Testimony in Care and Protection Cases: New Massachusetts Case Law

In care and protection cases, important pieces of evidence are introduced in order for the court to decide issues of custody and visitation. One example, which serves to be significant evidence in care and protection cases, deals with the testimony, notes, and assessment of the social worker who is assigned to the case.

That testimony was at the heart of a recent case decided by the Massachusetts Appeals Court. In the case, Adoption of Luc, a birth mother’s parental rights were terminated by the Juvenile Court. At trial, the social worker who was assigned to the case testified on direct examination. The trial was then continued for several months. Before the trial resumed, and before the mother may have had the chance to cross-examine the social worker, the social worker died.

The trial judge struck and excluded the social worker’s testimony, but he allowed into evidence the dictation notes, reports, and assessments of the social worker, subject to some limitations and to rebuttal. The social worker’s supervisor testified in his stead, and she was allowed to summarize some of the contents of his reports. It should be noted that the judge only allowed in statements of fact and excluded any statements of opinion or impressions.

On appeal, the birth mother claimed that the evidence was admitted in error; that the documents were hearsay which should have been excluded by the trial judge; and that she was unduly prejudiced by their admission, as she was unable to cross-examine the author of the documents due to his death.

The Appeals Court disagreed, holding that the reports and assessments documents were widely recognized to be admissible under the public documents exception to the hearsay rule, while the dictation notes, which made up the basis for those reports, were admissible as declarations of a deceased person.

“The underlying reports were prepared by numerous professionals who also have an obligation to make truthful and accurate reports to the department ‘as a matter of duty and routine,’” the Court stated. “Any prejudice stemming from the factual observations of the service providers is found not in the summary prepared by the department social worker, but in the observations of the service providers themselves. This second-level hearsay may be rebutted by subpoenaing the source.”

Moreover, the Court noted that the mother herself did not dispute some of the findings of the social worker which were introduced, such as the fact that she failed to attend her Alcoholics Anonymous meetings and left the child alone with her brother, who recently had been arrested for sexual assault. With the evidence properly admitted, the Court held that the trial judge properly found that parental rights of the birth mother should be terminated. “The mother’s long-term history of mental illness, sporadically treated, her reliance on drugs and alcohol to self-medicate, her positive urine screens during the pendency of the case, her noncompliance with service plans, and her inability to attend to Luc, coupled with the systematic neglect of her six older children due to the same untreated mental health and substance abuse issues, ‘proved parental unfitness by clear and convincing evidence[,]’” the Court held.

If you have any questions about divorce, custody, or family law issues, you may schedule a free consultation with our experienced attorneys. Call (866) 995-6663 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

Subject Matter Jurisdiction Over Protective Orders: New Massachusetts Case Law

Does the District Court have subject matter jurisdiction over the issuance of protective orders, particularly where they are issued ex parte, meaning without the defendant present in court? This was a question posed in a recent case of the Massachusetts Appeals Court.

A protective order, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is or was dating. Subject matter jurisdiction refers to the power of the court to decide a certain matter—essentially, the power of the court over the type of case or controversy presented.

In the case, V.M. v. R.B., the plaintiff filed for a protective order against the defendant ex parte, meaning the defendant was not present at the hearing on the matter. Typically, where an ex parte protective order is issued under Massachusetts General Laws, chapter 209A, the defendant against whom the order is issued may challenge the order at the ensuing hearing after notice, and not by an appeal to an appellate court. In this case, however, the defendant appealed. He argued that the plaintiff failed to present sufficient evidence of a substantive dating relationship at the ex parte hearing, and because of this, the District Court did not have requisite subject matter jurisdiction to hold the hearing after notice.

At the ex parte hearing, the plaintiff presented an affidavit, claiming that the defendant threatened her through text messages, phone calls, and in person. On her Complaint for Protection from Abuse form, she checked the box indicating that she and the defendant “are or were in a dating or engagement relationship.” Her affidavit did not describe the nature of the parties’ relationship, but she testified at the ex parte hearing that they were in an exclusive dating relationship.

The judge entered an order prohibiting the defendant from abusing or contacting the plaintiff and 978requiring him to stay away from her. Nine days later, both parties appeared at a hearing, where the defendant filed a motion to vacate the restraining order and expunge the record at the hearing after notice, arguing that the judge lacked jurisdiction to extend the order. The judge extended the order for six months.

On appeal, the Massachusetts Appeals Court held that the existence of a substantive dating relationship is an element of a claim for a protective order, and not a prerequisite for subject matter jurisdiction. “The elements that the plaintiff must establish to obtain relief are not equivalent to the “nature” or “genre” of the case, which determines subject matter jurisdiction,” the Court noted. The Court explained that it is well-established that the Legislature has unequivocally given the District Court, the Boston Municipal Court and the Probate and Family Court jurisdiction over cases involving a protective order under chapter 209A. “[A] plaintiff’s failure to establish a substantive dating relationship at the ex parte hearing would not deprive the court of jurisdiction,” the Court concluded, dismissing the defendant’s appeal as moot.

