Rasha El Adawy v. Mary Sanders (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Jun 12 2015, 5:26 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Rasha El Adawy Thomas L. Landwerlen
Carmel, Indiana Landwerlen & Rothkopf, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rasha El Adawy, June 12, 2015
Appellant-Respondent, Court of Appeals Case No.
49A05-1409-PO-445
v. Appeal from the Marion Superior
Court
Mary Sanders, The Honorable Gary L. Miller,
Judge
Appellee-Petitioner.
Trial Court Case No.
49G21-1404-PO-010832
Mathias, Judge.
[1] Rasha El Adawy (“El Adawy”) appeals the trial court’s issuance of a protective
order against her in favor of Dr. Mary Sanders (“Dr. Sanders”). El Adawy
raises two issues on appeal, which we restate as:
1) Whether the evidence was sufficient to issue a protective order, and
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2) Whether the trial court abused its discretion in admitting evidence
relating to El Adawy’s mental health diagnoses and treatment.
[2] We affirm.
Facts and Procedural History
[3] El Adawy is a former patient of psychologist Dr. Mary Sanders (“Sanders”). On
March 7, 2012, El Adawy terminated their professional relationship. However,
over the next two years, and despite the termination of their professional
relationship, El Adawy continued to contact Dr. Sanders repeatedly. Those
contacts included dozens of phone calls, voicemails, faxes, emails to Dr.
Sanders’s office and to her personal email account, cards and packages sent
through the mail and delivered in person to Dr. Sanders’s office, threats to file
complaints against Dr. Sanders, and a Facebook friend request. Dr. Sanders
also became aware that El Adawy had printed out a photograph of Dr. Sanders
and carried it around with her. In a March 2014 email to Dr. Sanders, El
Adawy began with “[h]ere I go contacting you after promising over and over
never to do it again” and later in the lengthy email made reference to the Jodi
Arias murder case and asked Dr. Sanders if she “still think[s] I am homicidal.”
Appellee’s App. p. 117.
[4] El Adawy’s behavior frightened Dr. Sanders and her staff so much that for the
first time in her thirty-year career, Dr. Sanders instituted home and office safety
protocol plans with professional security providers. She also reached out to a
professional psychology organization for advice on how to deal with El
Adawy’s conduct. On April 3, 2014, Dr. Sanders filed a petition for a protective
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order against El Adawy, alleging that El Adawy’s behavior constituted stalking.
The trial court issued an ex parte protective order, then held a hearing on the
protective order on September 9, 2014. At the hearing, Dr. Sanders testified that
she “felt incredibly threatened by the drama that [El Adawy] was bringing to
the office, and my experience of threats, and my inability to be successful in
setting boundaries because I was no longer her therapist.” Tr. p. 13. Dr.
Sanders also testified that she was particularly alarmed by El Adawy’s email
referencing Jodi Arias, a woman who was convicted of brutally murdering her
boyfriend and who was, like El Adawy, diagnosed with borderline personality
disorder. Dr. Sanders testified that given her knowledge of El Adawy’s mental
health issues, she “started to become very frighten[ed] [that] she’s at least
thinking about violent behavior.” Tr. p. 15.
[5] After hearing the evidence, the trial court held that the ex parte order of
protection should remain in effect until September 9, 2016.
[6] El Adawy now appeals.
I. Sufficiency of the Evidence
[7] We begin by noting that the El Adawy’s appellant’s brief is deficient in many
respects. In Indiana, it is well settled that pro se litigants are held to the same
standard as licensed attorneys. Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind. Ct.
App. 2005). El Adawy provides no statements of the applicable standards of
review, which is required by Indiana Appellate Rule 46(A)(8). A party waives
an issue where the party fails to provide a statement of the standard of review.
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See Ramsey v. Review Bd. of Workforce Dev., 789 N.E.2d 486, 490 (Ind. Ct. App.
2003) (holding that the claimant’s substantial noncompliance with rules of
appellate procedure resulted in waiver of his claims on appeal). El Adawy has
therefore waived the issues raised in this appeal. Waiver notwithstanding, we
will briefly address the issues raised in El Adawy’s brief, as best as we are able
to discern them.1
[8] El Adawy first argues that the evidence was insufficient to support the issuance
of the civil protection order against her. Specifically, she argues that her
relationship with Dr. Sanders was professional, not domestic, and that Sanders
did not provide any evidence that El Adawy threatened her. In reviewing the
sufficiency of the evidence to support the issuance of such an order, we apply
the familiar test for determining the sufficiency of evidence. See Tons v. Bley, 815
N.E.2d 509, 511 (Ind. Ct. App. 2004). Thus, we neither reweigh the evidence
nor resolve questions of credibility, and we look only to evidence supporting the
trial court’s judgment, together with the reasonable inferences to be drawn
therefrom. Id.
