In the Matter of the Welfare of the Child of: N. A.-M. W. and R. R. O., 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This opinion will be unpublished and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
A18-0695

In the Matter of the Welfare of the Child of:
N. A.-M. W. and R. R. O., Parents.

Filed October 29, 2018
Affirmed
Hooten, Judge

Mille Lacs County District Court
File No. 48-JV-17-2750

Anne M. Carlson, Anne M. Carlson Law Office, PLLC, St. Paul, Minnesota (for appellant
N. A.-M. W.)

Joe Walsh, Mille Lacs County Attorney, Heather A. B. Griesert, Assistant County
Attorney, Milaca, Minnesota (for respondent county)

James R. Spangler, Heller & Thyen, P.A., St. Cloud, Minnesota (for father R. R. O.)

Lisa Zwack, Milaca, Minnesota (Guardian ad Litem)

Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In an appeal from a district court’s adjudication that her child is a Child in Need of
Protection or Services (CHIPS), appellant-mother challenges several of the district court’s
factual findings and the statutory grounds for the CHIPS adjudication. We affirm.

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FACTS
Appellant’s child was born on May 16, 2016. While the child’s parents never
married, the father remained involved in the child’s life. During the course of the child’s
first 19 months, he underwent multiple surgeries, received casting, and wore a special
boots-and-bars apparatus1 at night to correct a club foot on his right leg. Although the child
was only 19 months old at the time of the CHIPS petition, he had sustained two fractures
of his right leg. The first fracture was to the child’s tibia when he was nine months old.
Appellant claimed the fracture occurr ed when the child, while in her custody, fell out of
his crib.
The second fracture was to his femur, which occurred when the child was 19 months
old. A ccording to appellant, the child sustained this fracture when he fell off a kitchen
counter on December 18, 2017. However, the child’s father claimed that on December 19,
2017, he had visitation with the child and appellant did not mention that the child had fallen
on the previous day. He also noted that when he brought the child to a clinic for congestion
issues associated with a cold, medical staff did a range of motion test of the child’s limbs
during their physical examination of the child and noted no issues.
On December 20, appellant brought the child to the hospital after noticing that his
leg was swollen. An x-ray revealed a transverse fracture of the right femur. The case was
referred to Dr. Linda Thompson to evaluate for possible physical abuse. Dr. Thompson

1 The witnesses refer to this as the child’s “boots and bars” and “Ponseti Bars and sandals.”
The apparatus consists of two sandal -like “boots with straps and buckles” that are
connected by a bar that slides into a latch on the bottom of the boots, and the purpose is to
keep the child’s feet in a proper position.

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interviewed both parents. In her report, Dr. Thompson noted that “[t]his type of fracture
would not have occurred without significant trauma and is very unlikely to be a result of
[Child’s] past history of [club foot], especially with radiologist’s report of normal bone
density. Physical abuse is strongly suspected in the absence of a history of plausible
trauma.” A police hold was then placed on the child pending an investigation.
On December 22, appellant met with Allen Tutland, an investigator with the Mille
Lacs County Sheriff’s Office , and two child protection investigators . Appellant initially
did not report any trauma to the child. Suspecting that appellant was not tellin g the truth,
Investigator Tutland met with appellant again by himself. Appellant then told him that on
December 18, after she had placed the child on a counter to give him medicine, which was
located above the sink, the child leaned toward appellant and fell off of the counter, landing
on his feet and butt.
On January 9, 2018, appellant told a treating pediatrician, Dr. Nancy Harper , that
when the child fell off of the counter, he struck his knee and then landed on his stomach.
Dr. Harper testified at the CHIPS hearing that the child’s femur fracture was not consistent
with this kind of knee-strike fall and that such a fall would cause a fracture on the end of
the femur, not the middle. She also testified that after reviewing the x-rays of the child’s
prior tibia fracture, it was her opinion that the tibia fracture had been misdiagnosed as a
buckle fracture when it was actually a transverse fracture. Dr. Harper further opined that
for the fracture to be consistent with a fall from a crib, the child would have fallen feet first
(instead of head first) from the crib and “stick the landing” on his feet.

