K.D., Appellant-Respondent v. BY NEXT FRIEND (2025)

MEMORANDUM DECISION

Case Summary

[1] K.D. (“Stepmother”) appeals a protection order entered in favor of D.D. (“Child”) by his next friend K.F. (“Mother”). Stepmother presents one issue: Was there sufficient evidence to support issuing a protection order against her? Child, in turn, requests appellate attorney fees. Because there was insufficient evidence of stalking or repeated acts of harassment against Child to support issuing a protection order, we reverse.

Facts and Procedural History

[2] Child was born in September 2018 to Mother and J.D. (“Father”). In 2019, Mother and Father reached an agreement on paternity, custody, parenting time, and child support. The paternity court entered an agreed order awarding Mother legal and physical custody of Child and granting Father supervised visitation on Saturdays for two hours. At the time, Father was dating Stepmother, and they married in May 2020. Father last participated in supervised visitation with Child in 2019. Although Father had not visited Child for five years, sometime in 2024, Father petitioned to modify custody, and in October 2024, the paternity court denied Father's petition.

[3] On January 14, 2025, now six-year-old Child, by next friend Mother, filed a pro se petition for a protection order from Stepmother, alleging Stepmother committed stalking against him. In the petition, Child described three incidents of alleged stalking: (1) in July 2024, Stepmother posted pictures of Child to Facebook claiming he was her son; (2) in October 2024, Stepmother applied for and obtained a job at Child's after-school daycare, where he and his younger half-sibling (“Sibling”) attended; and (3) in December 2024, Stepmother communicated to others that she visited Child at his school during class or activities. See Appellant's App. Vol. 2 at 12–13. In support of his petition, Child attached the April 2019 agreed order in the paternity case; the October 2024 paternity court order denying Father's petition to modify custody; and printed screenshots of Stepmother's Facebook posts related to Child.¹

[4] The trial court held a hearing on February 24, 2024, at which Child, by next friend Mother, was represented by counsel and Stepmother appeared pro se. Mother testified Child was now six years old and in first grade, and Father had not seen Child in five years. Although the paternity court denied Father's petition to modify custody in October 2024, there were new petitions in the paternity case set for a hearing in March. In response to Father's most recent petition, Mother requested Father's parenting time remain supervised because Child “has no idea who [Father] is” and “there is no relationship between the two.” Tr. Vol. 2 at 9.

[5] As to Stepmother's conduct, Mother testified when Father first visited Child five years ago, Stepmother was present and questioned Father's paternity of Child. In October 2024—just after the paternity court denied Father's request to modify custody—Stepmother applied for a job at Child's and Sibling's daycare facility. Mother and the children were out of town on vacation at the time. On learning of Stepmother's application, Mother removed Child and Sibling from the program, reasoning Stepmother “has no reason to work there near my kids, especially [Sibling, who] has nothing to do with either [Stepmother or Father].” Id. at 8. This made Mother's routine “very complicated.” Id. Because Mother removed Child from the daycare, Stepmother had no contact with Child there. Stepmother was hired but left that employment by the time of the protection order hearing.

[6] Stepmother also retrieved photos of Child from his school's website and possibly a third party ² and posted the photos on Facebook.³ One of Stepmother's posts had five photos of Child and was captioned: “Absolutely love these photos of my little man throughout the years.” Appellant's App. Vol. 2 at 27. Another Facebook post stated: “Was so good to see [Child] in Mrs [P]rincells [sic] room! Here I thought my girls looked like their daddy. [Child] straight fell out [Father's] butt!!!!” Id. at 28. Yet another time, Stepmother posted a photo of Child with a teacher and the caption: “Just some post[-]Christmas pictures! We've had a blast between school activities and home fun! Love my babies.” Id. at 29. In a fourth Facebook post, Stepmother wrote: “Decorating for a boy is literally so much fun ․ his room is ALMOST completed. I cannot wait ․ so soon we will have [Child] on normal parenting times again. So soon!” Id. at 30. Regarding Stepmother's claims to have visited Child at school, Mother reached out to the school “multiple times to figure out if that was true or not.” Tr. Vol. 2 at 7. The school had no record of Stepmother signing in.

[7] After Child petitioned for the protection order, Stepmother sent Mother a text message acknowledging she and Mother “haven't always seen eye to eye and that is 100 percent my fault.” Exhibit Vol. 3 at 3. Stepmother stated she and Father “absolutely love [Child] and miss him terribly” and offered to help Mother if “there's anything we can do for EITHER boy,” meaning Child or Sibling. Id. Mother found the message concerning in part because Stepmother had not seen Child in years and had no relationship with him.

