A.R. v. J.E.F.-r.

• Court: Massachusetts Appeals Court
• Decided: August 8, 2024
• Docket: 23-P-1125
• Status: Unpublished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-1125

A.R.

vs.

J.E.F.-R.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, on behalf of her minor daughter, appeals

from an order of a judge of the Probate and Family Court denying

her request to extend a G. L. c. 209A abuse prevention order

(209A order). She argues that the judge abused her discretion

by applying an incorrect legal standard and by relying on

extraneous factors to deny the extension. On May 7, 2024, we

issued an order reversing the order denying the plaintiff's

request and remanding for further proceedings. This memorandum

and order states the reasons for our May 7, 2024 order.2

1The defendant did not file a brief or participate in this appeal.

2We acknowledge the amicus letter submitted by the Massachusetts Law Reform Institute, Northeast Legal Aid, Greater Background. On October 17, 2022, the plaintiff applied for

a 209A order on behalf of her fourteen year old daughter, G.C.,

against the defendant. The defendant, G.C.'s ex-boyfriend, is a

sixteen year old who lives in the same town and attends the same

high school as G.C. In her affidavit, G.C. alleged that the

defendant had made repeated sexual advances towards her and

sexually assaulted her.3 After these events, the defendant began

harassing G.C. in school, following her in the hallways of their

shared high school, taunting her at her softball games, posting

"cruel and untrue" things about her on social media, and

inciting his friends to harass G.C. and her friends and to

AirDrop photos to her.4 A judge of the Probate and Family Court

granted the application ex parte. The 209A order mandated that

the defendant not contact G.C. and to stay at least five yards

away from her.

A two-party evidentiary hearing was held on October 26,

2022, after which the order was extended for eight months. A

Boston Legal Services, MetroWest Legal Service, and South Coastal Counties Legal Services.

3 The defendant was criminally charged on the basis of those allegations. At the time of the June 28, 2023, hearing, the defendant was released on bail with certain conditions imposed, including stay away and no contact orders regarding G.C.

4 AirDrop allows a person to wirelessly send photos, videos, documents, and more to other nearby devices and Mac computers. https://support.apple.com/guide/iphone/use-airdrop-to-send- items-iphcd8b9f0af/ios.

2 second extension hearing occurred on June 28, 2023. Both

parties were represented by counsel.

At the June 28 hearing, G.C. reaffirmed her testimony that

she and the defendant dated and that he sexually assaulted her.

She alleged two additional contacts while the order was in

effect. First, on January 28, 2023, G.C. received on her

Instagram account a "follow" request from an account in the

defendant's name and took a screenshot of the request.5 Second,

one day at school the defendant entered the cafeteria during

G.C.'s lunch period (the defendant had a different lunch period)

and sat down at a table. The table was more than five yards

from G.C., according to the observations of the school resource

officer. The defendant's friends began taunting G.C. and

AirDropping photos of the defendant to her.

G.C. further testified on direct examination that she

continued to suffer repercussions from the defendant sexually

5 On cross-examination, G.C. testified that the sender's account did not have a corresponding profile picture, posts, or followers that could be used to identify the account holder. The judge did not admit the photo as evidence because it was not sufficiently authenticated. See R.S. v. A.P.B., 95 Mass. App. Ct. 372, 377 (2019), quoting Commonwealth v. Purdy, 459 Mass. 442, 448 (2011) (evidence that social media account bears defendant's name is not sufficient alone to authenticate without additional confirming circumstances, as may be found by looking to the "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics").

3 assaulting her, including anxiety, panic attacks, and "PTSD" and

that she would become nauseated when she looked at her body.

She stated that she was still in fear of the defendant and that

she felt she was still in need of a 209A order. The defendant

did not testify.

After each counsel made a closing argument, the judge

stated:

"So this is a difficult case. It's a difficult case, folks, because of the youth of the parties involved. But there is a criminal case pending. He is under conditions on the criminal case. I'm not extending the order. He's under conditions on a criminal case."

The judge further admonished the defendant, telling him that he

was "well on [his] way to screwing up [his] life" and that this

was his chance "to straighten out [his] life." The judge then

"terminat[ed]" the order. Plaintiff filed a notice of appeal on

July 24, 2023.

On August 2, 2023, the judge issued findings from the June

28 hearing. Although the judge made certain credibility

findings as to G.C.'s testimony, the basis for the termination

of the 209A order was not based on these findings, but rather,

as discussed infra, on errors of law. The judge also concluded

that it was unlikely the parties would encounter each other and

that the order was "not necessary to protect [G.C.] from the

impact of the previous act of abuse," and reiterated her

4 termination of the 209A order. As explained infra, this, too,

was an improper basis upon which to terminate the order.

Discussion. "We review the extension of a c. 209A order

'for an abuse of discretion or other error of law.'" Latoya L.

v. Kai K., 104 Mass. App. Ct. 173, 177 (2024), quoting Constance

C. v. Raymond R., 101 Mass. App. Ct. 390, 394 (2022). "[W]e

will not substitute our judgment for that of the trier of fact.

We do, however, scrutinize without deference the propriety of

the legal criteria employed by the trial judge and the manner in

which those criteria were applied to the facts." Calliope C. v.

Yanni Y., 103 Mass. App. Ct. 722, 725 (2024), quoting

Commonwealth v. Boucher, 438 Mass. 274, 276 (2002).

