In the Matter of the Welfare of the Children of: B. C., S. L. W., Sr., C. J. L., J. L. L., R. J. M., and D. M. B., 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This opinion will be unpublished and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
A17-0258

In the Matter of the Welfare of the Children of:
B. C., S. L. W., Sr., C. J. L., J. L. L., R. J. M., and D. M. B.,
Parents.

Filed June 19, 2017
Affirmed
Peterson, Judge

Sherburne County District Court
File No. 71-JV-16-308

Thomas W. Richards, Buffalo, Minnesota (for the children)

Lisa Ann Rutland, Rutland Law PLLC, Princeton, Minnesota (for appellant B.C., mother)

Rhonda Magnussen, Rhonda J. Magnuson LLC, Elk River, Minnesota (for S.L.W., Sr.,
father)

Milana Tolins, Minneapolis, Minnesota (for C.J.L., father)

Kathleen A. Heaney, Sherburne County Attorney, Tracy Jean Harris, Assistant County
Attorney, Elk River, Minnesota (for Sherburne County)

Traci Luniewski, Monticello, Minnesota (guardian ad litem)

Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and Smith,
Tracy M., Judge.
2
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from an order that adjudicated children in need of protection or
services (CHIPS), appellant-mother argues that (1) the district court erroneously found that
clear and convincing evidence support s the CHIPS determination; (2) the maltreatment
investigation was inadequate to support the CHIPS determination; (3) respondent-county
failed to offer adequate support services; and (4) newly discovered evidence undermines
the credibility of child witnesses. We affirm.
FACTS
Appellant-mother B.C. is the biological parent of six of the seven children who are
the subjects of this CHIPS proceeding; S.L.W., Sr. is the biological parent of two of the
seven children. 1 The seven children are J.Z.S., born in 2001; Anj.N.C., born in 2003;2
K.D.S., born in 2003; A.N.C., born in 2005; K.J.L., born in 2008; C.A.C., born in 2009;
and A.B.C., born in 2011.
Appellant has a history of child-protection involvement with her six children. Soon
after the birth of A.B.C., in 2011, the six children were placed out of home after appellant
admitted that they were in need of protection or services, but by November of that year,
they were all returned to appellant’s home. Appellant pleaded guilty to gross misdemeanor

1 Appellant and S.L.W., Sr. are referred to collectively as “parents.”
2 Anj.N.C.’s status is not considered in this appeal because S.L.W., Sr. voluntarily
consented to the termination of his parental rights to Anj.N.C. before the CHIPS hearing,
and Anj.N.C.’s biological mother is deceased. The district court transferred Anj.N.C.’s
custody to the Commissioner of the Minnesota Department of Human Services at the time
of the CHIPS adjudication.
3
malicious punishment of a child in 2011 for, according to her, backhanding J.Z.S. in the
mouth. Appellant and her children participated in therapy in 2011.
After the family, which by then included S.L.W., Sr. and Anj.N.C. ,3 moved to
Sherburne County in 2015, t here were at least three child-protection intakes concerning
alleged physical abuse, which resulted in two investigations. Although the children
claimed that they were safe in the home in 2015 and the parents denied physically abusing
the children, respondent Sherburne County Health and Human Services (the county) knew
that “in the past . . . the children [were] instructed not to be truthful with professionals.”
After an incident in December 2015, the county directed, as part of a safety plan, that the
parents not physically punish the children.
On May 15, 2016, when the two oldest children, J.Z.S. and Anj.N.C., were
discovered talking late at night after they had gone to bed, S.L.W., Sr. slapped Anj.N.C.
and threatened to “whoop”4 her. The next morning, appellant took Anj.N.C. to the doctor
to have her tested for sexually transmitted diseases and pregnancy. On that day, the county
also received a maltreatment report regarding all seven children that alleged slapping of
Anj.N.C. by S.L.W., Sr., and included general allegations of physical and emotional abuse
of all the children by both parents.

