there had been a "breakdown in communication" with the mother, despite counsel's numerous attempts to "rehabilitate" the relationship.  The mother accused the attorney of refusing to file the motions the mother requested, and characterized all of her previously appointed attorneys as "nasty" for failing to comply with her requests.  After reiterating the dates and names of the attorneys assigned to represent the mother to that juncture, the judge stated that a pattern had developed, that the mother had refused to work cooperatively with her attorneys, and that a fifth attorney would not be appointed to represent her.  The fourth attorney was allowed to proceed as standby counsel.[4] 

      On March 24, 2022, the attorney filed the first of four motions to withdraw as standby counsel.  The mother confirmed that she was seeking to remove her fourth attorney.[5]  The judge denied the motion to allow the attorney to withdraw as standby counsel, but reminded the mother that she had been assigned four attorneys and that each time motions to withdraw had been filed due to difficulty with communication with her.

      Beginning on April 28, 2022, and continuing on eleven separate occasions through October 3, 2022, the mother (acting without counsel) filed forty-nine motions directed to various topics, including multiple requests for the appointment of successor counsel (and to replace her fourth attorney as standby counsel).  All of the mother's requests for appointment of new counsel were denied, as were substantially all of her other requests.

      On October 19, 2022, the judge heard the attorney's fourth motion to withdraw as standby counsel.  The attorney stated that the mother had requested that she withdraw from the case "a number of times" and that a conflict had arisen.  The mother confirmed that she asked the attorney to withdraw because she was "not following procedure" and "not doing [the mother's] case."  The judge once again reiterated the dates and names of the attorneys assigned to represent the mother and reminded her that she had been warned that she would not be appointed a fifth attorney.  The judge concluded that the mother had exhibited a pattern of refusing to work cooperatively with her attorneys, while noting that counsel "cannot file frivolous motions."  The judge allowed the fourth attorney's motion to withdraw as standby counsel, and denied the mother's request for the appointment of successor counsel.  Trial commenced on October 19, 2022, following the withdrawal of the fourth attorney as standby counsel, and the mother participated in the trial without the assistance of counsel.  Trial resulted in a judgment finding the mother unfit and awarding permanent custody of the child to the father.

      Discussion.  "An indigent parent in a G. L. c. 210, § 3, proceeding has a constitutional right to counsel."  Adoption of William, 38 Mass. App. Ct. 661, 663 (1995).  Because the "loss of a child may be as onerous a penalty as the deprivation of the parents' freedom," Custody of a Minor (No. 1), 377 Mass. 876, 884 (1979), courts have looked to the criminal law in deciding issues of individual rights in care and protection cases, including the right to counsel.  See Adoption of William, supra.  "As in a criminal proceeding, however, a parent may waive the right to counsel either explicitly, or, as here, through conduct" (citation omitted).  Adoption of Raissa, 93 Mass. App. Ct. 447, 452 (2018).  See Commonwealth v. Means, 454 Mass. 81, 89-92 (2009); Commonwealth v. Babb, 416 Mass. 732, 735 (1994) (defendant's refusal to proceed with appointed counsel without good cause constitutes abandonment).

      Waiver by conduct may occur where a party engages in misconduct after having been warned by the judge that such behavior will result in the loss of the right to counsel.  See Commonwealth v. Gibson, 474 Mass. 726, 741 (2016).  "The key to waiver by conduct is misconduct occurring after an express warning has been given to the [parent] about the [parent's] behavior and the consequences of proceeding without counsel."  Means, 454 Mass. at 91.  "The waiver by conduct doctrine requires that the judge must first conduct a colloquy with the defendant warning the defendant of the consequence that he or she may lose the right to counsel if he or she engages in abusive conduct . . . toward the attorney.  If the defendant thereafter engages in the conduct about which he or she was warned, the act may be treated as 'an implied request to proceed pro se and, thus, as a waiver of the right to counsel'" (footnote omitted).  Gibson, supra, quoting Means, supra.  Because of the fundamental nature of the right to counsel, any waiver of the right must be knowing and voluntary, with full understanding of its implications, and the person making the waiver must be competent to make it.  See Commonwealth v. Haltiwanger, 99 Mass. App. Ct. 543, 555 (2021).

      "The key to waiver by conduct is misconduct occurring after an express warning has been given to the [parent] about the [parent's] behavior and the consequences of proceeding without counsel."  Adoption of Raissa, 93 Mass. App. Ct. at 452, quoting Means, 454 Mass. at 91.  In order to be satisfied that a waiver of counsel is knowing and voluntary, "[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-representation.'"  Adoption of William, 38 Mass. App. Ct. at 665, quoting Commonwealth v. Barnes, 399 Mass. 385, 391 (1987).  See Commonwealth v. Barros, 494 Mass. 100, ____ (2024).  We review the judge's determination of waiver of counsel de novo.  See Means, supra at 88.

