In the Matter of the Children of: Kizzy Owens, Parent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-1626

In the Matter of the

Children of: Kizzy Owens, Parent.

Filed May 20, 2003

Affirmed

Lansing, Judge

Hennepin County District Court

File No. J201070430

Leonardo Castro, Fourth District Public Defender, David P. Murrin, Assistant Public Defender, Suite 200, 317 Second Avenue South, Minneapolis, MN  55401 (for appellant Kizzy Owens)

Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN  55487; and

Mary M. Lynch, Assistant County Attorney, Suite 1200, 525 Portland Avenue South, Minneapolis, MN  55415 (for respondent Hennepin County Children, Family and Adult Services Department)

Howard Kleyman, 2400 Hennepin Avenue South, Minneapolis, MN  55405 (for Guardian Ad Litem)

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On appeal from an order denying a new trial, Kizzy Owens argues that the evidence does not support the district court's adjudication that her children are in need of protection or services.  Because the district court's findings satisfy the statutory criteria and are supported by clear and convincing evidence, we affirm.

F A C T S

Kizzy Owens is the mother of S.W. and T.W.  Jonathan Whitfield, who has shared a residence with Owens for seven years, is the presumed father of S.W. and the alleged father of T.W.  The Hennepin County Children, Family, and Adult Services Department filed a child-in-need-of-protection-or-services (CHIPS) petition on behalf of six-year-old S.W. in December 2001.  The petition alleged that Whitfield physically abused S.W. and sexually and physically abused Owens's thirteen-year-old sister, S.T.  The petition was amended in May 2002 to allege that Owens's newborn baby T.W. was also in need of protection or services.

Evidence at the CHIPS trial included testimony from thirteen witnesses and twenty exhibits.  Following the trial, the district court found that Whitfield physically and sexually abused S.T., physically abused S.W., physically abused Owens in front of S.W., and physically abused Owens's mother when she was living in their home.  The court further found that Whitfield was chemically dependent and that children left in the care of Whitfield are at risk of sexual or physical abuse.  With respect to Owens, the court found that she does not believe Whitfield poses a threat to the children, that she continued to allow Whitfield to care for S.W. after she learned of S.T.'s allegations of Whitfield's sexual abuse, that she lacks insight into the dynamics of sexual and physical abuse and consequently cannot recognize the risk to her children, and that she needs rehabilitative services to learn how to protect her children and to avoid future harm.

Based on these findings, the district court concluded that S.W. and T.W. are in need of protection or services because S.W. has been the victim of physical abuse, the children are without proper parental care, and the children's environment presents a danger to them.  The order provided that the children would remain in the care and custody of Owens, required Owens to complete specific rehabilitative programs, and forbade Owens from allowing contact between Whitfield and the children until Whitfield is "fully engaged in his case plan and until ordered by the court."  Owens and Whitfield moved for a new trial, which the district court denied.  Owens appeals from the order denying a new trial.

D E C I S I O N

The standard of appellate review for a CHIPS determination is whether the district court's findings are supported by clear and convincing evidence and are not clearly erroneous.  In re Welfare of J.M.S., 268 N.W.2d 424, 428 (Minn. 1978); Minn. R. Juv. P. 74.04, subd. 1 (requiring allegations in petition be supported by clear and convincing evidence).  This court closely inquires into the sufficiency of the evidence to determine whether the evidence is clear and convincing.  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).  Because the district court is in a superior position to assess the credibility of witnesses, considerable deference is accorded the district court's determination of credibility.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). 

The factors that define when a child is in need of protection or services are set forth in Minn. Stat. § 260C.007, subd. 6 (Supp. 2001).  The district court refers to Minn. Stat. § 260C.007, subd. 4 (2000) in its conclusions of law.  Because the 2001 legislation renumbering the subdivisions became effective before the issuance of the order, we cite the renumbered subdivisions.  See Minn. Stat. § 645.02 (2002) (stating that legislative acts generally take effect on the next August first, following final enactment, unless otherwise specified in the act); see also 2001 Minn. Laws ch. 73 § 1 (amending definitions in Minn. Stat. § 260C.007); 2001 Minn. Laws ch. 178 art. 1 § 5-10 (same); 2001 Minn. Laws ch. 178, art. 1 § 44 (renumbering Minn. Stat. § 260C.007 but not specifying an effective date).  The legislation that renumbered the subdivisions did not substantively change Minn. Stat. § 260C.007.  See Minn. Stat. § 260C.007 (2000); 2001 Minn. Laws ch. 73 § 1, ch. 178 art. 1, § 5-10, 44 (codified as amended at Minn. Stat. § 260C.007 (Supp. 2001)).

