In Re The Paternity Of K.D.T.N.

929 N.E.2d 863

In re the PATERNITY OF K.D.T.N., Appellant-Petitioner,v.B.D., Appellee-Respondent.

No. 49A02-0907-JV-693.

Court of Appeals of Indiana.

June 29, 2010.

COPYRIGHT MATERIAL OMITTED

Bryan Lee Ciyou, Ciyou & Dixon, P.C., Indianapolis, IN, Attorney for Appellant.

Kimberly J. Bacon, Indianapolis, IN, Attorney for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

T.N. (“Mother”) appeals the trial court's order prohibiting her from discussing legal proceedings with the media following the establishment of paternity in her child K.D. Mother contends that the order violates her right to freedom of speech under the First Amendment to the United States Constitution and Article I, Section 9, of the Indiana Constitution. We conclude that the juvenile court's order is an invalid prior restraint on Mother's free speech rights. We further conclude that the confidentiality provisions in the Indiana Code and Administrative Rule 9 do not prohibit Mother from talking to others about the case based on her knowledge obtained independent of the juvenile proceedings. To the extent the order prohibits such communication, the juvenile court erred. We reverse and remand with instructions.¹

FACTS AND PROCEDURAL HISTORY

Mother gave birth to K.D. on May 17, 2001. The following month, B.D. (“Father”) filed a paternity affidavit acknowledging paternity of K.D., and the parties filed a joint petition to establish paternity and support. The juvenile court approved the petition and awarded legal and physical custody to Mother and parenting time to Father. Mother and Father's on-again-off-again romantic relationship ended in 2003.

In December 2004, Mother alleged that Father had sexually abused K.D. As a result, the court eliminated Father's overnight visitation with K.D. pending investigation of the allegation. In April 2005, the court reinstated the overnights, “finding no substantiation of the allegations and that [Mother] had essentially deceived the Court in that the child's counseling had been terminated by [Mother] even before the December 2004 hearing.” T.N. v. B.D. (In re Paternity of K.D.), No. 49A02-0801-JV-52, 2008 WL 4725287 (Ind.Ct.App. Oct.29, 2008) (“ K.D. I ”) (alterations in original).

Shortly thereafter, on April 21, 2005, Father filed a petition to modify custody. The hearings on that petition began on August 24, 2006, and continued on various dates into 2007. In March 2007, while Father's petition was pending, he learned that Mother had withdrawn K.D. from school in Indianapolis and had relocated to Nashville, Tennessee, with the child. Mother had not sought prior approval from the court for the move.

On April 2, 2007, Father filed an emergency petition for modification of custody. Mother subsequently filed her notice of relocation with the juvenile court. On August 27, 2007, the court granted Father's petition and awarded him custody of K.D. On appeal, this court affirmed in an unpublished decision. K.D. I, 2008 WL 4725287, at *7.

In November 2007, Mother took K.D. to Community North Hospital, where the child was examined and diagnosed with vaginosis. Mother believed the condition resulted from molestation by Father. A Preliminary Report of Alleged Child Abuse or Neglect was filed January 1, 2008. Based on interviews with the child, the parties, and the medical care providers, the caseworker reported that the child alleged that the abuse occurred when she was five years old. A doctor suspected the possibility of sexual abuse, although he told Mother that vaginosis is not related to sexual abuse. The caseworker determined that Mother's allegation was substantiated.

As a result of this sexual abuse allegation, the court placed K.D. with her maternal grandmother (“Grandmother”) and the State filed a petition alleging K.D. to be a child in need of services (“CHINS”). That case was dismissed on March 18 or 19.² On March 24, the court interviewed K.D. in camera, and on March 25, the court held a hearing on a petition for emergency modification of custody.³ At the conclusion of the hearing, the court found that the “sexual abuse allegations against Father [were] unsubstantiated” and that the “CHINS petition [ ] is no longer pending [.]” Appellant's App. at 8. As a result, the court returned K.D. to Father's custody.

Believing that the courts were not protecting K.D., Mother filed a “Judicial Complaint ... against the court and the parties involved in that Complaint.” ⁴ Transcript at 304. Mother also spoke with someone in the office of Governor Mitchell E. Daniels, Jr.; someone from Congressman Dan Burton's office; the office of the Marion County Sheriff; and many others. When Mother did not “get satisfaction there, [she] went to the Indianapolis Recorder.” Id. at 307. In February 2009, the Recorder printed a series of three articles in which Mother renewed her allegation that Father had sexually abused K.D.