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Investigator Tutland spoke with appellant again on January 22 about the child’s
December 18, 2017 incident . Appellant told Investigator Tutland that she had lied about
the location of the medicine and that it had actually been located on a speaker in another
area farther away from the child. And in a subsequent interview with Investigator Tutland,
she told him that at one point she had stepped outside of the kitchen completely while the
child was on the counter. At trial, appellant testified that she had her back turned to the
child when he fell off the counter and she turned in time to see his head “clear the counter.”
The county filed a CHIPS petition on December 26, 2017, and a court trial was held
on March 12 and 13, 2018. The district court found that the state had proven by clear and
convincing evidence that the child is in need of protection or services. This appeal follows.
D E C I S I O N
Appellant makes several challenges on appeal. She challenges five of the district
court’s factual findings. She argues that the district court abused its discretion in deciding
that the child is in need of protection or services on three statutory grounds. She asserts
that her due process rights were violated. And she claims that the district court erred by
not considering her willingness to accept services.
1. Findings of Fact
Findings of fact are reviewed for clear error. In re Welfare of J.H., 844 N.W.2d 28,
34–35 (Minn. 2014). “A finding is clearly erroneous only if there is no reasonable evidence
to support the finding or when an appellate court is left with the definite and firm conviction
that a mistake occurred.” Id. at 35 (quotation omitted).

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In finding of fact number 18, the district court found that on the day after the child
supposedly fell from the kitchen counter , father brought the c hild into a clinic for
congestion issues, and during that visit medical staff performed range of motion exams on
the child’s limbs, and no abnormalities or concerns were noted. Appellant claims there is
insufficient evidence that a range of motion exam took place. But there is medical
paperwork in the record indicating that “the physical exam mentioned normal range of
motion of all extremities.” And the paperwork is corroborated by father’s testimony that
medical staff moved the child’s “knee back and forth, moving his ankle, making sure his
legs move.”
The district court’s finding of fact number 49 states: “In her evaluation, Dr. Harper
noted concern for neglect because the c hild was behind on his immunizations and had
fallen from the 75 -80 percentile on the growth curve for weight to the third percentile,
despite being in a SPICA cast.” Appellant disputes that Dr. Harper used the word neglect.
While it is true that Dr. Harper did not specifically use the word neglect in her evaluation,
Dr. Harper noted that “there remain concerns . . . of whether the femur fracture represents
an accidental injury or an inflicted injury” and that the child’s weight met the criteria for
failure to thrive. It is reasonable to infer, based upon these circumstances, that Dr. Harper
was concerned about parental neglect of the child.
Appellant also disputes that Dr. Harper said that the child was in the third percentile
for weight. Dr. Harper’s report indicates that the child was in the 5 -10 percentile range,
and she testified that the child was in the fifth perc entile. While appellant is correct that
the district court clearly erred in attributing the third -percentile statement to Dr. Harper,

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we note that the child was weighed wearing a SPICA cast that inflated his weight and that
appellant herself conceded on c ross-examination that the child was in the third percentile
for weight when he went into foster care.
Appellant takes issue with the district court’s characterization of Dr. Harper’s
testimony that “Child’s club foot diagnosis does not affect the density or strength of the
bones” in finding of fact number 53. But when Dr. Harper was asked, “Is there anything
about having a clubfoot that would have made his bones weaker,” she answered “no, not
on its own.”
Finding of fact number 56 states:
Dr. Harper testified that Child’s injury could not have
happened as a result of the fall as Mother described. The
location of the femur fracture is inconsistent with any of the
variations of a fall off a counter that Mother reported. If Child
had fallen [off] the c ounter in any way described by Mother,
the fracture would have occurred lower in the femur, not in the
middle. This fracture is consistent with a blow or impact to the
femur. The location of the fracture is consistent with the area
where Mother strikes C hild’s thigh when putting on his boots
and bars.
Appellant takes issue with four aspects of this finding.
First, she argues that Dr. Harper did not testify that the injury could not have resulted
from the fall that appellant described. Second, she argues that it was clearly erroneous to
say that the fracture’s location “is inconsistent with any of the variations of a fall off a
counter that Mother reported.” Third, she argues that the district court clearly erred in
finding that the fracture would have occurred lower on the femur “[i]f Child had fallen
[off] the counter in any way described by Mother.” All three of these findings are

