N.C. v. A.B.

• Court: Massachusetts Appeals Court
• Decided: November 15, 2023
• Docket: 23-P-0232
• Status: Unpublished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-232 23-P-233

N.C.

vs.

A.B.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, A.B., appeals from orders entered on

December 6, 2023, denying his motion to vacate two permanent

abuse prevention orders. See G. L. c. 209A. The two orders

concern the defendant's sisters, F.B. and L.B. (the sisters),

and were obtained on the sisters' behalf by their uncle, N.C.,

who was appointed their guardian in 2017. The defendant

advances several arguments in support of his claim that the

motion should have been allowed. However, the defendant, who,

as the appellant, has the responsibility of providing us with an

adequate record, 1 failed to submit the transcripts necessary to

decide the issues raised in his brief. He has also failed to

1 See Mass. R. A. P. 18 (a), (b) (4), as appearing in 481 Mass. 1637 (2019) and in 491 Mass. 1603 (2023). provide us with copies of motions, affidavits, and other court

filings that are essential for review of the issues. As we

discuss below, given the inadequacy of the record, we are

precluded from considering the merits of the defendant's

arguments. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84

(1995).

Background. The following facts and procedural history are

gleaned from the docket entries and the parties' briefs. N.C.

filed ex parte applications for abuse prevention orders pursuant

to G. L. c. 209A on February 11, 2022. The ex parte orders were

entered soon thereafter and, following a hearing at which the

defendant did not appear, the orders were extended for one year.

The defendant did not appeal. Instead, on March 24, 2022 and

March 28, 2022, he filed motions to vacate. The motions were

not acted upon because the defendant did not appear at the

hearing. The defendant then filed two additional motions to

vacate; the first on September 29, 2022, and the second on

October 31, 2022. Following a hearing, at which the defendant

was present, the motions were denied and, at the same time, the

abuse prevention orders were made permanent. Once again, the

defendant did not appeal. Rather, on November 15, 2022, he

filed another motion to vacate, which was denied on November 29,

2022. On the following day, the defendant filed yet another

motion to vacate. That motion was denied on December 6, 2022,

2 and orders entered on both dockets. The defendant has appealed

the December 6, 2022 orders.

The sisters are developmentally disabled adult individuals,

who, along with their mother, were in the defendant's care for

many years. N.C. asserts that during that time both sisters

were subjected to ongoing abuse and neglect. One sister was

hospitalized, and the mother died as a result of the defendant's

conduct. In 2016, the defendant was charged with multiple

criminal offenses related to the abuse of his sisters and mother

and a year later, in 2017, he was convicted of manslaughter in

connection with his mother's death. The defendant was

incarcerated and released in August 2022. Upon learning of the

defendant's release, N.C., in his capacity as guardian, sought

an abuse prevention order on behalf of each sister.

Discussion. Relying on Idris I. v. Hazel H., 100 Mass.

App. Ct. 784 (2022), the defendant's primary argument is that he

was not afforded a meaningful opportunity to be heard in

connection with the issuance of the abuse prevention orders or

subsequent modifications. He first claims that the judge did

not "habe" him into court for the initial extension hearing

despite knowing that he was incarcerated at the time. Although

the defendant was present at the hearing when the orders at

issue were made permanent, he asserts that he was not permitted

to introduce evidence or cross-examine witnesses. He further

3 asserts that his attempts to obtain portions of the record were

stymied by the court clerk who allegedly initially refused to

provide him with copies of the dockets. With regard to the

absence of transcripts of the hearings, the defendant points to

the failure of the court to provide them as he had requested.

The defendant also suggests that the various judges improperly

declined to consider relevant evidence and he implies that the

ex parte applications contained false information.

Although it appears that the defendant did in fact request

transcripts of the various hearings, it is not clear that he

followed the proper procedure to obtain them 2 and, as noted, none

have been included in the record before us. Furthermore,

neither the ex parte applications, affidavits, nor any other

materials that N.C. may have presented in support of his

requests for abuse prevention orders and for modifications are

included in the appendix. 3 In short, as a result of the

defendant's utter failure to comply with the requirements of our

appellate rules, see Mass. R. A. P. 18 (b) (4), as appearing in

481 Mass. 1637 (2019) ("it may be necessary for the party filing

2 See Order a court proceeding transcript, https://www.mass.gov/how-to/order-a-court-proceeding-transcript. 3 Aside from copies of the defendant's several motions to vacate

and copies of the relevant orders themselves, most of the appendix seems to consist of materials related to an entirely different case in the Hampden Superior Court and various other proceedings therein.

4 the appendix to reproduce the entire transcript of the relevant

lower court proceedings. Failure to reproduce the entire

transcript may result in waiver of the issue"), he has waived

all issues raised in his appeal. See Johnson v. Christ Apostle

Church, Mt. Bethel, 96 Mass. App. Ct. 699, 701 n.4 (2019).

Orders entered December 6, 2022, denying motions to vacate affirmed.

By the Court (Vuono, Singh & Englander, JJ. 4),

Clerk

Entered: November 15, 2023.

4 The panelists are listed in order of seniority.