H.W. v. M.R.

FILED Jun 16 2025, 9:28 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana H.W., Appellant

v.

M.R., Appellee

June 16, 2025 Court of Appeals Case No. 25A-PO-16 Appeal from the Scott Circuit Court The Honorable Alison T. Frazier, Magistrate Trial Court Cause No. 72C01-2407-PO-123

Opinion by Judge Brown Judges Bailey and Weissmann concur.

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Brown, Judge. [1] H.W. appeals from the trial court’s order of protection issued in favor of M.R.

and claims the court clearly erred because the evidence is insufficient to support

the order. We agree and reverse.

Facts and Procedural History [2] H.R. is the father of M.R. H.W. is H.R.’s thirty-one-year-old girlfriend. On

July 12, 2024, then twenty-four-year-old M.R. filed a petition for protective

order against H.W. alleging that she had committed “repeated acts of

harassment.” Appellant’s Appendix Volume II at 11. 1 Specifically, M.R.

alleged that, on or about July 10, 2024, H.W. was “sharing my personal

information from my cell phone with people, and she shouldn’t have.” Id. at

12. 2 M.R. also alleged that, on or about July 9, 2024, H.W. “called Law

Enforcement to come to my boyfriend’s home for no reasons.” Id. M.R.

alleged that due to these acts, H.W. had “placed [M.R.] in fear of physical

harm.” Id. M.R. requested an order of protection to prohibit H.W. “from

committing, or threatening to commit, acts of domestic or family violence,

1 M.R. also filed a petition for protective order against her father, H.R. The trial court granted that petition, and we reversed that ruling by published opinion in H.R. v. M.R. (filed May 30, 2025) Ind. App. No. 25A- PO-17. 2 The record indicates that H.W. and H.R. were in possession of M.R.’s cell phone, which was owned by H.R., during the majority of June and July 2024 while M.R. was in an inpatient alcohol treatment program.

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stalking” against M.R. or her daughter, and “from harassing, annoying,

telephoning, contacting, or directly or indirectly communicating” with her. Id. [3] On August 19, 2024, H.W. filed a Verified Motion to Dismiss Protective Order

as a Matter of Law. She alleged that neither of M.R.’s allegations met the

requirement for harassment. Regarding the first alleged incident, H.W. noted

that the phone referenced by M.R. “is owned by Respondent’s partner (the

Petitioner’s father) and the ‘personal’ information is ambiguous.” Id. at 23-24.

Regarding the second alleged incident, H.W. noted that she and H.R. “are very

concerned about [M.R.’s] excessive drug and alcohol use so much that they

petitioned for guardianship of [M.R.].” Id. at 24. H.W. denied calling the

police on M.R.’s boyfriend but admitted that she “did call law enforcement to

request his address as this was pertinent for the guardianship matter.” Id.

H.W. argued that neither of the alleged incidents “indicate harassment and

repeated impermissible conduct.” Id. (emphasis omitted). On the same date,

H.W. filed a Motion for the Court to Take Judicial Notice of the guardianship

proceedings under cause number 72C01-2407-GU-42. The court denied the

motion to dismiss on August 20, 2024. On November 6, 2024, H.W. filed

another motion to dismiss pursuant to Ind. Trial Rule 12(B)(6). [4] The court held an evidentiary hearing on November 8, 2024. At the outset, the

court denied H.W.’s second motion to dismiss. M.R. then testified about her

allegations of harassment against H.W. M.R. stated that H.W. had been with

her father, H.R., for “close to three years,” and that her relationship with H.W.

started out “okay” but then “kinda slowly went downhill.” Transcript Volume

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II at 8-9. M.R. surmised that the problems in her relationship with H.W.

stemmed from H.W.’s “jealousy” due to their “closeness in age.” Id. at 9.

M.R. recounted that her mother received “text messages” from H.R.’s ex-

fiancée who had received them from H.W. Id. at 13. M.R. stated that H.W.

had shared with H.R.’s ex-fiancée a screenshot of a video her father had taken

of her holding a firearm while she was “visibly distraught.” Id. at 14. 3 She

testified that she felt “sad” and “confused” when she found out the screenshot

had been shared. Id. at 15. M.R. also stated that, in September, H.W. had sent

a friend request on Facebook to M.R.’s “current boyfriend.” Id. [5] M.R.’s mother testified that she received text messages from H.R.’s ex-fiancée,

which included a picture of M.R. holding a firearm and also pictures of “little

shooter bottles” in M.R.’s possession. Id. at 22. She stated that the pictures

purportedly came from H.W. M.R.’s mother also stated that when she was

leaving court with M.R. after H.R.’s petition for “guardianship was not

granted,” H.W. started “yelling at us.” Id. at 27. M.R.’s mother further stated

that after H.R. had filed for guardianship of M.R., M.R. called her and told her

that H.W. was “trying to get [M.R.’s new boyfriend’s] address and she was

scared that they were coming there to get her[.]” Id. at 30.

