S.B. v. Seymour Cmty. Sch.

• Decision Date: 26 March 2018
• Docket Number: Court of Appeals Case No. 36A01–1710–PO–2252
• Citation: 97 N.E.3d 288
• Parties: S.B., Appellant–Respondent, v. SEYMOUR COMMUNITY SCHOOLS, Appellee–Petitioner.
• Court: Indiana Appellate Court

97 N.E.3d 288

S.B., Appellant–Respondent,

v.SEYMOUR COMMUNITY SCHOOLS, Appellee–Petitioner.

Court of Appeals Case No. 36A01–1710–PO–2252

Court of Appeals of Indiana.

FILED March 26, 2018

Rehearing Denied June 21, 2018

Attorney for Appellant: Kenneth J. Falk, ACLU of Indiana, Indianapolis, Indiana

Attorneys for Appellee: Michelle Cooper, Sara R. Blevins, Lewis & Kappes, P.C., Indianapolis, Indiana

Najam, Judge.

Statement of the Case

[1] S.B. appeals the trial court's issuance of an order for protection on behalf of Seymour Community Schools ("SCS").¹

S.B. raises four issues for our review, which we restate as the following three issues:

1. Whether SCS has standing to petition for an order for protection.

2. Whether the trial court's issuance of the order for protection was clearly erroneous.

3. Whether the order for protection violates S.B.'s rights under the First Amendment or the Second Amendment to the United States Constitution.

[2] We affirm and remand with instructions.

Facts and Procedural History

[3] In the summer of 2015, a teacher at the Seymour Middle School molested S.B.'s daughter.² As a result of that molestation, S.B.'s daughter has needed extensive therapy, and she is suicidal. However, her family can no longer afford her medical bills. S.B. has sought compensation from SCS "because of the damage [done] by their employee," to no avail.³ Tr. at 38.

[4] On August 9, 2017, the first day of the new school year, S.B. stood on a public sidewalk immediately adjacent to the grounds of the Seymour Middle School. S.B. held a sign that read, in red capital letters against a white background, "WE PROTECT PEDOPHILES." Ex. Vol. at 4.⁴ S.B.'s sign was attached to the end of a long-handled shovel, with the shovel end against the pavement. S.B., who has a license to carry, had a handgun holstered on his right hip.

[5] The day before his protest, S.B. called the Seymour Police Department and informed officers that he would be "present at the Middle School" on the "public sidewalk" and that he "might have a weapon." Tr. at 5. As such, multiple police officers were at the school during S.B.'s protest. One officer, Seymour Police Department Officer Chadd Rogers, stood near S.B. throughout his protest. Officer Rogers testified that he had positioned himself near S.B. because Rogers thought parents "would feel more comfortable if I was standing next to him" in light of S.B.'s visible firearm. Id. at 43. As parents dropped their children off at the school, "a number" of them asked school officials why S.B. was standing on the sidewalk, and at least "one father was very upset that ... the first thing [his] child saw ... [on the] first day of school was [a] man standing outside the school with [a] gun." Id. at 30.

[6] SCS Superintendent Robert Hooker approached S.B., who "greeted [Hooker] ... pleasantly." Id. at 8. Hooker asked S.B., "what is this about?" Id. S.B. said "this was about ... his daughter and [the] former teacher." Id. Hooker then asked S.B. if S.B. would "put his weapon in [ ]his car" because Hooker "was concerned about a weapon that close to school children ...." Id.

[7] Hooker considered the proximity of the weapon to be "a major threat ... given the nature of ... school violence." Id. As Hooker later explained:

when there is [a] weapon anywhere near [a] school we lock down[. B]ehind us is Cummins and [it] wasn't that long ago an employee shot his supervisor ... [, and] whenever a bank ... is robbed ... the police department does an excellent job informing us, and we tend to lock down ... whether ... we even know if there's a weapon[ ] or not[. W]e react defensively rather quickly to any weapons possib[ly] anywhere near school children.

Id. at 10.

[8] S.B. declined to remove his firearm as requested. Instead, he asked how Hooker would feel if S.B. "brought ... [his] AK–47," and S.B. then said that "he would be back at 2:45" that afternoon "at the High School." Id. at 9–10. Hooker interpreted those comments to be "a threat." Id. at 16. S.B. further "alluded to ... another weapon, [a] gun in his pocket, but he didn't show" that weapon. Id. at 11. During their conversation, Hooker observed that S.B. "started out reasonable[ and] pleasant" but became "obviously upset," "distressed," and "ang[ry]." Id. at 9–10.

[9] On behalf of SCS, Hooker petitioned the trial court for an order for protection based on an alleged "threat of violence." Appellant's App. Vol. II at 12. Specifically, SCS alleged that S.B. had threatened physical harm and placed others in fear of physical harm. Id. at 13. In an attached memorandum, SCS stated that it sought the order for protection on behalf of "its students," among others. Id. at 20. The court entered a temporary ex parte order for protection that same day, and S.B. was served with that order. Thereafter, the court held a fact-finding hearing on whether to extend the temporary order. S.B. attended that hearing pro se , and SCS attended by counsel.

