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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Nov 30 2011, 9:19 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JEFFERY LEEPER Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JONATHAN YOCUM, Appellant-Respondent, vs. X.Y., By Next Friend, M.Y., Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 49A02-1103-PO-351

APPEAL FROM THE MARION SUPERIOR COURT The Honorable S.K. Reid, Judge The Honorable Kimberly D. Mattingly, Magistrate Cause No. 49D14-1101-PO-003607

November 30, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Jonathan Yocum ("Father") appeals the trial court's order for protection pursuant to a petition filed by M.Y. ("Mother") on behalf of their son, X.Y. Father presents a single issue for our review: whether sufficient evidence supports the trial court's protective order. We reverse. Facts and Procedural History Mother and Father were married and lived together with X.Y., who was born in 2006, until they separated in September 2010 and Father moved out. A divorce petition was subsequently filed. The final hearing was scheduled for February 11, 2011. The same day, the trial court held a contested hearing on an order for protection against Father and in favor of X.Y. The court had issued the order ex parte on January 31, 2011, following a petition filed by Mother on X.Y.'s behalf on January 28, 2011. At the hearing, Mother offered only her testimony as evidence. She testified that, starting in December 2010, she had observed changes in X.Y.'s behavior in that he was more aggressive and acted out in ways that demonstrated sexual awareness. Mother also told authorities that X.Y. could spell "sex" (Tr. 25), and testified that when it was time for X.Y. to see his Father, X.Y. would cry, scream, and act extremely terrified. Based upon these observations, as well as statements made to her by Father's ex-girlfriend, Sabrina Hollingsworth ("Hollingsworth"), and Father's past practice of showering with X.Y., Mother concluded that Father was molesting X.Y.1

1

Mother filed two reports with the Marion County Department of Child Services (DCS) on January 6, 2011.

2

On February 17, 2011, the trial court modified the protective order to allow Father supervised parenting time pursuant to the Indiana Parenting Time Guidelines.2 Father now appeals. Discussion and Decision Standard of Review Father challenges the sufficiency of the evidence supporting the trial court's protective order. When reviewing the sufficiency of the evidence supporting an order for protection, we neither reweigh the evidence nor judge the credibility of witnesses. Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 2010). We consider only the probative evidence and the reasonable inferences supporting the trial court's order. Id. We also note that Mother did not submit an appellee's brief. When the appellee does not submit a brief, we need not undertake the burden of developing arguments for her. Id. at 784. Rather, we will reverse the trial court's judgment if the appellant presents a case of prima facie error. Id. at 784-85. "Prima facie error in this context is defined as, at first sight, on first appearance, or on the face of it." Id. at 785 (quoting Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). If the appellant does not meet this burden, then we will affirm. Id. Sufficiency of the Evidence Father argues that insufficient evidence supports the protective order because there
DCS investigated but ultimately determined that the allegations were unsubstantiated.
2

The previous order enjoined Father from committing acts of domestic or family violence or sex offenses against X.Y., harassing, annoying, telephoning, contacting, or directly or indirectly communicating with X.Y., and from visiting X.Y.'s residence or school.

3

was no evidence presented at the hearing that he committed an act of domestic or family violence or a sex offense. We agree. Mother sought and the trial court entered its order of protection pursuant the Indiana Civil Protection Order Act ("CPOA"), codified at Indiana Code chapter 34-26-5. The CPOA is construed to promote the protection and safety of all victims of domestic and family violence in a fair, prompt, and effective manner and to prevent future domestic and family violence. Ind. Code

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