[8] At the hearing, Mother stated her “biggest concern with everything” right now is “I'm afraid that I'm going to go pick up my kid one day ․ and he's not going to be there.” Tr. Vol. 2 at 8. According to Mother, “I've had to buy a security system because my kids are afraid to be outside alone because ․ they are afraid someone is going to come kidnap them[.]” Id. at 7. Mother described the situation as “a lot of nonsense that doesn't need to be here anymore.” Id.

[9] Stepmother also testified at the hearing. She claimed she had “been in [Child's] life for five years, six years, actually” and she and Father “deserve pictures of [Child].” Id. at 14. She acknowledged obtaining photos from the school's website and posting them to her Facebook page; confirmed she made the Facebook posts attached to the protection order petition; denied ever going to Child's school, despite saying she had; and acknowledged she sent the message to Mother after the protection order was filed. She claimed she did not know Child attended the daycare where she obtained employment because Child was school-aged.

[10] At the end of the hearing, the trial court entered an order of protection, stating:

I think what the Court finds most troubling in this situation is from the testimony, it doesn't appear, [Stepmother], that you, from your own testimony, have been to the school, ․ but yet there's posts of you posting with [Child] saying we had a blast between school activities and home fun with his, I guess, teacher, but yet you weren't there.

* * *

And on top of that with the text messages, and the Court has to considerably take into account that ․ the kids are afraid to be outside, that they have to have a security system ․ [they] are afraid that something is going to happen to them.

And the Court does find that there is enough repeated acts here to put a child in fear, frightened, or intimidated; and the Court is going to grant [a] protective order. And you are to have no contact with [Child]. You are not to go to [Child's school] where he is there or to have contact with him.

Id. at 18. The trial court entered a written protection order finding Stepmother was a credible threat to Child or a member of Child's household and that domestic or family violence, stalking, or repeated acts of harassment occurred to justify issuance of a protection order. The trial court enjoined Stepmother from committing acts of domestic or family violence, stalking, or harassment against Child; prohibited Stepmother from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with Child; and ordered Stepmother to stay away from Child's residence and school. Stepmother retained counsel and moved to correct error, which the trial court denied.

Insufficient evidence supports the protection order.4

[11] Our two-tiered standard of reviewing a protection order is well established: first we consider whether the evidence supports the trial court's findings and if so, we next determine whether those findings support the judgment. S.D. v. G.D., 211 N.E.3d 494, 497 (Ind. 2023). “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.” Id. We adopt this approach because “our trial courts are far better than appellate courts ‘at weighing evidence and assessing witness credibility.’ ” Id. at 498 (quoting Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017)). “And this is particularly true in protective order cases, where our trial judges see and hear the parties interact as they relay details about intensely personal, traumatic events.” Id.

[12] “A person who is or has been a victim of domestic or family violence[⁵ ] may file a petition for an order for protection against a ․ person who has committed [criminal] stalking under IC 35-45-10-5 ․ against the petitioner.” I.C. § 34-26-5-2(a)(2) (2021). And a person who “is or has been subjected to harassment” may petition for a protection order against a person who has committed repeated acts of harassment against the petitioner. I.C. § 34-26-5-2(b).⁶

[13] Stalking means “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,” but “does not include statutorily or constitutionally protected activity.” I.C. § 35-45-10-1 (1993) (definition of “stalk” as used in the criminal stalking statute, Indiana Code Section 35-45-10-5). Harassment means “conduct directed toward a victim that includes, but is not limited to, repeated or continuing impermissible contact: (1) that would cause a reasonable person to suffer emotional distress; and (2) that actually causes the victim to suffer emotional distress.” I.C. § 34-6-2-51.5(a) (2019).⁷ Impermissible contact includes (but is not limited to) following or pursuing the victim, communicating with the victim, and posting on social media, if the post is directed to the victim or refers to the victim, directly or indirectly. I.C. § 35-45-10-3(a) (2022).⁸ In the context of Indiana's anti-stalking statute, “repeated” means “more than once.” Falls v. State, 131 N.E.3d 1288, 1290 (Ind. 2019).

[14] A petitioner must establish stalking or harassment occurred by a preponderance of the evidence. See I.C. § 34-26-5-9(h) (2024); see also S.D., 211 N.E.3d at 498 (“[O]ur trial courts need only determine whether the petitioner has made the requisite showings by a preponderance of the evidence.”). To obtain a protection order, the petitioner must show the respondent poses a present and credible threat. S.H. v. D.W., 139 N.E.3d 214, 219–20 (Ind. 2020). A credible threat is “plausible or believable.” Id. at 220. Trial courts must consider the evidence and determine whether the respondent's actions—viewed objectively at the time the petitioner seeks relief—provide grounds for relief. See S.D., 211 N.E.3d at 499. A trial court's finding that stalking or harassment has occurred is sufficient to establish the respondent represents a credible threat to the petitioner's safety. See I.C. § 34-26-5-9(h) (“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.”).

