                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0833

                      In the Matter of the Welfare of the Children of:
                           L. J. H., B. R. J. and R. J. C., Parents

                                 Filed November 3, 2014
                                        Affirmed
                                      Smith, Judge

                               Anoka County District Court
                    File Nos. 02-JV-13-1592, 02-JV-1593, 02-JV-14-71

Patricia A. Zenner, Zenner Law Office, Stillwater, Minnesota (for appellant L.J.H.)

Tony Palumbo, Anoka County Attorney, Kathryn M. Timm, Marcy S. Crain, Patricia M.
Fair, Assistant County Attorneys, Anoka, Minnesota (for respondent Anoka County)

Kenneth J. Dee, Assistant Anoka County Public Defender, Anoka, Minnesota (for
respondent B.A.J.)

Gretchen R. Severin, Munstenteiger & Severin, P.A., Anoka, Minnesota (for respondent
R.J.C.)

Joseph D. VanThomme, Eckberg, Lammers, Briggs, Wolff & Vierling, PLLP, Stillwater,
Minnesota (for respondent B.R.J.)

Stephanie Goodsell, Ramsey, Minnesota (respondent)

         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,

Judge.
                        UNPUBLISHED OPINION

SMITH, Judge

       We affirm the district court’s judgment adjudicating appellant’s children in need

of protection or services because substantial evidence supports the district court’s

findings.

                                         FACTS

       Appellant L.J.H. is the mother of three boys. B.R.J. is the father of the two older

boys, and R.J.C. is the father of the youngest. Before August 2013, all three boys, B.A.J.,

B.S.J., and C.J.C., were living with appellant in Section 8 housing; however, they were

removed from the housing because of allegations that R.J.C. was living with them.

R.J.C. stayed with appellant sometimes, but would stay with friends at other times. After

the removal, appellant and the boys became homeless, staying at various places until

finding a shelter in October. During that time, appellant attempted to enroll B.A.J. in a

school near a home where she was staying. Appellant decided, however, that the home

was not suitable for her children, and they left before B.A.J. began attending. In early

October, B.A.J. began attending his former school again, about one month after the start

of the school year.

       On October 17, 2013, while the oldest two boys were having dinner with their

father, B.S.J. told his father that R.J.C. had grabbed him by the throat the preceding day.

Afterward, their father reported the incident to law enforcement.        The matter was

investigated by law enforcement and a child-protection investigator. Appellant denied

that the incident took place. The child-protection investigator determined that it was in


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the two older boys’ best interests to stay with their father during the investigation, and

L.J.H. reluctantly agreed to the safety plan.

       On November 15, 2013, the child-protection investigator filed a Child in Need of

Protection or Services (CHIPS) petition. The petition alleged that the children were in

need of protection or services because they were homeless, B.A.J. had missed one month

of school, and R.J.C. had grabbed B.S.J. by the throat in anger. The petition also

questioned appellant’s decision-making and ability to care for the children. It noted that,

with regard to his two older children, R.J.C. had previously had his parental rights

involuntarily terminated because of his physical abuse and neglect of the children, his

drug use, and his criminal behavior. Moreover, appellant insisted that B.A.J. lied about

the October 16 incident in order to stay with his father.

       At trial, B.A.J. testified that, on October 16, while he was getting ready to go to

his father’s, B.S.J. misbehaved while they were all outside. R.J.C. got angry and grabbed

B.S.J. by the throat and told him to quit. In response, appellant told R.J.C. to stop.

Afterward, appellant and R.J.C. took the two older boys to meet with their father. B.A.J.

also testified that appellant called him later and asked him to tell his father and the

investigators that he had lied. Appellant testified that she was merely asking him to tell

the truth about the incident because she believed that he had lied.

       R.J.C. and appellant testified that R.J.C. had not grabbed B.S.J.; rather, appellant

had held her son’s chin between her thumb and forefinger to get his attention because he

was misbehaving. R.J.C. stated that B.A.J. was inside watching a movie at the time and

did not see what happened.


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        Appellant testified that R.J.C. is good with her kids and she would like to repair

her relationship with him. She maintained that B.A.J. lied because he wanted to live with

his father, instead of living at the shelter. Appellant also testified that B.R.J. has a history

of being abusive and threatening, causing her to have an antagonistic relationship with

him, and that he is a frequent user of marijuana. Appellant further testified that, since the

investigation started, a therapist diagnosed her with depression and anxiety, which she

attributes to the child-protection matter. Although she was no longer seeing a therapist

because she moved, she testified that she continued to search for one closer to her new

home.