A request to extend a 209A order pursuant to G. L. c. 209A,

§ 1 (c) is reviewed to determine whether there is a "continued

need for [the] order to protect the plaintiff from the impact of

the violence already inflicted." Callahan v. Callahan, 85 Mass.

App. Ct. 369, 374 (2014). See Yanha Y. v. Sylvester S., 97

Mass. App. Ct. 184, 187 (2020) (where "the plaintiff seeks

protection from the effects of past sexual abuse, [the

plaintiff] need not allege a fear of imminent future sexual

abuse"). See also Yasmin Y. v. Quentin Q., 101 Mass. App. Ct.

252, 257 (2022) (extension of harassment prevention order based

on prior sex offense reviewed to determine whether order will

"protect the plaintiff from the impact of the violence already

5 inflicted" [citation omitted]). In determining whether the

plaintiff has a continued need for the order, "[t]he judge must

consider the totality of the parties' relationship and the

legislative purpose of preserving 'the fundamental human right

to be protected from the devastating impact of family

violence.'" Callahan, 85 Mass. App. Ct. at 374, quoting Iamele

v. Asselin, 444 Mass. 734, 740 (2005). This includes an

assessment of the basis for the initial order, the defendant's

violations of protective orders, ongoing litigation that "is

likely to engender hostility, the parties' demeanor in court,

the likelihood that the parties will encounter one another in

the course of their usual activities," and other relevant

circumstances. Iamele, supra at 740.

The judge abused her discretion where she terminated the

209A order based on extraneous factors. At the hearing, the

judge stated that she was not extending the order because the

defendant was subject to conditions of probation. Whether a

defendant is subject to conditions of pretrial release is not an

appropriate consideration. See Vera V. v. Seymour S., 98 Mass.

App. Ct. 315, 319 (2020).6

6 We also note the existence of a complaint for delinquency against the defendant based on crimes in which G.C. is the alleged victim. The judge failed to address the existence of ongoing litigation that "is likely to engender hostility" between the parties. Iamele, 444 Mass. at 740. A.R.'s counsel

6 The judge's other comments regarding the youth of the

parties and that the defendant was "well on [his] way to

screwing up [his] life" also suggest that she was considering

the impact of the extension on the defendant's life, as opposed

to the needs of G.C. As we held recently in Calliope C., 103

Mass. App. Ct. at 725-726, a judge abuses her discretion by

considering the "lifelong adverse consequences to the defendant"

in determining whether to extend a 209A order.

In her written findings, the judge emphasized that the

defendant had not violated the order.7 General Laws c. 209A, § 3

mandates that "[t]he fact that abuse has not occurred during the

pendency of an order shall not, in itself, constitute sufficient

ground for . . . failing to extend the order." Further, a

plaintiff is not required to prove new instances of abuse where

they seek an extension under § 1 (c). Latoya L., 104 Mass. App.

Ct. at 177-178. See Yanha Y., 97 Mass. App. Ct. at 187;

Callahan, 85 Mass. App. Ct. at 374.

reports that the delinquency matter has since resolved by a plea agreement.

7 As it is unnecessary to our resolution of the case, we take no position on whether the defendant's friends' AirDropping photographs to G.C. in the cafeteria amounted to a violation of the portion of the 209A order directing the defendant not to contact G.C. "electronically or otherwise, either directly or through someone else."

7 Additionally, the judge's written findings demonstrate that

she failed to consider the fact that the initial 209A order

issued based on G.C.'s affidavit averring that in January 2022

the defendant sexually assaulted her, which at the extension

hearing the judge was required to credit. See Latoya L., 104

Mass. App. Ct. at 178; Iamele, 444 Mass. at 740 ("judge is to

consider the basis for the initial order . . . [t]his does not

mean that [the defendant] may challenge the evidence underlying

the initial order"). The judge acknowledged the parties' prior

dating relationship and the pending "Juvenile Court matter," but

not the sexual assault. If the plaintiff is suffering from the

effects of "involuntary sexual relations, G. L. c. 209A,

§ 1 (c), there is no question that an extension should be

granted." Iamele v., 444 Mass. at 740 n.3. Here, the plaintiff

stated that because of the sexual assault she continued to

suffer from anxiety, panic attacks, and "PTSD" and that she

would become nauseated when she looked at her body.

Finally, the judge abused her discretion in concluding that

"it is not likely that the parties will encounter one another in

the course of their usual activities" because they do not live

close to each other. This was not a reasonable conclusion in

light of her findings that the parties live in the same town,

attended the same high school, and the defendant showed up at

G.C.'s lunch period when he was supposed to be in class. See

8 Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015) (abuse of

discretion standard is an inquiry as to whether "the judge's

decision resulted from 'a clear error of judgment in weighing

the factors relevant to the decision . . . such that the

decision falls outside the range of reasonable alternatives'"),

quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Conclusion. Because of these errors, we issued an order on

May 7, 2024, reversing the Probate and Family Court judge's

order and remanding for a two-party hearing on the issuance of a

209A order to be scheduled within thirty days of the issuance of

the rescript. See Calliope C., 103 Mass. App. Ct. at 726. The

issuance of a further extension order shall depend on the

plaintiff's demonstration of a continued need for the order.

Id. We further directed that an ex parte 209A order enter until

such hearing is held.

So ordered.

By the Court (Henry, Grant & D'Angelo, JJ.8),

Clerk

Entered: August 8, 2024.

8 The panelists are listed in order of seniority.