This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Affirmed in part and reversed in part
St. Louis County District Court
File No. J301651405
Mark C. Jennings, 509 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for appellant)
Alan L. Mitchell, St. Louis County Attorney, Heidi E. Murtonen, Joanne Vavrosky, Assistant County Attorneys, 403 Government Services Center, 320 West Second Street, Duluth, MN 55802 (for respondent)
Arthur M. Albertson, Suite 100, 101 West Second Street, Duluth, MN 55802 (guardian ad litem)
Considered and decided by Wright, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.
Appellant Lacy LaMay challenges the district court’s conclusion that her children, A.L. and J. L., are in need of protection or services of the court under Minn. Stat. § 260C.007, subd. 6(2), (3) (2001). LaMay argues that there is not clear and convincing evidence (1) that she physically abused A.L.; (2) that she has been unable or unwilling to provide for the moral guidance of A.L.; or (3) that she has been unable or unwilling to provide for adequate safety, clothing, cleanliness, and hygiene for both of the children. We affirm the district court’s determination that the children are in need of protection or services because of LaMay’s physical abuse of A.L., but reverse the determination that the children are in need of protection or services due to LaMay’s alleged inability or unwillingness to provide the children with moral guidance, safety, clothing, cleanliness, and hygiene.
Appellant Lacy LaMay is the mother of A.L., born December 30, 1997, and J.L., born May 28, 1999. Jason Kolodziej is A.L.’s father. LaMay and Kolodziej were never married. Prior to these proceedings, LaMay had sole legal and physical custody of A.L. William Willis is J.L.’s father. LaMay and Willis were never married. Prior to these proceedings, LaMay and Willis had joint legal and physical custody of J.L.
On November 9, 2001, at approximately 11:36 p.m., LaMay took three-year-old A.L. to the emergency room at St. Mary’s Hospital in Duluth. A.L. was complaining of head pain and had significant swelling and bruising about her face, scalp, and periumbilical area. Dr. Rahul Aggarwal diagnosed A.L. with “unexplained multiple contusions and abrasions involving the scalp, face, extremities, as well as chest and abdomen, most likely consistent with child abuse.”
A.L. was kept in the hospital on a 72-hour hold. St. Louis County Social Services Department (social services) was notified and initially placed A.L. in a foster home and then with her paternal grandparents, pending investigation of the suspected abuse. LaMay voluntarily placed J.L. with Willis pending the investigation. On November 14, 2001, a petition was filed by social services alleging that A.L. and J.L. are children in need of protection or services (CHIPS) due to the suspected abuse of A.L., under Minn. Stat. § 260.007, subd. 6(2)(i), (ii) and (iii).
There was extensive testimony at the trial about the events of November 9, 2001, but no direct evidence about who or what caused A.L.’s injuries. According to the record, at about 3:00 p.m. on November 9, 2001, A.L. was treated by a chiropractor, who routinely treated her for asthma. The chiropractor did not observe any bruising or injuries at that time, although he thought that A.L. might be coming down with a cold because he observed some slight swelling and discoloration below her eyes. Because there was no evidence of injury when A.L. was treated by the chiropractor, it is undisputed that A.L.’s injuries occurred sometime between 3:00 p.m., the time when LaMay and A.L. left the chiropractor’s office, and A.L.’s admission to the emergency room, at 11:36 p.m.
A.L. was alone with LaMay from 3:00 p.m. until 4:15 p.m., when D.J., the 12-year-old babysitter, arrived at LaMay’s home with her mother, Betsy Whitehouse. A.L. was crying when they arrived, but no bruises or injuries were apparent at that time to either D.J. or Whitehouse. LaMay told D.J. that A.L. was not feeling well, that she had a headache, and that she had taken Tylenol. LaMay left for work. Whitehouse fed A.L. some cereal at which time she stopped crying. Whitehouse left LaMay’s house about 15 minutes after LaMay left for work.
D.J. and A.L. watched a video while A.L. lay on the couch. D.J. then gave A.L. a bath. D.J. left A.L. unattended in the bathtub for about ten minutes while she folded laundry in the basement. D.J. testified that at no time was there any indication that A.L. had fallen or hurt herself accidentally. D.J. was only able to wash a portion of A.L.’s hair in the bath because A.L. complained that her head hurt. A.L. continued to complain of pain. D.J. was concerned and called LaMay at work. LaMay told D.J. not to worry and that it was just a headache. LaMay called D.J. about 10:45 p.m. to say that she was on her way home. D.J., in preparation for LaMay driving her home, dressed A.L. in her coat. A.L. did not want to wear her hat because her head hurt, so D.J. pulled up the hood to A.L.’s jacket. D.J. and A.L. were ready, waiting with the lights off, when LaMay arrived. LaMay hugged A.L. and tried to kiss her but A.L. “winced away.” LaMay thought it was “not normal” for the lights to be off and thought D.J.’s conversation was “not normal,” but she did not inquire.
After LaMay dropped D.J. off at her home, she took A.L. to the emergency room. LaMay has given three different explanations of why she took A.L. to the emergency room at that time because (1) she was told that A.L. fell at nursery school two days earlier; (2) A.L. “didn’t look like she felt good”; and (3) she had a “gut instinct.”
