Opinion
20-P-1404
12-23-2021
G.A. v. T.A.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, T.A., appeals from the extension of an abuse prevention order issued pursuant to G. L. c. 209A, § 3 (209A order). He contends that there was insufficient evidence to support issuance or extension of the order, and that the judge abused her discretion when she declined, on the defendant's oral motion, to order production from the Department of Children and Families (DCF) of certain records. We affirm.
Sufficiency of evidence. The defendant contends that the evidence in the complaint and supporting affidavit was insufficient to support the issuance of the 209A order, and that the evidence at the extension hearing was insufficient to support the one-year extension of the 209A order. We disagree.
"Whether seeking an initial abuse prevention order under G. L. c. 209A or a later extension, the burden is on the plaintiff to establish facts justifying issuance, or continuance, by a preponderance of the evidence." Callahan v. Callahan, 85 Mass. App. Ct. 369, 372 (2014). To meet her burden, the plaintiff was required to show that "the defendant has caused or attempted to cause physical harm ... or placed the plaintiff in reasonable fear of imminent serious physical harm" (citation omitted). G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018). We review the issuance or extension of a 209A order for abuse of discretion or other error of law and accord the credibility determinations of the judge "utmost deference" (quotation and citation omitted). Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020).
Here, the plaintiff's affidavit in support of the complaint seeking the 209A order averred that the defendant hid her car keys "so I couldn't leave," and when she went to the telephone to call 911 he "grabbed my hair from behind and pulled back," causing her to almost drop their toddler. When the plaintiff asked her daughter to call 911, the defendant cornered the plaintiff and said that if the daughter called 911, he would "snap the phone in half." The plaintiff averred, "I am afraid if I didn't do what [the defendant] wants he will continue to try to hurt [and] take my kids from me. I am in constant fear of our safety." Based on that information, the judge issuing the initial order found a "substantial likelihood of immediate danger of abuse," and ordered among other things that the defendant stay at least fifty yards away from the plaintiff. There was sufficient evidence to support the judge's order. See G.B., 94 Mass. App. Ct. at 395-396 (evidence of plaintiff's reasonable fear included defendant's interference with her efforts to call 911 and her testimony about fear of defendant).
At a hearing several months later before another judge, the plaintiff sought an extension of the 209A order, and her counsel described intervening events, including an occasion when the defendant had parked his truck just beyond fifty yards away from the plaintiff's home. The judge extended the 209A order for one year, to September 8, 2021, amending the distance to one hundred yards.
"In evaluating whether a plaintiff has met her burden, a judge must consider the totality of the circumstances of the parties' relationship, ... viewed in the light of the initial abuse prevention order." Iamele v. Asselin, 444 Mass. 734, 740-741 (2005). Here, we conclude that both judges properly found that the plaintiff met her burden by a preponderance of the evidence. See G.B., 94 Mass. App. Ct. at 393-395.
Discovery of DCF records. The defendant argues that the judge who extended the 209A order should have ordered DCF to produce a letter that the plaintiff had sent to DCF pertaining to custody of the plaintiff's nephews. The judge did not abuse her discretion in declining to order DCF to produce it.
On cross-examination of the plaintiff at the extension hearing in September 2020, the defendant's counsel elicited that in an attempt to get custody of her nephews, the plaintiff had sent a letter to DCF describing her household as an appropriate placement for them and discussing an incident that had occurred in 2015. Questioned about whether that letter contradicted her allegations in support of the 209A order, the plaintiff testified, "I did not lie to DCF. I just didn't give them details of how bad it could be," and that her home "situation has changed over the months." The defendant then argued to the judge that the plaintiff's statements to DCF "painted an entirely different picture" from her present allegations of abuse, and requested a court order to obtain "what was reported to DCF." The judge declined to rule on an oral motion for the DCF records, noting that she accepted that the plaintiff had "painted a picture so that she could get the [nephews]"; she also found the plaintiff's testimony credible, and based on it extended the 209A order for one year.
In 209A proceedings, "[d]iscovery orders are within the court's discretion and should be issued only after a hearing and only upon a showing that such discovery is necessary to provide specific information essential to the adjudication of the case or the issuance of particular abuse prevention orders." Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1.03 (2011). Here, the judge did not abuse her discretion in declining to order production of the DCF letter, because it pertained, at most, to a collateral issue.
September 8, 2020 extension order affirmed.