In the Matter of the Welfare of the Child of: R. S., Parent

This opinion will be unpublished and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
A16-1795

In the Matter of the Welfare of the Child of: R. S., Parent

Filed April 24, 2017
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-JV-16-1040

Ryan L. Kaess, Kaess Law LLC, St. Paul, Minnesota (for appellant mother R.S.)

John J. Choi, Ramsey County Attorney, Kathryn Eilers, Stephanie Wiersma, Assistant
County Attorneys, St. Paul, Minnesota (for respondent Ramsey County Community
Human Services Department)

Michael Fahey, St. Paul, Minnesota (guardian ad litem)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant-mother challenges the adjudication of her child as a child in need of
protection or services. Because clear-and-convincing evidence supports the district court’s
determination that her child is in need of protection or services because the child would
reside with a perpetrator of child abuse, we affirm.
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FACTS
Appellant-mother R.S. is the biological mother of R.P., born in 2011. 1 In April
2016, respondent Ramsey County Community and Human Services Department
(department) filed a petition alleging R.P. was a child in need of protection or services
(CHIPS) and asked the district court to place R.P. in emergency protective care. Th e
CHIPS petition alleged that in March 2016, the department received a report that mother
and R.P. were residing with J.R. The petition further alleged that in December 2014, the
department had made a determination, based on J.R.’s alleged physical and sexual abuse
of his minor daughter L.R., that J.R. had maltreated L.R. J.R. was L.R.’s legal custodian
at the time of the maltreatment determination. In July 2015, J.R. voluntarily terminated his
parental rights to L.R.
The CHIPS petition alleged that mo ther “has allowed [R.P.] to reside with an
untreated sex offender and has failed to demonstrate that she understands the risk [J.R.]
poses to [R.P.].” The petition requested that R.P. be adjudicated a CHIPS on four grounds,
including that R.P. “resides with or would reside with a perpetrator of domestic child abuse
or child abuse.”
The district court held a trial on the CHIPS petition . A nurse from Midwest
Children’s Resource Center (MCRC), four department social workers, and mother testified
at the trial. J.R. and L.R. did not testify. Following the trial, the district court adjudicated
R.P. a CHIPS. Mother appealed, without moving for a new trial.

1 R.P.S. is the adjudicated father of R.P. R.P.S. did not participate in the CHIPS
proceedings.
3
D E C I S I O N
There is a “presumption that a natural parent is a fit and suitable person to be
entrusted with the care of his or her child.” In re Welfare of A.D. , 535 N.W.2d 643, 647
(Minn. 1995). “Ordinarily, it is in the best interest of a child to be in the custod y of his or
her natural parents.” Id. Thus, a child only meets the statutory definition of a “child in
need of protection or services” under Minn. Stat. § 260C.007, subd. 6 (2016), when “one
of the enumerated child-protection grounds exists and the child needs protection or services
as a result.” In re Welfare of the Child of S.S.W. , 767 N.W.2d 723, 724 -25 (Minn. App.
2009). “To be proved at trial, allegations of a petition alleging a child to be in need of
protection or services must be proved by clear and convincing evidence.” Minn. Stat .
§ 260C.163, subd. 1(a) (2016).
“On appeal of a juvenile -protection order, we review the juvenile court’s factual
findings for clear error and its finding of a statutory basis for the order for abuse of
discretion.” In re Welfare of the Child of D.L.D., 865 N.W.2d 315, 321 (Minn. App. 2015),
review denied (Minn. July 20, 2015). This court closely inquires into the sufficiency of the
evidence to determine whether the evidence is clear and convincing. S.S.W., 767 N.W.2d
at 733. “Considerable deference is due to the district court’s decision because a district
court is in a superior position to assess the credibility of witnesses.” Id. (quotation
omitted). In a case such as this, where mother did not move for a new trial, our review is
limited to whether the record supports the district court’s findings of fact and whether the
findings of fact support the district court’s conclusions of law. Id.
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Mother’s arguments on appeal generally attack the sufficiency of the e vidence to
sustain the CHIPS adjudication . Mother invites us to reassess the district court’s express
determination that mother’s testimony was “contradictory and not credible.” But witness
credibility determinations are for the finder of fact, and we defer to such determinations on
appeal. Id. Mother also invites us to reweigh the trial evidence, passionately arguing that
if the evidence is properly weighed , it cannot sustain the CHIPS adjudication. But this
court does not find facts or reweigh evidence on appeal. Sefkow v. Sefkow , 427 N.W.2d
203, 210 (Minn. 1988); see also In re Welfare of R.T.B. , 492 N.W.2d 1, 3 -4 (Minn. App.
1992) (noting that on appeal this court must defer to the trial court’s assessment of the
weight to be given to witnesses’ testimony). We therefore limit our review to whether the
evidence clearly and convincingly supports the district court’s finding s and whether those
findings support the statutory basis for the CHIPS adjudication.
Minn. Stat. § 260C.007, subd. 6 , defines “child in need of protection or services ”
and lists 16 grounds for such a determination. In adjudicating R.P. a CHIPS, the district
court relied on four of those grounds, including that R.P. “resides with or would reside with
a perpetrator of domestic child abuse as defined in subdivision 13 or child abuse as defined
in subdivision 5 or 13.” Minn. Stat. § 260C.007, subd. 6(2)(iii).
Minn. Stat. § 260C.007, subd. 13 (2016), defines “‘[d]omestic child abuse’” as:
(1) any physical injury to a minor family or household
member inflicted by an adult family or household member
other than by accidental means;
(2) subjection of a minor family or household member
by an adult family or household member to any act which
constitutes a violation of sections 609.321 to 609.324, 609.342,
609.343, 609.344, 609.345, or 617.246; or
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(3) physical or sexual abuse as defined in section
626.556, subdivision 2.

