MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This care and protection case involves the welfare of a girl to whom we refer as Noreen (born in 2010). After trial, a Juvenile Court judge found Noreen in need of care and protection, determined the father to be unfit, terminated the fathers parental rights, and approved the adoption plan submitted by the Department of Children and Families (department).
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On appeal, the father challenges none of those rulings, and argues instead only that the judge erred by not mandating posttermination and postadoption visitation. The father never pressed the visitation issue at trial and quite arguably has waived it. See Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005) (issue of visitation deemed waived by parent when not raised at trial). In any event, discerning no merit in the fathers claim that the judge erred by not mandating visitation, we affirm the decree.
Background. In 2017, Noreen lived with her mother and her then fourteen year old half-sister Bethany (a pseudonym). The mother and father were not married, and the father maintained a separate household with his wife and their three children. On May 30, 2017, the department removed Noreen and Bethany from the mothers care after receiving reports that the mother was neglecting and abusing both children, including by sexually exploiting Bethany. On September 22, 2017, the father was charged with various sexual offenses involving Bethany, including one count of aggravated rape of a child. Roughly two years later, the father pleaded guilty to the rape and sex trafficking of Bethany. He was sentenced to a five-year prison term, and he remains incarcerated. When he is released, the father faces likely deportation to his native El Salvador.
It is not clear how active a role the father played in Noreens life prior to her removal from the mothers care in May of 2017. At that point, Noreen was placed with the same foster parents with whom she currently resides. After Noreens removal in May of 2017, the department provided the father weekly supervised visits for the next few months. However, once the father was charged with raping Bethany (September of 2017), the department terminated visitation between him and Noreen. The judge found that the department terminated such visits after “a stay away, no contact order issued against both parents on behalf of [Noreen].” The father has not had any contact with Noreen since his September 2017 indictment, and the judge found that by the time of trial in December of 2019, the father had “no relationship” with Noreen. The father does not challenge that finding. Moreover, by the time of trial, Noreen was “happy and healthy” with her foster parents, who plan to adopt her. According to a court investigators report, she refers to her foster parents as “mami” and “papi,” and thinks of their daughter as her sister.
Discussion. At least by the time of trial, there was no appreciable bond between the father and Noreen. Nor was there any evidence that Noreens preadoptive parents will not act in her best interests. Under these circumstances, the judge acted well within his considerable discretion in not mandating visitation. See Adoption of Ilona, 459 Mass. 53, 66 (2011) (upholding judges decision to leave posttermination visitation to discretion of childs preadoptive parents where there was no reason to question they would act in childs best interests). The circumstances present here bear no resemblance to those of cases in which mandated posttermination visitation is deemed warranted. See Adoption of Vito, 431 Mass. 550, 563 (2000) (visitation may be appropriate “where the evidence readily points to significant, existing bonds between the child and a biological parent, such that a court order abruptly disrupting that relationship would run counter to the childs best interests”).
The father counters that a bond might have existed between him and Noreen if the department had not terminated visitation when he was indicted on the charge of raping Bethany. He acknowledges that the department took this action believing that a stay-away order prohibited his contact with both Noreen and Bethany, but he argues that in fact there was no such order. According to him, the applicable orders
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prohibit his contact only with Bethany. The father bases this factual claim in part on the docket in the criminal case, of which he implicitly asks us to take judicial notice. If the father is correct that we could in this context take judicial notice of the docket in the criminal case,
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he has presented at least some reason to doubt the accuracy of the judges finding that there was a stay-away order in place that prohibited any contact between the father and Noreen. Without directly addressing the propriety of our taking judicial notice of the criminal docket, the department argues that the father did not direct the attention of the trial judge to that evidence and that, if our focus is confined to the trial record, there is ample support for the judges finding.
In the end, we need not resolve this factual dispute, because the accuracy of the departments good-faith belief that a stay-away order prevented contact between the father and Noreen is immaterial. Even if the order in the criminal case did not directly bar visitation between the father and Noreen, it hardly follows that such visitation would have been appropriate once the father had been indicted for raping her half-sister. Moreover, the father did not challenge the pretrial termination of his visitation rights in a timely manner, and that issue therefore was waived. See Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011) (“It is well-established that a parent must raise a claim of inadequate services in a timely manner”). Even if the issue had not been waived, we would conclude that there was no error in the judges discretionary decision not to mandate posttermination visitation regardless of whether there was an existing stay-away order in place in September of 2017 when visitation between the father and Noreen was terminated.
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The father also presents a second theory as to why mandatory visitation was warranted. This theory is based on the fact that the mother entered into an open adoption agreement when she stipulated to termination of her rights. The father suggests that he declined such an offer in order to proceed to trial.
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He claims that the department earlier implicitly had determined that allowing posttermination visitation with her parents was in Noreens interest, and now is “penalizing” him for taking the case to trial. This, according to the father, somehow constitutes a due process violation.
We are unpersuaded. As an initial matter, we note that the judge did not prohibit posttermination or postadoption visitation, he merely left the issue to the discretion of Noreens caretakers. Whatever the departments pretrial position was with regard to the possibility of the fathers entry into an open adoption agreement with the preadoptive parents, such an agreement would have been subject to the judges review as to whether it was in Noreens best interests. And, even if the father had demonstrated that the departments position on whether posttermination visitation should take place has changed, he has not demonstrated how this constituted a violation of his due process rights. The father has identified no evidence suggesting that the department sought to penalize him for asserting his trial rights.
Decree affirmed.
FOOTNOTES
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. The mother stipulated to her unfitness as to Noreen and as to her other daughter, Noreens half-sister, and she stipulated to termination of her rights as to both children. She is not a party to this appeal. The judge initially terminated the fathers rights as to Noreen on October 30, 2019, but the following week allowed the fathers motion to reopen the evidence. Trial occurred on December 20, 2019, and that same day the judge issued a new decree terminating the fathers rights. The judge issued an initial set of findings and rulings in July of 2020, and issued revised findings on October 13, 2020.
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. Separately from the orders issued in the criminal proceedings, the department obtained a stay-away order under G. L. c. 209A, § 3, on behalf of Bethany.
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. There is at least some doubt about whether we could take judicial notice of the docket in the criminal case in light of the fact that the father never asked the trial judge to do so. Cf. Commonwealth v. Berry, 463 Mass. 800, 804 n.6 (2012) (declining to take judicial notice of document filed but not entered in evidence in trial court); Commonwealth v. Kingsbury, 378 Mass. 751, 755 (1979) (in assessing sufficiency of Commonwealths proof, appellate court cannot take judicial notice of facts even if trial court judge could have). No party has briefed this issue.
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. To be sure, the departments regulations prohibit it from ending visitation pretermination without court approval. See Adoption of Franklin, 99 Mass. App. Ct. 787, 795 (2021). In Adoption of Franklin, we ordered that the issue of posttermination visitation be remanded where the department blatantly violated those regulations, there was evidence of a continuing parental bond, the child faced dim adoption prospects, and the child strongly favored the resumption of visitation. Id. at 807. The circumstances of the case before us are markedly different.
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. It is not clear whether the father is suggesting that he in fact was provided with such an opportunity or that he deserved treatment comparable to the mother.