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supported by Dr. Harper’s testimony that she was “still concerned that [the counter fall]
doesn’t explain the fracture t o a reasonable degree of medical certainty, just based on the
location of the fracture and the type.”
Appellant’s fourth dispute with finding of fact number 56 is with the statement that
“[t]he location of the fracture is consistent with the area where Mother strikes Child’s thigh
when putting on his boots and bars .” The district court appears to have misinterpreted
appellant’s testimony about how she sits the child on top of her own legs when putting the
boots on him. There is nothing in the record to i ndicate that she strikes the child’s thigh
when putting on his corrective boots. Though appellant does not challenge finding of fact
number 11, the district court similarly clearly erred in finding that appellant’s “fists and/or
forearms rest on the point of the thigh where doctors would later diagnose a displaced
fracture.”
Finally, appellant challenges finding of fact number 57, in which the district court
found that, “Child’s femur fracture . . . was the result of non -accidental trauma.” There
was nothing in the record other than the fall from the counter that would suggest that the
fracture was the result of accidental trauma. The district court did not find the fall to be a
credible explanation in light of Dr. Harper’s testimony that it did not “explain the fracture
to a reasonable degree of medical certainty.” And in her report , Dr. Harper stated that “a
changing history of injury does have association with physical abuse or inflicted injury.”
Our review of the record shows that the district court did not clearly err with respect
to findings of fact 18, 53, and 57. As for finding of fact number 49, the record shows that
the district court clearly erred only in attributing the “third percentile” statement about the

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child’s weight to Dr. Harper since the doctor testified that the child was in the fifth
percentile for weight and the reference to being in the third percentile came from
appellant’s testimony. All of the district court’s findings in finding of fact 56 are supported
by the record except for the sentence stating that appellant strikes the child’s thigh. That
last sentence is clearly erroneous, as is the district court’s reference in finding of fact
number 11 to appellant placing her fists and forearms on the child’s thigh in putting on his
corrective boots.
2. Statutory Grounds
Appellant argues that the district court erred in determining that the child is in need
of protection or services under Minn. Stat. §§ 260C.007, subd. 6(2), (8), and (9) (2016).
We review a district court’s “finding of a statutory basis for the order” for an abuse of
discretion. In re Welfare of Child of D.L.D., 865 N.W.2d 315, 322 (Minn. App. 2015),
review denied (Minn. July 20, 2015).
i. Minn. Stat. § 260C.007, subd. 6(2) – abuse
Under Minn. Stat. § 260C.007, subd. 6(2), a child is in need of protection or services
if he “has been a victim of physical or sexual abuse as defined i n section 626.556,
subdivision 2.” And physical abuse is defined as “any physical injury, mental injury, or
threatened injury, inflicted by a person responsible for the child’s care on a child other than
by accidental means, or any physical or mental injury that cannot reasonably be explained
by the child’s history of injuries.” Minn. Stat. § 626.556, subd. 2(k) (2016). The district
court concluded that there was a physical injury and that “Mother provided no medical
explanation for the injury.” The district court discredited the notion that the fracture came

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from the fall, citing to Dr. Harper’s testimony and the fact that the injury is “extremely
painful, yet Child did not exhibit signs of distress as his legs were put through a range of
motion test” the day after the alleged fall. From this, the district court concluded that the
injury occurred after the date of the purported fall and therefore could not be explained by
the child’s history of injuries.
This conclusion is supported by the evidence in the record. Dr. Harper testified that
the fall did not “explain the fracture to a reasonable degree of medical certainty, just based
on the location o f the fracture and the type.” And there was evidence in the record to
support a finding that a range of motion test was performed on the child the day after the
alleged fall from the counter and that he did not show discomfort while undergoing this
test. Minn. Stat. § 626.556, subd. 2(k) asks whether the fracture can “reasonably be
explained by the child’s history of injuries.” In other words, it places the burden on the
state to prove that the femur fracture did not occur by accidental means, but it does not
require the state to prove the specific blow or strike that caused it. The evidence presented
shows that the fracture could not have occurred in the manner or at the time that appellant
describes. Therefore, the injury can not reasonably be explained by the c hild’s history of
injuries, and we conclude that the district court did not abuse its discretion.
Appellant also argues that the district court improperly shifted the burden on her to
prove that the fractures were the result of an accident. While the district court did state that
“Mother provided no medical explanation for the injury,” when read in context of the order,
the district court was not shifting the burden on appellant, but rather was pointing out that
the fracture could not be explained by the child’s history of injuries.