Minn. Stat. § 260C.007, subd. 5 (2016), defines “ ‘[c]hild abuse’” as “an act that
involves a minor victim that constitutes a violation of” specified criminal statutes, or “that
is physical or sexual abuse as defined in section 626.556, subdivision 2, or an act committed
in another state that involves a minor victim and would constitute a violation of one of [the
specified criminal statutes] if committed in this state.”
The Record Establishes that J.R. is a Perpetrator of Abuse
We first consider whether the record clearly and convincingly establishes that J.R.
is a perpetrator of domestic child abuse or child abuse. The district court found that J.R.
admitted that he had physically abused L.R. Although the district court did not mak e an
express finding that J.R. sexually abused L.R., the district court found that “ [the
department] accurately determined [J.R.] to be an untreated sex offender ,” implicitly
finding that J.R.’s alleged sexual abuse of L.R. had occurred.2
The record sustains the district court’s abuse findings. At trial, Margaret Carney, a
child-abuse case manager at MCRC, testified that she interviewed L.R. twice in November
2014, when L.R. was 12 years old . Carney’s reports documenting the interviews were
received as evidence. During the first interview, L.R. reported that “she had been whipped
with a cord” by J.R. Carney testified that she observed “pattern injuries” consistent with
L.R.’s statement that she had been whipped with a cord. Carney testifi ed that a doctor at
MCRC diagnosed L.R. as having been physically abused.

