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R.L. v. T.N.F. (2021)

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Appeals Court of Massachusetts.

R.L. v. T.N.F.

20-P-423

Decided: April 22, 2021

By the Court (Neyman, Shin & Singh, JJ.1)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, T.N.F., appeals from a harassment prevention order issued pursuant to G. L. c. 258E, in the District Court. He contends that the plaintiff, R.L., did not present sufficient evidence to meet the legal standards for a harassment prevention order under G. L. c. 258E, § 1.2 We agree and remand the case to the District Court to vacate the order.

Background. The plaintiff is the foster mother of the defendant's three children. On January 21, 2020, she sought an ex parte harassment prevention order against the defendant. On the same day, a District Court judge reviewed the plaintiff's affidavit, held an initial hearing with her, and continued the case until February 4, 2020 for a two-party hearing with the defendant.

Through her affidavit, the plaintiff alleged the following incidents of harassing conduct: (1) the defendant “drove by [her] residence slowly, honking his horn while he passed”; (2) he “left a voicemail on [her] phone, after being told by [the Department of Children and Families (DCF)] not to do so”; (3) he drove by her home “on several occasions and slowed down, staring at [her], when he sees [her] outside”; and (4) he “made multiple calls to DCF saying he has been watching [her] home and making claims about [her and her family].” Through the evidence presented at the February 4 hearing -- before a different District Court judge and with the defendant present -- the plaintiff provided further details regarding these events. Specifically, she testified that she reported the defendant's voicemail to DCF and, on January 22, 2019, DCF issued a civil order to the defendant “[s]tating that he [was] not to contact [the plaintiff], or trespass on [her] property, for any reason.”3 She also testified to one incident where the defendant drove by her home and stared at her. She further testified to additional alleged conduct, including hang-up telephone calls, and that the defendant had made a public records request for information pertaining to her address.

At the February 4 hearing, the defendant admitted that he had to “drive past [the plaintiff's] house, every single day” to get to school; that he left the voicemail; that he made a public records request; and that he had “made several phone calls to DCF,” amounting to “more than three.” The judge found the plaintiff's testimony credible and issued a harassment prevention order in effect for one year until February 3, 2021.4

Discussion. When reviewing a harassment prevention order, “we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed ‘[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property’ ” (citation omitted). Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016). See G. L. c. 258E, § 1. “[T]here are two layers of intent required to prove civil harassment under c. 258E: the acts of harassment must be wilful and ‘[m]alicious,’ the latter defined as ‘characterized by cruelty, hostility or revenge,’ and they must be committed with ‘the intent to cause fear, intimidation, abuse or damage to property.’ ” F.W.T. v. F.T., 93 Mass. App. Ct. 376, 378 (2018), quoting O'Brien v. Borowski, 461 Mass. 415, 420 (2012).

On review of the record, including the plaintiff's affidavit and the transcripts of the January 21 and February 4 hearings, the plaintiff's evidence falls short of establishing three or more acts of harassment under the strict requirements of G. L. c. 258E and our case law. We discern only one incident that, on this record, constitutes harassing conduct under G. L. c. 258E: the incident where the defendant drove by and stared at the plaintiff while she was outside her home.

Here, the plaintiff described that on or about April 18, 2019, while she was outside with her dog, the defendant “drove slowly by,” “stared at [her], and made eye contact.”5 The plaintiff recognized the defendant's car from “pick-up and drop-offs at DCF.” She stated that she felt “fearful at that moment, [she] didn't know if they were going to stop, or try to contact [her], in any way.” The nature of the relationship between the parties, the existence of the no-contact and stay-away order, and the defendant's behavior during this incident support the conclusion that the defendant intended to cause fear, intimidation, or abuse, and his conduct was willful and motivated by hostility or revenge, aimed specifically at the plaintiff, the foster mother of his children. Contrast Commonwealth v. McDonald, 462 Mass. 236, 243 (2012) (defendant's conduct of driving by and staring at complainant's house did not constitute criminal harassment where there was no evidence that defendant was “particularly focused on the complainant” or that defendant had “a connection to the complainant”). Furthermore, the plaintiff testified, and the judge credited, that this incident made her “fearful.” See G. L. c. 258E, § 1; Gassman, 90 Mass. App. Ct. at 8-9.

Although the plaintiff stated that there were other occasions where the defendant was seen driving by her home, there is insufficient detail contained in the record to conclude that the defendant had the “two layers of intent mandated by our jurisprudence” to warrant a determination that these incidents constituted harassing conduct under G. L. c. 258E. F.W.T., 93 Mass. App. Ct. at 380. We are also unable to conclude on this record that the defendant's voicemail was an act of harassment where there was no direct or implied threat, as defined in our case law, contained in the message. See note 2, supra. See Seney v. Morhy, 467 Mass. 58, 63 (2014), quoting O'Brien, 461 Mass. at 423, 425 (“Conduct may constitute civil harassment where an individual wilfully and maliciously uses ‘fighting words’ ․ or uses ‘true threats’ ”). In addition, while the plaintiff testified that the voicemail was “scary” and made her concerned for her and the children's safety, the plaintiff has not proved “that the defendant acted with intent to cause fear, intimidation, abuse, or damage to property.” Gassman, 90 Mass. App. Ct. at 9.

Finally, the plaintiff described several occasions where the defendant's reports to DCF resulted in the plaintiff's home being investigated, including “two formal investigations; one was a medical negligence claim, and one was a claim that he believed we had broken his daughter's hand.”6 The defendant also claimed that there was “smoking and fighting happening at [the plaintiff's] home,” that an “illegal plumbing business” was operating from the plaintiff's home, and that her house was in foreclosure. Again, the record “does not support a finding that the[se] acts were wilful and malicious” and there is no evidence, “and we cannot infer, that the defendant's actions [in reporting his concerns to DCF] were actually intended to cause fear, intimidation, abuse, or damage to property.” F.W.T., 93 Mass. App. Ct. at 379. See Seney, 467 Mass. at 63 (“an essential element of civil harassment is intent”).7 ,8 Accordingly, because the evidence did not establish three requisite acts of harassment, we remand the case to the District Court to vacate the harassment prevention order against the defendant.

So ordered.

Remanded

FOOTNOTES

2.   The plaintiff did not submit a brief in this appeal.

3.   In the voicemail, the defendant stated he was leaving the message for the plaintiff and that he “wanted to let [her] know that DCF has violated [her] HIPAA law right. If [she] would like more information, regarding this, please reach out to DCF. Other than that, have a great day.”

4.   Assuming the order has now expired, the defendant's appeal is not moot. See Seney v. Morhy, 467 Mass. 58, 62 (2014).

5.   The biological mother of the plaintiff's foster children was also in the defendant's car.

6.   We note that the plaintiff did not believe that the reports to DCF regarding her foster son's health were harassment because she “could understand the concerned parent wanting to know that his son was okay.”

7.   For the reasons discussed herein, we conclude that there is insufficient evidence that the additional incidents the plaintiff alleged at the February 4 hearing constitute harassing conduct under G. L. c. 258E.

8.   The plaintiff's allegations are serious and concerning, and our decision should not be read to indicate otherwise. We hold only that, on the very limited record before us, there is not enough evidence to sustain the issuance of a harassment prevention order under the strict requirements of G. L. c. 258E and our case law. This decision should not be read to condone or to endorse the defendant's conduct at the time of the alleged incidents or in the future. To the contrary, conduct of this nature, on a more fully developed record, could lead to a different result with serious consequences stemming therefrom.

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