3It is unclear from the CHIPS decision when S.L.W., Sr. and Anj.N.C. began living with
the family, but S.L.W., Sr. is the father of A.B.C., who was born to appellant in 2011. The
district court found that during the 2015 -16 school year, appellant and S.L.W. , Sr. lived
with the children.
4The guardian ad litem asked the children for the meaning of “whooping,” and they said it
meant “being physically harmed or spanked or injured.” J.Z.S. also told the guardian ad
litem that this included being struck with a belt.
4
A county social worker, Julie Mlsna, began an investigation by interviewing J.Z.S.
individually at school on May 16; afterwards, she interviewed the six sch ool-age children
together. Police interviewed the six school-age children on May 17, and the children
described physical abuse, verbal abuse, and injuries at the hands of both parents, and fear
of punishment if they talked to authorities about the abuse. The children were placed on a
72-hour police hold that day.
A child-protection social worker, Allison Olmscheid, met with the parents on May
18, 2016; they denied abusing the children and accused the children of lying. According
to Olmscheid, S.L.W., Sr. “stated he got his ‘ass beat’ as a child and no one ever whined
to the government about it.” Olmscheid later testified that “there were 28 child
maltreatment allegations in this case” and that all of the children later stated that they
wished to remain in foster care rather than go back to live with their parents, which was
“unusual.” Olmscheid testified that the county opened an investigation in December 2015
after it was noticed that one of the children had a scar or scratch on her collarb one that
appellant reportedly caused . The amended petition alleged statutory bases for a CHIPS
adjudication under Minn. Stat. § 260C.007, subd. 6(2), (8), and (9) (2014).
The district court issued an emergency protective -care order that upheld the
children’s out-of-home placement until the district court could hold a hearing on the CHIPS
petition. Following an admit/deny hearing on May 24, 2016, the district court ruled that
the county had established a prima facie showing that the children were CHIPS, granted
the county’s motion “for a protective order to withhold the identification of the foster
5
parents from the parents,” and ordered supervised visitation. Visitation was later
suspended in June upon the advice of the children’s therapist.
Mlsna individually interviewed J.Z.S., K.D.S., and K.J.L. on June 24, 2016, and
interviewed Anj.N.C. and A.N.C. on July 26, 2016. The children reported numerous
instances of their parents’ physical abuse and other cruel practices, such as being punched
for “allowing a book to fall off a bed” or being “forced to stand with a penny on their nose
and ‘whooped’ if it fell off.” On September 28, 2016, S.L.W., Sr. told a county social
worker that he “slapped the f—k out of [Anj.N.C.] and would do it again.”
During the fo ur-day CHIPS hearing, the district court heard testimony from
appellant, the three oldest children, county social workers, a guardian ad litem, foster
parents, and a school principal and received other documentary evidence pertaining to the
family. The th ree oldest children testified in chambers about the “whoopings” they
received from their parents, sometimes with objects such as belts, for minor perceived
infractions; the district court found their testimony credible. 5 The district court also
received evidence pertaining to the children’s mental health and school performance; most
of the children have mental-health issues, and five have been diagnosed with post-traumatic
stress disorder. The district court specifically found that “[t]he children were re gularly
confined to their rooms . . . and consequently have failed to develop necessary skills for
children their age.” The district court found that appellant has been diagnosed with post -

