Highlighting a bias in state statute relating to protective orders, the Indiana Court of Appeals has held that an accuser’s request for a civil contempt hearing against someone alleged to have violated a protective order can’t be tied to any other criminal or civil proceedings under way or available in the future.
The three-judge appellate decision came today in S.W. by P.W. v. B.K., No. 71A03-1012-PO-655, which comes from St. Joseph Superior Judge Roland Chamblee and Magistrate Brian Steinke.
This case involves a developmentally disabled adult named S.W. who shares an apartment with another developmentally disabled woman as part of a semi-independent living program. P.W., the woman’s sister, obtained a protective order following September 2010 incidents in which B.K. came to the apartment late at night and pounded on the door, trying to enter and yelling for S.W. to come to the door. The South Bend Police Department responded. The ex parte protective order prohibited B.K. from stalking, harassing, annoying, contacting, or visiting the residence. B.K. apparently disregarded the order and returned to the apartment at least twice in November and displayed similar behavior.
P.W. filed a petition for B.K. to appear for a hearing to show cause why he shouldn’t be held in contempt for violating the protective order, and with that petition P.W. filed affidavits supporting the request and also asked for attorney fees. The trial court denied her petition the same day without a hearing, stating that the protective order violations were criminal matters that should be handled by the prosecutor’s office. She filed a motion to correct error and the trial court denied that motion on the same grounds.
On appeal, the appellate panel addressed S.W.’s claim that her due-process rights were violated by the trial court’s refusal to hold a hearing on the alleged indirect civil contempt accusation. The panel explored Indiana Code 34-47-3-5 that lists an array of notice requirements for the accused and how that person must be served with the court order he or she is accused of violating and the specific facts outlined in the accusation.
“Interestingly, the indirect civil contempt statute addresses due process issues, but only in terms of preserving the due process rights of the person accused of contempt,” Judge Terry Crone wrote for the panel that included Judge Edward Najam and Chief Judge Margret Robb. “Absent from the statute is any express language indicating that the accuser is entitled to a hearing.”
The judges agreed with S.W’s citation of I.C. 34-47-5-6 that says in part, “an order for protection is in addition to, and not instead of, another available civil or criminal proceeding… A petitioner is not barred from seeking an order (of protection) because of another pending proceeding.”
“We do not find any parallel provision in the contempt statute, but find the statute instructive,” the court wrote in its footnote, expanding on what it wrote in the opinion itself. “The record does not indicate the specifics of any criminal proceedings against (B.K.) or whether they are still pending, and we do not believe that the decision to grant or deny a civil contempt petition should be based on such collateral matters. Instead, the petition should be valued independently, without reference to other proceedings that may or may not otherwise protect the person for whose safety the original protective order was issued.”
The judges also determined S.W. should be reimbursed her $250 appellate filing fee because this appeal is based on the trial court’s refusal to enforce the protective order against B.K. and that’s what is being reversed and remanded here.