In the Matter of: Daniel Joseph Hudson and o/b/o F. G. H., petitioner, Respondent,
Jessica Michael Hudson, Appellant.
Olmsted County District Court File No. 55-FA-12-8644
Daniel Joseph Hudson, Rochester, Minnesota (pro se respondent)
Kay Nord Hunt, Lommen, Abdo, Cole, King & Stageberg, P.A., Minneapolis, Minnesota; and Diane M. Kaer, Apple Valley, Minnesota (for appellant)
Kara Obermeyer, Chatfield, Minnesota (guardian ad litem)
Considered and decided by Kalitowski, Presiding Judge; Johnson, Chief Judge; and Kirk, Judge.
On appeal from the district court's grant of an order for protection (OFP), appellant-mother argues that (1) the district court did not have jurisdiction to issue the OFP; (2) the district court abused its discretion by granting the OFP; and (3) the district court abused its discretion by admitting the child's out-of-court statements into evidence. We conclude that the district court had jurisdiction to issue the OFP, but abused its discretion by granting the OFP. Therefore, we reverse.
Appellant Jessica Michael Hudson (mother) and respondent Daniel Joseph Hudson (father) married in August 2003 and divorced in January 2010 in Dakota County. Mother and father have one child, F.G.H., who was born in October 2007. Mother and father lived together in Rochester during their marriage and, at the time of their divorce, father continued to live in the family home and mother lived in Hastings. Mother and father agreed that they would share legal custody of F.G.H. but that mother would receive sole physical custody. They further agreed that father would have parenting time with F.G.H. every other weekend. The district court entered judgment based on the parties' agreement. Father currently lives in Rochester with his wife and three children, and mother lives in a confidential location in Washington County.
On December 31, 2012, father filed an ex parte affidavit and petition for an OFP in Olmsted County against mother on behalf of F.G.H. In the petition, father alleged that F.G.H. arrived for parenting time with him on December 21 with a black eye and gave him different explanations than those provided by mother for the black eye. Father alleged that it was the third time F.G.H. had a black eye. Father alleged that the second time F.G.H. had a black eye she also had a large scratch on her inner thigh. On that occasion, father took F.G.H. to the emergency room. The district court granted the ex parte OFP and appointed a guardian ad litem (GAL). On January 2, the district court filed an amended ex parte OFP to correct F.G.H.'s name on the OFP.
On January 7, 2013, the district court held an OFP hearing. Father testified that he picked up F.G.H. for his parenting time on December 21 and noticed that F.G.H. had a black eye. Father testified that he asked F.G.H. about the black eye, and F.G.H. was hesitant to tell him about it. Father asked F.G.H. three times what had happened to her eye and then sent a text message to mother asking her how F.G.H. got the black eye; mother responded that F.G.H. had fallen off a sink into a faucet. Father asked F.G.H. if that was how she had gotten the black eye, and F.G.H. said "I don't know, " and then, "Yes." Father testified that F.G.H. told him that mother's boyfriend "gives her a whooping" if she does not listen to mother and that F.G.H. demonstrated how she gets a "whooping" by getting on all fours, smacking her buttocks, and making a sound of pain. Father testified that his wife took pictures of F.G.H.'s black eye.
Father's wife and her mother, F.G.H.'s step-grandmother, also testified that they talked to F.G.H. about her black eye. Father's wife testified that she questioned F.G.H. about the black eye, and F.G.H. told her that if she did not listen to mother then mother's boyfriend would use a belt to "whoop" her. She further testified that F.G.H. told her that mother's boyfriend slapped her in the head and she was afraid of him. She testified that F.G.H. told her that on one occasion she was in mother's bedroom when mother's boyfriend tried to whoop her with a belt. Mother told her boyfriend that he could not do that to F.G.H., but he said he could if he wanted. F.G.H.'s step-grandmother testified that she asked F.G.H. about her black eye on December 22. She testified that F.G.H. told her that she ran into a wall, or that maybe she ran into a faucet.
The GAL testified that she met with father, father's wife, and F.G.H. on January 3. She testified that she asked F.G.H. if she had an "owie on [her] eye, " and "[F.G.H.] said I don't know. I don't remember. She said maybe I got it at school. She said maybe my friend gave it to me." The GAL testified that she reviewed a police report regarding mother's boyfriend, R.W. According to the police report, R.W. was driving mother's car in December 2012 when he was arrested and charged with a narcotics violation. The GAL testified that she talked to mother about the police report, and mother told her she found out about the charge when she was served with the OFP. Mother said that R.W. told her that her car was at the shop. The GAL further testified that R.W. told the police that mother's address was ...