In the Matter of:

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1805

In the Matter of:

Gladys Barkey Asiedu, petitioner,
Respondent,

vs.

Michael Kwabena Asiedu,
Appellant.

Filed June 26, 2023
Reversed
Gaïtas, Judge

Olmsted County District Court
File No. 55-FA-22-732

Opal D. Richards, Richards Law, LLC, Rochester, Minnesota; and

Laura Blatti, Blatti Legal, LLC, Rochester, Minnesota (for respondent)

Max A. Keller, Barry S. Edwards, Keller Law Offices, Minneapolis, Minnesota (for
appellant)

Considered and decided by Johnson, Presiding Judge; Gaïtas, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant-father Michael Kwabena Asiedu appeals the district court’s grant, after a
contested hearing, of an order for protection (OFP) that limits father’s contact with his
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three minor children. Father argues that the district court abused its discretion by allowing
two child-protection social workers to testify at the hearing because their testimony
violated the statutory privilege for communications with a social worker, and because they
relayed the children’s inadmissible hearsay statements. We agree with father that the
district court prejudicially erred when it admitted the children’s hearsay statements through
the social workers’ testimony, and we reverse.
FACTS
Father and respondent-mother Gladys Barkey Asiedu were married in 2004 and are
the parents of three minor children, 17 -year-old J.A., 14-year-old M.A., and 10-year-old
A.A. In February 2022, mother filed a petition for an OFP for herself and on behalf of the
three children, alleging that father had committed domestic abuse. The district court issued
an ex parte OFP prohibiting father from contacting mother and the children and granting
mother temporary sole physical and temporary sole legal custody of the children. Father
contested the OFP, and the district court held an evidentiary hearing.
1 Following the
evidentiary hearing, the district court denied mother’s request for an OFP on behalf of
herself. But the district court granted the request for an OFP prohibiting father from
committing domestic abuse against the children and from having contact with the children
except under limited circumstances. Father now challenges the district court’s decision to
grant an OFP on behalf of the children, arguing that it was the result of prejudicial
evidentiary errors.

1 The parties commenced marriage-dissolution proceedings after the evidentiary hearing.
3
The focus of the evidentiary hearing—and the basis for mother’s OFP petition—
was an incident that occurred on January 30, 2022, in what was then the family’s shared
home.2 Mother testified that she was in the family room when she heard yelling and
screaming upstairs and footsteps running down the stairs. She left the family room and
saw father chasing M.A. Mother testified that J.A. attempted to intervene in the conflict
between father and M.A., but father pushed J.A. to the floor. When mother approached
father, he pushed her aside, and she fell. Father then followed M.A. into the laundry room.
Mother also went to the laundry room. Father pushed mother again, so she left the laundry
room and called the police.3
The three children, who were all present in the home during the incident, did not
testify. Mother’s attorney stated that the children were “unavailable witnesses, so I don’t
think we’re going to have them testify as part of this proceeding.” But the attorney did not
explain why the children were unavailable.
In support of the OFP petition, mother called two county child-protection social
workers to testify. Father’s attorney objected to any testimony from the social workers ,
asserting that it would violate the statutory privilege for communications with social

2 Mother testified about some other incidents, including incidents on March 20, 2021, and
January 17, 2022. The district court found that these incidents “involve[d] arguments . . .
but d[id] not demonstrate domestic abuse,” and we do not address them here.

3 Based on the January 30 incident, father also was charged with misdemeanor domestic
assault. He was acquitted of the charge following a jury trial.
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workers.4 The district court overruled the objection and allowed both social workers to
testify.
The first social worker testified that a child-protection case was opened in December
2019 when one child reported to a school social worker that father used spanking as a form
of discipline. This social worker worked with the family from February 2020 until the case
was closed in September 2020. During this period, there were no further r eports of
spanking and there was never a maltreatment finding. The social worker testified that
mother was cooperative, but father was not interested in engaging with child protection.
Mother’s attorney asked the first social worker, “What did the children share with
you?” Father’s attorney objected to the question on the ground of hearsay. Without
identifying a legal basis for allowing the testimony, the district court permitted the social
worker to respond. The social worker testified, “The children shared with me they -- that
[father] would use an open hand to spank them and that they were generally just afraid of
being in their home when their mother wasn’t present. That was the gist of it.”
The second child-protection social worker testified that she was assigned to the
family after the January 30 incident. She met with mother twice, the children twice, and
father once after the incident. Father again objected on the ground of hearsay, but the
district court determined that the children’s statements to the social worker were admissible

