St. Louis County District Court File No. F1-04-100193.
Considered and decided by Toussaint, Chief Judge; Hudson, Judge; and Poritsky, Judge.*fn1
The evidence was insufficient to support the issuance of an order for protection pursuant to Minn. Stat. § 518B.01 (2004).
The opinion of the court was delivered by: Hudson, Judge
Appellant Diane Tagliente challenges the trial court's issuance of an order for protection, arguing that the evidence is insufficient to support the order. Because there is insufficient evidence to support the order for protection, we reverse.
On February 6, 2004, respondent Judith Chosa petitioned for an order for protection (OFP) from domestic abuse on behalf of her granddaughter, R.C., against R.C.'s mother, appellant Diane Tagliente. R.C. was approximately 19 months old when respondent petitioned for the OFP. Respondent alleged two incidents of domestic abuse in her affidavit: (1) on January 27, 2004, she observed appellant hit Sunrise Chosa, R.C.'s father and respondent's son, in front of R.C.; and (2) in July 2003, appellant was drunk and passed out in the middle of the road while R.C. was next to her in a baby carriage. Respondent requested custody of R.C. The trial court granted an ex parte temporary order for protection.
At the hearing on the OFP, respondent testified that on January 27, 2004, she observed appellant approach Sunrise from behind and knock him a "foot up in the air, half into the couch, the plants and the wall." Respondent testified that R.C. was standing there screaming, and that appellant did not pay attention to where R.C. was standing. Appellant admitted that she pushed Sunrise on January 27 after she "lost it" during an argument. Appellant admitted that R.C. was present when she pushed Sunrise.
Regarding the second allegation, appellant admitted that she drank alcohol on the day in question in July 2003, but stated, "most of the time [she] just had a buzz [from the alcohol]." Appellant denied that the baby carriage was in the middle of the road and that she was passed out, but admits she lay on her back briefly.
Respondent made additional allegations at the hearing that were not in her OFP petition. Respondent testified that when R.C. was one month old, appellant, R.C., respondent, and two friends went to a store. Appellant set R.C. in her carrier on the floor in a checkout aisle, unattended. Though R.C. was approximately ten feet from respondent, respondent's back was turned and she was unaware that appellant had set R.C. in the aisle. Constance Jones, the manager of the store, was "surprise[d]" to see appellant place R.C. on the floor of the checkout aisle and watched "to make sure the baby wasn't hurt."
Respondent also testified that sometime after July 2003, she heard R.C. screaming and went to the bathroom where she observed appellant cleaning R.C.'s bottom by running water from the faucet full blast on R.C.'s genitals, while her legs were spread. Respondent testified that appellant was oblivious to the fact that R.C. was "being hurt" and screaming. Appellant admitted that she cleaned R.C.'s bottom by putting it under running water, but says she stopped this practice after respondent confronted her.
Sunrise testified that appellant left R.C. alone in July 2003 while he was doing laundry in another room. He found R.C. screaming, after he had been gone for about an hour. Sunrise testified that R.C.'s diaper looked like it had not been changed in hours. Appellant admitted leaving R.C. alone and not telling Sunrise that she was leaving to return ...