D.B., Appellant-Respondent v. H.H., Appellee-Petitioner (2025)

MEMORANDUM DECISION

[1] D.B. appeals the trial court's entry of an order for protection in favor of H.H. and claims that he was denied due process. We reverse.

Facts and Procedural History

[2] On March 16, 2025, H.H. filed a Petition for an Order for Protection and Request for a Hearing against D.B. alleging that she was a victim of stalking and repeated acts of harassment. H.H. alleged, “[D.B.] sent me over 1,000 text messages attempting to get me to respond,” “[h]e also continued to spam message me after I asked him to leave me alone,” “[D.B.] emails me when I do not respond to his texts,” and “[D.B.] is uncooperative to remove himself or give me information to remove him from my financial information.” Appellant's Appendix Volume II at 9-10.

[3] On April 15, 2025, the court held a hearing at which D.B. and H.H. each appeared without counsel. The court stated, “[a]ll right. [H.H.], explain to me why you need a protection order.” Transcript Volume II at 4. H.H. testified, “[s]o, we [ ] split up [ ] an engagement in February [ ] and since then I've received thousands of text messages from [D.B.], over [ ] a hundred phone calls over the past month from [D.B.] from his phone number and from unknown numbers.” Id. The court stated, “[s]ince you filed for this, has there been any of that,” H.H. replied “[n]o. Not since I –,” the court asked “[i]t stopped,” and H.H. answered “[c]orrect.” Id. The court stated, “[a]ll right. You may respond.” Id. at 5. D.B. testified, “the thousand messages, ․ that happened when ․ like a few days after the break-up. So, I did write the messages. I wrote a script that would send like some messages of me apologizing, but there was nothing like threatening or anything coercive in any of my messages.” Id. The court asked, “[a]ll right. Um, but since you filed it, he's stopped?” Id. H.H. replied, “[m]y concern that causes me to continue to request a [ ] protective order is that before he stopped messaging me, he had admitted to having my location [ ] and several [ ] of my financial accounts, [ ] despite me doing everything [i]n my power to remove his access to both of those things, [ ] and I have no confirmation that he no longer has my location or access to my financial [ ] accounts.” Id. The following exchange then occurred:

The Court: I'm gonna (sic) grant the protection order. Both of ya (sic) -

[D.B.]: Uh –

The Court: - have a seat back there and we'll give you one (1). Give it to you. Just wait. She'll preta – prepare it for you.

Id. The court entered an order for protection.

Discussion

[4] Before addressing D.B.’s arguments, we note that H.H. has not filed 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). Prima facie is defined as “at first sight, on first appearance, or on the face of it.” Id. 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 appellee. Id.

[5] D.B. argues the trial court violated his right to due process by denying him the opportunity to present evidence and “by allowing [H.H] to speak twice while restricting [him] to a single, limited opportunity to speak.” Appellant's Brief at 4. He maintains that H.H. “was allowed to speak again after [he] briefly presented his side, introducing new claims” and that he “was not permitted to respond to those new claims or clarify his position further.” Id. He argues, “[t]his one-sided handling of the hearing resulted in the issuance of a protective order without [him] ever being properly heard.” Id. at 6.

[6] “Generally stated, due process requires notice, an opportunity to be heard, and an opportunity to confront witnesses.” Melton v. Ind. Athletic Trainers Bd., 53 N.E.3d 1210, 1219 (Ind. Ct. App. 2016) (citing Morton v. Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008)). The opportunity to be heard is a fundamental requirement of due process. Id. “[T]his principle includes ‘an opportunity to present every available defense.’ ” Morton, 898 N.E.2d at 1199 (quoting Lindsey v. Normet, 405 U.S. 56, 66 (1972)).

[7] Ind. Code § 34-26-5-2 provides:

(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.

(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.

“Domestic and family violence” includes stalking as defined by Ind. Code § 35-45-10-1. Ind. Code § 34-6-2-34.5.

[8] “Stalk” 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. “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).

[9] Ind. Code § 34-26-5-9(h) provides in 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․

(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, 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. v. D.W., 139 N.E.3d 214, 219 (Ind. 2020) (citation and quotation marks omitted).

[10] Here, the transcript of the April 15, 2025 hearing is contained on two pages and reveals that the proceeding was extremely brief. The court heard H.H.’s statement about receiving messages and calls from D.B. and elicited her acknowledgement that, after she filed her petition, there had not “been any of that.” Transcript Volume II at 4. D.B. stated that nothing in his messages was threatening. H.H. stated that she had “no confirmation that he no longer ha[d] [her] location or access to [her] financial [ ] accounts.” Id. at 5. The court indicated that it was going to grant H.H.’s petition, D.B. stated “Uh –,” and the court told the parties to have a seat. Id. The court did not provide an opportunity for D.B. to respond to H.H.’s final comment, did not ask D.B. if he wished to cross-examine H.H., and did not provide D.B. with an opportunity to present evidence or testify on his own behalf. Our review of the transcript reveals that the court's management of the proceeding fell well short of providing D.B. with an opportunity to be heard and to confront witnesses. Moreover, the court issued the order for protection based on extremely scant testimony. H.H.’s testimony did not include any statement or even an implication that she was in fear of actual physical harm. The record contains no evidence that D.B. represents a present and credible threat to H.H.’s safety. The evidence does not support the court's issuance of the order of protection.

[11] For the foregoing reasons, we reverse the trial court's order.

[12] Reversed.

Brown, Judge.

Altice, C.J., and DeBoer, J., concur.