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Delay of protection order hearing called ‘disturbing’

November 17, 2014

The Indiana Court of Appeals called a trial court’s delay in setting a hearing on a petition for a permanent protection order “disturbing” and found the lower court’s denial of the order did not comply with the state’s trial rules.

A father, E.W., filed a petition in Vanderburgh Superior Court to terminate the parenting time of his son’s mother, J.W. E.W.’s mother, O.W., filed a separate petition to adopt E.W.’s and J.W.’s son, R.W.

Vanderburgh Superior Court denied both petitions and the Court of Appeals affirmed in E.W., O.W. v. J.W., 82A04-1401-AD-40. The appellate panel ruled the evidence supported the trial court’s findings of fact that the mother is fit to be a parent, she has communicated with her son, and she did make nonmonetary contributions to his care.   

However, the Court of Appeals chastised the trial court for not ruling more quickly on the father’s request for a permanent protection against J.W.

The father filed a request for a permanent protection order but the trial court consolidated that hearing with the paternity and adoption cases and set the hearing on the day the original protection order expired. The lower court repeatedly extended the ex parte order for protection.  

In a footnote, the Court of Appeals pointed out the state statute contemplates a hearing after an ex parte order to be held much quicker and the chronological summary of this case is unclear why the hearing on this matter was put off for 11 months.

“Given the trial court’s conclusion that a protection order was unwarranted and that Mother faces at least one criminal charge as a result of violating the ex parte order for actions that took place well beyond the order’s original expiration date, we find the delay in this case disturbing,” Judge Margret Robb wrote for the court.

The Court of Appeals found the denial of the protection order did not comply with Indiana Trial Rule 52(A) because the trial court did not make special findings of fact and conclusions.

Indeed, the appellate court described the findings “noticeably vague and indeterminate.” The Court of Appeals said the trial court failed to make a factual finding as to the veracity of the father’s allegations and made no findings of fact relevant to the grant or denial of a protection order.

Consequently, the Court of Appeals remanded for further proceedings on the petition for a protection order.
 

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