[9] Under Indiana Code section 34-26-5-2(a):
A person who is or has been a victim of domestic or family
violence may file a petition for an order for protection against a:
1
While we will endeavor to address the issues presented, we will not address those arguments that are so ill-
formed and unsupported that we cannot fully understand them. We may not become an advocate for El
Adawy and make her case for her. See Omni Ins. Group v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012);
Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003).
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(1) family or household member who commits an act of domestic
or family violence; or
(2) person who has committed stalking under IC 35-45-10-5 or a
sex offense under IC 35-42-4 against the petitioner.
Dr. Sanders’s petition for an order for protection alleged that she was a victim
of stalking by El Adawy, and the trial court’s order found that Dr. Sanders
proved by a preponderance of the evidence that stalking occurred.
[10] Stalking is defined as “a knowing or an intentional course of conduct involving
repeated or continuing harassment of another person that would cause a
reasonable person to feel terrorized, frightened, intimidated, or threatened and
that actually causes the victim to feel terrorized, frightened, intimidated, or
threatened.” Ind. Code § 35-45-10-1. The course of conduct required to
constitute stalking as grounds for issuance of a protective order need not involve
any threats to the victim. Andrews v. Ivie, 956 N.E.2d 720 (Ind. Ct. App. 2011).
[11] “Harassment” is defined as “conduct directed toward a victim that includes but
is not limited to repeated or continuing impermissible contact that would cause
a reasonable person to suffer emotional distress and that actually causes the
victim to suffer emotional distress.” Ind. Code § 35-45-10-2. For acts of
harassment to be “repeated,” and thus prohibited under anti-stalking law, acts
must occur more than once. Johnson v. State, 721 N.E.2d 327 (Ind. Ct. App.
1999).
[12] Here, the evidence favorable to the trial court’s judgment showed that El
Adawy contacted Dr. Sanders nearly fifty times after the termination of their
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psychologist-patient relationship. Those contacts included voicemails, faxes,
dozens of emails to Dr. Sanders’s office and to her personal email account,
cards and packages sent through the mail and delivered in person to Dr.
Sanders’s office, threats to file complaints against Dr. Sanders, a Facebook
friend request, and phone calls. Some of those contacts were requests from El
Adawy for medical records, and some were requests to be referred to another
therapist. Others were more alarming, such as the aforementioned Jodi Arias
reference, an “Email from Respondent to Personal Email suggesting I put my
picture on my website and promising not to again print off my picture and carry
it with her,” Appellee’s App. p. 108, “extremely negative reviews [of] Petitioner
and in one of those reviews, [asking] God for justice,” Id. at 110, a twenty-six
page letter, an attempt to access information about Dr. Sanders on
PsychologyToday.com, and a voicemail stating that Dr. Sanders “doesn’t have
to worry anymore because I will not be here for anyone to worry about me,” Id.
at 109.
[13] Dr. Sanders notified El Adawy on May 8, 2013 that she would no longer accept
communications from her, she refused cards and packages sent by El Adawy,
she consulted other professionals for advice on how to deal with the situation,
and she responded to a March 26, 2014 email from El Adawy with a message
stating that she no longer wanted any direct contact with El Adawy. Dr.
Sanders testified that El Adawy persisted in contacting her despite this and that
El Adawy’s conduct caused Dr. Sanders and her office staff to feel “incredibly
threatened.” Tr. p. 13. It is unclear when Dr. Sanders notified El Adawy for the
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first time that she wanted no further contact, but the tone of El Adawy’s
communications indicate that El Adawy was aware that her contact was
unwelcome. El Adawy argues that she never outright threatened Dr. Sanders,
but we have held that contact need not be threatening on its face to constitute
stalking. See Maurer v. Cobb-Maurer, 994 N.E.2d 753 (Ind. Ct. App. 2013) (there
is no requirement in the anti-stalking statute that the contact at issue be
threatening on its face, and stalking may be found where other evidence is
sufficient to prove that the contact amounted to harassment).
