P.T. (minor child), by next friend, Terry Tlustek v. Ka. A.-L. (minor child) and Ki. A.-L. (minor child), by next friend Rachel Leaneagh (mem. dec.)

CourtIndiana Court of Appeals
DecidedNovember 27, 2019
Docket19A-PO-1241
StatusPublished

This text of P.T. (minor child), by next friend, Terry Tlustek v. Ka. A.-L. (minor child) and Ki. A.-L. (minor child), by next friend Rachel Leaneagh (mem. dec.) (P.T. (minor child), by next friend, Terry Tlustek v. Ka. A.-L. (minor child) and Ki. A.-L. (minor child), by next friend Rachel Leaneagh (mem. dec.)) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
P.T. (minor child), by next friend, Terry Tlustek v. Ka. A.-L. (minor child) and Ki. A.-L. (minor child), by next friend Rachel Leaneagh (mem. dec.), (Ind. Ct. App. 2019).

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 27 2019, 9:28 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT Michelle L. Woodward Pittman Law Firm Bedford, Indiana

IN THE COURT OF APPEALS OF INDIANA

P.T. (minor child), by next November 27, 2019 friend, Terry Tlustek, Court of Appeals Case No. Appellant-Respondent, 19A-PO-1241 Appeal from the v. Lawrence Circuit Court The Honorable Ka. A.-L. (minor child) and Ki. Kelsey B. Hanlon, Special Judge A.-L. (minor child), by next Trial Court Cause Nos. friend Rachel Leaneagh, 47C01-1902-PO-189 Appellees-Petitioners. 47C01-1902-PO-190

Kirsch, Judge.

[1] P.T., by next friend Terry Tlustek, (“P.T.”) appeals the trial court’s issuance of

permanent protective orders against him in two separate cases, one for Ka. A.-

L. (“Ka”) and one for Ki. A.-L. (“Ki”). He raises two issues, which we Court of Appeals of Indiana | Memorandum Decision 19A-PO-1241 | November 27, 2019 Page 1 of 11 consolidate and restate as whether sufficient evidence supported the trial court’s

issuance of the protective orders for both Ka and Ki.

[2] We affirm.

Facts and Procedural History [3] Sisters Ka and Ki1 participated in a swimming program at Lawrence County

Aquatics (“LCA”). Tr. Vol. 2 at 8-9. P.T., age eleven, also participated in the

program. Id. at 8-9, 88. Ka and Ki would attend practice at least six times per

week. Id. at 8. Between April of 2018 and February of 2019, P.T. touched and

harassed Ka and Ki. Appellant’s App. Vol. II at 18-20 24-26. P.T. usually

touched and annoyed them while all three were in the swimming pool, but on

one occasion he did so when all three were at LCA but not in the pool itself.

[4] P.T. touched both Ka’s and Ki’s buttocks. P.T. touched Ka’s buttocks two

separate times. Tr. Vol. 2 at 26, 30. Ka described the incidents as follows:

“[H]e would come up behind me, and he would use his hand and brush my

bottom, and then my thighs, or my thighs; then my bottom.” Id. at 30. Ki, in

turn, described the touching as follows: “[P.T.] was standing right next to me

when I was doing a flip turn, and he put his hand on my butt.” Id. at 34. When

P.T. touched Ka and Ki, he often smirked at them. Id. at 12, 26, 34-35.

1 While the record shows that Ka was born in 2004 and Ki was born in 2007, it does not divulge their dates of birth so we cannot determine their exact ages during each incident. However, it appears that that Ka was fourteen or fifteen during the incidents and that Ki was at least ten years old during the first incident and at least eleven by the time of the last incident in February of 2019. See Appellant’s App. Vol. II at 9, 13.

Court of Appeals of Indiana | Memorandum Decision 19A-PO-1241 | November 27, 2019 Page 2 of 11 [5] P.T. would also rub his body against Ka’s and Ki’s bodies. Ka described the

incidents as follows:

[H]e would come up behind me when I finally wasn’t looking at him, and he would bob and brush his entire body against my back, or if I was talking to someone else, he would come up and bob his body -- he would come up and be bobbing, and his whole body would brush against my front.

Id. at 30-31. Ki described similar incidents; P.T. would rub his belly against

Ki’s “front, my sides, and my back.” Id. at 36, 38. P.T. rubbed against Ki’s

body approximately forty times. Id. at 36. This made Ki uncomfortable and

scared. Id. at 37. Ki was afraid of P.T. partly because he was taller than her.

