In the Matter of the Welfare of the Child of: C. M. P. and W. A. S., Parents.

This opinion will be unpublished and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
A16-1559

In the Matter of the Welfare of the Child of: C. M. P. and W. A. S., Parents.

Filed April 10, 2017
Affirmed
Reilly, Judge

Chippewa County District Court
File No. 12-JV-16-351

Krystal M. Lynne, Stermer & Sellner, Ch td., Montevideo, Minnesota (for appellant
C.M.P.)

David Gilbertson, Chippewa County Attorney, Matthe w Haugen, Assistant County
Attorney, Montevideo, Minnesota (for respondent Chippewa County)

W.A.S., St. Cloud, Minnesota (pro se respondent)

Susan Elaine Peterson-Bones, Granite Falls, Minnesota (guardian ad litem)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant-mother challenges the adjudication of her child as in need of protection
or services (CHIPS) and argues that (1) clear and convincing evidence does not support the
district court’s determination that the child lacked (a) food, clothing, shelter, education, or
other necessary care; (b) proper parental care; and (c) a safe environment; (2) respondent

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Chippewa County violated Minn. Stat. § 260C.175 (2016) when it removed her child from
her care outside of the presence of a police officer and when there was no immediate danger
to the child; and (3) evidence of prior CHIPS adjudicati ons and voluntary termination of
parental rights (TPR) proceedi ngs was improperly admitted at trial. We affirm because
(1) clear and convincing evidence supports the district court’s determination that the child
is in need of protection or services, (2) the procedural violations of Minn. Stat. § 260C.175
do not justify dismissal of th e current CHIPS adjudication, and (3) mother’s evidentiary
challenges are not properly before this court.
FACTS
On Saturday, June 18, 2016 , at approximately 12:15 a.m., mother brought her three-
year-old child to the Granite Falls emergency room with concerns that an adult male friend,
Casey, sexually abused the child. The district court found that mother expressed concern
that Casey wiped the child’s bottom “real hard” and wanted a nurse to examine the child’s
hymen to ensure that it was still intact and that the child had not been penetrated.1 Mother
reported that she allowed Casey to watch the child approximately one week earlier and that
Casey wanted to give the child a bath, even though mother repeatedly told Casey that the
child recently bathed and did not need a bath at that time. The district court further found
that mother also reported that after Casey watched the child, there was a noticeable change
in the child’s behavior, including swearing, hitting and grabbing the genitalia of men, and

1 Mother contested this factual finding at oral argument. Review of the record conclusively
shows that this finding is supported by the evid ence. The record is al so clear that mother
did not know Casey’s last name.

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hysteria during diaper changes.2 Mother recalled one instance in particular where the child
yelled “No Casey” during a diaper change. Mother also reported that she only brought the
child in for emergency care at the behest of one of her female friends, who observed the
redness and irritation in and around the child’s genitals.
After examining the child, the treating p hysician noted the following observations:
(1) mother knew about the perineal redness and irritation several days prior to the
examination; (2) the child’s feet and ankles were caked in dirt; (3) mother became
uncooperative and threatened to leave after the physician info rmed mother that he must
report the alleged abuse to Chippewa County Family Services; (4) mother brusquely set
the child on the examination table and ha stily removed the child’s clothing, causing the
child to become upset; (5) the genital irritation observed coul d be the result of sexual or
physical trauma, or poor hygiene due to dried stool in the child’s genitals; and (6) the child
continued to demonstrate developmental delays—at the time of the emergency room visit,
the child was three years and eight months ol d but was in diapers, unable to walk, and
exhibited limited verbal skills.
On Sunday, June 19, 2016, a child-protecti on-services worker visited mother at her
home to implement a safety plan; a local police officer accompanied the child-protection-
services worker during this visitation. As part of this safety plan, mother agreed that the
child would remain in the care of mother’s friend an d would not be retu rned to mother’s
home until a later date.

2 Mother also contested these factual findings at oral argument. After an extensive review
of the record, we conclude that these finding are supported by the evidence.

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Although there were no significant changes in the child’s environment or condition
after June 18, 2016, the county and the Gran ite Falls Police Department reconsidered the
safety plan on Monday, June 20, 2016, and decided to initiate a peace officer’s hold to take
the child into emergency prot ective care. That same day, a county social worker
transported the child from the home of mother’s friend to a Chippewa County foster home.
A police officer was not present at this time and an emergency protective care order had
not been sought or filed.
On Tuesday, June 21, 2016 , the county filed a petition alleging that the child was in
need of protection or services because the child was without (1) necessary food, clothing,
shelter, education or care required for the child ’s physical or mental health; (2) proper
parental care because of the emotional, mental , or physical disability, or immaturity of
mother; and (3) a proper environment. That same day, the district court held an emergency
protective care hearing. Based on the evidence presented, the contents of the file, and the
proceedings, the district court determined that the petition estab lished a prima facie
showing that the child was in ne ed of protection or services a nd that the child’s health or
safety would be endangered if the child was returned to mother’s care. The district court
concluded that legal and physical custody must remain with the county.
At the CHIPS trial held on August 26, 2016, the county introduced evidence of
mother’s prior interactions with child protection services , including previous CHIPS
adjudications and the associated granting of TPR petitions. The district court filed an order
on September 1, 2016, finding that the county proved by clear and convincing evidence
that the child was in need of protection or services. Mother appeals.