2 The only evidence of sexual abuse at trial regarded L.R.’s allegations against J.R.
6
Carney also testified that she asked L.R. a screening question regarding sexual abuse
during the first interview and that L.R. reported that she had been sexually abused. Carney
asked L.R. if she would be willing to discuss the sexual abuse and L.R. agreed to have
another interview at a later time . Carney testified that during the second interview, L.R.
reported that J.R. “sexually abused her on a semi-regular basis over time, . . . leading from
backrubs into full sexual intercourse.” Carney testified that she was initially concerned
about L.R.’s credibility because L.R. said that “she was there because she didn’t want to
live with her dad anymore.” Carney reported that she ulti mately believed L.R.’s sexual -
abuse allegations because L.R. offered additional details regarding specific instances of
abuse and described experiences that were consistent with those of other children who had
disclosed abuse. Carney also testified that a doctor at MCRC diagnosed L.R. as having
been sexually abused.
Becky Hilderman, a department child-protection worker, testified that she
investigated the allegations that J.R. abused L.R. Hilderman prepared an intake-assessment
report summarizing her investigation, which was received as evidence. Hilderman testified
that she interviewed J.R. and L.R. , and that J.R. admitted hitting L.R. with a cord and
causing her physical injuries. Hilderman testified that J.R. denied the sexual abuse, stating
that h e suffered from erectile dysfunction, had been seen at a clinic, and had several
surgeries regarding that condition.
Hilderman testified that she made a maltreatment determination based on J.R.’s
physical abuse of L.R., “because [L.R.] had injuries and [J.R.] had admitted to causing
those injuries.” Hilderman testified that she made a maltreatment determination based on
7
J.R.’s sexual abuse of L.R., because she “felt there was a preponderance of evidence to say
that that did happen” and she believed that L.R.’s allegations regarding the sexual abuse
during her interview with Carney were credible . Hilderman testified that J.R. did not
appeal the maltreatment determinations.
As to the district court’s finding that J.R. is an “untreated” sex offender, Rebecca
Schultz, a department child-protection worker who investigated the report that mother and
R.P. were residing with an untreated sex offender, testified that her understanding is that
J.R. has not completed sex -offender treatment. There i s no evidence in the record
suggesting that J.R. has completed such treatment.
Our review of the record satisfies us that the district court’s explicit finding that J.R.
physically abused L.R., as well as its implicit finding that J.R. sexually abused L.R ., are
not clearly erroneous. These findings support the determination that J.R. is a perpetrator
of abuse for purposes of Minn. Stat. § 260C.007, subd. 6(2)(iii).
R.P. Would Reside with a Perpetrator of Abuse
We next consider whether the district court clearly erred by implicitly finding that
R.P. “resides with or would reside with” J.R. for the purposes of Minn. Stat. § 260C.007,
subd. 6(2)(iii). Schultz testified that she was assigned to investigate a report that mother
“was residing in a home where . . . an untreated sex offender [was] living,” that R.P. resided
in the home with her, and that there were concerns about R.P.’s safety. Schultz testified
that when she began her investigation, she attempted to call mother at a phone number that
went directly to J.R. J.R. told Schultz that mother did not want Schultz to contact her, that
any communication needed to go through him, and that he would not give Schultz mother’s
8
phone number. Schultz testified that she was unable to find ano ther phone number for
mother.
Schultz further testified that after unsuccessfully attempting to contact mother by
phone, she started going to the house where J.R., mother, and R.P. reportedly lived. Schultz
testified that when she went to the home by h erself, no one answered the door. Schultz
testified that when she and the police visited the home with a “pick-up order to get [R.P.],”
J.R. would not let anyone in the home. Schultz further testified that because the department
could not get cooperation from mother and there was reason to believe that R.P. was still
residing in the home, the department requested a court order for emergency protective care
of R.P.
Mother testified that she was currently in a relationship with J.R. and referred to
him as her fiancé. Mother also testified that she continued to see J.R., but that J.R. did not
come to her home. However, mother testified that the home in which she resided was
leased by J.R. and that she and J.R. paid the bills for the home. Mother testified that J.R.
