A.R. v. J.E.F.-r. ( 2024 )

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.
9