        A social worker testified that R.J.C. has an “extensive criminal history” and a prior

termination of parental rights. In addition, a social worker and the guardian ad litem both

expressed concerns that, because appellant displayed a failure to protect her children

because of her continued relationship with R.J.C., she would allow him to continue to be

around her children and assist in parenting in the future.

        On April 28, 2014, the district court adjudicated all three boys as CHIPS. It found

clear and convincing evidence that the children were homeless while in appellant’s

physical custody, that B.A.J. had missed almost one month of school, and that R.J.C.

grabbed B.S.J. by the throat. The district court explicitly found that B.A.J.’s testimony

was more credible than appellant’s or R.J.C.’s. Based on these factual findings, the

district court concluded that B.S.J. was a victim of physical abuse and that B.A.J. and

C.J.C. reside with or have resided with a victim of domestic abuse and reside with or

have resided with a perpetrator of domestic abuse. The district court also concluded that


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all three children were without necessary food, shelter, education or other required care

because appellant was unable or unwilling to provide that care, were without proper

parental care because of a disability or immaturity of appellant and were in an

environment that was injurious or dangerous to the children or others. Accordingly, the

district court ordered all three children placed under the protective supervision of Anoka

County Social Services.

                                     DECISION

       Appellant argues that the district court adjudicated her children in need of

protection or services based upon insufficient factual findings. In order to adjudicate a

child as CHIPS, a district court must conclude that at least one statutory basis in Minn.

Stat. § 260C.007, subd. 6 (2012) exists and that the child “needs protection or services as

a result.” See In re Welfare of Child of S.S.W., 767 N.W.2d 723, 732 (Minn. App. 2009).

We review a CHIPS adjudication for a “sufficiency of the evidence to determine whether

the evidence is clear and convincing.” Id. at 733 (citing In re Welfare of J.M., 574

N.W.2d 717, 724 (Minn. 1998)). “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.” In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).

       Appellant argues that the children received required care, including shelter and

education, because appellant secured a place for them to stay each night and that B.A.J.’s

missed school was not attributable to her conduct. A child is in need of protection or

services if the child “is without necessary food, clothing, shelter, education, or other




                                            5
required care . . . because the child’s parent . . . is unable or unwilling to provide that

care.” Minn. Stat. § 260C.007, subd. 6(3).

       There is clear and convincing evidence in the record that appellant and her

children were homeless, thus without shelter that was safe and stable. Appellant testified

that the family became homeless after she was removed from section 8 housing. She also

testified that the housing she moved into was a bad environment for the children, and she

had to get them out. Eventually, the family had to sleep in L.J.H.’s car before finding

temporary accommodations through B.A.J.’s school, followed by a stay at a church-

operated shelter. While the record does not indicate that the family was forced to sleep

outdoors at any given point, it is clear that appellant was at least temporarily unable to

provide a stable, safe home for the children.

       Furthermore, there is clear and convincing evidence in the record that appellant

did not put B.A.J. in school until almost one month into the school year. In order to

establish educational neglect, thereby justifying a removal of the children from the

parent’s home, there must be a “severe deprivation of education.” In re Welfare of T.K.,

475 N.W.2d 88, 93 (Minn. App. 1991). A child’s absences must be attributable to the

parent to be educational neglect, In re Welfare of B.A.B., 572 N.W.2d 776, 779 (Minn.

App. 1998), but there is a statutory presumption that a child’s absence is attributable to

the parent. Minn. Stat. § 260C.163, subd. 11 (2012). In B.A.B., twenty total absences,

both excused for illness and unexcused, over the course of the school year was sufficient

to adjudicate a child as CHIPS. 572 N.W.2d at 777, 779.




                                                6
       While the record demonstrates that appellant attempted to enroll her son in school

before he returned to his prior school, appellant ultimately failed to ensure that her son

was in school for nearly one month. Unlike in B.A.B., the absences were not caused by

illness. They were caused by the family’s itinerant lifestyle while homeless. And they

were not spread out over the course of a school year. Consecutively missing one month

of school at the beginning of the school year constitutes a severe deprivation of

education, thus the record supports the district court’s conclusion. Because the district

court properly adjudicated the children as CHIPS within the definition of Minn. Stat.

