K.P. v. K.T. (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On May 13, 2021, the plaintiff sought and obtained an ex parte harassment prevention order under G. L. c. 258E against the defendant. After a hearing on May 27, 2021, at which both parties appeared pro se, a Juvenile Court judge extended the ex parte order until December 3, 2021. The defendant did not appeal. Instead, around six months later, the defendant, now with counsel, filed a motion to vacate the c. 258E order. On December 3, 2021, the same judge held a second extension hearing, at which she also heard testimony and argument on the defendant's motion to vacate. At the conclusion of the hearing, the judge extended the c. 258E order until March 4, 2022, and denied the motion to vacate without prejudice. The defendant now appeals from the denial of the motion to vacate, arguing that the evidence presented at the May 27, 2021, hearing did not support the initial extension of the c. 258E order and that the judge abused her discretion in declining to vacate the order. We affirm.²

1. Validity of initial order. Although the defendant devotes much of her brief to discussing the sufficiency of the evidence underlying the May 27, 2021, order, that issue is not properly before us. At an extension hearing, a judge “is to consider the basis for the initial order in evaluating the risk of future [harassment] should the existing order expire,” but “[t]his does not mean that the restrained party may challenge the evidence underlying the initial order.” Iamele v. Asselin, 444 Mass. 734, 740 (2005). Likewise, a motion to vacate a c. 258E order “does not provide an opportunity for a defendant to challenge the underlying basis for the order or to obtain relief from errors correctable on appeal.” MacDonald v. Caruso, 467 Mass. 382, 388 (2014).

Nonetheless, the defendant argues that she may challenge the validity of the May 27, 2021, order in this appeal because her challenge goes to the subject matter jurisdiction of the Juvenile Court. The defendant's jurisdictional claim is based on St. 2018, c. 69, entitled “An act relative to criminal justice reform,” which narrowed the definition of “[d]elinquent child” in several ways, including by excluding children under the age of twelve. G. L. c. 119, § 52. See Wallace W. v. Commonwealth, 482 Mass. 789, 792 (2019). The defendant maintains that c. 258E must be read similarly to preclude the issuance of a harassment prevention order against a child for conduct committed before the age of twelve. Thus, she says, because the first of the three qualifying acts of harassment occurred when she was only nine or ten years old, the Juvenile Court did not have jurisdiction to hear the case.

Even assuming, without deciding, that the defendant's challenge is properly characterized as jurisdictional, it fails under the plain language of G. L. c. 258E, § 2, which gives the Juvenile Court “exclusive jurisdiction of proceedings under this chapter in which the defendant is under the age of [eighteen].” Had the Legislature intended to narrow the Juvenile Court's jurisdiction in c. 258E proceedings, as it did for delinquency proceedings, it could have amended c. 258E accordingly. We will not “read words into the statute” that the Legislature did not see fit to put there. Anderson St. Assocs. v. Boston, 442 Mass. 812, 817 (2004).

2. Motion to vacate. To prevail on her motion to vacate the c. 258E order, the defendant had the burden of proving, by clear and convincing evidence, “a significant change in circumstances since the order was issued.” MacDonald, 467 Mass. at 390-391. The change in circumstances asserted in the defendant's motion was that “the plaintiff's family has weaponized the order against [the defendant] and her family by intentionally walking near” the defendant's home and “taunting her from across the yard.” The judge found that the defendant failed to prove this assertion by clear and convincing evidence, citing testimony that the disputed area was where the plaintiff and her family walked their dog. At the same time, the judge specifically stated that she was denying the motion without prejudice and instructed the plaintiff and her family that, going forward, they “should not be anywhere close to that ․ area.”

We discern no abuse of discretion. The judge recited the correct legal standard, and it is evident from the transcript that she carefully listened to and considered the testimony given during the lengthy hearing. The judge's conclusion that the defendant failed to demonstrate changed circumstances by clear and convincing evidence was based on the judge's assessment of the credibility of the witnesses and weighing of the evidence. We are in no position to substitute our judgment for that of the judge on these issues. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006).

Order denying motion to vacate affirmed.

FOOTNOTES

2.   The defendant's notice of appeal designated the denial of the motion to vacate, but not the second extension order, as the order being appealed. At oral argument the defendant acknowledged that, as a result, the validity of the second extension order is not properly before us. See Mass. R. A. P. 3 (c) (1), as appearing in 481 Mass. 1603 (2019) (“notice of appeal shall ․ designate the judgment, decree, adjudication, order, or part thereof appealed from”). But even were we to overlook this omission, we would affirm the second extension order. The judge heard testimony from multiple witnesses -- including testimony from the plaintiff's mother that the plaintiff feared retaliation were the order not extended -- and found that a three-month extension was warranted because “this thing [could] escalate in a minute.” This was within the judge's “wide discretion.” Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009).