Rasha El Adawy v. Mary Sanders (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 12, 2015
• Docket: 49A05-1409-PO-445
• Status: Published

Opinion

MEMORANDUM DECISION Jun 12 2015, 5:26 am 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.

APPELLANT PRO SE ATTORNEY FOR APPELLEE Rasha El Adawy Thomas L. Landwerlen Carmel, Indiana Landwerlen & Rothkopf, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rasha El Adawy, June 12, 2015

Appellant-Respondent, Court of Appeals Case No. 49A05-1409-PO-445 v. Appeal from the Marion Superior Court

Mary Sanders, The Honorable Gary L. Miller, Judge Appellee-Petitioner. Trial Court Case No. 49G21-1404-PO-010832

Mathias, Judge.

[1] Rasha El Adawy (“El Adawy”) appeals the trial court’s issuance of a protective

order against her in favor of Dr. Mary Sanders (“Dr. Sanders”). El Adawy

raises two issues on appeal, which we restate as:

1) Whether the evidence was sufficient to issue a protective order, and

Court of Appeals of Indiana | Memorandum Decision No. 49A05-1409-PO-445 | June 12, 2015 Page 1 of 10 2) Whether the trial court abused its discretion in admitting evidence relating to El Adawy’s mental health diagnoses and treatment.

[2] We affirm.

Facts and Procedural History

[3] El Adawy is a former patient of psychologist Dr. Mary Sanders (“Sanders”). On

March 7, 2012, El Adawy terminated their professional relationship. However,

over the next two years, and despite the termination of their professional

relationship, El Adawy continued to contact Dr. Sanders repeatedly. Those

contacts included dozens of phone calls, voicemails, faxes, emails to Dr.

Sanders’s office and to her personal email account, cards and packages sent

through the mail and delivered in person to Dr. Sanders’s office, threats to file

complaints against Dr. Sanders, and a Facebook friend request. Dr. Sanders

also became aware that El Adawy had printed out a photograph of Dr. Sanders

and carried it around with her. In a March 2014 email to Dr. Sanders, El

Adawy began with “[h]ere I go contacting you after promising over and over

never to do it again” and later in the lengthy email made reference to the Jodi

Arias murder case and asked Dr. Sanders if she “still think[s] I am homicidal.”

Appellee’s App. p. 117.

[4] El Adawy’s behavior frightened Dr. Sanders and her staff so much that for the

first time in her thirty-year career, Dr. Sanders instituted home and office safety

protocol plans with professional security providers. She also reached out to a

professional psychology organization for advice on how to deal with El

Adawy’s conduct. On April 3, 2014, Dr. Sanders filed a petition for a protective

Court of Appeals of Indiana | Memorandum Decision No. 49A05-1409-PO-445 | June 12, 2015 Page 2 of 10 order against El Adawy, alleging that El Adawy’s behavior constituted stalking.

The trial court issued an ex parte protective order, then held a hearing on the

protective order on September 9, 2014. At the hearing, Dr. Sanders testified that

she “felt incredibly threatened by the drama that [El Adawy] was bringing to

the office, and my experience of threats, and my inability to be successful in

setting boundaries because I was no longer her therapist.” Tr. p. 13. Dr.

Sanders also testified that she was particularly alarmed by El Adawy’s email

referencing Jodi Arias, a woman who was convicted of brutally murdering her

boyfriend and who was, like El Adawy, diagnosed with borderline personality

disorder. Dr. Sanders testified that given her knowledge of El Adawy’s mental

health issues, she “started to become very frighten[ed] [that] she’s at least

thinking about violent behavior.” Tr. p. 15.

[5] After hearing the evidence, the trial court held that the ex parte order of

protection should remain in effect until September 9, 2016.

[6] El Adawy now appeals.

I. Sufficiency of the Evidence

[7] We begin by noting that the El Adawy’s appellant’s brief is deficient in many

respects. In Indiana, it is well settled that pro se litigants are held to the same

standard as licensed attorneys. Goossens v. Goossens, 829 N.E.2d 36, 43 (Ind. Ct.

App. 2005). El Adawy provides no statements of the applicable standards of

review, which is required by Indiana Appellate Rule 46(A)(8). A party waives

an issue where the party fails to provide a statement of the standard of review.

Court of Appeals of Indiana | Memorandum Decision No. 49A05-1409-PO-445 | June 12, 2015 Page 3 of 10 See Ramsey v. Review Bd. of Workforce Dev., 789 N.E.2d 486, 490 (Ind. Ct. App.