5Olmscheid testified that some of the children felt such heightened anxiety about
encountering their parents in court that they vomited, feigned ill ness, or were unable to
sleep.
6
traumatic stress disorder and personality disorders, that she “has a sense of entitlement and
lacks empathy from having hurt others,” and that she “has clinically significant difficulties
in her interpersonal, social, and occupational functioning.” The guardian ad litem “opined
[that] adjudicating the children CHIPS would be in their best interest.”
The district court adjudicated the children CHIPS, ruling that there was clear and
convincing evidence that the children were victims of physical and emotional abuse, Minn.
Stat. § 260C.007, subd. 6(2), that appellant is an “abusive, unremorseful, and unstable
mother” who “is unable to provide proper parental care under” Minn. Sat. § 260C.07, subd.
6(8), and that the family “household is a dangerous environment unfit for children” as
defined in Minn. Stat. § 260C.007, subd. 6 (8). The district court listed the numerous
services that had been offered to the family, including 14 specific services that had been
offered after the children’s 2016 out-of-home placement.
Appellant moved for a new trial on January 23, 2017, arguing th at new evidence
established that, contrary to their testimony at the CHIPS hearing, J.Z.S. and Anj.N.C. had
inappropriate sexual contact, which created questions of credibility and undue influence of
J.Z.S. and Anj.N.C. over the younger children. In respo nse, the county stated that it had
“learned through interviews with the children that some of them, though not all, engaged
in sexual behavior with one another . . . when the parents were not home and when isolated
in their bedrooms.” But the county argue d that this information was “inconsequential to
the Court’s findings, conclusions, and order” in the CHIPS matter, did not excuse
appellant’s conduct, and did not warrant a new trial under Minn. R. Juv. Prot. P. 45. The
district court denied appellant’s motion for a new trial. This appeal followed.
7
D E C I S I O N
I.
Appellant argues that the CHIPS adjudication as to her six biological children is not
supported by clear and convincing evidence. There is a general presumption “that a natural
parent is a fit and suitable person to be entrusted with the care of his child and that it is
ordinarily in the best interest of a child to be in the custody of his natural parent.” In re
Welfare of C.K., 426 N.W.2d 842, 847 (Minn. 1988) (quotation omitted). Before a child
is adjudicated CHIPS, the district court must determine by clear and convincing evidence
that there is at least one statutory ground for making a CHIPS determination. Minn. Stat.
§ 260C.007, subd. 6 (2014) (listing 16 permissible statutory CHIPS grounds); 260C.163,
subd. 1(a) (2014) (stating that CHIPS allegations “must be proved by clear and convincing
evidence”).
Findings in a CHIPS proceeding will not be reversed unless
clearly erroneous or unsupported by substantial evidence.
Under the clearly erroneous portion of this court’s review of
the district court’s findings, a district court’s individual fact -
findings will not be set aside unless the review of the entire
record leaves the court with the definite and firm conviction
that a mistake has been made.

In re Welfare of B.A.B. , 572 N.W.2d 776, 778 (Minn. 1998) ( citation and quotations
omitted).
While the reviewing court will closely inquire into the sufficiency of the evidence
to determine whether the evidence is clear and convincing, id., it is also “bound by a very
deferential standard of review.” In re Welfare of Child of S.S.W. , 767 N.W.2d 723, 734
(Minn. App. 2009). The reviewing court must be mindful that the district court “has the
8
opportunity to see the parties as well as their witnesses, hear their testimony, observe their
actions, and weigh the evidence in light of those factors. In the absence of a clear abuse of
discretion, the action of the [district] court must be affirmed.” Id. (quotation omitted).
Minn. Stat. § 260C.007, subd. 6(2), provides that a child is in need of protection or
services if the child
(i) has been a victim of physical or sexual abuse as defined in
section 626.556, subdivision 2, (ii) resides with or has resided
with a victim of child abuse as defined in subdivision 5 or
domestic child abuse as defined in subdivision 13, (iii) 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, or (iv) is a victim of emotional
maltreatment as defined in subdivision 15.

“Physical abuse ” is defined broadly to include “any physical injury, menta l injury, or
threatened injury.” Minn. Stat. § 626.556, subd. 2(k) (2014). “Child abuse” means an act
that involves a minor victim and constitutes one of several specific criminal offenses,
including assault offenses, criminal -sexual-conduct offenses, ma licious punishment of a
child, and neglect or endangerment of a child . Minn. Stat. § 260C.007, subd. 5 (2014) .
“Domestic child abuse” is defined to include “any physical injury to a minor family or
household member inflicted by an adult family or household member other than by
accidental means.” Minn. Stat. § 260C.007, subd. 13(1) (2014). “Emotional maltreatment”
is defined as “the consistent, deliberate infliction of mental h arm on a child by a person
responsible for the child’s care, that has an observable, sustained, and adverse effect on the
child’s physical, mental or emotional development.” Minn. Stat. § 260C.007, subd. 15
9
(2014). “Emotional maltreatment ” does not inclu de reasonable training or discipline
administered by the person responsible for the child’s care. Id.
Relative to the CHIPS determination under section 260C.007, subd. 6(2), the district
court found that appellant
physically and emotionally injured her 6 children by
“whooping” them with a belt and her hand. The discipline
dispatched by [appellant] was cruel, immoderate, and beyond
reasonable. [Appellant’s] discipline of the children was not
reasonably meted to restrain or correct them. Three of the
children credibly testified to this abuse under oath, and credible
statements from all the children indicate both [appellant] and
[S.L.W., Sr.] “whooped” the children. . . . The children have
maintained their descriptions of “whoopings” despite being
separated from each other and in some cases wanting to go
home. [Appellant’s] conflicting testimony was evasive and not
credible.