If you need assistance with a restraining order or have any questions about divorce or family law issues, you may schedule a free consultation with our experienced attorneys. Call (866) 995-6663 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

New Case Law Addresses Ex Parte Protective Order

A protective order, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is or was dating.

The recent case of G.B. v. C.A. involved veracious protective order requests against a defendant who was a Boston police officer. In that case, the parties were in a dating relationship for three years. The day after the relationship ended, the defendant appeared at the plaintiff’s workplace and attempted to return ceramic flowers to her. A struggle ensued, and the video of the struggle was captured by surveillance cameras from two different angles. The video showed that the plaintiff threw the flowers in the trash; the defendant retrieved them; and the plaintiff then lunged at the defendant, pointing long fingernails at his face. As the parties struggled, they went off camera for some time, and the plaintiff eventually landed on the ground and injured her face and lip.

The plaintiff attempted to call the police, and the defendant tried to take her cell phone away from her, boxing her into a corner. When a 911 operator called back, the defendant answered the plaintiff’s phone. He then walked across the street to a police station, and officers came on the scene and transported the plaintiff to a hospital for treatment.

The following day, the parties appeared in court, each seeking a protective order against the other. The judge viewed the video recording of the struggle between the parties and declined to grant either party’s request. Subsequently, the matter was investigated by Boston Police Department’s domestic violence unit, which eventually filed criminal charges against the plaintiff. The defendant was not charged, though the matter was also referred to the BPD’s Internal Affairs division.

About six weeks later, the plaintiff filed for another protective order against the defendant, alleging that he followed her in his car, intimidated her, and had a friend call her and threaten her not to go to court. The following month, a clerk magistrate heard the criminal charges against the plaintiff. The clerk held the application “in abeyance” for sixty days, told the parties to stay away from each other, and noted and that, if there were no further incidents, the criminal complaint would be dismissed.

Subsequently, the plaintiff filed for another protective order, alleging that the defendant followed her, carried a gun, and drove by her work, that he had contacted her on an Internet application called “WhatsApp,” and that he “went to Housing to try to tell lies.” A third judge denied the request.

The plaintiff filed for a protective order for the fourth time, about a month later. This time, because the plaintiff had moved, she was referred to a different court for her filing. The plaintiff recounted the original altercation, indicating that the defendant grabbed her, struck her in the face, pushed her, and slammed her against the ground. She also stated that she was “tired of being afraid” of the defendant and claimed that two different judges on two different dates ordered the defendant to stay away from her, not to drive by her job, and not to contact her in any way, and that he had violated those orders on five separate dates.

The fourth judge granted the protective order ex parte, then scheduled the matter for further hearing. Another judge heard the matter and extended the protective order for a year. The defendant appealed, claiming that the judge abused his discretion in granting the order. The defendant argued that the plaintiff failed to prove, by a preponderance of the evidence, that she suffered abuse, and that the only “new” evidence presented by the plaintiff in support of the request was an incident where the defendant drove by the plaintiff’s workplace.

The Appeals Court disagreed with the defendant, holding that the trial judge was within his discretion to find for the plaintiff, based on the totality of the circumstances. The court explained that “it was ultimately up to the judge to determine the credibility of the witnesses. He could have believed her version of events, or not. Indeed, he would have been within his discretion in finding that the plaintiff was the initial aggressor in the December, 2015, incident, or that it involved mutual combat. Neither finding, however, would negate the further discretion afforded the judge to consider this incident in the totality of the circumstances surrounding the request for the 209A order at issue in this case.”

If you need assistance with a restraining order or have any questions about divorce or family law issues, you may schedule a free consultation with our experienced attorneys. Call 978-225-9030 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.

Domestic Abuse and Intimate Partner Violence

Warning: this post includes reference to domestic abuse and may trigger strong emotions in you. Note: If you are in an emergency situation, please do not hesitate to contact local authorities.

Very little is more precious to most people than their loved ones. Our family and loved ones are supposed to be our strongest systems of support. They are supposed to love and encourage us to be our best selves. For many people in situations involving domestic abuse, intimate violence, sexual violence, or other forms of abuse, however, the same people whom they hope will love them are also the ones who hurt them.

In Massachusetts, abuse is defined as the occurrence of one or more of the following acts between family or household members: 1. Attempting to cause or causing physical harm; 2. Placing another in fear of imminent serious physical harm; or 3. Causing another to engage involuntarily in sexual relations by force, threat, or duress.

Domestic abuse does not apply to a romantic relationship only. The abuse may involve parents, children, partners, spouses, or other family members. Although domestic abuse is commonly thought of as a criminal law issue, domestic abuse is also important in the civil and family law contexts.