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D E C I S I O N
I. Clear and convincing evid ence supports the district court’s determination
that the child is in need of protection or services.

A successful CHIPS petition requires proof of an enumerated condition for child
protection or services and a resulting need for protection or services. Minn. Stat.
§ 260C.007, subd. 6 (2016). Findings in CHIPS proceedings must be proved by clear and
convincing evidence. In re Welfare of B.A.B. , 572 N.W.2d 776, 778 (Minn. App. 1998).
We therefore reverse a CHIPS determination if a necessary finding is clearly erroneous or
unsupported by substantial evidence. Id. Generally, clear error occurs only when “review
of the entire record leaves th[is] court with the definite and firm conviction that a mistake
has been made.” Id. (quotation omitted).
A. Mother was unable or unwilling to provide the requisite level of required care.
A CHIPS petition may be granted on the finding that the child “is without necessary
food, clothing, shelter, education, or other required care for the child’s physical or mental
health or morals because the child’s parent . . . is unable or unwilling to provide that care.”
Minn. Stat. § 260C.007, subd. 6(3) (emphasi s added). Mother ar gues that the county
provided no evidence that the child was without food, clothing, shelter, education, or other
required care.
On the contrary, the record was replete with evidence that mother was unwilling to
provide her child with required care. Mother was unw illing to bring the child in for
immediate medical attention, even though she was aware of the alleged sexual assault and
the severe irritation and soreness the child expe rienced as a result of an assault, or poor

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hygiene, or both. Mother only sought medi cal attention—several days after the alleged
assault occurred—at the urging of her friend; and mother threatened to deny her child
medical care to avoid child protection services. The record contains clear and convincing
evidence that mother was unable or unwilling to provide the care that her child required.
B. Mother was unable or unwilling to provide proper parental care because of a
state of immaturity.

A CHIPS petition may also be granted on the finding that a child “is without proper
parental care because of the emotional, mental, or physical disability, or state of immaturity
of the child’s parent, guardian, or other cust odian.” Minn. Stat. § 260C.007, subd. 6(8).
Mother asserts that the coun ty failed to present any evid ence that she suffers from a
disability that would prevent her from providing proper care. The district court found that
mother showed an un willingness to cooperate with child protectio n workers and initially
refused to allow the treating physician to tr eat the child. Based on these findings, the
district court determined that the child lacked proper care within the meaning of the statute
and therefore required protection or services. Clear and convincing evidence supports the
district court’s conclusions.
Mother permitted a male acquaintance to watch the child alone, despite her
reservations, and, after she discovered that the male acquaintance may have sexually
abused the child, she waited several days before seeking medical treatment. When mother
finally sought medical treatment, she did so onl y at the insistence of her friend. Mother
testified that she was reluctant to seek medi cal treatment due to her prior contacts with
child protection; she also threatened to l eave the emergency room without allowing her

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child to receive medical care. The following da y, when the child-protection-services
worker arrived at mother’s residence to investigate the alleged sexual assault, mother yelled
at the county employee and slammed the door in her face. The nature of the emergency
room visit and follow-up inve stigation is clear and convin cing evidence of mother’s
immaturity and inability to provide proper parental care.
Nevertheless, mother contends that th e term “immaturity” includes only parents
who are physically young, not parents who lack the mental capacity to parent. The
American Heritage Dictionary defines immaturity as “not fully developed . . . [or] marked
by or suggesting a lack of the normal maturity.” The American Heritage Dictionary 902
(3rd ed. 1992); contra Black’s Law Dictionary 1147 (10th ed. 2014) (“The state, or
condition of being under legal age.”). Clear and convincing evidence supports the district
court’s conclusion that mother lacked normal maturity and failed to provide her child with
proper parental care. The district court did not err when it concluded that the child was in
need of protection or services pursuant to Minn. Stat. § 260C.007, subd. 6(8).
C. The child’s condition or environment was injurious or dangerous.
A child may also be in need of protectio n or services if the child “is one whose
behavior, condition, or environment is such as to be injurious or dangerous to the child or
others.” Minn. Stat. § 260C.007, subd. 6(9). Mother argues the record does not establish
that the child was exposed to criminal activity or dangerous conditions in the home. While
the statute recognizes that crim inal activity is often indicativ e of an environment that is
dangerous or injurious to ch ildren, the statute does not limit dangerous or injurious
conditions or environments to “the exposure of a child to cr iminal activity in the child’s

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home.” Id. The treating physician, the examining nurse, and the child-protection-services
workers all testified that there were concer ns regarding the child’s home, condition, or
environment; and this testimony is clearly consistent with other aspects of the record. The
treating physician’s report noted concerns of possible sexual assault, cleanliness, mother’s
resistance to aid and treatment, and the child’s mental and physical developmental delays.
Common sense does not require, and the statute does not indicate, that the evidence must
establish criminal activity or immediate physical danger inside of the home—evidence of
a general condition or environment that is injurious or dangerous to the child is sufficient.3
II. Although removal of the child outside of the presence of a police officer and
without a court order violated Minn. Stat. § 260C.175, dismissal of the
CHIPS adjudication is not the proper remedy for the procedural violation.