previously resided at the home, but that J.R. moved out so mother could regain custody of
R.P.
The record —including mother’s own testimony —clearly and convincingly
establishes that R.P. would reside with J.R. if not for the department’s involvement and the
removal of R.P. from mother’s care.
R.P. Needs Protection or Services
Lastly, we consider whether R.P. needs protection or services because he would
reside with J.R. if not for the department’s involvement and his removal from mother’s
9
care. See S.S.W., 767 N.W.2d at 732 (holding that a child does not meet the statutory
definition of CHIPS “unless one of the enumerated child-protection grounds exists and the
child needs protection or services as a result”).
Schultz testified that child-protective services are necessary because J.R. “continues
to be a threat of sexual abuse to children and will continue to be that [threat] until he
completes a sex offender treatment program” and mother “would not move [R.P.] out of
the home willingly to protect him.” Schultz also testified that “there are concerns about
[mother’s] ability to protect her child and to put her child’s needs in front of her own
needs.”
Clarence Powers, a department case manager assigned to the underlying case ,
testified that based on mother’s ongoing relationship with J.R., he believes that mother
does not understand the potential danger that J.R. poses to R.P. Powers testified that he
developed a case plan for mother that included a parenting class and that the parenting class
was important because it would assess mother’s parenting skills and help her to better
understand how R.P. was at risk.
R.P.’s guardian ad litem (GAL) testified that he was concerned abou t mother’s
ability to parent R.P. The GAL expressed concern about R.P. living with J.R. given the
prior determination that J.R. had maltreated L.R. The GAL testified that he was also
concerned that the previous maltreatment determination against J.R. occurred while mother
was living with J.R. The GAL testified that it was unrealistic for mother to believe that
she could protect R.P. because she is not with him all hours of the day and J.R.’s abuse of
L.R. occurred while mother was not at home.
10
Mother testified that she and R.P. resided with J.R. the entire time that she had been
in a relationship with J.R. Mother acknowledged that she and R.P. were living with J.R.
when J.R. physically abused L.R. Moreover, Carney’s report regarding her interview with
L.R. indicates that some of J.R.’s sexual abuse of L.R. occurred while mother and R.P.
were residing with J.R.
Mother testified that she has a responsibility to keep R.P. safe . She also testified
that she was aware of the allegations that J.R. physically and sexually abused L.R. and that
J.R. admitted the physical abuse. When asked whether she was aware that J.R. admitted
to “hitting [L.R.] with an Xbox cord six to seven times,” mother responded that she was
“not aware of that” and agreed that such conduct constituted physical abuse. Mother
testified that J.R.’s admissi on concerned her but that she was not concerned about R.P.’s
safety because she was “there with [R.P.] all the time” and would not let anyone abuse him.
Mother further testified that R.P . would tell her if he were abused. Mother also testified
that she left R.P. in J.R.’s care while she was at work, “[e]very once in a while.”
As to J.R.’s sexual abuse of L.R., mother testified that she did not believe that J.R.
sexually abused L.R. because she was with J.R. “all the time” and that when mother worked
outside the home, L.R. was at school. However, mother admitted that she was unaware
that L.R. had alleged that J.R. abused her in the ho me that mother and R.P. shared with
J.R. while mother was working and L.R. was supposed to be at school. Nonetheless,
mother testified that she is not concerned about J.R. being around R.P.
In adjudicating R.P. a CHIPS, the district court found:
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The Court finds [mother’s] disregard of [J.R.’s] status
as an untreated sex offender to be troubling. [Mother] allowed
[J.R.] to have access to her minor child, [R.P.], and
demonstrated that she is unable and unwilling to protect [R.P.]
from the risk of threatened sexual abuse. [Mother] has
continuously failed to establish that she appreciates the threat
of harm [J.R.] poses to her minor child, [R.P.]. [Mother] does
not believe the allegations of sexual abuse made by [L.R.] and
does not believe that [J.R.] poses any risk to her child. This
contradicts [mother’s] admission that she was aware [J.R.]
admitted to physically abusing his own minor child, [L.R.], and
that the abuse of [L.R.] appears to have occurr ed when
[mother] was residing with [J.R.]

