D.S. v. C.A.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1085

D.S.

vs.

C.A.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a G. L. c. 209A abuse prevention

order (209A order) issued following a hearing after notice in

the District Court. We are not persuaded that the way the judge

conducted the hearing deprived the defendant of due process.

However, because we are unable to determine whether the judge

applied the correct standard when she issued the order, we

vacate the order and remand the matter to the District Court.

Background. The parties are the parents of a young child.

On April 11, 2024, the plaintiff (the child's father) filed a

complaint for protection from abuse, see G. L. c. 209A, § 3,

supported by an affidavit averring that the defendant (the

child's mother) had physically abused him in the child's
presence on May 27, 2021, December 7, 2023, and March 9, 2024,

and stating that he was afraid for his own safety and that of

the child. The plaintiff's request for an ex parte order was

denied and the matter went forward as a two-party hearing after

notice on May 2, 2024. Neither party was represented by counsel

at the May 2 hearing; an interpreter appeared by video

conference to assist the defendant. After taking evidence from

both parties, the judge entered the 209A order in favor of the

plaintiff. Although the docket reflects that the order issued

"with a finding that there is a substantial likelihood of

immediate danger of abuse," the judge did not make any other

written findings; the judge's oral findings were limited to her

statement to the parties that they "shouldn't be involved with

each other anymore."

Discussion. 1. Due process. A defendant in a hearing

conducted pursuant to G. L. c. 209A is entitled to due process

including a meaningful opportunity to be heard. See M.M. v.

Doucette, 92 Mass. App. Ct. 32, 34 (2017). The judge conducting

the hearing must provide both parties "an opportunity to address

the material and determinative allegations at the core of a

party's claim or defense and to present evidence on the

contested facts." Idris I. v. Hazel H., 100 Mass. App. Ct. 784,

788 (2022). After reviewing the audio recording of the two-

party hearing, which reflects the judge's tone and timing in a

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way that is not captured in the transcript of that hearing, we

are not persuaded that the way the judge conducted the hearing

deprived the defendant of these rights.

We do not agree that the judge's management of the

evidentiary hearing deprived the defendant of an opportunity to

present her evidence or to respond to the evidence the judge

considered germane to the plaintiff's complaint under G. L.

c. 209A. Although the defendant opened her testimony by stating

that "everything that [the plaintiff] just said is a lie," the

defendant did not seek to cross-examine the plaintiff. Instead,

she focused on "clarify[ing] what happened" on May 27, 2021,

when she admitted to having punched the plaintiff. When the

judge responded by saying, in essence, that she did not consider

the 2021 incident significant support for the plaintiff's

request for an order in 2024, the defendant did not object or

tell the judge that she wished to provide any other testimony.

Cf. Idris I., 100 Mass. App. Ct. at 790 (defense counsel made

"repeated but unsuccessful efforts . . . to make an offer of

proof").

The recording of the hearing likewise fails to support the

defendant's contention that the judge treated the plaintiff more

favorably than the defendant or that the judge penalized the

defendant for her reliance on the translator. The judge

provided each party with an open-ended invitation to explain

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their position, then asked more detailed questions focused on

the considerations relevant to the judge's assessment of the

merits of the plaintiff's complaint. Although the plaintiff

opted to speak at greater length than the defendant did, the

judge gave the parties fair and equal opportunities to be heard.

Cf. C.O. v. M.M., 442 Mass. 648, 657-658 (2004) (vacating 209A

order where "defendant was not given any opportunity to present

or to cross-examine witnesses").

We are likewise unpersuaded that the defendant's statement

that she was in fear of the plaintiff required the judge to

consider whether to issue a 209A order sua sponte in favor of

the defendant and against the plaintiff. There was no request

for mutual restraining orders. Nor has the defendant persuaded

us that the judge was required to make explicit findings about

which party was "the real victim" and which "the primary

aggressor."

We find no support in the record for the defendant's claim

that the judge demonstrated "impatience and refus[ed] to listen

to" the defendant's testimony based on the involvement of a

remote interpreter. Whatever the judge's initial reservations

about the practicality of the translator's appearance at the

hearing by teleconference, the judge demonstrated patience with

the process throughout the hearing. We discern no foundation

for the defendant's contention that the judge "severely

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truncated" the defendant's testimony "due to the [judge's]

discomfort with the remote interpreter." In short, the judge's

management of the hearing did not infringe upon the defendant's

due process rights. Cf. C.O., 442 Mass. at 656.

2. Basis for issuing the order. A plaintiff is entitled

to the issuance of a 209A order on a showing, by a preponderance

of the evidence, that the plaintiff suffers from "abuse." G. L.

c. 209A, § 1, as amended through St. 1996, c. 450, § 232; Iamele

v. Asselin, 444 Mass. 734, 736-737 (2005). At the time of the

hearing at issue in this case, that burden could be met by

demonstrating that the plaintiff was currently in fear of

imminent serious physical harm and that the fear was reasonable,

see id. at 737, or that the plaintiff had suffered past physical

abuse by the defendant and continued to suffer the ongoing

effects of that physical harm. See Vera V. v. Seymour S., 98

Mass. App. Ct. 315, 317 (2020); Yahna Y. v. Sylvester S., 97

Mass. App. Ct. 184, 186 (2020). We review the issuance of a

209A order for an abuse of discretion or other error of law.

See Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020).

Here, the plaintiff offered evidence which, if credited by

the judge, would have supported the issuance of the challenged

209A order, based on the plaintiff's ongoing fear of imminent

serious physical harm to himself and the parties' child. See

G. L. c. 209A, § 1. The judge's findings after the hearing,

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however, did not address those points. After asking whether the

parties were averring that they were "both in fear of each

other" and receiving confirmation, the judge said only "you

shouldn't be involved with each other anymore." On the record

before us, we cannot be confident that the judge issued the

order because she credited the plaintiff's evidence and found

that he was suffering from "abuse." Absent that finding, the

judge could not permissibly issue an order on the grounds that

it was desirable for the parties to stay away from each other.

See Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). We

must therefore vacate the order and remand the matter to the

District Court for further proceedings.

Conclusion. The May 2, 2024 order issued pursuant to G. L.

c. 209A is vacated. The case is remanded to the District Court

for further proceedings consistent with this memorandum and

order.

So ordered.

By the Court (Hand, Hodgens &
Tan, JJ. 1),

Clerk

Entered: December 29, 2025.

1 The panelists are listed in order of seniority.

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