A16-2062

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-2061
A16-2062

Tami Juberian obo Minor Children, petitioner,
Respondent (A16-2061),
Tami Juberian, petitioner,
Respondent (A16-2062),

vs.

Nancy Hail,
Appellant.

Filed September 5, 2017
Reversed
Florey, Judge

Rice County District Court
File No. 66-CV-16-2479

Tami Juberian, Faribault, Minnesota (pro se respondent)

Nancy Hail, Faribault, Minnesota (pro se appellant)

Considered and decided by Rodenberg, Presiding Judge; Kirk, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In these consolidated appeals, appellant challenges the district court’s grant of
harassment restraining orders (HROs) sough t by respondent social worker on her own
behalf and on behalf of children involved in a CHIPS proceeding, arguing that the district
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court (1) failed to make findings necessary to support the grant of the HROs and (2) made
findings that were unsupported by the record. We reverse.
FACTS
Respondent Tami Juberian is the Rice County Social Services social worker
assigned to a children-in-need-of-protection-or-services (CHIPS) case involving appellant
Nancy Hail’s three grandchildren. Respondent applied for HROs on behalf of the minor
children and on her own behalf following several incidents involving appellant.
After the children were placed in foster care, appellant was allowed supervised
visitation with them, but vis itation was cancelled after the first appointment reportedly
because of appellant’s behavi or and because she had not complied with a request for a
urinalysis. According to respondent, she told appellant that she was
not to come to certain public events that [respondent] or the
children attend because . . . [appellant] received one supervised
visit [that] was canceled because of her behavior and possibly
[being] under the influence of drug[s] and alcohol. [Appellant]
was asked not to go to [the ol dest child’s] recreational places
and [appellant] continues to do so.

After respondent gave her these instructions, appellant appeared at the oldest child’s karate
class on August 3, 2016, and at her gymnas tics class on September 27, 2016. Appellant
also accosted the child’s foster father and “would not leave him alone” on August 16, 2016.
Appellant argued that she had permission from th e foster parents to drop off gifts for the
children, but respondent stated that appellant had not been given the foster parents’ contact
information. Appellant said that she had talked to the foster parents in court.
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Appellant testified that she did not purpo sely pursue contact with the children but
had run into them while attending other classe s or events in the same building or area.
Appellant believed that respondent was retaliating by asking for an HRO because appellant
had called the police and asked them to do a we lfare check on the children at the foster
parents’ home.
Respondent also testified that at a hearing on October 17, 2016, appellant had
mouthed comments at her and made a threatening gesture of drawing her finger across her
throat during respondent’s testimony. Following issuance of the ex parte HRO, appellant
called respondent and left a voicemail accusi ng her of “causing drama.” Respondent’s
supervisor, Suzi Kleindl, confirmed that appellant had said something about drama on the
voicemail and that appellant denied making a threatening gesture. The district court found
that appellant drew her “finger across [her] th roat and then pointed at [respondent]” and
“attend[ed] children’s events after being told not to attend,” and issued two HROs. This
appeal followed.
D E C I S I O N
We review the district court’s grant of an HRO for an abuse of discretion and its
findings of fact for clear error, deferring to the district court’s assessment of witness
credibility. Kush v. Mathison, 683 N.W.2d 841, 843-44 (Minn. App. 2004), review denied
(Minn. Sept. 29, 2004). The district court’s order must be supported by sufficient evidence.
Id. at 844.
If a district court finds that there are re asonable grounds to believe that a person has
engaged in harassment, it may issue an HR O restraining that person from having contact
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with the targeted individual. Minn. Stat. § 609.748, subd. 5 (2016). “Harassment” includes
“repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial
adverse effect . . . on the safety, security , or privacy of another, regardless of the
relationship between the actor and the intended target.” Id., subd. 1(a)(1) (2016). The
district court must find both that there were re peated intrusive acts and that the person to
be restrained engaged in “objectively un reasonable conduct” and the victim had an
“objectively reasonable belief” that the behavior was harassing. Dunham v. Roer , 708
N.W.2d 552, 566-67 (Minn. App. 2006). In addition to the requirement of repeated
incidents, the evidence must show that the contacts were “intrusive or unwanted” and had
“a substantial adverse effect on the safety, security, or privacy of another, regardless of the
relationship between the actor and the intended target.” Minn. Stat. § 609.748, subd.
1(a)(1).
The record before us provi des insufficient evidence to support the issuance of the
HROs. Although the evidence shows repeated contacts, there is no indication that this
created a “substantial adverse effect on the safety , security, or privacy of another” or that
appellant engaged in “objectively unreasonable conduct.” Respondent did not testify that
appellant violated a court order in the CHIPS proceeding, which could provide a different
means of enforcement, such as a contempt or der, and the record cont ains no details of
egregious conduct. Appellant’s gesture of drawing her finger across her throat, standing
alone, is not sufficient to have a substantia l adverse effect on re spondent Juberian’s
individual safety. We therefore reverse the HROs. See Kush, 683 N.W.2d at 844 (“[T]his
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court will reverse the issuance of a restraini ng order if it is not su pported by sufficient
evidence.”).
Reversed.