The record evidence clearly and convincingly supports the district court’s findings
of fact, and those findings establish that R.P. needs protection or services.
Mother’s Arguments
Mother makes several arguments regarding why th e evidence was inadequate to
sustain the CHIPS adjudication. For example, mother argues that the district court “erred
in failing to determine what an, ‘Untreated Sex Offender,’ is” and argues that “there is no
such thing as an, ‘Untreated Sex Offender.’” Mother seems to argue that because the
CHIPS statute does not expressly state that a child who resides with an “untreated sex
offender” is a CHIPS, a CHIPS adjudication cannot be based on those circumstances. See
Minn. Stat. § 260C.007, subd. 6. We disagree with this narrow reading of the CHIPS
statute. The statute lists 16 grounds that may serve as a basis for a CHIPS adjudication.
See id. The grounds generally describe circumstances that may support a CHIPS
adjudication a nd nothing in the statute suggests that the grounds are limited to any
particular fact pattern. Thus, the absence of the phrase “untreated sex offender” from the
CHIPS statute does not prevent a district court from concluding that a person’s status as an
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untreated sex offender is relevant when determining whether one of the enumerated
statutory grounds for a CHIPS adjudication exists.
Mother also argues that “there has never been a legal adjudication, or even a legal
charge, that [J.R.] is a sex offender” and contends that there was no legal basis to determine
that J.R. was an “untreated sex offender.” (Emphasis omitted.) The lack of a criminal
charge or adjudication stemming from J.R.’s sexual abuse of L.R. is of no effect. The issue
here is whether the department proved by clear-and-convincing evidence that J.R. sexually
abused L.R. We have determined that the department met its burden, which is distinct
from whether a prosecutor can satisfy the beyond-a-reasonable-doubt standard required for
a criminal conviction. See State v. Her , 862 N.W.2d 692, 694 -95 (Minn. 2015) (stating
that the U .S. Constitution “indisputably entitles a criminal defendant to a jury
determination that he is guilty of every element of the crim e with which he is charg ed,
beyond a reasonable doubt” (quotations omitted)).
Mother further argues that the district court erred by “failing to determine if the state
had the authority . . . to use a maltreatment f inding that an individual is an ‘untreated sex
offender’” as a basis for a CHIPS adjudication and “in determining that the [state] had the
authority to remove a child from a parent because of an allegation that someone living in
the house is an, ‘untreated sex offender.’” These arguments miss the mark. To obtain a
CHIPS adjudication, a petitioner must prove the allegations supporting a statutory
adjudication of CHIPS by clear -and-convincing evidence. Minn. Stat. § 260C.163, subd.
1(a). The department has done so here.
13
Contrary to mother’s assertion, this is not a case in which a CHIPS adjudication is
based solely on a pri or maltreatment determination. Such an a djudication would be
improper. As the department noted at oral argument , a maltreatment determination may
be based on the p reponderance of the evidence , whereas a CHIPS adjudication must be
based on clear -and-convincing evidence. Compare Minn. Stat. § 260C.163, subd. 1(a)
(CHIPS adjudication) , with Minn. Stat. § 256.045, subd. 3b(a) (2016) (maltreatment
determination). Although the district court’s order notes that it heard “extensive testimony
regarding the maltreatment determination of sexual abuse made against [J.R.],” it also notes
that it heard extensive testimony regarding the underlying “disclosures made by [L.R .].”
In sum, the department did not rely solely on its prior maltreatment determination. Instead,
the department presented clear-and-convincing evidence that the allegations underlying the
maltreatment determination are true.
Mother argues that the di strict court erred by basing its finding that J.R. sexually
abused L.R. on “allegations of over two years ago that have since been fully recanted .”
Mother repeatedly asserts that L.R.’s allegations of sexual abuse were “fully recanted,” but
there is littl e evidence in the record to support this assertion. Mother testified that L.R.
stated that “she was sorry for what she did to [J.R.],” “[J.R.] didn’t deserve this,” and that
L.R. would “do anything in her power to rekindle [sic] her story, to get back with her father
because she did not want to be in the system anymore.” The district court expressly found
mother’s testimony “contradictory and not credible.” And it expressly found Carney’s and
Hilderman’s testimony regarding L.R.’s allegations credible, as well as Carney’s testimony
that even if L.R. recanted, it would not change her opinion regarding whether L.R.’s report
14
of abuse was credible. We defer to these credibility determinations. See S.S.W. , 767
N.W.2d at 733 (noting that this court gives dist rict courts considerable deference because
a district court is in a better position to assess the credibility of witnesses).
Mother further argues that the district court “erred in relying solely on hearsay
testimony” for its CHIPS adjudication. “‘Hearsay’ is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” Minn. R. Evid. 801(c). Hearsay is generally not admissible. Minn.
R. Evid. 802. The district court overruled mother’s hearsay objections at trial.
Failure to move for a new trial after a CHIPS hearing results in a loss of the right to
seek appellate review of evidentiary rulings, unless lack of review would result in
fundamental unfairness. See In re Welfare of D.N., 523 N.W.2d 11, 12 (Minn. App. 1994),
review denied (Minn. Nov. 29, 1994). Because mother did not move for a new trial, we do
not consider whether the district court erred in allowing hearsay evidence at trial.
Moreover, mother’s hearsay argument focuses on the weight of the evidence, and not its
admissibility. For example, she asserts that “[h]earsay statements based on allegations of
over two years that have since been fully recanted are not enough of a basis to determi ne
that [J.R.] is a sex offender.”
Although we acknowledge that this may have been a close case , we defer to the
district court’s weighing of the evidence. See R.T.B., 492 N.W.2d at 3-4. Our close inquiry
into the sufficiency of the evidence satisfies us that Carney’s and Hilderman’s testimony,
along with Carney’s reports regarding her interviews with L.R., clearly and convincingly
establish J.R.’s abuse of L.R.
15
In sum, none of mother’s arguments persuades us that the district court erred in
adjudicating R.P. a CHIPS.
Conclusion
In conclusion, mother’s arguments do not convince us that the district court abused
its discretion in adjudicating R.P. a CHIPS under Minn. Stat. § 260C.007, subd. 6(2)(iii).
Because this statutory ground adequately supports the district court’s CHIPS adjudication,
we affirm the adjudication based solely on this ground without reviewing the district
court’s reliance on other statutory grounds. See S.S.W., 767 N.W.2d at 724-25 (stating that
a child meets the statutory definition of CHIPS if “one of the enumerated child-protection
grounds exists and the child needs protection or services as a result”).
Affirmed.