The first article, which ran on the front page, includes a photo of Mother and Grandmother. That article, entitled “A mother's journey for justice,” reports that K.D. told a forensic investigator, “[a] child psychologist, and [a] police detective that [Father] had touched her inappropriately [ ] and that [his] stepson had been ‘playing house’ on her.” Appellant's App. at 54. The article reports further that the court subsequently awarded Father custody of K.D. and that the next judge who presided over the case refused to give “even temporary custody to [Mother], despite the investigation into alleged abuse[.]” Id. at 54. The second article names the judges and Father's attorney and states that Mother has filed complaints with the Indiana State Bar Association and the Indiana Commission on Judicial Qualifications. That article also states that the court returned K.D. to Father's custody

despite police and Child Protective Services' (CPS) investigations against the father for abuse, as well as a document filed with the court that included the statements of a forensic investigator, and Jim Dalton, a local psychologist hired by CPS, who supported the validity of [K.D.'s] detailed claim of being touched by her father.

Id. at 56. These articles do not mention the juvenile court's March 25, 2008, determination that the allegation of abuse was not substantiated or that the court dismissed the CHINS case based on that allegation. And although the articles refer to K.D. by a pseudonym, the pseudonym is strikingly similar to the child's given name.

On February 19, 2009, Father filed two petitions for rule to show cause. In one of the petitions he asked the court to find Mother in contempt for having discussed the court's custody “order and on-going proceedings” with the Indianapolis Recorder “in violation of Title [sic] 31-39-1-1 and Title [sic] 31-39-1-2 of the Indiana Code of Juvenile Law.” Id. at 51. On February 24, 2009, the court issued an Order Regarding the Release of Confidential Information (“Confidentiality Order”), and on March 4, Mother filed her Notice of Compliance with Respect to that order.⁵

On April 30, May 1, May 7, and June 1, 2009, the juvenile court held a hearing on Father's petitions for rule to show cause and other pending matters. ⁶ On June 30, the court entered an order with special findings and conclusions (“Order”) that, in relevant part, denied Father's petitions for rule to show cause. However, the Order also prohibited Mother from talking to the media about the case:

V. [FATHER'S] CONTEMPT REGARDING CONTACTING THE INDIANAPOLIS RECORDER

42. The Mother agreed that she went to the Indianapolis Recorder because she did not know what else to do.

43. The Indianapolis Recorder printed three separate articles in its newspaper regarding this case. (See GAL Exhibits II; III; and IV).

44. The Mother stated that she did not understand that this case was confidential and that she was violating the law by contacting the Indianapolis Recorder.

45. The Court does not find the Mother in Contempt of Court for contacting the Indianapolis Recorder and making statements about the Father regarding this case which is prohibited because this case is confidential.

46. The Court does find that the Mother exercised extremely poor judgment in contacting the Indianapolis Recorder and making the statements which she did to the newspaper. The teachers and some of the students at [K.D.'s] school were aware of the article and read the article. The Mother clearly did not act in the best interest of [K.D.] The Court also finds that the statements Mother made to the Indianapolis Recorder regarding the Father could result in permanent damage to [K.D.]

47. However, the Court hereby informs both the Mother and Father that they are not permitted to communicate with any media source or others as this is a confidential matter. If either party violates this Court order or I.C. 34-47-3-4, the Court may find them [sic] in Contempt of Court and may impose monetary sanctions or may incarcerate them [sic] in a penal facility.

48. The Court hereby prohibits the Mother and Father from discussing this case in any method or fashion in order that the Court can make sure that [K.D.] is not subjected to such inappropriate behavior by either parent.

Appellant's App. at 36-37. Mother now appeals.

DISCUSSION AND DECISION

Mother contends that the juvenile court's Order violates her right to free political speech under the First Amendment to the United States Constitution and Article I, Section 9, of the Indiana Constitution, as applied. In this regard, Mother refers to that part of the Order that prohibits her from speaking to others about the juvenile case. Considering Mother's contention under the First Amendment, we must conclude that the Order constitutes an invalid prior restraint because it is overbroad.⁷

The First Amendment, made applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law ... abridging the freedom of speech....” U.S. Const., amend. I. A prior restraint is an order forbidding certain...