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S.L.W. v. Huss

Supreme Court of North Dakota

August 28, 2014

S.L.W., Petitioner
v.
Robert E. Huss, Respondent and Appellant

Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.

S.L.W., petitioner; no appearance.

Rodney E. Pagel, Madison Suite, Bismarck, N.D., for respondent and appellant.

Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom. Opinion of the Court by VandeWalle, Chief Justice.

OPINION

Page 368

VandeWalle, Chief Justice.

[¶1] Robert E. Huss appealed from a domestic violence protection order prohibiting him from contacting S.L.W., a minor child, for a period of two years. Because the district court abused its discretion in admitting the child's hearsay statements about sexual abuse, which constitute the only evidence supporting issuance of the protection order, we reverse.

I

[¶2] In November 2013, S.L.W.'s mother petitioned the district court for a domestic violence protection order against Huss on S.L.W.'s behalf, alleging Huss had

Page 369

sexually abused S.L.W. S.L.W. was nine years old and her mother and Huss were married, but were in the process of divorcing.

[¶3] At the beginning of the hearing on the protection order, the mother, who was self-represented, informed the district court " my daughter is here if you would like to speak to her?" The judge responded, " No I wouldn't. I don't think that's necessary. . . . I'm not going to get her involved in that." The mother rested her case on what she had filed with the court, the petition and a letter from Dakota Children's Advocacy Center. The mother alleged in the petition:

October 21st 2013 my 9 year old daughter [S.L.W.] told me that Rob had touched her " potty and kissed her boobies." She told me that this had happened about 10 times, starting in March 2013. I reported this to the Sheriff's Dept. and on Thursday October 24th 2013, [S.L.W.] and I went to the Childrens' Advocacy Center in Bismarck, where [S.L.W.] was examined and disclosed details of the assults [sic].
Since the divorce action, [S.L.W.] has told me that Rob said to her, " not to tell anyone or he would go to jail." He has also told [S.L.W.] that if she said anything to me about what the two of them had ...

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