November-December 2017

When ‘young love’ goes south

Wanda Ivicic

Chief Victim Assistance Coordinator in the Williamson County Attorney’s Office

How to file a protective order against a juvenile respondent

Sarah (not her real name) walked in to our office with her mother. Like any other protective-order applicant, she completed the necessary paperwork and was escorted to a room to meet with one of our victim assistance coordinators (VACs). In our county, every person who comes to our office seeking a protective order will first meet with a VAC, who will screen to make sure the minimum requirements for a protective order are met and assist the applicant with completing a sworn affidavit.
    During the meeting with Sarah, she disclosed that she and Edward (not his real name) began dating approximately three years earlier. They have an 8-month-old son together. During the relationship Edward had been controlling and jealous, as well as emotionally and physical abusive.
    While the two dated, Edward wouldn’t allow Sarah to wear makeup and would restrict the type of clothing she could wear. She wasn’t allowed to have friends of the opposite sex, and Sarah would have to ask permission before she could hang out with her female friends. Edward would often go through the correspondence on her phone, dictate what apps she could have on her phone, and what she could or could not post on her social media accounts.
    Over the course of the three-year relationship, Edward had pushed, kicked, and punched Sarah. On one occasion, he broke into her home. While inside the house, he pulled out a gun he’d hidden in her home during one of his visits. She was able to call police, but he’d fled the scene before they arrived. Edward went so far as to beat up a guy Sarah had begun dating during one of the many times they’d broken up.
    This fact scenario is not all that different from what we see daily here in our office. Domestic violence is our primary caseload in the protective order division. What made this case stand out was that Sarah and Edward were only 15 years old. The two began dating while they were in seventh grade. By the young age of 15, they had a child who would be a year old before either would start their junior year of high school.
    Ultimately, our protective order prosecutor accepted the case and filed an application for a temporary ex parte order. The judge denied our request  largely due to the ages of the parties. At that point, Sarah had two options: She could request a show-cause hearing and proceed without the temporary order, or she could non-suit the case. After many conversations with Sarah and her mother, they made the decision to non-suit. Their fear was that the judge would deny the final order as well, based on her and Edward’s ages, and they’d be worse off for having gone through the process.

