K.B. v. R.H. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from an order extending for one year an abuse prevention order issued under G. L. c. 209A (209A order). The original 209A order entered in December 2014 and was extended several times. On February 12, 2018, the plaintiff filed an affidavit in support of another extension, along with a motion in limine to prohibit the defendant from relitigating the issues resolved at the previous extension hearings. A judge of the Boston Municipal Court held a hearing the same day, after which he issued the extension order that is the subject of this appeal. The judge permitted no testimony or other evidence at the hearing.

The defendant principally argues that the conduct of the hearing violated his statutory and due process rights to present evidence and cross-examine the witnesses against him. We agree. A defendant in a 209A proceeding must “be given an opportunity to testify and present evidence.” C.O. v. M.M., 442 Mass. 648, 656 (2004). The record here reveals that the judge denied the defendant that right. At the outset of the hearing, the defendant's counsel informed the judge that he had brought several witnesses with him, including the defendant himself. Nonetheless, after hearing only arguments from counsel, the judge indicated that he would be extending the 209A order for one year. The defendant's counsel objected, stating that the defendant “ha[d] a right to a hearing,” that “evidence [wa]s required to justify the continuation of a [209A] order,” and that the judge “[had]n't heard from the plaintiff [or] the defendant.” Though the defendant's counsel repeatedly sought to make an offer of proof, the judge denied his request, on the ground that the hearing was “concluded,” and threatened to have the court officers remove counsel from the court room if he continued to protest.

“The fact that defense counsel was permitted to argue on behalf of his client does not substitute for the opportunity to present evidence through the testimony of witnesses, to cross-examine adverse witnesses, and to have the judge take this testimony and cross-examination into account in making his findings.” Id. at 657. While the plaintiff correctly observes that a judge has discretion to limit cross-examination in certain circumstances, that “discretion is not ‘unlimited,’ and ‘each side must be given a meaningful opportunity to challenge each other's evidence.’ ” Id., quoting Frizado v. Frizado, 420 Mass. 592, 598 n.5 (1995). Here, as in C.O., “the issue whether to limit cross-examination was never reached by the judge because he allowed no cross-examination at all.” 442 Mass. at 658. The judge deprived the defendant of any opportunity to present evidence and, in doing so, abused his discretion. See id.

We add some observations on other issues raised by the defendant that may recur in future proceedings. The defendant filed a motion for “relief from impoundment,” seeking authorization to submit an impounded guardian ad litem (GAL) report that was prepared in conjunction with a Probate and Family Court matter involving both parties. The defendant also subpoenaed the GAL, who was present and ready to testify at the hearing. The judge denied the motion and refused to let the GAL testify on the ground that it was “irrelevant” whether the GAL disagreed with the findings made by the judges in the prior extension hearings.

As the defendant pointed out in his motion, however, the GAL's report addressed, among other issues, recent accusations made by the plaintiff against the defendant. The plaintiff included some of those accusations in her affidavit. The GAL's report and testimony were thus relevant to whether the plaintiff “ha[d] a reasonable fear of ‘imminent serious physical harm,’ ” such that “an extension of the order [was] necessary to protect her from the likelihood of ‘abuse.’ ” Iamele v. Asselin, 444 Mass. 734, 739-740 (2005), quoting G. L. c. 209A, § 1.²

Moreover, though the defendant may not “challenge the evidence underlying the initial [209A] order” or the previous extension orders, Iamele, 444 Mass. at 740, that does not mean the factual bases of those orders are irrelevant. To the contrary, “the judge is to consider the basis for the initial order in evaluating the risk of future abuse should the existing order expire.” Id. Other relevant factors include “the defendant's violations of protective orders, ongoing child custody or other litigation that engenders or is likely to engender hostility, the parties' demeanor in court, the likelihood that the parties will encounter one another in the course of their usual activities (e.g., residential or workplace proximity, attendance at the same place of worship), and significant changes in the circumstances of the parties.” Id. “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.” Id. at 741. The burden at all times is on the plaintiff to prove by a preponderance of the evidence that she continues to require protection from abuse. Id. at 739.

The order dated February 13, 2018, extending the 209A order is vacated.³ In view of what has transpired, we think a fresh look is appropriate and direct that all further proceedings in this matter be considered by a different judge.

So ordered.

Vacated and remanded.

FOOTNOTES

2.   The plaintiff contends that the judge properly excluded the report because only the Probate and Family Court could grant relief from impoundment. See Probate and Family Court Standing Order 2-08. But it is clear that the judge excluded the report on relevancy grounds, not because it was impounded. We think it better that the issue of impoundment be addressed by the trial court in the first instance.

3.   At oral argument the parties represented that the February 13, 2018 order has expired, but that a subsequent extension order has since entered. Our disposition here is without prejudice to the defendant's filing a motion in the trial court to vacate the subsequent order.