The district court concluded that S.W. and T.W. are in need of protection or services under subdivision 6(2), which provides that a child is in need of protection or services when the child has been the victim of physical or sexual abuse, resides with a victim of domestic child abuse, or would reside with a perpetrator of domestic child abuse.  See Minn. Stat. § 260C.007, subds. 6(2)(i), 6(2)(ii), 6(2)(iii) (Supp. 2001).  The district court found that Whitfield physically abused S.W. by using a belt to discipline her, which resulted in physical injury.  At the CHIPS trial, Whitfield admitted that he had hit S.W. with a belt.  In a transcript of S.W.'s interview with a child protection worker, which was admitted into evidence, S.W. confirms that she received "owies" when Whitfield hit her with a belt.  This evidence clearly and convincingly supports a finding that Whitfield physically abused S.W.

The district court also found that Whitfield physically and sexually abused Owens's sister, S.T.  The record contains evidence that Whitfield hit S.T. with a telephone, which resulted in physical injury to her head.  The record also contains evidence that Whitfield sexually abused S.T. while she was living with Owens, Whitfield, and S.W.  S.T. testified that Whitfield fondled and licked her breasts, digitally penetrated her vagina, and asked her to perform fellatio.  S.T.'s testimony relating these specific instances of sexual abuse was substantially corroborated by a police officer, who provided testimony about an interview with S.T. in which they discussed Whitfield's conduct.  S.T.'s aunt and grandmother also testified that S.T. told them that Whitfield touched her inappropriately.  The evidence in the record clearly and convincingly supports the district court's finding that Whitfield physically and sexually abused S.T.

Although Owens and Whitfield were not living together at the time of the CHIPS trial, Owens admitted that the primary reason she separated from Whitfield was to allow her children to be released from protective services.  Owens also admitted that she, with her children, would again reside with Whitfield if given the opportunity.  Were Owens to reunite her children with Whitfield, S.W. and T.W. would be living with a perpetrator of domestic child abuse.  The evidence supports the district court's conclusion that S.W. and T.W. are in need of protection or services under Minn. Stat. § 260C.007, subd. 6(2).

The court also concluded that the children are in need of protection or services under subdivision 6(8), which states that a child is in need of protection or services when the child is without proper parental care due to the emotional, mental, or physical disability, or state of immaturity of the child's parent.  See Minn. Stat. § 260C.007, subd. 6(8) (Supp. 2001).  The district court found that Owens lacks insight into sexual- and physical-abuse dynamics and is unable to recognize the risk to her children when they are exposed to a perpetrator of domestic child abuse.  This conclusion is supported by evidence in the record that Owens and S.W. continued to live with Whitfield after Owens learned of S.T.'s report that Whitfield abused S.T.  This finding is also supported by Owens's testimony that Whitfield is not physically abusive, which contradicts evidence in the record that shows he has physically abused her, S.W., S.T., and Owens's mother.  The fact that Owens would continue to expose her children to Whitfield, despite his abusive behavior, clearly and convincingly supports the district court's finding that Owens does not recognize the risk Whitfield poses to her children.  Thus, the district court did not err in concluding that S.W. and T.W. are in need of protection or services under Minn. Stat. § 260C.007, subd. 6(8).

The final statutory provision under which the court adjudicated S.W. and T.W. CHIPS states that a child is in need of protection or services when the child is in an injurious or dangerous environment.  See Minn. Stat. § 260C.007, subd. 6(9) (Supp. 2001).  Evidence in the record clearly and convincingly shows that Whitfield is physically abusive, sexually abusive, and chemically dependent.  Because Owens admits that she would reunite her children with Whitfield if given the opportunity, the district court properly concluded that S.W. and T.W. are in need of protection or services under Minn. Stat. § 260C.007, subd. 6(9), until Whitfield and Owens have obtained or completed rehabilitative services.

            Affirmed.