Id. P.T. would also grab Ka’s and Ki’s feet. Id. at 12, 40. Both Ka and Ki

frequently told P.T. to not touch them. Id. at 13, 28, 36. Ka told P.T six days

per week to stay away from her. Id. at 28.

[6] P.T. would also come very close to Ka and Ki outside the pool, particularly in a

hallway just outside the pool. Id. at 15. Ka and Ki would go into the hallway,

put mats on the floor, and do stretching exercises. Id. P.T. would follow them

into the hall and place his mat between the girls’ mats, such that Ka and Ki

could not do their stretching exercises without touching P.T. Id.

[7] P.T. would come close to Ka and Ki in other ways they found distressing,

including placing his face within inches of Ka’s and Ki’s buttocks. This

occurred when Ka and Ki would stand on a diving block at the edge of the

pool. As they stood on the block, P.T. would position himself just behind the

Court of Appeals of Indiana | Memorandum Decision 19A-PO-1241 | November 27, 2019 Page 3 of 11 block, so his face was inches from each girl’s buttocks. Id. at 13-14; 38-39. This

bothered Ka so much that each time she went to the pool, she would look for

P.T.: “The first thing I would do is start scanning the pool area and making

sure that he wasn’t there, and that if he was, I would know exactly where he

was; that way, I could be away from that area.” Id. at 15.

[8] Some of the incidents were unique to each girl. As to Ka, P.T. would rub his

hand down the full length of Ka’s back, lift his hand to avoid Ka’s buttocks, and

then run his hand down Ka’s thighs. Id. at 11. P.T. would sometimes corner

Ka in the pool, and while doing so, brush his hand against Ka’s arm or bump

her with his legs. Id. at 12-13.

[9] In a January 14, 2019 incident, while Ka was swimming laps, P.T. brushed his

side against Ka’s side, which made her “super uncomfortable.” Id. at 16.

When Ka was stationary against the pool wall, P.T. approached Ka and pressed

against her. Id. Ka told P.T. to stop, but he said that “he had no choice, he

couldn’t help it.” Id. Ka used her elbows to push P.T. away “because it was

really making me very uncomfortable.” Id. During this incident, P.T. touched

Ka at least thirty times. Id. at 16-17. All these incidents made Ka stressed and

anxious. Id. at 20-21.

[10] As to Ki, P.T. massaged her ear, which made Ki uncomfortable and nervous.

Id. at 37. On another occasion, Ki was playing cards with friends while sitting

on the pool’s bleachers, P.T. and his sisters approached the group, and P.T.

started “stomping around us, jumping off one part of the bleacher to another,

Court of Appeals of Indiana | Memorandum Decision 19A-PO-1241 | November 27, 2019 Page 4 of 11 being really loud,” which made Ki uncomfortable. Id. at 40. As P.T. was

introducing his sisters to Ki and her friends, P.T. thrust his finger close to Ki’s

face, which made her uncomfortable. Id. On another occasion, P.T. spit a

mouthful of water into Ki’s face. Id. at 39.

[11] While P.T. claimed that some of the incidents were accidental, he admitted that

some were intentional. Id. at 90. He also admitted that Ka and Ki often told

him not to touch them. Id. In fact, he admitted that Ka told him once or twice

per day not to touch her. Id. He also admitted to putting his face near each

girl’s buttocks. Id. at 91.

[12] On February 14, 2019, Rachel Leaneagh, Ka and Ki’s mother, filed two

petitions for a protective order, one for Ka under cause number 47C01-1902-

PO-189 and one for Ki under cause number 47C01-1902-PO-190. Appellant’s

App. Vol. II at 17-22, 23-29. Each petition alleged that P.T. had committed a

sex offense or stalking. Id. at 17, 23. Ka’s petition listed incidents occurring

between April of 2018 and February of 2019, claiming that P.T. touched her

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P.T. (minor child), by next friend, Terry Tlustek v. Ka. A.-L. (minor child) and Ki. A.-L. (minor child), by next friend Rachel Leaneagh (mem. dec.), Counsel Stack Legal Research, https://law.counselstack.com/opinion/pt-minor-child-by-next-friend-terry-tlustek-v-ka-a-l-minor-indctapp-2019.