      We have serious concern whether the warnings the judge gave the mother were adequate to alert her that she would waive her right to counsel if she was unable to work effectively with her fourth attorney.  The closest to such a warning came at the hearing held on February 10, 2022, when the judge appointed the fourth attorney and told the mother that she was being appointed "one more attorney" and encouraged her to work with that attorney.  That encouragement, however, fell short of the "express warning" called for by Means, 454 Mass. at 91-92, and required in Adoption of Raissa, 93 Mass. App. Ct. at 452-453, before loss of the right to counsel.  Though the judge admonished the mother in increasingly explicit terms thereafter, in response to the mother's repeated subsequent attempts to have counsel appointed, the warning administered incident to the appointment of the mother's fourth and final attorney did not make clear that an inability to work with that attorney would result in the permanent loss of counsel.

      Whatever question there may be about the adequacy of the warning is immaterial, however, because the record contains no colloquy by the judge explaining to the mother the significance of such a waiver, or the difficulties of proceeding without counsel.  Such a colloquy is a required element of the warning that continued misconduct will result in a waiver of the right to counsel.  See Means, 454 Mass. at 91-92; Adoption of Raissa, 93 Mass. App. Ct. at 452.[6]  See also Barros, 494 Mass. at ____.

      We conclude that the allowance of the motion of the mother's fourth and final court-appointed attorney to withdraw, without appointment of successor counsel, was error, necessitating a new trial.  See Adoption of Rory, 80 Mass. App. Ct. 454, 458 (2011).  We are mindful of the frustration inherent with repeated refusal by a party to cooperate with court-appointed counsel, including the resulting delays in the orderly progress of the case toward resolution.  But such frustration, or even a well-founded belief that a party appears unlikely to be able to work effectively with any counsel that may be appointed to represent that party, cannot be substituted for the procedural safeguards required prior to finding a waiver of the right to counsel by conduct.

      The judgment is vacated, and the matter is remanded for further proceedings consistent with this opinion.

So ordered.

footnotes

[1] A pseudonym. 

[2] Because we conclude that the judgment cannot stand, we need not address the mother's other claims of error.

[3] The specific exchange, in relevant part, is as follows.

The judge:  "You have been appointed three attorneys so far.  We do not have an endless supply of attorneys.  You are entitled to have an attorney to be appointed to you; however, that does not mean you get to have continuous attorneys appointed to you."

The mother:  "So what you're saying --"

The judge:  "Miss.  Miss."

The mother:  "All right.

The judge:  "I am not done speaking."

The mother:  "I want to be able to speak."

The judge:  "What I'm saying is I will appoint one more attorney for you."

The mother:  "Uh-huh."

The judge:  "I suggest that you work with this attorney so that you can have legal representation from somebody who has been trained in this very specialized area of law.  So I will grant your motion to have [your third attorney] withdrawn."

The mother:  "Uh-huh."

The judge:  "And I will appoint another attorney for you."

The mother:  "Now, as far as that goes, are you going to withdraw?  Because I also put paperwork to have him to have you withdraw because you didn't address the situation when I told you the social worker lied at [seventy-two] hours.

"I understand what you're saying about the attorneys but I'm the mother and they're not putting in the motions that I'm requesting.  I'm not sitting here playing the game with no courts about my son.  He's my son.  Put in the request as an attorney.  Appoint me the right attorney that's going to do their job because I'm out in the community knowing what they're supposed to be doing; they're not doing it.  They're complaints.  I have good reasons for it.  You're not representing me.  You're repres -- you're going against me.  And I need my son back."

The judge:  "Okay.  So with respect to your motion, your motion is a motion for me to recuse.  What I will do is I will take that under advisement.  I will give you an answer at a later date.  But for today's purposes, I will proceed as the judge over this case.  So we are scheduled for a pretrial conference.  I will hear from the [d]epartment."

[4] The first of several motions filed by the mother seeking the recusal of the judge was docketed on March 15, 2022; that motion was denied.  That same day, the mother sought relief from the denial of her recusal motion, pursuant to G. L. c. 231, § 118.  On March 25, 2022, the single justice denied the mother's request for relief.

[5] The mother explained that she did not wish the attorney to continue as standby counsel because she had not filed the motions the mother had requested and had not obtained transcripts of the seventy-two hour hearing.  At a subsequent hearing, the mother also accused the attorney of lying.

[6] We note that, at least by the time of trial, after having attempted to represent herself through a number of motions, the mother appears to have recognized that she was ill-equipped to proceed to trial without the assistance of counsel, expressing at the commencement of the trial on October 19, 2022, her concern upon the allowance of her fourth attorney's motion to withdraw as standby counsel that "I can't do my own case," and, "I don't have the legal transcripts that I need . . . .  I don't have the legal ability to have my investigative report. . . .  I don't even have a [department] file. . . .  I can't even be my own attorney."