Dr. Aggarwal, who examined A.L. on November 10, 2001, testified that it would normally take at least four to five hours for the seepage of fluids resulting from direct trauma to the head to begin making swelling of the head noticeable and that the swelling would become worse and more noticeable as time went on. Dr. Aggarwal ruled out accidental causes based on the bilateral nature of the head injuries.
A.L. has consistently refused to respond to direct inquiries about how her injuries occurred. At the hospital, A.L. did not demonstrate any fear of her mother, but she did not want to see the babysitter, and witnesses said she appeared frightened when the babysitter’s name was mentioned. At her first foster placement, A.L. initially hid when her mother came to visit. The foster mother testified that A.L. appeared frightened of her mother, but that after several minutes she would come out and play. Several witnesses testified about spontaneous comments A.L. has made since November 9, 2001, indicating that LaMay gave her “owies.” The foster mother testified that when she groomed A.L., A.L. would look in the mirror at her “owies.” Once the foster mother remarked that it would be nice to know who gave her the “owies” so it would not happen again and A.L. responded, “momma did it.”
Psychotherapist Annie Leusman, who has provided individual therapy to A.L. since December 17, 2001, concluded that someone to whom A.L. is closely attached has instructed A.L. not to talk about how she was injured. Leusman testified that it is highly unlikely that the babysitter would have such control over A.L., particularly since the babysitter has not seen A.L. since November 9, 2001, and has had no opportunity to reinforce any such instructions. LaMay has had opportunities to influence A.L. beginning at the hospital, when LaMay spoke with A.L. alone to “prepare” her for a videotaped interview about how A.L. was injured.
During a joint therapy session with A.L. and LaMay, Leusman observed LaMay look directly at A.L. while LaMay described her version of how A.L. received her injuries. LaMay opined that A.L. was wearing long pajamas, tripped, and fell down the basement steps. A.L. told Leusman, in a subsequent session, that she has never fallen down steps. A.L. has asked Leusman if Leusman’s mother “gave her ‘owies’ when she [Leusman] was a bad girl.”
LaMay has consistently denied that she caused the injuries suffered by A.L. on November 9, 2001. Telephone records document that LaMay telephoned several people between the time that she returned home with A.L. from the chiropractor’s office and the time that she left for work. LaMay asserts that, based on Dr. Aggarwal’s testimony about when the swelling and bruising would have been noticeable, she could not possibly have caused the injuries and that some accident must have occurred while D.J. was babysitting A.L. LaMay has never asserted that D.J. intentionally harmed A.L.
At trial, there was testimony about LaMay’s housekeeping, meal planning, and that the children were inappropriately dressed on some occasions. The district court noted that these incidents occurred more than a year before the trial. There was also testimony regarding sexually inappropriate language and behavior by A.L., none of which was observed when A.L. was in LaMay’s custody or care.
The district court issued extensive findings that thoroughly discuss the evidence presented. The district court found the evidence clear and convincing that LaMay committed an act of domestic child abuse against A.L. on November 9, 2001, resulting in egregious harm to A.L. The district court also found that the evidence is clear and convincing that LaMay has been unable or unwilling to provide for the basic safety of the children, the moral guidance of A.L., and, at times, for adequate clothing, cleanliness, and hygiene for the children. The district court concluded that the children are in need of protection or services pursuant to Minn. Stat. § 260C.007, subd. 6(2) and (3). This appeal followed.
The state has the burden to prove the statutory grounds set forth in a juvenile protection petition by clear and convincing evidence. Minn. R. Juv. P. 74.04, subd. 1.
“Clear and convincing proof” means exactly what is suggested by the ordinary meanings of the terms making up the phrase. Satisfaction of this standard requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt. Clear and convincing proof will be shown where the truth of the facts asserted is “highly probable.”
Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). The standard of appellate review is whether the district court’s findings are “supported by substantial evidence and are not clearly erroneous.” In re Welfare of J.K.M., 397 N.W.2d 14, 16 (Minn. App. 1986) (citation omitted), review denied (Minn. Feb. 13, 1987); In re Welfare of D.T.J., 554 N.W.2d 104, 107 (Minn. App. 1996). The reviewing court will “closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing.” In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980). But the district court is in a superior position to assess the credibility of witnesses. In re Welfare of M.D.O., 462 N.W.2d 370, 374-5 (Minn. 1990).
A child “in need of protection or services” includes an individual under the age of 18 who:
(2)(i) has been a victim of physical or sexual abuse, (ii) resides with or has resided with a victim of domestic child abuse * * * , (iii) resides with or would reside with a perpetrator of domestic child abuse * * * ;
(3) is without necessary food, clothing, shelter, education, or other required care for the child’s physical or mental health or morals because the child’s parent * * * is unable or unwilling to provide that care.
Minn. Stat. § 260C.007, subd. 6(2), (3) (Supp. 2001). It is undisputed that if A.L.’s injuries were intentionally inflicted by LaMay, both A.L. and J.L. would meet the statutory definition of a child in need of protection or services.
