B.M. v. A.J. ex rel. R.J.

• Decision Date: 29 April 2022
• Docket Number: Court of Appeals Case No. 21A-PO-2290
• Citation: 186 N.E.3d 1194
• Parties: B.M. and R.M., Appellants, v. A.J. BY Child's NEXT FRIEND, R.J., Appellee.
• Court: Indiana Appellate Court

186 N.E.3d 1194

B.M. and R.M., Appellants,

v.A.J. BY Child's NEXT FRIEND, R.J., Appellee.

Court of Appeals Case No. 21A-PO-2290

Court of Appeals of Indiana.

FILED April 29, 2022

Attorney for Appellants: Shannon L. Robinson, Bloomington, Indiana

Brown, Judge.

[1] B.M. and R.M. appeal the trial court's orders of protection and claim they were denied due process and the evidence is insufficient to support the orders. We reverse and remand.

Facts and Procedural History

[2] On September 13, 2021, A.J., by next friend R.J.,¹ filed a petition for an order for protection against B.M. in cause number 47C01-2109-PO-1062 ("Cause No. 62") and a petition for an order for protection against R.M. in cause number 47C01-2109-PO-1063 ("Cause No. 63").

[3] On September 24, 2021, the court held a hearing on both petitions. At the start of the hearing, the court asked "[a]re you [B.M.]," B.M. answered affirmatively, and the court stated: "Okay. Turn around, scoot up to the table. Sit like you're in the courtroom." Transcript Volume II at 4. The court stated: "I'll warn everybody before we get started, I am not in a good mood today. I was up all night dealing with a child abuse case, and I'm here this morning at 8:30 a.m. on this nonsense." Id. at 5.

[4] A.J.’s counsel called A.J. as a witness. A.J. testified that she was seventeen years old and a junior in high school. She testified that she and B.M. had been in school together since middle school and that she noticed his stalking activity in sixth grade. She testified that "it originally started because we were in our science class and I didn't have a partner, and I asked [B.M.] if he wanted to be my partner," "since sixth grade, I notice him consistently at my locker, following me. Every period he would be there," and "[s]eventh grade, during my lunch table, his table would be right next to mine. He would stare at me while he would eat. If I dumped my tray, he also dumped his tray." Id. at 6. She testified B.M.’s behavior "got worse as we got older." Id. [5] She testified "freshman year he memorized my whole schedule," "[t]he only period we had together was lunch," "[s]ame thing, if I got my tray, he would also get it. If I dumped my tray, he would dump his tray," and "I would go out a different door, and he would still follow me. I'd turn around and go back, and he would still follow me." Id. at 7. When asked if, during her freshman year, she made a report to the school, she testified:

Yes.... Freshman year I let my parents know. And for a few days, they're like, just see how it goes, like kind of continue. And then we talked to a guidance counselor and a principal, and they continued to notice it on the video cameras. And then they would tell me to take different routes and they would be waiting for me.

One day in particular, I took the longest route to get to my class, and he was in his classroom, and he came out, and he ran at me, and he came right in my face and breathed really heavy. And my biggest fear is that, as we get older, it gets worse and it gets more aggressive, and I feel like he wants to hurt me, and I feel like he would have pleasure in it.

Id. The following exchange occurred:

[A.J.’s Counsel]: At any point during that freshman year did he -- did he touch you or throw things at you or -- or anything along those lines?

[A.J.]: So during eighth grade, we had assigned seats, and we were sat across the room, but he would sit behind me every day, and he would play with my hair and smell my hair and breathe on my neck really heavy. It was almost like I was his little minnow and he was a shark trying to get me, and I felt so small compared to him.

[K.M.]: He asked you for ninth grade, not eighth grade.^[2]

[A.J.’s Counsel]: Objection.

Court: Sir, do you -- do you think you're welcome to just say anything you want? You will sit there and shut your mouth.

[K.M.]: Yes, sir.

Court: That or you're going to be out of here or across the street in the county jail being held in contempt. This isn't TV.

[K.M.]: Yes, sir.

Id. at 7-8. A.J. testified: "And then, one day in particular, he threw a pencil down my shirt. I told him to stop, and I snapped it, and then throughout freshman year, he would just get as close to me as he could. I noticed whenever I was alone, he would be a lot closer to me than versus when I had friends." Id. at 8. She indicated she informed the vice principal and a counselor. When asked "did anything change after -- after you worked with them," A.J. testified "after they talked to him and it was taken care of, the next day he ran at me, and he called me a whore, and then since then, I hadn't seen him." Id. at 9.