[15] Upon a showing of stalking by a preponderance of the evidence, “the court shall grant relief necessary to bring about a cessation of ․ the threat of violence.” Id. Among other relief, a trial court may enjoin a respondent from threatening to commit or committing an act of stalking against a petitioner or “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with a petitioner.” I.C. § 34-26-5-9(c)(1), (c)(2), (d). A trial court may also order a respondent to stay away from the petitioner's residence, school, or place of employment. I.C. § 34-26-5-9(c)(5), (d).

[16] The evidence favorable to the judgment is as follows: Stepmother had direct contact with Child and questioned Father's paternity in 2019. Stepmother made four Facebook posts about Child over several months: two with photos of Child obtained from third parties and one in which she claimed to have visited Child at school. After Child filed for a protection order, Stepmother sent Mother a text message stating she loved and missed Child. And after the paternity court denied Father's 2024 petition to modify custody, Stepmother applied for employment at Child's daycare while Child was out of town. Mother testified her “kids are afraid to be outside alone” because “they are afraid someone is going to come and kidnap them[.]” Tr. Vol. 2 at 7.

[17] Stepmother acknowledges that her conduct, including “falsely claiming contact with a person,” may be “weird and possibly creepy.” Appellant's Reply Br. at 6. But she argues there was no evidence she “had any contact with [Child] at all” or that “anyone other than ․ Mother was aware of [her] communication.” Appellant's Br. at 10, 12. And “[w]ithout communication or attempted communication to an alleged victim, there can be no threat, there can be no stalking or harassment, and there is no basis for the entry of a protective order.” Id. at 10.

[18] After our careful review of the record, we agree with Stepmother. The last time Stepmother had direct contact with Child, he was an infant. A court may not deny a petition for protection solely because of the lapse of time between an act of violence or harassment and the filing of the petition. I.C. § 34-26-5-13 (2019). But “we may consider remoteness in determining whether a sufficient threat exists to warrant the issuance of a protective order.” Tons v. Bley, 815 N.E.2d 508, 511 (Ind. Ct. App. 2004). Stepmother's negative comment made in front of an infant four years previously is not a present or credible threat to Child. See, e.g., id. (holding “unspecified acts of violence occurring eight years previously are a not sufficient basis for the issuance of a protective order”).

[19] We turn next to Stepmother's more recent conduct of making Facebook posts about Child and sending Mother a message claiming to love and miss Child. As Mother argues, “impermissible contact” is broadly defined to include posting on social media, if the post is directed to the victim or “refers to the victim, directly or indirectly.” I.C. § 35-45-10-3(a)(3). But even then, harassment requires “conduct directed toward a victim.” I.C. § 34-6-2-51.5(a). Mother presented no evidence Child—who was five or six years old when Stepmother made the posts—was aware of the social media posts or that they were “directed toward” Child. Similarly, Stepmother's text message claiming to love and miss Child was directed to Mother, not Child. In the message, Stepmother does not ask Mother to communicate anything to Child on her behalf, and there was no evidence the message was provided to him.

[20] As to Stepmother's attempts to contact Child directly, Stepmother claimed in one Facebook post that she visited Child at his school. Yet there was no evidence Stepmother contacted Child or even went to the school. In pronouncing its findings, the trial court acknowledged as much. See Tr. Vol. 2 at 18 (trial court stating, “it doesn't appear, [Stepmother], that you, from your own testimony, have been to the school” and “you weren't there”). While certainly an odd and (in the trial court's words) “troubling” thing to claim, id., her statement does not qualify as impermissible contact.

[21] Likewise, Stepmother had no contact with Child when she applied for the job at the daycare center he attended after school. Mother preemptively removed her children from the program when she returned from vacation and learned of Stepmother's application. In the context of harassment, impermissible contact includes “following or pursuing the victim.” I.C. § 35-45-10-3(a)(1). Perhaps Stepmother's attempt to obtain a job at a place frequented by Child could qualify as following or pursuing him. But presuming (without deciding) Stepmother's job application qualifies as such, one instance of attempted impermissible contact is not harassment, which requires repeated or continuing contact.