LaMay asserts that there is not clear and convincing evidence that she caused A.L.’s injuries. She first argues that because there was only a 75-minute period during which she could have inflicted the injuries, and there was evidence of numerous activities that she accomplished during this same period, there was not enough time for her to have inflicted the injuries. The district court implicitly rejected this argument and LaMay cites nothing in the record to support a finding that she could not have inflicted the injuries in the time that she was with the child.
LaMay also asserts that Dr. Aggarwal’s testimony that it would take four to five hours for swelling and bruising to become noticeable when considered with the fact that A.L.’s swelling was first noticed on her admission to the hospital at 11:36 p.m., require that the injury occurred while A.L. was in the exclusive care of D.J. But the context of Dr. Aggarwal’s testimony shows that he only generalized about when the swelling and bruising would begin to appear and was not stating an absolute time limit. The guardian ad litem argues that the injuries must have occurred after LaMay left for work because, even if noticeable swelling would take hours to appear, abrasions on A.L. would have been immediately noticeable, and no such abrasions were not noticed by the babysitter or her mother. Nevertheless, there is nothing in the record about when the abrasions would have been noticeable, or whether the abrasions alone would have appeared abnormal to the babysitter or her mother. Everyone who saw A.L. before the injuries agreed that she had a bruised forehead and an abrasion on her lip from everyday incidents.
LaMay further argues that her life history, psychological makeup, and prior relationship with A.L. are inconsistent with a finding that she committed child abuse. Although LaMay’s MMPI showed her to be void of anger and to be psychologically healthy, LaMay admitted that, in the past, she had slapped A.L. in the face “harder than she meant to.” LaMay testified that because she was a victim of child abuse, she would not harm her children. The district court’s findings reflect that it fully considered all of the evidence that militated against a finding that LaMay inflicted the abuse. The district court also made findings about the stress under which LaMay was living at the time of the incident. On this record, we cannot say that LaMay has shown that the evidence of her past and the results of her psychological assessment preclude the district court’s finding that she physically abused A.L. on November 9, 2001.
On appeal, LaMay details the evidence in her favor, attacks the credibility of other witnesses, and offers her own explanation for A.L.’s post-injury comments and actions. LaMay asks this court to substitute her judgment for the district court’s determinations of credibility. We decline to do so. The fact-finder best determines credibility, and the district court’s thorough review of the evidence demonstrates that it considered all of the evidence and not just the evidence critical of LaMay. There is sufficient evidence in the record, including evidence of A.L.’s actions and statements since the event, and evidence of LaMay’s continued efforts to manipulate A.L.’s version of the events, to support the district court’s finding that LaMay is responsible for the injuries that A.L. suffered on November 9, 2001. The district court’s finding that clear and convincing evidence demonstrates that A.L. and J.L. are in need of protection or services pursuant to Minn. Stat. § 260C.007, subd. 6(2), is not clearly erroneous and is affirmed.
There was very little evidence presented about LaMay’s housekeeping, meal planning, or provision of safety and adequate clothing for the children. The limited evidence presented related to unspecified times or events that took place more than a year before the trial. A district court “should not give undue weight to old evidence of neglect, and should fully consider new evidence of parental rehabilitation.” In re Welfare of M.M.B., 350 N.W.2d 432, 434 (Minn. App. 1984) (citation omitted). Medical providers frequently saw A.L. and J.L. None of the medical records supports a conclusion that the children were in need of protection or services due to the condition of their clothing, hygiene, or nutrition. Testimony about LaMay’s housekeeping indicated that when she was younger, had two very small children to care for, and was working, the house was messy but that recently she has become a very good housekeeper. No evidence suggested any detriment to the children caused by LaMay’s provision for their physical or safety needs. We agree with LaMay that there is not clear and convincing evidence that, at the time of the trial, LaMay was unwilling or unable to physically provide for the children or to provide for their basic safety.
The evidence about A.L.’s inappropriate use of sexually explicit language, inappropriately sexual Barbie-doll play, and physical interaction with men was never linked to LaMay. There is no evidence of any inappropriate sexual actions, play, or language by A.L. before the time that the state removed her from LaMay’s care. LaMay has not had the opportunity to provide moral guidance to A.L. since these behaviors were noted. The record does not contain clear and convincing evidence to support the district court’s finding that LaMay has been unable or unwilling to provide for A.L.’s moral guidance. The district court’s determination that A.L. and J.L. are in need of protection or services pursuant to Minn. Stat. § 260C.007, subd. 6(3) is reversed.
Affirmed in part and reversed in part.
 Defining child in need of protection or services as including a child who (i) has been the victim of physical abuse; (ii) resides with or would reside with a victim of domestic child abuse; or (iii) resides with or would reside with a perpetrator of domestic child abuse. Minn. Stat. § 260C.007, subd. 6(2)(i), (ii) and (iii) ( Supp. 2001).
 Minn. Stat. § 260C.007, subd. 6(3) (Supp. 2001), defines a child in need of protection or services as one who
[i]s without necessary food, clothing, shelter, education, or other required care for the child’s physical or mental health or morals because the child’s parent * * * is unable or unwilling to provide that care.