G.S., Appellant-Respondent v. S.S., Appellee-Petitioner (2025)

MEMORANDUM DECISION

Case Summary

[1] As a result of two incidents between middle schoolers G.S. and S.S. in September 2024, the trial court found that G.S. had engaged in stalking and repeated acts of harassment against S.S. and issued a two-year protective order. G.S. appeals, arguing the evidence was insufficient for the court's issuance of a protective order. Finding insufficient evidence to support the court's order, we reverse.

Facts and Procedural History

[2] On September 11, 2024, G.S. approached S.S. in school while she was standing at her locker. G.S. began yelling at S.S., calling her a “B-word,” and accusing S.S. of spreading a rumor about her. Transcript at 8. G.S. pushed S.S. twice before S.S. was able to leave the situation and go to a teacher's room.

[3] Six days later, on September 17, G.S. posted a video on TikTok that portrayed a cartoon gun, bullet holes, exploding bombs, and fires burning around S.S.’s face. S.S.’s friend told her about the video, and S.S. later sent it to her mom. The next school day, S.S. told the vice principal about the video. G.S. was subsequently removed from in-person instruction and attended school virtually, but it is unclear whether this action was taken because of the September 17 incident or for another reason.

[4] On September 19, S.S.’s mother filed a petition for a protection order on her daughter's behalf against G.S., alleging, among other things, that G.S. had “committed stalking” and “repeated acts of harassment against” her. Appellant's Appendix Vol. 2 at 8-9. At a hearing on October 14, S.S. testified about the September 11 and September 17 incidents. G.S. testified only to say that she had been removed from the school but not due to the September 17 incident and that she could return to school in January 2025. See Tr. at 29-30. Another hearing was held on November 5 at which the school's superintendent testified about how the school would help G.S. honor a protective order, if the court were to issue one, while still allowing the girls to attend their classes and school events.

[5] The trial court issued an order of protection for S.S. against G.S. on November 15, setting it to expire on November 13, 2026. The court found that S.S. showed “by a preponderance of the evidence[ ] that stalking or repeated acts of harassment ha[d] occurred sufficient to justify the issuance of [the] Order.” Appellant's App. Vol. 2 at 14. Under the order, G.S. is “prohibited from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with” S.S. Id. G.S. subsequently filed a motion to correct errors, arguing S.S. did not sufficiently prove the factors necessary to warrant a protective order, but the trial court denied the motion. See id. at 17. G.S. appeals.

Discussion and Decision

[6] Preliminarily, we note that S.S. did not file an appellee's brief. “When the appellee fails to file a brief, we need not undertake the burden of developing an argument” for her. Tisdial v. Young, 925 N.E.2d 783, 784 (Ind. Ct. App. 2010) (citing Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). In such a case, we review the trial court's judgment for prima facie error. Id. “Prima facie error in this context is defined as, at first sight, on first appearance, or on the face of it.” Id. at 785 (quoting Trinity Homes, LLC, 848 N.E.2d at 1068).

[7] G.S. argues there was insufficient evidence to support the trial court's order for protection against her. “When reviewing a trial court's issuance of a protective order, we apply a two-tiered standard of review.” J.T. v. A.H., 255 N.E.3d 512, 517 (Ind. Ct. App. 2025) (citing S.D. v. G.D., 211 N.E.3d 494, 497 (Ind. 2023)), trans denied. We will determine “whether the evidence supports the trial court's findings and, if so, whether the findings support the judgment.” Id. In our review, we consider only the probative evidence and reasonable inferences supporting the court's judgment and will not reweigh evidence or judge witness credibility. Maurer v. Cobb-Maurer, 994 N.E.2d 753, 755 (Ind. Ct. App. 2013).

[8] S.S.’s petition for a protective order alleged she was subject to both stalking and repeated acts of harassment. See Appellant's App. Vol. 2 at 9. The Indiana Civil Protection Order Act permits “[a] parent ․ [to] file a petition for an order for protection on behalf of a child against a: ․ (2) person who has committed stalking under IC 35-45-10-5․ ; [or] (3) person who has committed repeated acts of harassment against the child[.]” Ind. Code § 34-26-5-2(c).¹ 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.” I.C. § 35-45-10-1 (emphasis added). Harassment is “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.” I.C. § 35-45-10-2 (emphasis added). “[T]he harassment must objectively include a present and credible threat.” J.T., 255 N.E.3d at 517.

[9] Indiana Code section 35-45-10-3(a) provides a non-exhaustive list of actions that constitute “impermissible contact” in the context of harassment: (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.

[10] The trial court found that G.S. “represents a credible threat” to S.S.’s safety and that S.S. proved by a preponderance of the evidence “that stalking or repeated acts of harassment [ ] occurred” which were sufficient to justify the protective order. Appellant's App. Vol. 2 at 14. We do not agree.

[11] At the October 14 hearing, S.S. explained the two incidents to the trial court, the first involved yelling and being pushed in the school hallway and the second involved a social media post. However, neither through her testimony nor through the evidence she submitted did she show what effect, if any, these incidents had on her. She presented no evidence that G.S.’s actions actually caused her “to feel terrorized, frightened, intimidated, or threatened” or “to suffer emotional distress,” which are explicit requirements in proving stalking or harassment.² I.C. § 35-45-10-1; I.C. § 35-45-10-2.

[12] With no evidence that S.S. actually felt terrorized, frightened, intimidated, or threatened or suffered emotional distress, we conclude the evidence is insufficient to support the trial court's finding that S.S. proved either stalking or harassment. See L.O. v. D.O., 124 N.E.3d 1237, 1240 (Ind. Ct. App. 2019) (finding insufficient evidence of stalking or harassment when the record “reveal[ed] no evidence that [petitioner] felt terrorized, frightened, intimidated, or threatened or that [petitioner] suffered emotional distress”); see also Maurer, 994 N.E.2d at 759 (finding insufficient evidence to support the issuance of a protective order when petitioner “offered no testimony at the hearing regarding the effect the contacts had on her”); cf. Andrews v. Ivie, 956 N.E.2d 720, 723, 726 (Ind. Ct. App. 2011) (finding sufficient evidence of stalking and harassment when the petitioner testified that respondent's continuous contacts were “disturbing” and “very upsetting” and made her “very angry” and “very concerned”).

Conclusion

[13] We find there was insufficient evidence presented at the hearing to support the trial court's issuance of a protective order. Therefore, we reverse and remand with instructions to vacate the Order for Protection against G.S.

[14] Reversed and remanded.

FOOTNOTES

1.   We note that Indiana Code section 34-26-5-2(f) requires the court to take certain actions related to a school corporation if the issuance of a protective order “may impact a school corporation's ability to provide in-person instruction for the person or the unemancipated minor.” The school corporation must be notified about the petition for an order of protection and the hearing and be permitted to respond and testify. Ind. Code § 34-26-5-2(f)(1), (2). This requirement is not at issue on appeal, and we note that notice was provided to the school and the hearing on November 5 allowed the school's superintendent the opportunity to testify.

2.   The initial petition filed in this case includes a statement that S.S. “feared for [her] safety” as a result of the September 17 incident. Appellant's App. Vol. 2 at 9. Although her mother made the allegations in the petition under oath, the allegations pertained to S.S.’s state of mind. S.S. did not sign the petition. Thus, it was not a statement made by S.S. under oath nor was it evidence of any fear or emotional distress she may have experienced as a result of these incidents.

DeBoer, Judge.

Chief Judge Altice and Judge Pyle concur. Altice, C.J., and Pyle, J., concur.