A.M. v. B.G. (And a Consolidated Case). ( 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-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.
8