In re Noreen

• Decision Date: 16 July 2021
• Docket Number: 20-P-1260
• Citation: 100 Mass.App.Ct. 1102,170 N.E.3d 727 (Table)
• Parties: ADOPTION OF NOREEN.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1102

170 N.E.3d 727 (Table)

ADOPTION OF NOREEN.¹

20-P-1260

Appeals Court of Massachusetts.

Entered: July 16, 2021.

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 father's parental rights, and approved the adoption plan submitted by the Department of Children and Families (department).³ 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 father's 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 mother's 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 Noreen's life prior to her removal from the mother's care in May of 2017. At that point, Noreen was placed with the same foster parents with whom she currently resides. After Noreen's 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 investigator's 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 Noreen's 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 judge's decision to leave posttermination visitation to discretion of child's preadoptive parents where there was no reason to question they would act in child's 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 child's 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 orders⁴ 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,⁵ he has presented at least some reason to doubt the accuracy of the judge's 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 judge's finding.

In the end, we need not resolve this factual dispute, because the accuracy of the department's 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...