4 See Minn. Stat. § 595.02, subd. 1(g) (2022) (“A . . . licensed social worker engaged in a
psychological or social assessment or treatment of an individual at the individual’s request
shall not, without the consent of the professional’s client, be allowed to disclose any
information or opinion based thereon which the professional has acquired in attending the
client in a professional capacity, and which was necessary to enable the professional to act
in that capacity.”).
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because they were “ received in the course of her professional work as a social worker.”
The second social worker then testified about M.A.’s account of the January 30 incident:
[T]here was a piece of jewelry that she could not find. She was
looking for that piece of jewelry and asked her father if he had
seen it or where it was. At that point, an argument occurred.
She had run downstairs stating that . . . her father . . . chased
[her] downstairs. At which point, [J.A.] came out in an attempt
to protect [M.A.] and I believe [J.A.] was the one who got
pushed by dad and then they reported that [father] also pushed
[mother] down and leaving injuries on both of them.

The second social worker also testified that the children,
• “have shared worries about their father over time they have had including
being fearful of him”

• “have reported that [father] gets angry very quickly and will get violent
with them”

• “fear and do not feel like they can express how they truly feel”

• “reported . . . that they weren’t sure how much longer that they could live
in the environment with their dad”

• “reported that their mental health was becoming very affected by their
dad’s actions due to him continuously escalating very frequently, yelling
at them, things like that.”

Father also testified at the evidentiary hearing. According to father, as he was trying
to get the children to bed, an argument with M.A. began over a bracelet. M.A. ran
downstairs, and he followed. Father acknowledged that J.A. “got in front” of him, and he
admitted that he “brushed” past her and that she fell to the ground. He denied pushing her.
Father also admitted that mother “got in front” of him and that he “made [his] way past
her” and then “saw that she’d fallen to the ground.” He also denied pushing mother. Father
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testified that he attempted to treat a bruise that J.A. received but mother prevented him
from doing so.
Months after the hearing, and after numerous continued appearances to enable the
parties to work toward a stipulated agreement, the district court issued an order denying an
OFP as to mother and granting an OFP as to the children. The district court found that the
“parties’ reports of what happened do not differ greatly.” It determined that father was
“heedless and reckless during a domestic argument with one of his children and his actions
caused [J.A.] and [mother] to fall to the floor and to be in fear of bodily harm.” The district
court found that father “did engage in yelling and screaming that caused [M.A.] to fear
him.” And it determined that t he children “as reported, are still not comfortable bei ng
alone with [father] for any significant time,” and they “still have a reasonable fear of
domestic abuse from [father].” The OFP prohibits father from engaging in acts of domestic
abuse against the children and bars him from having contact with the children except
through text and other electronic media, to attend therapy, or to exercise supervised
parenting time as agreed to by the parties or ordered in the family-court case.
DECISION
Father raises two arguments regarding the social workers’ testimony. First, he
contends that the social workers’ testimony was improper because it violated Minnesota
Statutes section 595.02, subdivision 1(g), which provides that some communications with
social workers are privileged. Second, he argues that the district court prejudicially erred
in allowing the social workers to relay the children’s hearsay statements during their
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testimony. We conclude that the erroneous admission of the children’s hearsay statements
requires reversal of the OFP, and we do not reach the privilege issue.
We initially identify our standard of review. An appellate court reviews a district
court’s decision to grant an OFP for an abuse of discretion. Thompson v. Schrimsher, 906
N.W.2d 495, 500 (Minn. 2018). Father specifically challenges the district court’s decision
to admit the children’s out-of -court statements in evidence, which is an evidentiary
decision that we also review for an abuse of discretion. See Rew v. Bergstrom, 845 N.W.2d
764, 788 (Minn. 2014) (“District courts have broad discretion to admit or exclude
evidence . . . .”). “A district court abuses its discretion when its decision is based on an
erroneous view of the law or is against logic and the facts in the record.” Thompson, 906
N.W.2d at 500 (quotation omitted).
Under the Minnesota Domestic Abuse Act, Minn. Stat. § 518B.01 (2022), a district
court may issue an OFP to address domestic abuse by a family or household member.
Minn. Stat. § 518B.01, subds. 1, 4, 6(a). Among other forms of relief, an OFP may prohibit
the respondent from engaging in acts of domestic abuse, bar the respondent from having
contact with designated individuals, and award temporary custody and parenting time. Id.,
subd. 6(a)(1), (4), (10), (13).
To obtain an OFP, a petitioner must establish by a preponderance of the evidence
that the respondent committed domestic abuse. Oberg v. Bradley, 868 N.W.2d 62, 64-65
(Minn. App. 2015); see Minn. Stat. § 518B.01, subds. 2 , 4. “‘Domestic abuse’ means the
following, if committed against a family or household member by a family or household
member: (1) physical harm, bodily injury, or assault; (2) the infliction of fear of imminent
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physical harm, bodily injury, or assault . . . .” Minn. Stat. § 518B.01, subd. 2(a)(1), (2).
“Family or household members” include partners and children. Id., subd. 2(b)(2). “The
preponderance of the evidence standard requires that to establish a fact, it must be more
probable that the fact exists than that the contrary exists.” Oberg, 868 N.W.2d at 65
(quoting City of Lake Elmo v. Metro. Council, 685 N.W.2d 1, 4 (Minn. 2004)); see Butler
v. Jakes, 977 N.W.2d 867, 871 (Minn. App. 2022).
The rules of evidence apply to OFP proceedings. Olson v. Olson, 892 N.W.2d 837,
841 (Minn. App. 2017). “U nder the rules of evidence, hearsay is a statement, other than
one made by the declarant while testifying, offered into evidence to prove the truth of the
matter asserted.” Id. (citing Minn. R. Evid. 801(c)). Unless a hearsay statement falls within
an exception under the rules or within a statute, the statement is generally inadmissible. Id.
Father argues that the district court erred in allowing the social workers to relay the
children’s out-of-court statements because the statements were hearsay that did not satisfy
an exception to the hearsay rule.
As an initial matter, we agree with father that the children’s statements to the social
workers were hearsay. They were statements that the children made outside of the
courtroom. And mother offered the statements for their truth, primarily to establish that
father inflicted fear on the children, thereby committing domestic abuse.
Next, we must determine whether the children’s hearsay statements were admissible
under an exception to the hearsay rule. At the hearing, mother did not identify any
applicable exception to the hearsay rule. Instead, mother stated that the children were
“unavailable.” Mother does not pursue this position on appeal, a nd for good reason.
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Although the statements of an unavailable witness may be admissible under several
exceptions to the hearsay rule, see Minn. R. Evid. 804(b)(1)-(6), mother did not establish
that the children were, in fact, unavailable. See Minn. R. Evid. 804(a)(1)-(5).5
Instead, mother argues for the first time on appeal that the children’s statements
were admissible under the state-of-mind hearsay exception. This exception allows for the
admission of “[a] statement of the declarant’s then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain,
and bodily health), but not including a statement of memory or belief to prove the fact
remembered or believed.” Minn. R. Evid. 803(3). Ordinarily, when a party fails to raise
an argument before the district court, it is forfeited on appeal. See Thiele v. Stich, 425
N.W.2d 580, 582 (Minn. 1988) (stating that arguments not raised in the proceedings below
will not be considered on appeal ). As noted, mother did not raise the state -of-mind

5 Under rule 804(a), an unavailable declarant includes “situations” where the declarant:

(1) is exempted by ruling of the court on the ground of
privilege from testifying concerning the subject matter of the
declarant’s statement; or
(2) persists in refusing to testify concerning the subject
matter of the declarant’s statement despite an order of the court
to do so; or
(3) testifies to a lack of memory of the subject matter of
the declarant’s statement; or
(4) is unable to be present or to testify at the hearing
because of death or then existing physical or mental illness or
infirmity; or
(5) is absent from the hearing and the proponent of a
statement has been unable to procure the declarant ’s
attendance (or in the case of a hearsay exception under
subdivision (b) (2), (3), or (4), the declarant’s attendance or
testimony) by process or other reasonable means.
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exception before the district court. But even if she had, the children’s statements would
not have qualified for admission under this exception. The hearsay statements relayed by
both social workers were the children’s statements of memory or belief, and those
statements were offered to prove the facts remembered or believed. Specifically, the
children’s hearsay statements concerned allegations regarding father’s past acts and the
children’s fear of their father based on those alleged acts. Thus, even if mother’s argument
on this point were properly before this court, we would reject any argument that the
children’s hearsay statements were admissible under the state-of-mind exception to the
hearsay rule.6
In admitting the children’s statements to the second social worker over father’s
objection, the district court explained that it was allowing the statements because they were
“received in the course of [the social worker’s] professional work as a social worker.”
However, there is no such exception to the hearsay rule. And mother does not pursue this
rationale on appeal.
We also note that, based on the record before us, no statutory exception applies to
the hearsay statements. Under Minnesota Statutes section 595.02, subdivision 3 (2022),
certain out-of-court statements made by minors under ten years old that allege physical

6 Mother also seems to argue that the children’s statements were not hearsay because they
were offered only to show the children’s state of mind, and they were not offered for their
truth. Many of the children’s statements may have reflected their state of mind, specifically
that they feared father. But those statements were offered for their truth. They were offered
to prove that the children feared father. Thus, to the extent that mother argues that the
statements were nonhearsay, we would also reject that argument if it were properly before
this court.
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abuse may be admissible. At the time of the January 2022 incident, J.A. and M.A., the two
children involved in the incident, were ten or older, and therefore the statute does not apply
to any statements they made about the incident. Likewise, J.A. and M.A. were ten or older
when they spoke with the social worker during the 2020 investigation. Although A.A. was
under ten years old at the time of both the 2020 investigation and the January 2022 incident,
neither social worker who testified at the OFP hearing specifically attributed any
statements to A.A. Thus, on this record, section 595.02, subdivision 3, does not apply to
the children’s hearsay statements.
Because the children’s statements to the social workers were hearsay, and mother
does not identify any exception to the hearsay rule that applied under the circumstances,
the statements were inadmissible. Accordingly, the district court abused its discretion in
allowing the social workers to relay the children’s statements during their testimony.
Even when a district court errs in admitting inadmissible evidence, we will reverse
only if the evidentiary error resulted in prejudice. See Olson, 892 N.W.2d at 841. “An
evidentiary error is prejudicial if it might reasonably have influenced the fact- finder and
changed the result of the proceeding.” Id. at 842. The appellant bears the burden of
showing that an error was prejudicial. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).
We conclude that the evidentiary error was prejudicial. The district court granted
the OFP as to the children because it found that father caused the children fear of harm.
See Minn. Stat. § 518B.01, subd. 2(a)(2) (defining domestic abuse as “the infliction of fear
of imminent physical harm, bodily injury, or assault”). However, the only direct evidence
that father inflicted fear on the children was the inadmissible hearsay statements relayed
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during the social workers’ testimony. It is possible that the district court inferred the
children’s fear from the circumstances surrounding the incident. But based on our review
of the district court’s order, the inadmissible statements might reasonably have influenced
the district court and changed the result of the proceeding. Indeed, given the scant evidence
that father caused the children fear, we are not convinced that, setting aside the hearsay
evidence, the preponderance of the evidence established that father committed domestic
abuse against the children. Because there is a reasonable probability that the district court
relied on the inadmissible evidence to find domestic abuse and to issue the OFP, the district
court’s error in admitting the testimony was prejudicial. We therefore reverse the OFP
without prejudice to mother’s right to file a subsequent petition.
Reversed.