2003) (holding that the claimant’s substantial noncompliance with rules of

appellate procedure resulted in waiver of his claims on appeal). El Adawy has

therefore waived the issues raised in this appeal. Waiver notwithstanding, we

will briefly address the issues raised in El Adawy’s brief, as best as we are able

to discern them.1

[8] El Adawy first argues that the evidence was insufficient to support the issuance

of the civil protection order against her. Specifically, she argues that her

relationship with Dr. Sanders was professional, not domestic, and that Sanders

did not provide any evidence that El Adawy threatened her. In reviewing the

sufficiency of the evidence to support the issuance of such an order, we apply

the familiar test for determining the sufficiency of evidence. See Tons v. Bley, 815

N.E.2d 509, 511 (Ind. Ct. App. 2004). Thus, we neither reweigh the evidence

nor resolve questions of credibility, and we look only to evidence supporting the

trial court’s judgment, together with the reasonable inferences to be drawn

therefrom. Id.

[9] Under Indiana Code section 34-26-5-2(a):

A person who is or has been a victim of domestic or family violence may file a petition for an order for protection against a:

1 While we will endeavor to address the issues presented, we will not address those arguments that are so ill- formed and unsupported that we cannot fully understand them. We may not become an advocate for El Adawy and make her case for her. See Omni Ins. Group v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012); Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003).

Court of Appeals of Indiana | Memorandum Decision No. 49A05-1409-PO-445 | June 12, 2015 Page 4 of 10 (1) family or household member who commits an act of domestic or family violence; or (2) person who has committed stalking under IC 35-45-10-5 or a sex offense under IC 35-42-4 against the petitioner.

Dr. Sanders’s petition for an order for protection alleged that she was a victim

of stalking by El Adawy, and the trial court’s order found that Dr. Sanders

proved by a preponderance of the evidence that stalking occurred.

[10] Stalking is defined as “a knowing or an intentional course of conduct involving

repeated or continuing harassment of another person that would cause a

reasonable person to feel terrorized, frightened, intimidated, or threatened and

that actually causes the victim to feel terrorized, frightened, intimidated, or

threatened.” Ind. Code § 35-45-10-1. The course of conduct required to

constitute stalking as grounds for issuance of a protective order need not involve

any threats to the victim. Andrews v. Ivie, 956 N.E.2d 720 (Ind. Ct. App. 2011).

[11] “Harassment” is defined as “conduct directed toward a victim that includes but

is not limited to repeated or continuing impermissible contact that would cause

a reasonable person to suffer emotional distress and that actually causes the

victim to suffer emotional distress.” Ind. Code § 35-45-10-2. For acts of

harassment to be “repeated,” and thus prohibited under anti-stalking law, acts

must occur more than once. Johnson v. State, 721 N.E.2d 327 (Ind. Ct. App.

1999).

[12] Here, the evidence favorable to the trial court’s judgment showed that El

Adawy contacted Dr. Sanders nearly fifty times after the termination of their

Court of Appeals of Indiana | Memorandum Decision No. 49A05-1409-PO-445 | June 12, 2015 Page 5 of 10 psychologist-patient relationship. Those contacts included voicemails, faxes,

dozens of emails to Dr. Sanders’s office and to her personal email account,

cards and packages sent through the mail and delivered in person to Dr.

Sanders’s office, threats to file complaints against Dr. Sanders, a Facebook

friend request, and phone calls. Some of those contacts were requests from El

Adawy for medical records, and some were requests to be referred to another

therapist. Others were more alarming, such as the aforementioned Jodi Arias

reference, an “Email from Respondent to Personal Email suggesting I put my

picture on my website and promising not to again print off my picture and carry

it with her,” Appellee’s App. p. 108, “extremely negative reviews [of] Petitioner

and in one of those reviews, [asking] God for justice,” Id. at 110, a twenty-six

page letter, an attempt to access information about Dr. Sanders on

PsychologyToday.com, and a voicemail stating that Dr. Sanders “doesn’t have

to worry anymore because I will not be here for anyone to worry about me,” Id.

at 109.

[13] Dr. Sanders notified El Adawy on May 8, 2013 that she would no longer accept

communications from her, she refused cards and packages sent by El Adawy,

she consulted other professionals for advice on how to deal with the situation,

and she responded to a March 26, 2014 email from El Adawy with a message

stating that she no longer wanted any direct contact with El Adawy. Dr.

Sanders testified that El Adawy persisted in contacting her despite this and that

El Adawy’s conduct caused Dr. Sanders and her office staff to feel “incredibly

threatened.” Tr. p. 13. It is unclear when Dr. Sanders notified El Adawy for the

Court of Appeals of Indiana | Memorandum Decision No. 49A05-1409-PO-445 | June 12, 2015 Page 6 of 10 first time that she wanted no further contact, but the tone of El Adawy’s

communications indicate that El Adawy was aware that her contact was

unwelcome. El Adawy argues that she never outright threatened Dr. Sanders,

but we have held that contact need not be threatening on its face to constitute

stalking. See Maurer v. Cobb-Maurer, 994 N.E.2d 753 (Ind. Ct. App. 2013) (there

is no requirement in the anti-stalking statute that the contact at issue be

threatening on its face, and stalking may be found where other evidence is

sufficient to prove that the contact amounted to harassment).