These findings accurately reflect the evidence that supports the CHIPS adjudication
under section 260C.007, subd. 6(2). Contrary to appellant’s argument that the record does
not include evidence of physical injuries, the children, their school principal, and the
guardian ad litem testified that some of the children had bruises and scars caused by
appellant’s conduct. The children also testified that they were repeatedly assaulted by their
parents and placed in fear of physical abuse. Appellant’s emotional maltreatment of the
children is also proved by the children’s testimony and by the testimony of the four foster
parents who observed the children’s odd conduct when they first arrived in foster care, and
is borne out by the “various mental disorders” that the children now experience.6

6The district court found that J.Z.S. “has adjustment disorder and mixed disturbance of
emotions,” Anj.N.C. “has [PTSD] based on her history of abuse, . . . impaired functioning,
low to moderate social skills, and poor eye contact,” A.N.C. “has PTSD and is hesitant to
10
While there was evidence offered at the hearing that contradicted these findings, the
district court made definitive credibility determinations, and the testimony that the court
found credible satisfied the clear -and-convincing-evidence standard. See S.S.W. , 767
N.W.2d at 733 (providing that in juvenile -protection matters, the district court, as fact -
finder, is given “considerable deference” because the court “is in a superior position to
assess the credibility of witnesses” (quotation omitted)).
In addition, the restrictive definition of “physical abus e” urged by appellant is not
supported in the caselaw. In In re Welfare of Children of N.F., the supreme court rejected
a narrow definition of those words, based in part on the remedial purpose of the CHIPS
statute, and concluded that “physical abuse” inc ludes not only conduct that would
constitute malicious punishment under the criminal law, but also conduct that would
merely constitute an assault. 749 N.W.2d 802, 808 (Minn. 2008). Further, while appellant
draws attention to the fact that the children’s statements became more revealing after they
were taken from appellant’s home, this occurrence does not compel a finding that the
children were fabricating their stories; the record shows that the children were afraid of
retribution from their parents if t hey told the truth, which explains their initial reluctance
to disclose the abuse. Taken as a whole, the record contains clear and convincing evidence
that supports the district court’s CHIPS adjudication on this statutory ground. Because we

