In the Matter of the Petition for Temporary Protective Order: A.N. v. K.G. , 2014 Ind. App. LEXIS 258 ( 2014 )

FOR PUBLICATION
ATTORNEYS FOR APPELLANT:
Jun 11 2014, 6:18 am
SUZY ST. JOHN
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE PETITION FOR )
TEMPORARY PROTECTIVE ORDER: )
)
A.N., )
)
Appellant-Respondent, )
)
vs. ) No. 49A04-1212-PO-649
)
K.G., )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Barbara Crawford, Judge
Cause No. 49G21-1005-PO-22136
June 11, 2014
OPINION ON REHEARING - FOR PUBLICATION
RILEY, Judge
In the instant case, appellant-respondent, A.N. appealed the trial court’s order of
contempt, asserting that the trial court improperly acted as advocate for the appellee-
petitioner, K.G., thereby violating her due process right to a fair trial before an impartial
tribunal. Affirming the trial court, we concluded that A.N.’s due process rights had not
been violated. Additionally, in a footnote, we noted that A.N. had waived her challenge
to the twenty-eight year extension of K.G.’s protective order because the record indicated
that she had expressly agreed to “an extension of the protective order.” A.N. v. K.G., 3
N.E.3d 989 (Ind. Ct. App. 2014).
Now, A.N. petitions for rehearing, arguing that, while she had “no objection to the
extension” of the protective order because of a new sentence she had incurred, she did not
agree to the specific term imposed by the trial court. (Transcript p. 80). We grant A.N.’s
petition for rehearing for the limited purpose to review the trial court’s decision to extend
the protective order for twenty-eight years.
Our Legislature has dictated that the Civil Protection Order Act (CPOA) shall be
construed to promote the: (1) protection and safety of all victims of domestic or family
violence in a fair, prompt and effective manner; and (2) prevention of future domestic
and family violence. Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind. Ct. App.
2003) (citing Ind. Code § 34-26-5-1). Generally, a trial court has discretion to grant
protective relief according to the terms of the CPOA. See I.C. § 34-26-5-9. Thus, a
finding by the trial court that domestic or family violence has occurred sufficient to
justify the issuance of an order for protection means that the respondent represents a
credible threat to the safety of the petitioner. See I.C. § 34-26-5-9(f). Therefore, upon a
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showing of domestic or family violence by a preponderance of the evidence, the trial
court “shall grant relief necessary to bring about a cessation of the violence or the threat
of violence.” I.C § 34-26-5-9(f). Although the CPOA provides that the modification of
an order for protection is “effective for two (2) years after the date of issuance unless
another date is ordered by the court,” the Act does not provide us with any guidelines for
reviewing a trial court’s discretionary relief which extends beyond the statutory two-year
term nor have we had an occasion to formulate appropriate standards.
The trial court, foregoing the Legislature’s suggested two-year term, imposed a
twenty-eight year extension on the protective order, set to expire November 29, 2040. In
Barger v, Barger, 887 N.E.2d 990, 993-94 (Ind. Ct. App. 2008) (internal citations
omitted), we addressed the significant ramifications of an improperly granted protective
order:
For example, at the state level, violation of the trial court’s protective order
is punishable by confinement in jail, prison, and/or a fine. Furthermore,
after the trial court has issued a protective order, it is a federal offense for a
respondent to purchase, receive, or possess a firearm if the protected person
is his current or former spouse, a current or former significant other, or a
person with whom the respondent has a child. Thus, an improperly granted
protective order may pose a considerable threat to the respondent’s liberty.
The same concerns pertain to an improperly granted extension of an existing protective
order.
Mindful of the purpose of the statute, we find that granting an extension in which
there is no finding of domestic violence is at odds with the concerns underlying the
statute, namely “the prevention of future domestic and family violence.” See I.C. § 34-
26-5-1. Moreover, because an extension is necessarily derived from the original
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protective order, the trial court’s determination must be viewed in light of the continuing
harm or the threat of continuing harm that necessitated the issuance of the protective
order in the first instance. As an order for protection can impose significant restrictions
on a respondent’s freedom of movement and other rights, the extension must be equally
supported by a court’s conclusion that such additional time, in excess of the statutorily
two-year approved extension, is necessary to protect the petitioner and to bring about a
cessation of the violence or the threat of violence. Absent findings in the present case,
we find that the twenty-eight year extension of the protective order is unreasonable.
However, because A.N. agreed to an extension, we remand to the trial court to determine
a reasonable extension of K.G.’s protective order in accordance with the instructions in
this opinion.
The petition for rehearing is granted for the purpose of reviewing the extension to
a protective order. Otherwise, we stand by our previous opinion.
KIRSCH, J. and ROBB, J. concur
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