M.B., Appellant-Respondent. v. C.D., b/n/f L.M., Appellees-Petitioners. (2026)

MEMORANDUM DECISION

Statement of the Case

[1] M.B. appeals the trial court's entry of a protective order against her. We affirm.

Facts and Procedural History

[2] C.D. is the son of L.M. (“Mother”) and Father. Mother and Father share joint legal custody of C.D. and his older brother. M.B. is Father's girlfriend. In January 2025, C.D. and his brother were at M.B.’s residence playing outside in the snow. C.D. was throwing icicles, one of which hit one of M.B.’s horses. As punishment, M.B. spanked C.D. with a belt.

[3] Mother, on behalf of C.D., petitioned for a protective order. Following a hearing, the court entered a protective order against M.B. M.B. now appeals.

Discussion and Decision

[4] M.B. challenges entry of the protective order by arguing that she is entitled to the parental-privilege defense because she was acting in loco parentis, or in place of a parent.¹

[5] We apply a two-tiered standard of review when a party appeals a judgment entering a protective order. J.I. v. Ja.I. b/n/f Y.M., 250 N.E.3d 417, 423 (Ind. Ct. App. 2024), trans. denied. First, we consider whether the evidence supports the trial court's findings, and second, we determine whether those findings support the judgment. Id. at 423-24. In doing so, 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. at 424.

[6] We note that Mother did not file a brief. When the appellee fails to submit a brief, we will not develop an argument on its behalf; rather, we may reverse the trial court's judgment if the appellant's brief presents a case of prima facie error. Perez v. Mounce, 110 N.E.3d 404, 408 (Ind. Ct. App. 2018). Prima facie error is error “ ‘at first sight, on first appearance, or on the face of it.’ ” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006) (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999)). But even under the prima facie error rule, we are obligated to correctly apply the law to the facts in the record in order to determine whether reversal is required. Simek v. Nolan, 64 N.E.3d 1237, 1241 (Ind. Ct. App. 2016).

[7] Indiana Code section 35-41-3-1 sets forth the defense of legal authority, providing that “[a] person is justified in engaging in conduct otherwise prohibited if he has legal authority to do so.” This statute has been interpreted to encompass the legal authority for parents to engage in reasonable discipline of their child, even if such conduct would otherwise constitute battery. State v. Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008).

[8] Similar to self-defense, the defense of parental privilege is a complete defense. Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008). This is also known as an “affirmative defense of justification” in which a defendant admits that the crime occurred but contends that the act was justified. Stubbers v. State, 190 N.E.3d 424, 430 (Ind. Ct. App. 2022), trans. denied.

[9] Here, however, the record discloses no notice to the trial court or the petitioner prior to the hearing that M.B. intended to rely on the parental-privilege defense, and M.B. did not assert the parental-privilege defense at the hearing. As a result of this failure, she has waived this claim. See Cleveland v. State, No. 84A01-1501-CR-26, at *2 (Ind. Ct. App. June 16, 2015) (mem.) (holding that where defendant did not assert parental-privilege defense at trial, claim was waived); see also Lafary v. Lafary, 476 N.E.2d 155, 159 (Ind. Ct. App. 1985) (holding that affirmative defenses cannot be raised for first time on appeal).²

[10] Waiver notwithstanding, our review of the record leads us to conclude that M.B. was not a person in loco parentis. In the context of determining whether a guardian was required to provide child support, our supreme court discussed the meaning of in loco parentis as follows:

In loco parentis means “in the place of a parent.” Black's Law Dictionary 803 (8th ed. 2004). The doctrine “refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.” This status results from intention and generally may be terminated at any time.

Historically, in loco parentis has been deployed to protect schools and teachers from liability for restricting and disciplining their pupils. It has likewise served as a basis for the authority of juvenile courts.

Marriage of Snow v. England, 862 N.E.2d 664, 666 (Ind. 2007) (internal citations omitted).

[11] The testimony at the hearing showed that M.B. had been romantically involved with Father for about seven years, but they were not married. Although it appears that Father may have lived with M.B., the record is not clear on that subject. C.D. testified that he saw M.B. on a weekly basis, and M.B. testified that she had picked up C.D. from school “more than once.” Tr. Vol. 2, p. 47. M.B. testified that prior to this incident Father had given her permission to use corporal punishment but that she had agreed to no longer do so. Id. Yet, there was no evidence that Mother, who had joint legal custody with Father, had ever been consulted on or consented to allowing M.B. to discipline either of the children.

[12] Previously, in a memorandum decision of this Court, we recognized that the determination of whether a person was acting in loco parentis is not susceptible to a bright-line rule. Hunt v. State, No. 35A05-1112-CR-677, at *4 (Ind. Ct. App. Aug. 21, 2012) (mem.). Rather, such status is best determined using a continuum whose extremes are, at one end, a parent, and, at the other, a babysitter. Id. at *5.

[13] In McReynolds v. State, this Court addressed, as a matter of first impression, whether a caregiver may avail himself of the parental privilege defense. We determined that McReynolds was not a person in loco parentis and thus was not entitled to assert the parental privilege defense. Although McReynolds lived in the home of the children's mother in exchange for his agreement to care for the children while the mother was at work, he was not the children's stepparent nor romantically involved with the mother; he did not act as a father figure; he did not participate in parenting decisions; and he generally asked the mother's permission to discipline her children. 901 N.E.2d 1149 (Ind. Ct. App. 2009).

[14] More recently in Cleveland, No. 84A01-1501-CR-26, at *2, another panel of this Court determined that, waiver notwithstanding, there was no evidence to support the defense of in loco parentis. There, the defendant was romantically involved with the child's guardian, but there was no evidence that he had the responsibilities of a father or stepfather, made parenting decisions regarding the child, or otherwise behaved as a father to the child.

[15] Here, there is no evidence that M.B. had the responsibilities of a parent. Much like a babysitter, she had picked up C.D. from school on occasion and was given permission by Father to administer punishment. Given the circumstances, even if M.B. had not waived her affirmative defense by failing to raise it in the trial court, we conclude that M.B. was not a person in loco parentis. We therefore affirm the trial court's entry of the protective order.

[16] Affirmed.

FOOTNOTES

1.   It has not been determined whether this defense can be asserted in a protective order matter. Nevertheless, it is not necessary for us to make that determination here because even if the defense applies in such matters, it does not apply in this case.

2.   Although defense counsel characterized M.B.’s status as a “stepmom,” and, at the end of the hearing, the court mentioned the “parental disciplinary privilege,” neither statement, separately or collectively, is sufficient to constitute the assertion of the affirmative defense. Tr. Vol. 2, p. 51; see Willis v. Westerfield, 839 N.E.2d 1179, 1185 (Ind. 2006) (stating that pursuant to trial procedure rule, party seeking benefit of affirmative defense must raise and specifically plead defense or it is waived).

Crone, Senior Judge.

Vaidik, J., and Foley, J., concur.