build a relationship with her therapist,” K.D.S. “has PTSD and stated he thinks we will die
if he goes home,” C.A.C. “has PTSD and experienced nightmares after visits with her
parents,” A.B.C. “has PTSD and experienced crying and nightmares af ter visiting her
parents.”
11
affirm on th is ground, we do not separately address the other statutory grounds for the
CHIPS adjudication.
II.
Appellant challenges the adequacy of the investigation conducted by the county and
alleges that the county failed to conduct “an accurate, complete, and pr ofessional child
maltreatment investigation.” Mlsna, the social worker, individually interviewed J.Z.S. at
school on May 16 and then interviewed all of the school -age children immediately after
J.Z.S.’s interview. During her testimony, Mlsna stated that she was aware that the county
had conducted an investigation of the family in December 2015 regarding an allegation of
physical maltreatment, and , at that time , Olmscheid recommended as a home safety
measure that “there would be no physical discipline in t he home.” She also testified that
law enforcement made the decision to remove the children from the home and that she
believed the children “would have been in jeopardy if they had been returned home that
day.” Mlsna stated that the scope of her investig ation did not include interviewing the
children’s teachers or neighbors because it was not necessary and could be harmful to the
family, and she did not obtain either police reports or the medical report from Anj.N.C.’s
May 16 doctor visit. Mlsna intervie wed K.J.L., K.D.S., and J.Z.S. a second time on Ju ne
24, 2016, at their request.
Minn. Stat. § 626.556, subd. 10 (2014), describes the duties of welfare agencies with
regard to child-maltreatment investigations. See also Minn. R. 9560.0212 (2015) (stating
that “parts 9560.0210 to 9560.0234 govern the administration and provision of child
protective services by local social service agencies”). The welfare agency must
12
immediately begin an investigation upon receiving a report of “substantial child
endangerment or a serious threat to the child’s safety.” M inn. Stat. § 626.556, subd.
10(a)(2); see Minn. R. 9560.0220, subp. 1 (describing local agency’s required response to
a report of child maltreatment). The welfare agency “shall collect available and relev ant
information to ascertain whether maltreatment occurred and whether protective services
are needed,” including “when relevant, information with regard to the person reporting the
alleged maltreatment . . .; the child allegedly being maltreated; the alle ged offender; . . .
and other collateral sources having relevant information related to the alleged
maltreatment.” Minn. Stat. § 626.556, subd. 10; see Minn. R. 9560.0220, subps. 1-5 (2015)
(describing similar procedures for a child-maltreatment investigation within a family unit).
“Collateral information includes, when relevant: . . . interviews with the child’s caretakers,
including the child’s parent, guardian, foster parent, child care provider, teachers,
counselors, family members, relatives, and oth er persons who may have knowledge
regarding the alleged maltreatment . . . of the child.” Minn. Stat. § 626.556, subd. 10(h)(3);
Minn. R. 9560.0220, subp. 5 (stating that “[w]hen necessary to make the determination
[whether maltreatment has occurred], the local agency shall interview other persons whom
the agency believes may have knowledge of the alleged maltreatment”). The standard of
proof for child-maltreatment investigations requires the agency to “document[] conditions
during the . . . investigation sufficient to cause a child protection worker . . . to conclude
that a child is at significant risk of maltreatment if protective intervention is not provided
and that the individuals responsible for the child’s care have not taken or are not likely to
take actions to protect the child from maltreatment or risk of maltreatment.” Minn. Stat.
13
§ 626.556 at subd. 10e(g); see Minn. R. 9560.0220, subp. 6 (2015) (requiring proof by “a
preponderance of evidence that a child is a victim of maltreatment”). “[P]reponderance of
the evidence means that it must be established by a greater weight of the evidence. It must
be of a greater or more convincing effect and lead you to believe that it is more likely that
the claim is true than not true.” State v. Maley , 714 N .W.2d 708, 712 (Minn. 2006)
(quotation omitted).
We agree with appellant that the county could have conducted a broader
maltreatment investigation. The county had a duty to conduct interviews to collect relevant
information related to the abuse allegati ons, but it interviewed only the immediate family
members. As noted by appellant, other relevant information could have included police
reports, medical reports, and interviews of others with whom the family had contact, such
as teachers and neighbors. T he history of child -protection involvement with the family
does not excuse the need to substantiate current allegations of abuse.
However, although the county could have conducted a more thorough investigation,
this deficiency was immaterial to the adequacy of the information that resulted in the need
for protective services due to the children’s maltreatment and did not bear on the admission
of evidence at the CHIPS hearing or on the necessity for clear-and-convincing evidence to
support the distric t court’s CHIPS adjudication. At the investigatory stage of a CHIPS
matter, the proper standard of proof is the preponderance-of-evidence standard, rather than
the clear -and-convincing-evidence standard that applies to the ultimate CHIPS
adjudication following a hearing on the merits. Minn. Stat. § 626.556, subd. 10e(g); Minn.
R. 9560.0220, subp. 6.
14
During J.Z.S.’s first interview with Mlsna, he said that when he and Anj.N.C. were