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ii. Minn. Stat. § 260C.007, subd. 6(8) – immaturity of parent
Under Minn. Stat. § 260C.007, subd. 6(8), a child is need of protection or services
when he 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 custodian.” The
district court concluded that the c hild was without proper parental care becau se of
appellant’s immaturity. Appellant contends that the district court abused its discretion in
making this ruling. But the district court’s conclusion is supported by the record. The
district court said that appellant’s “state of immaturity is shown throughout the facts of the
case,” and it gives examples like: (1) the child suffering two separate fractures to his right
leg and appellant giving explanations that are inconsistent with the injuries sustained;
(2) appellant not following up with the child’s well-child checks or ensuring that he was
up-to-date with his immunizations; and (3) the child dropping from the 75-80 percentile in
weight to the third percentile 2 while in appellant’s care. The district court finishes by
saying “[t]hese facts show Child is without proper parental care when in the care of
Mother.” The district court’s conclusion is reasonable in light of the evidence, and it did
not abuse its discretion.
iii. Minn. Stat. § 260C.007, subd. 6(9) – dangerous environment
Under Minn. Stat. § 260C.007, subd. 6(9), a child is in need of protection or services
when he “is one whose behavior, condition, or environment is such as to be injurious or
dangerous to the child or others.” Appellant asserts that the district court abused its

2 While Dr. Harper said fifth percentile, appellant herself agreed that the child had dropped
to the third percentile before going into foster care.

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discretion in finding that this statutory ground applied to the child. The district court relied
on three facts to support its conclusion: (1) the child has not suffered any fractures in foster
care, but he suffered two while in appellant’s care; (2) the c hild fell down to the third
percentile for weight while in appellant’s care, but in foster care he has risen to the sixteenth
percentile; and (3) appellant “failed to provide an environment where she could or would
ensure Child was consistent with his well -child visits and up -to-date on his
immunizations.” These facts give reason to be concerned about the child’s welfare and his
living environment. Dr. Harper’s observation that the child’s weight fell into the failure -
to-thrive range is especially probative on this point. Accordingly, we hold that the district
court did not abuse its discretion in determining t hat this statutory ground applied to the
child.
3. Due Process
Appellant next argues that her due process rights were violated because the CHIPS
petition did not give her notice of certain facts that the district court r elied on to make its
decision. She refers to three specific facts in the district court’s order that are not in the
petition: the lack of explanation for the tibia fracture, the failure to follow up on well-child
checks and immunizations, and the child’s drop in weight.
Respondent counters that appellant forfeited this claim by not raising it in district
court. Indeed, constitutional rights “may be forfeited in criminal as well as civil cases by
the failure to make timely assertion of the right before a tribunal having jurisdiction to
determine it.” State v. Beaulieu, 859 N.W.2d 275, 278 (Minn. 2015). And a review of the
record shows no mention of a due process argument. Appellant asserts that she preserved

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the issue in her closing argument, but none of the examples she cites to make any mention
of due process. We conclude that appellant forfeited her due process claim.
Even if appellant had not forfeited her due process argument, it is meritless. The
CHIPS petition alleges that the child was abused and not being given proper parental care,
and the three facts she takes issue with fit logically with those allegations. Moreover, Dr.
Harper’s report, which was provided to appellant prior to the CHIPS petition trial, mentions
the tibia fracture, the drop in weight, and the well -child checks and immunizations. The
idea that appellant was blindsided by these facts is disingenuous.
4. Willingness to Accept Services
Finally, appellant seems to ask us to create new caselaw saying that a district court
cannot make a CHIPS adjudication unless ther e is evidence that a parent is unwilling to
accept services offered by the count y or comply with a case plan. Appellant cites to an
unpublished case from our court in support of this proposition. Our review of that case
shows it to be distinguishable. Further, unpublished cases are not precedential. Minn. Stat.
§ 480A.08, subd. 3(c) (2016).
Affirmed.