A.M. v. B.G. (And a Consolidated Case).

• Court: Massachusetts Appeals Court
• Decided: October 17, 2024
• Docket: 23-P-1328
• Status: Unpublished

Opinion

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-1328

A.M.

vs.

B.G. (and a consolidated case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a hearing, a judge of the District Court extended

abuse prevention orders obtained by the plaintiff pursuant to

G. L. c. 209A that prohibited the defendant from abusing his

minor children and ordered the defendant to stay away and have

no contact with them. In this consolidated appeal, the

defendant claims that the judge erred in failing to modify the

no contact provision of the orders and, alternatively, in

finding that the plaintiff presented sufficient evidence to

support the extension orders. Finding no error, we affirm.

Background. On July 20, 2020, the plaintiff, the

Department of Children and Families (department), filed separate

1 A.M. vs. B.G. complaints seeking a restraining order on behalf of two minor

children in its custody against the children's father, the

defendant.2 The plaintiff's supporting affidavit stated that the

defendant's two children, whom we will call Tom and Sally, were

in the department's temporary custody while living with the

maternal grandmother and were in fear of the defendant. The

affiant, the department's social worker assigned to the

children's case (ongoing worker), reported that the children's

mother was hospitalized due to domestic violence committed by

the defendant. After the domestic violence incident, the

defendant entered a detoxification program but checked himself

out of the program after two days. He then stalked a family

member he believed the children's mother was living with. The

defendant drove to the maternal grandmother's home and stared at

the children, causing Tom to immediately run inside the home and

make sure all the doors and windows were locked. Tom then

defecated himself seven times that day. A judge of the District

Court granted an ex parte restraining order for each child,

which included a no contact provision. The orders were extended

on August 31, 2021, and again on August 30, 2022.

2 On November 19, 2019, as a result of filing a petition under G. L. c. 119 § 24, the department was granted temporary custody of the children.

2 On August 30, 2023, a judge of the District Court conducted

a hearing on the restraining order extension requests and the

defendant's request to modify the conditions relating to

contacting the children. At the time of this hearing, because

Tom was eight years old and Sally was four years old, the judge

deemed the ongoing worker the plaintiff. All parties were

represented by counsel except for the children's mother, who by

then was deceased from a cause unknown. The plaintiff and the

children called three witnesses: the ongoing worker, the

maternal grandmother, and a psychiatric nurse. The defendant

made an offer of proof that his therapist would testify about

the defendant's progress in treatment if allowed. The judge

ruled that the therapist's testimony would be irrelevant to his

determination whether the children's fear was reasonable and did

not allow that witness to testify. The defendant did not seek

to admit any documentary evidence regarding his treatment for

anger management, parenting, or domestic violence. After a full

hearing, the judge extended the restraining orders for a one-

year term and denied the defendant's request to modify the no

contact provision. This appeal followed.

Discussion. "The inquiry at an extension hearing is

whether the plaintiff has shown by a preponderance of the

evidence that an extension of the order is necessary to protect

[them] from the likelihood of 'abuse' as defined by G. L.

3 c. 209A, § 1." Iamele v. Asselin, 444 Mass. 734, 739 (2009). A

judge is to examine the totality of the circumstances of the

parties' relationship, including the basis for the initial order

as well as any changes in the relationship since the initial

order. Id. at 740-741.

We review the grant of an extension of a c. 209A order "for

an abuse of discretion or other error of law." See Laytoya L.

v. Kai K., 104 Mass. App. Ct. 173, 177 (2024). See also Idris

I. v. Hazel H., 100 Mass. App. Ct. 784,787 (2022).

Here, although the children did not testify, the judge

heard unrebutted evidence that they remained fearful of the

defendant. A review of the hearing testimony along with the

affidavit submitted in support of the ex parte restraining

orders reveals that when Tom was four years old, his mother was

hospitalized due to domestic abuse committed by the defendant.