§ 260C.007, subd. 6(3), we do not reach the other challenged grounds.

       Appellant also challenges whether reasonable efforts were made to reunite

appellant with her older children and whether placement with their father is in their best

interests. The district court “shall ensure that reasonable efforts . . . are made 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) (2012).

       First, appellant argues that reasonable efforts were not made for reunification

because no case plan was filed, as required by Minn. Stat. § 260C.178, subd. 7 (2012).

Section 260C.178, subdivision 7 provides deadlines for out-of-home placement plans

prepared under Minn. Stat. § 260C.212 to be filed with the district court. Section

260C.212 requires an out-of-home placement plan whenever a child is placed in foster

care, either by court order or voluntarily. L.J.H.’s children were not placed in foster care.

Rather, the father of the two older boys assumed the day-to-day care as part of a safety

plan devised by the child-protection investigator and agreed to by L.J.H. See Minn. Stat.


                                             7
§ 260C.219(a)(1)-(2) (2012) (categorizing the assumption of day-to-day care by another

parent separately from out-of-home placement). Because the children were not placed in

foster care, an out-of-home placement plan was not required.          Moreover, the social

worker testified that she went over a case plan with L.J.H. and that L.J.H. was aware of

the steps that were necessary for reunification. L.J.H. testified that she did not remember

discussing a case plan, although she performed some of its requirements.              L.J.H.

completed a urinalysis test, attended parenting classes, and started individual therapy.

But she chose not to voluntarily comply with the case plan as a whole, waiting for the

district court to order her to do so. For example, she did not undergo a parenting

assessment, sign a release for the social worker to talk to her therapist, or begin joint

therapy with B.A.J. Therefore, the district court’s determination that the county made

reasonable efforts to seek reunification is supported by substantial evidence.

       Second, appellant argues that placement with B.R.J. is not in the two older

children’s best interests. One of chief purposes of juvenile-protection proceedings is to

act consistently with the best interests of the child. Minn. Stat. § 260C.001, subd. 2(a)

(2012).   The district court should “preserve and strengthen the child’s family ties

whenever possible and in the child’s best interests.”       Id., subd. 2(b)(3) (2012). In

balancing the preservation of the parent-child relationship against the best interests of the

child, the district court should consider “such things as a stable environment, health

considerations and the child’s preferences.” In re Welfare of Children of K.S.F., 823

N.W.2d 656, 668 (Minn. App. 2012) (quotation omitted).




                                             8
       Appellant testified that B.R.J. was physically and verbally abusive during their

relationship and is a marijuana user who gets angry when he is unable to use marijuana.

Conversely, social workers and the guardian ad litem noted that the children said they

feel safe in B.R.J.’s home, there are no signs of abuse, and all B.R.J.’s urinalysis tests

have come back negative, except for the first one.

       B.A.J. also expressed a preference to remain with his father, partially because his

father’s home is more stable than his mother’s. His father has lived in the same home for

an extended time, where the boys know other children in the neighborhood and their

grandmother is nearby. Furthermore, B.A.J. has consistently attended school and caught

up on his coursework while living with B.R.J. B.R.J. also enrolled B.S.J. in a Head Start

program in which he is doing well. The record does not contain any evidence that B.R.J.

has failed to comply with his case plan.

       In contrast, one boy was grabbed by the throat and both were homeless while in

L.J.H.’s care. Her decision to include R.J.C. in the children’s environment, and her hope

that he will continue to be a presence, poses a risk to the children’s safety. The district

court found that R.J.C. stayed with the family and was regularly around L.J.H.’s children.

The district court also found B.A.J.’s testimony that R.J.C. grabbed his brother by the

throat credible. Furthermore, R.J.C. has previously had his parental rights involuntarily

terminated amid child-abuse allegations. Even so, appellant testified that she remains in

contact with him and hopes to repair her relationship with him because he’s good with

her children. Therefore, there is clear and convincing evidence to support the district

court’s finding that it is in B.A.J. and B.S.J.’s best interests to remain with their father.


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      We therefore affirm the district court’s CHIPS adjudication because it is supported

by clear and convincing evidence.

      Affirmed.




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