[10] Following that hearing, the court entered a two-year order for protection on behalf of SCS. In the order, the court found that "stalking has occurred," that S.B. "represents a credible threat to the safety of the Petitioner," and that the order for protection was necessary "to bring about a cessation of the violence or the threat of violence." Appellant's App. Vol. II at 8.

[11] In light of those findings, the court, using a form document, concluded that "[S.B.] is hereby enjoined from threatening to commit or committing acts of ... stalking" against SCS and "from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with" SCS. Id. The court further ordered S.B. "to stay away from the residence, school[,] and place of employment" of SCS. Id. Specifically, the court directed S.B. "to stay away from" the SCS Administrative Office, the Seymour High School, the Seymour Middle School, the Seymour Sixth Grade Center, five SCS elementary schools, and an SCS athletic complex. Id. at 8–9. However, the court did not restrict S.B.'s ownership of or access to firearms; instead, in its order the court expressly found that S.B. is not "Brady disqualified."⁵ Id. at 7–9. This appeal ensued.

Discussion and Decision

Issue One: Standing

[12] On appeal, S.B. first asserts that SCS is not a "biological person" and, as such, the Indiana Civil Protection Order Act ("the Act") does not permit SCS to petition for an order for protection. Appellant's Br. at 19–21. We initially note that S.B. did not object in the trial court to SCS's purported lack of standing. As such, we briefly consider whether S.B. may raise this issue for the first time on appeal.

[13] Where, as here, a party on appeal challenges the other party's standing but has not made that argument to the trial court, the precise basis for the challenge is significant. The judicial doctrine of standing may, on the one hand, concern whether a party has shown "adequate injury or the immediate danger of sustaining some injury." Pence v. State , 652 N.E.2d 486, 488 (Ind. 1995). However, it may also concern "whether the complaining party is the proper party to invoke the court's power." Schloss v. City of Indianapolis , 553 N.E.2d 1204, 1206 (Ind. 1990).

[14] If the challenge is based on the adequacy of the other party's injury, "the issue of standing may be waived" when it is not properly preserved in the trial court. E.g. , Kelley v. State , 11 N.E.3d 973, 977 (Ind. Ct. App. 2014) (citing, inter alia , Burcham v. Metro. Bd. of Zoning App. , 883 N.E.2d 204, 210–12 (Ind. Ct. App. 2008) ). However, where the challenge goes to whether the other party was the proper party to invoke the power of the judiciary in the first instance, the challenge asserts, in effect, that the trial court's judgment cannot be cured and is void. E.g. , J.C. v. J.B. (In re A.J.A.) , 991 N.E.2d 110, 113–15 (Ind. 2013). Such challenges may be raised collaterally, which includes being raised for the first time on appeal. Id. As S.B.'s challenge to SCS's standing falls within this latter category, we consider his challenge on its merits.

[15] On the merits, S.B. asserts that SCS lacks standing to petition for an order for protection because the Act states that such petitions must be filed by "[a] person" or by "[a] parent, a guardian, or another representative ... on behalf of a child." Ind. Code § 34–26–5–2(a), (b) (2017). The Act further states that such a petition must be filed against either a "family or household member who commits an act of domestic or family violence" or against a "person who has committed stalking ... or a sex offense" against the petitioner or the child. I.C. § 34–26–5–2(a), (b). And the Act provides that its provisions "shall be construed to promote the: (1) protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; and (2) prevention of future domestic and family violence." I.C. § 34–26–5–1. According to S.B., that language demonstrates a clear legislative intent to limit who may petition for an order for protection to a "biological person." Appellant's Br. at 20. We reject S.B.'s argument for three reasons.

[16] First, the Act expressly provides that "another representative" may petition for an order for protection on behalf of a child. I.C. § 34–26–5–2(b). "Representative" here means a "spouse, parent, guardian, trustee, attorney, or other legal agent." C.H. v. A.R. , 72 N.E.3d 996, 1002 (Ind. Ct. App. 2017) (quoting I.C. §§ 34–6–2–130, –18–2–25). "The law is well settled in this state that the teacher," and by extension the teacher's employer, "stands in loco parentis to the child" and, as such, has "the same right over a child in his or her school as is possessed by the parent." Ft. Wayne Cmty. Schs. v. Haney , ––– N.E.3d ––––, ––––, No. 02A03-1708-CT-1829, 2018 WL 700810, at *4 (Ind. Ct. App. 2018) (quoting Ind. State Pers. Bd. v. Jackson , 244 Ind. 321, 192 N.E.2d 740, 743–44 (1963) ), not yet certified ; see also I.C. § 20–33–8–8. Accordin...