POs against juveniles
Dating violence amongst juveniles is on the rise. Texas is one of few states that allows protective orders to be filed against a juvenile. I field questions about juvenile protective orders fairly regularly. As I write this article, our protective order prosecutor is again preparing to file another application against a juvenile respondent.
    Guiding a victim of crime through the adult criminal justice process is difficult. When we are dealing with a juvenile offender in a protective order case (which means family court), it can be even more confusing to the applicant and cumbersome for the VAC. There are a lot of questions surrounding applications filed against a juvenile. My hope is to provide some clarity on the topic so that VACs can better assist prosecutors and guide applicants through the process.
    Let’s break this down into two main parts: procedural issues and substantive issues. Procedurally, there isn’t much difference between a protective order filed against a juvenile and one filed against an adult. The age of the respondent matters very little. Substantively, there are a lot of issues to take in to consideration.
    Let’s begin with paperwork and procedure. When a prosecutor files an application for a PO against a juvenile, the style remains the same (Applicant vs. Respondent) unless the applicant is also a juvenile. In that case, you will need to decide if the parent or guardian intends to file on the applicant’s behalf or if the applicant will seek the order on her own behalf. If the parent or guardian files on behalf of the victim, the style will change (Parent or guardian on behalf of the minor child vs. Respondent). Keep in mind that a minor filing on her own behalf can swear out a declaration instead of an affidavit. The contents of the application and orders remain the same except for sensitive data. Texas Rule of Civil Procedure 21c dictates what is sensitive information, and it requires that sensitive information to be redacted prior to filing. For example, when redacting a date of birth, simply use “XX/XX/2002.”
    Service of the order doesn’t change much either. We’ve found that the best practice in our county is to serve one set of papers directly to the juvenile respondent and another set of papers to his parent or guardian. Our judges prefer this method over serving just the respondent. It’s important to remember, though, that the Texas Rules of Civil Procedure make no exceptions for minors with regard to service, so serving the parent or guardian isn’t mandatory.
    Once the application has been filed, you’ve received the temporary order along with a court date, and you’ve served the proper paperwork, it’s time to prepare the applicant for court. Seeking a protective order against a juvenile comes with a few unique issues. For example, because the respondent is a juvenile, he has the right to be represented by a “next of friend.” Also, even though protective orders aren’t criminal cases, the judge hearing the case has discretion to appoint an attorney for the respondent on a case-by-case basis. Although we have yet to have that happen in our county, if the judge feels it is necessary, he can appoint an attorney to ensure there will be someone working to protect the interest of the juvenile respondent.
    What the order is likely to prohibit (or not) is subject to debate as well. For example, a protective order often prohibits the respondent from going near the school of the applicant or other protected person. But there are federal issues when prohibiting a juvenile access to his school. Let’s talk Title IX for a minute: There are a host of federal statutes within this title, but for the purpose of this article I’m speaking specifically to the fact that it protects all children from discrimination in education on the basis of sex. Title IX further requires school districts to do certain things on campus when they have reason to believe a student is the victim of dating violence, sexual assault, bullying, or harassment on the basis of her sex. Any school that receives federal funding is subject to Title IX.  What that means for us is that unless either party is switching schools or they already attend separate schools, you may get a ruling from a judge that continues to allow the respondent access to the applicant’s school. It’s important to discuss these possibilities with the applicant.
    There are alternatives should the respondent be allowed to stay at the school. Title IX requires that schools put other measures in place to protect victims of these types of crimes. In Sarah’s case detailed above, we instructed Sarah and her mother to go immediately to the school and speak with the administrative staff to determine what safety plans they could put in place to keep her safe while at school. Ultimately the school worked with all parties involved to ensure that Sarah and Edward had no classes together and that they were not to have contact with one another while on school property.
    Each county is different, so considering what your judges are likely to do is paramount. We’ve filed multiple applications against juveniles, and as stated above, we intend to file another one today. Over time our judges have become more aware of teen dating violence, sexual assault, stalking, and the impact this behavior can have on the victims, the school community, and families. But initially it was an uphill battle that most victims were not willing to go through. For many like Sarah, it was still easier, more convenient, and most of the time more effective to rely on the protective measures put in place by the school. But I can’t remember how many times I’ve told an applicant that only a protective order is criminally enforceable—though I guess I can’t blame them for going another route given the difficulties applicants like Sarah faced.
    Remember that filing a protective order against a juvenile is not much different procedurally, but the outcomes can be very different simply because of the ages of the parties involved. The tendency to look for alternatives for juvenile offenders runs deep within the criminal (juvenile) justice system. We walk a fine line between protecting a victim and rehabilitating an offender. Even though the protective order process is separate from any criminal case, the same school of thought seems to impact the success rate of obtaining a protective order against a juvenile in my area. Despite how you or I feel about this, it’s a reality within which we must work. It’s important that applicants and their support network are aware of this additional hurdle that cases involving only adults do not have.
    Finally, I leave you with this thought. Protective order cases involving juveniles are complex for both the prosecutor and the VAC. From a victim assistant’s perspective, we are working with more than just the direct victim. Oftentimes I will have to sit and speak with parents for lengthy periods of time to get them through the emotions associated with not being able to protect their children. It’s their duty, after all, right? Sarah’s mom hesitated to come to the office to seek help from us because she was ashamed that she’d “allowed” Sarah to get pregnant and “allowed” a boy to batter and abuse her. Add this to the fact that the offender is a juvenile, and it makes the case even more volatile. We know that juveniles are driven by emotions and that they lack an awareness of consequences for their actions. When Sarah told me that Edward had hidden a gun at her house and then pulled it out during an altercation, it struck me that an adult offender may have worked through a very different thought process during a situation like that. How far would Edward go before thinking about the consequences of brandishing a weapon and taking a life? How do you express those concerns to a judge who believes that this is “puppy love” and that kids will simply grow out of this behavior? So yes, juvenile protective order cases can be very complex, but they are worthy of our time and our attention.