DocketNumber: 18-P-630
Citation Numbers: 122 N.E.3d 1098, 94 Mass. App. Ct. 1116
Filed Date: 1/7/2019
Status: Precedential
Modified Date: 7/24/2022
The defendant appeals a District Court judge's order, entered after a hearing on December 15, 2017, extending for one year (and with one modification) an ex parte G. L. c. 209A abuse prevention order entered against him two weeks earlier. We conclude that the evidence did not support the extension order, which therefore must be vacated.
The plaintiff, L.L., is the mother of R.L., who has a child (J.M.) with the defendant. R.L. and the defendant are not married. The plaintiff's affidavit in support of her G. L. c. 209A complaint stated that on December 1, 2017, the defendant was released from serving one year of incarceration for a domestic violence offense against R.L.; the affidavit stated that this was the defendant's third offense. The Department of Children and Families (department) was involved, and L.L. was serving as a foster parent for her grandson, J.M.
The plaintiff's complaint alleged that one year earlier, in December, 2016, the defendant had placed her "in fear of imminent serious physical harm." In the accompanying affidavit, she stated that she had "previously received threatening texts and unexpected visits at [her] home," and that she feared for the safety of her family.
At the extension hearing, the plaintiff testified that the defendant had previously abused the plaintiff's daughter, and that the plaintiff feared similar abuse against her and her family. The plaintiff testified that her most recent contact with the defendant had been a year earlier, on December 8, 2016, when the defendant had texted her to say that her daughter had been missing for two days. The judge characterized this as "pretty ancient history." The defendant had also told the plaintiff at about that same time that her grandson (the defendant's son) "was going to be going away"; the plaintiff did not recall whether she had asked the defendant what he meant by "going away," but she testified that she had felt threatened by the statement. She had not sought a c. 209A order at that time because the defendant was arrested the next day for assault and battery on a household member (the plaintiff's daughter, the child's mother).
The judge nevertheless found that the plaintiff was "in fear not only for herself but for her grandchild," based on the defendant's "history of domestic violence which I can take notice of, which I do, so I am going to extend the order."
At an extension hearing, the burden is on the plaintiff to show by a preponderance of the evidence that extension of the order is warranted. Callahan v. Callahan,
Here, although we do not doubt that the plaintiff felt fear, the evidence did not support any implicit finding that she reasonably feared imminent serious physical harm to herself. Nor may this extension order be upheld on the basis of any threat the defendant posed to the plaintiff's grandson (i.e., the defendant's son).
Accordingly, and notwithstanding its scheduled expiration on December 14, 2018, the extension order entered on December 15, 2017, is vacated, and the District Court is to direct the appropriate law enforcement agency to destroy all record of that order. See Wooldridge,
So ordered.
Vacated.
The plaintiff's complaint sought an order protecting her grandson J.M., as well as her own minor child, N.L. We understand the plaintiff's references to her family in this context to refer to J.M. and N.L., but not to the plaintiff's daughter, who evidently was living separately and had sought her own restraining order against the defendant. The initial order obtained by the plaintiff required the defendant to stay away from and have no contact with either J.M. or N.L.
Evidence submitted at the hearing indicated that the defendant had dragged R.L. by the hair and that she had bruises on her forearms.
The defendant also testified at the extension hearing, stating that, since his release from incarceration, he had not been to the plaintiff's home or workplace and had not communicated with her.
The defendant had testified that the department allowed him to have supervised visits with his son, but that the order was preventing him from doing so. The defendant asked that, if the order was not terminated, it be modified to allow such visitation. The judge modified the order as requested.
Past violence towards a minor child may warrant an order protecting that child, even while the defendant is incarcerated. See Callahan,
We recognize the difficulties faced by a motion judge when a self-represented plaintiff seeks a c. 209A order. It may be that further questioning could have better illuminated the underlying facts, such as what the defendant might have meant by his statement to the plaintiff, one year earlier, that her grandson (the defendant's son) "was going to be going away."