3 The record reveals that during the relevant time-period, M.R. struggled with alcohol abuse and that the video was taken after H.R. had just retrieved M.R. from an alcohol treatment center. Shortly after the above- mentioned video was taken, H.R. called the police and M.R. was transported to the hospital. M.R. and her daughter subsequently began residing with H.R. and, with H.R.’s help, M.R. entered another alcohol treatment center in June of 2024.

Court of Appeals of Indiana | Opinion 25A-PO-16 | June 16, 2025 Page 4 of 12 [6] H.W. testified that, as of the date of the evidentiary hearing, she had not had

any contact with M.R. for around nine months. She explained that her

intention “in sending that screenshot of M.R. holding a firearm” was to show

that M.R. was a “danger to herself” and to clear up what she believed was a lie

M.R. had told H.R.’s ex-fiancée regarding why H.R. was seeking guardianship.

Id. at 40. 4 H.W. admitted that she did call “an apartment complex” to obtain a

physical address for M.R. so that she and H.R. could “get proper service on

M.R.” for the guardianship paperwork. Id. at 42. [7] On December 6, 2024, the trial court issued its findings of fact, conclusions

thereon, and order granting M.R.’s request for a protective order. In relevant

part, the court found that H.W.’s “actions in viewing and sharing highly

personal and sensitive images of and about [M.R.] with other people, accessing

and viewing [M.R.’s] private Facebook messages, contacting others in an

attempt to locate [M.R.], and assisting [H.R.] in his pursuit of guardianship [of

M.R.] amounts to repeated or continuing impermissible contact directed at

[M.R.].” Appellant’s Appendix Volume II at 52. The court found that H.W.’s

“repeated intrusions into [M.R.’s] very personal and private affairs would cause

a reasonable person to suffer emotional distress and actually caused [M.R.] to

suffer emotional distress.” Id. The court concluded that the evidence supported

a finding that H.W. had committed “repeated acts of harassment” against M.R.

4 H.W. denied purposefully accessing M.R.’s Facebook account and stated that she learned of M.R.’s alleged lie to H.R.’s ex-fiancée when she saw M.R.’s private Facebook messages “come across on the lock screen” of M.R.’s cell phone that H.R. owned and possessed at the time. Transcript Volume II at 35.

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entitling her “to an order of protection in accordance with the Indiana Civil

Order Protection Act and I.C. 34-26-5-2.” Id. Accordingly, the court granted

an order of protection in favor of M.R. and against H.W. for a period of one

year.

Discussion [8] H.W. argues that the trial court erred in granting M.R.’s petition for a

protective order because “M.R. failed to establish that [she] posed a credible

threat of physical harm.” Appellant’s Brief at 13. H.W. further asserts that the

trial court erred in finding that she harassed M.R. because her “involvement

with third party matters—viewing and sharing images, accessing messages, and

helping H.R. with a guardianship” did not constitute “impermissible contact.”

Id. at 18. [9] Before addressing H.W.’s arguments, we note that M.R. did not file an

appellee’s brief. When an appellee fails to submit a brief, we do not undertake

the burden of developing arguments, and we apply a less stringent standard of

review, that is, we may reverse if the appellant establishes prima facie error.

Bixler v. Delano, 185 N.E.3d 875, 877-878 (Ind. Ct. App. 2022) (citing Zoller v.

Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006)). Prima facie is defined as “at

first sight, on first appearance, or on the face of it.” Id. (quoting Graziani v. D &

R Const., 39 N.E.3d 688, 690 (Ind. Ct. App. 2015)). This rule was established

so that we might be relieved of the burden of controverting the arguments

advanced in favor of reversal where that burden properly rests with the

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appellee. Id. (citing Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App.

2002)). [10] As this case involves the issuance of a protective order, we begin by noting we

are mindful that in 2023, the Indiana Supreme Court observed, “[t]hree years

ago, we recognized that domestic and family violence is ‘a public-health crisis

that harms both the victim and those within the victim’s household.’ Since that

decision, the crisis in Indiana has—unfortunately—only intensified.” S.D. v.

G.D., 211 N.E.3d 494, 495 (Ind. 2023) (quoting S.H. v. D.W., 139 N.E.3d 214,

216 (Ind. 2020)). [11] “When reviewing a petition for a protective order, our trial courts are directed

by Indiana’s Civil Protection Order Act.” Id. The Act, enacted in 2002, has the

express purpose of promoting the: “(1) protection and safety of all victims of

domestic or family violence in a fair, prompt, and effective manner; (2)

protection and safety of all victims of harassment in a fair, prompt, and effective

manner; and (3) prevention of future domestic violence, family violence, and

harassment.” Ind. Code § 34-26-5-1. The Act provides, in pertinent part:

(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) 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.

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(b) A person who is or has been subjected to harassment may file a petition for an order for protection against a person who has committed repeated acts of harassment against the petitioner.