[14] Under these facts and circumstances, we conclude that Dr. Sanders presented
sufficient evidence to prove that El Adawy stalked her. See Andrews v. Ivie, 956
N.E.2d 720 (Ind. Ct. App. 2011) (evidence supported finding that respondent
engaged in knowing or intentional course of conduct involving repeated or
continuing harassment of petitioner; despite petitioner’s demands that
respondent leave her alone, respondent initiated multiple contacts, including
gifts, emails, texts, and social network messages, and petitioner testified that the
unwelcome contacts caused her emotional distress). Cf. Maurer v. Cobb-Maurer,
994 N.E.2d 753 (Ind. Ct. App. 2013) (evidence was insufficient to establish
stalking where only one email was admitted into evidence, there was no
evidence that petitioner asked respondent to cease contacting her, and
petitioner did not testify regarding the effect respondent’s contacts had on her).
II. Mental Health Records
[15] El Adawy also argues that the trial court erred in admitting evidence related to
her mental health diagnoses and treatment. She specifically challenges the
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admission of voicemails she left Dr. Sanders, Dr. Sanders’s testimony about her
communications with El Adawy (some of which relate to El Adawy’s mental
health issues), and Dr. Sanders’s testimony about El Adawy’s behaviors that
coincide with her diagnosed mental health issues. El Adawy concedes that she
did not object to the admission of the evidence at trial and, in fact, at least twice
expressly consented to admission. El Adawy now contends, however, that the
trial court’s admission of the evidence constitutes a violation of her due process
rights because the trial court “did not take into consideration her emotional and
psychological condition, which put her in an extremely weak position, and
made it difficult for her to make a decision as to whether to waive her
(“HIPAA”) rights or not.”2 Appellant’s Br. at 38. El Adawy’s argument appears
to be that some of the evidence presented at the hearing was confidential due to
the psychologist-patient privilege that existed between herself and Dr. Sanders
and that the trial court erred in accepting her waiver of the privilege because she
did so unknowingly or unintentionally.
[16] The psychologist-patient privilege is codified at Indiana Code section 25-33-1-
17, which states that “[a] psychologist licensed under this article may not
disclose any information acquired from persons with whom the psychologist
has dealt in a professional capacity.” Pursuant to the statute, the privilege does
not apply where “the psychologist has the expressed consent of the client” to
disclose the information. Id.
2
Both parties refer in their briefs to “HIPAA rights.” We assume that, by this, they mean communications
made confidential by the psychologist-patient privilege.
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[17] Because El Adawy expressly and affirmatively consented to the admission of
the evidence, and because El Adawy again failed to provide a statement of the
applicable standard of review or cite to cogent authority as required by
Appellate Rule 46(A)(8), this issue is waived. See Ramsey, 789 N.E.2d at 490.
Waiver notwithstanding, her claim has no merit. Although El Adawy contends
that she was unaware of the implications of her consent, her statements and
those of her counsel indicate otherwise. Immediately prior to Dr. Sanders’s
testimony, El Adawy’s counsel declared, “My client had a medical therapeutic
relationship [with] the Plaintiff, and she waives her—my client, being advised,
waives her HIPAA rights.” Tr. p. 3 (emphasis added). Later in the proceeding,
Dr. Sanders’s counsel asked El Adawy, “You heard your lawyer at the
beginning of the trial saying that you are waiving your HIPAA rights. Did you
hear him say that?” El Adaway answered, “Yes, he asked me and I said ‘yes.’”
Tr. p. 81. Dr. Sanders’s counsel asked, “And you agree with that on the
record,” and El Adaway responded, “Yes, absolutely.” Id. Under these facts
and circumstances, it is clear that El Adawy waived the psychologist-patient
privilege protecting her conversations and communications with Dr. Sanders.
El Adaway stated unequivocally that she consented to the admission of
evidence related to her mental health and her counsel’s statement indicates that
he had advised her beforehand regarding her waiver.
Conclusion
[18] By failing to comply with Appellate Rule 46(A)(8), El Adawy waived the issues
presented in this appeal. Waiver notwithstanding, we conclude that Dr. Sanders
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presented sufficient evidence to support the trial court’s issuance of the
protective order and that the trial court did not abuse its discretion in admitting
evidence of El Adawy’s mental health diagnoses and treatment.
[19] Affirmed.
May, J., and Robb, J., concur.
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