Opinion
No. 15–P–1380.
10-27-2016
E.N. v. L.N.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from an order terminating an abuse prevention order issued pursuant to G.L. c. 209A, § 3, claiming that the order should have been extended because she remained in fear of the defendant, her former husband. We remand for further hearing.
Background. On May 10, 2013, the plaintiff filed a complaint for protection from abuse in the District Court alleging that her husband had “caused [her] to engage in sexual relations by force, threat or duress.” She sought an order commanding the defendant not to abuse or contact her or the couple's two year old daughter, and also to leave and remain away from her residence and the daughter's day care. That order issued and was extended at the plaintiff's request on May 14, 2013, and again on June 24, 2013, at which time the no-contact order regarding the minor child was vacated. The defendant was present for that hearing. On September 23, 2013, the 209A order was extended for two years at the plaintiff's request and the judge found explicitly that the “[p]laintiff ha[d] satisfied her burden [for the] extension. See Iamele v. Asselin, 444 Mass. [734, 737–]739 (2005).” The expiration date of the order was September 21, 2015, and a hearing was scheduled on that date at 9:00 A.M. The amended order, including notice of the next hearing date, was later served on the defendant in hand.
It appears from the complaint filed in support of the plaintiff's application for the order that she initially sought the order on behalf of her two year old daughter and then crossed out her daughter's name and added her own. Under the section of the complaint titled “issues pertaining to children,” the plaintiff requested custody of her child based on “allegations of sexual abuse.” In the accompanying affidavit, the plaintiff stated, “[T]here have been allegations of sexual abuse and I no longer want him to see or contact my daughter.” Thus, although the record is less than clear, the original complaint appears to allege sexual abuse of both the plaintiff and her daughter.
In her brief, the plaintiff asserts that she “presented to the Court at the ex parte hearing that the [d]efendant caused her physical abuse and also that there were allegations of sexual abuse on the part of her daughter.” The record appendix does not contain a transcript of that hearing, or of any subsequent hearing, except the hearing at issue where the order was terminated.
The defendant was not present at that hearing.
At the hearing on September 21, 2015, which the defendant did not attend, the plaintiff requested an additional two-year extension. Counsel for the plaintiff explained that “[m]y client is still in fear of him; he moved back to the area; my client believes that his car has been going up and down her street, and we're worried that if the restraining order is not extended, there will be further abuse.” During the five-minute hearing, the judge did not inquire about the allegations of abuse supporting the original complaint and order. She did ask whether there had been contact between the parties related to the child or any divorce proceeding. Counsel explained that the parties had “been in touch sporadically.” The judge then made the same inquiry of the plaintiff who stated that there was no interaction with the defendant because of the restraining order. The judge then concluded, “I don't see the basis for it further continuing at this point, so I am going to terminate the restraining order at this point. If anything else should arise, then of course you're free to come back into court and make those allegations to the court.” This appeal followed.
Counsel for the plaintiff also represented, “They were divorced over a year ago now, and (indiscernible ...—low audio) plan that he was supposed to follow and he made no initiation to contact the child's therapist, so he's had no visits, no contact with the child to this point; he had to go back to court to petition for that.”
According to the abuse prevention order, the judge considering the request for the extension on September 21, 2015, did not issue the original order or previous extensions.
Discussion. We review the extension of an abuse prevention order for abuse of discretion. See Crenshaw v. Macklin, 430 Mass. 633, 636 (2000). “The standard for obtaining an extension of an abuse prevention order is the same as for an initial order—‘most commonly, the plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief ... is sought.’ “ MacDonald v. Caruso, 467 Mass. 382, 386 (2014), quoting from Iamele, supra at 735. Additionally, that fear must be objectively reasonable. See Smith v. Jones, 75 Mass.App.Ct. 540, 543 (2009). “It is the totality of the conditions that exist at the time that the plaintiff seeks the extension, viewed in the light of the initial abuse prevention order, that govern.” Iamele, supra at 741.
We have stated that if the extension request is based on past physical abuse, as it was in this case,
“the failure of the plaintiff to have an objectively reasonable fear of imminent serious physical harm does not by itself preclude extension of an abuse prevention order. Faced with an extension request in such a circumstance, the judge must make a discerning appraisal of the continued need for an abuse prevention order to protect the plaintiff from the impact of the violence already inflicted.... In making the required assessment, the judge must consider the basis for the initial order in evaluating the risk of harm to the plaintiff should the order expire.”
Callahan v. Callahan, 85 Mass.App.Ct. 369, 374 (2014). Here, nothing in the record suggests that the basis for the initial order was considered in evaluating the continued risk of harm. Although the judge inquired briefly regarding recent contact, there was no inquiry or comment regarding the serious allegations of physical abuse of the plaintiff and sexual abuse of her two year old daughter. On the limited evidentiary record before us, and in the absence of any findings or explanation by the judge, we cannot conclude that the judge engaged in the required discerning appraisal of the continued need for an abuse prevention order. See Iamele, 444 Mass. at 742 ; Banna v. Banna, 78 Mass.App.Ct. 34, 36 (2010). Accordingly, we vacate the order entered on September 21, 2015, and remand for further hearing consistent with this decision, including testimony if necessary.