Tom suffers from posttraumatic stress disorder (PTSD), is

hypervigilant, is anxious, and suffers from nightmares. As Tom

grew older, he was better able to verbalize the abuse he

suffered by the defendant. Tom's clinician reported that since

being removed from his home in 2019, Tom expressed to many

people that he feared the defendant would kill his mother. On

one occasion, Tom experienced an extreme reaction when he saw a

metal nail file, and disclosed to his therapist that when he was

four years old, he had touched something similar of the

4 defendant's. As punishment, the defendant stripped Tom naked,

put him in the bathtub, poured water over him until he couldn't

breathe, and in Tom's words, "my dada tried to drown me." Tom

also told his therapist that he feared the defendant would kill

his mother, and that he heard a voice resembling the defendant's

voice in his head telling Tom that he was a "bad kid" who failed

to protect his mother.

Testimony also established that Tom becomes agitated when

thinking about the defendant, experiences nightmares and

difficulty sleeping, and has a bedtime routine to ensure that

the windows and doors are locked so that the defendant cannot

enter the home and hurt him or Sally.3 Tom also displays other

behaviors indicative of fear including generalized anxiety,

overeating, defecating in his pants, and difficulty

concentrating in school. The defendant acknowledged to the

department that the children feared him, and in the past, the

maternal grandmother witnessed the defendant hit Tom.4

3 The grandmother testified to the nighttime routine that Tom requires, which includes going from room to room including the basement to make sure all doors and windows are locked. Tom "takes one of my kitchen chairs, and he secures it underneath the door handle" of the sliding glass door to make sure that the defendant cannot enter the home. Tom also reposts the c. 209A order on the door for the police to see if they need to be called to the home.

4 Sally, who was ten months old when the department took custody, has no memory of the defendant. Sally is exposed to

5 Here, based on the totality of the circumstances, and

considering the basis for the initial abuse prevention orders,

the judge properly exercised his discretion in extending the

orders for a one-year period without modification. At the

hearing, the judge reviewed the court filings by both parties,

heard testimony from the three witnesses, as well as arguments

by counsel. The judge was warranted in finding, again based on

unrebutted evidence, that Tom had been physically abused by the

defendant in the past and that his ongoing fear was objectively

reasonable. The evidence included numerous instances in which

Tom was overcome and crippled with fear at the thought of the

defendant and told several people that he feared the defendant

would kill his mother. The defendant had committed violence

against the mother and Tom by waterboarding him when he was four

years old. The judge also heard unrebutted evidence from the

maternal grandmother, who testified that she had witnessed the

defendant abuse Tom in the past and that she believed both

children were fearful of the defendant. In this case, the judge

acted within his discretion in crediting the testimony of the

maternal grandmother about the children's fear. See Noelle N.

v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020). The judge

certainly could consider the fact that the defendant had

Tom's PTSD, which is exacerbated when the defendant is mentioned.

6 attended certain programs addressing domestic violence and

substance use. The judge was not required, however, to agree

with the defendant's contention that he no longer posed a risk

to the children or that the children's fear was not reasonable.

See Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014)

(judge could "reasonably conclude that there is a continued need

for the order because the damage resulting from that physical

harm affects the victim even when further physical attack is not

reasonably imminent"). Further, based on the evidence presented

at the extension hearing, we find no abuse of discretion in the

judge's finding that Sally had an objectively reasonable fear of

serious bodily harm by the defendant. A person seeking the

protection of a c. 209A order need not show that there was a

specific incident of physical violence -- only that the fear of

serious imminent harm is objectively reasonable. Noelle N.,

supra.

To the extent that the defendant claims that the judge

erred by failing to modify the restraining orders to allow the

defendant to contact the children in accordance with an order of

the Juvenile Court as it relates to visitation, we are

unpersuaded. As noted above, the defendant failed to offer any

evidence to rebut the evidence that the children continued to

have an objectively reasonable fear of imminent serious physical

harm. The primary purpose of a restraining order is to protect

7 a party from harm or the fear of imminent serious harm. See

Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 773-774 (2005).

Here, based on the undisputed facts, the judge did not err in

denying the motion to modify the no contact provision of the

orders.5

Extension orders dated August 31, 2023, affirmed.

By the Court (Blake, Walsh & Hodgens, JJ.6),

Clerk

Entered: October 17, 2024.

5 To the extent that the defendant argues that the District Court and Juvenile Court proceedings could result in inconsistent orders, we further note that the defendant never petitioned the judge of the Juvenile Court that the case be interdepartmentally assigned to the Juvenile Court under G. L. c. 211B, § 9 (xi).

6 The panelists are listed in order of seniority.