Date: 06-19-2015

Case Style: C.F. v. R.M.

Case Number: 13-P-1502

Judge:

Court: Commonwealth of Massachusetts Appeals Court

Plaintiff's Attorney:

Defendant's Attorney:

Description: The defendant appeals from an order extending an abuse
prevention order under G. L. c. 209A. We affirm.
Background. This is the second appeal involving the
parties. Briefly, the defendant (R.M.) and the minor
plaintiff's mother (K.M.) were divorced in February, 2010. The
minor plaintiff (C.F.) is the defendant's former stepdaughter.
The mother and the defendant also have a daughter born of their
marriage who is the half-sister of C.F. The mother and the
defendant share physical custody of the half-sister.
On April 13, 2011, K.M. filed a complaint for protection
from abuse pursuant to G. L. c. 209A as mother and next friend
of C.F. The mother's accompanying affidavit averred that C.F.
had reported to her that she had been sexually abused by the
1 By her mother and next friend, K.M.

defendant five or six years previously, when she was nine or
ten. In addition, the mother related her own observations of
R.M.'s severe physical punishment of C.F. An abuse prevention
order issued on May 6, 2011, and was set to expire on May 3,
2012, if not otherwise renewed. The defendant did not appeal.
Approximately six months later, the defendant sought to
vacate and expunge the abuse prevention order on the grounds
that police and social service agency investigations had not
found sufficient evidence to substantiate C.F.'s reports of
abuse. The judge, having made different credibility
determinations in the matter, declined to vacate the order and
this court affirmed his decision in a memorandum and order
pursuant to our rule 1:28. C.F. v. R.M., 84 Mass. App. Ct. 1106
(2013). On May 24, 2012, the same judge further extended the
order.
The instant appeal derives from the May 3 and May 24, 2012,
extension hearings that took place while the first appeal was
pending. At the May 3 hearing, the judge, over the defendant’s
objection, postponed the hearing to May 24 because C.F. was not
present. Counsel explained that C.F. was in school and that she
suffered from posttraumatic stress disorder. Although the judge
continued the hearing so that C.F. could attend, she did not
appear at the May 24 hearing. At that time, however, a
different judge allowed the hearing to go forward. That judge
2
had also presided over both the first abuse prevention hearing
in May, 2011 (at which C.F. testified), and the December, 2011,
hearing to vacate the abuse prevention order. At the May 24
hearing he had before him a letter from C.F.'s clinical social
worker, who reported that C.F. had made significant gains in
managing her anxiety related to her past trauma but that she
still presented as quite anxious and that it would be very
"anxiety-provoking" for her to testify again. In addition,
C.F.'s attorney indicated (and her mother testified) that C.F.
had had a panic attack the night before at the mere thought of
having to appear in court. Counsel explained that, as a result,
she could not come to the hearing. The judge indicated that the
mother's presence was sufficient to go forward.
At the completion of the testimony, the judge reiterated
that he had heard testimony from C.F. during the May 6, 2011,
hearing and had found both C.F. and her mother to be credible.
He also found that the request for the extension of the order
was not based on mere "general apprehension or nervousness" on
the part of C.F. Moreover, he pointed to the "egregious set of
facts that triggered the original order" and the continued
likelihood of the defendant encountering C.F., given their
respective relationships to her half-sister. The judge
concluded that, considering the totality of the circumstances,
3
the order continued to be necessary to protect C.F., and he
extended it until her eighteenth birthday on May 11, 2014.
Discussion. We first observe that there is no merit to the
defendant’s assertion that the judge should not have continued
the May 3 hearing to May 24. The decision whether to grant a
continuance is within the sound discretion of the judge. See,
e.g., Botsaris v. Botsaris, 26 Mass. App. Ct. 254, 256 (1988).
Here, it was not unreasonable for the judge to continue the
hearing in the hope that C.F. would be able to appear, even
though she eventually was unable to do so. On this record we
cannot fairly say that the judge abused his discretion.
This brings us to the defendant’s principal argument, which
is that the judge erred when he extended the order in the
absence of C.F.'s appearance and testimony. The standards
applicable to the extension of such orders are well settled.
"[A]n initial order 'expires unless extended after a judicial
determination, essentially, a new finding, that the plaintiff
continues to require protection from "abuse" as explicitly
defined in c. 209A, § 1.'" Iamele v. Asselin, 444 Mass. 734,
739 (2005), quoting from Jones v. Gallagher, 54 Mass. App. Ct.
883, 889 (2002). In Iamele, the Supreme Judicial Court provided
guidance for judges to follow in determining whether a plaintiff
has met her burden of showing a reasonable continued fear of
imminent serious physical harm. Id. at 739-740. "No one factor
4
is likely to be determinative" and "[i]t is the totality of the
conditions that exist at the time the plaintiff seeks the
extension, viewed in the light of the initial abuse prevention
order, that govern." Id. at 740-741. The judge enjoys broad
discretion at a renewal hearing and we review for abuse of that
discretion. Vittone v. Clairmont, 64 Mass. App. Ct. 479, 485,
487 (2005).
The defendant’s appeal rests on his contention that the
minor's presence at the May 24 renewal hearing was necessary,