discovered talking upstairs at home after they were supposed to be in bed , they were
ordered to go to S.L.W., Sr.’s room, where S.L.W., Sr. “slapped” Anj.N.C. “a few times”
and threatened to “whoop” her “[w]ith a belt” if she didn’t stop crying. When asked about
other instances of the children being punished by being struck wi th a belt, J.Z.S. reported
that both parents did so and stated that a few months earlier S.L.W., Sr. had punished
K.D.S. with a belt because he “had [left] a wet rag on the floor.” J.Z.S. also said that
S.L.W., Sr. had punished K.D.S. with the belt “a lot ,” which “left bruises on his back and
arms.” J.Z.S. further stated that the parents were “equal” in meting out punishment, that
he did not “feel safe” at home any more, and that they were “all mistreated at times.”
During their May 16 group interview following J.Z.S.’s individual interview, the
children reported feeling unsafe and receiving “whoopings” that sometimes left bruises.
One child said that when appellant got mad, she went “wild,” and ran around “whoopin[g]
people.” The children also described a very restrictive home life where they were allowed
to play outside, but could not have friends over, go to sleepovers or birthday parties, and
most, if not all, said they did not want to go home. In May of 2016, the three oldest children
were 12, 12, and 14 years of age and sufficiently competent to provide information about
the events occurring in their home. See Minn. Sat. § 595.02, subd. 1(n) (2016) (stating that
“[a] child under ten years of age is a competent witness unless the court finds that the child
lacks the capacity to remember or to relate truthfully facts respecting which the child is
examined”). Although the group interview of the children and some use of leading
questions by Mlsna w ere less than ideal, the children’s statements corr oborated J.Z.S.’s
15
statements, which alone supported the county’s determination to intervene. The
information that the county gathered in its investigation was sufficient to establish by a
preponderance of evidence that the children were at significant ris k of maltreatment if
protective intervention was not provided.
III.
Appellant argues that the county “failed to provide family support and preservation
services to prevent placement or make efforts to reunify the children at the earliest possible
time.” Once a child is alleged to be CHIPS, the county must make “reasonable efforts. . .
to prevent placement or to eliminate the need for removal and to reunite the child with the
child’s family at the earliest possible time.” Minn. Stat. § 260.012(a) (2014); see Minn.
Stat. § 260. 012(d) (2014) (defining reasonable efforts to include developm ent and
implementation of a safety plan).
Appellant’s arguments with regard to the services provided by the county assume
that the children were not in danger of maltreatment while living at the family home in
May 2016. At that time, there was a safety plan in place that required no physical
punishment in the home, but J.Z.S. and the other children alleged that S.L.W., Sr. struck
and threatened one of the children, and that both parents had physically and emotionally
abused the children for a long time. Based on these allegations, which suggested that the
safety plan had failed, it would have been unreasonable for the county to allow the children
to remain in the home, and law enforcement made the decision to remove them. Regarding
reunification efforts , appellant denied that the abuse had occurred and rejected the
diagnoses of her mental illness, despite being offered services by the county to address
16
these concerns. The record does not show that the county failed to make reasonable efforts
to either p revent removal and placement of the children or to reunite the family. The
district court’s findings list numerous efforts by the county to addres s the concerns of this
family.
IV.
“The decision to grant a new trial rests within the district court’s discretion, and will
not be overturned absent an abuse of discretion.” Poston v. Colestock, 540 N.W.2d 92, 93
(Minn. App. 1995), review denied (Minn. Jan. 25, 1996). Appellant moved for a new trial
following the CHIPS adjudication, arguing that there was new evidence that some of the
children had had sexual contact with each other. Appellant sought a new trial on the
grounds of newly discovered evidence and in the interests of justice. Minn. R. Juv. Prot.
P. 45.04(e), (h). The district court denied the mot ion, ruling that the weight of evidence
showing the children in need of protective services was “overwhelming,” that appellant did
not use due diligence in discovering the new evidence, which occurred while the children
were in appellant’s care, and that the interests of justice did not require a new trial.
Appellant now argues that the district court “failed to consider how the newly
discovered material evidence raises the question of J.Z.S. and Anj.N.C.’s credibility and
their influence over the younger siblings.” Because appellant does not address this issue
in the body of her brief, we deem it waived. See State v. Palmer , 803 N.W.2d 727, 741
(Minn. 2011) (ruling that appellant waived ineffective assistance of trial counsel claims by
failing to include in the appellate brief “argument or citation to legal authority in support
of the allegations” and prejudicial error was not obvious); State v. Krosch , 642 N.W.2d
17
713, 719 (Minn. 2002) (deeming issue waived when a party made no argument and cited
no legal authority to support the claim). We also note that had the county been made aware
of sexual contact between the children earlier, that information would have supplemented
the record that already showed a strong basis for county intervention.
Affirmed.