In the Matter of the Welfare of the Children of: J. J. v. S. and A. M., Parents and In the Matter of the Welfare of the Children of: J. J. v. S. and T. J., Parents. ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1785
In the Matter of the Welfare of the Children of:
J. J. V. S. and A. M.,
Parents
and
In the Matter of the Welfare of the Children of:
J. J. V. S. and T. J.,
Parents.
Filed March 28, 2016
Affirmed
Ross, Judge
Faribault County District Court
File Nos. 22-JV-14-176;
22-JV-14-177
Ryan A. Gustafson, Christopher J. Ubben, Frundt & Johnson, Ltd., Blue Earth, Minnesota
(for appellant J.J.V.S.)
Troy G. Timmerman, Faribault County Attorney, Graham Berg-Moberg, Assistant County
Attorney, Blue Earth, Minnesota (for respondent Faribault and Martin County Human
Services)
A.M., Waycross, Georgia (pro se respondent)
Joli Heinitz, Blue Earth, Minnesota (Guardian ad Litem for M.M. and T.S.)
Considered and decided by Reyes, Presiding Judge; Ross, Judge; and
Randall, Judge.
UNPUBLISHED OPINION
ROSS, Judge
Mother J.J.V.S. appeals from a district court order determining that her children
need protection or services, arguing that the county did not present clear and convincing
evidence that the children were exposed to dangerous criminal activity occurring in her
home. The record informs us that clear and convincing evidence proves that
methamphetamine dealing was occurring in the home and that mother, herself a
methamphetamine user, was aware of it. We hold that the district court did not abuse its
discretion by determining that the home environment has put the children in need of the
county’s protection or services, and we affirm.
FACTS
Faribault County Human Services filed a petition in December 2014 alleging that
J.J.V.S.’s children, ten-year-old T.S. (and presumably three-year-old M.M.), need
protection or other services (a “CHIPS” petition) after the county learned that M.M. was
present at home during a methamphetamine sale by J.J.V.S.’s romantic acquaintance, L.N.
The CHIPS petition relies on two statutory grounds. The first is that the children lack
necessary food, clothing, shelter, education, or other required care because J.J.V.S. is
unable or unwilling to provide care under Minnesota Statutes section 260C.007,

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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subdivision 6(3) (2014). And the second is that the children’s behavior, condition, or
environment are injurious or dangerous under Minnesota Statutes section 260C.007,
subdivision 6(9) (2014).
The district court conducted a bench trial on the petition in September 2015. Deputy
Arnold Zuniga testified that he coordinated a controlled purchase of drugs in December
2014 at a southern Minnesota home. Deputy Zuniga and two assisting officers outfitted a
confidential informant with video and audio recording and transmitting equipment. The
informant entered J.J.V.S.’s home in the afternoon and purchased an eighth of an ounce of
methamphetamine from L.N. Detective Debra Flatness testified that she assisted and could
hear a child’s voice during the transaction while she listened to the audio transmission. The
court saw the recording and learned that police arrested J.J.V.S. and L.N.
A social worker testified that she met with J.J.V.S. after her arrest. She testified that
J.J.V.S., L.N., and the children shared the home where the drug deal occurred. She opined
that a child exposed to drug dealing at home would need protection or services arising from
both the exposure to the drug dealing and to the drugs. The guardian ad litem also opined
that this kind of criminal activity in the home can be dangerous, in part due to the nature
of people generally associated with drug deals.
A former child-protection case manager testified that J.J.V.S., L.N., and M.M. could
all be seen in the drug-transaction video. She opined that drug activity in the home is unsafe
because of potential collateral circumstances, like shootings or other violent crime. The
case manager also testified that J.J.V.S.’s urinalyses revealed methamphetamine three
times, and the county’s toxicology reports corroborated this testimony.
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The district court found that clear and convincing evidence proved that a controlled
drug deal for an eighth of an ounce of methamphetamine occurred in J.J.V.S.’s home with
J.J.V.S. and M.M. present; that J.J.V.S. is familiar with the informant, who is herself a
methamphetamine purchaser; that J.J.V.S. tested positive for methamphetamine multiple
times in the months following the drug deal; and that J.J.V.S. falsely denied knowing that
the drug deal was occurring.
The district court concluded that the children need protection or services based on
their living in a dangerous or injurious environment under Minnesota Statutes section
260C.007, subdivision 6(9). The district court made no finding as to the other statutory
ground in the CHIPS petition. J.J.V.S. appeals.
DECISION
We afford the district court’s CHIPS determination considerable deference. In re
Welfare of Child of S.S.W., 767 N.W.2d 723, 733 (Minn. App. 2009). The decision must
be supported by findings that are not clearly erroneous and rest on evidence that is clear
and convincing. Id. Fact findings are clearly erroneous if our review of the record leaves
us with a definite and firm conviction that they are mistaken. In re Welfare of B.A.B., 572
N.W.2d 776, 778 (Minn. App. 1998). The district court’s decision here clears that standard.
The district court may determine that a child needs protection or services if it
concludes that the evidence supports one of the bases identified in Minnesota Statutes
section 260C.007, subdivision 6 (2014). The district court determined that T.S. and M.M.
need protection or services under subdivision 6(9), which defines a child as being in need
of protection or services when the child’s behavior, condition, or environment is injurious
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or dangerous. “An injurious or dangerous environment may include, but is not limited to,
the exposure of a child to criminal activity in the child’s home.” Minn. Stat. § 260C.007,
subd. 6(9).
J.J.V.S. argues that the evidence does not establish that T.S. was exposed to criminal
activity in the home because T.S. was not home during the methamphetamine deal. She
similarly argues that although M.M. was at home, M.M. was in a different room when the
drug deal occurred. J.J.V.S.’s argument rests on the mistaken assumption that “exposure”
requires physical presence during a proven crime. The statute recognizes the danger of
“criminal activity,” and the kind of danger or harm that can arise from criminal activity
exists before, during, and after the actual crime occurs. The district court heard testimony
that suggested danger from the collateral consequences of the specific crime of drug
dealing. And even without this testimony it is commonly known that myriad dangers
accompany drug dealing, such as neglectful parenting, drug-related crimes, drug-induced
aggression and violence, and inadvertent drug-consumption by children. The statute
directed the district court to consider the dangers arising from “criminal activity,” and it
was not bound to restrict its consideration only to those circumstances when the children
are present immediately at the time specific crimes occur. That J.J.V.S. is a
methamphetamine user herself also corroborates the district court’s recognition of the
danger to the children arising from drug dealing in J.J.V.S.’s home.
J.J.V.S. reasonably argues that no real danger was shown because the county
presented no evidence that criminal activity is a normal occurrence at the residence, that
anyone associated with the house has a history of violent crime, or that violent crimes
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actually occur in the area. But the statute does not dictate, and common sense does not
require, that the district court must reserve protection only to those cases in which the
criminal activity is more frequent.
Affirmed.
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