[22] Moreover, harassing conduct is contact that “would cause a reasonable person to suffer emotional distress” and “actually causes the victim to suffer emotional distress.” I.C. § 34-6-2-51.5(a). And “harassment becomes ‘stalking’ only if it is a repeated and continuing course of conduct that causes the victim to feel, and would cause a reasonable person to feel, ‘terrorized, frightened, intimidated, or threatened.’ ” L.R. v. M.H., 223 N.E.3d 675, 682 (Ind. Ct. App. 2023) (quoting I.C. § 35-45-10-1 (definition of “stalk”)).

[23] Based on the trial court's statement at the hearing, the court gave considerable weight to Mother's testimony that Child was in fear. See Tr. Vol. 2 at 18 (trial court stating, “the Court has to considerably take into account that ․ the kids are afraid to be outside, that they have to have a security system ․ [and] are afraid that something is going to happen to them”). Indeed, Mother testified: “I've had to buy a security system because my kids are afraid to be outside alone because ․ they are afraid someone is going to come and kidnap them” and “I'm afraid that I'm going to go pick up my kid one day ․ and he's not going to be there.” Id. at 7, 8. In our view, this testimony speaks more to Mother's subjective emotional distress or fear arising from the circumstances. As Child has not seen Stepmother since his infancy, Stepmother did not make direct contact with Child at school or daycare, and there was no testimony he was aware of Stepmother's Facebook posts and message to Mother, it is unclear how Stepmother's conduct actually caused Child's emotional distress or fear. Nor is it clear how such conduct would cause a reasonable person, unaware of the conduct, to feel emotionally distressed, terrorized, frightened, intimidated, or threatened.

[24] On that note, Mother argues that even if Child was not a direct victim of harassment, Child was entitled to protection because Mother was a harassment victim, Mother and Child lived in the same household, and Stepmother presented a credible threat to Child's safety. As Mother points out, a trial court may enter a protection order to protect the “petitioner and each designated family or household member.” I.C. § 34-26-5-9(c)(1), (5). But here, Mother did not allege she was a victim of domestic or family violence, stalking, or harassment. The petitioner in this case is Child, and the trial court did not designate Mother as a family or household member to be protected. See Appellant's App. Vol. 2 at 7 (trial court's order stating Stepmother “is hereby enjoined from threatening to commit or committing acts of domestic or family violence, stalking, or harassment against [Child] and the following designated family or household members, if any: [left blank]”).

[25] Because there is insufficient evidence of stalking or repeated acts of harassment against Child, we reverse the trial court's issuance of a protection order in favor of Child against Stepmother.⁹

Conclusion

[26] Insufficient evidence supports the trial court's order of protection.

[27] Reversed.

FOOTNOTES

1.   For unknown reasons, Child also attached an agreed order in Sibling's paternity case.

2.   From Mother's testimony, it appears Stepmother sought photos from Sibling's father. See id. at 7 (Mother describing Stepmother “contacting my youngest child's father, getting pictures of both of my children and then posting them on Facebook”).

3.   Child, by Mother, attached printed screenshots of the Facebook posts to his verified petition for a protection order. Child did not introduce them at the hearing, but counsel asked Stepmother if she had seen the attachments and showed them to her. Stepmother affirmed she posted them. See id. at 16.

5.   For the purposes of Indiana Code Chapter 34-26-5 (Civil Protection Order Act), the definition of “domestic or family violence” includes criminal stalking, whether or not committed by a family or household member. Ind. Code § 34-6-2-34.5 (2019). Effective July 1, 2025, this definition can be found at Indiana Code Section 34-6-2.1-50 (2025), but the substance is unchanged.

6.   Similarly, a parent may petition for an order for protection on behalf of a child against a “person who has committed [criminal] stalking under IC 35-45-10-5 ․ against the child” or a “person who has committed repeated acts of harassment against the child.” I.C. § 34-26-5-2(c)(2)-(3). In this case, Child was the petitioner and alleged acts of stalking were committed against him, and Mother filed the petition as Child's next friend.

7.   Like stalking, harassment does not include “statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes.” I.C. § 34-6-2-51.5(b). As of July 1, 2025, this definition now appears in Indiana Code Section 34-6-2.1-80 (2025).

8.   Although the civil code does not define “impermissible contact,” this Court has applied to civil protection cases the term's definition from the criminal statutes. See, e.g., J.T. v. A.H., 255 N.E.3d 512, 517 (Ind. Ct. App. 2025); Fox v. Bonam, 45 N.E.3d 794, 799 (Ind. Ct. App. 2015).

9.   Because of our resolution of this issue, we need not address Child's request for appellate attorney fees.

Kenworthy, Judge.

Foley, J., and Scheele, J., concur.