MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any
                                                                            Jan 03 2020, 9:05 am
court except for the purpose of establishing
the defense of res judicata, collateral                                           CLERK
                                                                             Indiana Supreme Court
estoppel, or the law of the case.                                               Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT
Shannon L. Robinson
Shannon Robinson Law
Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

K.H.,                                                    January 3, 2020
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         19A-PO-1558
        v.                                               Appeal from the Monroe Circuit
                                                         Court
Ki. H. by Child’s Next Friend                            The Honorable Judith Benckart,
N.D.,                                                    Judge
Appellee-Petitioner                                      Trial Court Cause No.
                                                         53C08-1906-PO-1358



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PO-1558 | January 3, 2020                      Page 1 of 5
[1]   K.H. (“Father”) appeals the trial court’s grant of a protective order requested

      for Ki.H. (“Child”) by Child’s next friend, N.D. (“Mother”). Because the trial

      court did not make findings to support its conclusion a protective order should

      be issued, we reverse.



                            Facts and Procedural History
[2]   Mother and Father are parents of Child. Mother and Father are in the process

      of a divorce. On June 18, 2019, Mother filed a petition for an order of

      protection on behalf of Child based on an alleged incident in which Child

      sustained bruises. The trial court held a hearing on the matter on June 20,

      2019, granted Mother’s petition on behalf of Child, and issued a six-month

      Order of Protection.



                                 Discussion and Decision
[3]   We first note Child, by next friend, Mother, did not file an appellee’s brief.

      When an appellee does not submit a brief, we do not undertake the burden of

      developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42

      (Ind. Ct. App. 2002). Instead, we apply a less stringent standard of review and

      may reverse if the appellant establishes prima facie error. Id. Prima facie error is

      “error at first sight, on first appearance, or on the face of it.” Van Wieren v. Van

      Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006).


[4]   Indiana Code section 34-26-5-2(a) establishes the criteria by which a trial court

      may grant an Order of Protection:
      Court of Appeals of Indiana | Memorandum Decision 19A-PO-1558 | January 3, 2020   Page 2 of 5
              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.


      Indiana Code section 34-26-5-9 gives the trial court authority to issue an Order

      of Protection based on the elements set forth in Indiana Code section 34-26-5-

      2(a). A person who requests a protective order must prove one of the elements

      of Indiana Code section 34-26-5-2(a) by a preponderance of the evidence.

      Essany v. Bower, 790 N.E.2d 148, 154-55 (Ind. Ct. App. 2003). In granting an

      Order of Protection, the trial court must sua sponte make special findings

      regarding at least one of the elements listed in Indiana Code section 35-26-5-

      2(a). Hanuuer v. Hanauer, 981 N.E.2d 147, 148 (Ind. Ct. App. 2013).


[5]   Here the trial court made the following findings:


              This matter having been heard by the Court on 6/20/2019
              pursuant to Indiana Code 34-26-5-10, the Court now makes the
              following Findings:


                       a. N/A


                       b. The Court is required to hold a hearing pursuant to
                       Indiana Code § 34-26-5-10(b).




      Court of Appeals of Indiana | Memorandum Decision 19A-PO-1558 | January 3, 2020   Page 3 of 5
                       c. The Petitioner was present at the hearing and the
                       Respondent was present.


                       d. This order does protect an intimate partner or child.


                       e. The Respondent had notice and an opportunity to be
                       heard.


                       f. N/A


                       g. N/A


                       h. The Respondent does not agree to the issuance of the
                       Order for Protection.


                       i. The following relief is necessary to bring about a
                       cessation of the violence or threat of violence.


      (App. Vol. II at 6.) The rest of the order indicates Father was enjoined from

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

      against Mother, Child, and two other people; that Father was to stay away from

      Mother’s house and place of employment; and Father has limited supervised

      visitation with Child. Nowhere in the order does the trial court indicate that

      Child, the subject of the order was either (1) a victim of domestic or family

      violence or (2) a victim of stalking as required by Indiana Code section 34-26-5-

      2(a).


[6]   As the trial court made no such finding, we conclude Father has presented

      prima facie error, and we reverse. See Tisdial v. Young, 926 N.E.2d 783, 785 (Ind.

      Court of Appeals of Indiana | Memorandum Decision 19A-PO-1558 | January 3, 2020   Page 4 of 5
      Ct. App. 2010) (trial court may issue or modify an order for protection only

      upon finding that domestic or family violence has occurred), trans. denied.



                                              Conclusion
[7]   The trial court did not make a finding of domestic or family violence or of

      stalking as to support its conclusion to issue an order of protection on behalf of

      Child against Father. Accordingly, we reverse.


[8]   Reversed.


      Crone, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-PO-1558 | January 3, 2020   Page 5 of 5