and that the statute required her to appear. See G. L. c. 209A,
§ 3 ("If the plaintiff appears at the court at the date and time
the order is to expire, the court shall determine whether or not
to extend the order for any additional time"). He also asserts
that the proceedings were unfair because he had no opportunity
to cross-examine her.
Here, the minor's complaint for protection from abuse was
brought on her behalf by her mother and next friend. See
Mass.R.Civ.P. 17(b), as appearing in 454 Mass. 1402 (2009). At
all relevant times C.F. was a minor and her mother, who was in
the courtroom on May 24, testified and was subject to crossexamination.
See, e.g., E.C.O. v. Compton, 464 Mass. 558, 561
(2013)(father, as next friend of daughter, sought abuse
prevention under G. L. c. 209A and daughter did not
testify); Vittone, 64 Mass. App. Ct. at 488-489 (mother sought
5
renewal of c. 209A order for herself and fourteen year old son
and court found mother's fear for son was reasonable given
defendant's rape of her son's siblings). It is far from clear
that the minor's presence was also required or that the
defendant's inability to cross-examine her rendered the
proceedings unfair.
"Because a G. L. c. 209A proceeding is a civil, and not a
criminal, proceeding, the constitutional right to confront
witnesses and to cross-examine them set forth in art. 12 of the
Declaration of Rights has no application . . . ." Frizado
v. Frizado, 420 Mass. 592, 596 n.3 (1995). Although even in the
civil context a "defendant has a general right to cross-examine
witnesses against him[, t]here may be circumstances in which the
judge properly may deny that right in a G. L. c. 209A
hearing." Id. at 597. See Silva v. Duarte, 421 Mass. 1007,
1007-1008 (1995). In c. 209A proceedings, "the rules of
evidence need not be followed, provided there is a fairness in
what evidence is admitted and relied on." Frizado, supra at
597-598. Consistent with these guiding principles, the
commentary to § 5.06 of the Guidelines for Judicial Practice:
Abuse Prevention Proceedings (2014) provides that "[t]he court
is not compelled to allow the order to expire on its own terms
if the plaintiff does not appear. If there is an acceptable
reason for plaintiff's absence, or some grounds to believe that
6
such absence is not voluntary, the case and the order can be
extended."
At the May 24 hearing the judge was presented with evidence
that it would be traumatic for C.F. to appear at a renewal
hearing. Her mother testified that C.F. had had a "breakdown"
the evening before and could not come to court. C.F.'s clinical
social worker confirmed that her issues with anxiety would be
provoked by testifying. To the extent the minor plaintiff's
presence might otherwise be required, which we need not decide,
the judge reasonably could have found that in the circumstances
of this case there were reasonable grounds for her absence.
Moreover, it is likewise far from clear what the defendant would
have gained by cross-examining C.F. again. He amply made his
point that any fear that she continued to experience was
unreasonable in light of the fact that the police and social
services agencies had not substantiated the reports of abuse.
The defendant's argument that there was insufficient
evidence to support the extension of the abuse prevention order
is equally unavailing. The judge was well acquainted with the
facts of the case, having presided over both the original abuse
prevention order hearing and the subsequent hearing on the
defendant's motion to vacate. It is apparent that the judge
continued to credit C.F.'s allegations of sexual abuse and
characterized the abuse as egregious even though he knew that
7
her abuse complaints had not been otherwise substantiated.
Moreover, in his February, 2012, memorandum of decision, the
judge stated that the new evidence that the complaints of abuse
had not been substantiated would not have affected his issuance
of the earlier abuse prevention order in light of his own
credibility determinations.
Considering that the judge continued to credit C.F.'s
allegations of abuse, it was not unreasonable for him to
conclude that the burden of showing a continued, reasonable fear
of imminent serious physical harm had been met. Furthermore, he
noted the continued likelihood of the minor and the defendant
crossing paths given their respective relationships with C.F.'s
half-sister. The defendant asserts that no contact between him
and C.F. has occurred within the past few years, suggesting that
there is no longer a need for an order preventing future
contact. He fails to note, however, that such lack of contact
is the result of an existing order. We discern no error in the
judge's conclusion that there was a continuing need for an abuse
prevention order to protect C.F. from abuse by the defendant.
See, e.g., Doe v. Keller, 57 Mass. App. Ct. 776, 779 (2003) (no
error in making 209A order permanent where triggering event was
"particularly egregious"); Vittone, 64 Mass. App. Ct. at 488-489
(holding that the "particularly egregious nature" of the
defendant’s actions could be properly factored into "any
8
assessment of the reasonableness of the plaintiff’s fear of
imminent serious physical harm"); Callahan v. Callahan, 85 Mass.
App. Ct. 369, 374 (2014)(judge may reasonably conclude that,
where victim has suffered actual physical harm, there is a
continued need for the order because the damage resulting from
physical harm affects the victim even when further physical
attack is not reasonably imminent). Considering the
circumstances in their totality, there was no error in extending
the order until C.F.'s eighteenth birthday.

Outcome: Order extending abuse prevention order to May 11, 2014, affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: