APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE PETER H. LIEBERMAN Judge.
The opinion of the court was delivered by: Meierhenry, Justice
CONSIDERED ON BRIEFS ON FEBRUARY 16, 2010
[¶1.] Lyn Shroyer filed a petition for a protection order against Lance Fanning on behalf of O.S.F., Shroyer and Fanning's daughter. The petition alleged Fanning had sexually abused O.S.F. After hearing testimony and argument on the matter, the circuit court granted the protection order in favor of Shroyer and O.S.F. for a period of eighteen months. Fanning appeals.
[¶2.] Fanning and Shroyer were romantically involved but never married. During their relationship, Fanning and Shroyer had a child, O.S.F., who was born in April 2005. Fanning and Shroyer ended their relationship in May 2006. The parties never entered into a formal custody or visitation agreement regarding O.S.F. Instead, Shroyer had primary custody and Fanning had liberal visitation. This arrangement lasted approximately four years.
[¶3.] Shroyer filed for a protection order against Fanning in June 2009 as a result of comments O.S.F. made to her. These comments included allegations that Fanning had inappropriate sexual contact with O.S.F. A hearing on the petition was held in July 2009. Both parties were represented by counsel at this hearing. An officer of the Sioux Falls Police Department, Shroyer, and Fanning testified at the hearing. Shroyer testified about statements O.S.F. made to her. Fanning objected, claiming that the statements were inadmissible hearsay. The circuit court overruled Fanning's objections, stating that it was "not going to require a four-year- old child to come in and testify in protection order court." Shroyer testified that O.S.F. told her that "[Fanning] had been tickling her potty" and that "her potty hurt" as a result. Shroyer further testified that O.S.F. told her Fanning had "tickled" her "way up [her vagina] and way up [her] butt and he also used a sword." The police officer's testimony was limited because the investigation into the matter was still ongoing and had not yet been turned over to the State's Attorney's Office. Fanning testified and denied he had ever abused O.S.F.
[¶4.] At the conclusion of the hearing, the circuit court granted the protection order based on the "ongoing police investigation," the "ongoing child protection investigation," and because "it would only be prudent for the court to grant a protection order to allow this case to play out." The circuit court also orally declared that it found: that it had jurisdiction and venue; that Fanning and Shroyer were "family or household members" within the meaning of SDCL 25-10- 1(2); that by a preponderance of the evidence it found that "domestic abuse" occurred; and, that Fanning had notice of the hearing and an opportunity to be heard. The circuit court also found "by a preponderance of the evidence that there [was] sufficient concern here that a protection order need[ed] to be granted." The circuit court completed the preprinted protection order form granting the protection order for eighteen months. The circuit court made no other findings, oral or written, to support the protection order.
[¶5.] Fanning raises four issues on appeal:
1. Whether the circuit court erred in failing to make findings of fact.
2. Whether the circuit court's finding that domestic abuse took place is clearly erroneous.
3. Whether the circuit court abused its discretion in granting the protection order.
4. Whether the protections of SDCL ch. 19-16 and Fanning's due process rights were violated when the circuit court allowed hearsay testimony of statements allegedly made by the parties' daughter.
[¶6.] The standard of review for the grant of a protection order has been previously established:
The trial court's decision to grant or deny a protection order is reviewed under the same standard that is "used to review the grant or denial of an injunction." First, we determine whether "the trial court's findings of fact were clearly erroneous." We will not set aside the trial court's findings of fact unless, after reviewing all of the evidence, "we are left with a 'definite and firm conviction that a mistake has been made.'" Furthermore, "[t]he credibility of the witnesses, the import to be accorded their testimony, and the weight of the evidence must be determined by the trial court, and we give due regard to the trial court's opportunity to observe the witnesses and examine the evidence." If the trial court's findings of fact are not clearly erroneous, we "must then determine whether the trial court abused its discretion in granting or denying the protection order."
White v. Bain, 2008 SD 52, ¶8, 752 NW2d 203, 206 (quoting Schaefer v. Liechti, 2006 SD 19, ¶8, 711 NW2d ...