K.H. v. Ki. H. by Child's Next Friend N.D. (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Jan 03 2020, 9:05 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT
Shannon L. Robinson
Shannon Robinson Law
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
K.H., January 3, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-PO-1558
v. Appeal from the Monroe Circuit
Court
Ki. H. by Child’s Next Friend The Honorable Judith Benckart,
N.D., Judge
Appellee-Petitioner Trial Court Cause No.
53C08-1906-PO-1358
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PO-1558 | January 3, 2020 Page 1 of 5
[1] K.H. (“Father”) appeals the trial court’s grant of a protective order requested
for Ki.H. (“Child”) by Child’s next friend, N.D. (“Mother”). Because the trial
court did not make findings to support its conclusion a protective order should
be issued, we reverse.
Facts and Procedural History
[2] Mother and Father are parents of Child. Mother and Father are in the process
of a divorce. On June 18, 2019, Mother filed a petition for an order of
protection on behalf of Child based on an alleged incident in which Child
sustained bruises. The trial court held a hearing on the matter on June 20,
2019, granted Mother’s petition on behalf of Child, and issued a six-month
Order of Protection.
Discussion and Decision
[3] We first note Child, by next friend, Mother, did not file an appellee’s brief.
When an appellee does not submit a brief, we do not undertake the burden of
developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42
(Ind. Ct. App. 2002). Instead, we apply a less stringent standard of review and
may reverse if the appellant establishes prima facie error. Id. Prima facie error is
“error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van
Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).
[4] Indiana Code section 34-26-5-2(a) establishes the criteria by which a trial court
may grant an Order of Protection:
Court of Appeals of Indiana | Memorandum Decision 19A-PO-1558 | January 3, 2020 Page 2 of 5
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) 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.
Indiana Code section 34-26-5-9 gives the trial court authority to issue an Order
of Protection based on the elements set forth in Indiana Code section 34-26-5-
2(a). A person who requests a protective order must prove one of the elements
of Indiana Code section 34-26-5-2(a) by a preponderance of the evidence.
Essany v. Bower, 790 N.E.2d 148, 154-55 (Ind. Ct. App. 2003). In granting an
Order of Protection, the trial court must sua sponte make special findings
regarding at least one of the elements listed in Indiana Code section 35-26-5-
2(a). Hanuuer v. Hanauer, 981 N.E.2d 147, 148 (Ind. Ct. App. 2013).
[5] Here the trial court made the following findings:
This matter having been heard by the Court on 6/20/2019
pursuant to Indiana Code 34-26-5-10, the Court now makes the
following Findings:
a. N/A
b. The Court is required to hold a hearing pursuant to
Indiana Code § 34-26-5-10(b).
Court of Appeals of Indiana | Memorandum Decision 19A-PO-1558 | January 3, 2020 Page 3 of 5
c. The Petitioner was present at the hearing and the
Respondent was present.
d. This order does protect an intimate partner or child.
e. The Respondent had notice and an opportunity to be
heard.
f. N/A
g. N/A
h. The Respondent does not agree to the issuance of the
Order for Protection.
i. The following relief is necessary to bring about a
cessation of the violence or threat of violence.
(App. Vol. II at 6.) The rest of the order indicates Father was enjoined from
committing or threatening to commit other acts of domestic or family violence
against Mother, Child, and two other people; that Father was to stay away from
Mother’s house and place of employment; and Father has limited supervised
visitation with Child. Nowhere in the order does the trial court indicate that
Child, the subject of the order was either (1) a victim of domestic or family
violence or (2) a victim of stalking as required by Indiana Code section 34-26-5-
2(a).
[6] As the trial court made no such finding, we conclude Father has presented
prima facie error, and we reverse. See Tisdial v. Young, 926 N.E.2d 783, 785 (Ind.
Court of Appeals of Indiana | Memorandum Decision 19A-PO-1558 | January 3, 2020 Page 4 of 5
Ct. App. 2010) (trial court may issue or modify an order for protection only
upon finding that domestic or family violence has occurred), trans. denied.
Conclusion
[7] The trial court did not make a finding of domestic or family violence or of
stalking as to support its conclusion to issue an order of protection on behalf of
Child against Father. Accordingly, we reverse.
[8] Reversed.
Crone, J., and Pyle, J., concur.
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