When a victim of a domestic abuse situation is abused, he or she may want to know: may I pursue a civil action in tort against my abuser? May I be compensated for my injuries or my emotional suffering? In Massachusetts, the answer is most likely “yes,” but each case is different.

Suppose a woman named Kelly lived her long-term boyfriend Peter for two years. They have two children and a dog named Jojo together. At the start of their relationship, Kelly and Peter had a wonderful love affair. They were kind to each other. They went on vacations as a family. Kelly’s parents welcomed Peter as one of their own. Peter did not speak with his abusive father. His mother had passed away prior to the start of a Peter’s relationship with Kelly. After a year of dating, Peter began to exhibit signs of abuse against Kelly. He would tell her that he did not want her to be with her friends as much. He would accuse her of cheating on him. As time progressed, the abuse worsened.

One Friday evening, Kelly began to get ready to have a night out with her friends from college. She put on a black dress. Peter did not want her to go out wearing a dress. When Kelly refused to change, he struck Kelly in the face, causing injuries to her face and also causing her to fall. As she fell, Kelly hit the edge of her bedroom’s wooden dresser. She also fell on one of Jojo’s dog toy bones, which caused her to sprain her wrist. Kelly had several medical appointments and missed time from work. She did not tell anyone about the incident, because she hoped that Peter would change back to the person he used to be when she first met him.

A few months later, Peter began to hit or push Kelly with more frequency. He also deleted all of her contacts on her phone, broke her laptop, and threw a book at her. One evening, Peter pushed Kelly and accidently struck one of their children who had tried to defend Kelly from an attack. As the abuse worsened, so did the injuries. Eventually, Kelly decided to call law enforcement and looked for a safe haven for the two children and Jojo. Fortunately, Kelly and her children and Jojo were able to permanently stay away from Peter and receive the help that they needed.

Generally, a victim in Massachusetts has three years from the date of the injury-producing event to file a lawsuit against a defendant-abuser. In the example above, Kelly could potentially bring a civil action against Peter for the damage to her person and possibly her property.

It is basically undisputed that Peter assaulted Kelly and her children. In Massachusetts, an assault is an act creating a reasonable apprehension of fear in another person that is of immediate harmful or offense contact to the victim’s person. Assault requires the element of intent. Damages–such as monetary or bodily injury damages–are not required to prevail in an assault. Peter’s assault and battery against Kelly may be enough to warrant her working with a competent attorney to file a civil complaint against him. She may also work with law enforcement and her attorney to keep Peter away from her children. It is likely that the family court would be involved, especially for the safety of the children.

If you have any questions, thoughts, or concerns about issues involving domestic violence, intimate partner violence, abuse, or other issues in family law, you should contact a competent family law attorney. Our experienced professionals may be able to work on behalf of you. Please contact our offices at your earliest convenience by phone at 978-225-9030 or complete a contact form on our website. We will return your inquiry with prompt attention.

Best Practices for Working with a Guardian ad Litem

In some cases, a Guardian ad Litem’s services are a key component.

Imagine the following scenario: a ten-year old child named Jacob is diagnosed with a “curable” form of cancer. If Jacob is brought to a hospital for regular chemotherapy treatments, then Jacob has a chance to beat the disease and live a healthy and stable life. Jacob’s parents, however, are devoutly religious people with the deeply held belief that God and prayer are the only acceptable ways for their child to be cured of cancer. The parents believe that if Jacob is meant to be cured, then God will provide for the cure. As such, Jacob’s parents are refusing any medical treatment for Jacob.

This scenario might trigger a court case, one in which the state of Massachusetts has a special interest in advocating on behalf of Jacob to ensure that he has a chance to beat his disease, even against the wishes of his religious parents.

If a Justice of the Massachusetts Probate and Family Court appoints a Guardian ad Litem to the case involving Jacob, the Guardian must be impartial. He or she investigates or evaluates the family and has a duty to investigate the family’s situation. This investigation may include interviews with Jacob and his parents and home visits. After reviewing the family circumstances, the Guardian ad Litem creates a detailed report to file with the court. The person does not take sides and is supposed to be an impartial third party.

When working with a Guardian ad Litem, it is important to remember certain best practices. First, it is necessary to know that the Guardian ad Litem is not your attorney, and anything that you share with him or her may be reported to the Justice in your case. The person does not need to keep any confidential information that you may believe you are sharing in confidence.

Second, it is also important to remember that you must provide the Guardian ad Litem with accurate information and to share with the Guardian ad Litem any information about other people who may have information in support of your case.

Third, it is important to remember that depending on the circumstances of your case, the investigation or evaluation process with a Guardian ad Litem may take several months. Because the process may be long, it is wise to keep written documentation about what you want to share with the person; what you have shared with the person; when and for how long you spoke with the Guardian ad Litem; and any other information that you think would benefit your case. When you speak with the Guardian ad Litem, you should create a summary or bulleted list of important points that you wish to share, so that you stay focused with your thoughts.