[6] A.J. testified:

And then sophomore year, ... we had hybrid.... Like, I wouldn't see him. But then this year it's gotten a lot worse ... since we both have our licenses, he drives circles around my car. He'll be waiting whenever I walk out of school. My friends have noticed it. One day in particular, we went to Denny's, and we went there ... [B.M.] and [R.M.] never went into Denny's. And I came out and I was making plans with my friends ... and I went to their car, and I got out of my car, and I noticed them -- they weren't even parked, but they were in between Denny's and Steak n’ Shake. And they were waiting for me, and they were pointing at me and revving up their engine and laughing. And so I got in my car, and I asked [friends] to follow me home.

And then as I reversed, I came out, and they pulled right behind me. I don't completely remember how I even got there. I was really shaky, but I ended up ... at the stoplight, and I was going to turn left.... And they were in the right lane to turn right, and they had their windows down, and they were just staring at me and breathing really heavy. And I looked at them, and I yelled, and I said stop following me, and then [B.M.] just smiled and said, I'm not following you, and drove off.

Id. at 10-11. A.J. indicated the incident occurred a couple of weeks earlier.

[7] A.J. indicated B.M. would drive his vehicle in circles around her while she was in her vehicle in the parking lot. She testified "if I had [ ] math tutoring and I would be at school till 4:00, they would still be there. They would even leave school and drive parking lots around the circle and then wait until I pulled out and pull right in front of me so I have to slam on my brakes." Id. at 11. She indicated this had been going on since the beginning of the school year. When asked how she felt, A.J. testified "I'm scared, especially the way he looks," "[h]e looks like he wants to hurt me, like he wants to kill me, and he'd have pleasure in it," "like, whenever he hits me, it's not, like, a direct hit," "[o]ne day I drove into school, and he happened to be right behind me, and he pulled up -- he reversed really fast, and I reversed my car, and then I was like, okay, maybe, you know -- and then he did it again," "[h]e drove forward and reversed again and tried to hit my car," and "it was fast, and it was sudden, and it was aggressive." Id. at 12. She testified she used to be excited to attend school and now she is nervous and scared. She stated she told B.M. to leave her alone more than once.

[8] A.J.’s counsel indicated he had no further questions. The following exchange occurred:

Court: [B.M.], you're an adult. Do you have any questions for [A.J.]?

[B.M.]: No.

Court: Sir, your other child, [R.M.], is a minor. I'm going to allow you to ask any questions on his behalf of [A.J.]. You'll get a chance to give me your side of this. Do you have any questions for her?

[K.M.]: I'm not an attorney, sir, and my attorney could not be here.

Court: That's not what I asked you.

[K.M.]: Oh. I don't --

Court: Do you have any questions?

[K.M.]: I don't know what to ask her.

Court: Okay. [A.J.], you can have a seat.

Id. at 16.

[9] A.J.’s counsel called R.J. as a witness. R.J. testified that he was A.J.’s father, he was a conservation officer, and, after the incident where B.M. ran at A.J. at school, he went to B.M. and R.M.’s house, asked to speak with their parents, sat at their kitchen table, and explained the daily stalking. He indicated B.M. did not deny anything and B.M. and R.M.’s parents led him to believe they wanted to take care of it and it would stop. He stated he was in uniform but spoke to B.M. and R.M.’s parents as a father. He testified that, after the incident at Denny's, he went to B.M. and R.M.’s house a second time, he was not in uniform, he spoke to their parents, and B.M. and R.M.’s father said "my boys will be boys," "[t]his is America," and "[y]our girl's just going to have to get over it." Id. at 19.

[10] R.J. further testified that he had observed dramatic changes in A.J. and she no longer wanted to attend school. He testified "he is always around her. It's [ ] scary to me to [ ] realize how much he is actually around her. And that's got to be intentional because they have never spoke," "[t]hey don't speak; they don't share classes," "[t]here's no reason that he would need to be within 100 yards of her on really any given occasion," and "I'm confident that this has never stopped and will escalate. Now that they're driving, [ ] it worries me. It's gone from an infatuation to an obsession." Id. at 19. He said A.J. "has just not been herself," "[w]e just [ ] want it to stop. We want it to end," "[a]s a concerned parent, I don't have any disregard for anyone, but this is happening, and it's not coincidence," "[i]n my years of experience as a parent, as -- in law enforcement, things start small," "[t]his has started small from an early age, and it's escalated over and over and over and to the point where I don't know [ ] the next option." Id. at 20.

[11] The court asked if B.M. had any questions for R.J., and he said "[n]o," the court asked if K.M. had any questions, and he said "I do." Id. at 20. K.M. asked, "[w]hen you came to our house, were you armed with a deadly weapon," R.J. replied "[y]es. I'm a conservation officer. My uniform was --," K.M. asked "[w]ere you...