[14] Under these facts and circumstances, we conclude that Dr. Sanders presented

sufficient evidence to prove that El Adawy stalked her. See Andrews v. Ivie, 956

N.E.2d 720 (Ind. Ct. App. 2011) (evidence supported finding that respondent

engaged in knowing or intentional course of conduct involving repeated or

continuing harassment of petitioner; despite petitioner’s demands that

respondent leave her alone, respondent initiated multiple contacts, including

gifts, emails, texts, and social network messages, and petitioner testified that the

unwelcome contacts caused her emotional distress). Cf. Maurer v. Cobb-Maurer,

994 N.E.2d 753 (Ind. Ct. App. 2013) (evidence was insufficient to establish

stalking where only one email was admitted into evidence, there was no

evidence that petitioner asked respondent to cease contacting her, and

petitioner did not testify regarding the effect respondent’s contacts had on her).

II. Mental Health Records

[15] El Adawy also argues that the trial court erred in admitting evidence related to

her mental health diagnoses and treatment. She specifically challenges the Court of Appeals of Indiana | Memorandum Decision No. 49A05-1409-PO-445 | June 12, 2015 Page 7 of 10 admission of voicemails she left Dr. Sanders, Dr. Sanders’s testimony about her

communications with El Adawy (some of which relate to El Adawy’s mental

health issues), and Dr. Sanders’s testimony about El Adawy’s behaviors that

coincide with her diagnosed mental health issues. El Adawy concedes that she

did not object to the admission of the evidence at trial and, in fact, at least twice

expressly consented to admission. El Adawy now contends, however, that the

trial court’s admission of the evidence constitutes a violation of her due process

rights because the trial court “did not take into consideration her emotional and

psychological condition, which put her in an extremely weak position, and

made it difficult for her to make a decision as to whether to waive her

(“HIPAA”) rights or not.”2 Appellant’s Br. at 38. El Adawy’s argument appears

to be that some of the evidence presented at the hearing was confidential due to

the psychologist-patient privilege that existed between herself and Dr. Sanders

and that the trial court erred in accepting her waiver of the privilege because she

did so unknowingly or unintentionally.

[16] The psychologist-patient privilege is codified at Indiana Code section 25-33-1-

17, which states that “[a] psychologist licensed under this article may not

disclose any information acquired from persons with whom the psychologist

has dealt in a professional capacity.” Pursuant to the statute, the privilege does

not apply where “the psychologist has the expressed consent of the client” to

disclose the information. Id.

2 Both parties refer in their briefs to “HIPAA rights.” We assume that, by this, they mean communications made confidential by the psychologist-patient privilege.

Court of Appeals of Indiana | Memorandum Decision No. 49A05-1409-PO-445 | June 12, 2015 Page 8 of 10 [17] Because El Adawy expressly and affirmatively consented to the admission of

the evidence, and because El Adawy again failed to provide a statement of the

applicable standard of review or cite to cogent authority as required by

Appellate Rule 46(A)(8), this issue is waived. See Ramsey, 789 N.E.2d at 490.

Waiver notwithstanding, her claim has no merit. Although El Adawy contends

that she was unaware of the implications of her consent, her statements and

those of her counsel indicate otherwise. Immediately prior to Dr. Sanders’s

testimony, El Adawy’s counsel declared, “My client had a medical therapeutic

relationship [with] the Plaintiff, and she waives her—my client, being advised,

waives her HIPAA rights.” Tr. p. 3 (emphasis added). Later in the proceeding,

Dr. Sanders’s counsel asked El Adawy, “You heard your lawyer at the

beginning of the trial saying that you are waiving your HIPAA rights. Did you

hear him say that?” El Adaway answered, “Yes, he asked me and I said ‘yes.’”

Tr. p. 81. Dr. Sanders’s counsel asked, “And you agree with that on the

record,” and El Adaway responded, “Yes, absolutely.” Id. Under these facts

and circumstances, it is clear that El Adawy waived the psychologist-patient

privilege protecting her conversations and communications with Dr. Sanders.

El Adaway stated unequivocally that she consented to the admission of

evidence related to her mental health and her counsel’s statement indicates that

he had advised her beforehand regarding her waiver.

Conclusion

[18] By failing to comply with Appellate Rule 46(A)(8), El Adawy waived the issues

presented in this appeal. Waiver notwithstanding, we conclude that Dr. Sanders

Court of Appeals of Indiana | Memorandum Decision No. 49A05-1409-PO-445 | June 12, 2015 Page 9 of 10 presented sufficient evidence to support the trial court’s issuance of the

protective order and that the trial court did not abuse its discretion in admitting

evidence of El Adawy’s mental health diagnoses and treatment.

[19] Affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision No. 49A05-1409-PO-445 | June 12, 2015 Page 10 of 10