Another item to consider is that there may be a cost associated with the Guardian ad Litem process, which you may be required to pay. Also remember: because the Guardian ad Litem is an impartial person, he or she may seem distant or highly questioning of you. This does not mean that he or she does not believe you or what you’re saying, but rather, it means that he or she is performing his or her due diligence in remaining impartial for the report to be given to the Family Court Justice.

Encourage those with whom you know the Guardian ad Litem will be speak to remain truthful. Provide factual information requested by the Guardian ad Litem, but be sure to speak with your attorney and not the Guardian ad Litem about facts that may or may not hurt your case. If the Guardian ad Litem requests that you sign consent forms to obtain confidential information from professionals, be sure to speak with your attorney before you sign any documentation. After the report is created, you have a right to read the final report. You may not copy the report without permission from the Massachusetts Family Court Judge.

In the above case with Jacob, the Guardian ad Litem will present the facts of the family situation, but the Guardian ad Litem is not a legal advocate of Jacob. Although Massachusetts values religious freedom, this freedom is not limitless when the care of a child with a curable form of cancer is concerned. There are other circumstances when a Guardian ad Litem may be involved such as a divorce, separation, or other matters that affect children or the family unit.

If you are seeking a competent family law or child law lawyer or domestic relations attorney, please contact our offices by phone at 978-225-9030 during business hours or complete a contact form on our website. We will respond to your phone call or submission promptly, and you may schedule a free consultation with us.

Protective Order Issued Ex Parte: New Massachusetts Case Law

The recent case of C.R.S. v. J.M.S. addressed the issue of an ex parte abuse protective order. In that case, the victim of domestic violence filed a complaint for a restraining order against her partner. Her story entailed many instances of controlling behavior, along with some instances of physical violence.

As we explained in previous blog posts, one particular recourse for victims of domestic violence is to seek a protective order in court under Massachusetts General Laws chapter 209A. Restraining orders in general are ways for the court to compel a defendant to stop doing something. A protective order, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse, which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is/was dating.

In addition, under Chapter 258E of the Massachusetts General Laws, any party may seek a protective order against another party based on harassment. Unlike a temporary order of protection from abuse, it is not necessary that domestic violence or abuse be in the picture.

In the case at hand, the District Court issued an emergency protective order for the plaintiff. The order was issued ex parte, meaning without the presence of the defendant. The injunction ordered the defendant to stay away from the plaintiff, not to contact her, and to vacate the plaintiff’s home.

Two days later, following the defendant’s arraignment for a criminal charge related to the domestic incident, another hearing was held by a different judge. Both the plaintiff and the defendant testified at the second hearing, and the defendant was represented by an attorney. The plaintiff described the abuse she endured from the defendant, including her recount of being pushed into a wall and pushed down on multiple occasions. The defendant denied the plaintiff’s allegations. After questioning the defendant, at the end of the hearing, the judge extended the order of abuse protection for one year.

The defendant appealed the injunction, claiming that the protective order should not have been extended, because his actions did not constitute “abuse” as defined by Massachusetts law. He also claimed that the plaintiff’s categorization of his actions as abusive was incorrect, and that the plaintiff’s claims of fear due to the defendant’s actions were “unreasonable.”

The Appeals Court held that there was no error in issuing the injunction. The trial judge did not err and could reasonably concur, based on circumstantial evidence, that the plaintiff has met her burden of proof.

“We are satisfied that the judge properly found that the plaintiff met her burden here,” the Court noted. “She testified to at least two separate incidents of physical assault (with one incident occurring at the time the ex parte order issued) in the course of a deteriorating and stressful relationship — a relationship that she testified had been characterized by the defendant’s controlling behavior as well as verbal and emotional abuse. At the time of the hearing, it appeared that the relationship was ending and the defendant was drinking heavily.”

The defendant also argued that the original ex parte order was wrongfully issued, claiming that he was entitled to an opportunity to appeal that order. The Appeals Court disagreed. “Simply put, a defendant is entitled to be heard on the issue of whether an order pursuant to G. L. c. 209A should have issued, and a defendant has the right to appeal the issuance of an order against him or her. However, a defendant is not entitled to relitigate each stage of the proceedings,” the Court held. “Here, the defendant was given notice of the extension hearing, which was held two days after the ex parte order issued and, represented by counsel, he was given an opportunity to oppose the extension of the ex parte order. He is not entitled to further review of the ex parte order in this court.”

If you need assistance with a restraining order or have any questions about divorce or family law issues, you may schedule a free consultation with our experienced attorneys. Call 978-225-9030 during regular business hours or complete our online contact form, and we will respond to your phone call or submission promptly.