Ind. Code § 34-26-5-2. [12] “Harassment” means “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. “[I]mpermissible

contact” includes (1) following or pursuing the victim; (2) communicating with

the victim; and (3) posting on social media if the post is directed to the victim or

refers directly or indirectly to the victim. Ind. Code § 35-45-10-3(a). Further,

this list is nonexclusive. Ind. Code § 35-45-10-3(b). [13] Subsection 9(h) of the Act provides, in relevant part:

A finding that domestic or family violence or harassment has occurred sufficient to justify the issuance of an order under this section means that a respondent represents a credible threat to the safety of a petitioner or a member of a petitioner’s household. Upon a showing of domestic or family violence or harassment by a preponderance of the evidence, the court shall grant relief necessary to bring about a cessation of the violence or the threat of violence. . . .

Ind. Code § 34-26-5-9(h) (emphasis added). “The threat posed by the

respondent is viewed objectively, and the threat must be credible, meaning

plausible or believable.” L.R. b/n/f H.R. v. M.H. b/n/f N.H., 223 N.E.3d 675,

681 (Ind. Ct. App. 2023) (citation omitted). “Thus, the petitioner must prove, Court of Appeals of Indiana | Opinion 25A-PO-16 | June 16, 2025 Page 8 of 12

by a preponderance of the evidence, that there are reasonable grounds to believe

that the respondent presently intends to harm the petitioner or the petitioner’s

family.” Id. If the petitioner meets their burden, the trial court “must issue a

protective order and ‘grant relief necessary to’ end the violence or threat of

violence.” Id. Because “these court-ordered measures may impose significant

restrictions on a respondent’s freedom of movement and other rights,” a court

“faced with a request for protective order must balance, on the one hand, the

need to protect actual and threatened victims against, on the other, the onerous

burden borne by those erroneously subject to such an order.” S.H., 139 N.E.3d

at 219. [14] Protective orders are similar to injunctions and therefore in granting an order

the trial court must make special findings of fact and conclusions thereon. R.H.

v. S.W., 142 N.E.3d 1010, 1014 (Ind. Ct. App. 2020). We apply a two-tiered

standard of review: we first determine whether the evidence supports the

findings, and then we determine whether the findings support the order. Id. In

making these determinations, we neither reweigh the evidence nor determine

the credibility of witnesses, and we consider only the evidence favorable to the

trial court’s decision. T.M. v. T.M., 188 N.E.3d 42, 44 (Ind. Ct. App. 2022),

trans. denied. [15] Turning first to the trial court’s finding that H.W. committed harassment based

upon repeated or continuing impermissible contact, our thorough review of the

record reveals that the evidence does not support that finding. Although the

definition of harassment is somewhat broad, the type of impermissible contact

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contemplated by our statutory law is more narrow and includes things such as

following or pursuing the victim, communicating with the victim, and posting

on social media if the post is directed to the victim or refers directly or indirectly

to the victim. See Ind. Code § 35-45-10-3(a). While we acknowledge that this

list is nonexclusive, we must agree with H.W. that her limited and

noncontinuing involvement with third-party matters—viewing and sharing

images, accessing messages, and helping her partner H.R. with the

guardianship proceedings—are not the type of repeated or direct acts that

constitute impermissible contact. [16] Moreover, even assuming the evidence supported a finding that H.W.’s actions

toward M.R. constituted harassment, neither the evidence nor the trial court’s

findings support the issuance of an order of protection. As noted, to justify the

issuance of an order for protection, the harassment must objectively include a

present and credible threat. S.H., 139 N.E.3d at 220. Although M.R. provided

testimony as to her subjective feelings of emotional distress caused by H.W.’s

actions, her testimony did not include any statement that she is, or ever has

been, in fear of actual harm. The trial court focused heavily on her claims that

H.W. made her feel upset, humiliated, embarrassed, and frightened, but the

court failed to link M.R.’s claims to any objective evidence, as there was none,

to support a finding that H.W. represents a present and credible threat to M.R.’s

safety. [17] While we observe that the Indiana Supreme Court has instructed that “[i]n

close cases . . . when the evidence could lead a court to grant or deny a petition

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. . . the trial court is the one to make that call[,]” S.D., 211 N.E.3d at 498

(quoting S.D. v. G.D., 195 N.E.3d 406, 411 (Ind. Ct. App. 2022) (Altice, J.,

dissenting), trans. granted, opinion vacated), the current case is not one we would

describe as particularly close. Rather, the record contains no evidence that

H.W. ever harmed or threatened to harm M.R. or that she represents a present

credible threat to her safety, as the Act requires. In short, the Act does not

provide relief when no present credible threat to the petitioner’s safety exists.

As this Court has observed, “not all emotional distress is equivalent to the sort

of terror and fear of violence that justifies an injunction against another person’s

behavior.” L.R., 223 N.E.3d at 682 (reversing issuance of protective order

because there was no evidence respondent placed petitioner in fear of physical

harm). Because the record is devoid of the necessary evidence, our review

leaves us firmly convinced that a mistake has been made, and we conclude that

H.W. has met her burden to establish prima facie error. [18] For the foregoing reasons, we reverse the trial court’s order of protection. [19] Reversed.

Bailey, J., and Weissmann, J. concur.

ATTORNEYS FOR APPELLANT Bryan L. Ciyou Ciyou & Associates, P.C. Indianapolis, Indiana

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Anne M. Lowe Fugate Gangstad Lowe, LLC Carmel, Indiana

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