Mother next argues that the county violat ed Minn. Stat. § 260C.175 by removing
the child from her care without a police officer present. Mother contends that this
government action violated her fundamental pa rental rights and that dismissal of this
CHIPS adjudication is the appropriate remedy.
The child protection statute provides that a child may not be taken into immediate
custody except (1) with a properly issued cour t order or warrant or (2) by a police officer
when the child is found in conditions or an environment which endangers the child’s health
or welfare. Minn. Stat. § 260C.175, subd. 1(1)-(2). With respect to the first requirement,

3 At the very least, the evidence shows that the child was subjected to physical injury when
Casey wiped her so hard that she required a visit to the emergency room to assess her
physical wellbeing.

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it is undisputed that the county did not have a court order authorizing it to take the child
into custody. Id., subd. 1(1). For that reason, we ne ed not address the first requirement.
The county, however, argues that it operated under the authority of a police officer when
it took the child into custody pursuant to a police officer hold. Id., subd. 1(2). With regard
to the second requirement, it is undisputed th at a police officer was not present when the
county removed the child. Mother therefore contends that removal of the child was invalid
and that dismissal of the inst ant CHIPS adjudication is the only appropriate relief. We
reject this argument.
In this case, a child-protection-services worker implemented a safety plan—which
removed the child from mother’s care and placed the child in the care of mother’s friend—
in the presence of a police officer. Two days later, the Granite Falls Police Department
issued a peace officer’s hold for the child, and the county complied with the requirements
of the hold when it removed th e child. And w ithin 24 hours of the removal, the district
court held an emergency protec tive care hearing, and, shortly thereafter, it issued an
emergency protective care order in accordance with the statutory requirements. We note,
without deciding, that on this particular record, this sequenc e of events potentially cured
the procedural violations at issue here. Cf. In re Welfare of D.J.N., 568 N.W.2d 170, 176
(Minn. App. 1997) (refusing to reverse a termination of parental rights for harmless error).
We strenuously caution the county against similar procedural violations in the future.
“The paramount consideration in all juven ile protection proceedings is the health,
safety, and best interests of the child,” Minn. Stat. § 260C.001, subd. 2(a) (2016), and “[t]he
law relating to the juvenile protection proceedings shall be liberally construed to carry out

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these purposes,” id., subd. 4 (2016). In this case, cl ear and convincing evidence supports
the district court’s determination that the child was in need of protection or services. Given
that the paramount consideration in all CHIPS cases is “the health, safety, and best interests
of the child,” dismissal of the CHIPS acti on is not warranted, despite the procedural
violation.4
III. Failure to move for a new trial precludes mother from raising evidentiary
challenges on appeal.

Finally, mother argues that prior CHIPS adjudications and TPR proceedings were
admitted into evidence in vi olation of Minnesota Rules of Evidence 404(b) and 403.
Mother, however, did not move for a new trial. It is a well-established rule of law in
Minnesota that objections to evidentiary ruli ngs, in both adult and juvenile proceedings,
“are subject to appellate review only if ther e has been a motion for a new trial in which
such matters have been assigned as error.” In re Welfare of D.N. , 523 N.W.2d 11, 13
(Minn. App. 1994) (declining to review evidentiary issues in a CHIPS determination where
appellant failed to bring a motion for new trial) (quoting Sauter v. Wasemiller, 389 N.W.2d
200, 201 (Minn. 1986)), review denied (Minn. Nov. 29, 1994). This rule applies even if
appellants raise timely ob jections at trial. Id. Mother is precluded from raising her

4 Mother also alleged that removal under Minn. R. Juv. Prot. P. 28.02 subd. 1, was
inappropriate; but mother does not provid e sufficient legal authority to support her
argument. Because mother fail ed to adequately brief her ar gument with regard to rule
28.02, we decline to address this argument. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.
1982) (holding that issues not adequately briefed are not properly before appellate courts).

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evidentiary challenges on appeal because she failed to allow the district court to correct its
alleged errors.5
Affirmed.

5 We also note that mother’s evidentiary arguments are unavailing. Before making a
disposition in a CHIPS case, a district court “may consider any report or recommendation
made by the responsible social services agen cy, . . . guardian ad litem, . . . or other
authorized advocate for the ch ild or child’s family.” Minn. Stat. § 260C.193, subd. 2
(2016). The district court may also consider “any other information deemed material by
the court.” Id. Review of the record conclusively shows that the district court did not
abuse its discretion in its dete rmination to admit evidence of mother’s prior CHIPS and
TPR proceedings. This is especially true as Minn. Stat. § 260C.201, subd. 2(a)(1)-(4)
(2016), requires the district court to make a written finding that reasonable efforts have
been made to prevent out-of-home placement and that out-of-home placement is in the best
interests of the child. In th is case, the mother’s prior ch ild protection cases detailed the
efforts that were made to prevent out-of-home placement of the child.